1058 Order amending rules 202, 207, 315, 318, 324, 421, and 514 and adopting new rule 207.1 of the rules of conduct, office standards and civil procedure for magisterial district judges; no. 230 magisterial doc. no. 1
Title 246--MINOR COURT CIVIL RULES PART I. GENERAL [246 PA. CODE CHS. 200--500] Order Amending Rules 202, 207, 315, 318, 324, 421, and 514 and Adopting New Rule 207.1 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges; No. 230 Magisterial Doc. No. 1 [36 Pa.B. 2955]
[Saturday, June 17, 2006]Order The Minor Court Rules Committee has prepared a Final Report explaining the Supreme Court of Pennsylvania's Order amending Rules 202, 207, 315, 318, 324, 421, and 514, and adopting new Rule 207.1 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges, effective October 1, 2006. These rule changes further provide for definitions, representation in magisterial district court proceedings, attorneys of record, and notices. The Final Report follows the Court's Order.
Per Curiam:
And Now, this 1st day of June, 2006, upon the recommendation of the Minor Court Rules Committee; the proposal having been published before adoption at Volume 33, Pennsylvania Bulletin, page 4892 (October 4, 2003), and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pa.R.C.P.M.D.J. Nos. 202, 207, 315, 318, 324, 421, and 514 be, and hereby are, amended in the following form, and new Pa.R.C.P.M.D.J. No. 207.1 be, and hereby is, adopted in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective October 1, 2006.
Annex A TITLE 246. MINOR COURT CIVIL RULES PART I. GENERAL CHAPTER 200. RULES OF CONSTRUCTION; GENERAL PROVISIONS Rule 202. Definitions.
As used in these rules, the following words and phrases shall have the following meanings unless the context clearly indicates otherwise or the particular word or phrase is expressly defined in the chapter in which the particular rule is included:
''adult'' means an individual eighteen years of age or older;
''attorney at law'' means an individual admitted to practice law by the Supreme Court of Pennsylvania;
''attorney of record'' means an attorney at law who has filed a written document in accordance with Rule 207.1 as appearing for and representing a party in a legal proceeding;
* * * * * Rule 207. Representation in Magisterial District Court Proceedings.
(A) In magisterial district court proceedings[, individuals]:
(1) Individuals may be represented by themselves [or by counsel and corporations may be represented by their officers or counsel], by an attorney at law, or by a representative with personal knowledge of the subject matter of the litigation and written authorization from the individual to appear as the individual's representative.
(2) Partnerships may be represented by an attorney at law, a partner, or by an employee or authorized agent of the partnership with personal knowledge of the subject matter of the litigation and written authorization from a partner to appear as the partnership's representative.
(3) Corporations or similar entities and unincorporated associations may be represented by an attorney at law, by an officer of the corporation, entity, or association, or by an employee or authorized agent of the corporation, entity, or association with personal knowledge of the subject matter of the litigation and written authorization from an officer of the corporation, entity, or association to appear as its representative.
(B) A representative, employee, or authorized agent may take no action on behalf of a party until the written authorization required under paragraph (A)(1), (2), or (3) is filed with the court.
Official Note: This rule is intended to permit a non-lawyer representative, employee, or authorized agent to appear on behalf of an individual, partnership, corporation or similar entity, or unincorporated association, but not to allow a non-lawyer to establish a business for the purpose of representing others in magisterial district court proceedings.
It is intended that the designation of a non-lawyer representative, employee, or authorized agent to represent a party is to apply only on a case-by-case basis. A party may not give blanket authorization for a non-lawyer representative, employee, or authorized agent to represent the party in all cases involving the party.
As to ''personal knowledge of the subject matter of the litigation'' see Pa.R.E. 602 and Comment.
A business organized as a sole proprietorship may be represented in the same manner as an individual under paragraph (A)(1).
Official Note: See rules in [the 800 Series] Chapter 800 as to representation of minors and [incompetents] incapacitated persons by guardians.
Rule 207.1. Attorney of Record; Notices.
(A) An attorney at law shall be deemed the attorney of record for a party if and only if the attorney files with the magisterial district court a written statement acknowledging that he or she represents the party in the proceeding. The written statement must include the attorney's name, mailing address, and Supreme Court of Pennsylvania attorney identification number.
(B) An attorney of record for a party shall remain the attorney of record for that party until:
(1) the attorney of record gives written notice to the magisterial district court and the party that he or she is withdrawing as the attorney of record for the party, or;
(2) another attorney becomes the attorney of record for the party in accordance with paragraph (A).
(C) Except as otherwise provided in these rules, when a party has an attorney of record or is represented by a non-lawyer representative under Rule 207, and when a rule specifies that a notice is to be given or mailed to the party, a copy of the notice shall also be given or mailed to the attorney of record or the non-lawyer representative.
Official Note: Paragraph (B) provides for the withdrawal of an attorney of record. Nothing in this rule requires leave of court or that another attorney become the attorney of record before an attorney may withdraw. But compare Pa.R.C.P. No. 1012(b). Nothing in paragraph (B) is intended to affect an attorney's ethical duty to his or her client. See Pennsylvania Rules of Professional Conduct Rule 1.16.
Paragraph (C) makes clear that copies of all notices must be given or mailed to all parties of record as well as to all attorneys of record and non-lawyer representatives.
See Rule 207 regarding the designation and authorization of a non-lawyer representative.
CHAPTER 300. CIVIL ACTION Rule 315. Claim by Defendant.
* * * * * B. The rules governing the form, processing, and service of a plaintiff's complaint shall apply also to the defendant's complaint. The magisterial district judge shall set a date and time for the consolidated hearing of both complaints [together] that shall not be less than 12 or more than 30 days from the filing of the defendant's complaint. The magisterial district court shall promptly notify the parties of the date and time set for the consolidated hearing of both complaints.
* * * * * D. [If the defendant files a cross-complaint, the magisterial district judge shall promptly notify the plaintiff of the time and date set for the hearing of both complaints together. If the plaintiff has an attorney of record, the notice shall be given to the attorney of record instead of to the plaintiff.] Rescinded.
Official Note: [Subdivision] Paragraph A of this rule permits the defendant to file a cross-complaint against the plaintiff at least five days before the date originally set for the hearing, if it is for a claim cognizable by a magisterial district judge. See Section 1515(a)(3) of the Judicial Code, 42 Pa.C.S. § 1515(a)(3), as to waiver of jurisdictional limits, a defendant filing a cross-complaint being considered a ''plaintiff'' as to the cross-complaint within the meaning of this statute. The requirement that a cross-complaint be filed at least five days before the hearing is intended to give the magisterial district judge time to notify the [plaintiff or the plaintiff's attorney, under subdivision D of the rule, of any new hearing time and date] parties of any new hearing date and time. Notice under [subdivision D] paragraph B is not a substitute for [the] proper service [required under subdivision B]. If the defendant does not file an action at least five days before the hearing, the defendant may still file a complaint against the plaintiff, but it will not be processed as a cross-complaint.
* * * * * Rule 318. Informing Plaintiff of Notice of Intention to Defend.
If the defendant gives the magisterial district [judge] court notice of [his] intention to defend [under] in accordance with Rule 305(4)(a), the magisterial district [judge] court shall promptly [inform the plaintiff in writing that he has received such a notice by mailing to the plaintiff a copy of the completed Notice of Intent to Defend form. If the plaintiff has an attorney of record named in the complaint form, this information shall be given to the attorney of record instead of to the plaintiff] give the plaintiff written notice that the defendant intends to enter a defense.
Official Note: No specific form of notification from the defendant to the magisterial district court is required by this rule, but entries on the [complaint form] docket will show that the defendant gave notice of [his] intention to defend and that the magisterial district [judge informed] court gave written notice to the plaintiff [or his attorney of record thereof, when these events have occurred. A notation that a copy of the Notice of Intent to Defend form was sent to the plaintiff or his attorney of record shall be made on the complaint maintained in the magisterial district judge's files].
Rule 324. Notice of Judgment[,] or Dismissal [or Continuance,] and the Right to Appeal.
A. [The] Upon the entry of the judgment, the magisterial district [judge] court shall promptly give or mail to the parties written notice of judgment[,] or dismissal [or continuance. The written notice shall be given or mailed to all parties, but if any party has an attorney of record, the written notice shall be given or mailed to the attorney of record instead of to the party].
B. The written notice of judgment or dismissal shall contain:
(1) [advice as to] notice of the right of the parties to appeal, the time within which the appeal must be taken, and that the appeal is to the court of common pleas,
(2) [a statement advising] notice that, except as otherwise provided in the rules, if the judgment holder elects to enter the judgment in the court of common pleas, all further process must come from the court of common pleas and no further process may be issued by the magisterial district judge, and
(3) [a statement advising] notice that unless the judgment is entered in the court of common pleas anyone interested in the judgment may file a request for entry of satisfaction with the magisterial district judge if the judgment debtor pays in full, settles, or otherwise complies with the judgment.
Official Note: As to [subdivision] paragraph B(2), see Rule 402D and Note. As to [subdivision] paragraph B(3), see Rule 341.
CHAPTER 400. EXECUTION OF JUDGMENTS FOR THE PAYMENT OF MONEY Rule 421. Time for Hearing and Determination; Effective Date of Orders and Determination.
* * * * * B. The magisterial district [judge] court shall promptly give or mail to the parties written notice of the determination. [If a party has an attorney of record the written notice shall be given or mailed to the attorney of record instead of to the party.] Notice of the determination shall contain advice as to the right of the parties to file a Statement of Objection, the time within which the statement must be filed, and that the statement is to be filed with the court of common pleas.
* * * * * Official Note: [Subdivision] Paragraph A of this rule provides a time schedule within which the matters mentioned in Rule 420 must be heard and determined. These matters should be dealt with expeditiously.
[Subdivision] Paragraph D provides that, except for stays, determinations and orders of the magisterial district judge concerning the execution proceedings shall not take effect until after the expiration of ten days from the date of entry of the determination or order. This will give any aggrieved party in interest a chance to obtain a stay by filing a statement of objection in the court of common pleas during that period of time. See Rule 1016.
* * * * * CHAPTER 500. ACTIONS FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY Rule 514. Judgment; Notice of Judgment or Dismissal and the Right to Appeal.
* * * * * C. (1) Judgment shall be given at the conclusion of the hearing or within three [(3)] days thereafter [and shall be entered upon the form prescribed for the entry of judgment by the State Court Administrator].
(2) Upon the entry of the judgment, [copies of the prescribed form shall be given or mailed to all parties, but if any party has an attorney of record named in the complaint form the written notice shall be given to the attorney instead of to the party] the magisterial district court shall promptly give or mail to the parties written notice of judgment or dismissal. [Notice of judgment shall inform the parties of the right to appeal, the time within which the appeal must be taken, and that the appeal is to the court of common pleas.]
D. The written notice of judgment or dismissal shall contain:
(1) notice of the right of the parties to appeal, the time within which the appeal must be taken, and that the appeal is to the court of common pleas,
(2) notice that, except as otherwise provided in the rules, if the judgment holder elects to enter the judgment in the court of common pleas, all further process must come from the court of common pleas and no further process may be issued by the magisterial district judge, and
(3) notice that unless the judgment is entered in the court of common pleas anyone interested in the judgment may file a request for entry of satisfaction with the magisterial district judge if the debtor pays in full, settles, or otherwise complies with the judgment.
Official Note: [Subdivision] Paragraph A of this rule requires that the plaintiff appear and give testimony to prove the complaint before the magisterial district judge can enter judgment against the defendant, even when the defendant fails to appear for the hearing. The magisterial district judge may not enter a default judgment in a possessory action, including a judgment for money only. See Rule 512A and Note. The various issues that the magisterial district judge must determine at the hearing include: whether notice to quit was given to the defendant in accordance with law or that no notice was required under the terms of the lease; the amount or rent due, if any; damages to the leasehold premises, if any; the amount found to constitute the monthly rental, and; the amount of the security deposit held by the landlord, if any.
As to the notice to quit requirement, see Section 501 of The Landlord and Tenant Act of 1951, 68 P. S. § 250.501. See also Patrycia Bros., Inc. v. McKeefrey, 38 Pa. D. & C.2d 149 (Delaware County C.P. 1966).
The separate entries provided in [Subdivision] paragraph A are made necessary as a result of the rental deposit provisions for appeal or certiorari contained in Rules 1008B and 1013B, as well as the wage attachment provisions contained in Section 8127 of the Judicial Code, 42 Pa.C.S. § 8127.
As to paragraph D(2), see Rule 402D and Note. As to paragraph D(3), see Rule 341.
FINAL REPORT1 Amendments to Rules 202, 207, 315, 318, 324, 421, and 514, and Adoption of New Rule 207.1 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges Definitions; Representation in Magisterial District Court Proceedings; Attorneys of Record; Notices On June 1st, 2006, effective October 1, 2006, upon recommendation of the Minor Court Rules Committee,2 the Supreme Court of Pennsylvania amended Rules 202, 207, 315, 318, 324, 421, and 514, and adopted new Rule 207.1 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges.3
I. Background
The Minor Court Rules Committee (hereinafter the Committee) undertook a review of the rules relating to representation in magisterial district court proceedings, attorneys of record, and notices to parties and attorneys in response to a number of inquiries and requests for clarification in the rules. As a result of the Committee's review, the Committee is proposing a number of rule changes, as described below, to
* clarify who may represent a party in a magisterial district court proceeding;
* establish a more formal procedure for an attorney to become the attorney of record in a case, and;
* clarify that all notices sent by the magisterial district court should go to all parties of record and all attorneys of record.
II. Discussion
A. Representation in Magisterial District Court Proceedings
A number of correspondents requested that the Committee clarify Pa.R.C.P.M.D.J. No. 207, regarding representation in magisterial district court proceedings. The Committee learned that there has been confusion and a lack of uniformity in the magisterial district courts as to who may represent certain parties. Of particular note, the Committee received inquiries about property managers or similar agents ''representing'' landlords in landlord/tenant hearings. The Committee learned that it is not uncommon for property managers to file landlord/tenant cases on behalf of their landlord clients, to appear at hearings, present testimony, and examine witnesses. The property managers argue that this is a service they should be permitted to perform for their landlord clients because the property managers are paid to handle the day-to-day operations of their clients' rental properties. Similarly, the Committee also received inquiries regarding a manager or other non-officer employee or agent representing a business entity.
The Committee engaged in extensive discussion of these issues. At the core of this discussion was an attempt to strike a balance between protecting the public by not permitting or sanctioning the unauthorized practice of law on one hand, and recognizing the need to make the magisterial district courts as accessible and ''user friendly'' as possible on the other. The Committee considered very compelling arguments on both sides of this debate. Some argued that permitting a non-lawyer representative to present a case on behalf of the real party in interest would tacitly sanction the unauthorized practice of law.4 Others argued that requiring more parties to be represented by lawyers would diminish the role of the magisterial district court as a forum where litigants can easily and inexpensively resolve disputes.
Initially, the Committee published a version of this proposal that would have expressly restricted appearances and representation in magisterial district court to only the real party in interest or an attorney at law, with only a limited exception for corporate parties.5 Upon further consideration however, and after consultation with the Supreme Court, the Committee substantially revised its initial proposal to provide for representation by attorneys as well as, in certain circumstances, by non-lawyer representatives.
In the interest of promoting open access to the courts, the Committee concluded that a party appearing before a magisterial district court should be given the opportunity to be represented by a non-lawyer representative, employee, or agent who has personal knowledge of the subject matter of the litigation. Recognizing the often relatively uncomplicated matters that come before these courts, the Committee and the Court sought to draft a procedure that would permit a non-lawyer representative to appear on behalf of a party, but not to allow a non-lawyer to establish a business in order to represent others before magisterial district courts. For example, the Committee found compelling reasons to allow a property manager to file and present a landlord/tenant case on behalf of a landlord as part of the manager's broader property management services. The Committee recognized that the property manager is often more familiar with the day-to-day operations of a landlord's rental properties than is the landlord, and the manager is often in the best position to file and present a case on behalf of the landlord. In addition, the Committee found merit in allowing a relative, friend, or other interested person with personal knowledge of the subject matter of the litigation to appear on behalf of a party who is elderly, infirm, or who may benefit from having a representative file and appear on their behalf.
The Committee was satisfied that adequate safeguards will be in place to protect parties from receiving and acting upon incorrect ''legal advice'' from non-lawyer representatives. First, the rules will require that a non-lawyer representative, employee, or agent who appears on behalf of another must have ''personal knowledge of the subject matter of the litigation.'' The Committee believes this personal knowledge must be of a first-hand nature, and beyond that acquired merely by talking to the represented party. To clarify this, the rules will include a cross-reference to Pa.R.E. 602 (Lack of Personal Knowledge) in order to provide guidance as to the meaning of ''personal knowledge of the subject matter of the litigation.'' Second, the Official Notes to the rules will stress that that it is not the intent of the rules to permit a non-lawyer to establish a business for the purpose of representing others in magisterial district court proceedings. Finally, the Committee recognized that magisterial district judges are fully capable of conducting hearings in such a manner so as to maintain order and decorum while giving interested persons and their representatives appropriate opportunity to be heard.6
B. Attorneys of Record and Notices
In an issue tangentially related to representation in magisterial district court proceedings, the committee considered the rules relating to attorneys of record and notices to parties and attorneys. The Committee noted that the term ''attorney of record'' is used throughout the rules. There was no definition for the term, however, and no formal procedural mechanism for an attorney to become the attorney of record in a case. In addition, the Committee noted that the rules make reference to notices being sent to the attorney of record in 11 different instances. The rules, however, are somewhat inconsistent as to when a notice is to be given to the party, to the attorney of record, or both.
With regard to the procedure for an attorney to become the attorney of record in a case, the Committee believed it advisable that a more formal procedure be established. The Committee recognized that the rules require important notices, many affecting the rights of parties,7 are to be sent to the parties and their representatives. Without a procedure in place to determine that a party has an attorney of record, some important notices might not get to counsel. At the same time, however, recognizing the relative informality and expedited nature of magisterial district court proceedings, the Committee wanted to avoid a very formal procedure for the ''entry of an appearance'' as is used in the courts of record. Specifically, the Committee did not want to propose a rule that would require leave of court before an attorney could withdraw as the attorney of record in a matter.
As noted above, the Committee found 11 different instances in the rules that provide for notices being sent to a party or the party's attorney of record. For example, the Committee discovered, among others, the following instances:
* Pa.R.C.P.M.D.J. No. 421B provides that, ''[i]f a party has an attorney of record the written notice shall be given or mailed to the attorney of record instead of to the party.''
* Pa.R.C.P.M.D.J. No. 514C provides that, ''. . . if a party has an attorney of record named in the complaint form, the written notice shall be given to the attorney instead of to the party. (Emphasis added.)
The Committee found a number of other variations of these notice provisions throughout the rules. While some of these inconsistencies might be necessitated by differences in the procedures addressed in particular rules, the Committee reviewed each instance and attempted to draft procedures that are as consistent as possible in all the rules. Because attorneys often do not become involved in magisterial district court proceedings until later in the court process (e.g., after judgment is entered but before execution of the judgment), the Committee believed it advisable that all notices be sent to all parties of record and all attorneys of record.
III. Approved Rule Changes
To address the issues discussed above, the Committee proposed and the Court adopted the following rule changes.8
A. Rule 202
The Committee proposed that two new definitions, for ''attorney at law'' and ''attorney of record'' be added to Rule 202. The approved definition of ''attorney at law'' is similar, but not identical to the definition in Pa.R.C.P. No. 76.
B. Rule 207
The Committee proposed a complete rewrite of Rule 207. New paragraph (A) will specify the manner in which individuals (paragraph (A)(1)), partnerships (paragraph (A)(2)), and corporations or similar entities and unincorporated associations (paragraph (A)(3)) may be represented in magisterial district court proceedings. All three paragraphs will provide for representation by an attorney at law or by a non-lawyer representative, employee, or authorized agent with personal knowledge of the subject matter of the litigation. In addition, all three paragraphs will require that a non-lawyer representative, employee, or authorized agent have written authorization from the party to be represented.
New paragraph (B) will make clear that the written authorization required in paragraph (A) must be filed with the court before the non-lawyer representative, employee, or authorized agent may take any action on behalf of the party. For example, if a property manager wishes to file a landlord/tenant complaint on behalf of a landlord, the property manager will be required to file the written authorization of the landlord contemporaneously with filing the complaint.
As noted above, the Official Note to the rule will make clear that it is the intent of the rule to permit a non-lawyer representative to appear on behalf of a party, but not to allow a non-lawyer to establish a business in order to represent others before magisterial district courts. In addition, the Official Note will make clear that it is intended that the designation of a non-lawyer representative, employee, or authorized agent to represent a party is to apply only on a case-by-case basis, and a party may not give blanket authorization for a non-lawyer representative, employee, or authorized agent to represent the party in all cases involving the party. The Official Note will also contain the cross-reference to Pa.R.E. 602 and Comment discussed above, and it will make clear that a business organized as a sole proprietorship may be represented in the same manner as an individual under paragraph (A)(1).
C. New Rule 207.1
The Committee proposed an entirely new Rule 207.1 (Attorney of Record; Notices) to provide a procedure for an attorney to become and withdraw as the attorney of record in a case, and provide for notices. Paragraph (A) of the new rule will establish the procedure for becoming attorney of record, essentially requiring that the attorney file a written document with the magisterial district court. Paragraph (B) will provide for the withdrawal of the attorney of record. Paragraph (C) will serve as a blanket provision requiring that all notices sent from the magisterial district court be sent to all parties of record and all attorneys of record or non-lawyer representatives.
The Official Note will cross reference Pa.R.C.P. No. 1012(b). Also, given the relative ease with which an attorney can withdraw, the Note will make clear that nothing in the rule is intended to affect an attorney's ethical duty to his or her client.9
D. Correlative Amendments to Rules 315, 318, 324, 421, and 514
The Committee proposed that Rules 315, 318, 324, 421, and 514 be amended to delete the duplicative and inconsistent notice provisions.10 These notice provisions are no longer necessary because of the blanket provision in new Rule 207.1 requiring that ''when a party has an attorney of record or is represented by a non-lawyer representative under Rule 207, and when a rule specifies that a notice is to be given or mailed to the party, a copy of the notice shall also be given or mailed to the attorney of record or the non-lawyer representative.''
[Pa.B. Doc. No. 06-1058. Filed for public inspection June 16, 2006, 9:00 a.m.] _______
