THE COURTS
Title 210—APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[210 PA. CODE CHS. 15, 17 AND 33]
Title 231—RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[231 PA. CODE CHS. 200, 1000, 1300, 1900, 1910, 1915, 1920, 1930, 1950 AND 2950]
PART II. ORPHANS' COURT RULES
[231 PA. CODE CHS. II, III, XIV AND XV]
Title 234—RULES OF
CRIMINAL PROCEDURE
[234 PA. CODE CHS. 1, 4 AND 5]
Title 237—JUVENILE RULES
PART I. RULES
[237 PA. CODE CHS. 11, 12 AND 14]
Title 246—MINOR COURT
CIVIL RULES
PART I. GENERAL
[246 PA. CODE CHS. 200, 300, 400 AND 500]
Proposed Amendment of Pa.R.A.P. 1517, 1732, 1781, 3307, and 3309; Adoption of Pa.R.Civ.P. 243 and 1930.10, Rescission of Pa.R.Civ.P. 1920.46, and Amendment of Pa.R.Civ.P. 216, 237.1, 1037, 1303, 1901.6, 1910.11, 1910.12, 1915.4-2, 1915.4-3, 1915.17, 1920.42, 1920.51, 1930.6, 1956, and 2955; Adoption of Pa.R.O.C.P. 2.12, 3.16, and 15.23, and Amendment of Pa.R.O.C.P. 14.1, 15.7, 15.8, 15.9, 15.10, and 15.13; Amendment of Pa.R.Crim.P. 150, 430, 431, and 515; Adoption of Pa.R.J.C.P. 1206, and Amendment of Pa.R.J.C.P. 1122, 1242, and 1406; and Amendment of Pa.R.Civ.P.M.D.J. 209, 304, 308, 403, 405, 410, 503, 506, 515, and 516.
[53 Pa.B. 5709]
[Saturday, September 16, 2023]The above-captioned Rules Committees are considering proposing to the Supreme Court of Pennsylvania the above-described rulemaking governing procedures for the Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901 et seq. and the Military and Veterans Code, 51 Pa.C.S. §§ 101 et seq., for the reasons set forth in the accompanying publication report. Pursuant to Pa.R.J.A. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.
Any report accompanying this proposal was prepared by the Rules Committees to indicate the rationale for the proposed rulemaking. It will neither constitute a part of the rules nor be adopted by the Supreme Court.
Additions to the text of the proposal are bolded and underlined; deletions to the text are bolded and bracketed.
The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:
Daniel A. Durst, Chief Counsel
Rules Committees
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
FAX: 717-231-9526
rulescommittees@pacourts.usAll communications in reference to the proposal should be received by November 16, 2023. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Rules Committees will acknowledge receipt of all submissions.
By the:
Appellate Court Procedural Rules Committee
PETER J. GARDNER, Esq.,
ChairCivil Procedural Rules Committee
MAUREEN M. McBRIDE, Esq.,
ChairDomestic Relations Procedural Rules Committee
DAVID. S. POLLOCK, Esq.,
ChairOrphans' Court Procedural Rules Committee
JULIAN E. GRAY, Esq.,
ChairCriminal Procedural Rules Committee
HON. STEFANIE J. SALAVANTIS,
ChairJuvenile Court Procedural Rules Committee
RENEÉ D. MERION, Esq.,
ChairMinor Court Rules Committee
HON. DANIEL E. BUTLER,
Chair
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 15. JUDICIAL REVIEW OF GOVERNMENTAL DETERMINATIONS
PETITION FOR REVIEW (Editor's Note: The explanatory comments included in Annex A are not currently codified in Title 210 of the Pennsylvania Code.)
Rule 1517. Applicable Rules of Pleading; Servicemembers Civil Relief Act.
(a) Rules of Pleading. Unless otherwise prescribed by these rules, the practice and procedure under this chapter relating to pleadings in original jurisdiction petition for review practice shall be in accordance with the appropriate Pennsylvania Rules of Civil Procedure, so far as they may be applied.
(b) Servicemembers Civil Relief Act. In any original jurisdiction petition for review under this chapter in which a respondent does not make an appearance, and before the court enters judgment in favor of the petitioner, the petitioner shall state in a filed affidavit pursuant to the Servicemembers Civil Relief Act, 50 U.S.C. § 3931:
(1) whether the non-appearing respondent is in military service and showing necessary facts to support the affidavit; or
(2) if the petitioner is unable to determine whether the non-appearing respondent is in military service, that the petitioner is unable to determine whether the non-appearing respondent is in military service.
Comment: ''Military service'' is defined by 50 U.S.C. § 3911(2) and a report of a person's ''military status'' can be requested at https://scra.dmdc.osd.mil/scra/#/home. If a respondent is in military service, then the Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901 et seq., may impose additional protections. The Pennsylvania Military and Veterans Code, 51 Pa.C.S. § 4105, also provides protections for Pennsylvania National Guard members in active service of the Commonwealth that, inter alia, prohibit the issuance or enforcement of civil process.
The requirement of an affidavit may be satisfied by an unsworn document containing statements of fact and a statement by the signatory that it is made subject to the penalties of 18 Pa.C.S. § 4904. See 42 Pa.C.S. § 102. A verified statement form is available for the convenience of users at https://www.pacourts.us/forms/for-the-public. The form can be modified provided the requirements of subdivision (b)(2) are met.
CHAPTER 17. EFFECT OF APPEALS; SUPERSEDEAS AND STAYS
STAY OR INJUNCTION IN CIVIL MATTERS Rule 1732. Application for Stay or Injunction Pending Appeal. Number of Copies to be Filed.
(a) Application to [trial court] Trial Court.—Application for a stay of an order of a trial court pending appeal, or for approval of or modification of the terms of any supersedeas, or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal, or for relief in the nature of peremptory mandamus, must ordinarily be made in the first instance to the trial court, except where a prior order under this chapter has been entered in the matter by the appellate court or a judge thereof.
(b) Contents of [application for stay] Application for Stay.—An application for stay of an order of a trial court pending appeal, or for approval of or modification ofthe terms of any supersedeas, or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal, or for relief in the nature of peremptory mandamus, may be made to the appellate court or to a judge thereof, but the application shall show that application to the trial court for the relief sought is not practicable, or that the trial court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the trial court for its action. The application shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the application shall be supported by sworn or verified statements or copies thereof. With the application shall be filed such parts of the record as are relevant. Where practicable, the application should be accompanied by the briefs, if any, used in the trial court. The application shall contain the certificate of compliance required by Pa.R.A.P. 127.
(c) Number of [copies to be filed] Copies to be Filed.—To determine the number of copies to be filed, see Pa.R.A.P. 124(c) and its [Official Note] Comment.
[Official Note] Comment: See generally Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983), for the criteria for the issuance of a stay pending appeal.
For the availability of a stay for a party in military service, see the Servicemembers Civil Relief Act, 50 U.S.C. § 3932, and the Pennsylvania Military and Veterans Code, 51 Pa.C.S. § 4105.
STAY PENDING ACTION ON PETITION FOR REVIEW Rule 1781. Stay Pending Action on Petition for Review or Petition for Specialized Review.
(a) Application to [government unit] Government Unit.—Application for a stay or supersedeas of an order or other determination of any government unit pending review in an appellate court on petition for review or petition for specialized review shall ordinarily be made in the first instance to the government unit.
(b) Contents of [application for stay or supersedeas] Application for Stay or Supersedeas.—An application for stay or supersedeas of an order or other determination of a government unit, or for an order granting an injunction pending review, or for relief in the nature of peremptory mandamus, may be made to the appellate court or to a judge thereof, but the application shall show that application to the government unit for the relief sought is not practicable, or that application has been made to the government unit and denied, with the reasons given by it for the denial, or that the action of the government unit did not afford the relief that the applicant had requested. The application shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute, the application shall be supported by sworn or verified statements or copies thereof. With the application shall be filed such parts, if any, of the record as are relevant to the relief sought. The application shall contain the certificate of compliance required by Pa.R.A.P. 127.
(c) Notice and [action by court] Action by Court.—Upon such notice to the government unit as is required by Pa.R.A.P. 123, the appellate court, or a judge thereof, may grant an order of stay or supersedeas, including thegrant of an injunction pending review or relief in the nature of peremptory mandamus, upon such terms and conditions, including the filing of security, as the court or the judge thereof may prescribe. Where a statute requires that security be filed as a condition to obtaining a supersedeas, the court shall require adequate security.
[Official Note] Comment: See generally Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983), for the criteria for the issuance of a stay pending appeal.
For the availability of a stay for a party in military service, see the Servicemembers Civil Relief Act, 50 U.S.C. § 3932, and the Pennsylvania Military and Veterans Code, 51 Pa.C.S. § 4105.
ARTICLE III. MISCELLANEOUS PROVISIONS
CHAPTER 33. BUSINESS OF THE SUPREME COURT
ORIGINAL MATTERS Rule 3307. Applications for Leave to File Original Process.
(a) Scope. This rule applies only to matters within the original jurisdiction of the Supreme Court under 42 Pa.C.S. § 721, which are not in the nature of mandamus or prohibition ancillary to matters within the appellate jurisdiction of the Supreme Court. Applications for relief pursuant to or ancillary to the appellate jurisdiction of the Supreme Court, including relief which may be obtained in the Supreme Court by petition for review or petition for specialized review, are governed by Article I and Article II and may be filed without an application under this rule. See also Pa.R.A.P. 3309 (applications for extraordinary relief).
(b) General [rule] Rule.
(1) Application for Leave to File. The initial pleading in any original action or proceeding shall be prefaced by an application for leave to file such pleading, showing service upon all parties to such action or proceeding. The matter will be docketed when the application for leave to file is filed with the Prothonotary of the Supreme Court.
(2) Filing Date of Application. The application shall be deemed filed on the date received by the prothonotary unless it was on an earlier date deposited in the United States mail and sent by first class, express, or priority United States Postal Service mail as shown on a United States Postal Service Form 3817 Certificate of Mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter, if known, and shall be either enclosed with the application or separately mailed to the prothonotary.
(3) Entry of Appearance. Appearances shall be filed as in other original actions.
(4) Answer. An adverse party may file an answer no later than 14 days after service of the application. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. An adverse party who does not intend to file an answer to the application shall, within the time fixed by these rules for the filing of an answer, file a letter stating that an answer to the application will not be filed.
(5) Servicemembers Civil Relief Act. If an adverse party does not enter an appearance pursuant to subdivision (b)(3) or file an answer or letter pursuant to subdivision (b)(4), the applicant shall file an affidavit in accordance with Pa.R.A.P. 1517(b).
(6) Distribution. Upon receipt of the answer to the application, or a letter stating that no answer will be filed, from each party entitled to file such, the application, pleadings, and answer to the application, if any, shall be distributed by the prothonotary to the Supreme Court for its consideration.
(c) Disposition of [application] Application. The Supreme Court may thereafter grant or deny the application or set it down for argument. Additional pleadings may be filed, and subsequent proceedings had, as the Supreme Court may direct. If the application is denied, the matter shall be transferred to the appropriate court by the prothonotary in the same manner and with the same effect as matters are transferred under Pa.R.A.P. 751.
Comment: Pa.R.A.P. 1517(b) sets forth the requirement of an affidavit of military service pursuant to the Servicemembers Civil Relief Act, 50 U.S.C. § 3931.
KING'S BENCH MATTERS Rule 3309. Applications for Extraordinary Relief.
(a) General [rule.—] Rule.
(1) Service of Application. An application for relief under 42 Pa.C.S. § 726 (extraordinary jurisdiction), or under the powers reserved by the first sentence of Section 1 of the Schedule to the Judiciary Article, shall show service upon all persons who may be affected thereby, or their representatives, and upon the clerk of any court in which the subject matter of the application may be pending.
(2) Filing Date of Application. The application shall be deemed filed on the date received by the prothonotary unless it was on an earlier date deposited in the United States mail and sent by first class, express, or priority United States Postal Service mail as shown on a United States Postal Service Form 3817 Certificate of Mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter if known and shall be either enclosed with the application or separately mailed to the prothonotary.
(3) Entry of Appearance. Appearances shall be governed by Rule 1112 (entry of appearance) unless no appearances have been entered below, in which case appearances shall be filed as in original actions.
[(b)] (4) Answer. An adverse party may file an answer no later than fourteen days after service of theapplication. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. An adverse party who does not intend to file an answer to the application shall, within the time fixed by these rules for the filing of an answer, file a letter stating that an answer will not be filed.
(5) Servicemembers Civil Relief Act. If an adverse party does not enter an appearance pursuant to subdivision (a)(3) or file an answer or letter pursuant to subdivision (a)(4), the applicant shall file an affidavit in accordance with Pa.R.A.P. 1517(b).
[(c)] (6) Distribution [and disposition]. Upon receipt of the answer, or a letter stating that no answer will be filed, from each party entitled to file such, the application and answer, if any, shall be distributed by the Prothonotary to the Supreme Court for its consideration.
(b) Disposition. The Supreme Court may thereafter grant or deny the application or set it down for argument.
[(d)] (c) Stays and [supersedeas] Supersedeas. Where action is taken under this rule which has the effect of transferring jurisdiction of a matter to the Supreme Court, unless otherwise ordered by the Supreme Court such action shall be deemed the taking of an appeal as of right for the purposes of Chapter 17 (effect of appeals; supersedeas and stays), except that the lower court shall not have the power to grant reconsideration.
[Official Note] Comment: Based on 42 Pa.C.S. § 502 (general powers of Supreme Court), 42 Pa.C.S. § 726 (extraordinary jurisdiction) and the first sentence of Section 1 of the Schedule to the Judiciary Article, which preserves inviolate the December 31, 1968 powers of the Supreme Court (principally the so-called King's Bench powers) in the following language: ''The Supreme Court shall exercise all the powers and until otherwise provided by law, jurisdiction now vested in the present Supreme Court . . . .'' Former Supreme Court Rule 68 1/2 (416 Pa. xxv) contained a 30-day time limit for seeking review and the failure of [Rule] Pa.R.A.P. 3309 to set forth a specific time limit shall not be construed to enlarge the time permitted by law for the seeking of appellate review.
Pa.R.A.P. 1517(b) sets forth the requirement of an affidavit of military service pursuant to the Servicemembers Civil Relief Act, 50 U.S.C. § 3931.
[EXPLANATORY COMMENT—1979 The stay and supersedeas procedure in the Supreme Court is clarified in King's Bench matters and in cases where the Superior Court or the Commonwealth Court (in its appellate capacity) has acted on a stay or supersedeas application.]
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 200. BUSINESS OF COURTS Rule 216. Grounds for Continuance.
([A] a) The following are grounds for continuance:
(1) Agreement of all parties or their attorneys, if approved by the [Court] court;
(2) Illness of counsel of record, a material witness, or a party. If requested a certificate of a physician shall be furnished, stating that such illness will probably be of sufficient duration to prevent the ill person from participating in the trial;
(3) Inability to subpoena or to take testimony by deposition, commission, or letters rogatory, of any material witness, shown by affidavit which shall state:
([a] i) The facts to which the witness would testify if present or if deposed;
([b] ii) The grounds for believing that the absent witness would so testify;
([c] iii) The efforts made to procure the attendance or deposition of such absent witness; and
([d] iv) The reasons for believing that the witness will attend the trial at a subsequent date, or that the deposition of the witness can and will be obtained.
(4) Such special ground as may be allowed in the discretion of the court;
(5) The scheduling of counsel to appear at any proceeding under the Pennsylvania Rules of Disciplinary Enforcement, whether:
([a] i) as counsel for a respondent-attorney before a hearing committee, special master, the Disciplinary Board or the Supreme Court;
([b] ii) as a special master or member of a hearing committee; or
([c] iii) as a member of the Disciplinary Board;
(6) The scheduling of counsel to appear at any proceeding involving the discipline of a justice, judge, or magisterial district judge under Section 18 of Article V of the Constitution of Pennsylvania, whether:
([a] i) as counsel for a justice, judge, or magisterial district judge before the special tribunal provided for in 42 Pa.C.S. § 727, the Court of Judicial Discipline, the Judicial Conduct Board or any hearing committee, or other arm of the Judicial Conduct Board; or
([b] ii) as a member of the Court of Judicial Discipline, the Judicial Conduct Board, or any hearing committee or other arm of the Judicial Conduct Board[.];
(7) In compliance with state or federal law.
([B] b) Except for cause shown in special cases, no reason above enumerated for the continuance of a case shall be of effect beyond one application made in behalf of one party or group of parties having similar interests.
([C] c) No application for a continuance shall be granted if based on a cause existing and known at the time of publication or prior call of the trial list unless the same is presented to the court at a time fixed by the court, which shall be at least one week before the first day of the trial period. Applications for continuances shall be made to the court, or filed in writing with the officer in charge of the trial list, after giving notice of such application by mail, or otherwise, to all parties or their attorneys. Each court may, by local rule, designate the time of publication of the trial list for the purposes of this rule.
([D] d) No continuance shall be granted due to the absence from court of a witness duly subpoenaed, unless:
(1) Such witness will be absent because of facts arising subsequent to the service of the subpoena and which would be a proper ground for continuance under the provisions of Rule [216(A)] 216(a); or
(2) On the day when the presence of such witness is required a prompt application is made for the attachment of such absent witness; or
(3) The witness, having attended at court has departed without leave, and an application for attachment is made promptly after the discovery of the absence of such witness; or the court is satisfied that the witness has left court for reasons which would be a proper ground for continuance under Rule [216(A)] 216(a).
([E] e) Each [Court] court may adopt local rules providing for the temporary passing of cases or governing applications for continuance because of the absence of a witness, not a party, who has not been served with a subpoena.
([F] f) Rule [216(B)—(E)] 216(b)—(e) and Rule 217 shall not be applicable to a continuance granted for any of the reasons set forth in Rule [216(A)(5) or (6)] 216(a)(5)—(a)(7).
Comment: For subdivision (a)(7), see e.g., the Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901 et seq.
(Editor's Note: Rule 237.1 as printed in 231 Pa. Code reads ''Official Note'' rather than ''Note'' and the explanatory comments are not currently codified in the Pennsylvania Code.)
Rule 237.1. Notice of [Praecipe] Praecipe for Entry of Judgment of [Non Pros] 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 Rules 1037(a) and 1659;
Note: When a defendant appeals from a judgment entered in a magisterial district 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), 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 daysprior 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.
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.
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.
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.
EXPLANATORY COMMENT—1994 Rule 237.1 et seq. are intended to (1) avoid snap judgments by requiring notice of the intention to enter certain judgments of non pros and by default, (2) eliminate procedural problems arising from ambiguous agreements to extend time to take required action and (3) ease the procedural burdens upon parties who move promptly to open such judgments.
Rule 237.1—Notice of intention to enter judgment
Rule 237.1 governing judgment of non pros and by default provides that the praecipe for entry of certain judgments include a certification of prior notice of the intent to enter judgment. The rule requires prior notice in those instances in which a party may proceed directly by praecipe to enter a judgment of non pros for failure to file a complaint or a judgment by default for failure to plead to a complaint. Rules 1037(a) and 1659 expressly provide for such a procedure in entering a judgment of non pros while Rules 1037(b), 1511(a), 3031(a) and 3146(a) provide for such a practice in entering a default judgment. New subdivision (a)(1) identifies these rules in specifying the scope of the rule.
The rule provides for the notice to be given once only. A note advises that ''[o]nce the ten-day notice has been given, no further notice is required by the rule even if the time to plead to'' or file ''the complaint has been extended by agreement.''
The notice must be in writing. Subdivision (a)(4) clearly provides that the ''notice and certification required by this rule may not be waived.'' Subdivision 237.1(b) contains an exception to the notice requirement with respect to orders of court, discussed below.
The ten-day notice may be mailed or delivered. Registered or certified mail is not required. The ten-day grace period for compliance runs from the date of delivery, if the notice is delivered. If the notice is mailed, the ten-day period runs from the date of mailing and not from the date of receipt. If proof of the date of mailing is important, it may be obtained from the post office by requesting Post Office Form 3817, Certificate of Mailing, which will show the date, the name of the sender, and the addressee.
The rule continues the practice of entering judgment by the filing of a praecipe with the prothonotary. Two additional requirements are imposed. First, the praecipe must contain a certification that notice was given in accordance with the rule. Second, a copy of the notice must be attached to the praecipe.
The foregoing requirements apply irrespective of the type of judgment sought. However, depending upon the judgment to be entered, there are differing provisions with respect to the event triggering the time for giving notice and the persons to whom notice is to be delivered.
Time of notification
Rule 237.1(a) requires that the notice be given after the time for required action has expired and at least ten days prior to the filing of the praecipe for judgment. However, the event which triggers the time for giving notice differs. Rule 237.1(a)(2)(i) governing the judgment of non pros requires notice to be given ''after the failure to file a complaint'' pursuant to a rule to file a complaint. Rule 237.1(a)(2)(ii) governing the default judgment provides for notice to be given after the failure to plead to a complaint.
The intent of the rule is to afford a minimum of ten days after failure to file a complaint or after failure to plead within which the failure may be cured. To assure this, the notice may not be given until the time for action has elapsed and the failure occurs. This will prevent a plaintiff at the time of service of the complaint or a defendant at the time of service of a rule to file a complaint from including a notice that judgment will be entered on the twenty-first day after service. The notice cannot be given before that day because, prior to that day, no default or failure exists.
Persons notified
Rule 237.1(a)(2)(ii) requires the notice of intention to enter a judgment by default to be mailed or delivered both to the party against whom judgment is to be entered and, if represented, to the party's attorney of record. Dual service is required for two reasons. First, there may be delays in transmittal of process and pleadings from the client to his attorney. This often occurs where papers are forwarded by a party to his insurer through an intermediary, such as an insurance agency. Often the papers never get to defendant's attorney until after the time for filing a responsive pleading has expired. Notice to the party will alert him that there may have been some failure in transmission and prompt inquiry of his insurer may correct this.
Second, even if an appearance has been entered, notice to the client as well as the attorney may have a salutary effect in speeding up action by a dilatory attorney.
Rule 237.1(a)(2)(i), however, provides that notice of the intention to enter a judgment of non pros is to be mailed or delivered only to the party's attorney of record or, if unrepresented, then to the party. In this instance, dual service is not necessary since the party against whom judgment is to be entered is no stranger to the litigation, having initiated it and continued to actively pursue it.
Form of Notice
Rule 237.4 prescribes the form of notice when a judgment of non pros is to be entered; Rule 237.5 prescribes the form of notice when a judgment by default is sought. Each form of notice is universal, applying to all plaintiffs or defendants as the case may be, whether represented or not and without distinction as to their degree of education or sophistication. As in Rule 1018.1, no attempt is made to apply the notices selectively based on the nature of the action or party involved.
The form of notice to be given when a default judgment is sought is adapted from the notice to defend which Rule 1018.1 requires on every complaint. It informs the defendant of the need for action, the consequences of default and where he can obtain a lawyer. Since the notice will in many cases be sent to an as yet unrepresented defendant, repetition of the notice to defend, in modified form helps to stimulate action and stem the tide of petitions to open default judgments.
The form of notice to be given to a plaintiff when a judgment of non pros is sought is similar to that given when a default judgment is sought but is adapted to the non pros scenario.
Exception to requirement of notification
The requirement of notice does not apply to a judgment entered by an order of court, upon praecipe pursuant to an order of court or pursuant to a rule to show cause. Additional notice serves no purpose when a judgment is entered by the court itself or is directed by the court. Similarly, a rule to show cause is itself notice of action to be taken.
Actions under Act No. 6 of 1974, the Loan Interest and Protection Law, 41 P.S. § 101 et seq., are not exempted from the requirement of notice. The notices required by the Act and Rule 237.1 are not duplicative. The notice under Act No. 6 relates to matters prior to suit, e.g., the default and the right to cure the default, whereas the ten-day notice of Rule 237.1 is directed to procedural rights after suit has been commenced.]
(This is entirely new text.)
(Editor's Note: The following text is proposed to be added and is printed in regular type to enhance readability.)
(a) General Rule.
(1) As used in this rule,
''judgment of non pros'' means a judgment entered by praecipe pursuant to Rules 1037(a) and 1659;
''judgment by default'' means a judgment entered by praecipe pursuant to Rules 1037(b), 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.
(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.
(b) Exceptions. 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.
Comment: Rules 237.1 et seq. are intended to (1) avoid snap judgments by requiring notice of the intention to enter certain judgments of non pros and by default, (2) eliminate procedural problems arising from ambiguous agreements to extend time to take required action and (3) ease the procedural burdens upon parties who move promptly to open such judgments.
Rule 237.1—Notice of Intention to Enter Judgment
Rule 237.1 governing judgment of non pros and by default provides that the praecipe for entry of certain judgments include a certification of prior notice of the intent to enter judgment. The rule requires prior notice in those instances in which a party may proceed directly by praecipe to enter a judgment of non pros for failure to file a complaint or a judgment by default for failure to plead to a complaint. Rules 1037(a) and 1659 expressly provide for such a procedure in entering a judgment of non pros while Rules 1037(b), 3031(a) and 3146(a) provide for such a practice in entering a default judgment. Subdivision (a)(1) identifies these rules in specifying the scope of the rule.
When a defendant appeals from a judgment entered in a magisterial district 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 Rule 1037(a) and is subject to this rule.
The rule provides for the notice to be in writing and given once only. 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 10-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.
Subdivision 237.1(b) contains an exception to the notice requirement with respect to orders of court, discussed below.
The ten-day notice may be mailed or delivered. Registered or certified mail is not required. The ten-day grace period for compliance runs from the date of delivery, if the notice is delivered. If the notice is mailed, the ten-day period runs from the date of mailing and not from the date of receipt. If proof of the date of mailing is important, it may be obtained from the post office by requesting Post Office Form 3817, Certificate of Mailing, which will show the date, the name of the sender, and the addressee.
The rule continues the practice of entering judgment by the filing of a praecipe with the prothonotary. Two additional requirements are imposed. First, the praecipe must contain a certification that notice was given in accordance with the rule. Second, a copy of the notice must be attached to the praecipe.
The foregoing requirements apply irrespective of the type of judgment sought. However, depending upon the judgment to be entered, there are differing provisions with respect to the event triggering the time for giving notice and the persons to whom notice is to be delivered.
Time of Notification
Rule 237.1(a) requires that the notice be given after the time for required action has expired and at least ten days prior to the filing of the praecipe for judgment. However, the event which triggers the time for giving notice differs. Rule 237.1(a)(2)(i) governing the judgment of non pros requires notice to be given ''after the failure to file a complaint'' pursuant to a rule to file a complaint. Rule 237.1(a)(2)(ii) governing the default judgment provides for notice to be given after the failure to plead to a complaint.
The intent of the rule is to afford a minimum of ten days after failure to file a complaint or after failure to plead within which the failure may be cured. To assure this, the notice may not be given until the time for action has elapsed and the failure occurs. This will prevent a plaintiff at the time of service of the complaint or a defendant at the time of service of a rule to file a complaint from including a notice that judgment will be entered on the twenty-first day after service. The notice cannot be given before that day because, prior to that day, no default or failure exists.
Persons Notified
Rule 237.1(a)(2)(ii) requires the notice of intention to enter a judgment by default to be mailed or delivered both to the party against whom judgment is to be entered and, if represented, to the party's attorney of record. Dual service is required for two reasons. First, there may be delays in transmittal of process and pleadings from the client to the client's attorney. This often occurs where papers are forwarded by a party to the party's insurer through an intermediary, such as an insurance agency. Often the papers never get to the defendant's attorney until after the time for filing a responsive pleading has expired. Notice to the party will alert the party that there may have been some failure in transmission and prompt inquiry of the party's insurer may correct this.
Second, even if an appearance has been entered, notice to the client as well as the attorney may have a salutary effect in speeding up action by a dilatory attorney.
Rule 237.1(a)(2)(i), however, provides that notice of the intention to enter a judgment of non pros is to be mailed or delivered only to the party's attorney of record or, if unrepresented, then to the party. In this instance, dual service is not necessary since the party against whom judgment is to be entered is no stranger to the litigation, having initiated it and continued to actively pursue it.
Form of Notice
Rule 237.4 prescribes the form of notice when a judgment of non pros is to be entered; Rule 237.5 prescribes the form of notice when a judgment by default is sought. Each form of notice is universal, applying to all plaintiffs or defendants as the case may be, whether represented or not and without distinction as to their degree of education or sophistication. As in Rule 1018.1, no attempt is made to apply the notices selectively based on the nature of the action or party involved.
The form of notice to be given when a default judgment is sought is adapted from the notice to defend which Rule 1018.1 requires on every complaint. It informs the defendant of the need for action, the consequences of default and where the defendant can obtain a lawyer. Since the notice will in many cases be sent to an as yet unrepresented defendant, repetition of the notice to defend, in modified form helps to stimulate action and stem the tide of petitions to open default judgments.
The form of notice to be given to a plaintiff when a judgment of non pros is sought is similar to that given when a default judgment is sought but is adapted to the non pros scenario.
Exception to Requirement of Notification
The requirement of notice does not apply to a judgment entered by an order of court, upon praecipe pursuant to an order of court, or pursuant to a rule to show cause. Additional notice serves no purpose when a judgment is entered by the court itself or is directed by the court. Similarly, a rule to show cause is itself notice of action to be taken.
Actions pursuant to Act 6 of 1974, P.L. 13, the Loan Interest and Protection Law, 41 P.S. § 101—605, are not exempted from the requirement of notice. The notices required by Act 6 and Rule 237.1 are not duplicative. The notice under Act 6 relates to matters prior to suit, e.g., the default and the right to cure the default, whereas the ten-day notice of Rule 237.1 is directed to procedural rights after suit has been commenced.
Cross References
See Pa.R.Civ.P. 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.
See Rule 243 (Servicemembers Civil Relief Act) for affidavit of military service requirement if a defendant does not make an appearance.
(This is an entirely new rule.)
(Editor's Note: The following rule is proposed to be added and is printed in regular type to enhance readability.)
Rule 243. Servicemembers Civil Relief Act.
In any civil action in which a defendant does not make an appearance, and before the court enters judgment in favor of the plaintiff, the plaintiff shall state in a filed affidavit pursuant to the Servicemembers Civil Relief Act, 50 U.S.C. § 3931:
(a) whether the non-appearing defendant is in military service and showing necessary facts to support the affidavit; or
(b) if the plaintiff is unable to determine whether the non-appearing defendant is in military service, that the plaintiff is unable to determine whether the defendant is in military service.
Comment: ''Military service'' is defined by 50 U.S.C. § 3911(2) and a report of a person's ''military status'' can be requested at https://scra.dmdc.osd.mil/scra/#/home. If a defendant is in military service, then the Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901 et seq., may impose additional protections. The Pennsylvania Military and Veterans Code, 51 Pa.C.S. § 4105, also provides protections for Pennsylvania National Guard members in active service of the Commonwealth that, inter alia, prohibit the issuance or enforcement of civil process.
The requirement of an affidavit may be satisfied by an unsworn document containing statements of fact and a statement by the signatory that it is made subject to the penalties of 18 Pa.C.S. § 4904. See 42 Pa.C.S. § 102. A verified statement form is available for the convenience of users at https://www.pacourts.us/forms/for-the-public and can be modified provided it meets the requirements of this rule.
CHAPTER 1000. ACTIONS
Subchapter A. CIVIL ACTION
JUDGMENT UPON DEFAULT OR ADMISSION (Editor's Note: Rule 1037 as printed in 231 Pa. Code reads ''Official Note'' rather than ''Note'' and the explanatory comments are not currently codified in the Pennsylvania Code.)
Rule 1037. Judgment Upon Default or Admission. Assessment of Damages.
(a) Entry of Judgment by Prothonotary for Action Not Commenced by Complaint. If an action is not commenced by a complaint, the prothonotary, upon [praecipe] praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within [twenty] 20 days after service of the rule, the prothonotary, upon [praecipe] praecipe of the defendant, shall enter a judgment of [non pros] non pros.
[Note: See Rule 237.1(a)(2) which requires the praecipe for judgment of non pros to contain a certification of written notice of intent to file the praecipe.]
(b) Entry of Judgment by Prothonotary for Action Commenced by Complaint. The prothonotary, on [praecipe] praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time a pleading to a complaint which contains a notice to defend or, except as provided by subdivision (d), for any relief admitted to be due by the defendant's pleadings.
[Note: See Rule 237.1 which requires the praecipe for default judgment to contain a certification of written notice of intent to file the praecipe.
While the prothonotary may enter a default judgment in an action legal or equitable, only the court may grant equitable relief. See subdivision (d).]
(1) The prothonotary shall assess damages for the amount to which the plaintiff is entitled if it is a sum certain or which can be made certain by computation, but if it is not, the damages shall be assessed at a trial at which the issues shall be limited to the amount of the damages.
(2) In all actions in which the only damages to be assessed are the cost of repairs made to property
(i) the prothonotary on [praecipe] praecipe of the plaintiff, waiving any other damages under the judgment, and the filing of the affidavits provided by [subparagraphs] subdivisions (ii) and (iii) shall assess damages for the cost of the repairs;
(ii) the [praecipe] praecipe shall be accompanied by an affidavit of the person making the repairs; the affidavit shall contain an itemized repair bill setting forth the charges for labor and material used in the repair of the property; it shall also state the qualifications of the person who made or supervised the repairs, that the repairs were necessary, and that the prices for labor and material were fair and reasonable and those customarily charged;
(iii) the plaintiff shall send a copy of the affidavit and repair bill to the defendant by registered mail directed to the defendant's last known address, together with a notice setting forth the date of the intended assessment of damages, which shall be not less than ten days from the mailing of the notice and a statement that damages will be assessed in the amount of the repair bill unless prior to the date of assessment the defendant by written [praecipe] praecipe files with the prothonotary a request for trial on the issue of such damages; an affidavit of mailing of notice shall be filed.
[Note: By Definition Rule 76, registered mail includes certified mail.]
(c) Entry of Judgment by Court. In all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission.
[Note: For the form of notice to defend, see Rule 1018.1.]
(d) Entry of Judgment by Court for Equitable Relief Cases. In all cases in which equitable relief is sought, the court shall enter an appropriate order upon the judgment of default or admission and may take testimony to assist in its decision and in framing the order.
Comment: Subdivision (a). See Pa.R.Civ.P. 237.1(a)(2), which requires the praecipe for judgment of non pros to contain a certification of written notice of intent to file the praecipe.
Subdivision (b). See Pa.R.Civ.P. 237.1 which requires the praecipe for a default judgment to contain a certification of written notice of intent to file the praecipe. While the prothonotary may enter a default judgment in an action legal or equitable, only the court may grant equitable relief pursuant to subdivision (d).
See Rule 243 (Servicemembers Civil Relief Act) for affidavit of military service requirement if a defendant does not make an appearance.
See Pa.R.Civ.P. 76 (definitions), registered mail includes certified mail.
Subdivision (c). See Pa.R.Civ.P. 1018.1 for the form of the notice to defend.
[EXPLANATORY COMMENT—JUNE 16, 1994 Effective July 1, 1984, the former actions of assumpsit and trespass were consolidated into the present civil action. Prior to the consolidation one of the principal differences in practice between the two actions was in the manner of responding to a complaint. The assumpsit rules required an answer specifically denying each averment of fact in the complaint. The trespass rules, however, gave the attorney the option of either filing a full answer as in assumpsit or filing no answer at all. If the attorney filed an entry of appearance but chose not to file an answer, the effect was to admit specified averments of fact in the complaint and to deny the remainder. However, the new civil action rules eliminated this option and required the assumpsit-type answer in all cases.
At the same time, the proposal that the specific denial of Rule 1029 be deleted in favor of a general denial was not adopted. Thus, there remained the requirement of a specific denial not only in assumpsit or contract cases but also in cases not formerly subject to the rule, i.e., trespass or tort cases. Both attorneys and judges have expresseddissatisfaction with the necessity to file answers specifically denying allegations of fact in a complaint in tort actions. The practice results in pleadings containing unnecessary repetition of language, overwhelming paperwork for both the court and the parties, and complexity of pleading which in many cases does not contribute to the narrowing of the issues or the resolution of the action.
In 1991 the Civil Procedural Rules Committee published Recommendation No. 109 which proposed that a responding party be given in all cases the alternatives of filing an answer or filing merely an entry of appearance which would have the effect of a denial. As the result of the comments received, the Committee republished the recommendation as Recommendation No. 109a which proposed that the civil action rules be amended to include the former practice of giving the attorney the option not to file an answer in a limited class of cases, i.e., the trespass-type case. The ultimate evolution of the proposal is that set forth in the amended rules: an answer is required in all cases but, in actions seeking monetary relief for bodily injury, death or property damage, the answer may consist of a general denial.
The amendments to the rules are described as follows.
Rule 1037. Judgment Upon Default or Admission. Assessment of Damages
Subdivision (b) of Rule 1037 provided for the entry of judgment upon praecipe resulting from a default or admission. The rule spoke of failure to file ''an answer''. This left unclear the effect of filing preliminary objections. The rule is changed to refer to ''a pleading'', a term which under Rule 1017(a) includes both an answer and preliminary objections. The filing of an answer or preliminary objections clearly will prevent the entry of a default judgment.
A new note cross-refers to the requirement of Rule 237.1 that the praecipe to enter a judgment by default contain a certification that notice of the intent to enter the judgment was given as provided by that rule.
EXPLANATORY COMMENT—2003 See Explanatory Comment preceding Pa.R.C.P. No. 1501.]
CHAPTER 1300. ARBITRATION
Subchapter A. COMPULSORY ARBITRATION (Editor's Note: Rule 1303 as printed in 231 Pa. Code reads ''Official Note'' rather than ''Note'' and the explanatory comments are not currently codified in the Pennsylvania Code.)
Rule 1303. Hearing. Notice.
(a) Procedure Set by Local Rule.
(1) The procedure for fixing the date, time, and place of hearing before a board of arbitrators shall be prescribed by local rule, provided that [not less than thirty days'] notice in writing shall be given to the parties or their attorneys of record not less than 30 days from the date of the hearing.
[Note: See Rule 248 as to shortening or extending the time for the giving of notice.]
(2) The local rule may provide that the written notice required by subdivision (a)(1) include the following statement:
''This matter will be heard by a board of arbitrators at the time, date and place specified but, if one or more of the parties is not present at the hearing, the matter may be heard at the same time and date before a judge of the court without the absent party or parties. There is no right to a trial [de novo] de novo on appeal from a decision entered by a judge.''
[Note: A party is present if the party or an attorney who has entered an appearance on behalf of the party attends the hearing.]
(b) Party Not Ready to Proceed. When the board is convened for hearing, if one or more parties is not ready the case shall proceed and the arbitrators shall make an award unless the court
(1) orders a continuance, or
(2) hears the matter if the notice of hearing contains the statement required by subdivision (a)(2) and all parties present consent.
[Note] Comment: Subdivision (a). Existing local rules now provide a wide variety of procedures as to notice, place, and time of hearing. In some counties the prothonotaries or the trial list administrators give notice of the hearing. In other counties the chairman of the arbitration board gives notice of both the hearing and the filing of the report and award. In many counties the arbitrators sit in the courthouse. In others, because of the shortage of courtrooms, the arbitrators meet in the chair's office or that of a member of the board or at the Bar association law library where conference rooms are made available. Nonetheless, every local practice must give written notice not less than 30 days' notice of the date of the hearing. In exigent circumstances the court, under Rule 248, can extend or shorten the time of notice.
A party is present if the party or an attorney who has entered an appearance on behalf of the party attends the hearing.
Subdivision (b). This subdivision addresses the failure of a party to attend a hearing.
It is within the discretion of the court whether it should hear the matter or whether the matter should proceed in arbitration. If the court is to hear the matter, it should be heard on the same date as the scheduled arbitration hearing.
In hearing the matter, the trial court may take action not available to the arbitrators, including the entry of a nonsuit if the plaintiff is not ready or a [non pros] non pros if neither party is ready. If the defendant is not ready, it may hear the matter and enter a decision.
[For relief from a nonsuit, see Rule 227.1 governing post-trial practice. See also Rule] See Pa.R.Civ.P. 227.1 (post-trial relief) for relief from a nonsuit; see also Pa.R.Civ.P. 3051 governing relief from a judgment of [non pros] non pros.
Following an adverse decision, a defendant who has failed to appear may file a motion for post-trial relief which may include a request for a new trial on the ground of a satisfactory excuse for the defendant's failure to appear.
See Rule 243 (Servicemembers Civil Relief Act) for affidavit of military service requirement if a defendant does not make an appearance.
[EXPLANATORY COMMENT—1981 Subdivision (a). Existing local rules now provide a wide variety of procedures as to notice, place, and time of hearing. In some counties the prothonotaries or the trial list administrators give notice of the hearing. In other counties the chairman of the arbitration board gives notice of both the hearing and the filing of the report and award. In many counties the arbitrators sit in the courthouse. In others, because of the shortage of courtrooms, the arbitrators meet in the chairman's office or that of a member of the board or at the Bar association law library where conference rooms are made available.
Local practice will continue under Rule 1303(a), except for the requirement that not less than thirty days' notice in writing be given of the date of hearing. In exigent circumstances the court, under Rule 248, can extend or shorten the time of notice.
Subdivision (b). A problem frequently encountered in present practice is the failure of a party to appear at the hearing. Present practice does not permit a nonsuit of a non-appearing plaintiff. Indeed a nonsuit would be impractical, since there is no machinery by which a nonsuit could be removed by the arbitrators. Rule 1303(b) provides that if a plaintiff does not appear, the arbitrators shall, unless the court has ordered a continuance, proceed to enter an award. Similarly, if a defendant does not appear, and the court has not ordered a continuance, the arbitrators proceed to hear the matter and enter an award. The remedy for dissatisfaction with the award is to appeal.
As a matter of professional courtesy, one party appearing when the other party does not might not wish to proceed without a further opportunity for opposing counsel to explain his absence. This poses a delicate question. The arbitrators are given no power to grant continuances. Only the court may do so, under Rule 1303(b). Although under Rule 1304(b) the arbitrators may ''adjourn an uncompleted hearing from day to day,'' adjournment of a hearing that has never begun is in effect a continuance. Nor is a request of counsel for a continuance as a courtesy to his opponent sufficient to permit the arbitrators to continue the matter. Perhaps one solution would be for counsel to ask the arbitrators to pass the case temporarily to give him time to move the court for a continuance.
Local rules may regulate this problem, but must do so with great care so as to provide that it is the court, and not the arbitrators that controls the progress of the case.
EXPLANATORY COMMENT—1998 If at a hearing before a board of arbitrators one party was ready and the other was not, Rule of Civil Procedure 1303 previously provided for the arbitration to proceed and an award to be made unless the court ordered a continuance. Under this rule, some courts experienced the problem of a party failing to appear for the arbitration hearing and then appealing for a trial de novo before the court.
Rule 1303 has been amended to provide an additional alternative in such a circumstance and allow a court of common pleas by local rule to provide that the court may hear the case if the notice of hearing so advised the parties and all parties present agree. If the court hears the matter, then the parties will have had their trial in the court of common pleas. Relief from the decision of the court will be by motion for post-trial relief following the entry of a nonsuit or a decision of the court or by petition to open a judgment of non pros. Relief from the action of the trial court will be by appeal to an appellate court. As the new notice advises, there will be ''no right to a de novo trial on appeal from a decision entered by a judge.''
Rule 218 governs the instance when a party is not ready when a case is called for trial. The note to subdivision (c) prior to its amendment referred to the right of a plaintiff to seek relief from the entry of a nonsuit or a judgment of non pros but omitted any reference to a defendant seeking relief from the decision of the court following a trial. A new paragraph has been added to the note calling attention to the defendant's right to file a motion for post-trial relief ''on the ground of a satisfactory excuse for the defendant's failure to appear.'']
CHAPTER 1900. ACTIONS PURSUANT TO THE PROTECTION FROM ABUSE ACT (Editor's Note: Rule 1901.6 as printed in 231 Pa. Code reads ''Official Note'' rather than ''Note.'')
Rule 1901.6. Responsive Pleading Not Required.
A defendant is not required to file an answer or other responsive pleading to the petition or the certified order, and all averments not admitted shall be deemed denied.
[Note] Comment: For procedures as to the time and manner of hearings and issuance of orders, see 23 Pa.C.S. § 6107. For provisions as to the scope of relief available, see 23 Pa.C.S. § 6108. For provisions as to contempt for violation of an order, see 23 Pa.C.S. § 6114.
See [Pa.R.C.P. No.] Rule 1930.1(b). This rule may require attorneys or unrepresented parties to file confidential documents and documents containing confidential information that are subject to the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania.
See Rule 1930.10 (Servicemembers Civil Relief Act) for affidavit of military service requirements if an opposing party does not make an appearance.
CHAPTER 1910. ACTIONS FOR SUPPORT (Editor's Note: Rule 1910.11 as printed in 231 Pa. Code reads ''Official Note'' rather than ''Note.'')
Rule 1910.11. Office Conference. [Subsequent Proceedings.] Interim Order. Demand for De Novo Hearing.
(a) Office Conference.
(1) A conference officer shall conduct the office conference.
(2) A lawyer serving as a conference officer employed by, or under contract with, a judicial district or appointed by the court shall not practice family law before a conference officer, hearing officer, or judge of the same judicial district.
[Note: Conference officers preside at office conferences under Pa.R.C.P. No. 1910.11. Hearing officers preside at hearings under Pa.R.C.P. No. 1910.12. The appointment of a hearing officer to hear actions in divorce or for annulment of marriage is authorized by Pa.R.C.P. No. 1920.51.]
(b) Failure to Appear. If a party fails to appear at a conference as directed by the court, the conference may proceed.
(c) Documentation.
(1) At the conference, the parties shall provide to the conference officer the following documents:
(i) the most recently filed individual federal income tax returns, including all schedules, W-2s, and 1099s;
(ii) the partnership or business tax returns with all schedules, including K-1, if the party is self-employed or a principal in a partnership or business entity;
(iii) pay stubs for the preceding six months;
(iv) verification of child care expenses;
(v) child support, spousal support, alimony pendente lite, or alimony orders or agreements for other children or former spouses;
(vi) proof of available medical coverage; and
(vii) an Income Statement and, if necessary, an Expense Statement on the forms provided in [Pa.R.C.P. No.] Rule 1910.27(c) and completed as set forth in subdivisions (c)([1] 2) and (3 [2]).
[Note: See Pa.R.C.P. No. 1930.1(b). To the extent this rule applies to actions not governed by other legal authority regarding confidentiality of information and documents in support actions or that attorneys or unrepresented parties file support-related confidential information and documents in non-support actions (e.g., divorce, custody), the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania shall apply.]
([1] 2) The parties shall provide the conference officer with a completed:
(i) Income Statement as set forth in [Pa.R.C.P. No.] Rule 1910.27(c)(1) in all support cases, including high-income cases under [Pa.R.C.P. No.] Rule 1910.16-3.1; and
(ii) Expense Statement as set forth in [Pa.R.C.P. No.] Rule 1910.27(c)(2)(A), if a party:
(A) claims that unusual needs and unusual fixed expenses may warrant a deviation from the guideline support amount pursuant to [Pa.R.C.P. No.] Rule 1910.16-5; or
(B) seeks expense apportionment pursuant to [Pa.R.C.P. No.] Rule 1910.16-6.
([2] 3) For high-income support cases, as set forth in [Pa.R.C.P. No.] Rule 1910.16-3.1, the parties shall provide to the conference officer the Expense Statement in [Pa.R.C.P. No.] Rule 1910.27(c)(2)(B).
(d) Conference Officer Recommendation.
(1) The conference officer shall calculate and recommend a guideline support amount to the parties.
(2) If the parties agree on a support amount at the conference, the conference officer shall:
(i) prepare a written order consistent with the parties' agreement and substantially in the form set forth in [Pa.R.C.P. No.] Rule 1910.27(e), which the parties shall sign; and
(ii) submit to the court the written order along with the conference officer's recommendation for approval or disapproval.
(iii) The court may enter the order in accordance with the agreement without hearing from the parties.
(3) In all cases in which one or both parties are unrepresented, the parties must provide income information to the domestic relations section so that a guidelines calculation can be performed.
(4) In cases in which both parties are represented by counsel, the parties shall not be obligated to provide income information and the domestic relations section shall not be required to perform a guidelines calculation if the parties have reached an agreement about the amount of support and the amount of contribution to additional expenses.
(e) Conference Summary. At the conclusion of the conference or not later than 10 days after the conference, the conference officer shall prepare a conference summary and furnish copies to the court and to both parties. The conference summary shall state:
(1) the facts upon which the parties agree;
(2) the contentions of the parties with respect to facts upon which they disagree; and
(3) the conference officer's recommendation; if any, of
(i) the amount of support and by and for whom the support shall be paid; and
(ii) the effective date of any order.
(f) Interim Order. If an agreement for support is not reached at the conference, the court, without hearing the parties, shall enter an interim order calculated in accordance with the guidelines and substantially in the form set forth in Rule 1910.27(e). Each party shall be provided, either in person at the time of the conference or by mail, with a copy of the interim order and written notice that any party may, within 20 days after the date of receipt or the date of the mailing of the interim order, whichever occurs first, file a written demand with the domestic relations section for a hearing before the court.
(g) No stay. A demand for a hearing before the court shall not stay the interim order entered under subdivision (f) unless the court so directs.
(h) Final Order. If no party demands a hearing before the court within the 20 day period, the interim order shall constitute a final order.
(i) Hearing De Novo. If a demand is filed, there shall be a hearing de novo before the court. The domesticrelations section shall schedule the hearing and give notice to the parties. The court shall hear the case and enter a final order substantially in the form set forth in Rule 1910.27(e) within [sixty] 60 days from the date of the written demand for hearing.
(j) Separate Listing.
(1) Promptly after receipt of the notice of the scheduled hearing, a party may move the court for a separate listing [where] if:
(i) there are complex questions of law, fact, or both; [or]
(ii) the hearing will be protracted; or
(iii) the orderly administration of justice requires that the hearing be listed separately.
(2) If the motion for separate listing is granted, discovery shall be available in accordance with Rule 4001 et seq.
[Note: The rule relating to discovery in domestic relations matters generally is Rule 1930.5.]
(k) Post-Trial Relief. No motion for post-trial relief may be filed to the final order of support.
[EXPLANATORY COMMENT—1994 The domestic relations office conference provided by Rule 1910.11 constitutes the heart of the support procedure. There are two primary advantages to the inclusion of a conference. First, in many cases the parties will agree upon an amount of support and a final order will be prepared, to be entered by the court, thus dispensing with a judicial hearing. Second, those cases which do go to hearing can proceed more quickly because the necessary factual information has already been gathered by the conference officer.
Subdivision (a)(2) prohibits certain officers of the court from practicing family law before fellow officers of the same court. These officers are the conference officer who is an attorney (Rule 1910.11), the hearing officer (Rule 1910.12), and the standing or permanent master who is employed by the court (Rule 1920.51). The amendments are not intended to apply to the attorney who is appointed occasionally to act as a master in a divorce action.
Subdivision (e)(3) makes clear that even if the parties agree on an amount of support, the conference officer is still empowered to recommend to the court that the agreement be disapproved. This provision is intended to protect the destitute spouse who might out of desperation agree to an amount of support that is unreasonably low or which would in effect bargain away the rights of the children.
The officer's disapproval of the agreement serves to prevent an inadequate order being entered unwittingly by the court.
The provision for an interim order in subdivision (f) serves two purposes. First, it ensures that the obligee will receive needed support for the period during which the judicial determination is sought. Second, it eliminates the motive of delay in seeking a judicial determination.
Because the guidelines are income driven, the trier of fact has little need for the expense information required in the Income and Expense Statement. Therefore in guideline cases, the rule no longer requires that expense information be provided. If a party feels that there are expenses so extraordinary that they merit consideration by the trier of fact, that party is free to provide the information. In cases decided according to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), living expenses are properly considered, and therefore must be presented on the Income and Expense Statement.
EXPLANATORY COMMENT—1995 Rule 1910.11(e) is amended to eliminate the need for a party to request a copy of the conference summary.
Because the court is required to enter a guideline order on the basis of the conference officer's recommendation, there is no need for (g)(2), which provided for a hearing before the court where an order was not entered within five days of the conference. It is eliminated accordingly.
Pursuant to subdivision (g), support payments are due and owing under the interim order which continues in effect until the court enters a final order after the hearing de novo. The provision for an interim order serves two purposes. First, it ensures that the obligee will receive needed support for the period during which the judicial determination is sought. Second, it eliminates the motive of delay in seeking a judicial determination. Therefore, the plaintiff and the dependent children are not prejudiced by allowing the court sixty days, rather than the original forty-five, in which to enter its final order.
EXPLANATORY COMMENT—2006 The time for filing a written demand for a hearing before the court has been expanded from ten to 20 days. The purpose of this amendment is to provide ample opportunity for litigants and counsel to receive notice of the entry of the order, to assure Commonwealth-wide consistency in calculation of time for filing and to conform to applicable general civil procedural rules.
The amendments reflect the separated Income Statement and Expense Statements in Rule 1910.27(c).
EXPLANATORY COMMENT—2010 When the parties' combined net income exceeds $30,000 per month, calculation of child support, spousal support and alimony pendente lite shall be pursuant to Rule 1910.16-3.1. Rule 1910.16-2(e) has been amended to eliminate the application of Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), in high income child support cases.
EXPLANATORY COMMENT—2011 The rule has been amended to require that income information be provided in all cases, unless both parties are represented in reaching an agreement, so that a guidelines calculation can be performed. The guidelines create a rebuttable presumption that the amount calculated pursuant to them is the correct amount, so there should be a calculation in every case. If parties agree to receive or to pay an order other than the guideline amount, they should know what that amount is so that they can enter an agreement knowingly. If both parties are represented by counsel, it is assumed that their entry into the agreement for an amount other than a guidelines amount is knowing as it is counsels' responsibility to advise the parties. In addition, part of the mandatory quadrennial review of the support guidelines mandates a study of the number of cases in which the support amount ordered varies from the amount that would result from a guidelines calculation. Federal regulations presume that if a large percentage of cases vary from the guideline amount, then the guidelines are not uniform statewide.]
Comment: Conference officers preside over office conferences conducted pursuant to this rule. Hearing officers preside over hearings conducted pursuant to Rule 1910.12. The appointment of hearing officer to hear actions in divorce or for annulment of marriage is authorized by Rule 1920.51.
The rule relating to discovery in domestic relations matters generally is Rule 1930.5.
To the extent this rule applies to actions not governed by other legal authority regarding confidentiality of information and documents in support actions or that attorneys or unrepresented parties file support-related confidential information and documents in non-support actions, e.g., divorce, custody, the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania shall apply. See Rule 1930.1(b).
Subdivision (a)(2) prohibits certain officers of the court from practicing family law before other officers of the same court. These officers are the conference officer who is an attorney, the hearing officer, Rule 1910.12, and the standing or permanent hearing officer who is employed by the court, Rule 1920.51. This subdivision is not intended to apply to an attorney occasionally appointed as a hearing officer in a divorce action.
Subdivision (d)(2)(i)(B) clarifies that, even if the parties agree on an amount of support, the conference officer is still empowered to recommend to the court that the agreement be disapproved. This provision is intended to protect the destitute spouse who might, out of desperation, agree to an amount of support that is unreasonably low or which would in effect bargain away the rights of the children. The officer's disapproval of the agreement serves to prevent an inadequate order being entered unwittingly by the court.
Pursuant to subdivision (f), support payments are due and owing under the interim order and continue in effect until the court enters a final order after the hearing de novo. The provision for an interim order serves two purposes. First, it ensures that the obligee will receive needed support for the period during which the judicial determination is sought. Second, it eliminates the motive of delay in seeking a judicial determination. Therefore, the plaintiff and any dependent children are not prejudiced by allowing the court 60 days to enter its final order.
The domestic relations office conference provided by this rule constitutes the heart of the support procedure. There are two primary advantages to the inclusion of a conference. First, in many cases the parties will agree upon an amount of support and a final order will be prepared, to be entered by the court, thus dispensing with a judicial hearing. Second, those cases which do proceed to hearing can proceed more quickly because the necessary factual information has already been gathered by the conference officer.
Because the guidelines are income driven, the trier of fact has little need for the expense information required in the Expense Statement. Therefore, in guideline cases, the rule no longer requires that expense information be provided. If a party feels that there are expenses so extraordinary that they merit consideration by the trier of fact, the party is free to provide the information. In cases decided according to Melzer v. Witsberger, 480 A.2d 991 (Pa. 1984), living expenses are properly considered, and therefore must be presented in the Expense Statement.
See Rule 1930.10 (Servicemembers Civil Relief Act) for affidavit of military service requirements if an opposing party does not make an appearance.
(Editor's Note: Rule 1910.12 as printed in 231 Pa. Code reads ''Official Note'' rather than ''Note.'')
Rule 1910.12. Alternative Hearing Procedures. Office Conference. Record Hearing. [Record.] Report. Exceptions. [Order.]
(a) Office Conference. There shall be an office conference as provided by [Pa.R.C.P. No.] Rule 1910.11(a) through (d). The provisions of [Pa.R.C.P. No.] Rule 1910.11(d)(3) and (d)(4) regarding income information apply in cases proceeding pursuant to [Pa.R.C.P. No.] Rule 1910.12.
(b) Conference Conclusion.
(1) At the conclusion of a conference attended by both parties, if an agreement for support has not been reached, and the conference and hearing are not scheduled on the same day, the court, without hearing the parties, shall enter an interim order calculated in accordance with the guidelines and substantially in the form set forth in [Pa.R.C.P. No.] Rule 1910.27(e), and the parties shall be given notice of the date, time and place of a hearing. A record hearing shall be conducted by a hearing officer who must be a lawyer.
(2) If either party, having been properly served, fails to attend the conference, the court may enter an interim order calculated in accordance with the guidelines and substantially in the form set forth in Pa.R.Civ.P. [No.] Rule 1910.27(e). Within 20 days after the date of receipt or the date of mailing of the interim order, whichever occurs first, either party may demand a hearing before a hearing officer. If no hearing is requested, the order shall become final.
(3) Any lawyer serving as a hearing officer employed by, or under contract with, a judicial district or appointed by the court shall not practice family law before a conference officer, hearing officer, or judge of the same judicial district.
[Note: Conference officers preside at office conferences under Pa.R.C.P. No. 1910.11. Hearing officers preside at hearings under Pa.R.C.P. No. 1910.12. The appointment of a hearing officer to hear actions in divorce or for annulment of marriage is authorized by Pa.R.C.P. No. 1920.51.]
(c) Separate Listing.
(1) Except as provided in subdivision (c)(2), promptly after the conference's conclusion, a party may move the court for a separate listing of the hearing if:
(i) there are complex questions of law, fact or both;
(ii) the hearing will be protracted; or
(iii) the orderly administration of justice requires that the hearing be listed separately.
(2) When the conference and hearing are scheduled on the same day, all requests for separate listing shall be presented to the court at least seven days prior to the scheduled court date.
(3) If the motion for separate listing is granted, discovery shall be available in accordance with [Pa.R.C.P. No.] Rule 4001 et seq.
[Note: The rule relating to discovery in domestic relations matters generally is Pa.R.C.P. No. 1930.5.]
(d) Report. The hearing officer shall receive evidence, hear argument and, not later than 20 days after the close of the record, file with the court a report containing a recommendation with respect to the entry of an order of support. The report may be in narrative form stating the reasons for the recommendation and shall include a proposed order substantially in the form set forth in Rule 1910.27(e) stating:
(1) the amount of support calculated in accordance with the guidelines;
(2) by and for whom it shall be paid; and
(3) the effective date of the order.
(e) Interim Order. The court, without hearing the parties, shall enter an interim order consistent with the proposed order of the hearing officer. Each party shall be provided, either in person at the time of the hearing or by mail, with a copy of the interim order and written notice that any party may, within [twenty] 20 days after the date of receipt or the date of mailing of the order, whichever occurs first, file with the domestic relations section written exceptions to the report of the hearing officer and interim order.
[Note: Objections to the entry of an interim order consistent with the proposed order may be addressed pursuant to Rule 1910.26.]
(f) Exceptions. Within [twenty] 20 days after the date of receipt or the date of mailing of the report by the hearing officer, whichever occurs first, any party may file exceptions to the report or any part thereof, to rulings on objections to evidence, to statements or findings of facts, to conclusions of law, or to any other matters occurring during the hearing. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to entry of the final order, leave is granted to file exceptions raising those matters. If exceptions are filed, any other party may file exceptions within 20 days of the date of service of the original exceptions.
(g) Final Order. If no exceptions are filed within the [twenty-day] 20-day period, the interim order shall constitute a final order.
(h) Argument. If exceptions are filed, the interim order shall continue in effect. The court shall hear argument on the exceptions and enter an appropriate final order substantially in the form set forth in Rule 1910.27(e) within [sixty] 60 days from the date of the filing of exceptions to the interim order. No motion for post-trial relief may be filed to the final order.
[EXPLANATORY COMMENT—1995 Language is added to subdivision (b) to acknowledge that the conference and hearing can be held the same day, and to provide for the immediate entry of an interim order in judicial districts where the hearing occurs at a later date. New subdivision (b)(2) permits entry of a guideline order after a conference which the defendant, though properly served, fails to attend. New subdivision (c)(2) is intended to prevent delays in the hearing of complex cases by requiring that requests for separate listing be made at least seven days in advance where the conference and hearing are scheduled on the same day.
In addition, the phrase ''record hearing'' in subdivision (a) replaces the reference to a ''stenographic record'' in recognition of the variety of means available to create a reliable record of support proceedings.
Amended subdivision (e) allows an interim order to be entered and served on the parties at the conclusion of the hearing, rather than after the expiration of the exceptions period as was true under the old rule. In addition, the amended subdivision requires that the interim order include language advising the parties of their right to file exceptions within ten days of the date of the order.
Support payments are due and owing under the interim order which continues in effect until the court enters a final order after considering the parties' exceptions. Therefore, extension of the deadline for entering the final order by fifteen days does not prejudice the persons dependent upon payment of the support.
EXPLANATORY COMMENT—2006 The time for filing exceptions has been expanded from ten to twenty days. The purpose of this amendment is to provide ample opportunity for litigants and counsel to receive notice of the entry of the order, to assure Commonwealth-wide consistency in calculation of time for filing and to conform to applicable general civil procedural rules.]
Comment: Conference officers preside over office conferences completed pursuant to Rule 1910.11. Hearing officers preside over hearings conducted pursuant to Rule 1910.12. The appointment of hearing officers to hear actions in divorce or for annulment of marriage is authorized by Rule 1920.51.
The rule relating to discovery in domestic relations matters generally is Rule 1930.5.
Objections to the entry of an interim order consistent with the proposed order may be addressed pursuant to Rule 1910.26.
See Rule 1930.10 (Servicemembers Civil Relief Act) for affidavit of military service requirements if an opposing party does not make an appearance.
CHAPTER 1915. ACTIONS FOR CUSTODY OF MINOR CHILDREN Rule 1915.4-2. Partial Custody. Office Conference. Hearing. Record. Exceptions. Order.
(a) Office Conference.
(1) The office conference shall be conducted by a conference officer.
(2) If the respondent fails to appear at the conference before the conference officer as directed by the court, the conference may proceed without the respondent.
(3) The conference officer may make a recommendation to the parties relating to partial custody or supervised physical custody of the child or children. If an agreement for partial custody or supervised physical custody is reached at the conference, the conference officer shall prepare a written order in conformity with the agreement for signature by the parties and submission to the court together with the officer's recommendation for approval or disapproval. The court may enter an order in accordance with the agreement without hearing the parties.
(4) At the conclusion of the conference, if an agreement relating to partial custody or supervised physical custody has not been reached, the parties shall be given notice of the date, time, and place of a hearing before a hearing officer, which may be the same day, but in no event shall be more than [forty-five] 45 days from the date of the conference.
(b) Hearing.
(1) The hearing shall be conducted by a hearing officer who [must] shall be a lawyer, and a record shall be made of the testimony. A hearing officer who is a lawyer employed by, or under contract with, a judicial district or appointed by the court shall not practice family law before a conference officer, hearing officer, or judge of the same judicial district.
(2) The hearing officer shall receive evidence and hear argument. The hearing officer may recommend to the court that the parties or the subject child or children submit to examination and evaluation by experts pursuant to Rule 1915.8.
(3) Within ten days of the conclusion of the hearing, the hearing officer shall file with the court and serve upon all parties a report containing a recommendation with respect to the entry of an order of partial custody or supervised physical custody. The report may be in narrative form stating the reasons for the recommendation and shall include a proposed order, including a specific schedule for partial custody or supervised physical custody.
(4) Within [twenty] 20 days after the date the hearing officer's report is mailed or received by the parties, whichever occurs first, any party may file exceptions to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to entry of the final order, leave is granted to file exceptions raising those matters. If exceptions are filed, any other party may file exceptions within [twenty] 20 days of the date of service of the original exceptions.
(5) If no exceptions are filed within the [twenty-day] 20-day period, the court shall review the report and, if approved, enter a final order.
(6) If exceptions are filed, the court shall hear argument on the exceptions within [forty-five] 45 days of the date the last party files exceptions, and enter an appropriate final order within [fifteen] 15 days of argument. No motion for [P]post-[T]trial [R]relief may be filed to the final order.
[EXPLANATORY COMMENT—2006 The time for filing exceptions has been expanded from ten to 20 days. The purpose of this amendment is to provide ample opportunity for litigants and counsel to receive notice of the entry of the order, to assure Commonwealth-wide consistency in calculation of time for filing and to conform to applicable general civil procedural rules.]
Comment: See Rule 1930.10 (Servicemembers Civil Relief Act) for affidavit of military service requirements if an opposing party does not make an appearance.
See also 50 U.S.C. § 3938 and 51 Pa.C.S. §§ 4109, 4110 related to child custody proceedings during a servicemember's deployment.
Rule 1915.4-3. [Non-Record Proceedings. Trials] Court Procedures.
(a) Non-Record Proceedings. In judicial districts utilizing an initial non-record proceeding, i.e., office conference, if an agreement is not finalized by the conclusion of the proceeding, the conference officer shall promptly notify the court that the matter should be listed for trial. A lawyer employed by, or under contract with, a judicial district or appointed by the court to serve as a conference officer to preside over a non-record proceeding shall not practice family law before a conference officer, hearing officer, or judge of the same judicial district.
(b) Trial. The trial before the court shall be de novo. The court shall hear the case and render a decision within the time periods set forth in [Pa.R.C.P. No.] Rule 1915.4.
[EXPLANATORY COMMENT—2018 The amendment to this rule, in conjunction with the amendment to Pa.R.C.P. No. 1915.1, standardizes terminology used in the custody process and identifies court personnel by title and in some cases qualifications. Of note, the term ''mediator,'' which had been included in the rule, has been omitted and is specifically defined in Pa.R.C.P. No. 1915.1.
As in the support rules, custody conference officers preside over conferences and hearing officers preside over hearings. Regardless of the individual's title, presiding over a conference or a hearing triggers the family law attorney practice preclusion in this rule and in Pa.R.C.P. No. 1915.4-2(b) in the case of a hearing officer. Mediators, as defined in Pa.R.C.P. No. 1915.1 and as qualified in Pa.R.C.P. No. 1940.4, do not preside over custody conferences or hearings; rather, mediators engage custody litigants in alternative dispute resolution methods pursuant to Chapter 1940 of the Rules of Civil Procedure and, as such, the preclusion from practicing family law in the same judicial district in which an attorney/mediator is appointed is inapplicable.]
Comment: See Rule 1930.10 (Servicemembers Civil Relief Act) for affidavit of military service requirements if an opposing party does not make an appearance.
See also 50 U.S.C. § 3938 and 51 Pa.C.S. §§ 4109, 4110 related to child custody proceedings during a servicemember's deployment.
(Editor's Note: Rule 1915.17 as printed in 231 Pa. Code reads ''Official Note'' rather than ''Note.'')
Rule 1915.17. Relocation. [Notice and Counter-Affidavit.]
(a) Notice. A party proposing to change the residence of a child which significantly impairs the ability of a non-relocating party to exercise custodial rights [must] shall notify every other person who has custodial rights to the child and provide a counter-affidavit by which a person may agree or object. The form of the notice and counter-affidavit are set forth in subdivisions (i) and (j) below. The notice shall be sent by certified mail, return receipt requested, addressee only or pursuant to [Pa.R.C.P No.] Rule 1930.4, no later than the [sixtieth] 60th day before the date of the proposed change of residence or other time frame set forth in 23 Pa.C.S. § 5337(c)(2).
(b) Objection. If the other party objects to the proposed change in the child's residence, that party must serve the counter-affidavit on the party proposing the change by certified mail, return receipt requested, addressee only, or pursuant to [Pa.R.C.P. No.] Rule 1930.4 within 30 days of receipt of the notice required in subdivision (a) above. If there is an existing child custody case, the objecting party also shall file the counter-affidavit with the court.
(c) No Objection. If no objection to a proposed change of a child's residence is timely served after notice, the proposing party may change the residence of the child and such shall not be considered a ''relocation'' under statute or rule.
(d) Expedited Process. The procedure in any relocation case shall be expedited. There shall be no requirement for parenting education or mediation prior to an expedited hearing before a judge.
(e) Order Confirming Relocation. If the party proposing the relocation seeks an order of court, has served a notice of proposed relocation as required by 23 Pa.C.S. § 5337, has not received notice of objection to the move, and seeks confirmation of relocation, the party proposing the relocation shall file:
(1) a complaint for custody and petition to confirm relocation, when no custody case exists, or
(2) a petition to confirm relocation when there is an existing custody case and
(3) a proposed order including the information set forth at 23 Pa.C.S. § 5337(c)(3).
(f) Process for Relocating Party After Objection. If the party proposing the relocation has received notice of objection to the proposed move after serving a notice of proposed relocation as required by 23 Pa.C.S. §§ 5337 et seq., the party proposing relocation shall file:
(1) a complaint for custody or petition for modification, as applicable;
(2) a copy of the notice of proposed relocation served on the non-relocating party;
(3) a copy of the counter-affidavit indicating objection to relocation; and
(4) a request for a hearing.
(g) Process for Opposing Party After Service of Notice. If the non-relocating party has been served with a notice of proposed relocation and the party proposing relocation has not complied with subdivision (f) [above], the non-relocating party may file:
(1) a complaint for custody or petition for modification, as applicable;
(2) a counter-affidavit as set forth in 23 Pa.C.S. § 5337(d)(1), and
(3) a request for a hearing.
(h) Order Preventing Relocation. If a non-relocating party has not been served with a notice of proposed relocation and seeks an order of court preventing relocation, the non-relocating party shall file:
(1) a complaint for custody or petition for modification, as applicable;
(2) a statement of objection to relocation; and
(3) a request for a hearing.
(i) Form of Notice. The notice of proposed relocation shall be substantially in the following form:
(Caption)
NOTICE OF PROPOSED RELOCATION You, ______ , are hereby notified that ______ (party proposing relocation) ______ proposes to relocate with the following minor child(ren):
_______________________________________________ .To object to the proposed relocation, you must complete the attached counter-affidavit and serve it on the other party by certified mail, return receipt requested, addressee only, or pursuant to [Pa.R.C.P. No.] Rule 1930.4 within 30 days of receipt of this notice. If there is an existing child custody case, you also must file the counter-affidavit with the court. If you do not object to the proposed relocation within 30 days, the party proposing relocation has the right to relocate and may petition the court to approve the proposed relocation and to modify any effective custody orders or agreements. FAILURE TO OBJECT WITHIN 30 DAYS WILL PREVENT YOU FROM OBJECTING TO THE RELOCATION ABSENT EXIGENT CIRCUMSTANCES.
Address of the proposed new residence:
__________[ ] Check here if the address is confidential pursuant to 23 Pa.C.S. § 5336(b).
Mailing address of intended new residence (if not the same as above)
__________[ ] Check here if the address is confidential pursuant to 23 Pa.C.S. § 5336(b).
Names and ages of the individuals who intend to reside at the new residence:
Name Age
__________
__________
__________
__________[ ] Check here if the information is confidential pursuant to 23 Pa.C.S. § 5336(b) or (c).
Home telephone number of the new residence:
[ ] Check here if the information is confidential pursuant to 23 Pa.C.S. § 5336(b) or (c).
Name of the new school district and school the child(ren) will attend after relocation:
__________[ ] Check here if the information is confidential pursuant to 23 Pa.C.S. § 5336(b) or (c).
Date of the proposed relocation:
[ ] Check here if the information is confidential pursuant to 23 Pa.C.S. § 5336(b) or (c).
Reasons for the proposed relocation:
__________
__________
__________[ ] Check here if the information is confidential pursuant to 23 Pa.C.S. § 5336(b) or (c).
Proposed modification of custody schedule following relocation:
__________
__________
__________
__________Other information:
__________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.
__________
__________
__________
__________[Note: See Pa.R.C.P. No. 1930.1(b). This rule may require attorneys or unrepresented parties to file confidential documents and documents containing confidential information that are subject to the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania.]
(j) The counter-affidavit that [must] shall be served with the relocation notice shall be substantially in the following form as set forth in 23 Pa.C.S. § 5337(d):
COUNTER-AFFIDAVIT REGARDING RELOCATION This proposal of relocation involves the following child/children:
Child's Name Age Currently residing at: __________ __________ __________ Child's Name Age Currently residing at: __________ __________ __________ Child's Name Age Currently residing at: __________ __________ __________ I have received a notice of proposed relocation and (check all that apply):
1. [ ] I do not object to the relocation
2. [ ] I do not object to the modification of the custody order consistent with the proposal for modification set forth in the notice.
3. [ ] I do not object to the relocation, but I do object to modification of the custody order.
4. [ ] I plan to request that a hearing be scheduled by filing a request for hearing with the court:
a. [ ] Prior to allowing (name of child/children) to relocate.
b. [ ] After the child/children relocate.
5. [ ] I do object to the relocation
6. [ ] I do object to the modification of the custody order.
I understand that in addition to objecting to the relocation or modification of the custody order above, I must also serve this counter-affidavit on the other party by certified mail, return receipt requested, addressee only, or pursuant to [Pa.R.C.P. No.] Rule 1930.4, and, if there is an existing custody case, I must file this counter-affidavit with the court. If I fail to do so within 30 days of my receipt of the proposed relocation notice, I understand that I will not be able to object to the relocation at a later time.
I verify that the statements made in this counter-affidavit 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)
(Signature)
[Note: See Pa.R.C.P. No. 1930.1(b). This rule may require attorneys or unrepresented parties to file confidential documents and documents containing confidential information that are subject to the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania.]
Comment: See Rule 1930.1(b). This rule may require attorneys or unrepresented parties to file confidential documents and documents containing confidential information that are subject to the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania.
See Rule 1930.10 (Servicemembers Civil Relief Act) for affidavit of military service requirements if an opposing party does not make an appearance. See also 50 U.S.C. § 3938 and 51 Pa.C.S. §§ 4109, 4110 related to child custody proceedings during a servicemember's deployment.
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