courts - filing fees - Act 93 of 2021

Fees - https://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%20104999409155692500.pdf?cb=1

Order - https://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20104999409155692603.pdf?cb=1

 

 

PROMULGATION OF FINANCIAL REGULATIONS PURSUANT TO ACT 93 OF 2021

204 Pa. Code Ch. 29, Subch. I (relating to budget and finance)

§ 29.351. Definitions. 

(a) Pennsylvania Supreme, Superior and Commonwealth Courts. Initial Filing. 

Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed on all items enumerated in the fee schedules of the Appellate Courts for which a filing and service fee is collected, excluding the following: 

1. Second and Subsequent Filings for Extension of Time. 
2. Reargument/Reconsideration.
3. Services in Connection with Appeals to or Writs of Certiorari from the United States Supreme Court. 
4. Miscellaneous Fees. 
5. Subpoenas.

(b) Court of Common Pleas. Prothonotary. Civil Actions and Legal Proceedings. 

1. Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed on a civil action or legal proceeding in a Court of Common Pleas whenever it is initiated upon the filing of the first legal paper therein of record with the prothonotary. The first legal paper may be any of the following: 

1. Praecipe for a Writ of Summons. 
2. Complaint.
3. Deleted.
4. Petition.
5. Notice of Appeal from a court of limited jurisdiction. 
6. vi. Petition or grant of any other legal paper commencing an action or proceeding authorized by Act of Assembly or rule of court. 

2. For purposes of these regulations, the initiation of a civil action or legal proceeding shall include, but is not limited to: 

1. Actions governed by or authorized under the Pennsylvania Rules of Civil Procedure, such as Civil Action Ejectment, Equity, Ground Rent, Mandamus, Mortgage Foreclosure, Partition of Real Property, Quiet Title, Quo Warranto, Replevin, and the Prevention of Waste. 
2. ActionspertainingtoDependency,Annulments,Divorce,Custody, Partial Custody, Alimony Pendente Lite, Support, and Paternity. With respect to Divorce actions, a separate statutory fee shall be imposed for each count in the complaint in addition to the count requesting divorce. 
3. Statutory actions such as Confirmation of Arbitration Awards, Conformation of Confessed Judgment, Declaratory Judgment, Opening or Striking Off a Judgment, Eminent Domain, Habeas Corpus, Proceedings on Liens (other than revival), Name Changes, Partition of Property Held by Husband and Wife as Tenants By the Entireties, Tax Sales of Real Property. 
4. Other actions not included in subsections (i), (ii) or (iii), such as: Appeals from Board of Elections, Appeals from Board of Viewers, Appeals from Zoning Boards, and Certiorari to Magisterial District Judges. 

(c) Court of Common Pleas. Orphans’ Court Clerk, Register of Wills. 

Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed on all petitions for grant of letters, and first filings in petitions concerning adoptions, incapacitated persons’ estates, minors’ estates, and inter vivos trusts. 

(d) Court of Common Pleas. Clerk of Court. 

1. Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed upon conviction, guilty plea, or when a defendant is granted entry into an Accelerated Rehabilitative Disposition (ARD) or other pretrial diversionary program based upon the initiation of any criminal proceeding. The initiation of a criminal proceeding shall include the following:  

1. Cases commenced at the magisterial district judge level resulting in the issuance of a numbered docket transcript form (OTN), and subsequently waived or held to court. 
2. The appeal of a summary conviction to the Court of Common Pleas. 
3. Cases involving juvenile defendants where a petition alleging delinquency has been filed in the Court of Common Pleas. 
4. Cases involving juvenile defendants certified to the Court of Common Pleas, resulting in the issuance of a numbered docket transcript form (OTN). 
5. Cases involving the severance of charges into separate cases resulting in the issuance of one or more additional numbered docket transcripts (OTNs). 

2. Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed for each filing of a deed, mortgage or property transfer for which a fee, charge or cost is now authorized. The documents identified as meeting the above conditions are listed below. The list is not exclusive; other filings for which a fee is imposed and that can be considered a property transfer are included, and the fee shall be imposed. Subject to later amendment, the following documents have been identified as meeting the statutory provisions: 

1. Deeds in any form. 
2. Mortgages.
3. Mortgage assignments. 
4. Mortgage releases. 
5. Mortgage satisfaction pieces. 
6. Installment sales agreements. 
7. Leases for a term of thirty (30) years or longer. 
8. Easements.
9. Rights of Way. 

(e) Minor Judiciary. Civil and Criminal Proceedings. 

For purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1[,] and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed on the initiation of a legal proceeding except as provided in subsection (iii). The initiation of a legal proceeding, in the following courts of the Minor Judiciary, shall include, but is not limited to, the following: 

1. Magisterial District Judge. Civil Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed in connection with the filing of a complaint in Trespass and Assumpsit or for the Recovery of Possession of Real Property (Landlord and Tenant Proceeding) or for any other Civil Action as provided in the Rules of Civil Procedure Governing Actions and Proceedings before Magisterial District Judges. 
2. Magisterial District Judge. Criminal Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed upon a conviction, guilty plea or when a defendant is granted entry into an Accelerated Rehabilitative Disposition (ARD) or any other pretrial diversionary program based upon the filing of a criminal complaint or non-traffic citation charging an offense classified as misdemeanor or summary under a state statute or local ordinance as provided in the Pennsylvania Rules of Criminal Procedure. 

iii.Magisterial District Judge, Pittsburgh Municipal Court, and Philadelphia Municipal Court. Title 75 Summary Offenses Initiated by Traffic Citation. Except for the provisions of subsection (g)(2) below, a statutory fee of twelve dollars ($12.00) shall be imposed upon a conviction or guilty plea based upon the filing of a traffic citation charging a violation of Title 75 (relating to vehicles) offense classified as summary under a state statute or local ordinance as provided in the Pennsylvania Rules of Criminal Procedure. 

4. Pittsburgh Municipal Court. Civil Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed in connection with the filing of a civil complaint seeking recovery of fines and penalties imposed by an ordinance of the City of Pittsburgh or by any ordinance or regulation relating to housing and health administered and enforced by the county health department where the violation occurs within the City of Pittsburgh. 
5. Pittsburgh Municipal Court. Criminal Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed upon a conviction, guilty plea or when a defendant is granted entry into an Accelerated Rehabilitative Disposition (ARD) or any other pretrial diversionary program based upon the filing of a criminal complaint or non-traffic citation charging an offense classified as misdemeanor or summary under state statute or local ordinance as provided for in the Pennsylvania Rules of Criminal Procedure. 

vi. Philadelphia Municipal Court. Civil Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed in connection with the filing of a complaint for a Civil Action, as defined in the Philadelphia Municipal Court Rules of Civil Procedure. 

vii.Philadelphia Municipal Court. Criminal Actions. Except for the provisions of subsection (g)(1) below, a statutory fee of nineteen dollars ($19.00) shall be imposed upon conviction, guilty plea or when a defendant is granted entry into an Accelerated Rehabilitative Disposition (ARD) or any other pretrial diversionary program based upon the filing of a criminal complaint or non-traffic citation charging an offense classified as misdemeanor or summary under state statute or local ordinance as provided for in the Pennsylvania Rules of Criminal Procedure. 

(f) Recorders of Deeds. 

Except for the provisions of subsection (g)(1) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1 and section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E), a statutory fee of nineteen dollars ($19.00) shall be imposed for each filing of a deed, mortgage or property transfer for which a fee, charge or cost is now authorized. The documents identified as meeting the above conditions are listed below. The list is not exclusive; other filings for which a fee is imposed and that can be considered a property transfer are included, and the fee shall be imposed. Subject to later amendment, the following documents have been identified as meeting the statutory provisions: 

1. Deeds in any form. 
2. Mortgages.
3. Mortgage assignments. 
4. Mortgage releases. 
5. Mortgage satisfaction pieces. 
6. Installment sales agreements.
7. Leases for a term of thirty (30) years or longer. 

7. Easements.
8. Rights of Way. 

(g) Temporary Surcharge. 

1. Beginning [July 1, 2019] January 1, 2022, and until [December 31, 2021] June 30, 2022, for purposes of [section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E)] 42 Pa.C.S. § 3733.2, a temporary surcharge of twenty-one dollars and twenty-five cents ($21.25) shall be collected by all collectors of the JCS/ATJ/CJEA fee to supplement the nineteen dollars ($19.00) statutory fee described above. This temporary surcharge may not be imposed upon a conviction or guilty plea based upon the filing of a traffic citation charging a Title 75 (relating to vehicles) offense classified as summary under a state statute or local ordinance as provided in the Pennsylvania Rules of Criminal Procedure. 

2. Magisterial District Judge, Pittsburgh Municipal Court, and Philadelphia Municipal Court. Title 75 Summary Offenses Initiated by Traffic Citation. Beginning [July 1, 2019] January 1, 2022, and until [December 31, 2021] June 30, 2022, for purposes of [section 1795.1-E of The Fiscal Code (72 P.S. § 1795.1-E)] 42 Pa.C.S. § 3733.2, a temporary surcharge of ten dollars ($10.00) shall be collected to supplement the twelve dollars ($12.00) statutory fee imposed upon a conviction or guilty plea based upon the filing of a traffic citation charging a violation of Title 75 (relating to vehicles) offense classified as summary under a state statute or local ordinance as provided in the Pennsylvania Rules of Criminal Procedure.

 

 

 

 

 

contracts - commercial lease - exculpatory clause

Keystone Specialty Services v. Ebaugh – Pa. Superior Court – non-precedential memorandum decision** – 11-22-21

https://www.pacourts.us/assets/opinions/Superior/out/J-S27045-21o%20-%20104963094152340299.pdf?cb=1

 

Held: Commercial tenant could not recover for property damage allegedly caused by landlord’s negligence where lease contained exculpatory clause relieving landlord of such liability.

Tenant signed a lease that contained exculpatory clauses that specifically provided, in the same size print as all the other lease terms, that “Landlord shall not be liable for loss of, or damage to, [Tenant’s] stored items” and that “Landlord shall not be liable to Tenant ... for ... any loss, damage or destruction of Tenant’s personal property.” . . . .It was also undisputed that Plaintiff’s claims in this action were for damage to personal property that it stored on the Premises. 

Exculpatory clauses in contracts are valid where they do not contravene public policy, are between persons relating entirely to their own private affairs and each party is a free bargaining agent to the agreement. Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010); Topp Copy Products, Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993); Kibler, 184 A.3d at 981. 

Exculpatory clauses that satisfy these requirements are enforceable and bar negligence claims where the language of the exculpatory clause states that it applies to all claims for injury or damage or to any claim for injury or damage. Topp Copy Products, 626 A.2d at 99-101 & n.1; Nissley, 913 A.2d at 890-91; Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. 1978) (en banc), aff’d without opinion, 416 A.2d 1010 (Pa. 1980). 

Exculpatory clauses in a commercial lease that provide that the landlord is not liable for any damage to the tenant’s personal property on the leased premises are valid and enforceable and bar contract and negligence claims for such property damage. Topp Copy Products, 626 A.2d at 99-101 & n.1; Cannon v. Bresch, 160 A. 595, 596-97 (Pa. 1932). 

The exculpatory language in the Lease is essentially indistinguishable from the exculpatory clauses in Topp Copy Products and Cannon and was therefore valid and sufficient to bar Plaintiff’s claims for damage to its personal property. The Lease twice expressly stated that Landlord would not be liable for damage to Plaintiff’s personal property and stated that this applied to “any loss, damage or destruction of Tenant’s personal property.” Lease at 1; Lease Addendum at 2 (emphasis added). The word “any” is equally all- encompassing as the word “all” in the leases at issue in Topp Copy Products and Cannon. Zimmer, 385 A.2d at 440; Merriam-Webster’s Collegiate Dictionary 56 (11th Ed. 2003) (defining “any” as including “every” and “all”). Moreover, the Lease further made clear that Plaintiff cannot obtain compensation from Landlord for damage to its personal property by expressly providing that Plaintiff must obtain insurance to protect itself from loss from “theft, damage and/or destruction, from any cause or reason.” Lease Addendum at 2 (emphasis added). 

Tenant/plaintiff argues that because the Lease did not use the word “negligence” in its exculpatory clauses, the exculpatory clauses are insufficient to bar claims for damage to Plaintiff’s property that was caused by Landlord’s negligence. That, however, is not the law. Although an indemnification clause does not cover claims arising out of the indemnitee’s negligence unless it expressly refers to indemnification for the indemnitee’s negligence, Topp Copy Products, 626 A.2d at 100-01; Ruzzi v. Butler Petroleum Co., 588 A.2d 1, 4-5 (Pa. 1991), that rule does not apply to exculpatory clauses that bar recovery from the other party and provide no indemnification for claims of third parties. Chepkevich, 2 A.3d at 1193; Topp Copy Products, 626 A.2d at 100-01; Nissley, 913 A.2d at 890-91. 

Pennsylvania courts have consistently held that exculpatory clauses may bar suits based on negligence even where the language of the clause does not specifically mention negligence at all.” Chepkevich, 2 A.3d at 1193. In Topp Copy Products and Nissley, our Supreme Court and this Court held that exculpatory clauses that did not reference negligence barred claims for damages caused by the defendant’s negligence. Topp Copy Products, 626 A.2d at 99-101 & n.1; Nissley, 913 A.2d at 888, 890-91. 

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This case is also reported in the PLAN Legal Update, which you can access and search—without a password—here.

**An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).

 

 

custody - older evidence/findings v. current evidence - res judicator/collateral estoppel

K.D. v. E.D – Pa. Superior – reported, precedential decision – November 16 2021

https://www.pacourts.us/assets/opinions/Superior/out/J-A15003-21o%20-%20104957126151766380.pdf?cb=1

In petition to modify in a custody case, neither res judicata nor collateral estoppel barred the trial court from considering current evidence that differed from findings from a hearing and decision from several years prior, especially considering the finding by the trial court that “the facts and circumstances surrounding this matter have changed significantly since the testimony and evidence was closed on Father’s last request for custody.” 

 

 

Past findings v. current evidence  -- Past findings of abuse by father did not preclude the trial court from modifying custody in 2020 based upon contemporary evidence that demonstrated that modification served the bests interests of the children. Hence, we reject Mother’s contention that the doctrine of collateral estoppel barred Father from litigating his petition for modification based upon current evidence. Phrased differently, “Past conditions have relevance in a custody modification proceeding only to the extent that such conditions have a current impact on the child.” 17 West’s Pa. Prac., Family Law § 28:17 (Joanne Ross Wilder, et al., 8th ed.) (footnote omitted) (citing In re Leskovich, 385 A.2d 373 (Pa.Super. 1978)).  The certified record is replete with evidence of Mother’s alienation of Father under the pretense of protecting the children from abuse. In addition, the allegations that Father perpetrated sexual abuse were not substantiated in proceedings under the Child Protective Services Law.

 

 

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Denial of a right to visitation is rare.

Traditionally, the denial of a right to visitation is rare.  Indeed, Pennsylvania Courts applying the former statutory regime routinely held, “A parent will be denied visitation only in those instances where the record shows that the parent is severely mentally or morally deficient so as to constitute a grave threat to the child's welfare.” Rosenberg v. Rosenberg, 504 A.2d 350, 352 (Pa. Super. 1986) (citing Niadna v. Niadna, 494 A.2d 856, 858 (Pa.Super. 1985) and Somers v. Somers, 474 A.2d 630, 631 (Pa.Super. 1984). However, the authority concerning a “grave threat” in relation to child custody precedes the effective date of the Child Custody Act, which does not specifically establish the “grave threat” standard. In M.J.M. v. M.L.G., 63 A.3d 331, 338 (Pa.Super. 2013), we held that judicially-created doctrines cannot be grafted on the best interest factors that the Legislature  established in § 5328(a). See also D.R.C. v. J.A.Z., 31 A.3d 677, 688 (Pa. 2011) (Then-Justice, now-Chief Justice Baer, concurring) (observing, following the enactment of the Child Custody Act, “there is no need for any trial court to find a “grave” threat of harm.”). 

The trial court engaged in a comprehensive best interest analysis pursuant to § 5328(a)(1)-(a)(16) before granting Father’s modification petition and fashioning a custody arrangement that permits supervised therapeutic visitation. The trial court’s analysis relative to whether Father currently presents a threat of harm to the children is careful, thorough, and reasonable, as shown by the evidence of record, and we discern no abuse of discretion. 

 

 

real estate tax sale - onwner-occupied property - personal services required, even for incarcerated owner

In re Upset Sale – Appeal of Hung Hu – Pa. C mwlth.  – 11-15-21 – unreported memorandum decision**

https://www.pacourts.us/assets/opinions/Commonwealth/out/566CD20_11-15-21.pdf?cb=1\

 

In re Return of Sale – Appeal of Seneca Leandro View, LLC – Cmwlth. Court – 11-16-21- unreported memorandum decision**

https://www.pacourts.us/assets/opinions/Commonwealth/out/308CD21_11-16-21.pdf?cb=1

 

 

Held: Trial court order reversed or upheld in respective cases, because of failure to prove personal service of the notice of the tax sale on the owner-occupants of the properties.

 

From Huang Hu case –

Due process - The “collection of taxes may not be implemented without due process of law.” Husak v. Fayette Cnty. Tax Claim Bureau, 61 A.3d 302, 312 (Pa. Cmwlth. 2013). In re Consol. Reps. & Return by the Tax Claim Bureau of Northumberland Cnty. of Props., 132 A.3d 637, 644 (Pa. Cmwlth. 2016) (en banc) (Appeal of Neff). 

Personal service required for owner-occupied properties, despite actual notice of sale, posting, or mail - 72 P.S. § 5860.601(a)(3) (emphasis added); see also Montgomery Cnty. Tax Claim Bureau v. Queenan, 108 A.3d 947, 951 (Pa. Cmwlth. 2015; Appeal of Neff, 132 A.3d at 645-46. 

Incarcerated owner -  This Court ruled in In Re Appeal of Hansford, 218 A.3d 995 (Pa. Cmwlth. 2019), that incarceration does not change an owner occupant’s status. The Hansford Court reasoned: The fact that an owner may be temporarily physically incapable of inhabiting his property [due to his incarceration] does not mean he is no longer an owner occupant

From Seneca Leandro Case

Section 601(a)(3) of the Real Estate Tax Sale Law,3 72 P.S. § 5860.601(a)(3), provides that where owner-occupied property is at issue, notice described in Section 602 of the Law, 72 P.S. § 5860.602, must be personally served upon an owner-occupant at least ten days prior to the date of the actual sale by sheriff. 

The requirements found in Section 601(a)(3) are cumulative and apply in addition to those found in Section 602. Consol. Reports and Return by the Tax Claim Bureau of Northumberland Cnty. of Props. (Appeal of Neff), 132 A.3d 637, 645 (Pa. Cmwlth. 2016). Further, actual notice does not provide grounds to waive strict compliance with Section 601(a)(3)’s personal service requirement. Id. at 646. Consequently, “unless a taxing bureau obtains an order waiving the personal service requirement for good cause shown, its failure to comply with [S]ection 601(a)(3) of the [Law] will render a tax sale invalid.” Gutierrez v. Washington Cnty. Tax Claim Bureau and Bigger and Better Rental, LLC, ___ A.3d ___ (Pa. Cmwlth., No. 430 C.D. 2020, filed June 10, 2021) [quoting Montgomery Cnty. Tax Claim Bureau v. Queenan, 108 A.3d 947, 952 (Pa. Cmwlth. 2015)]. 

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This case is also reported in the PLAN Legal Update, which you can access and search—without a password—here.

 

**An unreported, non-precedential, memoradum Commonwealth Court decision can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

UC - telephone hearing - tech. problems - no fault on part of claimant

O’Leary v. UCBR – Cmwlth. Court – October 27, 2021 – unreported memorandum decision**

 

Held: UCBR decision vacated and case remanded for consideration of merits where there were substantial phone problems, none of which were the fault of the claimant.

 

From the opinion—

 

No evidence of fault on part of claimant

[W]e do not believe that there is evidence that Claimant “failed to appear” in any real sense—because of the pandemic, the hearing was required to be telephonic. The evidence in the record indicates that Claimant was doing exactly what he had been directed to do: waiting by his cell phone at the appointed time for the call from the Referee’s office. Further, there is no evidence that during the first hearing he failed to heed the directive of the hearing notice regarding his cell phone’s ability to receive calls from a source with a Caller ID block7—the record does not reflect the reason for the failure of his cell phone to ring. Claimant’s undisputed testimony was that he did what he could to remedy the situation “in real time,” as the hearing was being conducted in his absence. . . . .There is no indication in the record who was at fault for the dropped call at that point8—merely that there was a dropped call and that no further attempts were made to contact the attorney. At this point, neither Claimant nor his attorney could participate because the telephone hearings were arranged in such a way that parties and their counsel could not call into the hearing but could only be connected when the Referee called them.

 

Responsibility for technological problems

The UCBR does not cite—and our own review of UCBR regulations fails to find—any authority for the proposition that “[p]arties are responsible for their own technology and in charge of their phone and incoming calls,” let alone any regulation suggesting that technological difficulties of unknown cause9 can preclude a party from having his day in court. Even though an administrative tribunal has discretion over how to conduct a hearing, there are still “certain fundamental rights that must be honored, including the right to a fair hearing in accordance with due process of law.” Collins v. UCBR, 415 A.2d 145, 146 (Pa. Cmwlth. 1980). While not involving a telephone hearing, this Court in Collins found a violation of due process when a hearing was conducted without the claimant and his attorney despite their presence in the referee’s waiting room, and thus vacated the Board’s order and remanded for a new hearing. Although not directly controlling, we find its analysis applicable here. See also Hoover v. UCBR., 509 A.2d 962, 963 (Pa. Cmwlth. 1986) (reversing for a new hearing where the use of a telephone in an unemployment compensation hearing precluded the claimant from presenting documents into evidence, and the referee “simply ignored the claimant’s proffer”). 

 

Referee actions  -- We recognize that the Referee was put in a difficult situation on the day of the first hearing, given the obligation to connect multiple parties telephonically, apparently without assistance. We do not fault her for her actions. However, that the Referee herself encountered technological difficulties underscores the unreasonableness of depriving Claimant of his right to present his case because he was unable to receive her calls. 

Conclusion – In light of the foregoing, we must conclude that on the facts of this case the UCBR abused its discretion by refusing to consider Claimant’s testimony during the remand hearing.Accordingly, we vacate the order of the UCBR and remand for consideration of the merits of this claim on the evidence already adduced, including the testimony of Claimant at the second hearing. 

 

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**An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716.

LT - security deposits - application of deposit to offset judgment - MDJ rules

Rules                          https://www.pacourts.us/assets/opinions/Supreme/out/Attachment%20-%20104930189149616719.pdf?cb=1

Adoption report       https://www.pacourts.us/assets/opinions/Supreme/out/Report%20-%20104930189149616914.pdf?cb=1

Order                         https://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%20104930189149616582.pdf?cb=1

 

Effective date January 1, 2022

 

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Editor’s note: The official note (below) covers many provisions of MDJ Rule 514, including the new ones about security deposits. It is definitely worth reading the entire note.

Official Note

Subdivision A of this rule requires that the landlord appear and give testimony to prove the complaint before the magisterial district judge can enter judgment against the tenant, even when the tenant fails to appear for the hearing. The magisterial district judge shall 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 tenant 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 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. 

If the magisterial district judge permits a security deposit held by the landlord to be used as an offset against a monetary judgment, the amount of the security deposit so applied must be identified as such on the judgment form. There are limited circumstances when application of the security deposit to offset a monetary judgment is appropriate, such as when the tenant has already left the property, the landlord has had the opportunity to inspect the property, both parties have appeared before the magisterial district judge, and the parties agree that the security deposit should be used to offset the judgment. For additional requirements regarding the return of a security deposit, including the provision of a list of damages and remission of the deposit less the cost of damages within 30 days of termination of the lease or upon surrender and acceptance of the leasehold premises, see Section 512 of the Landlord and Tenant Act of 1951, 68 P.S. § 250.512. 

Subdivision [B] C of this rule [makes provision] provides for a money judgment for the tenant if the tenant prevails in a greater amount on the tenant's cross-complaint. 

Subdivision [D] E of this rule provides for certain notices the magisterial district court shall include in the written notice of judgment or dismissal. 

Subdivision [D] E(2) reflects that the appeal period for a victim of domestic violence in a case arising out of a residential lease is 30 days. See Rule 1002B(2); see also 68 P.S. § 250.513. A tenant who is a victim of domestic violence may file a domestic violence affidavit with the magisterial district court to stay the execution of an order for possession until 30 days after the date of entry of the judgment, the filing of an appeal with the court of common pleas pursuant to Rule 1002, or by order of the court of common pleas, whichever is earlier. See Rule 514.1. 

As to subdivision [D(2)] E(3), see Rule 402D and Note. As to subdivision [D(3)] E(4), see Rule 341.