1452 Order amending Rules 403, 515, 516 and 519 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices

[246 PA. CODE CHS. 400 AND 500]

Order Amending Rules 403, 515, 516 and 519 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices

[31 Pa.B. 4392]

   The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa. Rs.C.P.D.J. Nos. 403, 515, 516, and 519 to provide for the reissuance of an order of execution or order for possession after a supersedeas has been terminated or a stay has been lifted; to establish time limitations to request the issuance or reissuance of an order for possession in cases arising from residential leases, and; to make other technical or ''housekeeping'' amendments to these rules. The Committee has not submitted this proposal for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. The Committee's Report should not be confused with the official Committee Notes to the rules. The Supreme Court does not adopt the Committee's Notes or the contents of the explanatory Reports.

   The text of the proposed changes precedes the Report.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel,

Michael F. Krimmel, Counsel
Supreme Court of Pennsylvania
Minor Court Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055

or e-mail to:  [e-mail]

no later than September 10, 2001.

By the Minor Court Rules Committee

FRED A. PIERANTONI, III,   
Chair

Annex A

TITLE 246.  MINOR COURT CIVIL RULES

PART I.  GENERAL

CHAPTER 400.  EXECUTION OF JUDGMENTS FOR THE PAYMENT OF MONEY

Rule 403.  Issuance and Reissuance of Order of Execution.

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   B.  (1) Upon written request filed by the plaintiff within five years from the date of entry of the judgment, an order of execution [may] shall be reissued at any time and any number of times [except that any request for reissuance must be filed within five (5) years from the date of the judgment].

   (2)  If an order of execution is superseded by an appeal, writ of certiorari, supersedeas, or a stay pursuant to a bankruptcy proceeding, and

   (a)  the appeal, writ of certiorari, or supersedeas is stricken, dismissed, or otherwise terminated; or

   (b)  the bankruptcy stay is lifted; and

   (c)  the plaintiff wishes to proceed with the order of execution,

the plaintiff must file with the district justice a written request for reissuance of the order of execution in accordance with subparagraph (1).

Official Note:

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   Subdivision B will permit the reissuance of an order of execution upon written request of the plaintiff timely filed. Compare Pa.R.C.P. No. 3106(b). The written request for reissuance may be in any form and may consist of a notation on the permanent copy of the request for order of execution form, ''Reissuance of order of execution requested'', subscribed by the plaintiff. The district justice shall mark all copies of the reissued order of execution, ''Reissued. Request for reissuance filed ______ (time and date)''. A new form [or new form sets] may be used upon reissuance, those portions retained from the original being exact copies although signatures may be typed or printed with the mark ''/s/''. There is no filing fee for reissuing an order of execution, for the reissuance is merely a continuation of the original proceeding. However, there may be additional server fees for service of the reissued order of execution.

   If the plaintiff files a written request for reissuance of the order of execution pursuant to subparagraph B(2), the request should be accompanied by a copy of the court order or other documentation striking, dismissing, or terminating the appeal, writ of certiorari, or supersedeas, or lifting the bankruptcy stay.

   Amended Jan. 29, 1976, effective in 30 days; amended effective March 24, 1977; April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; March 27, 1992, effective June 25, 1992 [The March 27, 1992, Order provided in part: ''In promulgating this order, the Court recognizes that the District Justice Automation Project will be affected by said Rule changes and that, therefore, those Rules which affect the Project will become effective as the District Justice offices are brought on-line]; amended July 16, 2001, effective August 1, 2001; amended ______ , effective ______ .

CHAPTER 500. ACTIONS FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY

Rule 515.  Request for Order for Possession.

   A.  If the district justice has rendered a judgment arising out of a non-residential lease that the real property be delivered up to the plaintiff, the plaintiff may, after the [fifteenth (15th)] 15th day following the date of the entry of the judgment, file with the district justice a request for an order for possession on a form [which shall be] prescribed by the [State Court Administrator] state court administrator. The request [form shall be attached to the order, and] shall include a statement of the judgment amount, return, and all other matters required by these rules.

   B. (1)  [If] Except as otherwise provided in subparagraph (2), if the district justice has rendered a judgment arising out of a residential lease that the real property be delivered up to the plaintiff, the plaintiff may after the [tenth (10th)] 10th day but before the 121st day following the date of the entry of the judgment, file with the district justice a request for an order for possession on a form [which shall be] prescribed by the [State Court Administrator] state court administrator. The request [form shall be attached to the order, and] shall include a statement of the judgment amount, return, and all other matters required by these rules.

   (2)  In a case arising out of a residential lease, if before the plaintiff requests an order for possession,

   (a)  an appeal or writ of certiorari operates as a supersedeas; or

   (b)  proceedings in the matter are stayed pursuant to a bankruptcy proceeding; and

   (c)  the supersedeas or bankruptcy stay is subsequently stricken, dismissed, lifted, or otherwise terminated so as to allow the plaintiff to proceed to request an order for possession,

the plaintiff may request an order for possession only within 120 days of the date the supersedeas or bankruptcy stay is stricken, dismissed, lifted, or otherwise terminated.

Official Note:

   The fifteen days in subdivision A of this rule, [plus] when added to the [sixteen days] 16 day period provided for in Rule [519.A.] 519(A), will give the defendant time to obtain a supersedeas within the appeal period. [See Pa. R.C.P.D.J. Nos.] See Rules 1002, 1008, 1009, and 1013.

   The 1995 amendment to [§] section 513 of [the] The Landlord [/] and Tenant Act of 1951, 68 P. S. § 250.513, [(Act No. 1995-33)] established a [ten day] ten-day appeal period [of time for an appeal] from a judgment for possession of real estate arising out of a residential lease; therefore, the filing of the request for order of possession in [subdivision B] subparagraph B(1) is not permitted until after the appeal period [of time for appeal] has expired. In cases arising out of a residential lease, the request for order for possession generally must be filed within 120 days of the date of the entry of the judgment.

   Subparagraph B(2) provides that in a case arising out of a residential lease, if a supersedeas (resulting from an appeal or writ of certiorari) or bankruptcy stay is stricken, dismissed, lifted, or otherwise terminated, thus allowing the plaintiff to proceed with requesting an order for possession, the request may be filed only within 120 days of the date the supersedeas or bankruptcy stay is stricken, dismissed, lifted, or otherwise terminated.

   The time limits in which the plaintiff must request an order for possession imposed in subdivision B apply only in cases arising out of residential leases and in no way affect the plaintiff's ability to execute on the money judgment. See Rule 516, Note, and Rule 521(A).

   Amended June 1, 1971; amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; March 27, 1992, effective June 25, 1992 [The March 27, 1992, Order provided in part: ''In promulgating this order, the Court recognizes that the District Justice Automation Project will be affected by said Rule changes and that, therefore, those Rules which affect the Project will become effective as the District Justice offices are brought on-line]; March 28, 1996, effective March 29, 1996; amended ______  , effective ______ .

Rule 516.  Issuance and Reissuance of Order for Possession.

   A.  Upon the timely filing of the request form, the district justice shall issue the order for possession and shall deliver it for service and execution to the sheriff of, or any certified constable in, the county in which the office of the district justice is situated. If this service is not available to the district justice, service may be made by any certified constable of the Commonwealth. The order shall direct the officer executing it to deliver actual possession of the real property to the plaintiff. The district justice shall attach a copy of the request form to the order for possession.

   B.  (1) Except as otherwise provided in subdivision C, upon written request of the plaintiff the district justice shall reissue an order for possession for one additional 60 day period.

   (2)  If an order for possession is issued and subsequently superseded by an appeal, writ of certiorari, supersedeas, or a stay pursuant to a bankruptcy proceeding, and

   (a)  the appeal, writ of certiorari, or supersedeas is stricken, dismissed, or otherwise terminated; or

   (b)  the bankruptcy stay is lifted; and

   (c)  the plaintiff wishes to proceed with the order for possession,

the plaintiff must file with the district justice a written request for reissuance of the order for possession in accordance with subparagraph (1).

   C.  In a case arising out of a residential lease a request for reissuance of an order for possession may be filed only within 120 days of the date of the entry of the judgment or, in a case in which the order for possession is issued and subsequently superseded by an appeal, writ of certiorari, supersedeas, or a stay pursuant to a bankruptcy proceeding, only within 120 days of the date the appeal, writ of certiorari, or supersedeas is stricken, dismissed, or otherwise terminated, or the bankruptcy stay is lifted.

Official Note:

   The order for possession deals only with delivery of possession of the real property and not with a levy for money damages. [When the] A plaintiff who seeks execution of the money judgment part of the judgment[, he will have to] must proceed under Rule [521A] 521(A), using the forms and procedure there prescribed. The reason for making this distinction is that the printed notice requirements on the two forms, and the procedures involved in the two matters, differ widely.

   Subdivision B provides for reissuance of the order for possession for one additional 60 day period. However, pursuant to subdivision C, in cases arising out of a residential lease, the request for reissuance of the order for possession must be filed within 120 days of the date of the entry of the judgment or, in a case in which the order for possession is issued and subsequently superseded by an appeal, writ of certiorari, supersedeas, or a stay pursuant to a bankruptcy proceeding, only within 120 days of the date the appeal, writ of certiorari, or supersedeas is stricken, dismissed, or otherwise terminated, or the bankruptcy stay is lifted. The additional 60 day period need not necessarily immediately follow the original 60 day period of issuance. The written request for reissuance may be in any form and may consist of a notation on the permanent copy of the request for order for possession form, ''Reissuance of order for possession requested,'' subscribed by the plaintiff. The district justice shall mark all copies of the reissued order for possession, ''Reissued. Request for reissuance filed ______ (time and date).'' A new form may be used upon reissuance, those portions retained from the original being exact copies although signatures may be typed or printed with the mark ''/s/.'' There is no filing fee for reissuing an order for possession, for the reissuance is merely a continuation of the original proceeding. However, there may be additional server fees for service of the reissued order for possession.

   If the plaintiff files a written request for reissuance of the order for possession after an appeal, writ of certiorari, or supersedeas is stricken, dismissed, or otherwise terminated, or a bankruptcy stay is lifted, the request should be accompanied by a copy of the court order or other documentation striking, dismissing, or terminating the appeal, writ of certiorari, or supersedeas, or lifting the bankruptcy stay.

   The time limits in which the plaintiff must request reissuance of an order for possession imposed in subdivision C apply only in cases arising out of residential leases and in no way affect the plaintiff's ability to execute on the money judgment. See Rule 521(A).

   Amended June 30, 1982, effective 30 days after July 17, 1982; amended July 16, 2001, effective August 1, 2001; amended ______ , effective ______ .

Rule 519.  Forcible Entry and Ejectment.

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   C.  No order for possession [shall] may be executed [on or] after [sixty (60)] 60 days following its issuance or reissuance. [An order for possession shall be reinstated for one (1) additional sixty (60) day period upon written request for order for possession to the district justice. (See Pa. R.C.P.D.J. No. 515).]

Official Note:

   The differing lengths of notices set for nonresidential leases and residential leases are made necessary by reason of the 1995 amendment to [Section] section 513 of the Landlord [/] and Tenant Act of 1951, 68 P. S. §  250.513. [See Note following Pa. R.C.P.D.J. No. 515.] See Rule 515, Note.

   [Subdivision C of this Rule will permit the reinstatement, upon written request of the plaintiff of an order for possession which has not been executed on or after sixty (60) days following its issuance. The written request for reinstatement may be in any form and may consist of a notation on the permanent copy of the order for possession form ''Reinstatement of order requested,'' subscribed by the plaintiff. The district justice shall mark all copies of the reinstated order for possession ''Order Reinstated. Request for reinstatement filed on ______ (Date).'' If it is necessary to use a new form or new form sets for the reinstated order for possession, the reinstated order for possession, except for service portions thereof, shall be an exact copy of the original order for possession, although signatures may be typed with the mark ''/s/'' indicating an actual signature. Since a reinstated order for possession is merely a continuation of the original action, there is no filing fee for reinstating an order for possession.]

   Amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; March 27, 1992, effective June 25, 1992 [The March 27, 1992, Order provided in part: ''In promulgating this order, the Court recognizes that the District Justice Automation Project will be affected by said Rule changes and that, therefore, those Rules which affect the Project will become effective as the District Justice offices are brought on-line]; March 28, 1996, effective March 29, 1996; amended ______ , effective ______ .

REPORT

Proposed Amendments to Pa. Rs.C.P.D.J.
Nos. 403, 515, 516, and 519

   Issuance and Reissuance of Order of Execution or Order for Possession After Supersedeas is Terminated or Stay is Lifted; Time Limits for Requesting Issuance or Reissuance of Order for Possession in Cases Arising from Residential Leases

I.  Background

   The Committee undertook a review of various issues related to the issuance and reissuance of orders of execution and orders for possession on its own initiative. The Committee wished to clarify the procedures for the reissuance of an order of execution or order for possession after a supersedeas is terminated or a stay is lifted. Further, the Committee wished to establish a time limit for a plaintiff to request the issuance or reissuance of an order for possession in cases arising from residential leases.

   The proposed amendments providing for the reissuance of an order of execution or order for possession after a supersedeas is terminated or a stay is lifted are necessary to make clear the Committee's position that a plaintiff must request a reissuance of the order of execution or order for possession and may not simply proceed with the previously issued order.

   Further, the Committee believes it is necessary to amend the rules to impose a specific time limitation on the plaintiff to request the issuance or reissuance of an order for possession, in cases arising from residential leases, to prevent the plaintiff (landlord) from requesting and executing an order for possession at any time after judgment even though the plaintiff may have led the defendant (tenant) to believe that the defendant could remain in the leased premises under arrangements to pay the back rent. Rule 518 (Satisfaction of Order By Payment of Rent and Costs) provides that ''the defendant may, in a case for the recovery of possession solely because of failure to pay rent, satisfy the order for possession by paying . . . the rent actually in arrears and the costs of the proceedings.'' Pa. R.C.P.D.J. No. 518. This ''pay and stay'' rule enables defendants to avoid eviction by paying back rent in full before the order for possession is executed. The Committee has learned, however, that in many cases even if the defendant is unable to pay the full rent in arrears to avoid eviction, the plaintiff, having received a judgment from the district justice, may allow the defendant to stay in the premises on the condition that the defendant pay the back rent in accordance with some payment plan. Because of the serious and sensitive issues surrounding one being evicted from one's home, the Committee proposes to impose a time limit for the plaintiff to request the issuance or reissuance of an order for possession.

   In conjunction with proposed amendments to the rules regarding orders of execution and orders for possession, the Committee also recognized the need for several technical or ''housekeeping'' amendments to these rules.

II.  Discussion of Rule Changes

A.  Reissuance of Orders After Supersedeas Is Terminated or Stay Lifted

   1.  Rule 403

   The Committee proposes an amendment to Rule 403 (Issuance and Reissuance of Order of Execution) to add a subparagraph B(2) to provide for the reissuance of an order of execution upon the disposition of an appeal, writ of certiorari, or bankruptcy stay that had superseded or stayed the original order of execution.

   The Committee recognized that in most cases an appeal or writ of certiorari will not operate as a supersedeas against an order of execution, because normally the appeal or writ will be filed before an order of execution may be issued because of the 30 day waiting period for requesting an order of execution prescribed by Rule 402(A). However, the Committee believed it necessary to provide for this possibility because of the provision in Rule 1002 allowing for an appeal to be filed after the 30 day appeal period with leave of court; and the provision in Rule 1009 allowing for the filing at any time of a writ of certiorari claiming lack of personal or subject matter jurisdiction.

   The new subparagraph would require a plaintiff who wishes to proceed with an order of execution after a supersedeas has been terminated or a stay lifted to request a reissuance of the order in accordance with the existing rule.

   The Committee also proposes a revision to the Note to Rule 403 to make clear that, although there is no filing fee for a reissued order of execution, there may be additional server fees. Further, the Note would make clear that a party requesting a reissuance of an order after a supersedeas is terminated or a stay is lifted should provide the court with an order or other documentation striking, dismissing, terminating, or lifting the supersedeas or stay.

   2.  Rule 516

   The Committee is proposing a similar amendment to Rule 516 (Issuance of Order for Possession) to add a subparagraph B(2) to provide for the reissuance of an order for possession upon the disposition of an appeal, writ of certiorari, or bankruptcy stay that had superseded or stayed the original order for possession. However, the proposed amendment to Rule 516 differs from the Rule 403 proposal in that the request for reissuance, in cases arising from residential leases, would be subject to a 120 day time limit from the date the appeal, writ, supersedeas, or stay is terminated or lifted. This time limitation will be discussed in greater detail below.

   The Committee recognized that in most cases an appeal or writ of certiorari will not operate as a supersedeas against an order for possession, because normally the appeal or writ will be filed before an order for possession may be issued because of the waiting periods for requesting an order for possession prescribed by Rule 515. However, the Committee believed it necessary to provide for this possibility because of the provision in Rule 1002 allowing for an appeal to be filed after the normal appeal period with leave of court; and the provision in Rule 1009 allowing for the filing at any time of a writ of certiorari claiming lack of personal or subject matter jurisdiction.

   The Committee also proposes a revision to the Note to Rule 516 to make clear that, although there is no filing fee for a reissued order for possession, there may be additional server fees. Further, the Note would make clear that a party requesting a reissuance of an order after a supersedeas is terminated or a stay lifted should provide the court with an order or other documentation striking, dismissing, terminating, or lifting the supersedeas or stay.

B.  Time Limitation on Issuance and Reissuance of Order for Possession in Cases Arising From Residential Leases

   1.  Rule 515

   The Committee is proposing that subdivision B of Rule 515 (Request for Order For Possession) be amended to impose a 120 day time limit for the plaintiff to request an order for possession in cases arising from residential leases. Under the proposed subparagraph B(1), dealing with residential leases, the plaintiff would be permitted to request an order for possession after the 10th day but before the 121st day. Also, the Committee proposes the addition of a subparagraph B(2) to provide for a 120 day time limit for the plaintiff to request an order for possession, in a case arising from a residential lease, after a supersedeas or bankruptcy stay is terminated or lifted, thus allowing the plaintiff to proceed with the initial request for an order for possession.

   The Note to the rule would make clear that the time limitation applies only to the request for order for possession in a case arising from a residential lease, and in no way affects the plaintiff's ability to execute on the money judgment.

   2.  Rule 516

   The Committee is also proposing a 120 day time limit on requests for the reissuance of orders for possession in cases arising from residential leases. The Committee proposes that Rule 516 (Issuance of Order For Possession) be amended to add a subparagraph B(1) as the general rule for reissuance of order for possession. (See discussion of Rule 519 below.) As under the current rules, the proposed Rule 516(B)(1) would allow for an order for possession to be reissued for one additional 60 day period. A new subdivision C would, however, require that the request for reissuance of the order for possession in a case arising from a residential lease be filed within 120 days of the date of the entry of the judgment or within 120 days of the date an appeal, writ of certiorari, or supersedeas is stricken, dismissed, or otherwise terminated, or a bankruptcy stay is lifted. Also, the Committee proposes that the title of Rule 516 be changed to ''ISSUANCE AND REISSUANCE OF ORDER FOR POSSESSION'' to more accurately reflect its content and to be consistent with its counterpart in the civil action rules, Rule 403.

   The Note to the rule would make clear that the time limitation applies only to the order for possession in cases arising from residential leases and in no way affects the plaintiff's ability to execute on the money judgment.

C.  Correlative Rule Change to Rule 519

   Reissuance of orders for possession is currently provided for in Rule 519 (Forcible Entry and Ejectment). The Committee proposes that reissuance of orders for possession be handled under Rule 516 as described above, and that Rule 519 be amended accordingly. This change would make the rules relating to landlord and tenant actions more closely parallel the civil action rules (see Pa. R.C.P.D.J. No. 403), and would more appropriately arrange the subject matter of the rules.

D.  Technical and ''Housekeeping'' Amendments

   Finally, the Committee proposes minor changes to Rules 403, 515, 516, and 519 to correct citation form, to address gender neutrality issues in the rules, and to make other minor clarifications.

[Pa.B. Doc. No. 01-1452. Filed for public inspection August 10, 2001, 9:00 a.m.]