IN RE: ORDER AMENDING RULE 314 OF THE PENNSYLVANIA RULES OF CIVIL PROCEDURE BEFORE MAGISTERIAL DISTRICT JUDGES

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Supreme Court of Pennsylvania.

IN RE: ORDER AMENDING RULE 314 OF THE PENNSYLVANIA RULES OF CIVIL PROCEDURE BEFORE MAGISTERIAL DISTRICT JUDGES

NO. 420

    Decided: April 20, 2018

MAGISTERIAL RULES DOCKET

ORDER

AND NOW, this 20th day of April, 2018, upon the recommendation of the Minor Court Rules Committee, the proposal having been published for public comment at 47 Pa.B. 4082 (July 29, 2017):

It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 314 of the Pennsylvania Rules of Civil Procedure Before Magisterial District Judges is amended in the attached form.

This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective on July 1, 2018.

Additions to the rule are shown in bold and are underlined.

Deletions from the rule are shown in bold and brackets.

Rule 314. Return, Waiver and Failure of Service; Reinstatement

A. The person serving the complaint shall, at or before the time of the hearing, make proof of service which shall show (1) the manner of service, (2) the date, time, and place of service and, (3) the name and relationship or title, if any, of the person on whom the complaint was served. The proof of service shall be filed with the original complaint.

B. When service is made by certified mail or comparable delivery method resulting in a return receipt in paper or electronic form, the return receipt shall be filed with the original complaint.

C. The appearance of a defendant in person or by representative or the filing by a defendant of a claim in the case shall be deemed a waiver of any defect in service but not a waiver of a defect in venue.

D. If the complaint is not served on the defendant in time to permit holding a hearing within 60 days of the filing of the complaint, the magisterial district judge shall dismiss the complaint without prejudice.

E. (1) When the complaint is dismissed without prejudice for failure to make service pursuant to paragraph D of this rule as to all defendants, [U]upon written request of the plaintiff[, a complaint that has been dismissed without prejudice for failure to make service pursuant to subdivision D of this rule] the complaint may be reinstated at any time and any number of times. The date of reinstatement shall be the date upon which the request for reinstatement is filed.

(2) When the complaint has been filed against multiple defendants and subsequently dismissed without prejudice for failure to make service pursuant to paragraph D of this rule as to less than all defendants, any further action against an unserved defendant after a hearing on the merits or the entry of a default judgment must be initiated by the filing of a new complaint.

Official Note: The provision concerning appearance not being a waiver of venue was inserted in [subdivision] paragraph C of this rule to prevent the concentration of business in the office of a favorable magisterial district judge, Also, the public cannot generally be expected to be aware of venue provisions. See Rule 302H regarding improper venue.

[Subdivision] Paragraph D is intended to prevent the accumulation of stale claims in the office of the magisterial district judge.

[Subdivision] Subparagraph E(1) provides for the reinstatement, upon written request of the plaintiff, of a complaint that has been dismissed without prejudice for failure to make service under [subdivision] paragraph D against all defendants. [Compare Pa. R.C.P.] Compare Pa.R.C.P. No. 401(b). The written request for reinstatement may be in any form and may consist of a notation on the permanent copy of the complaint form, “Reinstatement of complaint requested,” subscribed by the plaintiff. The magisterial district judge shall mark all copies of the reinstated complaint, “Complaint reinstated. Request for reinstatement filed on _________________ (date).” If it is necessary to use a new form for the reinstated complaint, the reinstated complaint, except for service portions thereof, shall be an exact copy of the original complaint, although signatures may be typed or printed with the mark “/s/” indicating an actual signature. The language in [subdivision] subparagraph E(1) that a complaint may be reinstated “at any time” will permit reinstatement after a faulty service without waiting for further proceedings in the case. Reinstatement must occur within the period of the statute of limitations from the date of the last filing or reinstatement. The cost for reinstating a complaint is specified in Section 1725.1 of the Judicial Code, 42 Pa.C.S. § 1725.1. In addition, there may be additional server costs for service of the reinstated complaint.

Subparagraph E(2) addresses the scenario involving multiple defendants when timely service is not made upon all defendants, resulting in a dismissal without prejudice as to some defendants. Subparagraph E(2) clarifies that the plaintiff may not reinstate the complaint after the hearing or entry of a default judgment in this circumstance, but must initiate an entirely new action by filing a new complaint subject to the applicable fees and costs for a new filing.

FINAL REPORT

Recommendation 1-2018, Minor Court Rules Committee 1

Amendment of Pa.R.C.P.M.D.J. No. 314

REINSTATEMENT OF COMPLAINTI. Introduction

The Minor Court Rules Committee (“Committee”) recommended amendments to Rule 314 of the Pennsylvania Rules of Civil Procedure before Magisterial District Judges (“Rules”). Rule 314 addresses the reinstatement of a complaint following a dismissal without prejudice for failure to make timely service upon a defendant. The amendments distinguish the procedure for cases when the complaint is dismissed as to all defendants from dismissal for only some defendants.

II. Background and Discussion

Rule 314 addresses matters relating to service. Rule 314D provides for the dismissal of the complaint without prejudice for failure to make timely service on the defendant, and 314E provides for reinstatement of the complaint following a dismissal without prejudice for failure to make timely service.

The Committee received an inquiry regarding a dismissal without prejudice pursuant to Rule 314D and the ability to reinstate the complaint under Rule 314E when the complaint names multiple defendants, not all defendants have been served, the complaint is dismissed as to the unserved defendant(s), but the case moves forward against the served defendant(s), and proceeds to a hearing on the merits or a default judgment. In this scenario, a concern arises when the plaintiff subsequently locates an unserved defendant and requests reinstatement of the complaint pursuant to Rule 314E. The rule does not address this scenario, and reinstating an adjudicated case to proceed against the previously unserved defendants raises concerns with maintaining the integrity of the court's original judgment, including the appeal period applicable to the parties.

The Committee discussed the inquiry, and agreed that it would be appropriate to recommend the amendment of the procedures set forth in Rule 314E to distinguish between scenarios when the complaint has been dismissed as to all defendants and when the complaint has been dismissed as to less than all defendants.

III. Rule Changes

The Committee recommended amendment of Rule 314 by expanding Rule 314E into two subparagraphs. Subparagraph E(1) provides that when the complaint is dismissed without prejudice as to all defendants for failure to make timely service, the complaint may be reinstated. Subparagraph E(2), in contrast, provides that when the complaint has been dismissed without prejudice for failure to make timely service as to less than all defendants, any further action against a previously unserved defendant must be initiated by filing a new complaint. The Official Note provides that the new action in subparagraph E(2) is subject to all applicable fees and costs for a new filing.

The Committee also recommended minor stylistic changes throughout Rule 314.

FOOTNOTES

1.   The Committee's Final Report should not be confused with the Official Notes to the Rules. Also, the Supreme Court of Pennsylvania does not adopt the Committee's Official Notes or the contents of the explanatory Final Reports.

PER CURIAM

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