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PA Bulletin, Doc. No. 99-2122

THE COURTS

Title 246--MINOR COURT CIVIL RULES

PART I.  GENERAL

[246 PA. CODE CHS. 200--500 AND 800]

Service of Civil Documents by Certified Constables

[29 Pa.B. 6327]

Introduction

   The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt the following proposed amendments to Rules 202, 307, 403, 404, 405, 506, 508, 516 and 811 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices. These amendments will allow a district justice to effectuate service of civil documents by the use of any certified constable in the Commonwealth, when his/her district is located in a county where there are no certified constables and the sheriff is unwillingly to make service.

   These proposals have not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through: The Honorable Kenneth E. Deatelhauser, District Justice, 66 County Line Road, Sounderton, PA 18964-1252, no later than Friday, January 28, 2000.

By the Minor Court Rules Committee:

FRED A. PIERANTONI, III,   
Chair

Annex A

TITLE 246.  MINOR COURT CIVIL RULES

PART I.  GENERAL

CHAPTER 200.  RULES OF CONSTRUCTION; GENERAL PROVISIONS

Rule 202.  Definitions.

   As used in these rules:

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   (3)  ''Constable'' includes a certified or deputy constable.

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CHAPTER 300.  CIVIL ACTION

Rule 307.  Service of the Complaint.

   Service shall be made at least ten (10) days before the hearing, in the following manner:

   (1)  A copy of the complaint for each defendant shall be delivered by the district justice for service to the sheriff of, or any certified constable in, the county in which the magisterial district of the district justice is situated. If this service is not available to the district justice, service may be made by any certified constable of the Commonwealth. If the complaint is delivered for service to the sheriff and service is to be made in a county other than the one in which the magisterial district of the district justice is situated, the sheriff shall deputize the sheriff of the county in which service is to be made. A certified constable may serve the complaint anywhere in the Commonwealth.

   (2)  If service is to be made in a county other than the one in which his magisterial district is situated, the district justice, instead of acting in accordance with (1), above, may:

   (a)  send the copy of the complaint for service to a district justice in the county in which service is to be made who shall deliver it for service to the sheriff of, or any certified constable in, that county[, or]. If this service is not available to the district justice, service may be made by any certified constable of the Commonwealth, or

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   Official Note:  This rule provides a number of alternative methods of serving the complaint. Subdivision (1) permits a certified constable to serve the complaint anywhere in the Commonwealth and authorizes deputized service by sheriffs. Subdivision (2)(a) permits service out of the county through district justices in the county in which service is to be made, a method of service which might be preferable to service under subdivision (1) by a certified constable of the county where the complaint was filed when that county is a considerable distance from the county of service. Subdivision (2)(b) provides for service in Philadelphia by writ servers of the Philadelphia Municipal Court or by the Sheriff of Philadelphia, although service may still be made in accordance with subdivision (1) if the district justice so desires. Subdivision (3) makes service by mail, when permitted, at the option of the plaintiff. This was done because service by mail will ordinarily reduce costs.

CHAPTER 400.  EXECUTION OF JUDGMENTS FOR THE PAYMENT OF MONEY

Rule 403.  Issuance and Reissuance of Order of Execution.

   A.  Upon the filing of the request form, the district justice shall note on the form the time and date of its filing and shall issue the order of execution thereon. The district justice shall deliver the order of execution for service and execution to the sheriff of, or any certified constable in, the county in which the office of the district justice issuing the order is situated. If this service is not available to the district justice, service may be made by any certified constable of the Commonwealth.

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   Official Note:  Under subdivision A, the order may be executed by the sheriff of the county in which the office of the issuing district justice is situated, as well as by any certified constable in that county.

Rule 404.  Notation of Time of Receipt.

   The sheriff or certified constable receiving the order shall note upon the form the date and time that he received it.

Rule 405.  Service of Order of Execution.

   A.  [Service of the order of execution shall be made by the sheriff or constable by levy within sixty (60) days of the issuance or reissuance of the order.] Service of the order of execution shall be made by the sheriff of, or any certified constable in, the county in which the office of the district justice is situated by levy within sixty (60) days of the issuance or reissuance of the order. If this service is not available to the district justice, service may be made by any certified constable of the Commonwealth.

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CHAPTER 500.  ACTIONS FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY

Rule 506.  Service of Complaint.

   A.  The district justice shall serve the complaint by mailing a copy of it to the defendant by first class mail and by delivering a copy of it for service to the sheriff of, or any certified constable in, the county in which the office of the district justice is situated. If this service is not available to the district justice, service may be made by any certified constable of the Commonwealth. The officer receiving the copy shall serve it by handing it to the defendant or to an adult person in charge for the time being of the premises possession of which is sought to be recovered or, if none of the above is found, by posting it conspicuously on those premises.

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Rule 508.  Claim by Defendant.

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   C.  The defendant's cross-complaint shall be served on the plaintiff at least five (5) days before the hearing. At the option of the defendant, the district justice shall serve the cross-complaint by mailing a copy of it to the plaintiff. If the defendant does not request service by mail, the district justice shall deliver a copy of the cross-complaint for service to the sheriff of, or any certified constable in, the county in which the office of the district justice is located. If this service is not available to the district justice, service may be made by any certified constable of the Commonwealth. The officer receiving the copy shall serve it by handing it to the plaintiff or to an adult person in charge for the time being of the plaintiff's residence or usual place of business.

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Rule 516.  Issuance of Order for Possession.

   Upon the filing of the request form, the district justice shall issue the order for possession and shall deliver it for service and execution to the sheriff of, or any certified constable in, the county in which the office of the district justice is situated. If this service is not available to the district justice, service may be made by any certified constable of the Commonwealth. The order shall direct the officer executing it to deliver actual possession of the real property to the plaintiff.

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CHAPTER 800.  MINORS AND INCOMPETENTS AS PARTIES

Rule 811.  Service of the Complaint.

   Service of the complaint upon a defendant who is an incompetent, or of a cross-complaint upon a plaintiff who is an incompetent, shall be upon his guardian. This service shall be made in accordance with Rule 307.

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Explanatory Report

   The current rules for service of district justice court process require service be made by, ''the sheriff of, or any constable in, the county in which the magisterial district of the district justice is situated.'' As of November 1, 1998, all constables that effect this service must be certified by the Pennsylvania Commission on Crime and Delinquency. Therefore, the Committee believes that the Rules should be amended to provide that service shall be made by ''the sheriff of, or any certified constable in, the county in which the magisterial district of the district justice is situated.''

   In addition, this requirement that only a certified constable can effectuate service has created a problem for some district justices in that their districts are in counties where there are no certified constables and the sheriff is unwillingly to perform service. Thus, the Committee believes in order to alleviate this problem, the Rules should be amended to state that service be made by ''the sheriff of, or any certified constable in, the county in which the magisterial district of the district justice is situated. If this service is not available to the district justice, service may be made by any certified constable of the Commonwealth.''

[Pa.B. Doc. No. 99-2122. Filed for public inspection December 17, 1999, 9:00 a.m.]


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