THE COURTS
Title 231--RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[231 PA. CODE CHS. 3000 AND 3300]
Proposed Rules Governing Attachment of Wages, Salary and Commissions under Section 8127(a)(3.1) of the Judicial Code; Proposed Recommendation No. 190
[34 Pa.B. 476] The Civil Procedural Rules Committee proposes that the Rules of Civil Procedure be amended by adding new Rule 3301 et seq. governing the attachment of wages, salary, and commissions to satisfy a money judgment arising from a residential lease pursuant to Section 8127(a)(3.1) of the Judicial Code. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court of Pennsylvania.
All communications in reference to the proposed recommendation should be sent not later than March 12, 2004 to:
Harold K. Don, Jr.,
Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
or E-Mail to
civil.rules@pacourts.usThe Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules of civil procedure or be officially adopted or promulgated by the Court.
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 3000. JUDGMENTS
Subchapter D. ENFORCEMENT OF MONEY JUDGMENTS FOR THE PAYMENT OF MONEY Rule 3101. Definitions[;]. Garnishee. Scope.
* * * * * (c) The rules of this chapter shall not apply to the attachment of wages, salary or commissions to satisfy a money judgment arising from a residential lease pursuant to Section 8127(a)(3.1) of the Judicial Code.
Official Note: For the attachment of wages under Section 8127(a)(3.1) of the Judicial Code, see Rule 3301 et seq.
Rule 3140. Notice by Garnishee.
* * * * * Official Note: Registered mail includes certified mail. See Definition Rule 76.
Attachment of wages, salary, and commissions to satisfy a money judgment arising from a residential lease pursuant to Section 8127(a)(3.1) of the Judicial Code is governed by Rule 3301 et seq.
CHAPTER 3300. ATTACHMENT OF WAGES, SALARY AND COMMISSIONS Rule 3301. Scope. Definitions.
(a) The rules of this chapter govern an attachment of wages to satisfy a judgment pursuant to Section 8127(a)(3.1) of the Judicial Code.
Official Note: Section 8127(a)(3.1) of the Judicial Code provides for the attachment of wages for amounts awarded to a judgment creditor-landlord arising out of a residential lease upon which the court has rendered judgment which is final.
See subdivision (b) for the definition of ''judgment.''
Rule 3101 et seq. governing the enforcement of money judgments is not applicable to the attachment of wages under this chapter.
(b) As used in this chapter,
''defendant'' means a judgment debtor-tenant,
''garnishee'' means the employer of the defendant,
''judgment'' means a judgment for amounts awarded to a plaintiff arising out of a residential lease or for physical damage to a leased residential property, entered in
(1) any civil action brought in the court of common pleas,
(2) any civil action brought before a district justice pursuant to Pa.R.C.P.D.J. 301 et seq., or
(3) any action for the recovery of possession of real property brought before a district justice pursuant to Pa.R.C.P.D.J. 501 et seq. in which the defendant appeared or filed papers or in which the complaint was served by handing a copy to the defendant.
''plaintiff'' means a judgment creditor-landlord, and
''wages'' includes salary and commissions.
Rule 3302. Commencement. Notice.
(a) Execution to attach wages shall be commenced by the plaintiff by filing a praecipe with the prothonotary of any county in which judgment has been entered. The praecipe shall be filed within five years of the entry of the judgment. The praecipe shall be in the form prescribed by Rule 3311.
(b) Upon the filing of the praecipe, the prothonotary shall issue a Notice of Intent to Attach Wages in the form prescribed by Rule 3312(a). The prothonotary shall attach to the notice a copy of the most recent poverty income guidelines issued by the Federal Department of Health and Human Services.
(c) The Notice of Intent to Attach Wages shall be served upon the defendant in the manner provided by Rule 400 et seq. for service of original process in a civil action.
Rule 3303. Exemption from Attachment. Procedure.
(a) A defendant claiming an exemption from attachment based upon the federal poverty income guidelines shall file the claim for exemption with the prothonotary within thirty days of service of the Notice of Intent to Attach Wages.
(b)(1) If the defendant files a claim for exemption of wages from attachment either within thirty days as required by subdivision (a) of this rule or prior to the issuance of the writ of attachment, the prothonotary shall not issue the writ of attachment and shall promptly send a copy of the claim to the plaintiff. The notice of exemption shall be in the form prescribed by Rule 3312(c).
(2) If the defendant files a claim for exemption after the writ of attachment has been issued, the attachment of the defendant's wages shall continue unless the defendant obtains a court order staying or vacating the attachment.
(c) A plaintiff who wishes to challenge the claim of exemption shall file a motion requesting the court to direct the prothonotary to issue a writ for the attachment of wages. The motion shall set forth facts which establish that the plaintiff is entitled to attach wages pursuant to Section 8127(a)(3.1) of the Judicial Code. If the motion on its face sets forth such facts, the court shall set a hearing date or set forth another procedure provided by Rule 208.4 as may be appropriate.
Rule 3304. Writ for the Attachment of Wages. Issuance. Service.
(a) The prothonotary shall issue a writ for the attachment of wages upon
(1) praecipe of the plaintiff where the defendant has not timely filed a claim for exemption of wages from attachment, or
(2) order of the court entered upon motion pursuant to Rule 3303.
(b) The prothonotary shall mail the writ to the garnishee by ordinary mail.
(c) The writ of attachment of wages shall be substantially in the form provided by Rule 3313.
Official Note: Section 8127(c)(1) of the Judicial Code provides that the employer shall send the attached wages to the prothonotary of the court of common pleas within 15 days from the close of the last pay period in each month. Upon receipt of the attached wages, the prothonotary of the court of common pleas shall record and send said wages to the judgment creditor-landlord.
FORMS Rule 3311. Praecipe For Notice of Intent to Attach Wages. Form.
The Praecipe For Notice of Intent to Attach Wages shall be substantially in the following form:
Caption
Praecipe For Notice of Intent to Attach Wages To the Prothonotary:
Issue a Notice of Intent to Attach Wages in the above matter
(1) against ______, defendant,
(2) against ______ , employer of the defendant.
Date: ______ _________________ Attorney for Judgment Creditor-Landlord
or Judgment Creditor-Landlord
if unrepresented_________________ Address _________________ Telephone number
Certification by Judgment Creditor-Landlord I certify that
1. The plaintiff judgment creditor is ______ Name ______ Address
2. The defendant judgment debtor is ______ Name ______ Address
3. The employer garnishee is ______ Name ______ Address
4. The judgment arises out of a residential lease for the premises at ______ (address).
5. (a) The amount of the judgment is $ ______ .
(b) A security deposit in the amount of $ ______ is being held by the judgment creditor-landlord. This security deposit
____ has been applied
____ has not been applied
to payment of rent due on the same premises for which the judgment for attachment has been entered.
(c) The amount of $ ______ has been paid toward satisfaction of the judgment. (Do not include the security deposit.)
6. This praecipe is filed within five years of the entry of the judgment upon which execution is sought.
7. The judgment was entered (check one):
____ in a civil action in the court of common pleas.
____ in a civil action (Pa.R.C.P.D.J. 301 et seq.) brought before a district justice and transferred to the court of common pleas.
____ an action to recover possession of real property (Pa.R.C.P.D.J. 501 et seq.) brought before a district justice and transferred to the court of common pleas.
8.(a) if the judgment was entered in a civil action before a district justice, a copy of the complaint filed with the district justice is attached to this Notice, showing that the action arose from a residential lease.
(b) If the judgment was entered in an action for the recovery of possession of real property before a district justice, copies of the appropriate district justice records are attached showing that the defendant appeared or filed papers in the action or that the complaint was served by handing a copy to the defendant.
I certify that the statements made in this Certification are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
Date: ______ _________________ Judgment Creditor-Landlord Rule 3312. Notice of Intent to Attach Wages. Claim for Exemption. Notice of Claim for Exemption. Forms.
(a) The notice of attachment of wages required by Rule 3302(b) shall be substantially in the following form:
(CAPTION)
NOTICE OF INTENT TO ATTACH WAGES,
SALARY OR COMMISSIONSA judgment has been entered against you in court for nonpayment of rent for, or damage to, residential property that you rented. The judgment creditor-landlord has begun proceedings to attach 10% of your net wages, salary or commissions for each pay period until the judgment is satisfied.
The following exception will prevent your wages from being attached:
Poverty Guidelines--Your wages may not be attached if your net income is below the poverty income guidelines as provided annually by the Federal Department of Health and Human Services or if the amount of the attachment would cause your net income to fall below the poverty income guidelines. A copy of the guidelines is attached to this notice.
If this exemption is applicable to you, you must return the claim for exemption of wages which is attached to the prothonotary within 30 days of the date of service of this notice upon you. The date of service of this notice is ______ . If you return the form claiming this exemption within 30 days, your wages will not be attached without subsequent court proceedings.
There may be other legal grounds for opposing the wage attachment that you may be able to raise by filing a motion with the court. For example, your wages may not be attached if you are an abused person or victim as set forth in Section 8127(f) of the Judicial Code when the attachment is to satisfy a judgment for physical damages to the leased premises.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
_________________
(Name)
_________________
(Address)
_________________
(Telephone Number)(b) The claim for exemption from wage attachment shall be substantially in the following form:
(CAPTION)
CLAIM FOR EXEMPTION FROM WAGE ATTACHMENT
Notice This Claim for Exemption must be filed with the Prothonotary of the Court within 30 days of service upon you of the Notice of Intent to Attach Wages.
To the Prothonotary:
I, the above named defendant, claim exemption of my wages, salary or commissions from attachment on the following ground:
____ My net income is below the poverty income guidelines as provided annually by the Federal Department of Health and Human Services.
OR
____ The amount of wages to be attached would place my net income below the poverty income guidelines as provided annually by the Federal Department of Health and Human Services.
I have ______ dependents.
(Number)My net income is $ ______ .
(Net income is your total wages less (1) any support payments made to the court, (2) federal, state and local income taxes, (2) F.I.C.A. payments and nonvoluntary retirement payments. (4) union dues and (5) health insurance premiums.)
I certify that the statements made in this Claim for Exemption are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
Date: ______ _________________ Defendant
This claim shall be delivered or mailed to
Office of the Prothonotary
Court of Common Pleas
_________________
Address
_________________
Telephone Number(c) The notice of claim of exemption required by Rule 1303(b) shall be substantially in the following form:
(CAPTION)
NOTICE OF CLAIM OF EXEMPTION
OF WAGES FROM ATTACHMENTTo the above named plaintiff:
The defendant in the above captioned matter has filed a claim for exemption from attachment of his or her wages, salary or commissions. A copy of the claim is attached. If you wish to challenge the claim for exemption, you should file with the court a motion setting forth facts which show that the defendant's net income is not below the Federal Department of Heath and Human Services poverty income guidelines or that the attachment will not cause the defendant's net income to fall below those poverty income guidelines.
Date: ______ _________________ Prothonotary Rule 3313. Writ of Attachment of Wages. Form.
The writ of attachment of wages shall be substantially in the following form:
Caption
Writ of Attachment of Wages, Salary or Commissions Commonwealth of Pennsylvania :
County of ______ :To _________________
Employer of Defendant ______
NameYou have been identified as the employer of the above named defendant.
You are directed to withhold the wages, salary and commissions of the defendant in your possession to satisfy the judgment against the defendant.
You are notified that
1. an attachment of wages, salary and commissions has been issued;
2. you are ordered to withhold from the wages, salary and commissions of the defendant an amount per pay period which does not exceed ten (10) percent of the defendant's net wages, salary and commissions;
Net wages are all wages paid less only the following items: (1) any support payments made to the court, (2) Federal, State and local income taxes, (3) F.I.C.A. payments and nonvoluntary retirement payments. (4) Union dues and (5) Health insurance premiums.
3. the total amount attached is $ ______ and the withholding must continue until the amount of the attachment is satisfied;
4. the attached wages shall be sent to the prothonotary of the court of common pleas within 15 days from the close of the last pay period in each month. The check must
a. contain the name of the employee whose wages are being withheld,
b. be made payable to the Prothonotary, and
c. be sent to
Prothonotary
Court of Common Pleas
Wage Attachment Remittance
_________________
Address
_________________
Telephone Number5. you are entitled to deduct each pay period from the money collected from the defendant employee the costs incurred from the extra bookkeeping necessary to record the transaction, not exceeding $5.00 of the amount of money so collected.
6. by law, you may not take any adverse action against the defendant because his or her wages, salary or commissions have been attached.
7. you shall send the following notice to the prothonotary if the defendant has never been or is no longer an employee:
I have received a Writ of Attachment in the following case:
______ v. ______ , No. ____ of ______ . Plaintiff Defendant Year The following person,
______ , has never been ( ______ ) or is no longer
Name
an employee ( ______ ).
Date: ______ _________________ Employer * * * * * * * * * * * * * * * * * * * * * * * * *
_________________ Prothonotary Seal of the Court By ______ Deputy
Explanatory Comment The Civil Procedural Rules Committee is proposing to recommend a new chapter of rules, Rule 3301 et seq., to govern the attachment of wages, salary and commissions pursuant to Section 8127(a)(3.1) of the Judicial Code in actions or proceedings for ''amounts awarded to a judgment creditor-landlord arising out of a residential lease.'' Rule 3101 et seq. governing the enforcement of judgments for the payment of money will not apply to a wage attachment under this provision of the Judicial Code.
Pursuant to the definition of the term ''judgment'' in proposed Rule 3301(b), wages may be attached to satisfy a judgment for rent or physical damage to a leased premises entered in a ''civil action'' whether in a court of common pleas or before a district justice. However, if the money judgment sought to be enforced is entered in an action for recovery of possession of real property before a district justice pursuant to Pa.R.C.P.D.J. 501 et seq., a writ of attachment of wages may issue only if the defendant appeared or filed papers in the action or if the complaint was handed to the defendant (judgment debtor-tenant).
Section 8127 of the Judicial Code imposes certain requirements upon the attachment of wages.
Security Deposit.--
Section 8127(a)(3.1) provides for the deduction from the attachment of a security deposit under circumstances set forth in the Code. Rule 1311 prescribes a form of Praecipe for Notice of Intent to Attach Wages which requires the plaintiff (judgment creditor-landlord) to execute a Certification as to the status of the security deposit.
Exemptions from Attachment.--
1. Poverty Guidelines. Section 8127(a)(3.1) requires that the ''sum attached shall be no more than 10% of the net wages per pay period of the judgment debtor-tenant or a sum not to place the debtor's net income below the poverty income guidelines as provided annually by the Federal Office of Management and Budget, whichever is less.'' First, the employer-garnishee will determine the ten percent limit of the net wages to be attached. Second, since the defendant (judgment creditor-tenant) is the only person who has knowledge whether the attachment will bring his or her net income below the poverty level, the rules require the defendant to assert this objection to the attachment by filing a claim for exemption which is attached to the Notice of Intent to Attach Wages served upon the defendant. Third, Rule 3302(b) requires the prothonotary to attach to the Notice a copy of the most recent federal poverty income guidelines of the Federal Department of Health and Human Services.
2. Other Exemptions. The Notice of Intent to Attach Wages advises the defendant that there may be other exemptions available, giving the example of an abused person or victim/witness, and that these exemptions are to be claimed by filing a motion with the court.
Withholding of Wages.--
Section 8127(c) sets forth duties of the employer-garnishee with respect to the withholding of wages. The form of the writ of attachment set forth in Rule 3313 advises the employer of these statutory duties.
Prohibition against Discharge.--
Section 8127(e) provides that the ''employer shall not take any adverse action against any individual solely because his wages, salaries or commissions have been attached.'' The form of the writ of attachment advises the employer of this obligation as well.
The proposed rules require the intervention of the court in two circumstances. First, if the defendant files a claim for exemption on the ground that his or her income is below the federal poverty income guideline or that the attachment will bring his or her income below the federal poverty income guideline, the plaintiff may dispute the claim by filing a motion requesting the court to direct the prothonotary to issue a writ of attachment of wages. The motion must set forth facts which establish that the plaintiff is entitled to attach wages pursuant to Section 8127(a)(3.1) of the Judicial Code. Second, the defendant may file a motion to stay or vacate the attachment on other grounds of exemption from attachment, including the ground of being an abused person or victim-witness.
By the Civil Procedural Rules Committee
R. STANTON WETTICK, Jr.,
Chair
[Pa.B. Doc. No. 04-136. Filed for public inspection January 23, 2004, 9:00 a.m.]
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