Title 246--MINOR COURT CIVIL RULES Part I. GENERAL [246 PA. CODE CHS. 300 AND 1000] Venue [32 Pa.B. 2318] The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa. R.C.P.D.J. Nos. 302 and 1009 and revise the Note to Rule 314 to clarify that improper venue must be raised by objection or else it is waived; to provide for the transfer of cases to and from other courts when venue is found to be improper in the originating court; to abolish improper venue as grounds for issuance of a writ of certiorari; and to make other technical or ''housekeeping'' amendments to these rules. The Committee has not submitted this proposal for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. The Committee's Report should not be confused with the official Committee Notes to the rules. The Supreme Court does not adopt the Committee's Notes or the contents of the explanatory Reports.
The text of the proposed changes precedes the Report. Unless otherwise specified, additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel,
Michael F. Krimmel, Counsel
Supreme Court of Pennsylvania
Minor Court Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055
or e-mail to: minorcourt.rules@supreme.court.state.pa.us no later than Monday, June 3, 2002.By the Minor Court Rules Committee:
THOMAS E. MARTIN, Jr.,
ChairAnnex A TITLE 246. MINOR COURT CIVIL RULES PART I. GENERAL CHAPTER 300. CIVIL ACTION Rule 302. Venue.
A. An action against an individual may be brought in and only in a magisterial district where:
(1) [he] the individual may be served, or
* * * * * H. [If the district justice in the magisterial district in which the complaint was filed finds that venue in that magisterial district is improper, he shall transfer the complaint to a magisterial district having proper venue.] Improper venue shall be raised by objection prior to the conclusion of the hearing and if not so raised shall be waived. If an objection to venue is sustained and there is a court of proper venue within Pennsylvania, the complaint shall not be dismissed but shall be transferred to the court having proper venue.
Official Note: This rule replaces the temporary venue provisions of § 14 of the Schedule to Article V, Pennsylvania Constitution, 1968. It combines, with some minor changes, the Pennsylvania Rules of Civil Procedure relating to venue. See:
(1) Individuals: Pa. R.C.P. [Nos.] No. 1006(a) [, 2078(a)(2)].
* * * * * For a definition of ''transaction or occurrence'' see Craig v. W. J. Thiele & Sons, Inc., 395 Pa. 129, 149 A.2d 35 (1959).
Subdivision G is intended to take care of indistinct, ''center line'' or other confusing boundaries in the respects mentioned. When a complaint is transferred under subdivision H, it is treated as if originally filed in the transferee [magisterial district] court on the date first filed in a [magisterial district] court. If service of the complaint has already been made, no new service [is] may be necessary, but the [district justice in the] transferee [magisterial district] court must set a new date, time and place for the new hearing and notify the parties thereof. It is the intent of this rule that cases may be transferred to any Pennsylvania court with appropriate jurisdiction and venue, including the Philadelphia Municipal Court. Likewise, nothing in this rule prohibits a court other than a district justice court from transferring a case to a district justice court with proper jurisdiction and venue, in accordance with the procedural rules of the transferring court. The jurisdictional limits of the district justice courts and the Philadelphia Municipal Court are governed by Sections 1515 and 1123 of the Judicial Code, respectively. 42 Pa.C.S. §§ 1515 and 1123.
There [is] are no [fee] costs for transfer of the complaint and no additional filing [fee] costs when a case is transferred from one district justice court to another district justice court. There are no additional filing costs when a case is transferred from the Philadelphia Municipal Court to a district justice court. There may be additional service costs when a case is transferred.
Amended June 1, 1971; amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; amended _____ , effective _____.
Rule 314. Return, Waiver and Failure of Service; Reinstatement.
* * * * * Official Note: The provision concerning appearance not being a waiver of venue was inserted in subdivision C of this rule to prevent the concentration of business in the office of a favorable district justice. Also, the public cannot generally be expected to be aware of venue provisions. See Rule 302H regarding objections to venue.
* * * * * Amended October 17, 1975, effective in 90 days; amended effective March 24, 1977; 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; amended February 12, 2002, effective immediately; Note revised ______ , effective ______.
CHAPTER 1000. APPEALS CERTIORARI Rule 1009. Praecipe for Writ of Certiorari.
A. (1) [Unless he was the plaintiff in the action before the district justice] Except as provided in subparagraph (2), a party aggrieved by a judgment may file with the prothonotary of the court of common pleas a praecipe for a writ of certiorari claiming that the judgment should be set aside because of
(a) lack of jurisdiction over the parties or subject matter, [improper venue] or
(b) such gross irregularity of procedure as to make the judgment void.
(2) [If the] A party aggrieved by the judgment who was the plaintiff in the action before the district justice [, he] may file a praecipe for a writ of certiorari only on the [last mentioned ground] grounds set forth in subparagraph (1)(b).
B. [If lack of jurisdiction over the parties or the subject matter is claimed, the praecipe may be filed at any time after judgment. Otherwise, it shall be filed within thirty (30) days from the date of the judgment.] (1) A praecipe for a writ of certiorari based on the grounds set forth in subparagraph A(1)(a) may be filed at any time after the date of entry of the judgment.
(2) A praecipe for a writ of certiorari based on the grounds set forth in subparagraph A(1)(b) must be filed within 30 days after the date of entry of the judgment.
C. [The praecipe shall identify the judgment complained of and the district justice in whose office the record of the proceedings containing the judgment is filed.] Rescinded.
D. [The praecipe and the writ shall be on a form which shall be prescribed by the State Court Administrator.] The praecipe and the writ shall be substantially in the following form:
(Common Pleas Caption and Docket Number) WRIT OF CERTIORARI TO DISTRICT JUSTICE PRAECIPE FOR WRIT OF CERTIORARI Magisterial District No. ______ District Justice Docket No. ______
Name of Party Filing This Praecipe and Obtaining This Writ __________
__________
Date of Entry of Judgment __________
In the Case of __________
(Plaintiff) vs. (Defendant)
The party named above claims that with respect to the above proceeding there was:
(Check applicable box or boxes)
[ ] lack of jurisdiction over the subject matter
[ ] lack of jurisdiction over (name of party) __________
[ ] such gross irregularity as to make the judgment void
PRAECIPE: To the Prothonotary
Issue a Writ of Certiorari directing _________________, District Justice, to transmit to you a certified true copy of the record of the proceedings named above.
___________________________
Signature of Party Filing Praecipe or AttorneyWRIT OF CERTIORARI TO: ______, District Justice
(1) You are hereby directed by this writ to transmit to the Prothonotary of this Court of Common Pleas, within ten days after you receive this writ, a certified true copy of the record of the proceedings named above.
[ ] (2) This writ, when received by you, will operate as a SUPERSEDEAS to the judgment for possession in this case.
This block will be checked ONLY when this notation is required pursuant to Pa. R.C.P.D.J. No. 1013B.
Date delivered for service ______, 20__ _________________
Signature of Prothonotary or DeputyPROOF OF SERVICE OF WRIT OF CERTIORARI This proof of service must be filed within five days after delivery of the writ for service.
Check applicable boxes.COMMONWEALTH OF PENNSYLVANIA
COUNTY OF _________________: ss
AFFIDAVIT: I hereby verify that I served the Writ of Certiorari, Common Pleas Docket No. _____ , upon the District Justice to whom it was directed on (date of service) ______ , 20__ , [ ] by personal service [ ] by (certified) (registered) mail, sender's receipt attached hereto, and that I served a copy of the writ upon the opposite party(ies) (name(s)) ______ , on (date of service) ______ , 20__ , [ ] by personal service [ ] by (certified) (registered) mail, sender's receipt attached hereto.
I verify that the statements made in this 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: ______ , 20__ _________________
Signature of AffiantOfficial Note: Subdivision A sets forth the grounds for certiorari. See the comments concerning the limited nature of certiorari in the note to Rule 1001. The plaintiff in the action before the district justice[, and] (the word ''plaintiff'' as used in this rule does not include a defendant who has sued on a cross-complaint [,]) may file a praecipe for a writ of certiorari only on the ground of gross irregularity. Having instituted the proceedings before the district justice, the plaintiff should not be permitted to challenge jurisdiction [or venue].
Under subdivision B, the praecipe for the writ of certiorari must be filed within [thirty] 30 days after the date of entry of the judgment, except when a question of jurisdiction is raised. There is no time limit on raising a question of jurisdiction by certiorari. Flaherty v. Atkins, 189 Pa. Super. 550, 152 A.2d 280 (1959). A party who files [his] a praecipe after the [thirty] 30 day period has run can be heard only on the question of jurisdiction (if permitted to raise that question under subdivision A) even though [he] the party claims [improper venue or] gross irregularity along with [his] the claim of lack of jurisdiction.
Subdivision D prescribes the content of the praecipe and writ, which is pre-printed on a ''manual'' form. Former Subdivision C was rescinded as unnecessary because the content of the form is prescribed by Subdivision D.
Adopted June 1, 1971. Amended Jan. 29, 1976, effective in 30 days; April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; amended ______, effective ______.
REPORT Proposed Amendments to Pa. R.C.P.D.J. Nos. 302 and 1009; and Revision to the Note to Pa. R.C.P.D.J. No. 314 OBJECTION TO VENUE; WAIVER; TRANSFER OF CASES TO AND FROM OTHER COURTS WHEN VENUE IS FOUND TO BE IMPROPER IN THE ORIGINATING COURT; ABOLITION OF IMPROPER VENUE AS GROUNDS FOR ISSUANCE OF A WRIT OF CERTIORARI I. Background
The Committee undertook a review of Pa. R.C.P.D.J. No. 302 in response to a request from the Administrative Office of Pennsylvania Courts (AOPC). The AOPC reported that it had received an inquiry from the court administrator's office of a suburban Philadelphia county about apparent conflicts between the Rules of Civil Procedure Governing Actions and Proceedings Before District Justices (Pa. R.C.P.D.J.) and the Philadelphia Municipal Court Rules of Civil Practice (Phila.M.C.R. Civ.P.) with regard to the transfer of cases when venue is found to be improper in the originating court. Also, the Committee had received a suggestion from a district justice that raised the question of how and by whom improper venue is to be raised under Rule 302, and whether improper venue can be waived under that Rule.
After consideration of the issues raised, the Committee concluded that an amendment to Rule 302 was needed, as described below, to clarify that improper venue must be raised by objection or else it is waived, and to provide for the transfer of cases to and from other courts when venue is found to be improper in the originating court. Also, in light of the proposed amendments to Rule 302 to require that improper venue be raised by objection, the Committee concluded that Rule 1009 should be amended to abolish improper venue as grounds for the issuance of a writ of certiorari. Finally, the Committee identified a need to make other minor correlative, technical, or ''housekeeping'' amendments to these rules and the Note to Rule 314.
II. Objection to Venue; Waiver
As a result of the suggestion that it had received, the Committee discussed whether or not improper venue could be waived under Rule 302 if the issue is not raised as an objection.
Venue in civil matters at the common pleas level is generally governed by Pa.R.C.P. No. 1006(e), which states, inter alia, ''[i]mproper venue shall be raised by preliminary objection and if not so raised shall be waived.'' In construing this rule, the Superior Court has held that, ''the question of which county in the state may entertain the action is a 'question . . . of venue and not jurisdiction and venue may always be waived. It is a matter of procedure and not substance.' '' Hohlstein v. Hohlstein, 296 A.2d 886, 888 (Pa. Super. Ct. 1972) (emphasis added) (quoting Blair v. Blair, 171 A.2d 854, 855 (Pa. Super. Ct. 1961)). Further, the court in Hohlstein stated, ''it has been held by our Court that the right to raise the objection to venue is a mere Personal [sic] privilege belonging to the defendant which may be waived by him. Unlike the question of subject matter jurisdiction, it has generally been held that the Court on its own motion may not order a change of venue, nor may it dismiss for improper venue.'' Hohlstein, 296 A.2d at 889 (citations omitted) (emphasis added).
The Committee noted, however, that the district justice venue rule (Rule 302) differs from the common pleas rule in that Rule 302 does not appear to place the burden on the defendant to raise an objection to venue and does not appear to provide for a waiver of venue. Rule 302H (as currently written) states, ''[i]f the district justice in the magisterial district in which the complaint was filed finds that venue in that magisterial district is improper, he shall transfer the complaint to a magisterial district having proper venue.'' Pa. R.C.P.D.J. No. 302H (emphasis added). It became apparent to the Committee that some district justices are construing this rule to mean if, during the hearing, the district justice makes a sua sponte determination that venue is improper the issue cannot be waived, the hearing must cease, and the case must be transferred to another district justice court with proper venue.
In light of these findings, the Committee proposes to amend Rule 302 to clarify that an objection to venue must be raised by the defendant prior to the conclusion of the hearing or else be waived. The Committee determined that the defendant should be given until the end of the hearing to raise the objection because the face of the complaint may not give the defendant enough information about the claim to raise to the objection earlier, given the simplified notice pleadings used in district justice civil cases.
The Committee believes that such an amendment to Rule 302 would make practice in the district justice courts more consistent with practice in the courts of common pleas and would be more in keeping with the current state of the law, thus benefiting the parties and attorneys.
A correlative amendment to Rule 1009 is discussed below.
III. Transfer of Cases When Venue is Found to Be Improper
In its request, the AOPC asked that the Committee consider the following issues:
a. Whether a district justice court has the authority to accept a civil case transferred from the Philadelphia Municipal Court?
b. Whether a district justice court has the authority to transfer a civil case to the Philadelphia Municipal Court when the district justice finds that venue properly lies with the Municipal Court?
c. If transfers between the district courts and the Municipal Court are permissible, whether either party is required to pay additional filing costs?
With regard to the first issue, the Committee noted that Phila.M.C.R.Civ.P. No. 108(c) states, ''[i]f objection to venue is sustained and there is a court of proper venue within Pennsylvania, the action shall not be dismissed but shall be transferred to the appropriate District Justice Court or Court of Common Pleas.'' The Committee agreed that, under this rule, the Municipal Court may transfer, and a district justice may accept, a civil case where venue is found to be improper in the Municipal Court (assuming, of course, that the amount in controversy is within the jurisdictional limit of the district justice court).1
As to the second issue, however, the Committee noted that Pa. R.C.P.D.J. No. 302H states, ''[i]f the district justice in the magisterial district in which the complaint is filed finds that venue in that magisterial district is improper, he shall transfer the complaint to a magisterial district having proper venue.'' (Emphasis added.) It was the Committee's opinion that this rule, as currently written, restricts district justices to transferring cases only to other magisterial district courts, and does not give authority to transfer cases to courts outside the district justice system, including the Philadelphia Municipal Court. The Committee further concluded that if a district justice finds that venue lies with a court outside the district justice system, such as the Philadelphia Municipal Court, the district justice's only alternative may be to dismiss the case without prejudice and require the plaintiff to refile the case in the appropriate court. In so concluding, the Committee was not unmindful that the plaintiff could be barred from refiling if the case is dismissed after the statute of limitations has run.
Consideration of the third issue, with regard to the payment of additional filing costs, resulted in the most discussion within the Committee. The Committee noted that when a case is transferred between district justice courts, the transferring court sends the filing costs along with the case to the receiving court. Further, the Note to Rule 302, with regard to transfers between district justice courts, states, '[t]here is no fee for transfer of the complaint and no additional filing fee.'' Pa. R.C.P.D.J. No. 302, Note. The Committee was aware, however, that the disposition of filing costs has created confusion and problems when cases have been transferred to a district justice court from Municipal Court, especially since the statutorily set district justice court filing costs are different than Municipal Court costs. After discussion, the Committee agreed that the current procedure of transferring costs between district justice courts should remain the same. As for transfers to and from Municipal Court, the Committee concluded that no additional filing costs are to be collected when a case is transferred from Municipal Court to a district justice court. Further, any procedure regarding costs collected by the Municipal Court when a case is transferred from a district justice court to the Municipal Court is governed by the Municipal Court rules.
IV. Discussion of Rule Changes
A. Rule 302
1. Objection to Venue; Waiver
As stated above, the Committee concluded that an amendment to Rule 302 is needed to clarify that improper venue must be raised by objection or else it is waived. Accordingly, the Committee proposes that the language in Rule 302 be amended to more closely resemble that of Pa.R.C.P. No. 1006(e) and Phila.M.C.R.Civ.P. No. 108(c) with regard to objections to venue and waiver.
2. Transfer of Cases When Objection to Venue is Sustained; Costs
The Committee further proposes that the Note to Rule 302 be revised to make clear that it is the intent of the rule that cases may be transferred to any Pennsylvania court with appropriate jurisdiction and venue, including the Philadelphia Municipal Court. Likewise, nothing in the Rule prohibits a court outside of the district justice system from transferring a case to a district justice court with proper jurisdiction and venue, in accordance with the procedural rules of the transferring court. The Rule and Note would be amended to delete the references to ''magisterial district'' and replace them with more generic references to ''court.'' Finally, the Committee proposes that the Note be revised to make clear that there are no costs for transfer of a complaint and no additional filing costs when a case is transferred from one district justice court to another district justice court. Also, there are no additional filing costs when a case is transferred from the Philadelphia Municipal Court to a district justice court.
B. Correlative Amendments to Rule 1009--Writ of Certiorari
1. Abolition of Improper Venue as Grounds for Issuance of Writ
In light of the proposed amendment to Rule 302 to clarify that improper venue can be waived if not raised as an objection, the Committee concluded that Rule 1009 needed to be amended to restrict the ability of a defendant to seek a writ of certiorari on the grounds of improper venue. The Committee noted that without such an amendment to Rule 1009, a defendant could waive improper venue at the hearing before the district justice (by not raising an objection) but then seek a writ of certiorari on those same grounds, thereby defeating the purpose of the Rule 302 requirements.
The Committee noted that writs of certiorari to the district justice courts are governed by Pa. Const. Sched. art. V, § 26 (Writs of Certiorari) which states:
Unless and until changed by rule of the Supreme Court, in addition to the right of appeal under section nine of this article, the judges of the courts of common pleas, within their respective judicial districts, shall have power to issue writs of certiorari to the municipal court in the City of Philadelphia, justices of the peace and inferior courts not of record and to cause their proceedings to be brought before them, and right and justice to be done.
Pa. Const. Sched. art. V, § 26 (West 1994). The substance of this Schedule section has also been included in the Judicial Code, 42 Pa.C.S. § 934. The Committee concluded that the Schedule section and the statute empower the Supreme Court to change or abolish, by rule, the power to issue writs of certiorari. The Committee also concluded that since an aggrieved party is entitled to a broad form of appeal de novo, further restrictions on the use of certiorari will not adversely affect litigants.
Accordingly, the Committee proposes that improper venue be abolished as a grounds for the issuance of a writ of certiorari in Rule 1009.
2. Specifying Content of Writ of Certiorari Form in Rule 1009
In a matter unrelated to the venue issues discussed above, but related to Rule 1009, the Committee proposes that the content of the Praecipe and Writ of Certiorari form be specified in Rule 1009. The Committee is in the process of making a number of revisions to the rules relating to forms used in district justice proceedings. For example, the Committee plans to recommend that the Supreme Court adopt a new general rule governing the design of forms. In doing so, the Committee plans to delete references to forms in individual rules except where the content of a form needs to be expressly dictated by rule. It would be necessary to dictate the content of a form by rule where the form is a ''manual'' form; that is, a form not produced by the automated District Justice (computer) System. One such manual form is the Praecipe and Writ of Certiorari.
The AOPC has recently informed the Committee that this form is outdated and in need of revision. In order to promote uniformity and widespread dissemination of form updates, the AOPC has suggested, and the Committee agrees, that the content of this form should be specified by rule. Accordingly, the Committee proposes that Rule 1009D be amended in include the contents of an updated Praecipe and Writ of Certiorari form. The proposed abolition of improper venue as grounds for the issuance of a writ is reflected in the updated form.
C. Correlative Revision to the Note to Rule 314
In light of the proposed amendment to Rule 302 to clarify that improper venue can be waived if not raised as an objection, the Committee deemed it advisable to add a cross-reference to Rule 302 in the Note to Rule 314. Rule 314C provides that ''[t]he appearance of a defendant . . . shall be deemed a waiver of any defect in service but not a waiver of a defect in venue.'' Pa. R.C.P.D.J. No. 314C (emphasis added).
D. Technical and ''Housekeeping'' Amendments
In conjunction with the proposed amendments to Rules 302 and 1009 discussed above, the Committee also recognized the need for minor changes to the rules to address gender neutrality issues, to correct or add appropriate citations and cross references, and to conform with modern drafting style.
______1 The jurisdictional limit in civil cases in the Municipal Court ($10,000) is different from that of the district justice courts ($8,000). See 42 Pa.C.S. § 1123(a)(4) and 42 Pa.C.S. § 1515(a)(3). This does not create a problem with regard to the transfer of cases from the Municipal Court, as that court's Rule 108(c) provides for transfer to the ''appropriate District Justice Court or Court of Common Pleas.'' Phila.M.C.R.Civ.P. No. 108(c) (emphasis added).
[Pa.B. Doc. No. 02-839. Filed for public inspection May 10, 2002, 9:00 a.m.]
