THE COURTS
PART I. GENERAL
[246 PA. CODE CH. 200]
Proposed Amendment to Rule 206 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices
[31 Pa.B. 5793]
Introduction The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa. R.C.P.D.J. No. 206 to clarify that a party who has been allowed to proceed in forma pauperis pursuant to Rule 206 is not required to pay service costs, and to make other technical or ''housekeeping'' amendments to this rule. The Committee has not submitted this proposal for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. The Committee's Report should not be confused with the official Committee Notes to the rules. The Supreme Court does not adopt the Committee's Notes or the contents of the explanatory Reports.
The text of the proposed changes precedes the Report.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel,
Michael F. Krimmel, Counsel
Supreme Court of Pennsylvania
Minor Court Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055or e-mail to: minorcourt.rules@supreme.court.state. pa.us no later than Wednesday, November 14, 2001.
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 206. Fees. Costs.
* * * * * B. Except as otherwise provided by subdivision C of this rule, the prevailing party in district justice proceedings shall be entitled to recover his or her taxable costs from the unsuccessful [litigant] party. Such costs shall consist of all filing, personal service, witness, and execution costs or fees authorized by [law] Act of Assembly or general rule and paid by the prevailing party.
C. Taxable costs on appeal or certiorari shall be paid by the unsuccessful party, and a plaintiff who appeals shall be considered an unsuccessful party if he or she does not obtain on appeal a judgment more favorable than that [which he] obtained in the district justice proceeding. A defendant who prevails on certiorari proceedings brought by [him] the defendant or who obtains a favorable judgment [in his favor] upon appeal by either party shall not be liable for costs incurred by the plaintiff in the preceding district justice proceeding and may recover his or her taxable costs in that proceeding from the plaintiff. A plaintiff who is unsuccessful in the district justice proceeding may recover his or her taxable costs in that proceeding from the defendant if [he] the plaintiff is successful on appeal, and in that event the defendant may not recover his or her costs in the district justice proceeding from the plaintiff.
* * * * *
Official Note * * * * * [''Service''] Under subdivision B, ''personal service . . . costs or fees'' refer only to personal service since mail costs are to be borne by the plaintiff in all cases in accordance with Section 1725.1 of the Judicial Code, 42 Pa.C.S. § 1725.1.
This rule does not provide for the assessment of filing fees against an unsuccessful plaintiff who has been permitted to proceed in forma pauperis and who remains indigent. See Brady v. Ford, 679 A.2d 837 (Pa. Super. Ct. 1996).
For special provisions governing [proceedings in forma pauperis, see Section] actions pursuant to the Protection From Abuse Act, see Sections 6106(b) and (c) of the Domestic Relations Code, 23 Pa.C.S. [, Section] §§ 6106(b) and (c).
E. Proceedings In Forma Pauperis
* * * * * (ii) Except as provided by [subdivision] subparagraph (iii), the party shall file a petition and affidavit in the form prescribed by [subdivision] subparagraph (vi). The petition may not be filed prior to the commencement of the action, which action shall be accepted in the first instance, without the payment of a filing fee.
Except as prescribed by [subdivision] subparagraph (iii), the District Justice shall act promptly upon the petition and shall enter an order within five days from the date of the filing of the petition. If the petition is denied, in whole or in part, the District Justice shall briefly state the reasons therefor. In this case the unsuccessful petitioner may proceed no further so long as such fee remains unpaid.
(iii) If the party is represented by an attorney, the District Justice shall allow the party to proceed in forma pauperis upon the filing of a praecipe which contains a certification by the attorney that he or she is providing free legal service to the party and [that he] believes the party is unable to pay the costs.
(iv) A party permitted to proceed in forma pauperis shall not be required to pay [the filing] any cost or fee imposed or authorized by Act of Assembly or general rule which is payable to any court or any public officer or employee. Such party shall be informed of the option to serve the complaint by mail in the manner permitted by [the Rules of Civil Procedure Governing Actions And Proceedings Before District Justices] these rules.
* * * * *
[Comment] Note This Rule substantially follows Pa.R.C.P. No. 240. Under subparagraph E(iv), ''any cost or fee'' includes all filing, service, witness, and execution costs or fees.
Adopted April 25, 1979, effective in 30 days. Amended June 30, 1982, effective 30 days after July 17, 1982; amended effective Sept. 18, 1990; amended March 27, 1992, effective June 25, 1992 [The March 27, 1992, Order provided in part: ''In promulgating this Order, the Court recognizes that the District Justice Automation Project will be affected by said Rule changes and that, therefore, those rules which affect the Project will become effective as the District Justice offices are brought online.''] amended ______ , effective ______ .
REPORT
Proposed Amendment to Pa.R.C.P.D.J. No. 206 Amendment to Rule 206 to clarify that a party who has been allowed to proceed in forma pauperis pursuant to Tile 206 is not required to pay service costs
I. Background
The Committee undertook a review of Rule 206 in response to an inquiry from the Administrative Office in Pennsylvania Courts (AOPC). The AOPC asked the Committee to review the issue of whether a party who has been allowed to proceed in forma pauperis as provided by Rule 206 is required to pay constable (service) costs. The AOPC noted that Rule 206E provides that a party who is unable to pay the costs of litigation shall be entitled to proceed in formal pauperis and that the rule further provides that a party permitted to proceed in forma pauperis shall not be required to pay the filing fee imposed or authorized by Act of Assembly or general rule. The AOPC further noted that Rule 206 is silent as to whether payment of service costs is required by a party proceeding in forma pauperis. Upon review of the rule, the Committee notes that the Note to Rule 206 states that the rule ''substantially follows Pa.R.C.P. No. 240,'' which appears to specifically exempt all costs and fees. Pa.R.C.P. No. 240(f)(1) provides that ''a party permitted to proceed in forma pauperis shall not be required to pay any costs or fee imposed or authorized by Act of Assembly or general rule which is payable to any court or prothonotary or any public officer or employee.''
After review and discussion, the Committee agreed that Rule 206 is inconsistent with Pa.R.C.P. No. 240 in that Rule 206 refers only to filing fees and is silent as to the payment of service costs by parties who are permitted to proceed in forma pauperis. Further, the Committee agreed that it is well settled that such parties should not be required to pay service costs. Accordingly, the Committee proposes that Rule 206 be amended to make this clarification and to more closely mirror Pa.R.C.P. No. 240.
In conjunction with the proposed amendment to the rule described above, the Committee also recognized the need for several technical or ''housekeeping'' amendments to this rule.
II. Discussion of Rule Changes
First, as noted above, the Committee proposes that rule 206E(iv) be amended to closely resemble Pa.R.C.P. No. 240(f)(1) thereby clarifying that a party permitted to proceed in forma pauperis shall not be required to pay ''ay cost or fee'' including filing, service, witness, and execution costs or fees.
Also, the Committee proposes a revision to the Note to clarify that the rule does not provide for the assessment of filing fees against an unsuccessful plaintiff who has been permitted to proceed in forma pauperis and who remains indigent. As authority for this, the Committee proposes to add a reference to Brady v. Ford, 679 A.2d 837 (Pa. Super. Ct. 1996).
Finally, in conjunction with the proposed amendments and revisions described above, the Committee also recognized the need for minor changes to the rule and its Note to make other minor clarifications, to address gender neutrality issues, to correct citation form, and to conform with modern drafting style.
[Pa.B. Doc. No. 01-1882. Filed for public inspection October 19, 2001, 9:00 a.m.]
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