1140 Order amending rules 410, 412 and 418 of the rules of conduct, office standards and civil procedure for magisterial district judges; no. 245 magisterial rules; doc. no. 1

PART I. GENERAL

[ 246 PA. CODE CH. 400 ]

Order Amending Rules 410, 412 and 418 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges; No. 245 Magisterial Rules; Doc. No. 1

[38 Pa.B. 3356]
[Saturday, June 21, 2008]

Order

Per Curiam:

   And Now, this 9th day of June, 2008, upon the recommendation of the Minor Court Rules Committee; the proposal having been published before adoption at Volume 35, Pennsylvania Bulletin, page 245 (January 8, 2005), 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. 410, 412 and 418 be, and hereby are, amended to read as follows.

   This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective January 1, 2009.

Annex A

TITLE 246. MINOR COURT CIVIL RULES

PART I. GENERAL

CHAPTER 400. ENFORCEMENT OF JUDGMENTS RENDERED BY MAGISTERIAL DISTRICT JUDGES FOR THE PAYMENT OF MONEY

Rule 410. [Bond for] Stay of Execution Generally.

   (A)  Execution shall be stayed as to the property of the defendant upon the occurrence of any of the following:

   (1)  Upon written request of the plaintiff to the magisterial district court.

   (2)  Upon the entry of [If the defendant, or any person or party in interest, enters] a bond with the magisterial district [judge] court by any person or party in interest, with security approved by [him] the magisterial district judge, in the amount of the plaintiff's judgment, including probable interest and costs, or in such lesser amount as the magisterial district judge may direct, [the magisterial district judge shall stay execution as to the property of the defendant. The bond shall name] naming the Commonwealth of Pennsylvania as the obligee, and [shall be] conditioned to pay the amount due within [ninety (90)] 90 days of the entry of the bond, unless the time for payment is extended by the magisterial district judge. [This rule does not apply to judgments obtained for wages for manual labor.]

   (B)  When execution is stayed pursuant to this rule, the stay may not be lifted without written order of the magisterial district judge.

   (C)  After a stay is lifted, execution may proceed without reissuance of the order of execution.

   Official Note: Compare Pa.R.C.P. No. 3121(a) [(2)]. Other rules in this chapter may also provide for a stay in specific circumstances covered by those rules.

Rule 412. Notice of Sale.

   [A.] (A)(1)  The executing officer shall give notice of the sale of personal property at least six days prior to the sale [by handbills posted in the office of the magisterial district judge from which the order of execution issued, at the place of sale and, if different from the place of sale, at the place of levy and by mailing a copy of the handbill to the defendant at his last known address and to the plaintiff].

   (2)  The executing officer shall give notice of the sale in the following manner:

   (a)  By handbill posted in the magisterial district court from which the order of execution issued and, if different from the court from which the order issued, in the magisterial district court in the magisterial district in which the place of the sale is located.

   (b)  By handbill posted at the place of sale and, if different from the place of sale, at the place of levy.

   (c)  By mailing a copy of the handbill to the plaintiff and to the defendant at his or her last known address.

   [B.] (B)  The notice of sale shall include a notice that all claims to the property must be filed before sale in the [office of the] magisterial district [judge] court from which the order of execution issued and that all claims to the proceeds must be filed in that [office] court before distribution; that a proposed schedule of distribution will be filed in that [office] court on a date specified not later than five [(5)] days after the sale; and that distribution will be made in accordance with the proposed schedule unless exceptions are filed in that court within ten [(10)] days thereafter. No further notice of the filing of the schedule of distribution need be given.

   [C.] (C)  If a new date for sale is set, new notice shall be given as prescribed in [subdivisions A and B] paragraphs (A) and (B) of this rule.

   Official Note: Compare Pa.R.C.P. No. 3128. See Section 8151 of the Judicial Code, [§ 8151,] 42 Pa.C.S. § 8151, [added by § 10(96) of the Judiciary Act Repealer Act, Act of April 28, 1978, P. L. 202, No. 53,] as to giving notice to the Department of Revenue [, at least twenty days prior to sale, a report or return concerning the property to be sold, unless exempted by regulation].

Rule 418. Abandonment of Levy for Inability to Hold Sale.

   [The] (A)  Except as otherwise provided in paragraph (B), the officer executing the order shall abandon the levy if sale of the property levied upon is not held within [six (6)] three months after the levy.

   (B)  Periods during which sale is stayed under any provision of these rules shall be excluded in computing [such six months] the three month period provided in paragraph (A), but in all cases the officer executing the order shall abandon the levy if sale of the property levied upon is not held within six months.

   Official Note: Compare Pa.R.C.P. No. 3120(2). This rule requires the executing officer to abandon the levy if sale is not held within [six] three months, [with the exclusion mentioned, instead of merely permitting him to do so as under the cited rule] excluding time periods when the execution may be stayed, but in all cases the levy must be abandoned if the sale is not held within six months of the levy. It was considered that the particular execution proceedings should terminate under these circumstances.

FINAL REPORT¹

Amendments to Pa.R.C.P.M.D.J. Nos. 410, 412
and 418

TECHNICAL AMENDMENTS CONCERNING EXECUTION OF JUDGMENTS FOR MONEY; STAY OF EXECUTION; ABANDONMENT OF LEVY

I.  Introduction

   On June 9, 2008, effective January 1, 2009, upon recommendation of the Minor Court Rules Committee,² the Supreme Court of Pennsylvania approved amendments to Rules 410, 412 and 418 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges.³

II.  Discussion and Rule Changes

   The Minor Court Rules Committee (''the Committee'') proposed technical amendments to Rules 410, 412, and 418 of the Rules of Conduct, Office Standards, and Civil Procedure for Magisterial District Judges to address three separate issues concerning the execution of judgments for money.

A.  Rules 410 and 418

   The Committee reviewed Pa.R.C.P.M.D.J. No. 410 in response to an inquiry from a constable who asked if execution of a money judgment could be stayed upon request of the plaintiff. The Committee noted that the magisterial district court rules governing execution of money judgments do make provision for a stay of execution in certain circumstances,⁴ but not specifically at the request of the plaintiff. The Committee further noted that the Rules of Civil Procedure governing actions in the courts of record do provide for a stay of execution ''upon written direction of the plaintiff.''⁵

   The Committee believed it advisable to incorporate a provision into the magisterial district court rules to allow for stay upon request of the plaintiff. The Committee reasoned that post-judgment settlement negotiations may affect a plaintiff's desire to move forward with execution once commenced, and believed that a plaintiff should have the ability to request a stay of execution. This proposed rule would differ from Pa.R.C.P. No. 3121(a)(1) in that it would provide for a stay of execution upon written request of the plaintiff to the magisterial district judge. The requirement that the plaintiff make the request to the court would enable the magisterial district judge to make a judicial determination as to whether the stay should be granted and provide more certainty as to when the stay takes effect.

   Accordingly, the Committee proposed that Rule 410 be amended to provide for the stay of execution upon written request of the plaintiff to the magisterial district court. To accomplish this, the Committee proposed that Rule 410 be tabulated into three paragraphs. Paragraph (A) contains the provisions as to when execution shall be stayed, including the new provision regarding a stay at the request of the plaintiff. Within paragraph (A), the Committee proposed that the provision regarding the inapplicability of the rule to judgments obtained for wages for manual labor be deleted. This provision was based on a prior law⁶ that was repealed by the Judiciary Act Repealer Act,⁷ and was not expressly codified in the Judicial Code (Title 42, Pennsylvania Consolidated Statutes).

   New paragraphs (B) and (C) have been added to Rule 410 to provide that when execution is stayed under the rule the stay may not be lifted without written order of the magisterial district judge, and that when a stay is lifted execution may proceed without reissuance of the order of execution.

   In the course of reviewing the Rule 410 stay provisions, the Committee reviewed the provisions in Rule 418 regarding the abandonment of a levy for inability to hold a sale. The existing rule provides that the levy shall be abandoned if a sale is not held within six months. The Committee was concerned, however, with the existing provision in the rule that periods during which the sale is stayed are excluded from the six month period. Specifically, the Committee was concerned that under the current provisions of the rule property could be subject to levy ad infinitum so long as a stay was issued and not lifted. This, of course, could impose a tremendous burden on the judgment debtor whose property is subject to the levy. The Committee noted that this situation could arise more easily if execution could be stayed simply by a request of the plaintiff as was proposed under Rule 410.

   To address this problem, the Committee proposed that Rule 418 be divided into two paragraphs. New paragraph (A) provides that as a general rule the levy shall be abandoned if a sale is not held within three months. New paragraph (B) still excludes from the three-month period time during which the sale is stayed, but in all cases the executing officer would be required to abandon a levy if a sale is not held within six months. This new provision is intended put limits on the amount of time property can be subject to levy, and to enable the magisterial district judge to have more control over the length of time a stay is in effect.

B.  Rule 412

   The Committee reviewed Pa.R.C.P.M.D.J. No. 412 in response to an inquiry from a constable who suggested that an executing officer be required to post notice of a sale in the magisterial district court in the magisterial district in which the place of sale is located if different from the court from which the order of execution issued.⁸ It was suggested that this requirement would aid in informing an executing officer of other levies that may have been made upon the same property that is the subject of his or her levy and sale. This information is needed so that an executing officer will know if there is an existing levy by another executing officer that has priority over his or her levy.

   The Committee agreed that such a notice requirement would be helpful. Accordingly, the Committee divided Rule 412A into two paragraphs. Paragraph (A)(1) contains the existing provision that notice of the sale be given at least six days prior to the sale. Paragraph (A)(2) contains the requirements as to how notice is to be given, including the new provision discussed above.

   In addition, the Committee made other minor revisions to the rules and Notes to address gender neutrality issues and to enhance clarity.

[Pa.B. Doc. No. 08-1140. Filed for public inspection June 20, 2008, 9:00 a.m.]

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