T. 42 Pa.C.S.A., Refs & Annos
Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 42 Pa.C.S.A. Judiciary and Judicial Procedure
T. 42 Pa.C.S.A., Refs & Annos
<Title 42, Judiciary and Judicial Procedure, of the Pennsylvania Consolidated Statutes, was enacted by Act 1976, July 9, P.L. 586, No. 142, generally effective 60 days from the date of final enactment of Act 1978, April 28, P.L. 202, No. 53 (June 27, 1978).>
<Section 28 of Act 1976-142 provided that the act shall be known and may be cited as the “Judiciary Act of 1976.”>
<Section 1 of Act 1978-53 [42 P.S. § 20001] provided that the act shall be known and may be cited as the “Judiciary Act Repealer Act.”>
<Section 101 of Act 1980-142 [42 P.S. § 20010] provided that the act shall be known and may be cited as the “JARA Continuation Act of 1980.”>
JUDICIARY ACT OF 1976 (ACT NO. 142 of 1976)
JUDICIARY ACT REPEALER ACT (ACT NO. 1978-53)
The following summary of the new Judicial Code (Title 42) and the Judiciary Act Repealer Act was prepared by the Pennsylvania Bar Association's Special Committee on the Judicial Code.
Title 42 of the Pennsylvania Consolidated Statutes. The act of November 15, 1972 (P.L. 1063, No. 271), which added the Nonprofit Corporation Law of 1972 to Title 15 of the Pennsylvania Consolidated Statutes, also consolidated a number of long-arm statutes into a new Chapter 83 (relating to bases of jurisdiction) of Title 42 (relating to judiciary and judicial procedure).
Judiciary Act of 1976. The act of July 9, 1976 (P.L. 586, No. 142), known as the “Judiciary Act of 1976” (“JA76”) repealed Chapter 83 of Title 42 and enacted a Judicial Code in the form of a completely new Title 42.
Judiciary Act Repealer Act. Section 29 of JA76 provided that provisions of the Code relating to the power of the Supreme Court to fix fees and charges would take effect on January 1, 1977 and that all provisions of the act relating to budgeting and financial matters would take effect with respect to fiscal years commencing July 1, 1977, but that otherwise none of the provisions of the act would take effect unless and until § 29(4) of the act was repealed absolutely. The purpose of this provision was to delay the effectiveness of the Code until the vast number of statutes supplied by the Code could be specifically repealed. This repeal was effected by the enactment of the act of April 28, 1978 (No. 53), known as the “Judiciary Act Repealer Act” (“JARA”) (House Bill No. 825, Printer's No. 2469).
Since JARA repeals absolutely § 29(4) of JA76 (see p. 259, line 28 of H.B. 825), and since JARA § 43 provides that JARA itself will take effect generally 60 days after enactment, both JARA and JA76 (including the Judicial Code) will take effect generally on June 27, 1978. (See the heading “Repeals” below for an explanation of certain delayed JARA repeals). However, JARA § 42 now provides that the budgeting and financial provisions of the Code will take effect with respect to fiscal years of political subdivisions beginning on or after July 1, 1978 (the July 1, 1977 effective date for Commonwealth budget purposes is unaffected by this change). JARA expressly repeals parts or all of more than 1500 statutes enacted between 1700 and 1978, makes corrections and revisions to the Judicial Code (Title 42) and makes conforming amendments and repeals to Titles 2, 15, 18, 20, 40, 45, 51 and 75 of the Consolidated Statutes.
Nature of Codification Project. The Judicial Code bills were drafted by the PBA Special Committee on the Judicial Code in cooperation with a similar committee of the Pennsylvania Conference of State Trial Judges chaired by The Honorable Robert A. Doyle, of the Court of Common Pleas of Allegheny County. The drafting criteria adopted at the outset of the project were as follows:
“1. The Judicial Code should cover in a comprehensive manner the organization, structure and functioning of the Judicial Branch, the powers and duties of officers enforcing orders of courts or justices of the peace, and all financial matters relating thereto, and should specifically repeal all prior statutory provisions on all subjects covered, but should not affect the existing powers, duties and functions of county row officers.
“2. The Judicial Code should be drawn so as to provide a flexible framework within which the Judicial Branch may function without the need for frequent legislative adjustment.
“3. The Judicial Branch should have the power, by general rule, or by order in specific cases, to specify the items which constitute taxable costs and the party who shall bear such costs, but attorneys' fees should be an item of taxable cost only where authorized by statute.
“4. The Judicial Branch should have the power, under statutory standards, to set the official fees to be charged in connection with judicial proceedings and the enforcement of judicial process and to be received by jurors and witnesses [in the text of the Code as finally adopted juror fees have been temporarily excluded from the scope of the Code; witness fees have been codified without affecting their statutory basis; and other fees may be fixed by a statewide judicial council subject to legislative veto and subject to the requirement that fees so fixed be paid into the State Treasury: 42 Pa.C.S. §§ 1725(b), 3571(a) and 5903].
“5. The Judicial Code should omit matters relating to the practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders of courts or justices of the peace, admissions to the bar and the administration of all courts and supervision of all officers of the Judicial Branch, other than criminal provisions relating thereto, and should specifically repeal all existing statutes on such subjects effective after four years [two years in the text of JARA § 4(b) as adopted], or upon the absolute suspension of a statutory provision by general rule, whichever is earlier.
“6. The Judicial Code should be based on an express rule of statutory construction to the effect that where in the absence of such rule the absolute repeal of any statute by the Code would operate to abridge, enlarge or modify the substantive rights of any litigant and the Code fails to carry forward any express provision on the same subject, the substantive common law on such subject in effect prior to the enactment of such statute shall not be revived by such absolute repeal, but the substantive rule of law embodied in such statute shall be deemed to be received into the common law of this Commonwealth.
“7. The Judicial Code should vest all powers in the Supreme Court, with provision for delegation by Supreme Court action to the Judicial Council of Pennsylvania, the Administrative Office of Pennsylvania Courts, the various procedural rules committees, or other entities within the Judicial Branch, as the Court may direct [in the text of the Code as finally adopted certain powers were conferred only upon a statewide judicial council, as noted above].
“8. Special consideration should be given during the drafting process to the status of the Judicial Conference of Pennsylvania, the Pennsylvania Conference of State Trial Judges, the Pennsylvania Bar Association and other such entities to determine whether and to what extent, if any, they should be included in the structure of the Judicial Branch as set forth in the Judicial Code.
“9. The Judicial Code should contain provisions vesting budget and administrative functions in the Court Administrator of Pennsylvania which are comparable to the functions exercised by the head of an executive department, with the Judicial Council performing a review and approval function paralleling that of the Governor in the Executive Branch, and the Judicial Department appropriation should be consolidated into a single line item.
“10. The Judicial Code should contain a provision vesting the responsibility for post-audit of Unified Judicial System financial transactions in the Department of the Auditor General [post-audit is vested in certified public accountant selected by the Judicial Council of Pennsylvania in the text of Code as adopted: 42 Pa.C.S. § 3529].
“11. The Judicial Code should eliminate all existing statutory provisions which purport technically to subdivide the jurisdiction of a single court of common pleas among its several divisions.
“12. The office in which filings are made in the courts of common pleas should be designated in the Judicial Code as the “Office of the Clerk of the Court of Common Pleas”, but the functions of that office should be exercised by the prothonotary, clerk of the courts, clerk of the orphans' court division, and register of wills, as now provided by law.
“13. Matters relating to the register of wills and matters relating to the orphans' court division not incidentally covered by general provisions of the Code should be allocated to the [then] proposed Title 20 of the Pennsylvania Consolidated Statutes prepared by the Decedents' Estates Laws Advisory Committee of the Joint State Government Commission.
“14. Wherever the existing law on a subject is represented by a statute based on a uniform statute which has been withdrawn and superseded by a later and improved uniform statute on the same subject, the substance of the later and improved version should be incorporated into the Code [not followed with respect to contribution among tort-feasors in the text of the Code as adopted].
“15. No attempt should be made to revise the rules of evidence, other than incidental codification of the law applicable to documentary evidence, but the Supreme Court or its delegate should be authorized to adopt rules of evidence for Pennsylvania comparable to any rules of evidence adopted for use in the courts of the United States [the text of Code as adopted omits all reference to adoption of rules of evidence by the Supreme Court or its delegate].”
During the legislative consideration of the Code the General Assembly also determined to utilize the Code bills as a vehicle to rationalize and simplify the statutes of limitation. These changes are described below.
Statutes of Limitation
General. The civil and criminal (transferred from Title 18) statutes of limitation are collected in Chapter 55 of the Code. Chapter 55 is residuary, in the sense that any other statute (e.g., Pennsylvania Securities Act, Public Utility Law, etc.) containing a statute of limitations controls over inconsistent provisions of Title 42; however, the time for appeal specified in the Code controls over older inconsistent statutes, (§ 5501(a)).
§ 5502. The Supreme Court is authorized, subject to legislative veto, to particularize by rule the act or omission which gives rise to a completed cause of action in various circumstances for limitations purposes.
§ 5503. The Supreme Court is expressly authorized to define by rule the pleading which marks the commencement of an action, proceeding or appeal.
§ 5521. The language of the Uniform Statute of Limitations on Foreign Claims Act has been substituted for the borrowing statute.
§ 5522(a). The six months notice of claim requirement has been broadened to apply to personal injury claims against all government units.
§ 5522(b). The residual statute for actions against a public officer (i.e., for actions other than personal injury, libel, slander, contract of sale, for withholding moneys, on his official bond, etc.) is fixed at six months.
§ 5523. The residual statute for actions on replevin, costs, injunction and other bonds in court proceedings is fixed at one year.
§ 5524. The period of limitations in wrongful death actions is increased from one to two years to conform to the general two-year statute on personal injuries.
Example No. 1: Death occurs on June 1, 1977. Action in trespass filed September 1, 1978 (after § 5524 takes effect). Action barred by prior one-year statute because JA76 § 25(b), provides that “no cause of action fully barred prior to the effective date of this act shall be revived by reason of the enactment of this act.”
Example No. 2: Death occurs on June 1, 1978. Action in trespass filed June 15, 1980 (within two years after § 5524 takes effect). Action barred by § 5524, because 1 Pa. C.S. § 1975 provides, in effect, that the 26 days between June 1 and June 27, 1978 (the effective date of the Code) are charged against the new two-year period. See also JARA § 3(a).
Example No. 3: Death occurs on June 1, 1978. Action in trespass filed June 10, 1979. Action not barred, because § 5524 is in effect and action has been filed within two years of death. It is statute at time of filing and not statute at time of death which controls (see JA76 § 25; cf. JA76 § 8), if the claim is not barred prior to effective date of the Code.
Also in the same section the periods applicable to conversion of or injury to personal property and waste or trespass to real property are reduced from six to two years to conform to the modern principle that claims based on conduct, and hence heavily relying on unwritten evidence, should have relatively short statutes of limitations, so as to bring them to trial (after allowance for pre-trial delays) before memories have faded. The two-year statute is made the general statute for tort claims (libel, slander and invasion of privacy with one-year periods of limitation constitute the principal exceptions).
Example No. 4: Property damage occurs on June 1, 1973. Action in trespass filed September 1, 1978 (after § 5524 takes effect). Action not barred because JA76 § 25(a) provides that where the statute of limitations is reduced, the action may be commenced within one year after the effective date of the Code, or within the period heretofore limited by statute, whichever is less.
Example No. 5: Property damage occurs on June 1, 1973. Action in trespass filed June 15, 1979 (within one year after § 5524 takes effect). Action barred because old six year statute ran out on June 1, 1979, and JA76 § 25(a), allows lesser of one year after enactment or prior limitation period in cases where Code intends to reduce period of limitations.
Example No. 6: Property damage occurs on June 1, 1978. Action in trespass filed June 15, 1980 (within two years after § 5524 takes effect). Action barred by § 5524 (see Example No. 2, above). JA76 § 25 (a) is inapplicable since the action was brought more than one year after the effective date of the Code.
It should be noted that JA76 § 25(a), mentioned in a number of the foregoing examples, is a relief provision whose applicability is expressly limited to situations where the period of limitation under the Code is “shorter” than that derived by application of § 25(a).
Example No. 7: Property damage occurs on June 1, 1978. Action in trespass filed August 1, 1979 (more than one year after JA76 takes effect and beyond the period limited by JA76 § 25(a)). Action not barred because § 5524 provides that action may be brought within two years after June 1, 1978; hence JA76 § 25(a) is inapplicable.
§ 5525. The period of limitation on non-UCC sales of personal property and fixtures has been reduced from six years (or 20-year presumption of payment where the contract is under seal) to four years to conform to the four year period of the UCC. Also a new limitation of four years applicable to unwritten contracts has been added, thereby reducing the period on such contracts from six years. Contracts implied in law (e.g. warranty claims) are subject to the four-year limitation.
§ 5527. The six year statute has been made the residual statute. The effect is, for example, to shorten the seven year statutes of former 8 P.S. § 101 and 16 P.S. § 4253 and lengthen the five year statute of former 16 P.S. § 7582, all of which related to bonds of public officers, and to fix a six year general statute for contracts under seal.
§ 5530. A new 21 year statute in condemnation cases where the condemnor makes no advance payment has been fixed. A statute is necessary to permit the concept in § 5527 of a residual statute.
§ 5532. The law relating to absent defendants has been modernized by following a recent New York revision.
§ 5533. Except as provided by statute, infancy, insanity or imprisonment will not extend the time for commencing an action.
§ 5534. A new provision on the effect of war has been taken from the New York revision.
§ 5571(a). The power of the Supreme Court to fix the time for appeal, etc. in the Pennsylvania Rules of Appellate Procedure is confirmed. A related repeal reduces the time for appeal in unemployment compensation cases to the uniform 30 days, overruling Sharpe v. Unemployment Compensation Board of Review, 368 A.2d 1344, 28 Pa.Cmwlth. 271, 1977.
§ 5571(b)-(f). The time for appeals in summary proceedings is increased from 10 to 30 days, the time for appeal from district justices and community courts in civil cases is increased from 20 to 30 days, and 30 days is made the uniform time to appeal in ordinance, resolution, map and other procedural challenges and in all other cases (including so-called “deemed” determinations where the right to appeal arises from a zoning or other decision implied by failure of the agency to act) except election, probate and execution cases, thereby making 30 days the practically universal appeal period.
§§ 5572 to 5574. New language applicable to appeals to the courts of common pleas is added permitting the adoption of rules clarifying the time when an order is entered and the effect of applications for rehearing or modification of an order.
Other Changes of General Interest
The following is a summary of other significant changes in the law effected by the Code (provisions of the Code which provide for action which the Supreme Court could take under constitutional authority in the absence of the Code do not, of course, constitute changes in the law and are not detailed below):
§ 101. The office of justice of the peace is formally renamed as the office of “district justice,” JARA § 3(d) expressly directs the Governor hereafter to commission persons holding office in a magisterial district as “district justices.”
§ 324. Terms of court are abolished unless a court chooses to retain them.
§ 325(e). The powers of a president judge are clarified.
§ 503(b). The procedures for legislative veto of certain court rules are revised and the review period extended to 120 calendar days plus adjournments of ten days or more.
§ 701. The provisions applicable to appellate courts are clarified by making them applicable to courts of common pleas when such courts sit in an appellate capacity.
§ 708. A powerful new provision is added eliminating the present procedural trap facing a litigant objecting to governmental action in the courts of common pleas. For example, it was frequently not clear under prior law whether the proper mode of relief against an officer for the refusal to accept for filing a particular paper was by appeal under the Local Agency Law from the decision to reject the paper, or by action in mandamus to require the acceptance of the paper.
§ 761(d). The Supreme Court is authorized by rule to vest certain ancillary jurisdiction in the Commonwealth Court.
§ 762. The appellate jurisdiction of the Commonwealth Court is extended to appeals from prosecutions for violation of agency organic statutes, in addition to its present jurisdiction over appeals from prosecutions for violations of agency regulations, and to appeals in election matters not within the prior appellate jurisdiction of the Supreme Court (which is unchanged by the Code.)
§ 763. The initial appellate jurisdiction of the courts of common pleas over birth record matters (analogous to adoption proceedings) is restored by elimination of Commonwealth Court initial appellate jurisdiction. (See also § 933(a)(1)(i)).
§ 931. Except as otherwise prescribed by procedural rules, the process of a court of common pleas in proceedings to enforce orders of a government agency extends throughout the state.
§ 933. Where an appeal from the same order is taken to two or more courts of common pleas having jurisdiction, all appeals are consolidated in the first court to which an appeal is taken.
§ 952. The status of divisions in the courts of common pleas is clarified by an express statement to the effect that each division has the jurisdiction of the whole court, thus overruling Kohl v. Lentz, 454 Pa. 105, 311 A.2d 136 (1973).
§ 1514. The governing body of the county is designated as the agency which provides offices for district justices, but subject to the approval of the local president judge.
§ 1515(a)(3). The civil jurisdiction of district justices is clarified. A related amendment to 18 Pa.C.S. § 1106 increases a district justice's criminal restitution jurisdictional limit to his then current civil jurisdictional limit.
§ 1516. The lien of judgment provisions applicable to district justices have been patterned after the prior law applicable to community courts.
§ 1702. The Supreme Court and other judicial agencies are required to give advance notice of proposed rulemaking whenever exercising statutory powers.
§ 1703. The Public Agency Open Meeting Law is made applicable to the Supreme Court and all other agencies and units of the system when recommending or adopting general rules or other orders in the nature of regulations.
§ 1722(b). The rulemaking power of the Supreme Court is clarified by expressly authorizing rules, not inconsistent with statute, on a variety of subjects such as judgments, liens, judicial sales, etc.
§ 1724(b). The General Assembly has attempted to exclude county officers from the scope of the Judicial Council's powers under Pa.R.J.A. No. 314(b).
§ 1725. The power of the judicial system to fix fees and charges is enlarged and clarified, subject, however, to legislative veto (See § 503(b)).
§ 1726. The power of the judicial system to fix and apportion taxable costs is clarified.
§ 1728. The power of the judicial system to expend funds for the attendance of system personnel at conferences and conventions, and to support the work of such bodies is clarified.
§ 2131 et seq. The Minor Judiciary Education Board is transferred from the Department of Education to the Judicial Branch, but its membership is unchanged and it continues to be appointed by the Governor.
§ 2701 et seq. An “office of the clerk of the court of common pleas” is created with duties divided among the prothonotary, clerk of the courts and clerk of the orphans' court division. The filings to be made in the office of the clerk of the courts (§ 2756) and in the office of the clerk of the orphans' court division (§ 2776) are defined, and all other papers are filed in the office of the prothonotary (§ 2736). When no separate clerk of the courts or clerk of the orphans' court division is authorized (vacancies do not count for this purpose) for the county, the prothonotary exercises the powers and performs the duties of the office (§ 2738). The clerk of the courts may waive his or her civil jurisdiction (road, liquor, etc.) to the prothonotary (§§ 2703, 2756(b) (2)). All of the foregoing arrangements set forth in the Code are subject to any inconsistent statute, home rule charter, etc. (§ 2701(b)).
§ 2705. Provision is made for the development by the Administrative Office of Pennsylvania Courts, with the approval of the Department of Justice, of a combined reporting system covering judicial system reports to Executive agencies.
§ 3154. A senior judge may not earn a greater amount of per diem for judicial service than the salary of active judges.
§§ 3501--3574. No prior statutory provisions existed on finance for the Unified Judicial System created in 1968. Chapter 35 of the Code is almost entirely new and is patterned after the budget provisions applicable to an Executive department. They are carefully drawn so as not to mandate any particular level of state funding or to change the location of the tax burden for the support of the judicial system. Rather, they are administrative provisions designed to facilitate any fiscal policy which the General Assembly may adopt from time to time.
§ 3502. The Judicial Branch and (with respect to certain county personnel) the Department of Community Affairs, are authorized to set up comprehensive regulations relating to the financial affairs of the judicial system. Included is express authority to establish means for paying fines and costs by credit card, as long as no net cost is borne by any government unit.
§ 3541. The Code requires each County (and the City of Pittsburgh) to maintain a bookkeeping account (actual segregation of cash deposits is not required) on its books to be known as the “Judicial and Related Account” of the county or political subdivision. The account covers transactions relating to the courts, district justices and related county offices, but not police and other police-type transactions or penal or correctional functions. Against this account are charged the expenses paid by the political subdivision with respect to judicial and related functions (§ 3545). Credited to the account are Federal grants for judicial and related functions, State payments such as the $17 million in 1976-77 (Act No. 6-A), and all fines and costs payable to the political subdivision (§ 3543).
§ 3571 et seq. The Code collects together in a single subchapter a wide variety of statutory provisions relating to the allocation and disposition of fines and costs.
§ 3721. The Code mandates the creation in each county of a “county judicial center,” which at present would be, of course, the county court house. However, the provision recognizes that by reason of home rule charter or otherwise, the county administration building and the county court house may ultimately be located in separate facilities, the former funded by local taxation and the latter from the judicial and related account as part of the Unified Judicial System.
§ 3723. This provision authorizes the Administrative Office of Pennsylvania Courts to furnish facilities and services in local counties necessary to operate the judicial system when the county officers fail to do so, but at the expense of the county when so provided by statute.
§ 3724. All county law libraries are required to be open to the public, and the Supreme Court or its delegate (subject to legislative veto (see § 503(b)) is authorized to mandate funding levels to be met from the county budget.
§ 4101. This provision is patterned after The Administrative Code of 1929, and authorizes coordination of activities within the System, and between the System on the one hand, and Executive and Legislative agencies, on the other.
§§ 4301--4303. The provisions on dockets are simplified and authority is vested in the Administrative Office to supervise this function.
§ 4304. A provision for lis pendens as a result of Federal Court proceedings has been added. See, e.g. Frankel v. Leisure Technology Corp., 71 D. & C.2d. 140 (C. P. Monroe Co. 1975).
§§ 4321--4326. The provisions on records are simplified and provision is made for a cooperative effort between the Supreme Court or its delegate and the County Records Committee on the subject of record retention and disposition.
§ 5101. Expresses in statutory language the constitutional right to a remedy for legal injury.
§ 5103. A provision of the Appellate Court Jurisdiction Act is generalized to provide for the transfer to the proper tribunal within the System of a matter filed incorrectly anywhere within the System or in a Federal District Court within Pennsylvania (thereby eliminating the need to file state court protective actions).
§ 5105. The right to an appeal is clarified and the constitutional right to an appeal is implemented. A statutory right of appeal is created from an appointive judicial officer to the court which appointed such officer.
§ 5107. Permits the service of process on a Sunday if a court finds that the exigency of the case requires it.
§§ 5321--5329. The Uniform Interstate and International Procedure Act (broadened along the lines of existing statutes) is substituted for the prior laws on the same subject thereby extending the reach of Pennsylvania courts over nonresident individuals to the full extent permitted by the Federal Constitution. At the same time all existing statutory requirements for designation of a statutory or resident agent for service of process are repealed. The existing statutory exemption of foreign banks and other foreign lenders from liability to service of process is eliminated. Service as an officer or director of a Pennsylvania corporation becomes a basis for long-arm jurisdiction, as suggested in Shaffer v. Heitner, 97 S.Ct. 2569, 433 U.S. 186, 53 L.Ed.2d 683 (1977).
§ 5702. The right of the Supreme Court to adopt rules relating to bail is clarified.
§ 5932. A witness may become competent under the “dead man's rule” by filing a release of interest of record.
§ 5936. Testimony of a physician may be offered at trial by means of deposition.
§§ 5963(d) and 5964(b). The right of an interstate witness to the fees provided for witnesses in the courts of this Commonwealth, if higher than the statutory fees in the Uniform Act to Secure Attendance of Witnesses from Within or Without a State in Criminal Proceedings, is clarified.
§ 6143. The prima facie status of a vehicle registration number, held unconstitutional in criminal proceedings in Commonwealth v. Slaybaugh, 468 Pa. 618, 364 A.2d 687 (1976), is reinstated as to actions for civil penalties.
§ 6502. The jurisdiction to issue the writ of habeas corpus is given to all judges of courts of record without regard to territorial jurisdiction. As in other cases, rules of procedure will govern the proper venue.
§ 6304. Certain minimum standards patterned after Federal law are added relating to the period within which the return on the writ of habeas corpus must be made, etc.
§ 7361. The compulsory arbitration statute is reenacted, omitting its many procedural provisions.
§ 7362. The concept of a number of prior statutes is continued in the form of a provision authorizing voluntary submission of a pending judicial matter to arbitration. The implementing general rules are authorized to contain a “sudden death” option where the parties contract away their appeal right (in much the same fashion as a common law arbitration) in exchange for prompt finality.
§ 7523. Provision is made for the publication in the Pennsylvania Code of a list of the jurisdictions covered by the Interpleader Compact.
§ 7541. The rule that declaratory relief is unavailable when a common law action or a special statutory remedy is available is abrogated generally but the prior law as to marriage and divorce actions and as to appeals from orders of tribunals is retained. The Code expressly provides that the choice of proceedings shall not be permitted to effect any material change in substantive rights and makes clear that the courts are authorized to change venue, to require additional pleadings, to fix the order of discovery and proof, etc.
§ 8104. A $250 minimum penalty is added to the provision relating to the duty of a judgment creditor to enter satisfaction, the waiting period is reduced to 30 days, 1% per day (up to the existing 50% maximum) liquidated damages are substituted for the existing actual damages, and the need for a second plenary enforcement proceeding is eliminated.
§ 8124. The exemption from execution applicable to retirement funds is extended to certain retirement assets of self-employed individuals and partnerships.
§ 8127. The remedy for illegal assignments to avoid the Commonwealth's public policy on execution exemptions is modernized and strengthened by substitution of the treble damage remedy (with right to counsel fees) and by addition of a reference to injunction.
§ 8151. The Department of Revenue is authorized to fix by regulation the information to be furnished prior to sheriff's sale, the notice requirement is broadened to include such sales of any type of property, and the court is authorized to permit sales on short notice where necessary.
§ 8501. Enforcement proceedings may be brought by a Commonwealth agency in any court having subject matter jurisdiction and neither the Commonwealth nor a district attorney need give bond in any such proceeding, thus generalizing a large number of prior enforcement statutes.
Provisions of Special Interest to Local Officials
General. In order to eliminate potential controversy which might have interfered with the prompt enactment of the Code, the Special Committee on the Judicial Code strove to draft the Code in such a way as to assure the row office holders and other county officers that nothing in the Code would affect their powers and prerogatives. Central to this effort was the creation of the classification of “county staff”: a term defined in § 101 to mean “system and related personnel” (except judges and other judicial officers) elected by the electorate of a county (including the City of Philadelphia) or subject to appointment and removal by officers (other than judicial officers) so elected, e.g., row officers and personnel appointed by row officers.
Relationship to Unified Judicial System. The term “Unified Judicial System” is defined in § 301 in essentially the words of the Constitution, which do not deal one way or another with administrative or supporting personnel. This section would have been an appropriate point to define with clarity the relationship of various officers and functionaries, e.g., the sheriff, probation officers, etc. with respect to the new “Unified Judicial System.” However, as a studied ambiguity the section is silent on the question. This silence introduces a corresponding ambiguity throughout the Code wherever the concept of the “system” appears, but the result is no worse than under the existing law and Constitution of this Commonwealth.
Use of Definitions. The broadest term employed in the Code is “system and related personnel”. The personnel comprising this generic class are subdivided as follows:
System and related personnel
Personnel of the system
Appointive judicial officers
From the point of view of an individual court, the foregoing classes of personnel are related as follows:
Personnel of the court
Staff of the court
Appointive judicial officers
“Appointive judicial officers” are arbitrators, auditors, commissioners to take oaths and depositions, custodians (of corporations, etc.), examiners, guardians, masters, mental health review officers, receivers, referees, trustees, viewers and the like.
“Personal staff” are law clerks, private secretaries and the like who report to a single individual.
The “administrative staff” is a residual description of all personnel of a court who are neither judicial officers nor their personal staff and expressly includes the prothonotary, clerk of the courts, clerk of the orphans' court division and their staffs.
“Central staff” is a residual term to describe the personnel of the Administrative Office, procedural rules committee staffs, etc. and all others who are not directly associated with courts or district justices (the staff of district justices is considered personal staff in view of the one magisterial district--one district justice relationship).
“Related staff” describes personnel of offices or officers which serve but are not part of the Unified Judicial System.
The term “system and related personnel” is unambiguously defined to include all, both in the row offices and within the System, who affect the administration of justice.
Thus the term “county staff” straddles the concepts of related staff and personnel of the system, without requiring the Code to reflect a legislative commitment on the issue, for example, of whether the sheriff is within or outside of the Unified Judicial System. The term “county staff” is used, as noted below, in connection with provisions of the Code which preserve the existing prerogatives of county officers.
Appointment and Compensation. Judges and district justices are, of course, elected and their duties and compensation fixed by law. Under the Code appointive judicial officers are appointed and their duties are fixed by the court in which they serve (§ 3131), and the manner of fixing their compensation is as heretofore, e.g. by the salary board or by the court (§ 3154). The Supreme Court or its delegate, e.g., the Judicial Council, may regulate the power of the courts to appoint and fix the duties of judicial officers, but under the Code the salary fixing mechanism can only be changed by future legislation.
Subject to two important qualifications, judges and district justices may appoint and fix the duties of their personal staff, courts may appoint and fix the compensation and duties of their administrative staff and may fix the compensation of personal staff, and other agencies and units of the Unified Judicial System may appoint and fix the compensation and duties of central staff. The qualifications are: (1) the powers are exercised subject to the paramount constitutional control of the Supreme Court or its delegate, and (2) the existing prerogatives of county officers to appoint and fix the compensation of such personnel are preserved. See § 1724(b) and § 2301(c). The Code, however, does not contemplate that county officers may fix the duties of such personnel.
Control of Purchasing and Local Disbursements. The Code expressly provides that no court rule or order may impose additional personnel expenses on a political subdivision without either the consent of the political subdivision or statutory authority (§§ 3547, 3727), and that, subject to any contrary constitutional authority which may be vested in the Supreme Court, the manner of the expenditure of local funds (including for this purpose state reimbursement funds) shall be within the control of the county officers (§ 3726). This provision makes clear that the enactment of the Code will not affect the liability of county officers to outside (i.e., statewide) expenditure controls.
Administrative Agency Law and Local Agency Law
JARA codifies both the Administrative Agency Law and the Local Agency Law as part of Title 2 of the Consolidated Statutes. The principal change from the prior law is the simplification and resulting clarification of the scope provisions.
The Administrative Agency Law hearing provisions will now apply to all Commonwealth agency proceedings except tax, election and vehicle matters (2 Pa.C.S. § 501). The appeal provisions, which require that judicial review in the Commonwealth Court be on the record made below, will apply to all Commonwealth Court appeals except tax and election matters, and thus all other novo appeals to that court are abolished. (2 Pa.C.S. § 701).
The Local Agency Law hearing provisions will apply to all local agency proceedings, and the definitions of local agency and Commonwealth agency have been integrated, so that all agency proceedings (with the three exceptions noted above) will now be subject to one or the other of the two hearing requirements (2 Pa.C.S. §§ 101, 501 and 551). The appeal provisions of the Local Agency Law will now apply to all local agency appeals, except to the extent an existing statute expressly provides an inconsistent procedure (2 Pa.C.S. § 751). Since a large number of such statutes relating to appeals have been repealed by JARA (not including, however, such important statutes as those governing zoning appeals), the effect is that in the ordinary case an appeal from a government unit to a court will be governed by Code §§ 708 and 5105 and the applicable subchapter of Chapter 7 of Title 2.
General. A search was made of existing statutory law, and whenever possible inconsistent statutory language has been expressly repealed. In some instances the required change could not be effected by the technique of simply deleting language. In such instances JARA enacts one or more sentences which are supplementary to and which immediately follow the statute cited for partial repeal in JARA § 2(a) [42 P.S. § 20002(a)]. Accordingly, care should be taken when dealing with a particular statute to check JARA § 2(a) to ascertain whether such a supplementary provision has been added. For example, JARA enacts the following text applicable to the Pennsylvania Municipalities Planning Code:
“After submitting his challenge to the board or governing body as provided in subsections (1) and (2) of section 1004 of the act, the landowner may appeal a denial of the same to a court of competent jurisdiction. Failure to so appeal the denial of a request for a curative amendment shall not preclude the landowner from thereafter presenting the same validity questions by commencing a proceeding as provided in section 1004(1)(a) of the act. The reference in section 1004(4) of the act to ‘subsection (3)(ii)’ shall be deemed a reference to the preceding sentence.”
Delayed repeals. In order to permit the preparation of a judicial system cost bill and its adoption by the Supreme Court or the Pennsylvania Judicial Council, the repeal of statutory provisions relating to costs has been delayed for one year by JARA § 4(a) [42 P.S. § 20004(a)]. Similarly, in order to permit the several procedural rules committees to draft, and the Supreme Court or its delegate to adopt, additional procedural rules necessary to fill in minor gaps created by the repeals effected by JARA, a number of repeals of statutory provisions relating to practice and procedure have been delayed for two years by JARA § 4(b). Since rules under Code § 1722(b) may not conflict with unrepealed statutes, in a number of instances JARA expressly provides that the procedural statute is repealed immediately insofar as inconsistent with general rules prescribed pursuant to Code § 1722(b), thereby permitting the superseding court rule to take effect, if desired, prior to the expiration of the two-year delay. The applicability of one or more of these provisions is specifically indicated by express language to that effect immediately following the specific repeal in question. If no such language appears, the repeal is effective June 27, 1978.
Substantive fail-safe provisions. JARA § 3(a) [42 P.S. § 20003 (a)] provides that JARA and JA76 are one statute for the purpose of 1 Pa.C.S. § 1978, with the effect that substantive rights set forth in repealed statutes and not covered by language in the Code are deemed received into the common law of Pennsylvania.
Procedural fail-safe provision. Similarly, JARA § 3(b) [42 P.S. § 20003(b)] expressly provides:
(b) Interpretation.--The specific repeals effected by section 2 are intended to eliminate obsolete, unnecessary or suspended statutory provisions. General rules promulgated pursuant to the Constitution of Pennsylvania and the Judicial Code in effect on the effective date of the repeal of a statute, shall prescribe and provide the practice and procedure with respect to the enforcement of any right, remedy or immunity where the practice and procedure had been governed by the repealed statute on the date of its repeal. If no such general rules are in effect with respect to the repealed statute on the effective date of its repeal, the practice and procedure provided in the repealed statute shall continue in full force and effect, as part of the common law of the Commonwealth, until such general rules are promulgated. Nothing in this act is intended to revive any act heretofore supplied and repealed by later inconsistent legislation. The fact that this act specifically repeals part of an act shall not create any implication that the unrepealed parts of such act are consistent with or are not supplied by the applicable provisions of the Pennsylvania Consolidated Statutes or other later statutes.
Future Additions to the Code
During the legislative consideration of the Code bills a number of subjects which logically fall within the scope of the Code were spun off for separate consideration. Some of these subjects are as follows:
Chapter 21. Merit selection of judges (i.e., a judicial qualifications commission) is under separate consideration as S.B. 690, H.B. 835, and H.B. 2106.
§ 3701. The concept of a Pennsylvania Judicial Center, as the permanent home for the Judicial Branch, was deferred to separate legislation in order to permit further consideration of the method of selecting its location.
Chapter 59. The existing law of evidence was codified essentially unchanged in this chapter, but it is generally recognized that a full scale revision of Pennsylvania evidence law is long overdue. The Code as enacted does not resolve the question whether evidence is a matter of practice and procedure within the constitutional rule making power of the Supreme Court.
Relationship to Other 1977-78 Legislation
It was possible to include the substance of Act Nos. 1977-41 and 1977-50 in JARA. JARA § 41 provides in effect that all other acts of the 1977-78 General Assembly control over the Code. For example, JARA repeals The Commonwealth Court Act. Act No. 1978-6, which amended that act to increase the size of the Commonwealth Court to nine judges, nevertheless controls over Code § 561, which continues to provide for only seven judges on the Commonwealth Court. Ultimately a “cleanup” bill will make the necessary editorial corrections to the text of the Code. [See Act 1980-142, JARA Continuation Act of 1980.]
The Code represents a distillation of approximately 6000 sections of Purdon's Statutes enacted over a 277-year span. The foregoing summary is just that--a summary--and is not a substitute for a careful review of the Code, as amended by JARA, and the text of JA76 and JARA. The Special Committee on the Judicial Code urges every member of the Pennsylvania bar who has any contact with the judicial system, whether regularly or only occasionally, to peruse the Code legislation to familiarize himself or herself with the format and general content of the Code. The process of codification and revision is necessarily the occasion for changes in language and intent which, while relatively insignificant in the context of the overall project, may amount to a complete reversal of practice in the context of a specific case. Only a thorough self-education in the content of the Code and related legislation will prevent embarrassment (or worse) in individual cases.
The Pennsylvania Bar Association and the Pennsylvania Conference of State Trial Judges solicit the comments and suggestions of the bench and bar on further corrections and revisions to this, the first complete judicial codification in Pennsylvania's history.
BAR ASSOCIATION COMMENTS
Bar Association Comments provided throughout this title were supplied by the Pennsylvania Bar Association’s Special Committee on the Judicial Code, and may be used in determining the intent of the General Assembly. See 1 Pa.C.S. § 1939 and In re Martin's Estate, 365 Pa. 280, 74 A.2d 120 (1950).
T. 42 Pa.C.S.A., Refs & Annos, PA ST T. 42 Pa.C.S.A., Refs & Annos
Current through 2018 Regular Session Act 76
|End of Document||© 2018 Thomson Reuters. No claim to original U.S. Government Works.|