[36 Pa.B. 3981]
[Saturday, July 29, 2006]
[Continued from previous Web Page] Rule 1009. Praecipe for Writ of Certiorari.
[A. Unless he was the plaintiff in the action before the magisterial district judge] (A)(1) Except as otherwise provided in paragraph (2), a party aggrieved by a judgment may file with the prothonotary of the court of common pleas a praecipe for a writ of certiorari claiming that the judgment should be set aside because of
(a) lack of jurisdiction over the parties or subject matter,
(b) improper venue, or
(c) such gross irregularity of procedure as to make the judgment void.
(2) If the party aggrieved by the judgment was the plaintiff in the action before the magisterial district [judge, he] court, the party may file a praecipe for a writ of certiorari only on the [last mentioned ground] grounds set forth in paragraph (1)(c).
[B. If lack of jurisdiction over the parties or the subject matter is claimed, the praecipe may be filed at any time after judgment. Otherwise it shall be filed within thirty (30) days from the date of the judgment.]
(B)(1) A praecipe for a writ of certiorari based on the grounds set forth in paragraph (A)(1)(a) may be filed at any time after the date of the entry of the judgment.
(2) A praecipe for a writ of certiorari based on the grounds set forth in paragraph (A)(1)(b) or (c) must be filed within 30 days after the date of the entry of the judgment.
[C. The praecipe shall identify the judgment complained of and the magisterial district judge in whose office the record of the proceedings containing the judgment is filed.] (C) Rescinded.
[D. The praecipe and the writ shall be on a form which shall be prescribed by the State Court Administrator.] (D) Rescinded.
Official Note: [Subdivision A] Paragraph (A) sets forth the grounds for certiorari. See the comments concerning the limited nature of certiorari in the note to Rule 1001. The plaintiff in the action before the magisterial district judge[,] (and the word ''plaintiff'' as used in this rule does not include a defendant who has sued on a [cross-complaint,] counterclaim)[,] may file a praecipe for a writ of certiorari only on the ground of gross irregularity. Having instituted the proceedings before the magisterial district judge, the plaintiff should not be permitted to challenge jurisdiction or venue.
Under [subdivision B] paragraph (B), the praecipe for the writ of certiorari must be filed within [thirty] 30 days after the date of the entry of the judgment, except when a question of jurisdiction is raised. There is no time limit on raising a question of jurisdiction by certiorari. Flaherty v. Atkins, 189 Pa. Super. 550, 152 A.2d 280 (1959). A party who files [his] a praecipe after the [thirty] 30 day period has run can be heard only on the question of jurisdiction (if permitted to raise that question under [subdivision A] paragraph (A)) even though [he] the party claims improper venue or gross irregularity along with [his] the claim of lack of jurisdiction. See Rule 402 as to the retention by the prothonotary of the original record of the proceedings when a judgment is entered in the court of common pleas. Because there is no time limit on raising a question of jurisdiction by certiorari, the original case documents must be retained so long as the judgment remains in effect.
The praecipe and writ must be commenced by filing with the prothonotary a written ''Writ of Certiorari to Magisterial District Judge'' on a form prescribed by the Court Administrator of Pennsylvania. See Rule 212. The current version of the form is available on Pennsylvania's Unified Judicial System website, www.courts.state.pa.us.
Rule 1010. Bond for Writ of Certiorari.
No bond or other security [shall] may be required for issuance of the writ of certiorari.
Official Note: As in the case of appeals (see Rule 1003), no bond or other security is required for certiorari, but see Rule 1013 with respect to supersedeas on certiorari.
Rule 1011. Issuance and Service of Writ of Certiorari.
[A.] (A) Upon receipt of the praecipe for a writ of certiorari, the prothonotary shall issue the writ and direct it to the magisterial district [judge in whose office] court in which the record of the proceedings containing the judgment is filed. [The] A copy of the writ shall be delivered for service to the party who filed the praecipe.
[B.] (B)(1) The party obtaining the writ shall serve it, by personal service or by certified [or registered] mail, [upon the magisterial district judge to whom it was directed. In like manner, he shall also serve a copy of the writ] upon the opposite party. The address of the opposite party for the purpose of service shall be [his] the address as listed on the complaint [form] filed in [the office of] the magisterial district [judge] court or as otherwise appearing in the records of that [office] court. [If the opposite party has an attorney of record named in the complaint form filed in the office of the magisterial district judge, the service upon the opposite party may be made upon the attorney of record instead of upon the opposite party personally.]
(2) When filing the praecipe for a writ of certiorari the appellant shall provide to the prothonotary a first class postage paid envelope pre-addressed to the magisterial district court in which the record of the proceedings containing the judgment is filed. The prothonotary shall thereupon mail a copy of the writ to the magisterial district court, and shall note such service and any return on the docket.
[C.] (C) If proof of service of the writ upon [the magisterial district judge and] the opposite party is not filed with the prothonotary within five [(5)] days after delivery of the writ for service, the prothonotary shall, upon praecipe of the opposite party, mark the writ stricken from the record and the writ shall not be reinstated nor shall any new writ issue.
[D.] (D) Service and proof of service may be made by attorney or other agent.
(E) If a party subject to service under this rule had an attorney of record or authorized representative in the proceedings in the magisterial district court, or if there is an attorney of record in the certiorari proceeding in the court of common pleas, a copy of the document to be served upon the party shall also be served upon the attorney of record or authorized representative in the same manner that it is to be served upon the party.
Official Note: The provisions as to service of the writ [parallel] are similar to those for service of notices of appeal under Rule 1005. [Subdivision C] With regard to paragraph (B), there is no return receipt requirement for service by certified mail and consequently no receipt need be filed with the prothonotary, although if service is by certified mail the sender's receipt must be attached to the proof of service. See Rule 1001. Paragraph (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 paragraph (C), any supersedeas based on it shall be terminated. See Rule 1013(C). If this occurs the judgment holder may proceed with execution of the judgment entered in the magisterial district court.
With regard to paragraph (E), see the definitions of ''attorney of record'' in Rule 202 and Pa.R.C.P. No. 76. See also Rule 207 regarding representation by an authorized representative.
Rule 1012. Return by Magisterial District Judge.
[The] (A) Except as otherwise provided in paragraph (B) the magisterial district [judge] court to [whom] which the writ of certiorari is directed shall, within ten [(10)] days after [its] receipt [by him] of the writ, make return to the writ by transmitting to the prothonotary a certified true copy of the record of the proceedings [containing the judgment.] including but not limited to copies of the following items:
(1) The complaint.
(2) All documents related to service filed in the case.
(3) Any exhibits or other evidence retained by the magisterial district court.
(4) The notice of judgment.
(5) Such other documents that the magisterial district court deems pertinent to the record.
(B) If the original record of the proceedings has been entered in the court of common pleas in accordance with Rule 402(D), the magisterial district court shall so notify the prothonotary.
Official Note: [The certified true copy of the record of the proceedings containing the judgment will be a certified true copy of the filled out complaint form prescribed by the State Court Administrator.] Under paragraph (A)(2), ''documents related to service'' includes certified mail return receipt cards, returned envelopes with notations from the postal service, and any proof or return of service filed with the court.
As to paragraph (B), Rule 402(D) provides that the original record of the proceedings is to be filed with the prothonotary when a magisterial district court judgment is entered in the court of common pleas. Since magisterial district court judgments cannot be revived like judgments entered in the court of common pleas, after five years there would be no possibility of filing a writ of certiorari relating to a magisterial district court judgment unless the judgment were entered in the court of common pleas. If the original record of the proceedings is no longer on file with the magisterial district court upon service of a writ of certiorari, the magisterial district court need only notify the prothonotary that the original documents needed for consideration of the writ are already on file with the prothonotary.
Rule 1013. Writ of Certiorari as Supersedeas.
[A. Receipt] (A) Except as otherwise provided in paragraph (B), receipt of the writ of certiorari by the magisterial district [judge to whom] court to which it was directed shall operate as a supersedeas[, except as provided in subdivision B of this rule].
[B.] (B)(1) When the writ of certiorari involves a judgment for the possession of real property, receipt of the writ by the magisterial district [judge] court shall operate as a supersedeas only if the party obtaining the writ at the time of filing the writ[,] deposits with the prothonotary a sum of [money (]cash, or a bond[,] with surety approved by the prothonotary[)], equal to the lesser of three [(3)] months' rent or the rent actually in arrears on the date of the filing of [appeal, as determined by the magisterial district judge] the writ, based upon the magisterial district judge's order of judgment, and, thereafter, deposits cash or bond with the prothonotary in a sum equal to the monthly rent which becomes due during the period of time the certiorari proceedings [upon writ] are pending in the court of common pleas, such additional deposits to be made within [thirty (30)] 30 days following the date of the filing of the writ, and each successive [thirty (30)] 30 day period thereafter.
(2) Only when a deposit of cash or bond is made in accordance with paragraph (1) at the time of filing the writ, the prothonotary shall make upon the writ and its copies a notation that it will operate as a supersedeas when received by the magisterial district court.
[Upon application by the landlord, the court] (3)(a) Except as otherwise provided in paragraph (b), the prothonotary shall release [appropriate sums] to the landlord funds from the escrow account [on a continuing basis] within five days of the funds being collected while the writ is pending [and while the ensuing proceeding is pending (in the event the writ is granted) to compensate the landlord for the tenant's actual possession and use of the premises during the pendency of the writ and during the pendency of ensuing proceeding (in the event the writ is granted)] in the court of common pleas.
(b) Upon application by the tenant and for good cause shown, the court of common pleas may impound the funds in the escrow account and direct the prothonotary not to release funds except upon order of court.
(4) In the event [that] the party filing the writ fails to deposit the sums of money, or bond, required by this rule when such deposits are due, the prothonotary, upon praecipe filed by the party that did not file the writ, shall terminate the supersedeas, but not the underlying writ. [Notice of the termination of the supersedeas shall be forwarded via first class mail to all parties, but if any party has an attorney of record named in the complaint form or other filings with the court, notice shall be given to the attorney instead of to the party. Notice to a party who or which does not have an attorney of record is sufficient if mailed to the party's last known address of record.
Where the deposit of money or bond is made pursuant to this Rule at the time of the filing of the writ, the prothonotary shall make upon the writ and its copies a notation that the writ will operate as a supersedeas when received by the magisterial district judge.
C.] (C) If a writ of certiorari is stricken, [dismissed] quashed, or discontinued, any supersedeas based on it shall terminate. The prothonotary shall [pay the deposits of rental to the party who sought possession of the real property] thereupon release to the landlord any remaining funds paid in accordance with paragraph (B)(1).
(D) If a supersedeas is terminated in accordance with any provision of this rule, the prothonotary shall send notice of the termination of the supersedeas via first class ordinary mail to all parties. If a party subject to notice under this paragraph had an attorney of record or authorized representative in the proceedings in the magisterial district court, or if there is an attorney of record in the certiorari proceeding in the court of common pleas, a copy of the notice shall also be sent to the attorney of record or authorized representative via first class ordinary mail.
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 magisterial district [judge] court when the judgment subject to the writ is only a money judgment. If the writ involves a judgment for the possession of real property, however, it will operate as a supersedeas upon receipt by the magisterial district [judge] court only if money is paid or a bond is filed conditioned as stated in the rule. This [Rule has been amended to require] requires a payment equal to the lesser of three months rent or the rent actually in arrears in order for 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 Super- sedeas)] with Rule 1008. See Rule 1008. If the judgment subject to the writ is only the money judgment portion of a landlord and tenant judgment, the matter would be governed by paragraph (A) of this rule and the automatic supersedeas would issue.
When entering a judgment for the delivery of possession of real property the magisterial district judge must make a determination as to the amount of monthly rent, even if no money judgment is sought or entered. See Rule 514(A). The prothonotary must have this information to calculate the amount due under paragraph (B)(1).
A supersedeas issued under this rule remains in effect during the pendency of the certiorari proceeding in the court of common pleas unless terminated in accordance with this rule. Paragraphs (B) and (C) provide in part for the termination of a supersedeas under certain circumstances. Only if a supersedeas is terminated pursuant to these provisions may the judgment holder proceed with execution of the judgment entered in the magisterial district court. A judgment holder who intends to proceed with execution of the judgment entered in the magisterial district court should provide the magisterial district court with a copy of the notice sent in accordance with paragraph (D). Paragraph (B)(4) makes clear that the underlying writ may proceed even if the supersedeas is terminated.
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.M.D.J. No. 1013 for a period in excess of [thirty (30)] 30 days'' and will be signed by the 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 magisterial district judge who rendered the judgment, and a request for issuance of an order for possession under [Pa.R.C.P.D.J. No.] Rule 515 may be made.
[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.] Under the 2006 amendments to the rule, the prothonotary must release funds from the escrow account, within five days of the funds being collected, to the landlord during the pendency of the writ in the court of common pleas unless otherwise directed by the court of common pleas in accordance with paragraph (B)(3)(b). This is intended to compensate the landlord for the tenant's actual possession and use of the premises during the pendency of the writ. There is no requirement that the landlord make application for the release of funds under paragraph (B)(3)(a). This is a significant change from the former procedure.
With regard to paragraph (D), see the definitions of ''attorney of record'' in Rule 202 and Pa.R.C.P. No. 76. See also Rule 207 regarding representation by an authorized representative.
Rule 1014. Orders of Court in Certiorari Proceedings.
[A.] (A) If the court of common pleas finds in favor of the party obtaining the writ, it shall enter an order that the judgment is set aside without prejudice to the cause of action.
[B.] (B) If the court of common pleas finds against the party obtaining the writ, it shall enter an order that the writ is [dismissed] quashed.
Official Note: [Subdivision A] Paragraph (A) states the rule that if the court finds in favor of the party obtaining the writ, it merely sets the judgment below aside without prejudice to the cause of action. The grounds for certiorari do not go to the merits of the case but only to matters that usually can be cured by [later selecting a proper tribunal. See Statler v. Alexander Film Co., 21 D & C 512 (1934)] remedial action.
* * * * * Rule 1015. Certiorari and Appeal Not Permitted.
A judgment may not be the subject of both certiorari and appeal. The prothonotary shall mark stricken from the record any writ of certiorari concerning a judgment as to which an appeal is pending if proof of service of copies of the notice of appeal has been filed. If the appeal is stricken or voluntarily terminated, the prothonotary shall reinstate the writ of certiorari [shall be reinstated] upon praecipe of the party obtaining the writ.
Official Note: This rule forbids bringing both certiorari and an appeal. An appeal involves a trial de novo on the merits, although in many cases first in the form of compulsory arbitration, without regard to any defects in the proceedings below, whereas certiorari does attack defects, not going to the merits, in the proceedings below. To attempt to combine these two procedures would cause administrative difficulties hardly worth the effort, considering that a successful certiorari would often merely allow the case to be tried again[, either] before the same or another magisterial district judge or in the court of common pleas, and that an appeal actually is a second trial although it may have changed aspects (see Rule [1007B] 1007(B)). Probably because of these administrative difficulties, the courts of common pleas have rather uniformly prohibited joining the two remedies of appeal and certiorari and have either required an election or forced the prosecution of the first type filed to the exclusion of the other. [See, for example, Ward v. Harligan, 1 W.N.C. 72 (1874); Russell v. Shirk, 3 C.C. 287 (1888).] Since under the 1968 Constitution a party is entitled as of right to an appeal (Art. V, § 9) but not to certiorari (Art. V, Schedule, 26), it was decided to provide in this rule that the remedy of appeal would take precedence in all cases and that a writ of certiorari addressed to a judgment under appeal (from the time of filing proof of service) would be stricken. This would apply even in the perhaps rare case when one party appeals and the other files certiorari.
STATEMENT OF OBJECTION Rule 1016. Statement of Objection to Rule 420 Orders and Determinations.
[A.] (A) Any party in interest aggrieved by an order or determination made by a magisterial district judge under Rule 420 may obtain a reconsideration thereof in the court of common pleas only by filing a written statement of objection to the order or determination with the prothonotary and with the magisterial district [judge in whose office] court in which the order or determination was made.
[B.] (B) The statement of objection shall be filed with the prothonotary and the magisterial district [judge] court within ten [(10)] days after the date of the order or determination to which objection is made.
Official Note: This rule and Rules 1017--1020 provide a system for reconsideration in the court of common pleas of orders and determinations of magisterial district judges dealing with execution matters.
Under [subdivision B] paragraph (B) of this rule, the statement of objection must be filed within ten days after the date of the questioned order or determination. See Rule [421C] 421(C). The time limit for filing a statement of objection need not be the same as that for filing a notice of appeal from a judgment. See [the Judicial Code, § ] section 5571(c)(4) of the Judicial Code, 42 Pa.C.S. § 5571(c)(4)[, as amended by § 10(67) of the Judiciary Act Repealer Act, Act of April 28, 1978, P. L. 202, No. 53]. It may be noted that under Pa.R.C.P. Nos. 3206(b) and 3207(b) objections to sheriff's determinations must be made within ten days after the date of mailing of the determination.
Rule 1017. Form and Content of Statement of Objection.
The statement of objection[, which shall be on a form which shall be prescribed by the State Court Administrator,] shall merely [state] set forth that the party filing it objects to the order or determination described in the statement.
Official Note: This rule prescribes the form and content of the statement of objection. The statement of objection must be commenced by filing with the prothonotary and the magisterial district court a written ''Statement of Objection to Rule 420 Orders and Determinations of Magisterial District Judge'' on a form prescribed by the Court Administrator of Pennsylvania. See Rule 212. The current version of the form is available on Pennsylvania's Unified Judicial System website, www.courts.state.pa.us. Compare Pa.R.C.P. Nos. 3206(b), 3207(b).
Rule 1018. Duties of Magisterial District Judge Upon Receipt of Statement of Objection.
[A.] (A)(1) Immediately upon receipt of the statement of objection, the magisterial district [judge] court shall send a copy of it by first class ordinary mail to all other parties in interest.
(2) If a party subject to service under paragraph (1) has an attorney of record or authorized representative in the proceedings in the magisterial district court, the magisterial district court shall also send a copy of the statement of objection by first class ordinary mail to the attorney of record or authorized representative.
[B.] (B) Within ten [(10)] days after receiving the statement of objection, the magisterial district [judge] court shall [file with] transmit to the prothonotary a certified true copy of the record of actions taken by the magisterial district judge under Rule 420, but copies of only those appeals, objections, claims, exceptions, or requests considered under Rule 420 that are pertinent to the statement of objection need be [attached to] included in that record.
Official Note: As to the procedure in [subdivision A] paragraph (A), compare Pa.R.C.P. Nos. 3206(b), 3207(b).
With regard to paragraph (A)(2), see the definition of ''attorney of record'' in Rule 202. See also Rule 207 regarding representation by an authorized representative.
[Subdivision B] Paragraph (B) is intended to bring before the court copies of the documents on file in the [office of the] magisterial district [judge] court pertaining to the matter in question. The [attachments to] documents included in the record of Rule 420 actions referred to in this [subdivision] paragraph are notations by the magisterial district judge of appeals taken under Rule [408C] 408(C) and objections to levy under Rule 413, property claims under Rule 413, exceptions to distribution under Rule [416C] 416(C) and requests to set aside sale under Rule [420C] 420(C) filed in [the office of] the magisterial district [judge] court.
Rule 1019. Consideration of Statement of Objection by Court of Common Pleas.
[A.] (A) Upon consideration of the statement of objection, the court of common pleas shall take such action and make such orders as shall be just and proper.
[B.] (B) The matters raised by the statement of objection shall be considered de novo by the court of common pleas.
Official Note: Consideration of the matters raised by the statement of objection will be de novo and the court is given broad latitude and discretion in disposing of these matters. Although the proceedings are de novo, this will not excuse failure to comply with whatever time limitations are imposed (see Rules [408C] 408(C), 413, [416C and 420C] 416(C) and 420(C)) for raising before the magisterial district [judge] court the matters now before the court of common pleas.
Rule 1020. Statement of Objection to Operate as Stay.
Until further order of the court of common pleas, receipt by the magisterial district [judge] court of the statement of objection shall operate as a stay of any execution proceedings that may be affected by the proceedings on the statement.
Official Note: Under this rule, receipt by the magisterial district [judge] court of the statement of objection operates initially as an automatic stay of the affected execution proceedings.
REPORT
Proposed Amendments to Rules 206, 402, and 1001--1020 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges
Comprehensive Changes to the Rules Relating
to Appeals to the Courts of Common Pleas
From Judgments Entered in the Magisterial District CourtsI. Introduction and Background
The Minor Court Rules Committee (the Committee) is proposing significant amendments to the rules of procedure governing appeals to the courts of common pleas from judgments entered in the magisterial district courts (Chapter 1000). This proposal is the culmination of several years work, and is in response to inquiries and suggestions from interested persons, developments in case law, and the Committee's own internal discussions.
II. Proposed Rule Changes
While many of the proposed changes are self-explanatory or editorial in nature, the following represent more significant changes in practice and require more in-depth explanation.1
A. Discussion of Selected Changes to Appellate Rules 1001--1020
1. Rule 1001
The Committee proposes that the definitions in Rule 1001 be revised to conform to the substantive changes in the subsequent appellate rules. Specifically, because of significant proposed changes in Rule 1004, the definitions of ''claimant'' and ''defendant'' are rendered unnecessary. In addition, the Committee proposes that all references to registered mail be deleted as unnecessary.
In the Official Note, among other changes, the Committee proposes additional wording to make clear that an appeal of a possessory (landlord and tenant) action brought under Chapter 500 may be heard by a board of arbitrators in the same manner as an appeal of a civil action brought under Chapter 300.2 This has been the source of confusion from time-to-time, with some suggesting that an appeal from a magisterial district court possessory judgment should proceed in the court of common pleas as an action in ejectment. The Committee believes that landlord and tenant matters, as statutorily created causes of action, may be heard by arbitrators and proceed as in other appeals from magisterial district court judgments.
2. Rule 1002
The Committee proposes the addition of a new paragraph (A)(2) to make clear that an appeal from only the money portion of a judgment in a case arising out of a residential lease is governed by paragraph (A)(1) and the longer 30 day appeal period applies. While this has been the subject of much confusion since the 1995 amendments to the Landlord and Tenant Act, the Committee has long believed that only appeals from judgments for the possession of real property arising out of residential lease agreements should be subject to the shorter ten day appeal period, and where a tenant contests only the judgment for money, and not the judgment for possession, the tenant should be accorded the longer 30 day appeal period (and the applicable automatic supersedeas under Rule 1008(A)).
The Committee further proposes the addition of a new paragraph (C) that would require the party filing the appeal to file a copy of all notices of judgment relating to the original complaint and all counterclaims. This is intended to facilitate proposed new Rule 1004(C), and is consistent with the Pennsylvania Supreme Court's holding in American Appliance v. E.W. Real Estate Management, Inc., 564 Pa. 473, 769 A.2d. 444 (2001).3
3. Rule 1004
The Committee proposes significant changes to Rule 1004 to streamline the appellate process. Under current rules, appeals to the court of common pleas are heard de novo, and all pleadings and procedures beyond the filing of the notice of appeal must conform to the rules of civil procedure governing actions in the court of common pleas. Under the Committee's proposed changes, this would remain the case when the plaintiff from the magisterial district court proceedings appeals; i.e., the plaintiff would be required to file a complaint in conformity with the common pleas rules, and thereafter all pleadings and procedures would be in accordance with those rules. When the defendant from the magisterial district court proceedings appeals, however, the proposed rules would give the plaintiff the option to proceed in the court of common pleas using the complaint filed in the magisterial district court proceedings.4 This is intended to alleviate the burden currently placed on the plaintiff to file a common pleas complaint when the defendant takes an appeal. The existing requirement that the plaintiff file a common pleas complaint in all cases usually forces the plaintiff to incur the additional expense of hiring a lawyer to draft and file the complaint, after the plaintiff has already obtained a judgment and often after the defendant failed to appear and defend at the district court level. Under the proposed rules, when the plaintiff elects to proceed on the magisterial district court complaint there would be streamlined responsive pleadings and limited grounds on which preliminary objections could be filed. For example, the permissible grounds for preliminary objections would not include improper form of complaint because the magisterial district court complaint does not conform to the common pleas requirements. The proposed rules would also permit a plaintiff to file a common pleas complaint as under current procedures, and if the plaintiff elects to do so all subsequent pleadings and procedures would need to conform to regular common pleas practice. This proposed simplified pleading option would require numerous conforming amendments to other rules in Chapter 1000.
The second proposed major change to Rule 1004 involves appeals in cases involving counterclaims and in cases involving multiple parties. The proposed amendment to paragraph (C) would provide that an appeal by any party is deemed an appeal by all parties as to all judgments and all issues unless otherwise stipulated in writing by all parties. This would include all judgments in cases involving counterclaims. Further, such appeals would require the filing of only a single notice of appeal.5 This proposed change is intended to be consistent with the Pennsylvania Supreme Court's holding in American Appliance v. E.W. Real Estate Management, Inc., 564 Pa. 473, 769 A.2d. 444 (2001). This proposed change would also be consistent with Pa.R.C.P. No. 1309 governing appeals from compulsory arbitration awards.
4. Rule 1005
The Committee proposes that Rule 1005 be amended to provide for service of the notice of appeal upon the magisterial district court by first class ordinary mail. The proposed rule would require the appellant to provide to the prothonotary, at the time of filing the notice of appeal, a first class postage paid envelope pre-addressed to the magisterial district court. The Committee believes that personal service or service by certified mail upon the district court is an unnecessary burden and expense. Service upon the appellee would continue to be by personal service or certified mail, or in accordance with the local rule option under paragraph (C).6
Proposed new paragraph (F) would require service upon a party's attorney of record or personal representative in the magisterial district court proceedings, if any.7 This is intended to make the service and notice provisions in Chapter 1000 consistent with similar provisions elsewhere in the rules.8
5. Rule 1006
The Committee proposes a revision to the Official Note to Rule 1006 to make clear that if an appeal is stricken any supersedeas based on the appeal is terminated, and in this event the holder of the magisterial district court judgment may execute upon the judgment utilizing the execution procedures at the district court level. This provision, and similar provisions proposed throughout the Chapter 1000 rules,9 is intended to provide guidance as to when a judgment holder may return to the magisterial district court level to execute upon a judgment that had been appealed to the court of common pleas.10
6. Rule 1007
In Rule 1007, the Committee proposes the addition of a new paragraph (D) that would require the prothonotary to promptly give the magisterial district court written notice of the disposition of the proceeding on appeal. The Committee believes it to be particularly important that this provision be made a part of the rule because, depending on the disposition of the appeal, the holder of the magisterial district court judgment may or may not be able to return to the district court to execute upon the judgment utilizing the execution procedures at the district court level.11
7. Rule 1008
The Committee proposes amendments to Rule 1008 to clarify when the automatic supersedeas (paragraph (A)) applies, and when a deposit of cash or bond is required to secure a supersedeas (paragraph (B)). In addition, the Committee proposes a significant change to existing procedure with regard to rent monies paid from the escrow account held by the prothonotary under paragraph (B). Under the current rule, the landlord must make application for the release of escrow funds. Because the escrowed funds are intended to compensate the landlord for the tenant's actual possession and use of the premises during the pendency of the appeal, however, the Committee believes that funds should automatically be paid to the landlord on an ongoing basis. Under the proposal, therefore, paragraph (B)(3)(a) would be amended to require the prothonotary to release funds from the escrow account within five days of the funds being collected while the appeal is pending. Paragraph (B)(3)(b) would provide for an application of the tenant to the court to impound the escrowed funds for good cause shown. The Committee believes this to be a more equitable system for the disbursement of escrowed funds.
A proposed amendment to paragraph (B)(4) would make clear that the failure of the tenant to make the rent payments in accordance with paragraph (B)(1) terminates the supersedeas but not the underlying appeal. This has been the source of some confusion, and the Committee believes that termination of the supersedeas alone does not affect the disposition of the underlying appeal.12
8. Rule 1009
In addition to numerous editorial changes, the Committee proposes a revision to the Note to Rule 1009 to cross reference the proposed new procedure in Rule 402 for the entry of a magisterial district court judgment in the court of common pleas.13
9. Rule 1012
The Committee proposes that Rule 1012 be amended to specify what documents should be included in the certified true copy of the magisterial district court record sent to the prothonotary in response to a writ of certiorari. In addition, a new paragraph (B) would be added to conform to the proposed new procedure in Rule 402 for the entry of a magisterial district court judgment in the court of common pleas.14
10. Rule 1013
Rule 1013 would be amended to mirror, to the extent possible, the supersedeas provisions in Rule 1008, including the proposed new procedure for the disbursement of escrow funds to a landlord.15
B. Discussion of Correlative Changes to Rules 206 and 402
1. Rule 206
The Committee reviewed paragraph (C) of Rule 206 relating to recovery of taxable costs on appeal or certiorari, and is proposing a significant change to promote the efficient utilization of judicial resources and the effective administration of justice. Specifically, the Committee is proposing the addition of a new paragraph (C)(5) that would provide that an appellant who did not appear at the hearing in the magisterial district court may not recover taxable costs on appeal. This provision is intended to discourage the wasting of judicial resources that occurs when one party does not attend the magisterial district court hearing with the intent of filing an appeal and litigating the case in the court of common pleas. The Committee believes that the magisterial district courts offer an affordable, efficient, and effective forum in which to resolve many disputes, and that litigants should fully and properly avail themselves of the district court process before appealing matters to the courts of common pleas.
2. Rule 402
In Rule 402, the Committee is proposing a new procedure for the entry of a magisterial district court judgment in the court of common pleas. The Committee reviewed a recent case, Smith v. Sperduti,16 which addressed an apparent conflict between Pa. R.C.P.M.D.J. No. 1009 and the Scheduled Records/District Justice Record Retention Schedule.17 In Smith, the issue was whether ''an aggrieved party [can] secure relief from a judgment of a district justice (now a magisterial district judge) by way of a writ of certiorari, claiming lack of jurisdiction over him, after the case records of the district justice have been destroyed pursuant to the record retention and disposition schedule adopted to implement Pa.R.J.A. 507(b)?''18 As the court pointed out, ''there is seemingly irreconcilable conflict between Pa.R.C.P.D.J. 1009(B), which permits a praecipe for a writ of certiorari anytime after judgment where lack of jurisdiction is claimed, and the record retention and disposition schedule of our Supreme Court''19 which provides for the destruction of civil case records seven years after entry of judgment.20 Although the court was able to decide this case by appropriately considering ''evidence beyond the record of the district justice to determine the issue with regard to those facts not within the personal knowledge of the district justice,''21 the Committee believes the conflict between Rule 1009 and the records retention schedule should be resolved. The Committee concluded that because there is no time limit on raising a question of jurisdiction by certiorari, the original case documents must be retained so long as the judgment remains in effect.22
To resolve the conflict, the Committee proposes that Rule 402(D)(2) be amended to provide a procedure by which the original record of a case that is entered in the court of common pleas be retained by the prothonotary, and therefore not subject to the records retention schedule applicable to the magisterial district courts. The amended rule would require a magisterial district court judgment holder who seeks to enter the judgment in the court of common pleas to file with the prothonotary a ''Praecipe to Enter the Magisterial District Court Judgment in the Court of Common Pleas''23 along with a certified true copy of the judgment. The praecipe would, among other things, direct the prothonotary to enter the judgment upon the proper docket and the judgment index, direct the prothonotary to give notice of the entry of judgment to the defendant by mailing a copy of the praecipe to the defendant,24 and direct the magisterial district court to transmit the original record of the proceedings to the prothonotary to be retained by the prothonotary. Under this proposed procedure, therefore, the original record -- including, notably, records relating to service -- would be available if at any time in the future the judgment was challenged under Rule 1009 for lack of jurisdiction. The copy of the record retained by the magisterial district court could be destroyed in accordance with the records retention schedule.
[Pa.B. Doc. No. 06-1437. Filed for public inspection July 28, 2006, 9:00 a.m.] _______
1 In addition to the substantive changes discussed here, the Committee is proposing numerous editorial changes to improve tabulation, enhance readability, correct citation form, and to conform to modern drafting style.
2 The Committee proposes a similar note in Rule 1007.
3 See discussion infra Part II.A.3.
4 This concept was initially introduced in a proposal put forth by the Civil Procedural Rules Committee. See the Civil Procedural Rules Committee's Proposed Recommendation No. 160, published at 30 Pa.B. 2126 (April 29, 2000). Because the procedures relating to appeals from magisterial district court judgments are set forth in Chapter 1000 of the magisterial district court civil rules which are under the purview of the Minor Court Rules Committee, and it was thought desirable to keep all such procedures in one set of rules, the Civil Procedural Rules Committee referred this matter to the Minor Court Rules Committee.
5 See discussion of Rule 1002 supra Part II.A.2.
6 Similar changes are proposed in Rule 1011 with regard to service of a writ of certiorari.
7 Similar provisions are proposed in Rules 1008, 1011, 1013, and 1018.
8 See Supreme Court of Pennsylvania Order No. 230, Magisterial Docket No. 1 (June 1, 2006) implementing Recommendation No. 3 Minor Court Rules 2004, and accompanying explanatory Final Report, note 10, published at 36 Pa.B. 2955 (June 17, 2006).
9 See proposed amendments or revisions to the Official Notes to Rules 1007, 1008, 1011, and 1013.
10 For further discussion of this issue, see the Committee's proposal and explanatory Report published at 34 Pa.B. 1933 (April 10, 2004).
11 See supra Part II.A.5 and note 10.
12 A similar change is proposed in Rule 1013 with regard to a supersedeas based on a writ of certiorari.
13 See discussion infra Part II.B.2.
14 Id.
15 See discussion supra Part II.A.7.
16 74 Pa. D. & C.4th 395 (C.P. Beaver County 2005)
17 204 Pa. Code § 213.51. See also Pa.R.J.A. No. 507.
18 74 Pa. D. & C.4th at 397.
19 Id. at 400.
20 204 Pa. Code § 213.51(a)(3).
21 74 Pa. D. & C.4th at 401.
22 At the outset, the Committee noted that the issue in Smith would not have arisen had the magisterial district court judgment not been entered in the court of common pleas, because the judgment would have expired after five years (see Rule 402(A) and (D)(3)), two years before the record could have been destroyed under the records retention schedule. Therefore, the Smith issue can arise only when a judgment is entered in the court of common pleas, thereby potentially extending the life of the judgment beyond the seven year records destruction date.
23 The rule contemplates that the praecipe would be on a preprinted form. See Pa. R.C.P.M.D.J. No. 212.
24 See Pa.R.C.P. No. 236.
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