693 Proposed amendments governing pleadings in appeals from district justice courts; proposed recommendation no. 160

Title 231--RULES OF
CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CH. 1000]

Proposed Amendments Governing Pleadings in Appeals from District Justice Courts; Proposed Recommendation No. 160

[30 Pa.B. 2126]

   The Civil Procedural Rules Committee proposes the amendment of the Rules of Civil Procedure by the adding new Rule 1042.1 governing pleadings in appeals from district justice courts. The recommendation is being published to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   All communications in reference to the proposed recommendation should be sent not later than May 31, 2000 to:

Harold K. Don, Jr., Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055

Or E-Mail to
[e-mail]

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules nor will it be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 1000.  ACTIONS AT LAW

Subchapter B.  ACTION IN TRESPASS

Rule 1042.1.  Appeals from District Justice Courts. Pleading.

   (a)  Except as otherwise provided by this rule, the pleadings in an action appealed to the court of common pleas from a district justice court shall be as prescribed by the rules of civil procedure governing a civil action.

   (b)  If the plaintiff in a district justice court has appealed the judgment in the action, the pleadings in the court of common pleas shall be in the form prescribed by the rules of civil procedure.

   (c)(1)  A defendant in the district justice court who has appealed the judgment in the action shall file with the prothonotary a copy of the complaint filed in the district justice court, either with the notice of appeal required by Pa.R.C.P.D.J. 1002 or within ten days after filing the notice of appeal. The action shall thereafter proceed as provided by paragraph (2) or paragraph (3).

   (2)  Within twenty days of filing of the notice of appeal, the defendant shall file an answer to the complaint, which may also include new matter, a counterclaim or both. A reply to the answer is not required. The action shall proceed in the court of common pleas upon the complaint and answer so filed except that

   (i)  a defendant who has filed a counterclaim in the action in the court of common pleas may seek an order to compel the plaintiff to file an answer to the counterclaim, and

   (ii)  a defendant who appeared at the trial in the district justice court may file preliminary objections, in lieu of an answer, within twenty days after filing the notice of appeal.

   Official Note: A defendant appeared at the trial in the district justice court if the defendant or an attorney who entered an appearance on behalf of the defendant attended the hearing.

   (3)  Within twenty days of the filing of the notice of appeal by the defendant, the plaintiff may file a complaint in the form required by the rules governing a civil action. If the plaintiff files such a complaint, all subsequent pleadings shall be in the form prescribed by the rules governing a civil action.

   Official Note: Upon an appeal by the defendant, the plaintiff has the choice of either (1) filing no pleading and proceeding on the complaint filed in the district justice court or (2) filing a complaint in the form required for a civil action in the court of common pleas.

   If a plaintiff proceeds by filing a complaint as in a civil action, the defendant must respond by filing a responsive pleading as in a civil action.

Explanatory Comment

   Proposed new Rule 1042.1, ''Appeals from District Justice Courts. Pleading'' sets forth the procedure upon an appeal from a district justice court. Specifically, it is designed to alleviate the burden on the plaintiff to file a complaint in the form usually required by the rules of civil procedure when an appeal is taken by the defendant from a judgment in a district justice court.

   Subdivision (a) states the basic principle that the procedure upon an appeal from a judgment of a district justice court follows that for an action originally commenced in the court of common pleas except as otherwise provided by the rule. The pleadings are the only procedural area affected by the rule.

Appeal by the Plaintiff

   Subdivision (b) of the proposed rule states that when the appeal is filed by the plaintiff in the district justice court, the procedure is that of an action originally commenced in a court of common pleas and the plaintiff must file a complaint as in such an action. This subdivision continues the present practice.

Appeal by the Defendant

   Subdivision (c) represents a change in the present practice which requires the plaintiff to file a complaint in the form prescribed by the rules of civil procedure upon an appeal by the defendant in the district justice court. Rather, it is proposed under subdivision (c) that the defendant file, either with the notice of appeal or within ten days thereafter, a copy of the complaint filed in the district justice court. The plaintiff may then proceed in the court of common pleas upon the complaint filed in the district justice court or, pursuant to subdivision (c)(3), the plaintiff may file a complaint in the form required by the rules of civil procedure for an action commenced in the court of common pleas.

   If the plaintiff chooses to proceed on the complaint filed in the district justice court, the action proceeds in accordance with the rules of civil procedure but with three innovations. First, as in any common pleas action, the defendant is required to answer the complaint within twenty days of filing the notice of appeal. However, the plaintiff need not plead further as ''[a] reply to the answer is not required.''

   The second innovation results from the provision of subdivision (c) that the plaintiff need not reply to the defendant's answer. The defendant may seek an order of court requiring that the plaintiff file an answer to a counterclaim. This is a procedure which usually will be employed only when the counterclaim is for a substantial sum of money.

   The third innovation permits the filing of preliminary objections to the complaint in lieu of an answer but only if the defendant appeared at the trial in the district justice court. A defendant who does not appear at the trial may not file preliminary objections upon appeal.

   As noted, subdivision (c)(3) gives the plaintiff the right to proceed as in an original action brought in a court of common pleas. The plaintiff need not be limited by the complaint filed in the district justice court but may file a new complaint in the form prescribed for a complaint in a civil action by the rules of civil procedure. Filing such a complaint is the plaintiff's choice, not a requirement dictated by the defendant or the rules. If plaintiff so chooses, then the defendant must respond and the action proceed as in an original action brought in a court of common pleas.

By the Civil Procedural Rules Committee

REA BOYLAN THOMAS,   
Chair

[Pa.B. Doc. No. 00-693. Filed for public inspection April 28, 2000, 9:00 a.m.]