582 Order amendment Pa.R.C.P.D.J. nos. 504, 514, 515, 517, 519, 520, 581, 1002, 1008, 1013 and 1081; no. 165; doc. no. 1
Title 246--MINOR COURT CIVIL RULES PART I. GENERAL [246 PA CODE CHS. 500 AND 1000] Order Amendment PA.R.C.P.D.J. Nos. 504, 514, 515, 517, 519, 520, 581, 1002, 1008, 1013 and 1081; No. 165; Doc. No. 1 [26 Pa.B. 1691] Order Per Curiam:
Now, this 28th of March, 1996, the Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings Before District Justices are amended as follows:
1. Rule 504 governing setting the date for hearings and delivery of service is amended to read as follows.
2. Rule 514 governing judgments is amended to read as follows.
3. Rule 515 governing requests for orders for possession is amended to read as follows.
4. Rule 517 governing notations of time of receipt and service of orders for possession is amended to read as follows.
5. Rule 519 governing forcible entry and ejectment is amended to read as follows.
6. Rule 520 governing officer's return is amended to read as follows.
7. Rules 581 and 1081 governing suspension of Acts of Assembly is amended to read as follows.
8. Rule 1002 governing time and method of appeal is amended to read as follows.
9. Rule 1008 governing appeal as supersedeas is amended to read as follows.
10. Rule 1013 governing writ of certiorari as supersedeas is amended as follows.
This Order shall be effective March 29, 1996 and shall be processed in accordance with Rule of Judicial Administration 103(b).
Annex A TITLE 246. MINOR COURT CIVIL RULES PART I. GENERAL CHAPTER 500. ACTIONS FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY Rule 504. Setting the Date for Hearing; Delivery for Service.
The district justice, at the time the complaint is filed, shall:
(1) Set a hearing date which shall be not less than seven (7) or more than [twenty (20)] fifteen (15) days from the date the complaint is filed.
(2) Insert the hearing time and date and the address of [his] the district justice's magisterial district in the complaint form.
(3) Deliver a copy of the complaint form with hearing time and date thereon to the plaintiff or [his] the plaintiff's agent.
* * * * * Official Note: The hearing date in subdivision (1) of this rule was required to be set not less than seven days from the filing of the complaint because of the requirement of [Rule] Pa. R.C.P.D.J. No. 506[C] (B) that service be made at least five days before the hearing. It was thought that the requirement that the complaint be served not more than [twenty] fifteen days from the filing of the complaint should provide ample time to make the type of service required in these cases. However, the complaint may be reinstated upon written request of the plaintiff as in trespass and assumpsit cases. See [Rule] Pa. R.C.P.D.J. No. 341E and the note to [Rule] Pa. R.C.P.D.J. No. 314.
The notice for the defendant set forth in subdivision (4) of this rule varies somewhat from the notice required in trespass and assumpsit actions under [Rule] Pa. R.C.P.D.J. No. 305. There are a number of reasons for this. First, there can be no default judgment in these possessory actions and, secondly, it was thought that cross-complaints of defendants in these cases should be limited to those arising out of the occupancy of the premises.
Amended Oct. 17, 1975, effective in 90 days; June 30, 1982, effective 30 days after July 17, 1982; March 28, 1996, effective March 29, 1996.
Rule 514. Judgment.
A. If it appears at the hearing that the complaint has been proven, the district justice shall enter judgment against the defendant that the real property be delivered up to the plaintiff and shall enter judgment by separate entries:
[(1) for damages, if any, for injury to or unjust detention of the premises and for the amount of rent, if any, which remains due, and
(2) for the costs of the proceeding,
(3) less any amount found due the defendant on any cross complaint filed by him.]
(1) for the amount of rent, if any, which remains due,
(2) for the amount of damages, if any, for unjust detention,
(3) for the physical damages, if any, to the leasehold premises, and
(4) for the costs of the proceeding;
less any amount found due the defendant on any cross-complaint filed by the defendant.
In addition, the district justice shall make an entry identifying the sum of money found by the district justice to constitute the monthly rental for the leasehold premises.
B. A money judgment may be rendered for the defendant on a cross-complaint filed by [him] the defendant if the amount found due thereon exceeds any amount found due the plaintiff on [his] the plaintiff's complaint.
C. Judgment shall be given at the conclusion of the hearing or within [five (5)] three (3) days thereafter and shall be entered [on the original complaint form. The district justice shall promptly give written notice of the judgement] upon the form prescribed for the entry of judgment by the State Court Administrator. Upon the entry of the judgment, copies of the prescribed form shall be given or mailed to all parties, but if any party has an attorney of record named in the complaint form the written notice shall be given to the attorney instead of to the party. Notice of judgment shall [contain advice as to the] inform the parties of the right of the parties to appeal, the time within which the appeal must be taken and that the appeal is to the court of common pleas.
Official Note: The separate entries provided in Subdivision A are made necessary as a result of the rental deposit provisions for appeal or certiorari contained in Pa. R.C.P.D.J. Nos. 1008.B. and 1013.B., as well as the wage attachment provisions contained in Act 5 of 1996.
Subdivision B of this rule makes provision for a money judgment for the defendant if [he] the defendant prevails in a greater amount on [his] the defendant's cross-complaint.
Amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; amended effective Dec. 1, 1983; amended March 27, 1992, effective June 25, 1992; March 28, 1996, effective March 29, 1996.
Rule 515. Requests for Order for Possession.
A. If the district justice has rendered a judgment arising out of a non-residential lease that the real property be delivered up to the plaintiff, the plaintiff may, [on or] after the [sixteenth (16th)] fifteenth (15th) day following the date of the entry of the judgment, file with the district justice a request for an order for possession on a form which shall be prescribed by the State Court Administrator. The request form shall be attached to the order, and shall [including] include a statement of the judgment amount, return and all other matters required by these rules.
B. If the district justice has rendered a judgment arising out of a residential lease that the real property be delivered up to the plaintiff, the plaintiff may after the tenth (10th) day following the date of the entry of the judgment, file with the district justice a request for an order for possession on a form which shall be prescribed by the State Court Administrator. The request form shall be attached to the order, and shall include a statement of the judgment amount, return and all other matters required by these rules.
Official Note: The fifteen days in subdivision A of this rule plus the [fifteen] sixteen days in Rule 519.A. will give the defendant time to obtain a supersedeas within the appeal period. See [Rules] Pa. R.C.P.D.J. Nos. 1002, 1008, 1009 and 1013. The 1995 amendment to § 513 of the Landlord/Tenant Act (Act No. 1995-33) established a ten day period of time for an appeal from a judgment for possession of real estate arising out of a residential lease; therefore, the filing of the request for order of possession in subdivision B. is not permitted until after the period of time for appeal has expired.
Amended June 1, 1971; amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; March 27, 1982, effective June 25, 1992; March 28, 1996, effective March 29, 1996.
Rule 517. Notification of Time of Receipt; Service of Order for Possession.
The [district justice] plaintiff shall serve the order for possession by mailing a copy of it to the defendant by first class mail and shall deliver a copy of it for service to the sheriff of, or any constable in, the county in which the office of the district justice is situated. The officer receiving the order for possession shall note upon the form the time and date that he received it. He shall [forthwith] serve the order within forty-eight (48) hours by handing a copy of it to the defendant or to an adult person in charge for the time being of the premises possession of which is to be delivered or, if none of the above is found, by posting it conspicuously on those premises. The service copy of the order shall contain the following notice:
(1) For nonresidential leases:
If you, and all occupants of this property not authorized by the owner to be present thereon, do not vacate this property within fifteen (15) days after the date of this notice, the law authorizes me to use[, and I must use,] such force as may be necessary to enter upon the property, by the breaking in of any door or otherwise, and to eject you and all unauthorized occupants.
(2) For residential leases:
If you, and all occupants of this property not authorized by the owner to be present thereon, do not vacate this property within ten (10) days after the date of this notice, the law authorizes me to use force as may be necessary to enter upon the property by the breaking in of any door or otherwise, and to eject you and all unauthorized occupants.
The date of the notice shall be the same as the date of the service.
Official Note: Under this rule, service must be made both by first class mail and delivery for service in the manner prescribed. The differing lengths of notices set forth for nonresidential leases and residential leases are made necessary by reason of the 1995 amendment to Section 513 of the Landlord/Tenant Act. See Note following Pa. R.C.P.D.J. No. 515.
Amended October 17, 1975, effective in 90 days; April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; March 27, 1992, effective June 25, 1992; March 28, 1996, effective March 29, 1996.
Rule 519. Forcible Entry and Ejectment.
A. If, on or after the sixteenth (16th) day following the service of the order for possession arising out of a nonresidential lease, the defendant or any unauthorized occupant remains on the real property, the officer executing the order for possession shall use such force as may be necessary to enter upon the property, by the breaking in of any door or otherwise, and to eject the defendant and any unauthorized occupant and shall deliver possession of the real property to the plaintiff or [his] the plaintiff's agent.
B. If, on or after the eleventh (11th) day following the service of the order for possession in cases arising out of a residential lease, the defendant or any unauthorized occupant remains on the real property, the officer executing the order for possession shall use such force as may be necessary to enter upon the property, by the breaking in of any door or otherwise, and to eject the defendant and any unauthorized occupant and shall deliver possession of the real property to the plaintiff or the plaintiff's agent.
C. No order for possession shall be executed on or after sixty (60) days following its issuance. An order for possession shall be reinstated for one (1) additional sixty (60) day period upon written request for order for possession to the district justice. (See [Rule] Pa. R.C.P.D.J. No. 515).
Official Note: The differing lengths of notices set for nonresidential leases and residential leases are made necessary by reason of the 1995 amendment to Section 513 of the Landlord/Tenant Act. See Note following Pa. R.C.P.D.J. No. 515.
Subdivison [B] C of this Rule will permit the reinstatement, upon written request of the plaintiff of an order for possession which had not been executed on or after sixty (60) days following its issuance. The written request for reinstatement may be in any form and may consist of a notation on the permanent copy of the order for possession form ''Reinstatement of Order Requested,'' subscribed by the plaintiff. The district justice shall mark all copies of the reinstated order for possession ''Order Reinstated. Request for reinstatement filed on ____ (Date).'' If it is necessary to use a new form or new form sets for the reinstated order for possession, the reinstated order for possession, except for service portions thereof, shall be an exact copy of the original order for possession, although signatures may be typed with the mark ''/s/'' indicating an actual signature. Since a reinstated order for possession is merely a continuation of the original action, there is no filing fee for reinstating an order for possession.
Amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; March 27, 1992, effective June 25, 1992; March 28, 1996, effective March 29, 1996.
Rule 520. Officer's Return.
[The] Within five (5) business days following delivery of possession to the plaintiff or satisfaction by payment of rent in arrears and costs, the officer executing the order for possession shall make a return on the order for possession form. The return shall show:
(1) The date, time, place and manner of service of the order.
(2) If the order was satisfied by the payment of rent in arrears and costs by or on behalf of the defendant, the amount of that payment and its distribution.
(3) The time and date of any forcible entry and ejectment, or that no entry for the purposes of ejectment had to be made.
(4) [His] The officer's expenses and fees.
Amended July 30, 1982, effective 30 days after July 17, 1982; March 28, 1996, effective March 29, 1996.
Rule 581. Acts of Assembly Suspended.
All Acts of Assembly or parts thereof inconsistent with the rule governing practice and procedure in actions before district justices for the recovery of possession of real property are suspended to the extent of such inconsistency.
THE FOLLOWING ACTS OF ASSEMBLY ARE SUSPENDED INSOFAR AS THEY ARE INCONSISTENT WITH THE FOREGOING RULES:
(1) Act of July 6, 1995, amending the Act of April 6, 1951, (P. L. 69, No. 20), known as Act 33 of 1995;
(2) Act of July 6, 1995, amending the Act of April 6, 1951, (P. L. 69, No. 20), known as Act 36 of 1995.
Amended June 30, 1982, effective 30 days after July 17, 1982; amended March 28, 1995, effective March 29, 1996.
CHAPTER 1000. APPEALS. APPEAL Rule 1002. Time and Method of Appeal
A. A party aggrieved by a judgment for money, or a judgment affecting the delivery of possession of real property arising out of a nonresidential lease, may appeal therefrom within thirty (30) days after the date of the entry of the judgment by filing with the prothonotary of the court of common pleas a notice of appeal on a form which shall be prescribed by the State Court Administrator together with a copy of the Notice of Judgment issued by the district justice. The Prothonotary shall not accept an appeal from an aggrieved party which is presented for filing more than thirty (30) days after the date of judgment without leave of Court and upon good cause shown.
B. A party aggrieved by a judgment for the delivery of possession of real property arising out of a residential lease may appeal therefrom within ten (10) days after the date of the entry of judgment by filing with the prothonotary of the court of common pleas a notice of appeal on a form which shall be prescribed by the State Court Administrator, together with a copy of the Notice of Judgment issued by the district justice. The prothonotary shall not accept an appeal from an aggrieved party which is presented for filing more than ten (10) days after the date of judgment without leave of Court and upon good cause shown.
Official Note: The thirty day limitation in subdivision A of this rule is the same as that found in the Judicial Code, § 5571(b), 42 Pa.C.S. § 5571(b), as amended by § 10 (67) of the Judiciary Act Repealer Act, Act of April 28, 1978, P. L. 202, No. 53. The ten day limitation in subdivision B of this rule is designed to implement the time for appeal set forth in § 513 of the Landlord and Tenant Act of 1951 (Act No. 1995-33, approved July 6, 1955). The two subdivisions of this rule are intended to clarify that where the right of possession of residential real estate is at issue, the shorter, ten day period for appeal applies; where the judgment from which the appeal is taken is a judgment only for money, or a judgment affecting a nonresidential lease, under these rules, the thirty day period of time for appeal applies.
The method of appeal is by filing with the prothonotary a ''notice of appeal'' on a form to be prescribed by the State Court Administrator. Copies of this same form will be used for service under [Rule] Pa. R.C.P.D.J. No. 1005. This permits use of the same form for filing and service. No useful purpose would be served by having two forms, one called an ''appeal'' for filing and another called a ''notice of appeal'' for service. [No transcript of the record of the proceedings before the district justice is to be filed on appeal, for the proceedings on appeal are de novo.]
The 1990 amendment is intended to encourage the complete utilization of the hearing process available before the district justice.
A copy of the Notice of Judgment must be filed since it will contain the separate entries required by Pa.R.A.P.D.J. No. 514.A and will be needed by the Prothonotary.
Adopted June 1, 1971. Amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; March 27, 1992, effective June 25, 1992; March 28, 1996, effective March 29, 1996.
Rule 1008. Appeal as Supersedeas.
* * * * * B. When an appeal is from a judgment for the possession of real property, receipt by the district justice of the copy of the notice of appeal shall operate as a supersedeas only if the appellant [files with the prothonotary a bond, with surety approved by the prothonotary, conditioned for the payment of any judgment for rent and for damages growing out of occupancy of or injury to the premises rendered against the appellant on appeal. In lieu of such a bond, the court of common pleas may, by local rule applicable to certain classes of cases, permit rental payments becoming due during the court of common pleas proceedings to be deposited in an escrow account in a bank or trust company approved by the court, such deposits to be applied to the payment of any judgment of the kind mentioned above rendered on appeal. If the appellant files such a bond or is permitted to deposit rental payments in escrow in lieu of a bond] at the time of filing the appeal, deposits with the prothonotary a sum of money (or a bond, with surety approved by the prothonotary) equal to the lesser of three (3) months' rent or the rent actually in arrears on the date of the filing of appeal, based upon the district justice's order of judgment, and, thereafter, deposits cash or bond with the prothonotary in a sum equal to the monthly rent which becomes due during the period of time the proceedings upon appeal are pending in the court of common pleas, such additional deposits to be made within thirty (30) days following the date of the appeal, and each successive thirty (30) day period thereafter.
Upon application by the landlord, the court shall release appropriate sums from the escrow account on a continuing basis while the appeal is pending to compensate the landlord for the tenant's actual possession and use of the premises during the pendency of the appeal.
In the event the appellant fails to deposit the sums of money, or bond, required by this rule within ten (10) days following the date when such deposits are due, the prothonotary, upon praecipe filed by the appellee, shall terminate the supersedeas Notice of the termination of the supersedeas shall be forwarded via first class mail to all parties, but if any party has an attorney of record named in the complaint form or other filings with the court, notice shall be given to the attorney instead of to the party. Notice to a party that does not have an attorney of record is sufficient if mailed to the party's last known address of record.
Where the deposit of money or bond is made pursuant to this Rule at the time of filing the appeal, the prothonotary shall make upon the notice of appeal and its copies a notation that it will operate as a supersedeas when received by the district justice.
C. If an appeal is stricken or voluntarily terminated, any supersedeas based on it shall terminate. The prothonotary shall pay the deposits of rental to the party who sought possession of the real property.
Official Note: Subdivision A provides for an automatic supersedeas in appeals from trespass and assumpsit actions upon receipt by the district justice of a copy of the notice of appeal. It did not seem worthwhile to require bond or other security for costs as a condition for supersedeas in trespass and assumpsit appeals.
[Subdivision B, however, does require a bond, or an escrow deposit of rent if permitted by local rule, as a condition for supersedeas with respect to appeals from judgments for the possession of real property. The provision for local rules permitting an escrow deposit of rent in certain cases in intended to authorize local machinery for the handling of special categories of landlord and tenant problems. See the statute citedin Rule 1082(1).] Subdivision B, however, does require the deposit of money or approved bond as a condition for supersedeas where the appeal is from a judgment for the possession of real property. This provision substantially incorporates the purpose and intent of the Legislative provision contained in Act No. 1995-33, approved July 6, 1995. The 1996 amendment provides a uniform, Statewide procedure (except Philadelphia County: See: Philadelphia Municipal Court Rules of Civil Procedure), and establishes a mechanism for the application of a supersedeas or the termination thereof without the need for any local court rule or order.
The request for termination of the supersedeas, upon the praecipe filed with the prothonotary, may simply state: ''Please terminate the supersedeas in the written action for failure of the appellant to pay monthly rental as required by Pa. R.C.P.D.J. No. 1008 for a period in excess of thirty (30) days'' and will be signed by appellee. The prothonotary will then note upon the praecipe: ''Upon confirmation of failure of the appellant to deposit the monthly rent for more than thirty (30) days, the supersedeas is terminated,'' and the prothonotary will sign and clock the praecipe. A copy of the praecipe may thereupon be displayed to the district justice who rendered the judgment, and a request for issuance of an order for possession under Pa. R.A.P.D.J. No. 515 may be made.
The deposit of rent required hereunder is intended to apply in all cases, irrespective of the reasons which caused the filing of the complaint before the district justice in the first instance. Disposition of the monthly rental deposits will be made by the court of common pleas following its de novo hearing of the matter on appeal.
The money judgment portion of a landlord and tenant judgment (See [Rule] Pa. R.C.P.D.J. Nos. 514 and 521) would be governed by subdivision A.
Adopted June 1, 1971. Amended April 25, 1979, effective in 30 days; June 30, 1982, effective in 30 days after July 17, 1982; March 28, 1996, effective March 29, 1996.
CERTIORARI Rule 1013. Writ of Certiorari as Supersedeas.
A. Receipt of the writ of certiorari by the district justice to whom it was directed shall operate as a supersedeas, except as provided in subdivision B of this rule.
B. When the writ of certiorari involves a judgment for the possession of real property, receipt of the writ by the district justice shall operate as a supersedeas only if the party obtaining the writ [files with the prothonotary a bond, with surety approved by the prothonotary, conditioned for the payment of rent accruing during the court of common pleas proceedings in the event the writ is dismissed.] at the time of filing the writ, deposits with the prothonotary a sum of money (or a bond, with surety approved by the prothonotary) equal to the lesser of three (3) months' rent or the rent actually in arrears on the date of the filing of appeal, as determined by the district justice, and, thereafter, deposits cash or bond with the prothonotary in a sum equal to the monthly rent which becomes due during the period of time the proceedings upon writ are pending in the court of common pleas, such additional deposits to be made within thirty (30) days following the date of the filing of the writ, and each successive thirty (30) day period thereafter.
Upon application by the landlord, the court shall release appropriate sums from the escrow account on a continuing basis while the writ is pending and while the ensuing proceeding is pending (in the event the writ is granted) to compensate the landlord for the tenant's actual possession and use of the premises during the pendency of the writ and during the pendency of ensuing proceeding (in the event the writ is granted).
In the event that the party filing the writ fails to deposit the sums of money, or bond, required by this rule within (10) days following the date when such deposits are due, the prothonotary, upon praecipe filed by the party that did not file the writ, shall terminate the supersedeas. Notice of the termination of the supersedeas shall be forwarded via first class mail to all parties, but if any party has an attorney of record named in the complaint form or other filings with the court, notice shall be given to the attorney instead of to the party. Notice to a party who or which does not have an attorney of record is sufficient if mailed to the party's last known address of record.
[If the party obtaining the writ files such a bond,] Where the deposit of money or bond is made pursuant to this Rule at the time of the filing of the writ, the prothonotary shall make upon the writ and its copies a notation that the writ will operate as a supersedeas when received by the district justice.
C. If a writ of certiorari is stricken, dismissed or discontinued, any supersedeas based on it shall terminate. The prothonotary shall pay the deposits of rental to the party who sought possession of the real property.
Official Note: As in appeals, (See [Rule] Pa. R.C.P.D.J. No. 1008), certiorari operates as an automatic supersedeas in trespass and assumpsit matters when the writ is received by the district justice. If the writ involves a judgment for the possession of real property, however, it will operate as a supersedeas upon receipt by the district justice only if money is paid or a bond is filed conditioned as stated in the rule. [Since no decision is actually made in certiorari proceedings as to whether rent is or is not legally payable and no judgment for rent is rendered (see Rules 1009 and 1014), the conditions of the bond differ from those in Rule 1008B and no provision is made for permitting an escrow deposit of rent in lieu of a bond.] This Rule has been amended to require a payment equal to the lesser of three months rent or the rent actually in arrears in order for the writ involving a judgment for the possession of real property to act as a supersedeas to ensure consistency between this Rule and Pa. R.C.P.D.J. No. 1008. (Appeal as Supersedeas).
The request for termination of the supersedeas, upon the praecipe filed with the prothonotary, may simply state: ''Please terminate the supersedeas in the within action for failure of the party filing the writ to pay monthly rental as required by Pa.R.C.P.D.J. No. 1013 for a period in excess of thirty (30) days'' and will be signed by landlord. The prothonotary will then note upon the praecipe: ''Upon confirmation of failure of the party filing the writ to deposit the monthly rent for more than thirty (30) days, the supersedeas is terminated,'' and the prothonotary will sign and clock the praecipe. A copy of the praecipe may thereupon be displayed to the district justice who rendered the judgment, and a request for issuance of an order for possession under Pa.R.C.P.D.J. No. 515 may be made.
The money judgment portion of a landlord and tenant judgment (see [Rule] Pa. R.C.P.D.J. Nos. 514 and 521) would be governed by subdivision A of this rule.
Adopted June 1, 1971. Amended April 25, 1979, effective in 30 days; June 30, 1982, effective in 30 days after July 17, 1982; March 28, 1996, effective March 29, 1996.
STATEMENT OF OBJECTION Rule 1081. Acts of Assembly Suspended.
All Acts of Assembly or parts thereof inconsistent with the rules governing appellate proceedings with respect to judgments and other decisions of district justices in civil actions are suspended to the extent of such inconsistency.
THE FOLLOWING ACTS OF ASSEMBLY ARE SUSPENDED INSOFAR AS THEY ARE INCONSISTENT WITH THE FOREGOING RULES:
(1) Act of July 6, 1995, amending the Act of April 6, 1951, (P. L. 69, No. 20), known as Act 33 of 1995;
(2) Act of July 6, 1995, amending the Act of April 6, 1951, (P. L. 69, No. 20), known as Act 36 of 1995.
Adopted June 1, 1971. Amended April 25, 1979, effective in 30 days; June 30, 1982, effective in 30 days after July 17, 1982; March 28, 1996, effective March 29, 1996.
[Pa.B. Doc. No. 96-582. Filed for public inspection April 12, 1996, 9:00 a.m.]
