Subchapter E. ACTION IN REPLEVIN
Rule
1071. Conformity to Civil Action.
1072. Venue.
1073. Commencement of Action.
1073.1. Complaint. Specific Averments. Verification.
1074. Service of the Complaint. [Rescinded].
1075. Seizure of Property Before Judgment.
1075.1. Writ of Seizure Upon Notice and Hearing.
1075.2. Ex Parte Issuance of Writ of Seizure.
1075.3. Writ of Seizure. Bond.
1075.4. Service of the Writ of Seizure.
1075.5. Duration of Validity of Writ of Seizure.
1076. Counterbond.
1077. Disposition of Seized Property. Sheriff’s Return.
1078. Exemption of Property. Preliminary Objection.
1079. Impounding Property.
1079.1. Special Equitable Relief.
1080. Objections to Bond.
1081. Concealment of Property. Examination of Defendant.
1082. Counterclaim. Lien. Conditional Verdict.
1083. Judgment in Rem for Property When Defendant is Not Served
and Does Not Appear.
1084. Judgment Before Trial When Defendant is Served or Appears.
1085. Judgment After Trial.
1086. Judgment. Enforcement.
1087. Trial Without Jury.
1088. Acts of Assembly Not Suspended.
Official Note
The Order of the Supreme Court, June 25, 1946, adopting the Rules of Civil Procedure governing Actions at Law, fixed Jan. 1, 1947, as the effective date and made said Rules applicable to actions pending at that time.
Rule 1071. Conformity to Civil Action.
Except as otherwise provided in this chapter, the procedure in the action of replevin from the commencement to the entry of judgment shall be in accordance with the rules relating to a civil action.
Source The provisions of this Rule 1071 adopted June 25, 1946, effective January 1, 1947; amended December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial page (40049).
Rule 1072. Venue.
The action may be brought in a county in which a civil action may be brought or in the county in which the property to be replevied is found.
Source The provisions of this Rule 1072 adopted June 25, 1946, effective January 1, 1947; amended through December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial page (40049).
Rule 1073. Commencement of Action.
An action of replevin shall be commenced by filing a complaint with the prothonotary.
Source The provisions of this Rule 1073 adopted June 23, 1975, effective October 1, 1975, 5 Pa.B. 1824.
Rule 1073.1. Complaint. Specific Averments. Verification.
(a) The plaintiff shall include in the complaint:
(1) a description of the property to be replevied.
(2) its value,
(3) its location if known, and
Official Note
See Rule 1081 authorizing the court at any time during the pendency of the action to order the defendant to appear for oral examination as to the whereabouts of the claimed property.
(4) the material facts upon which plaintiff’s claim is based.
(b) The complaint shall be verified by the plaintiff upon personal knowledge or information and belief or by any other person having sufficient knowledge or information and belief, who shall set forth the source of the information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by the plaintiff.
Source The provisions of this Rule 1073 adopted June 23, 1975, effective October 1, 1975, 5 Pa.B. 1824; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266. Immediately preceding text appears at serial pages (212319) to (212320).
Rule 1074. Service of the Complaint.
[Rescinded]
Official Note
For service of original process, see Rule 400 et seq.
Source The provisions of this Rule 1074 rescinded June 20, 1985, effective January 1, 1986, 15 Pa.B. 2452. Immediately preceding text appears at serial page (87268).
Rule 1075. Seizure of Property Before Judgment.
The property which is the subject matter of the action may be seized by the sheriff before judgment pursuant to a writ of seizure. The writ of seizure shall be issued only upon an order of court entered upon notice and hearing pursuant to Rule 1075.1 or ex parte pursuant to Rule 1075.2.
Source The provisions of this Rule 1075 adopted June 23, 1975, effective October 1, 1975, 5 Pa.B. 1824.
Rule 1075.1. Writ of Seizure Upon Notice and Hearing.
(a) After the complaint has been filed, the plaintiff may move for the issuance of a writ of seizure whether or not the complaint has been served. The court shall fix the date and time of the hearing which shall not be less than forty-eight hours after filing the motion for the writ of seizure.
(b) A copy of the complaint shall be attached to the motion. If the motion includes additional facts not averred in the complaint, it shall be verified in the same manner as a complaint.
(c) Notice of the hearing shall be substantially in the form provided by Rule 1353. It shall inform the defendant and any other person found in possession of the property of the place, date and time of the hearing. Service of the notice shall be made not less than twenty-four hours before the hearing. When perishable property is to be seized or if other cause is shown, the court may set a shorter time for notice and hearing.
(d) The motion and notice of the hearing may be served by any competent adult by leaving a copy at the address endorsed on an appearance or prior pleading, but if there is no such endorsement, then in the manner provided by Rule 402(a) for the service of original process or, if that is not possible, then by any other means reasonably calculated to give notice. The return of service shall be governed by Rule 405.
(e) The hearing shall be held whether or not the defendant or other person found in possession of the property appears. If the court is satisfied that notice as provided by this rule has been given or a reasonable attempt to give notice has been made, it shall determine from the complaint, affidavits, testimony, admissions or other evidence, whether the plaintiff has established the probable validity of the claim and, if so, it may order a writ of seizure to be issued upon the filing of a bond as provided by Rule 1075.3.
(f) The failure of a defendant or other person found in possession of the property to appear or be represented at the hearing shall not be considered a waiver of any right to defend the action or to file a counterbond.
(g) If the notice of the hearing has not been actually received notwithstanding a reasonable attempt to give notice, the defendant or any other person claiming the right to possession may, within seventy-two hours after seizure, petition to vacate the writ of seizure.
Source The provisions of this Rule 1075.1 adopted June 23, 1975, effective October 1, 1975, 5 Pa.B. 1824; amended through June 20, 1985, effective January 1, 1986, 15 Pa.B. 2452; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266; amended May 14, 1999, effective July 1, 1999, 29 Pa.B. 2767; amended June 14, 1999, effective September 1, 1999, 29 Pa.B. 3191. Immediately preceding text appears at serial pages (255224) and (256967). (Editor’s Note: The Supreme Court of Pennsylvania has suspended its order of June 14, 1999, published at 29 Pa.B. 3191 (June 26, 1999). See 29 Pa.B. 4859 (September 18, 1999).)
Rule 1075.2. Ex Parte Issuance of Writ of Seizure.
(a) After the complaint has been filed, a writ of seizure may be issued by the court ex parte at any time upon motion of the plaintiff, upon the filing of a bond as provided by Rule 1075.3 if plaintiff satisfies the court of the probable validity of the claim to possession and that there is probable cause to believe that before notice can be given or hearing held.
(1) the value of the property and the plaintiff’s interest therein will be adversely affected by the continued possession and use by the defendant; or
(2) the defendant or other person in possession will conceal, dispose, encumber, waste the property or the revenues therefrom, if any, or remove the same from the county.
If the motion includes additional facts not averred in the complaint, it shall be verified in the same manner as a complaint.
(b) A copy of the complaint and the motion for ex parte issuance of the writ of seizure shall be served with the writ of seizure.
(c) If a writ has been issued and the property has been seized, a hearing shall be held within seventy-two hours after the seizure of the property. The notice of the hearing shall be substantially in the form provided by Rule 1353. It shall inform the defendant and any other person found in possession of the property of the place, date and time of the hearing. Service of the notice shall be in the manner provided by Rule 1075.1(d).
(d) The hearing shall be held whether or not the defendant or other person found in possession of the property is served or appears. If the court determines that no notice as required by this rule has been given or no reasonable attempt to give such notice has been made, it shall vacate the writ and the property shall be returned to the person from whom it was taken. If the court is satisfied that notice as required by this rule has been given or a reasonable attempt to give such notice has been made, it shall determine from the complaint, affidavits, testimony, admissions or other evidence whether the plaintiff has established the probable validity of the claim to possession and of the grounds for the ex parte issuance of the writ. If the court has determined that plaintiff has established such validity, it shall enter an order confirming the ex parte issuance of the writ.
(1) If the plaintiff fails to establish the probable right to possession, the court shall vacate the writ and the property shall be returned to the person from whom it was taken. Thereafter, subject to the payment of expenses as hereinafter provided, the action shall then proceed as if no writ of seizure has been issued.
(2) If the plaintiff establishes the probable right to possession but fails to establish the probable validity of the grounds for ex parte issuance of the writ, the court, upon payment by the plaintiff of the expenses as hereinafter provided, may permit the plaintiff to retain possession pending judgment subject to the right of a party to file a counterbond or to exercise any other right under these rules.
(3) The expenses referred to in subdivisions (1) and (2) above shall be limited to reasonable expenses of a defending party which may include attorney’s fees in litigating the issues of probable right to possession or probable validity of the grounds for ex parte issuance of the writ. The allowance of any expenses shall in all cases be discretionary with the court. A plaintiff required to pay such expenses may not without leave of court take any further steps in the action so long as such expenses remain unpaid.
Official Note
The expenses referred to in subdivision (d) are imposed upon plaintiff for the failure to sustain the ex parte issuance of the writ of seizure. They are distinct from special damages which will be adjudicated at the final disposition. See Rules 1084 and 1085.
(e) The failure of a defendant or other person found in possession of the property to appear or be represented at the hearing shall not be considered a waiver of any right to defend the action or to file a counterbond.
Source The provisions of this Rule 1075.4 adopted June 23, 1975, effective October 1, 1975, 5 Pa.B. 1824; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266. Immediately preceding text appears at serial pages (212321) to (212322).
Rule 1075.3. Writ of Seizure. Bond.
(a) The writ of seizure shall be substantially in the form provided by Rule 1354.
(b) The plaintiff’s bond shall be in double the value of the property averred in the complaint with security approved by the prothonotary, naming the Commonwealth as obligee, conditioned that if the plaintiff fails to maintain the right to possession of the property the plaintiff shall pay to the party entitled thereto the value of the property and all legal costs, fees and damages sustained by reason of the issuance of the writ.
Official Note
For enforcement of judgment and execution on the bond see Rule 3170 et seq.
Source The provisions of this Rule 1075.3 adopted June 23, 1975, effective October 1, 1975, 5 Pa.B. 1824; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266. Immediately preceding text appears at serial pages (212322) to (212323).
Rule 1075.4. Service of the Writ of Seizure.
(a) The sheriff shall serve the writ of seizure, together with a copy of the complaint and motion for ex parte issuance of the writ if the writ has been issued ex parte, upon the defendant and any person not a party who is found in possession of the property, in the manner provided by Rule 402(a) for service of original process and shall take possession of the property.
(b) When a person in possession of the property who is not a party to the action is served with a writ of seizure, the sheriff shall notify the person that he or she has been added as a defendant and is required to defend the action and shall so state in the return and the person shall thereupon become a defendant in the action. Copies of all prior pleadings and motions not previously furnished to the person shall be forthwith served upon him or her by the plaintiff in the manner provided by Rule 440.
Source The provisions of this Rule 1075.4 adopted June 1, 1975, effective October 1, 1975, 5 Pa.B. 1824; amended through June 20, 1985, effective January 1, 1986, 15 Pa.B. 2452; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266; amended June 14, 1999, effective September 1, 1999, 29 Pa.B. 3191. Immediately preceding text appears at serial page (256969). (Editor’s Note: The Supreme Court of Pennsylvania has suspended its order of June 14, 1999, published at 29 Pa.B. 3191 (June 26, 1999). See 29 Pa.B. 4859 (September 18, 1999).)
Rule 1075.5. Duration of Validity of Writ of Seizure.
The writ of seizure shall remain valid until served and need not be reissued.
Source The provisions of this Rule 1075.5 adopted June 1, 1975, effective October 1, 1975, 5 Pa.B. 1824.
Rule 1076. Counterbond.
(a) A counterbond may be filed with the prothonotary by a defendant or intervenor claiming the right to the possession of the property, except a party claiming only a lien thereon, within seventy-two hours after the property has been seized, or within seventy-two hours after service upon the defendant when the taking of possession of the property by the sheriff has been waived by the plaintiff as provided by Rule 1077(a), or within such extension of time as may be granted by the court upon cause shown.
Official Note
A person not a party to the action who claims the right to possession of the property may intervene in the action as a defendant. See Rule 2327. Since intervention will ordinarily require more than seventy-two hours, the applicant for intervention should also apply for an extension of the time within which to file a counterbond if he or she desires to obtain possession of the property after intervention has been allowed.
After the allowance of intervention, the intervenor has the same status as an original party. See Rule 2330(a).
Extensions of time may be needed when there are hearings under Rule 1075.2.
(b) The counterbond shall be in the same amount as the original bond, with security approved by the prothonotary, naming the Commonwealth of Pennsylvania as obligee, conditioned that if the party filing it fails to maintain the right to possession of the property he or she shall pay to the party entitled thereto the value of the property, and all legal costs, fees and damages sustained by reason of the delivery of the seized property to the party filing the counterbond.
Source The provisions of this Rule 1076 adopted June 25, 1946, effective January 1, 1947; amended June 23, 1975, effective October 1, 1975, 5 Pa.B. 1824; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266. Immediately preceding text appears at serial pages (212323) to (212324).
Rule 1077. Disposition of Seized Property. Sheriff’s Return.
(a) When a writ of seizure is issued, the sheriff shall leave the property during the time allowed for the filing of a counterbond in the possession of the defendant or of any other person found in possession of the property if the plaintiff so authorizes the sheriff in writing.
(b) Property taken into possession by the sheriff shall be held by the sheriff until the expiration of the time for filing a counterbond. If the property is not ordered to be impounded and if no counterbond is filed, and if no proceedings are pending and undecided under Rule 1075.1(g) or Rule 1075.2(c), the sheriff shall deliver the property to the plaintiff.
(c) If the property is not ordered to be impounded and the person in possession at the time the sheriff executed the writ of seizure files a counterbond, the property shall be delivered to that person. If that person does not file a counterbond, the property shall be delivered to the party first filing a counterbond.
(d) When perishable property is seized the court may make such order relating to its sale or disposition as shall be proper.
(e) The return of the sheriff to the writ of seizure shall state the disposition made by the sheriff of the property and the name and address of any person found in possession of the property.
Source The provisions of this Rule 1077 adopted June 25, 1946, effective January 1, 1947; amended July 23, 1975, effective October 1, 1975, 5 Pa.B. 1824; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266. Immediately preceding text appears at serial page (212324).
Rule 1078. Exemption of Property. Preliminary Objection.
The objection of immunity or exemption of property from replevin shall be raised by preliminary objection.
Source The provisions of this Rule 1078 adopted June 25, 1946, effective January 1, 1947.
Rule 1079. Impounding Property.
(a) Prior to the delivery of the property by the sheriff to any party, a petition may be filed by any party requesting the court to order the property to be impounded in the custody of the sheriff or such other person as the court may direct.
(b) The court shall order the property to be impounded if
(1) the circumstances are such that the petitioner if found entitled to the property would not be adequately compensated for its loss by the payment of its pecuniary value, and
(2) the petitioner furnishes security for the payment of storage charges and other expenses incidental to impounding of the property.
(c) Upon the final determination of the action, the property shall be delivered to the successful party and the storage charges and other expenses incidental thereto shall be assessed as costs in the action.
Source The provisions of this Rule 1079 adopted June 25, 1946, effective January 1, 1947.
Rule 1079.1. Special Equitable Relief.
The pendency of an action shall not impair the right of any party to separate and independent equitable relief.
Source The provisions of this Rule 1079.1 adopted June 23, 1975, effective October 1, 1975, 5 Pa.B. 1824.
Rule 1080. Objections to Bond.
The court, upon petition filed by any party, and after notice and hearing, may
(1) review the action of the prothonotary in approving or rejecting the security offered;
(2) increase or decrease the amount of any bond or require additional security for cause shown;
(3) strike off a bond improperly filed; or
(4) permit the substitution of a bond and enter an exoneration of a prior bond.
Source The provisions of this Rule 1080 adopted June 25, 1946, effective January 1, 1947.
Rule 1081. Concealment of Property. Examination of Defendant.
The court, at any time during the pendency of the action, upon the petition of the plaintiff setting forth
(1) that the plaintiff is without knowledge of the location of the property and has not been able with reasonable diligence to ascertain its location; or
(2) that the sheriff has been unable to locate the property; or
(3) that the defendant has concealed, removed or transferred the property, may order the defendant to appear and be examined orally under oath as to the whereabouts of the property. The court may enforce its order by attachment. If a writ of seizure has been issued, the court may order the defendant to deliver the property to the sheriff if it is within the county or has been removed from the county for the purpose of preventing its recovery.
Source The provisions of this Rule 1081 adopted June 25, 1946, effective January 1, 1947; amended June 23, 1975, effective October 1, 1975, 5 Pa.B. 1824; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266. Immediately preceding text appears at serial pages (212325) to (212326).
Rule 1082. Counterclaim. Lien. Conditional Verdict.
(a) A claim secured by a lien on the property may be set forth as a counterclaim. No other counterclaim may be asserted.
(b) If any party is found to have a lien upon the property the court may enter a conditional verdict in order to enforce the rights of all parties.
Source The provisions of this Rule 1082 adopted June 25, 1946, effective January 1, 1947; amended June 30, 1965, effective January 1, 1966.
Rule 1083. Judgment in Rem for Property When Defendant is Not Served and Does Not Appear.
If the property has been seized by the sheriff, the court, upon motion of the plaintiff after forty-five days from seizure of the property, may enter judgment in rem for the property against any defendant who has not been served and who has not appeared in the action.
Official Note
If defendant has been served or appeared in the action, a default judgment may be entered for want of an answer.
Source The provisions of this Rule 1083 adopted June 25, 1946, effective January 1, 1947; amended June 23, 1975, effective October 1, 1975, 5 Pa.B. 1824; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266. Immediately preceding text appears at serial page (212326).
Rule 1084. Judgment Before Trial When Defendant is Served or Appears.
(a) If the defendant is served or appears in the action and judgment is entered before trial for the party in possession of the property, the judgment shall determine the party’s right to
(1) retain possession of the property, and
(2) recover special damages, if any.
(b) If judgment is entered before trial for a party not in possession of the property, the judgment shall determine
(1) the party’s right to recover possession of the property,
(2) the money value of the property based upon the value set forth in the plaintiff’s complaint, and
(3) the party’s right to recover special damages, if any.
(c) Special damages shall be assessed by a trial at which the issues shall be limited to the amount of the damages.
Source The provisions of this Rule 1084 adopted June 25, 1946, effective January 1, 1947; amended June 23, 1975, effective October 1, 1975, 5 Pa.B. 1820; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266. Immediately preceding text appears at serial pages (212326) to (212327).
Rule 1085. Judgment After Trial.
(a) If judgment is entered after trial for the party in possession of the property, the judgment shall determine
(1) the party’s right to retain possession of the property, and
(2) the amount of any special damages sustained.
(b) If judgment is entered after trial for a party not in possession of the property, the judgment shall determine
(1) the party’s right to recover possession of the property,
(2) the money value of the property, and
(3) the amount of any special damages sustained.
Source The provisions of this Rule 1085 adopted June 25, 1946, effective January 1, 1947; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266. Immediately preceding text appears at serial page (212327).
Rule 1086. Judgment. Enforcement.
Judgment shall be enforced as provided in Rules 3170 to 3173, inclusive.
Source The provisions of this Rule 1086 adopted June 25, 1946, effective January 1, 1947; amended March 30, 1960, effective November 1, 1960.
Rule 1087. Trial Without Jury.
The trial of actions in replevin by a judge sitting without a jury shall be in accordance with Rule 1038.
Source The provisions of this Rule 1087 adopted June 27, 1969, effective September 1, 1969; amended December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial page (28059).
Rule 1088. Acts of Assembly Not Suspended.
The rules of civil procedure shall not be deemed to suspend or affect:
(1) Section 1 of the Act approved May 7, 1925, P. L. 557, No. 300, 6 P. S. § 11.
Official Note
This Act authorizes determination of a common law lien in an action of replevin.
(2) Section 7 of the Act approved June 10, 1931, P. L. 492, No. 156, 3 P. S. § 635.
Official Note
This Act regulates the straying of cattle.
Source The provisions of this Rule 1088 adopted March 11, 1991, effective July 1, 1991, 21 Pa.B. 1274.
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