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PA Bulletin, Doc. No. 10-7

THE COURTS

Title 231—RULES OF
CIVIL PROCEDURE

PART I. GENERAL

[ 231 PA. CODE CHS. 200 AND 3000 ]

Order Amending Rules 237.1, 3281, 3283 and 3284 of the Rules of Civil Procedure; Civil Procedural Rules; No. 516

[40 Pa.B. 19]
[Saturday, January 2, 2010]

Amended Order

Per Curiam:

 And Now, this 2nd day of December, 2009, upon the recommendation of the Civil Procedural Rules Committee; the proposal having been published at 38 Pa.B. 3650 (July 5, 2008), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 948 No. 2):

 It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 237.1, 3281, 3283 and 3284 of the Pennsylvania Rules of Civil Procedure are amended as follows.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective January 4, 2010.

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 200. BUSINESS OF COURTS

Rule 237.1. Notice of Praecipe for Entry of Judgment of Non Pros for Failure to File Complaint or by Default for Failure to Plead.

 (a)(1) As used in this rule,

 ''judgment of non pros'' means a judgment entered by praecipe pursuant to Rule 1037(a) and 1659;

 Official Note: When a defendant appeals from a judgment entered in a magisterial district [judge] court, Pa.R.C.P.M.D.J. 1004(b) authorizes the appellant to file a praecipe for a rule as of course upon the appellee to file a complaint or suffer entry of a judgment of non pros. The entry of the judgment of non pros is governed by Pa.R.C.P. No. 1037(a) and is subject to this rule.

 ''judgment by default'' means a judgment entered by praecipe pursuant to Rules 1037(b), 1511(a), 3031(a) and 3146(a).

 (2) No judgment of non pros for failure to file a complaint or by default for failure to plead shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered

 (i) in the case of a judgment of non pros, after the failure to file a complaint and at least ten days prior to the date of the filing of the praecipe to the party's attorney of record or to the party if unrepresented, or

 (ii) in the case of a judgment by default, after the failure to plead to a complaint and at least ten days prior to the date of the filing of the praecipe to the party against whom judgment is to be entered and to the party's attorney of record, if any.

 The ten-day notice period in subdivision (a)(2)(i) and (ii) shall be calculated forward from the date of the mailing or delivery, in accordance with Rule 106.

 Official Note: The final sentence of Rule 237.1(a)(2) alters the practice described in the decision of Williams v. Wade, 704 A.2d 132 (Pa. Super. 1997).

 (3) A copy of the notice shall be attached to the praecipe.

 (4) The notice and certification required by this rule may not be waived.

 Official Note: A certification of notice is a prerequisite in all cases to the entry by praecipe of a judgment of non pros for failure to file a complaint or by default for failure to plead to a complaint. Once the ten-day notice has been given, no further notice is required by the rule even if the time to file the complaint or to plead to the complaint has been extended by agreement.

 See Rule 237.4 for the form of the notice of intention to enter a judgment of non pros and Rule 237.5 for the form of the notice of intention to enter a judgment by default.

 (b) This rule does not apply to a judgment entered

 (1) by an order of court,

 (2) upon praecipe pursuant to an order of court, or

 (3) pursuant to a rule to show cause.

 Official Note: See Rule 3284 which requires that in proceedings to fix fair market value of real property sold, notice must be given pursuant to the requirements of Rule 237.1 et seq.

 (c) [Rescinded].

CHAPTER 3000. JUDGMENTS

Subchapter E. ENFORCEMENT OF JUDGEMENTS IN SPECIAL ACTIONS

PROCEEDINGS UNDER SECTION 8103(A) TO FIX FAIR MARKET VALUE OF REAL PROPERTY SOLD

Rule 3281. Parties.

 (a) The petition shall name the judgment creditor as petitioner.

 (b) The petition [shall] may name as respondent any debtor, obligor, guarantor, mortgagor, and any other person directly or indirectly liable to the judgment creditor for the payment of the debt, and any owner of the property affected thereby.

 Official Note: Section 8103(b) of the Judicial Code, 42 Pa.C.S. § 8103(b), governing deficiency judgments provides that ''[a]ny debtor and any owner of the property affected thereby, who is neither named in the petition nor served with a copy thereof or notice of the filing thereof as prescribed by general rule, shall be deemed to be discharged from all personal liability to the judgment creditor on the debt, interest, and costs. . . .''

Rule 3283. Service.

 [(a) The petition shall be served

 (1) upon a respondent who is a defendant in the judgment who has entered an appearance, by the petitioner in the manner provided by Rule 440, and

 (2) upon any other respondent]

 (a)(1) If there is an attorney of record, service shall be made upon the respondent's attorney of record pursuant to Rule 440(a)(1)(i) or (ii).

 (2) If there is no attorney of record, service shall be made

 (i) by the sheriff or a competent adult in the manner prescribed by Rule 402(a) for service of original process, or

 Official Note: See Rule 76 for the definition of ''competent adult.''

 (ii) by the petitioner mailing a copy in the manner prescribed by Rule 403, or

 (iii) if service cannot be made as provided in subparagraphs (i) or (ii), pursuant to special order of court as prescribed by Rule 430.

 (b) The person serving the petition shall file a return of service as provided by Rule 405.

Rule 3284. Order Upon Default or Admission.

 The [court] prothonotary, on praecipe of the petitioner, shall, without further notice or hearing, enter an order determining the fair market value of the real property to be the value alleged in the petition, determining the prior lien amounts to be in the amounts alleged in the petition and making any special allocation requested by the petition if

 (1) no answer is filed within the required time to a petition which was served pursuant to the requirements of Rule 3283 and contains a notice to defend required by Rule 3282(b), and notice has been given as provided by Rule 237.1 et seq., or

 (2) an answer is filed which does not deny the allegations in the petition as to the fair market value, the prior lien amounts or any special allocation.

Explanatory Comment

 Rule 3281 et seq. governing proceedings to fix fair market value of real property sold has been amended in two respects. First, current Rule 3283(a)(1) provides for a petition to fix fair market value to be served upon a respondent, who is a defendant in the judgment and who entered an appearance, pursuant to Rule 440 governing service of legal papers other than original process. Under Rule 440, service may be made by regular mail at the last known address of the defendant.

 A problem arises in that the petition to fix fair market value is only filed after a sheriff's sale, and frequently the property that has been sold is the address at which the defendant resided prior to the sheriff's sale and is no longer a current address. Under these circumstances, service by regular mail at the last known address is not likely to furnish notice to the defendant. The amendment to Rule 3283 permits service pursuant to Rule 440 only if there is an attorney of record.

 Second, current Rule 3284 provides that the court shall without further notice or hearing enter an order determining the fair market value of the property to be the value alleged in the petition if: (1) no answer has been filed within the required time to a petition which includes a notice to defend and notice has been given pursuant to Rule 237.1; or (2) an answer is filed which does not deny the allegations in the petition as to the fair market value, the prior lien amounts, or any special allocation.

 The amendment to Rule 3284 shifts to the prothonotary the responsibility for entering judgment upon a praecipe of the petitioner. The prothonotary will ensure that the record shows that: (1) service was made pursuant to the requirements of Rule 3283; (2) an important notice was given pursuant to the requirements of Rule 237.1; (3) no answer contesting the allegations in the petition was filed; and (4) the allegations in the petition justify the amount of the judgment that the petitioner seeks.

By the Civil Procedural Rules Committee

STEWART L. KURTZ, 
Chair

[Pa.B. Doc. No. 10-7. Filed for public inspection December 31, 2009, 9:00 a.m.]


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