1042 Proposed consolidation of the action in equity with the civil action; proposed recommendation no. 180
Title 231--RULES OF
CIVIL PROCEDUREPART I. GENERAL [231 PA. CODE CHS. 200, 400, 1000, 1500, 1600, 2000, 2020, 2050, 2100, 2150, 2170, 2200, 2220, 2250, 2300, 2320, 2350, 3000 AND 4000] Proposed Consolidation of the Action in Equity with the Civil Action; Proposed Recommendation No. 180 [32 Pa.B. 2866] The Civil Procedural Rules Committee proposes that the action in equity be consolidated with the civil action as set forth herein. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court of Pennsylvania.
All communications in reference to the proposed recommendation should be sent not later than August 15, 2002 to:
Harold K. Don, Jr.,
Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
or E-Mail to
civil.rules@supreme.court.state.pa.usThe 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 of civil procedure or be officially adopted or promulgated by the Court.
Annex A TITLE 231. RULES OF CIVIL PROCEDURE PART I. GENERAL CHAPTER 400. SERVICE OF ORIGINAL PROCESS SERVICE GENERALLY Rule 400. Person to Make Service.
* * * * * (b) In addition to service by the sheriff, original process may be served also by a competent adult in the following actions: [equity,]
(1) civil action in which equitable relief is the only relief sought or the primary relief sought,
(2) partition,
(3) prevent waste, and
(4) declaratory judgment when declaratory relief is the only relief sought.
* * * * * CHAPTER 1000. ACTIONS AT LAW Subchapter A. CIVIL ACTION GENERAL Rule 1001. Definition. Scope.
(a) As used in this chapter and in Rules 1501 through 1550, ''action'' means a civil action brought in or appealed to any court which is subject to these rules.
[(b)(1) All claims heretofore asserted in assumpsit or trespass shall be asserted in one form of action to be known as ''civil action.'']
(b) There shall be a ''civil action'' in which shall be brought all claims for relief heretofore asserted in
(1) the action of assumpsit,
(2) the action of trespass, and
(3) the action in equity.
Official Note: The procedural distinctions between the forms of action in assumpsit, [and] trespass and equity are abolished.
Rules 1501 through 1550 govern equitable relief including such matters as stockholder's derivative suits (Rule 1506) and special relief including accounting (Rule 1530), injunctions (Rule 1531), perpetuation of testimony (Rule 1532) and receivers (Rule 1533).
The action to prevent waste has been abolished. The relief formerly available in that action may be obtained in a civil action seeking equitable relief
See Rule 1041.1 for special provisions governing asbestos litigation.
[(2)] (c) Other forms of action which incorporate these rules by reference shall be known as ''civil action--(type of action).''
* * * * * VENUE AND PROCESS Rule 1006. Venue. Change of Venue.
(a) Except as otherwise provided by [Subdivisions] subdivisions (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which
(1) the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law[.], or
* * * * * (2) the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property.
(b) Actions against the following defendants, except as otherwise provided in [Subdivision] subdivision (c), may be brought in and only in the counties designated by the following rules: political subdivisions, Rule 2103; partnerships, Rule 2130; unincorporated associations, Rule 2156; corporations and similar entities, Rule 2179.
(c) An action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of [Subdivision] subdivisions (a) or (b).
* * * * * Rule 1007.1. Jury Trial as of Right. Demand. Waiver.
(a) In any action in which the right to jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than twenty days after service of the last permissible pleading. The demand shall be made by endorsement on a pleading or by a separate writing.
Official Note: Rule 1007.1(a) gives no specific guidance on the existence of a right to jury trial. It could not, in the face of Rule 128(f).
* * * * * [(d) Rescinded.]
Official Note: [The Act of June 25, 1937, P. L. 2090, 12 P. S. § 695 relating to demand for or waiver of jury trial in Philadelphia County, formerly suspended by subdivision (d), has been repealed by Act 1978-53, the Judiciary Act Repealer Act.] See Rule 1007.2 governing trial by jury when there is a claim for equitable relief.
Rule 1007.2. Trial by Jury. Equitable Relief. Advisory Verdict.
In any case in which there is a claim for equitable relief, the court on its own motion or upon the petition of any party may submit to trial by jury any or all issues of fact arising from that claim. The verdict of the jury shall be in the form of answers to specific questions and shall not be binding upon the court.
Official Note: Rule 1007.2 does not confer a right to trial by jury. See Rule 128(f).
This rule applies to claims for equitable relief for which there is no constitutional right to trial by jury. The rule preserves the practice under former Equity Rule 1513 of allowing a court in its discretion to submit such claims to trial by jury. The verdict of the jury is not binding on the court.
PLEADINGS Rule 1018. Caption.
* * * * * Captioning and Docketing of Actions and Proceedings in the Courts of Common Pleas
ORDER
Effective February 8, 1969* * * * * (b) Civil actions and proceedings not covered by Subdivision (a) above shall be captioned as follows: ''Court of Common Pleas of ______ County--Civil Action[-Law]'' or [''Civil Action-Equity''] or other appropriate form of action, as the case may be, and shall be filed with and docketed by the prothonotary or clerk of courts as heretofore.
* * * * * Rule 1020. Pleading More Than One Cause of Action. Alternative Pleading. Failure to Join. Bar.
(a) The plaintiff may state in the complaint more than one cause of action cognizable in a civil action against the same defendant [heretofore asserted in assumpsit or trespass]. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.
* * * * * (d) [(1)] If a transaction or occurrence gives rise to more than one cause of action heretofore asserted in assumpsit and trespass, against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person. Failure to join a cause of action as required by this subdivision shall be deemed a waiver of that cause of action as against all parties to the action.
Official Note: [Subdivision (d)(1) requires the joinder of related causes of action. The joinder of unrelated causes of action is permissive. See subdivision (a).] Mandatory joinder is limited to related causes of action heretofore asserted in assumpsit and trespass. There is no mandatory joinder of related causes of action in equity.
[For Rules governing joinder of parties, see] See Rules 2226 et seq. governing joinder of parties.
See Rule 213(a) and (b) governing the consolidation and severance of causes of action.
[(2) Rescinded.
(3) Rescinded.
Official Note: Former subdivision (d)(3) governed election of remedies between assumpsit and trespass, joint trial of multiple causes of action, submission of specific questions to the jury and molding the verdict.
Any reference to election of remedies has become procedurally irrelevant as the result of the creation of the single form of civil action.
See Rule 213(a) and (b) governing the consolidation and severance of causes of action.
(4) Failure to join a cause of action as required by subdivision (d)(1) of this Rule shall be deemed a waiver of that cause of action as against all parties to the action.
(5) Rescinded.]
Rule 1028. Preliminary Objections
(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:
* * * * * (4) legal insufficiency of a pleading (demurrer); [and]
* * * * * (6) pendency of a prior action or agreement for alternative dispute resolution [.],
* * * * * (7) failure to exercise or exhaust a statutory remedy, and
(8) full, complete and adequate non-statutory remedy at law.
* * * * * (c)(1) A party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections. If a party has filed an amended pleading as of course, the preliminary objections to the original pleading shall be deemed moot.
(2) The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall consider evidence by depositions or otherwise.
Official Note: Preliminary objections raising an issue under subdivision (a)(1), (5) [or], (6), (7) or (8) cannot be determined from facts of record. In such a case, the preliminary objections must be endorsed with a notice to plead or no response will be required under Rule 1029(d).
* * * * * Rule 1031. Counterclaim.
(a) The defendant may set forth in the answer under the heading ''Counterclaim'' any cause of action [heretofore asserted in assumpsit or trespass] cognizable in a civil action which the defendant has against the plaintiff at the time of filing the answer.
* * * * * Rule 1032. Waiver of Defenses. Exceptions. Suggestion of Lack of Subject Matter Jurisdiction or Failure to Join Indispensable Party.
(a) A party waives all defenses and objections which are not presented either by preliminary objection, answer or reply, except a defense which is not required to be pleaded under Rule 1030(b), the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, the objection of failure to state a legal defense to a claim, the defenses of failure to exercise or exhaust a statutory remedy and an adequate remedy at law and any other nonwaivable defense or objection.
* * * * * JUDGEMENT UPON DEFAULT OR ADMISSION Rule 1037. Judgment Upon Default or Admission. Assessment of Damages.
* * * * * (b) The prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time a pleading to a complaint which contains a notice to defend or, except as provided by subdivision (d), for any relief admitted to be due by the defendant's pleadings.
Official Note: See Rule 237.1 which requires the praecipe for default judgment to contain a certification of written notice of intent to file the praecipe.
While the prothonotary may enter a default judgment in an action legal or equitable, only the court may grant equitable relief. See subdivision (d).
* * * * * (d) In all cases in which equitable relief is sought, the court shall enter an appropriate order upon the judgment of default or admission and may take testimony to assist in its decision and in framing the order.
Rule 1038. Trial Without Jury.
* * * * * (c) The decision may be made orally in open court at the end of the trial, and in that event shall be forthwith transcribed and filed in the office of the prothonotary, or it may be made thereafter in writing and filed forthwith. In either event the prothonotary shall notify all parties or their attorneys of the date of filing. The trial judge shall render a decision within seven days after the conclusion of the trial except in protracted cases or cases of extraordinary complexity.
Official Note: A decision includes what were formerly known as a decree nisi and an adjudication. A decision is not a final decree, also known as a judgment.
For post-trial relief following a trial without jury, see Rule 227.1.
For entry of judgment upon praecipe of a party, see Rule 227.4.
[(d) (Rescinded).
Official Note: For post-trial relief following a trial without jury, see Rule 227.1.
(e) (Rescinded).
Official Note: For entry of judgment upon praecipe of a party, see Rule 227.4.
(f) (Rescinded).
(g) Rule VIII of the Special Rules, Courts of Common Pleas, First Judicial District, Philadelphia County, adopted July 31, 1963 is suspended.]
CHAPTER 1500. [ACTION IN EQUITY] EQUITABLE RELIEF Subchapter A. RULES Rule 1501. [Conformity to Civil Action] (Rescinded).
[Except as otherwise provided in this chapter, the procedure in an action in equity shall be in accordance with the rules relating to a civil action.]
Official Note: [In addition to the rules expressly governing the civil action, Rules 1001 to 1038.2, 1351 and 1361, the following rules apply to all actions at law and in equity:
Business of courts, Rules 201 to 250;
*Actions by real parties in interest, Rules 2001 to 2025;
Minors as parties, Rules 2026 to 2050;
Incapacitated persons as parties, Rules 2051 to 2075;
*Defendants who are non-residents or conceal their whereabouts, Rules 2076 to 2100;
The Commonwealth and political subdivisions as parties, Rules 2101 to 2125;
Partnerships as parties, Rules 2126 to 2150;
Unincorporated associations as parties, Rules 2151 to 2175;
Corporations and similar entities as parties, Rules 2176 to 2200;
*Joinder of parties, Rules 2226 to 2250;
*Joinder of additional defendants, Rules 2261 to 2275;
*Interpleader by defendants, Rules 2301 to 2325;
*Intervention, Rules 2326 to 2350.
By Order of the Supreme Court effective as of the date of the adoption of these rules, the chapters of rules above marked with an asterisk which now apply only to actions at law have been extended to include actions in equity.
The extension of the interpleader rules to actions in equity is not intended to abolish the right to institute equity interpleader actions in cases where suit or litigation is imminent or threatened but has not yet been commenced.]
The action in equity has been abolished. Equitable relief may be obtained through a civil action, Rule 1001 et seq. Rules 1506, 1521, 1531, 1533, 1534 and 1535 are special rules governing equitable relief sought in a civil action.
Rule 1502. [Court Open] (Rescinded).
[The equity side of the court shall always be open.]
Official Note: The court is ''always open for the transaction of judicial business.'' See Section 324 of the Judicial Code, 42 Pa.C.S. § 324.
Rule 1503. [Venue] (Rescinded).
[An action may be brought in any county in which a civil action may be brought or, if the subject matter of the action is property, in the county in which the property is located.]
* * * * * Rule 1505. [Defendant Not Served] (Rescinded).
[A defendant who has not been served may be served at any time during the pendency of the action provided that writ or complaint has been reissued or reinstated as to that defendant within thirty days preceding service.]
Rule 1507. [Specific Averments. Possible Persons Interested in Property. Appointment of a Representative] (Rescinded).
[When a person interested in property which is the subject of an action should be made a party but the person's name or interest in the property cannot be ascertained and the person is not represented in the action, the plaintiff or defendant may so aver in the complaint or answer. The court shall require that appropriate notice be given such person by advertisement or in such manner as the court by local rule or special order shall direct. If appropriate notice cannot be given or if the person does not appear after notice is given, the court may appoint a trustee or guardian ad litem to represent the person and the decree entered in the action shall bind the person's interest in the property.]
Rule 1508. [Pleading More than One Cause of Action] (Rescinded).
[The plaintiff may state in the complaint two or more causes of action cognizable in equity.]
Official Note: [If more than one cause of action is asserted by or against two or more plaintiffs or defendants, the causes of action must arise from the same transaction, occurrence, or series of transactions or occurrences and a common question of law or fact affecting the rights or liabilities of all the parties must arise in the action. Rule 2229(a), (b).] See Rule 1020 governing the pleading of more than one cause of action.
Rule 1509. [Preliminary Objections] (Rescinded).
[(a) Preliminary objections authorized by Rule 1028(a) are available to any party.
(b) The objections of laches and failure to exercise or exhaust a statutory remedy may be raised by preliminary objection, answer or reply but are not waived if not pleaded.
(c) The objection of the existence of a full, complete and adequate nonstatutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court. If not so pleaded, the objection is waived.]
Official Note: [Adopted January 4, 1952, effective July 1, 1952.] See Rule 1028 governing preliminary objections.
Rule 1510. [Counterclaim] (Rescinded).
[(a) A defendant may plead as a counterclaim only a cause of action, whether equitable or legal, which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff's cause of action arose. A counterclaim shall not be subject to the objection provided in Rule 1509(c).
(b) A counterclaim shall be pleaded and tried as an action in equity.]
Official Note: [Adopted January 4, 1952, effective July 1, 1952. ] See Rule 1031 governing counterclaim in a civil action.
Rule 1511. [Judgment Upon Default or Admission] (Rescinded).
[(a) The prothonotary, on praecipe of the plaintiff, shall enter a judgment by default against the defendant for failure to plead within the required time to a complaint which contains a notice to defend. In all other cases of default or of admission the judgment shall be entered by the court.
(b) In all cases, the court shall enter an appropriate final decree upon the judgment of default or admission and may take testimony to assist in its adjudication and in framing the decree.]
Official Note: [Adopted January 4, 1952, effective July 1, 1952; amended March 22, 1962; effective April 2, 1962. Amendment effective April 2, 1962 was made applicable to pending actions.] See Rule 1037 governing judgment upon default or admission.
Rule 1512. [Nonsuit] (Rescinded).
[The court may enter a nonsuit against the plaintiff under the same circumstances, subject to review in the same manner and with the same effect as in actions at law.]
Official Note: See Rules 230 and 230.1 governing voluntary nonsuit and nonsuit at trial, respectively.
Rule 1513. [Trial by Jury. Advisory Verdict] (Rescinded).
[The court on its own motion or upon the petition of any party may submit to trial by jury any or all issues of fact. The trial by jury shall be given a preference on the trial list. The verdict of the jury shall be in the form of answers to specific questions and shall not be binding upon the court.]
Official Note: [Adopted January 4, 1952, effective July 1, 1952.] See Rule 1007.2 governing trial by jury and advisory verdict.
Rule 1514. [Examiners, Masters and Auditors] (Rescinded).
[Except as otherwise provided by Act of Assembly or rule of the Supreme Court, no examiner, master or auditor shall be appointed.
Official Note: Adopted January 4, 1952, effective July 1, 1952; amended March 25, 1953, effective July 1, 1953.]
Rule 1515. [Accountants and Experts] (Rescinded).
[In actions involving complicated accounts, or questions requiring the evidence of experts, the court may employ an accountant or other expert to aid in the proper deposition of the action. The report or evidence of such accountant or other expert shall be available to any party and the accountant or other expert shall be subject to examination or cross-examination by any party. The accountant or other expert shall be paid reasonable compensation for services rendered.]
Rule 1516. [Oral Argument. Limitation on Requests for Findings and Conclusions] (Rescinded).
[The parties shall be prepared to argue the case immediately after the close of the evidence. No requests for findings of fact and conclusions of law may be submitted except by leave of court. These requests may be treated by the court as suggestions. They shall be filed with the adjudication.]
Official Note: [Adopted January 4, 1952, effective July 1, 1952; amended June 27, 1969, effective September 1, 1969.
The court has power at any stage of any proceeding to require the parties to file trial memoranda on any issue of fact or law.
The Civil Procedural Rules Committee, by communication dated August 27, 1969, announced that amendment of this rule effective September 1, 1969 applied to pending actions.]
See Rule 1038 for the conduct of a trial without a jury.
Rule 1517. [The Adjudication. Notice] (Rescinded).
[(a) The court shall make an adjudication and may do so shall consist of (1) a statement of the issues; (2) a closely condensed chronological statement, in narrative form or in separate findings, of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions of law involved and the court's conclusions of law and (4) a decree nisi.
(b) The adjudication may be made orally in open court at the end of the trial, and in that event shall be forthwith transcribed and filed in the office of the prothonotary, or it may be made thereafter in writing and filed forthwith. In either event, the prothonotary shall notify all parties or their attorneys of the date of filing.]
Official Note: [See Rule of Judicial Administration 703 which requires a report to the Court Administrator of Pennsylvania of all matters undisposed of for ninety days or more as of the last day of the reporting period.
The Civil Procedural Rules Committee, by communication dated August 27, 1969, announced that amendment of this rule effective September 1, 1969 applied to pending actions.]
See Rule 1038 for the decision in a trial without a jury.
Rule 1520. [Form of Decree] (Rescinded).
[Decrees, nisi or final, shall not recite or state at length any part of the pleadings or other proceedings in the action.]
Official Note: [Adopted January 4, 1952, effective July 1, 1952.] See Rule 1038 for the decision in a trial without a jury.
Rule 1521. Indexing of Decree. Lien and Revival of Decree for Payment of Money.
(a) [Decrees, nisi] Orders, interlocutory or final, shall be entered on the judgment index [of the law side of the court].
(b) [Decrees] Orders for the payment of money shall be a lien on the real estate of the defendant named in the [decree] order in the manner, for the period and with the same effect as the lien of judgments [rendered by the law side of the court] for the payment of money.
(c) [Decrees] Orders for the payment of money or costs and not satisfied may be revived from time to time in the manner provided by law for the revival of judgments.
* * * * * Rule 1522. [Rehearing] (Rescinded).
[A petition for a rehearing shall set forth the special matter or cause for which such rehearing is sought. The petition for rehearing shall be filed within a reasonable time after the discovery of the grounds for rehearing and in no event later than the time for taking an appeal.]
Official Note: [Adopted January 4, 1952, effective July 1, 1952.] See Rule of Appellate Procedure 1701(b) governing reconsideration of an order.
Rule 1523. [Costs] (Rescinded).
[Costs shall include fees of the examiner, master, auditor, accountant or expert appointed by the court and such other costs as may be prescribed by statute or allowed by the court.
Official Note: Adopted January 4, 1952, effective July 1, 1952. See Rules 1514 and 1515 relating to the appointment of examiners, masters, auditors, accountants and experts.]
Rule 1524. [Security for Costs] (Rescinded).
[The court in which the action is pending may by local rule or special order require the plaintiff or a defendant who claims affirmative relief to enter security for costs.
Official Note: Adopted January 4, 1952, effective July 1, 1952.]
Rule 1525. [Interlocutory Order for Costs] (Rescinded).
[A party directed by an interlocutory order to pay costs may not take any further steps in the action until they are paid.
Official Note: Adopted January 4, 1952, effective July 1, 1952.]
Rule 1526. [Liability for Costs] (Rescinded).
[Costs shall follow the decree unless the court directs that they shall be paid in whole or in part by some other party to the action or out of a fund for distribution.
Official Note: Adopted January 4, 1952, effective July 1, 1952.]
Rule 1527. [Taxation of Costs] (Rescinded).
[Costs shall be taxed by the prothonotary subject to an appeal to the court.
Official Note: Adopted January 4, 1952, effective July 1, 1952.]
Rule 1528. [Amendments] (Rescinded).
[The prayer for relief may be amended as of course at any time.]
Official Note: [Adopted January 4, 1952, effective July 1, 1952.] See Rule 1021 governing the claim for relief.
Rule 1529. [Enforcement of Orders. Execution Process] (Rescinded).
[(a) Execution process available in actions at law may be used in actions in equity where appropriate. A party entitled to subrogation against another party shall be entitled to execution process to enforce this right.
(b) Where appropriate, the court may order the prothonotary or sheriff to perform any act which a party fails to perform within the time specified by the order or decree. The designated officer shall act in the name of and for the delinquent party and with the same effect as though the act were performed by the defendant party. The court may order the recording or registration of any document thus executed and tax the costs against the delinquent party.
(c) A party who fails to comply with a decree may be arrested by attachment and the property of the delinquent party sequestered. If arrested, the delinquent party may, upon furnishing such bail as the court shall require, be conditionally released for the purpose of performing the decree. The attachment and sequestration shall not be dissolved until the decree has been performed and the costs of the action paid.
Official Note: See Rule 3250 imposing limitations upon the right of arrest.]
Rule 1530. [Special Relief. Accounting] (Rescinded).
[(a) Any pleading demanding relief may include a demand for an accounting.
(b) If the party is entitled to an accounting the court may proceed forthwith to hear and determine the amount due or may enter a decree that an account be filed within such time as the court by local rule or special order shall direct.
(c) Each party shall be served with a copy of the account in the same manner as a pleading. Exceptions may be filed to the account within twenty days after service.
(d) If no exceptions are filed, the court shall enter judgment for the amount, if any, shown by the account to be due. If exceptions are filed, the court shall determine the amount due or may refer the account and exceptions to an auditor.
(e) The auditor shall file a report, to which exceptions may be filed within twenty days. If no exceptions are filed to the report of the auditor, the court shall enter judgment for the amount, if any, determined by the auditor to be due. If exceptions are filed, the court shall determine the amount, if any, which may be due.]
Rule 1531. Special Relief. Injunctions.
* * * * * (f)(1) When a preliminary or special injunction involving freedom of expression is issued, either without notice or after notice and hearing, the court shall hold a final hearing within three days after demand by the defendant. A final [decree] order shall be filed in the office of the prothonotary within twenty-four hours after the close of the hearing. If the final hearing is not held within the three-day period, or if the final [decree] order is not filed within twenty-four hours after the close of the hearing, the injunction shall be deemed dissolved.
Official Note: The three-day period is the maximum time. In particular cases a shorter period may be required. [The equity side of the Court is always open. See Rule 1502.] The court is ''always open for the transaction of judicial business.'' See Section 324 of the Judicial Code, 42 Pa.C.S. § 324.
(2) When the defendant demands such a final hearing, no further pleadings shall be required and Rule [1517] 1038(b) and (c) relating to [adjudication decree nisi] decision in a trial without jury and Rules 227.1 to 227.3 relating to post-trial relief shall not apply.
(3) The trial judge shall file a written memorandum supporting the final [decree] order within five days after it is filed.
Rule 1532. [Special Relief. Perpetuation of Testimony] (Rescinded).
[(a) In an action to perpetuate testimony the complaint shall set forth
(1) the names and addresses of all prospective parties to the contemplated action, but if the identity of the heirs or assigns of a named former owner or party in interest is unknown they may be described generally;
(2) the nature of the contemplated action, the plaintiff's interest therein and the need for perpetuating the testimony of the person to be examined;
(3) the name and address of the person whose testimony is to be perpetuated and the substance of the testimony which plaintiff expects to elicit from each.
(b) In an action to perpetuate testimony, the testimony may be taken before the court or by depositions. The procedure for the taking of the testimony by depositions shall conform as nearly as practicable to the proceedings under the rules on depositions and discovery. The final decree shall direct whether or not the testimony or a part thereof shall be perpetuated.
(c) Testimony which has been perpetuated may be used at a trial or hearing in accordance with the provisions applicable to depositions under Rule 4020. The testimony may be used by or against a person succeeding to the interest of the party to the action for the perpetuation of testimony to the same extent as though the successor had been a party and had been present at the taking of the testimony. The testimony, if otherwise admissible, may be used in any other county of the Commonwealth.]
Official Note: [Adopted January 4, 1952, effective July 1, 1952; amended March 27, 1956, effective July 1, 1956.] Pre-complaint discovery provides adequate relief in the context of a civil action.
Rule 1533. Special Relief. Receivers.
* * * * * (e) Except in the case of a public utility, a [decree] order authorizing a receiver to operate a business shall be limited to a fixed period, which may be extended from time to time upon cause shown after notice to all parties in interest.
* * * * * (g) Every [decree] order appointing a permanent receiver shall fix the time within which the receiver shall file a report setting forth the property of the debtor, the interests in and claims against it, its income-producing capacity and recommendations as to the best method of realizing its value for the benefit of those entitled.
* * * * * Rule 1536. [Effective Date. Pending Actions] (Rescinded).
[These rules shall become effective on the First day of July, 1952, and shall apply to actions pending at that time. They shall supersede all rules of equity practice heretofore promulgated.
Official Note: Adopted January 1, 1952, effective July 1, 1952.]
Subchapter B. ACTION FOR PARTITION OF REAL PROPERTY Rule 1551. Form of Action.
Except as otherwise provided in this chapter, the procedure in an action for the partition of real estate shall be in accordance with the rules relating to the civil action [in equity].
* * * * * Subchapter C. [ACTIONS] ACTION TO PREVENT WASTE Rule 1576. [Remedies in Pending Actions] (Rescinded).
[(a) In any action at law or in equity, on petition of any party setting forth facts entitling the party to such relief, the court may, at any time before or after judgment, in accordance with Rule 1531(a), (c), (d) and (e), and upon such terms and conditions, including the filing of security, as it may fix, issue an injunction pendente lite to restrain waste of real property which is a subject of the action.
Official Note: The procedure relating to injunctions will be governed by Equity Rule 1531 except as to the mandatory bond requirement of 1531(b). The requirement of security will be discretionary with the court, depending upon the circumstances of each case.
(b) The court in which the action is pending may act to restrain waste notwithstanding an appeal in the action or removal of the record to the appellate court.
(c) The court may, in a proper case, appoint a receiver in accordance with Rule 1533.]
Official Note: A claim to prevent waste may be brought as a civil action for equitable relief.
Rule 1577. [Original Actions. Conformity to Equity] (Rescinded).
[Where no action is pending in which a petition to restrain waste may be filed, the procedure in an action to restrain waste shall be in accordance with the rules relating to the action in equity.]
Official Note: [adopted March 30, 1960, effective November 1, 1960.] An original action to restrain waste should be brought as a civil action seeking equitable relief.
Subchapter D. ACTS OF ASSEMBLY NOT SUSPENDED Rule 1580. [Actions to Prevent Waste. Act of Assembly Not Suspended] (Rescinded).
[Sections 1 and 2 of the Act approved May 4, 1869, P. L. 1251, 68 P. S. §§ 115, 116 shall not be deemed suspended or affected by the rules governing the action to prevent waste.
Official Note: These sections make unlawful the cutting, removing or selling of timber by the owner of an undivided interest in land, without the written consent of all interests and authorizes proceedings for recovery of timber or damages.]
CHAPTER 1600. DECLARATORY JUDGMENT Rule 1601. Action for Declaratory Relief Alone. Jury Trial. Waiver.
(a) A plaintiff seeking only declaratory relief shall commence an action by filing a complaint captioned ''Action for Declaratory Judgment.'' The practice and procedure shall follow, as nearly as may be, the rules governing the [Action in Equity] civil action.
(b) If the right to trial by jury of disputed issues of fact exists in such an action, it shall be deemed waived unless demanded in the time and manner provided by Rule 1007.1.
Official Note: Rule 1601(b) gives no specific guidance on the existence of a right to jury trial. It could not, in the face of Rule 128(f). Section 7539(b) of the Judicial Code provides:
* * * * * The existence of a right to jury trial on disputed issues of fact will be a matter of determination in each action where only declaratory relief is sought. If the right is claimed and disputed, the court must determine the question on the basis of the nature of the cause of action, the right to be enforced and the ''other civil action'' which would be brought to enforce it if declaratory judgment did not exist. The flexible Federal practice under Fed.R.Civ.P. 38, 39 and 57, including the procedure for the jury trial of selected issues, may be helpful. Pa.R.C.P. [1513] 1007.2 may also be applicable.
Rule 1602. Declaratory Judgment as Ancillary Relief.
In any action [at law or in equity], a party may include in the claim for relief a prayer for declaratory relief and the practice and procedure shall follow, as nearly as may be, the rules governing that action.
CONFORMING AMENDMENTS CHAPTER 200. BUSINESS OF COURTS Rule 205.4. Electronic Filing And Service of Legal Papers.
* * * * * (g) Copies of all legal papers other than original process filed in an action or served upon any party to an action may be served
* * * * * Official Note:
* * * * * See Rule 236(d) providing for the prothonotary to give notices of orders[, decrees] and judgments, and also other matters by facsimile transmission or other electronic means.
* * * * * Rule 227.1. Post-Trial Relief.
(a) After trial and upon the written Motion for Post-Trial Relief filed by any party, the court may
* * * * * (4) affirm, modify or change the decision [or decree nisi]; or
* * * * * Official Note: The motion for post-trial relief replaces the following motions and exceptions: motion for new trial, motion for judgment notwithstanding the verdict, motion upon the whole record after disagreement of a jury, motion in arrest of judgment, motion to remove a nonsuit, exceptions following the decision of the judge in a trial without jury [and exceptions following the adjudication of the judge in an action inequity. However, certain rules retain].
The following rules provide for the filing of exceptions, e.g., Equity Rule 1530 (exceptions to an auditor's report), Equity Rule 1534 (exceptions to a fiduciary's account), Partition Rule 1569 (exceptions to a master's report) and Divorce Rule 1920.55 (exceptions to a master's report), Support Rule 1910.12(e) (exceptions to a hearing officer's report) and Execution Rule 3136(d) (exceptions to sheriff's schedule of proposed distribution).
* * * * * (c) Post-trial motions shall be filed within ten days after
* * * * * (2) notice of nonsuit or the filing of the decision [or adjudication] in the case of a trial without jury [or equity trial].
* * * * * Official Note: A motion for post-trial relief may be filed following a trial by jury[,] or a trial by a judge without a jury [in an action at law] pursuant to Rule 1038 [or a trial by a judge without a jury in an action in equity]. A motion for post-trial relief may not be filed to orders disposing of preliminary objections, motions for judgment on the pleadings or for summary judgment, motions relating to discovery or other proceedings which do not constitute a trial. See U.S. National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985).
* * * * * Rule 227.4. Entry of Judgment upon Praecipe of a Party
In addition to the provisions of any Rule of Civil Procedure or Act of Assembly authorizing the prothonotary to enter judgment upon praecipe of a party, the prothonotary shall, upon praecipe of a party:
(1) enter judgment upon the verdict of a jury or the decision of a judge following a trial without jury, [or enter the decree nisi as the final decree,] if
* * * * * (2) enter judgment when a court grants or denies relief but does not itself enter judgment or order the prothonotary to do so.
Official Note: See Rule 236 requiring the prothonotary to give notice of the entry of an order[, decree] or judgment and Rule 237 requiring notice of filing of praecipe for judgment. For illustrative Rules of Civil Procedure specifically authorizing entry of judgment by the prothonotary on praecipe of a party, see Rules 1037, 1511(a), 1659, 3031(a), and 3146.
Rule 236. Notice by Prothonotary of Entry of Order[, Decree] or Judgment.
(a) The prothonotary shall immediately give written notice of the entry of
* * * * * (2) any other order[, decree] or judgment to each party's attorney of record or, if unrepresented, to each party. The notice shall include a copy of the order[, decree] or judgment.
* * * * * Rule 237. Notice of Praecipe for Final Judgment [or Decree].
No praecipe for judgment on a verdict[,] or for judgment on a decision in a trial without a jury [or for a final decree following a decree nisi in equity] shall be accepted by the prothonotary unless it includes a certificate that a copy of the praecipe has been mailed to each other party who has appeared in the action or to the attorney of record for each other party.
Rule 249. Authority of Individual Judge.
(a) Except where the court is required to act en banc, a law judge may perform any function of the court, including the entry of interlocutory or ex parte orders[, decrees] and other matters in the nature thereof.
* * * * * Rule 250. Scope of Chapter.
The rules of this chapter shall apply to all civil actions and proceedings [at law and in equity].
CHAPTER 400. SERVICE OF ORIGINAL PROCESS AND OTHER LEGAL PAPERS Rule 440. Service of Legal Papers Other than Original Process.
* * * * * (d)(1) A copy may be served by facsimile transmission if the parties agree thereto or if a telephone number for facsimile transmission is included on an appearance or prior legal paper filed with the court.
* * * * * Official Note: See Rule 236(d) providing for the prothonotary to give notice of orders[, decrees] and judgments, and also other matters, by facsimile or other electronic means.
* * * * * [Continued on next Web Page]
[Continued from previous Web Page] CHAPTER 1000. ACTIONS AT LAW Subchapter D. ACTION TO QUIET TITLE Rule 1066. Form of Judgment or Order.
* * * * * (b) Upon granting relief to the plaintiff, the court
* * * * * (3) shall enter a final judgment ordering the defendant, the prothonotary, or the recorder of deeds to file, record, cancel, surrender or satisfy of record, as the case may be, any plan, document, obligation or deed determined to be valid, invalid, satisfied or discharged, and to execute and deliver any document, obligation or deed necessary to make the [decree] order effective; or
* * * * * Subchapter I. ACTION OF MORTGAGE FORECLOSURES Rule 1141. Definition. Conformity to Civil Action.
(a) As used in this chapter,
''action'' means an action [at law] to foreclose a mortgage upon any estate, leasehold or interest in land but shall not include an action to enforce a personal liability.
* * * * * CHAPTER 1500. ACTION IN EQUITY Subchapter B. PARTITION OF REAL PROPERTY Rule 1569. Master's Report. Exceptions.
(a) A master who is appointed by the court shall file a report with respect to the matters submitted. The report shall follow the form of [adjudication] decision in Rule 1570, insofar as the scope of the reference to the master permits.
(b) The master shall give all persons in interest written notice of the date on which he or she intends to file the report and proposed [decree] order and shall specify an address within the county where they may be examined. The master may change the report and proposed [decree] order as he or she deems proper before filing them, but if any changes are made written notice thereof shall be given to all parties.
(c) Within ten days after notice of the filing of the report exceptions may be filed by any party to rulings on evidence, to findings of fact, to conclusions of law and to the proposed [decree nisi] order. The court may, with or without taking testimony, remand the report or enter [an adjudication] a decision in accordance with Rule 1570 which may incorporate by reference the findings and conclusions of the master in whole or in part.
Rule 1570. [Adjudication and Decree] Decision and Order.
(a) The [adjudication] decision shall include findings of fact as follows:
* * * * * (b) The [decree] order shall include:
* * * * * (4) [an order for] a public or private sale of the property or part thereof where required.
* * * * * Rule 1573. Return of Sale and Schedule of Distribution
(a) Where the sale has been conducted by a master, the master shall promptly file with the prothonotary a return of sale together with a proposed [decree] order which shall
* * * * * (b) The master shall give all persons in interest written notice of the date on which he or she intends to file the return of sale and proposed [decree] order and shall specify an address within the county where they may be examined. The master may change the return of sale and proposed [decree] order as he or she deems proper before filing them, but if any changes are made written notice thereof shall be given to all parties.
(c) If the court approves the return of sale in whole or in part, the court shall enter an appropriate [decree nisi] order. Any part of the [decree nisi] order as to which a motion for post-trial relief is not filed within ten days shall become final.
CHAPTER 2000. ACTIONS BY REAL PROPERTY PARTIES IN INTEREST Rule 2001. Definitions.
As used in this chapter
''action'' means any civil action or proceeding [at law or in equity] brought in or appealed to any court of record which is subject to these rules.
CHAPTER 2020. MINORS AS PARTIES Rule 2026. Definitions.
As used in this chapter
''action'' means any civil action or proceeding [at law or in equity] brought in or appealed to any court of record which is subject to these rules;
* * * * * ''judgment'' means any final judgment or final [decree] order entered in any action.
CHAPTER 2050. INCAPACITATED PERSONS AS PARTIES Rule 2051. Definitions.
As used in this chapter
''action'' means any civil action or proceeding [at law or in equity] brought in or appealed to any court of record which is subject to these rules;
* * * * * CHAPTER 2100. THE COMMONWEALTH AND POLITICAL SUBDIVISIONS AS PARTIES Rule 2101. Definition.
As used in this chapter:
''action'' means any civil action or proceeding [at law or in equity] brought in or appealed to any court which is subject to these rules.
* * * * * CHAPTER 2120. PARTNERSHIPS AS PARTIES Rule 2126. Definitions.
As used in this chapter:
Action--Any civil action or proceeding [at law or in equity] brought in or appealed to any court which is subject to these rules.
* * * * * Rule 2129. Actions between partnerships and partners.
An action may be prosecuted [at law] by a partnership against one or more of the partners thereof, or against such partners together with persons not partners; or by one or more partners, or by such partners together with other persons not partners, against the partnership. [No such action may be prosecuted in equity unless there is ground for equitable jurisdiction other than the fact that the action is between a partnership and one or more partners.]
CHAPTER 2150. UNINCORPORATED ASSOCIATIONS AS PARTIES Rule 2151. Definitions.
As used in this chapter
''action'' means any civil action or proceeding [at law or in equity] brought in or appealed to any court which is subject to these rules;
* * * * * Rule 2154. Actions between associations and members.
An action may be prosecuted [at law] by an association against one or more of the members thereof, or against such members together with persons not members; or by one or more members, or by such members together with other persons not members, against the association. [No such action may be prosecuted in equity unless there is ground for equitable jurisdiction other than the fact that the action is between an association and one or more members.]
* * * * * CHAPTER 2170. CORPORATIONS AND SIMILAR ENTITIES AS PARTIES Rule 2176. Definitions.
As used in this chapter
''action'' means any civil action or proceeding [at law or in equity] brought in or appealed to any court which is subject to these rules;
* * * * * Rule 2178. Actions between a corporation or similar entity and members thereof.
An action may be prosecuted by a corporation or similar entity against one or more of the members thereof, or against members together with persons not members; or by one or more members, or by members together with other persons not members, against the corporation or similar entity. [No such action may be prosecuted in equity unless there is ground for equitable jurisdiction other than the fact that the action is between a corporation or similar entity and one or more members thereof.]
Official Note: Adopted November 26, 1943, effective August 1, 1944. This rule [is an adaptation of Pa.R.C.P. No. 2129 (Partnerships as parties), and Pa.R.C.P. No. 2154 (Unincorporated associations as parties).
It is] designed to apply to all actions between a corporation or similar entity and its members, including those actions in which an accounting has been asked.
CHAPTER 2200. ACTIONS FOR WRONGFUL DEATH Rule 2201. Definitions.
As used in this chapter
''action'' means any civil action or proceeding [at law] brought in or appealed to any court of record which is subject to these rules;
* * * * * CHAPTER 2220. JOINDER OF PARTIES Rule 2226. Definitions.
As used in this chapter
''action'' means any civil action or proceeding [at law or in equity] brought in or appealed to any court of record which is subject to these rules.
CHAPTER 2250. JOINDER OF ADDITIONAL DEFENDANTS Rule 2251. Definitions.
As used in this chapter
''action'' means any civil action or proceeding [at law or in equity] brought in or appealed to any court of record which is subject to these rules.
* * * * * CHAPTER 2300. INTERPLEADER BY DEFENDANTS Rule 2301. Definitions.
As used in this chapter
''action'' means any civil action or proceeding [at law or in equity] brought in or appealed to any court which is subject to these rules:
* * * * * Rule 2318. Exclusive method at law; equity interpleader preserved.
The right of interpleader conferred by these rules shall be the exclusive method of interpleader in any action [at law] and shall be in addition to, and not in lieu of, the right to [file a bill in equity] commence a civil action for an interpleader.
CHAPTER 2320. INTERVENTION Rule 2326. Definitions.
As used in this chapter
''action'' means any civil action or proceeding [at law or in equity] brought in or appealed to any court of record which is subject to these rules.
Rule 2328. Petition to intervene.
* * * * * [Official Note: This subdivision adopts the equity practice. See Franklin Nat. Bank v. Kennerly Coal & Coke Co., 300 Pa. 479, 483, 484, 150 A. 902 (1930).]
* * * * * CHAPTER 2350. SUBSTITUTION OF PARTIES Rule 2351. Definitions.
As used in this chapter,
''action'' means any civil action or proceeding [at law or in equity] brought in or appealed to any court of record which is subject to these rules, including [actions] an action to obtain judgment upon a mechanics' lien claim but shall not include [actions] an action to enforce municipal liens and claims;
* * * * * CHAPTER 3000. JUDGEMENTS Subchapter A. TRANSFER OF JUDGMENTS TO OTHER COUNTIES Rule 3001. Definition.
As used in this chapter
''judgment'' means a judgment[,] or order [or decree] requiring the payment of money or adjudicating the right to possession in an action of replevin, including a final or interlocutory order for the payment of costs entered in any court which is subject to these rules, either originally or upon transcript or certification from another court within the same county.
Subchapter D. ENFORCEMENT OF MONEY JUDGEMENTS FOR THE PAYMENT OF MONEY Rule 3101. Definitions; garnishee.
(a) As used in this chapter
''judgment'' means a judgment[,] or order[, or decree] requiring the payment of money entered in any court which is subject to these rules, including a final or interlocutory order for payment of costs, except a judgment against the Commonwealth, a political subdivision or a public authority;
* * * * * Rule 3131. Sale of real property located in more than one county.
* * * * * (c) The court may enter judgment upon the pleadings or take evidence by deposition or otherwise, shall [decree] order the extent of the real property which shall be subjected to execution, describing it by metes and bounds, shall designate the place of sale, and shall control the distribution of the proceeds of sale. The court may apportion the proceeds so as to satisfy prior lienors, including those having a lien upon a portion of a single tract which lay in a different county and which was not sold on execution.
* * * * * CHAPTER 4000. DEPOSITIONS AND DISCOVERY Rule 4001. Scope. Definitions.
(a) The rules of this chapter apply to any civil action or proceeding [at law or in equity] brought in or appealed to any court which is subject to these rules including any action pursuant to the Eminent Domain Code of 1964 or the Municipal Claims Act of 1923.
* * * * * Explanatory Comment Introduction
I. Amendments to the Rules Governing the Civil Action
II. Effect of the Recommendation Upon the Rules Governing the Action in Equity
III. Conforming Amendments
Tables
Introduction
Recommendation No. 180 proposes to abolish the separate action in equity by amending the rules governing the civil action to include equitable relief. The ''merger of law and equity'' with respect to procedure is warranted in light of developments over the sixty-five year life of the rules of civil procedure. During that time, the procedural aspects of law and equity have been merged in most, if not all, American jurisdictions. It is a merger which has been successful and which has become familiar to lawyers and judges alike. The merger has occurred in a climate in which many cases are not solely actions at law or actions in equity but actions in which relief both equitable and legal in nature is sought.
A civil action in which both legal and equitable relief may be sought avoids the necessity of multiple actions when a party claims more than one kind of relief. It avoids the necessity to bring a second action ''just in case'' the action in equity is determined to be actually an action at law, or the reverse. It allows the court in a ''unified judicial system'' to grant the relief to which the parties are entitled without sacrificing substance to form.
The consolidation of the action in equity into the civil action does not stretch the imagination. Equity Rule 1501 now provides that ''the procedure in an action in equity shall be in accordance with the rules relating to a civil action.'' This recommendation proposes, first, to eliminate most of the remaining differences between the current civil action and action in equity and, second, to revise some of the civil action rules to accommodate cases in which equitable relief is sought.
While the recommendation affects a substantial number of civil action and equity rules, many rules will remain unchanged. Table I appended to this comment lists the civil action and equity rules which are proposed to be amended by the recommendation. Table II lists those equity rules which are proposed to be rescinded. Table III sets forth those rules which are not affected by the recommendation. Finally, Table IV lists the conforming amendments, i.e., additional rules of civil procedure which are affected by the proposal.
The remainder of this comment is directed to rules which will require rescission or revision.
I. Amendments to the Rules Governing the Civil Action
a. Scope of the Civil Action
Rule 1001(b) is amended to define the civil action as one ''in which shall be brought all claims for relief heretofore asserted in'' the actions of assumpsit, trespass and equity. Rule 1501 conforming the procedure in the action in equity to the procedure of the civil action will be rescinded.
Certain rules in Chapter 1500 are incorporated into the civil action. These rules, presently part of the action in equity, are concerned with equitable relief. They will continue to provide the procedure when equitable relief is sought but in the context of the civil action. Rule 1506 governing stockholder's derivative suits and Rule 1531 governing injunctive relief are examples of rules that will continue as part of the civil action.
It is proposed that the action to prevent waste be abolished. The relief sought in that action is injunctive relief which may be obtained in the consolidated civil action.
The action for declaratory judgment will remain a separate form of action. Rule 1601 will be amended to provide that the procedure governing the action when declaratory relief alone is sought will conform to the civil action rather than to the action in equity. Rule 1602 governing the procedure when declaratory relief is sought as ancillary relief is amended to delete the phrase ''at law or in equity'' but is otherwise unchanged.
The action for partition of real property also remains a separate form of action. Rule 1551 is amended to conform the procedure to the civil action rather than the action in equity.
b. Venue
Recommendation No. 180 does not propose to change the law governing venue but simply to consolidate the two rules into one.
Present Equity Rule 1503 incorporates the venue of the civil action and, if the subject matter of the action is property, further provides for venue in the county in which the property is located Under the proposed recommendation, Rule 1503 will be rescinded.
It is proposed that the present civil action venue provision in Rule 1006(a) continue as subdivision (a)(1). New subdivision (a)(2) will be added to provide venue when equitable relief is sought with respect to property. Similar to its counterpart in present Rule 1503, subdivision (a)(2) will authorize venue in the county in which
(2) the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property.
c. Service of Original Process
Rule 400 is entitled ''Person to Make Service''. The recommendation proposes to amend the rule to accommodate the merging of the forms of action. Thus, subdivision (b) is revised to refer to a ''civil action in which equitable relief is the only relief sought or the primary relief sought'' rather than an action in equity. No change in practice is intended by this revision. The sheriff will continue to serve original process as heretofore.
It is further proposed that Rule 1505. ''Defendant Not Served,'' be rescinded as unnecessary. It is not believed that the rule states a principle different from that applicable the present civil action.
d. Trial by Jury
The right to trial by jury is either constitutionally mandated or provided by Act of Assembly. The merger of the action in equity into the civil action does not affect the right so provided.
Consequently, it is proposed that the body of Rule 1007.1 remain unchanged. The title is revised to indicate that the rule applies where there is a jury trial ''as of Right''. A note is added to cross-refer to Rule 128(f) providing that ''no rule shall be construed to confer a right to trial by jury where such right does not otherwise exist.''
Present Rule 1513 provides for trial by jury and an advisory verdict in the action in equity. It is proposed that this provision be retained in the civil action as new rule 1007.2. Language is added to ensure that the rule will be limited to civil actions in which there is a claim for equitable relief.
A case may involve claims, one or more of which are triable by jury and others which are triable by the court without a jury. Such a case will necessarily require that the court exercise its discretion in the manner in which the case will proceed. For instance, the court may need to decide whether all claims should be tried at the same time or certain claims should be bifurcated, whether claims triable by jury should be tried before or after claims tried to the court, and whether to invoke new Rule 1007.2 providing for an advisory verdict. Rules cannot dictate the procedure for a particular instance. The course of the proceedings will depend upon the ''good judgment'' of the court in viewing the totality of the case.
e. Joinder of Causes of Action
Rule 1020 is to be revised to accommodate the merger of the action in equity into the civil action. Thus, subdivision (a) governing the permissive joinder of causes of action is revised to refer to a ''cause of action cognizable in a civil action'' rather than a ''cause of action heretofore asserted in assumpsit and trespass.'' Causes of action cognizable in a civil action are set forth in Rule 1001(b) and include the former actions of assumpsit, trespass and equity.
Subdivision (d)(1) of Rule 1020 governs mandatory joinder of related causes of action. It is revised to include related causes of action ''heretofore asserted in assumpsit and trespass'' but makes no mention of causes of action in equity. Thus, the present mandatory provision is continued only as to related claims previously asserted in assumpsit and trespass. The present practice of permissive joinder of related claims in equity is also continued.
It is not feasible to make mandatory the joinder of related causes of action in equity. It frequently occurs that equitable relief is needed quickly before a suit with all of its aspects may be prepared and filed. In addition, the full ramifications of a transaction or occurrence may not be fully known at the time an action is commenced, making it impossible to initially request all of the relief which eventually may be determined to be appropriate.
The recommendation also proposes a technical amendment to subdivision (d). That subdivision is presently divided into five paragraphs, three of which have been rescinded. It is proposed that present paragraph (4) be transposed to paragraph (1) as the second sentence. Paragraphs (2) through (5) may then be deleted and subdivision (d)(1) will be redesignated as subdivision (d).
In light of the foregoing it is proposed that Rule 1508 governing the pleading of more than one cause of action in equity be rescinded.
With respect to a counterclaim, it is proposed that Equity Rule 1510 be rescinded and that Civil Action Rule 1031 be amended to allow the pleading as a counterclaim of ''any cause of action cognizable in a civil action.''
f. Preliminary Objections and Defenses
Civil Action Rule 1028(a) sets forth six preliminary objections. Present Equity Rule 1509(a) incorporates these six objections into the action in equity. Under the proposed recommendation, these six objections will continue to be applicable to the new consolidated civil action.
Subdivisions (b) and (c) of present Rule 1509 provide for three additional preliminary objections applicable to the action in equity.
Rule 1509(b) provides for the objections of laches and failure to exercise or exhaust a statutory remedy to be raised by preliminary objection, answer or reply. However, the objections are not waived if not pleaded. The recommendation disposes of these two objections separately. It is proposed that the objection of laches be raised in new matter only. To this end, laches has not been included in amended Rule 1028(a) as a preliminary objection but continues as part of the list of defenses set forth in Rule 1030 governing new matter. It is further proposed that the objection of failure to exercise or exhaust a statutory remedy be limited to preliminary objections. To this end, this objection has been included in Rule 1028(a) as new paragraph (7). Under Rule 1032(a) governing waiver of defenses, as amended, the objection of laches will be waived for failure to plead it but the objection of failure to exercise or exhaust a statutory remedy will not be waived.
Present Rule 1509(c) provides for the objection of the existence of a full, complete and adequate non-statutory remedy at law to be raised by preliminary objection. The rule makes two points with respect to the objection. First, the objection is waived for failure to plead it. Second, if the objection is sustained, the court is required to certify the action to the law side of the court.
The recommendation proposes to transpose this objection of the existence of a full, complete and adequate non-statutory remedy at law to Rule 1028(a) as new paragraph (8). However, the recommendation also proposes that Rule 1032(a) be amended to provide that there will be no waiver if the defense is not pleaded.
The provision of the present equity rule for transfer to the law side of the court in the event the objection is sustained, is not continued. Under the consolidated civil action, there is no law side and no equity side. There is simply ''the court'' which is empowered to grant appropriate relief whether legal or equitable.
Although the procedural aspect of the objection of the existence of a full, complete and adequate non-statutory remedy at law is not continued, the objection retains vitality as a principle of substantive law barring the court from granting equitable relief.
g. Default Judgment
The recommendation proposes the amendment of Civil Action Rule 1037 governing judgment upon default or admission to accommodate the consolidation of the action in equity and the civil action.
Subdivision (b) is revised to prohibit the prothonotary from granting equitable relief admitted to be due by the defendant's pleadings. This is left to new subdivision (d) which incorporates the substance of Equity Rule 1511(b) providing that ''In all cases, the court shall enter an appropriate final decree...'' In view of the amendment to Rule 1037, the recommendation proposes that Rule 1511 be rescinded.
h. Decision and Adjudication
It is proposed that Civil Action Rule 1038, ''Trial Without Jury,'' will govern trials of the consolidated civil action by a judge without a jury. The only revision to the rule is a conforming amendment to subdivision (a)(1) to substitute the word ''obtain'' in place of ''suffer'' with respect to a nonsuit.
A note is added to the rule explaining that a decision includes what were formerly known as an adjudication and a decree nisi. Thus, a trial judge sitting without a jury will at the conclusion of the trial render a decision which will grant or deny relief, whether legal or equitable, as may be appropriate. Unless there is an Act of Assembly or general rule to the contrary, the decision will not constitute a final order or judgment.
Consequently, the recommendation proposes to abolish the present practice of an action in equity set forth in the following rules:
1. Rule 1516 governing oral argument and providing a limitation on requests for findings and conclusions,
2. Rule 1517 governing the adjudication, and
3. Rule 1520 governing the form of decree.
II. Effect of the Recommendation Upon the Rules Governing the Action in Equity
a. Equity Rules Rescinded
The following rules were discussed In Part I as proposed to be rescinded in light of amendments to the civil actions rules.
Rule 1501. Conformity to Civil Action
Rule 1503. Venue
Rule 1505. Defendant Not Served
Rule 1508. Pleading More than One Cause of Action
Rule 1509. Preliminary Objections
Rule 1510. Counterclaim
Rule 1511. Judgment upon Default or Admission
Rule 1513. Trial by Jury. Advisory Verdict
Rule 1516. Oral Argument. Limitation on Requests for Findings and Conclusions
Rule 1517. The Adjudication. Notice
Rule 1520. Form of Decree
The recommendation proposes the rescission of the following rules as well:
1. Rule 1502. Court Open
Rule 1502 providing that the equity side of the court shall always be open is to be rescinded as unnecessary in light of section 324 of the Judicial Code, 42 Pa.C.S. § 324, which contains a similar provision.
2. Rule 1507. Possible Persons Interested in Property
It is proposed that rule 1507 be rescinded. The rule is concerned with ''a person interested in property'' who should be made a party ''but the person's name or interest in the property cannot be ascertained and the person is not represented in the action''. It is suggested that the subject of the rule is covered by the law relating to indispensable parties, rendering the rule unnecessary.
3. Rule 1514. Examiners, Masters and Auditors
4. Rule 1515. Accountants and Experts
The court has inherent power to appoint such persons as are necessary to enable or facilitate the court in deciding cases. Rules providing for the appointment of such persons or denying that power are not required in the consolidated civil action.
5. Rule 1522. Rehearing
Rule 1522 governing rehearing is to be rescinded as unnecessary in light of Rule of Appellate Procedure 1701(b) providing for reconsideration of an order.
6. Rules 1523 through 1527. Costs
Presently, costs may be sought in a civil action though no rules prescribe a procedure to do so. It is suggested that special rules are not required simply because the civil action will include equitable as well as legal relief.
7. Rule 1528. Amendments
Rule 1528 governs amendment of the prayer for relief in an action in equity. Civil Action Rule 1033 provides a procedure for the amendment of a pleading. Consequently, the recommendation proposes that Rule 1528 be rescinded as unnecessary.
8. Rule 1529. Enforcement of Orders. Execution Process
Rule 1529 is concerned with several aspects of execution process. It is proposed that the rule be rescinded.
Subdivision (a) makes execution process available in actions at law available also to actions in equity. With the consolidation of the forms of action, this provision is no longer necessary.
Subdivision (b) authorizes the court to order the prothonotary or sheriff to perform an act which the party fails to perform. It is suggested that the power of contempt is available, rendering this provision unnecessary.
Subdivision (c) refers to arrest by attachment. Arrest, though limited by the Judicial Code, is an inherent power for which a rule is not necessary.
9. Rule 1530. Special Relief. Accounting
Civil Action Rule 1021 presently permits a party to demand relief in the alternative or of several different types, ''including an accounting''. There are no special civil action rules governing an accounting yet the remedy is available in the civil action. It is proposed that no special rule is required to govern an accounting and that Rule 1530 be rescinded.
10. Rule 1532. Special Relief. Perpetuation of Testimony
The proposed rescission of Rule 1532 is not intended to abolish the right to preserve testimony. In the context of a civil action, the rule has become obsolete in view of pre-complaint discovery which provides an adequate remedy. A party may file a writ of summons and immediately seek discovery as permitted under the applicable rules. Where necessary, a party can seek the assistance of the court to devise a procedure tailored to the particular case.
11. Rule 1536. Effective Date. Pending Actions
It is proposed that Rule 1536 be rescinded as obsolete. It had application only upon promulgation of the original equity rules in 1952.
b. Equity Rules Amended
1. Rule 1521. Indexing of Decree. Lien and Revival of Decree for Payment of Money
Rule 1521 is revised to eliminate references to the law side of the court. Otherwise, the rule remains unchanged.
2. Rule 1531. Special Relief. Injunctions
Rule 1531(f) is revised by substituting the term ''order'' in place of ''decree''. In addition, the cross-reference must be revised as it refers to Rule 1517 which is rescinded. The reference will be changed to Rule 1038(b) and (c) which will govern trials without a jury whether the relief sought is legal or equitable.
3. Rule 1533. Special Relief. Receivers
Subdivisions (e) and (g) of Rule 1533 are revised by substituting the term ''order'' in place of ''decree.''
c. Equity Rules Unchanged
It is proposed that the following rules remain unchanged. However, instead of being viewed as rules governing the action in equity, they will be viewed as rules governing equitable relief in the context of a civil action. These rules are:
1. Rule 1506. Stockholder's Derivative Action
2. Rule 1534. Accounting by Fiduciaries
3. Rule 1535. Objections to Security
III. Conforming Amendments
The conforming amendments revise various rules to accommodate the proposed amendments set forth in the recommendation. These amendments do not themselves affect practice or procedure. Generally, these amendments delete references to actions at law and actions in equity, replacing them with the ''civil action''. Similarly, the terms ''decree'' and ''adjudication'' found in a number of rules are deleted and replaced with the terms ''order'' and ''decision''.
By the Civil Procedural Rules Committee
R. STANTON WETTICK, Jr.,
ChairTables I. Civil Action and Equity Rules Amended Business of the Court
Rule 400. Person to Make Service Civil Action Rules
Rule 1001. Definition. Scope Rule 1006. Venue. Change of Venue Rule 1007.1. Jury Trial. Demand. Waiver Rule 1020. Pleading More than One Cause of action. Alternative Pleading. Failure to Join. Bar Rule 1028. Preliminary Objections Rule 1031. Counterclaim Rule 1032. Waiver of Defenses. Exceptions. Suggestion of Lack of Subject Matter Jurisdiction of Failure to Join Indispensable Party Rule 1037. Judgment Upon Default or Admission. Assessment of Damages Rule 1038. Trial Without Jury Order Effective February 8, 1969 Captioning and Docketing of Actions and Proceedings in the Courts of Common Pleas Equity
Rule 1521. Indexing of Decree. Lien and Revival of Decree for Payment of Money Rule 1531. Special Relief. Injunctions Rule 1533. Special Relief. Receivers II. Equity Rules Rescinded Rule 1501. Conformity to Civil Action Rule 1502. Court Open Rule 1503. Venue Rule 1504. Service (Previously rescinded) Rule 1505. Defendant Not Served Rule 1507. Specific Averments. Possible Persons Interested in Property. Appointment of a Representative Rule 1508. Pleading More than One Cause of Action Rule 1509. Preliminary Objections Rule 1510. Counterclaim Rule 1511. Judgment Upon Default or Admission Rule 1512. Nonsuit Rule 1513. Trial by Jury. Advisory Verdict Rule 1514. Examiners, Masters and Auditors Rule 1515. Accountants and Experts Rule 1516. Oral Argument. Limitation On Requests for Findings and Conclusions Rule 1517. The Adjudication. Notice Rule 1518. (Previously rescinded) Rule 1519. (Previously rescinded) Rule 1520. Form of Decree Rule 1522. Rehearing Rule 1523. Costs Rule 1524. Security for Costs Rule 1525. Interlocutory Order for Costs Rule 1526. Liability for Costs Rule 1527. Taxation of Costs Rule 1528. Amendments Rule 1529. Enforcement of Orders. Execution Process Rule 1530. Special Relief. Accounting Rule 1532. Special Relief. Perpetuation of Testimony Rule 1536. Effective Date. Pending Actions III. Civil Action and Equity Rules Unaffected Civil Action
Rule 1002. Authority of Attorney Rule 1003. Waiver of Rules. Extension of Time Rule 1007. Commencement of Action Rule 1012. Entry of Appearance. Withdrawal of Appearance. Notice Rule 1018. Caption Rule 1018.1. Notice to Defend. Form Rule 1019. Contents of Pleadings. General and Specific Averments Rule 1021. Claim for relief. Determination of Amount in Controversy Rule 1022. Paragraphing Rule 1023.1 et seq. Signing of Documents Rule 1024. Verification Rule 1025. Endorsement Rule 1026. Time for Filing. Notice to Plead Rule 1029. Denials. Effect of Failure to Deny Rule 1030. New Matter Rule 1033. Amendment Rule 1034. Motion for Judgment on the Pleadings Rules 1035.1--1035.5. Summary Judgment Rule 1036. Dismissal Upon Affidavit of Noninvolvement Rule 1038.1. Case Submitted on Stipulated Facts Rule 1038.2. Abolition of Case Stated Equity
Rule 1506. Stockholder's Derivative Action Rule 1534. Accounting by Fiduciaries Rule 1535. Objections to Security IV. Conforming Amendments Business of the Courts
Rule 205.4. Electronic Filing And Service Of Legal Papers Rule 227.1. Post-Trial Relief Rule 227.4. Entry of Judgment upon Praecipe of a Party Rule 236. Notice by Prothonotary of Entry of Order, Decree, or Judgment Rule 237. Notice of Praecipe for Final Judgment or Decree Rule 249. Authority of Individual Judge Rule 250. Scope of Chapter Service
Rule 440. Service of Legal Papers other than Original Process Action to Quiet Title
Rule 1066. Form of Judgment or Order Action of Mortgage Foreclosure
Rule 1141. Definitions. Conformity to Civil Action Partition of Real Property
Rule 1569. Master's Report. Exceptions Rule 1570. Adjudication and Decree. Decision Rule 1573. Return of Sale and Schedule of Distribution Actions by Real Parties in Interest
Rule 2001. Definitions Minors as Parties
Rule 2026. Definitions Incapacitated Persons as Parties
Rule 2051. Definitions The Commonwealth and Political Subdivisions as Parties
Rule 2101. Definitions Partnerships as Parties
Rule 2126. Definitions Rule 2129. Actions between Partner-ships and Partners Unincorporated Associations as Parties
Rule 2151. Definitions Rule 2154. Actions between Associations and Members Corporations and Similar Entities as Parties
Rule 2176. Definitions Rule 2178. Actions between a Corporation or Similar Entity and Members Thereof Actions for Wrongful Death
Rule 2201. Definitions Joinder of Parties
Rule 2226. Definitions Joinder of Additional Defendants
Rule 2251. Definitions Interpleader by Defendants
Rule 2301. Definitions Rule 2318. Exclusive Method at Law. Equity Interpleader Preserved Intervention
Rule 2326. Definitions Rule 2328. Petition to Intervene Substitution of Parties
Rule 2351. Definitions Transfer of Judgments to Other Counties
Rule 3001. Definition Enforcement of Judgments for the Payment of Money
Rule 3101. Definitions. Garnishee Rule 3131. Sale of Real Property Located in More than One County Discovery
Rule 4001. Definitions [Pa.B. Doc. No. 02-1042. Filed for public inspection June 14, 2002, 9:00 a.m.]
