2098 Order amending Rules 1201--1211 of the rules of conduct, office standards and civil procedure for district justices; no. 130; magisterial doc. no. 1; book no. 2
Title 246--MINOR
COURT CIVIL RULESPART I. GENERAL [246 PA. CODE CH. 1200] Order Amending Rules 1201--1211 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices; No. 130; Magisterial Doc. No. 1; Book No. 2 [31 Pa.B. 6385] The Minor Court Rules Committee has prepared a Final Report explaining the amendments to Rules 1201, 1202, 1203, 1204, 1205, 1206, 1207, 1208, 1209, 1210, and 1211 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices, effective February 1, 2002. These changes make substantive amendments and clarifications as well as related technical or ''housekeeping'' changes to the rules relating to emergency relief under the Protection From Abuse Act. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 2nd day of November, 2001, upon the recommendation of the Minor Court Rules Committee; the proposal having been published before adoption at 29 Pa.B. 6331 (December 18, 1999), and a Final Report to be published with this Order:
It Is Ordered, pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 1201, 1202, 1203, 1204, 1205, 1206, 1207, 1208, 1209, 1210, and 1211 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices are amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective February 1, 2002.
Annex A TITLE 246. MINOR COURT CIVIL RULES PART I. GENERAL CHAPTER 1200. EMERGENCY RELIEF UNDER THE PROTECTION FROM ABUSE ACT Rule 1201. Applicability.
The rules in this chapter* apply to the exercise by a hearing officer of jurisdiction under Section 6110 [, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110, to grant emergency relief from abuse.
* Rules in the 1200 series.
Official Note: See the Protection From Abuse Act set forth in the Domestic Relations Code, 23 Pa.C.S.[A., Section] § 6101 et seq.
Adopted effective March 24, 1977. Amended June 30, 1982, effective 30 days after July 17, 1982; amended effective March 27, 1992; amended November 2, 2001, effective February 1, 2002.
[Explanatory Comment--1992]
(DELETE ENTIRELY)Rule 1202. Definitions.
As used in these rules:
(1) Abuse, adults and family or household members shall have the meanings given to those words in Section 6102[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6102.
(2) Court means the court of common pleas of the judicial district in which the office of the [district justice] hearing officer taking action under these rules is located.
* * * * * [Official Note: The definition of ''court'' varies somewhat from the definition in Section 6102, Title 23 of the Protection From Abuse Act, which merely defines ''court'' as ''the court of common pleas'', since under 6110(c), orders issued by the hearing officer must be certified to ''the court'' and it was thought necessary to define more particularly the court of common pleas to which the order will be certified.]
Adopted effective March 24, 1977. Amended June 30, 1982, effective 30 days after July 17, 1982; amended effective March 27, 1992; amended and Note deleted November 2, 2001, effective February 1, 2002.
Rule 1203. Limitation on jurisdiction.
The hearing officer may grant relief under these rules only when the court is unavailable to do so pursuant to the provisions of Section 6110[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110, or local rule of court.
Official Note: The limitation in this rule is taken from Section 6110[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110.
* * * * * Adopted effective March 24, 1977. Amended June 30, 1982, effective 30 days after July 17, 1982; amended effective March 27, 1992; amended November 2, 2001, effective February 1, 2002.
Rule 1204. Venue.
A. [A] Except as provided in subdivision B, a proceeding for emergency relief [shall] may be brought in [the] a magisterial district within the county in which [the abuse for which relief is requested occurred]
(1) the plaintiff resides, either temporarily or permanently, or
(2) the abuse occurred.
B. If the relief sought includes possession of the residence or household to the exclusion of the defendant, the action may be brought only in a magisterial district within the county in which the residence or household is located.
Official Note: [In view of the nature of the proceedings and the type of relief that may be granted, it was thought best to limit venue to the magisterial district in which the abuse occurred.] This rule is consistent with Pa.R.C.P. No. 1901.1 and provides the necessary flexibility to a plaintiff who may have to flee the county of permanent residence to escape further abuse. This rule is intended to provide maximum flexibility to a plaintiff to use a convenient forum to seek an emergency protective order. However, where practicable, plaintiffs should give preference to filing in the magisterial district in which the plaintiff resides, either temporarily or permanently, or in the magisterial district in which the abuse occurred. A proceeding is considered to have been brought in a magisterial district even if it is before a hearing officer serving temporarily in that district, or before a hearing officer who has been invested by local rule with temporary county-wide jurisdiction.
Adopted effective March 24, 1977. Amended June 30, 1982, effective 30 days after July 17, 1982; amended effective March 27, 1992; amended November 2, 2001, effective February 1, 2002.
Rule 1205. Persons who may seek emergency relief.
[A person] An adult or an emancipated minor may seek emergency relief from abuse for himself or herself. Also, any parent, [or] adult household member or guardian ad litem may seek emergency relief from abuse on behalf of minor children. In addition, a guardian of the person of an [incompetent adult] incapacitated person as defined in 20 Pa.C.S. § 5501 may seek emergency relief on behalf of the [incompetent adult] incapacitated person.
Official Note: This rule [was taken] is derived from Section 6106[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6106.
Adopted effective March 24, 1977. Amended effective March 27, 1992; amended November 2, 2001, effective February 1, 2002.
Rule 1206. Commencement of proceedings.
* * * * * B. Upon [the filing of a petition] issuance of an emergency order, the hearing officer shall [advise] provide the plaintiff with instructions regarding the commencement of proceedings in the court of common pleas and regarding the procedures for initiating a contempt charge should the defendant violate the emergency order. The hearing officer shall also advise the plaintiff of the existence of programs for victims of domestic violence in the county or in nearby counties and inform the plaintiff of the availability of legal assistance without cost if the plaintiff is unable to pay therefor.
C. The petition shall be filed and service shall be made without prepayment of costs.
Official Note: It was thought desirable to require the petition to be on a simple, prescribed form since this is an emergency proceeding and the plaintiff is apt to be in an excited state at the time of the filing. Subdivision B is added to assure compliance with the requirement of Section 6110(d)[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110(d). Practice varies among the judicial districts as to what procedures the plaintiff must follow to continue in effect a protection order in the court of common pleas upon the certification of an emergency protection order to the court of common pleas. The hearing officer should provide clear instructions to the plaintiff as to what must be done to continue in effect the protection order in the court of common pleas. See Rule 1210 and Note and Rule 1211 and Note. Subdivision C is derived from Section 6106(b) of the Act, 23 Pa.C.S. § 6106(b) and reflects the practice when a temporary order is issued at the common pleas level.
Adopted effective March 24, 1977. Amended June 30, 1982, effective 30 days after July 17, 1982; amended effective March 27, 1992; amended November 2, 2001, effective February 1, 2002.
Rule 1207. Hearing.
* * * * * Official Note: Under Section 6110(a)[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110(a), the hearing is ex parte, and under Section 6110(b)[, Title 23] of the Act, 23 Pa.C.S. § 6110(b), the emergency orders issued by the hearing officer as a result of the hearing are of short duration. Accordingly, there are no provisions in these rules for notice to the defendant prior to hearing. The hearing need not be held at the office of the hearing officer. The last phrase was added to insure compliance with Section 6112[, Title 23] of the Act, 23 Pa.C.S. § 6112.
Adopted effective March 24, 1977. Amended June 30, 1982, effective 30 days after July 17, 1982; amended effective March 27, 1992; amended November 2, 2001, effective February 1, 2002.
Rule 1208. Findings and protection orders.
A. If the hearing officer, upon good cause shown, finds it necessary to protect the plaintiff or minor children from abuse, he may grant relief in accordance with Section [6108(a)] 6110(a)[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110(a), and make any protection orders necessary to effectuate that relief. Immediate and present danger of abuse to the plaintiff or minor children shall constitute good cause.
* * * * * Official Note: Subdivision A of this rule is [taken] derived from Section 6110(a)[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110(a), which permits the hearing officer to grant limited relief in accordance with Section 6108(a)(1), (2) and (6) or (1) and (6) of the Act (relating to relief).
Adopted effective March 24, 1977. Amended June 30, 1982, effective 30 days after July 17, 1982; amended effective March 27, 1992; amended November 2, 2001, effective February 1, 2002.
Rule 1209. [Execution] Service and execution of emergency protection orders.
The hearing officer shall provide to the plaintiff a copy of a protection order made under Rule 1208. The hearing officer or, when necessary, the plaintiff shall immediately deliver a service copy of any protection order made under Rule 1208 to a police officer, police department, sheriff or certified constable for service upon the defendant and execution. [If the defendant is present at the time the protection order is executed, the executing officer shall serve a copy of the petition form containing the order upon the defendant. Otherwise,] After making reasonable effort, if the executing officer is unable to serve the protection order upon the defendant in a timely fashion, the executing officer shall leave [the] a service copy of the petition form containing the order with the [plaintiff] police department with jurisdiction over the area in which the plaintiff resides for service upon the defendant, and shall advise such police department that the order could not be served.
Official Note: The hearing officer should provide the plaintiff with at least one copy of a protection order, but more than one copy may be needed. For example, the plaintiff may wish to serve the order upon multiple police departments when the plaintiff lives and works in different police jurisdictions, etc. If it is necessary for the plaintiff to deliver the protection order to the executing officer, the hearing officer should make sure that the plaintiff fully understands the process and what must be done to have the order served upon the defendant. The hearing officer should make every effort to have the protection order served by a law enforcement officer in a timely fashion. The Rule requires that if the executing officer is unable to serve the protection order in a timely fashion, the executing officer shall leave a service copy of the order with the police department with jurisdiction over the area in which the plaintiff resides. This was thought advisable so that the local police would have a service copy in case they would be called to the plaintiff's residence should the defendant return there. Due to the emergency nature of these protection orders and the fact that to be meaningful they must be served and executed at night or on a weekend, the hearing officer should have the authority to use police officers as well as sheriffs and certified constables to serve and execute these orders. [See] See Section 6109(a)[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6109(a).
Service shall be made without prepayment of costs. See Rule 1206(C).
Service of protection orders upon the defendant at the time of execution may not be possible under some circumstances.
Adopted effective March 24, 1977. Amended June 30, 1982, effective 30 days after July 17, 1982; amended effective March 27, 1992; amended November 2, 2001, effective February 1, 2002.
Rule 1210. Duration of emergency protection orders.
Protection orders issued under Rule 1208 shall expire [as of the resumption of business of the court at the beginning of the next business day] at the end of the next business day the court deems itself available.
Official Note: This rule is [taken] derived from Section 6110(b)[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110(b). Practice varies among the judicial districts as to what procedures the plaintiff must follow to continue in effect a protection order in the court of common pleas upon the certification of an emergency protection order to the court of common pleas. The hearing officer should provide clear instructions to the plaintiff as to what must be done to continue in effect the protection order in the court of common pleas. See Rule 1206 and Note and Rule 1211 and Note.
Adopted effective March 24, 1977. Amended effective March 27, 1992; amended November 2, 2001, effective February 1, 2002.
Rule 1211. Certification to court of common pleas.
A. Any protection order issued under Rule 1208, together with any documentation in support thereof, shall immediately be certified to the court of common pleas by the hearing officer.
B. Certification under subdivision A of this Rule shall be accomplished by sending to the prothonotary of the court by first class mail or messenger a certified [true] copy of the petition form containing the order, with any supporting documentation attached.
Official Note: Certification under subdivision A of this rule is required by Section 6110(c)[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110(c). This rule is also consistent with Pa.R.C.P. No. 1901.3(b) which permits commencement of an action by filing with the prothonotary a certified copy of an emergency protection order. However, practice varies among the judicial districts as to how the protection order is continued in effect after it is certified to the court of common pleas. For example, some judicial districts may require that the plaintiff appear in person to continue the action in the court of common pleas. Others may automatically commence an action in the court of common pleas upon receipt of a certified copy of the emergency order from the hearing officer. See Rule 1206 and Note and Rule 1210 and Note.
[At the request of the plaintiff, the hearing officer may appoint] Depending on local practice, the plaintiff or the plaintiff's representative [to] may act as a messenger under subdivision B of this rule.
Adopted effective March 24, 1977. Amended June 30, 1982, effective 30 days after July 17, 1982; amended effective March 27, 1992; amended November 2, 2001, effective February 1, 2002.
FINAL REPORT1 Amendments to Rules 1201 through 1211 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices EMERGENCY RELIEF UNDER THE PROTECTION FROM ABUSE ACT On November 2, 2001, effective February 1, 2002, upon the recommendation of the Minor Court Rules Committee, the Supreme Court of Pennsylvania amended Rules 1201 through 1211 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices.
I. Background
In response to an inquiry regarding an inconsistency between the Protection From Abuse Act, 23 Pa.C.S. § 6101 et seq., and the Rules of Civil Procedure Governing Actions and Proceedings Before District Justices, the Minor Court Rules Committee undertook a review of Chapter 1200 of the Rules, relating to Emergency Relief Under the Protection From Abuse Act. The Committee recommended amendments to these rules to make both substantive changes and clarifications and related technical or ''housekeeping'' amendments to bring the rules into conformity with the Protection From Abuse Act and the correlative Rules of Civil Procedure.
II. Discussion Of Rule Changes
A. Substantive Changes--Rules 1204, 1206, 1208, 1209, 1210, and 1211
1. Rule 1204--Venue
After review of the Act and the Rules of Civil Procedure, the Committee recommended that Rule 1204 relating to venue be amended to make it more closely conform with Pa.R.C.P. No. 1901.1. Specifically, the Committee determined that the options for appropriate venue in emergency PFA actions should be expanded to provide the necessary flexibility to a plaintiff who may have to flee the county of permanent residence to escape further abuse. As noted in the revised Comment, this rule is intended to provide maximum flexibility to a plaintiff to use a convenient forum to seek an emergency protective order. However, where practicable, the Committee believes that plaintiffs should give preference to filing in the magisterial district in which the plaintiff resides, either temporarily or permanently, or in the magisterial district in which the abuse occurred.
2. Rule 1206--Commencement of Proceedings
After review of the Protection From Abuse Act, the Committee recommended that Rule 1206 be amended to more closely conform with the requirements and language of Section 6110(d) of the Act, 23 Pa.C.S. § 6110(d). Section 6110(d) requires that the hearing officer provide specific information to the plaintiff that formerly was not expressly stated in Rule 1206. Also, with regard to commencement of proceedings in the court of common pleas, the Committee felt it important to recognize differences in local practice. As such, the Committee recommended that Rule 1206 be amended and its Note revised to make clear that hearing officers should explain the procedures for continuing actions in the court of common pleas. This concern is also reflected in the amendments to Rules 1210 and 1211.
Further, the Committee recommended a new subsection C, to require that petitions for emergency protection orders be filed and service be made without prepayment of costs. This subsection is derived from Section 6106(b) of the Act, 23 Pa.C.S. § 6106(b), and reflects the practice when a temporary order is issued in the court of common pleas. In making this recommendation, the Committee recognized that petitioners for emergency protection orders are often in a crisis situation and are unable or unprepared to pay the associated costs at the time an order is sought. The Committee anticipates that the court of common pleas can make a determination regarding the payment of costs of the emergency order after the order is certified to the court of common pleas pursuant to Rule 1211.
3. Rule 1208--Findings and Protection Orders
After review of the Protection From Abuse Act, the Committee recommended that Rule 1208 be amended to more closely conform with the language of Section 6110(a) of the Act, 23 Pa.C.S. § 6110(a). The Committee noted that the authority for hearing officers to grant emergency relief is actually found in Section 6110(a) of the Act, not Section 6108(a) of the Act as was suggested by the former language of the Rule. The Committee felt that the reference to the specific forms of relief that can be granted by hearing officers (that is, relief under Sections 6108(a)(1), (2), and (6) or (1) and (6)) more appropriately belongs in the Note to Rule 1208.
4. Rule 1209--Service and Execution of Emergency Protection Orders
After review of the Act and considerable discussion, the Committee recommended that substantial changes be made to Rule 1209 related to service. First, the amended rule specifies that certified constables may be used to make service to conform with Section 2942(a) of the Judicial Code, 42 Pa.C.S. § 2942(a), relating to certification of constables.
Secondly, the Committee struggled with the very practical and common problem of the inability of an executing officer to make service upon the defendant. This is common where an incident of abuse occurs, the police are called, and the abuser flees to avoid arrest or service of process. It is also common, however, for an abuser to return later, placing the victim in danger of further abuse. The former language of Rule 1209 required that when an executing officer is unable to make service, the officer should leave the service copy of the order with the plaintiff for service upon the defendant. The Committee felt that a plaintiff making service upon an abusive defendant was at best ill advised and at worst extremely dangerous. The Committee desired to remove from the Rule any suggestion that a plaintiff should be required to make service upon a defendant. Accordingly, the amended Rule requires that the executing officer, after making reasonable effort to serve the order, leave a service copy of the order with the police department having jurisdiction over the area in which the plaintiff resides. Further, the executing officer is required to advise the police department that the order could not be served. By requiring this, the Committee hopes that in cases where the defendant could not be served by the executing officer and the defendant returns to the plaintiff's residence, the plaintiff could call the police who would respond and serve the order upon the defendant.
Also, the Committee felt it necessary to revise the Note to Rule 1209 to make clear that a plaintiff may need more than one copy of a protection order where a plaintiff may want to provide copies of the order to more than one police department. This is common, for example, where a plaintiff lives and works in different police jurisdictions.
Finally, the Committee recommended that a statement be added to the Note to Rule 1209 as a cross reference to Rule 1206 making it absolutely clear that service is to be made without prepayment of costs.
5. Rule 1210--Duration of Emergency Protection Orders
After review of the Protection From Abuse Act, the Committee recognized the need for a simple yet important change to Rule 1210 to bring the Rule into conformity with Section 6110(b) of the Act, 23 Pa.C.S. § 6110(b). Specifically, the amended Rule makes clear that emergency protection orders expire at the end of the next business day that the court of common pleas deems itself available. Also, the Committee recommended that the Note to Rule 1210 be amended to include an important cross reference to Rules 1206 and 1211 relating to commencement of actions in the court of common pleas.
6. Rule 1211--Certification to Court of Common Pleas
After considerable discussion, it became clear to the Committee that practice varies greatly among the judicial districts as to how emergency protection orders are certified to the court of common pleas and how proceedings in the court of common pleas are commenced upon expiration of emergency protection orders. For example, some judicial districts may require that the plaintiff appear in person to continue an action in the court of common pleas. Others may automatically commence an action in the court of common pleas upon receipt of the certified copy of the emergency order from the hearing officer. The Committee felt it important, therefore, to revise the Note to Rule 1211 to address these differences in local procedure with regard to commencement of actions in the court of common pleas. The Committee would anticipate that the courts of common pleas would provide clear instructions to the district justices or hearing officers in the judicial district as to the local procedures for continuing an action in the court of common pleas.
B. Technical or ''Housekeeping'' Amendments--Rules 1201, 1202, 1203, 1205, and 1207
The Committee felt it necessary to propose minor technical or ''housekeeping'' amendments to Rules 1201, 1202, 1203, 1205, and 1207 to use consistent and proper citation form and to correct minor references to statutory provisions, including the Protection From Abuse Act. The Committee also felt it appropriate to delete the outdated and unnecessary ''Explanatory Comment--1992'' following Rule 1201 and the outdated and unnecessary Note to Rule 1202.
[Pa.B. Doc. No. 01-2098. Filed for public inspection November 21, 2001, 9:00 a.m.] _______
