THE COURTS
Title 246--MINOR COURT CIVIL RULES
PART I. GENERAL
[246 PA. CODE CH. 1000]
Issuance of Orders of Execution or Orders for Possession After a District Justice Judgment is Appealed to the Court of Common Pleas
[34 Pa.B. 1933] The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend or revise the Official Notes to Rules 1006, 1007, 1008, 1011, and 1013 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices to clarify that if an award or judgment has been entered in the court of common pleas following de novo appellate proceedings, the case shall remain in the court of common pleas and no further process, including orders of execution and orders for possession, may be issued by the district justice. The Committee has not yet 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 Committee's Official Notes to the rules. The Supreme Court does not adopt the Committee's Official Notes or the contents of the explanatory reports.
The text of the proposed changes precedes the Report. Additions are shown in bold; deletions are in bold and brackets.
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 17055
Fax 717-795-2175
or e-mail to: minorrules@pacourts.us no later than Monday, May 17, 2004.
By the Minor Court Rules Committee
THOMAS E. MARTIN, Jr.,
Chair
Annex A
TITLE 246. MINOR COURT CIVIL RULES
PART I. GENERAL
CHAPTER 1000. APPEALS
APPEAL Rule 1006. Striking Appeal.
* * * * * Official Note: This rule is intended to provide sanctions for failing to act within the time limits prescribed.
If an appeal is stricken pursuant to this rule, any supersedeas based on it shall be terminated. See Rule 1008C. If this occurs, and the court of common pleas does not reinstate the appeal upon good cause shown, the judgment holder may proceed with execution of the judgment entered by the district justice.
Rule 1007. Procedure on Appeal.
A.(1) The proceeding on appeal shall be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in the court of common pleas.
(2) After an award or judgment is entered in the court of common pleas, the case shall remain in the court of common pleas for all further proceedings including execution proceedings, and no further process may be issued by the district justice.
* * * * * Official Note: * * *
Subparagraph A(2) makes clear that once an award or judgment is entered in the court of common pleas following the de novo proceedings, no further process, including orders of execution or orders for possession, may be issued by the district justice.
Rule 1008. Appeal as Supersedeas.
* * * * * Official Note:
* * * * * Subdivision B, however, does require the deposit of money or approved bond as a condition for supersedeas where the appeal is from a judgment for the possession of real property. This provision substantially incorporates the purpose and intent of the [Legislative] statutory provision contained in [Act No. 1995-33, approved July 6, 1995] the Act of July 6, 1995, P. L. 253, No. 33. The 1996 amendment to this rule provides a uniform[, Statewide] statewide procedure [(except Philadelphia County; See: Philadelphia Municipal Court Rules of Civil Procedure), and establishes] in the district justice courts, establishing a mechanism for the application of a supersedeas or the termination thereof without the need for any local court rule or order.
Subdivisions B and C provide in part for the termination of a supersedeas under certain circumstances. If a supersedeas is terminated pursuant to these provisions, the judgment holder may proceed with execution of the judgment entered by the district justice. If, however, an award or judgment is entered in the court of common pleas following the de novo proceedings, the case shall remain in the court of common pleas, and no further process, including orders of execution or orders for possession, may be issued by the district justice. See Rule 1007.
The request for termination of the supersedeas, upon the praecipe filed with the prothonotary, may simply state[:] ''Please terminate the supersedeas in the within action for failure of the appellant to pay monthly rental as required by Pa. R.C.P.D.J. No. 1008 for a period in excess of [thirty (30)] 30 days,'' and will be signed by appellee. The prothonotary will then note upon the praecipe[:] ''Upon confirmation of failure of the appellant to deposit the monthly rent for more than [thirty (30)] 30 days, the supersedeas is terminated,'' and the prothonotary will sign and clock the praecipe. A copy of the praecipe may thereupon be displayed to the district justice who rendered the judgment, and a request for issuance of an order for possession [under Pa. R.C.P.D.J. No. 515] may be made. See Rules 515 and 516.
* * * * * The money judgment portion of a landlord and tenant judgment [(see Pa. R.C.P.D.J. Nos. 514 and 521)] would be governed by subdivision A. See Rules 514 and 521.
CERTIORARI Rule 1011. Issuance and Service of Writ of Certiorari.
* * * * * Official Note: The provisions as to service of the writ parallel those for service of notices of appeal. Subdivision C contains sanctions for failing to comply with the prescribed time limits, and reinstatement of the writ or the issuance of a new one is not allowed. If the writ is stricken pursuant to subdivision C, any super- sedeas based on it shall be terminated. See Rule 1013C. If this occurs the judgment holder may proceed with execution of the judgment entered by the district justice.
Rule 1013. Writ of Certiorari as Supersedeas.
* * * * * Official Note: As in appeals [(see Pa. R.C.P.D.J. No. 1008)], certiorari operates as an automatic supersedeas in trespass and assumpsit matters when the writ is received by the district justice. If the writ involves a judgment for the possession of real property, however, it will operate as a supersedeas upon receipt by the district justice only if money is paid or a bond is filed conditioned as stated in the rule. [This Rule has been amended to require a payment equal to the lesser of three months rent or the rent actually in arrears in orderfor the writ involving a judgment for the possession of real property to act as a supersedeas to ensure consistency between this Rule and Pa. R.C.P.D.J. No. 1008. (Appeal as Supersedeas.).] See Rule 1008.
Subdivisions B and C provide in part for the termination of a supersedeas under certain circumstances. If a supersedeas is terminated pursuant to these provisions, or if the writ is dismissed pursuant to Rule 1014B, the judgment holder may proceed with execution of the judgment entered by the district justice.
The request for termination of the supersedeas, upon the praecipe filed with the prothonotary, may simply state[:] ''Please terminate the supersedeas in the within action for failure of the party filing the writ to pay monthly rental as required by Pa. R.C.P.D.J. No. 1013 for a period in excess of [thirty (30)] 30 days,'' and will be signed by landlord. The prothonotary will then note upon the praecipe[:] ''Upon confirmation of failure of the party filing the writ to deposit the monthly rent for more than [thirty (30)] 30 days, the supersedeas is terminated,'' and the prothonotary will sign and clock the praecipe. A copy of the praecipe may thereupon be displayed to the district justice who rendered the judgment, and a request for issuance of an order for possession [under Pa. R.C.P.D.J. No. 515] may be made. See Rules 515 and 516.
The money judgment portion of a landlord and tenant judgment [(see Pa. R.C.P.D.J. Nos. 514 and 521)] would be governed by subdivision A [of this rule]. See Rules 514 and 521.
REPORT Proposed Amendments or Revisions to the Official Notes to Rules 1006, 1007, 1008, 1011, and 1013 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices
Issuance of Orders of Execution or Orders for Possession After a District Justice Judgment is Appealed to the Court of Common Pleas I. Background
The Minor Court Rules Committee (the Committee) undertook a review of the rules relating to the issuance of orders of execution and orders for possession, as well as the rules relating to appeals from district justice judgments, in response to an inquiry from the Administrative Office of Pennsylvania Courts (AOPC). Specifically, the AOPC reported that there is a lack of procedural uniformity in local practice as to how and by whom orders of execution and orders for possession are being issued after a case has been appealed to the court of common pleas for a trial de novo. It was reported that in some instances, judgment holders are returning to the district justice to request an order of execution or order for possession after an award or judgment has been entered in the de novo proceedings in the court of common pleas. Some district justices are reportedly issuing such orders. In other cases, district justices are refusing to issue further process after the case has been appealed. The AOPC asked the Committee to review this situation and to clarify the proper procedure.1
After review of the relevant rules and other authority, the Committee is proposing amendments or revisions to the Official Notes to Pa. R.C.P.D.J. Nos. 1006 (Striking Appeal), 1007 (Procedure on Appeal), 1008 (Appeal as Supersedeas), 1011 (Issuance and Service of Writ of Certiorari), and 1013 (Writ of Certiorari as Supersedeas). These proposed rule changes are intended to clarify that if an award or judgment is entered in the court of common pleas following de novo proceedings, the case shall remain in the court of common pleas, and no further process, including orders of execution and orders for possession, may be issued by the district justice.
II. Discussion
The Committee began its analysis with Rule 1007 (Procedure on Appeal), which states in part, ''[t]he proceeding on appeal shall be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in the court of common pleas.'' Pa. R.C.P.D.J. No. 1007; see also 42 Pa.C.S. § 932 (Appeal from minor judiciary). In addition, the Official Note to the Rule states, ''. . . the court of common pleas on appeal can exercise its full jurisdiction and all parties will be free to treat the case as though it had never been before the district justice, subject of course to the Rules of Civil Procedure.'' Pa. R.C.P.D.J. No. 1007, Official Note.2 The Committee also considered the specific provisions of Rules 1008 and 1013 which permit execution of the district justice judgment in limited circumstances when a supersedeas is terminated because an appeal or writ of certiorari is stricken, dismissed, discontinued, or otherwise terminated before an award or judgment is entered in the court of common pleas (in the case of an appeal), or before the court of common pleas enters an order in favor of the party obtaining the writ of certiorari (pursuant to Rule 1014A).3 The Committee noted, however, that no specific provision exists in the current rules for executing on the district justice judgment after disposition of the case on the merits in the court of common pleas.
These provisions suggested to a majority of the committee members that proceedings on appeal are to be handled exclusively in accordance with the Rules of Civil Procedure, and that the district justice who entered the original judgment has no further jurisdiction in the case after it is appealed except as provided in Rules 1008 and 1013.
Having concluded that the current rules require an appealed action to remain in the court of common pleas for all further proceedings after an award or judgment is entered in the appeal, the Committee considered whether the rules should provide some mechanism for a judgment holder to return to the district justice after disposition of an appeal solely for purposes of obtaining execution or possession. A number of Committee members were sensitive to the fact that execution and possession procedures are significantly faster and less expensive at the district justice level (via constable) than they are at the common pleas level (via the sheriff). These members argued that requiring judgment holders to execute using common pleas procedures would prevent them from utilizing the relatively inexpensive, simplified, and expedited procedures inherent in the district justice system. Other members argued that permitting judgment holders to return to the district justice for execution would be contrary to the de novo nature of the appellate proceedings. In addition, it would unduly complicate the rules in that it would require additional procedures governing how and when a judgment would be certified back to the district justice so the judgment holder could request execution or possession. After considerable discussion, a majority of the Committee voted for the current proposal, although a significant minority would have crafted the rules to permit the judgment holder to return to the district justice for solely purposes of obtaining execution or possession.
III. Proposed Rule Changes
To address the issues discussed above, the Committee proposes the following rule changes.4
A. Rule 1007--Proceedings Must Remain in the Court of Common Pleas
The cornerstone of the Committee's proposal is a new subparagraph A(2) in Rule 1007 which would provide that ''[a]fter an award or judgment is entered in the court of common pleas, the case shall remain in the court of common pleas for all further proceedings including execution proceedings, and no further process may be issued by the district justice.'' Proposed amendment to Rule 1007, supra. In addition, clarifying language in this same regard would be added to the Official Note.
B. Rules 1006, 1008, 1011, and 1013--Correlative Revisions to Official Notes
The Committee further proposes that the Official Notes to Rules 1006, 1008, 1011, and 1013 be revised to make clear that if a supersedeas is terminated or an appeal or writ of certiorari is stricken or otherwise terminated before disposition of the matter on appeal or subject to the writ, the judgment holder may proceed with execution of the judgment entered by the district justice.
[Pa.B. Doc. No. 04-594. Filed for public inspection April 9, 2004, 9:00 a.m.] _______
1 The specific inquiry from the AOPC dealt only with landlords requesting orders for possession in actions for possession of real property (landlord-tenant actions), but the Committee noted that similar issues could arise in execution of judgments in regular civil actions.
2 The Supreme Court of Pennsylvania does not adopt the content of the Committee's Official Notes to the rules.
3 See Rule 1008 B and C, and Rule 1013 B and C.
4 In addition to the substantive changes discussed here, the Committee proposes minor technical or ''housekeeping'' changes to add or correct cross-references, and to conform to modern drafting style.
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