HomeMy WebLinkAbout39-1915.3. Commencement of Action Complaint Order.
Rule 39-1915.3. Commencement of an Action. Complaint and Order.
(a) Commencement of an Action:
(1) Filing and Service Generally:
All Custody Complaints and/or Petitions for Modification that have not been previously
assigned to a judge shall be presented to the Court Administrator for assignment, after
filing, in accordance with these rules.
Filing shall be accompanied by the payment of the designated filing fee and the
conciliator’s fee.
After the Order of Court and Directive for Conciliation has been entered by the Court, the
Order shall be filed with the Prothonotary and the Complaint and Order served in
accordance with the Pennsylvania Rules of Civil Procedure governing the service of
Custody Complaints.
(2) Contents of Complaint:
The Complaint shall specifically designate the relief sought by the party who filed the
pleading and include specific terms of legal custody (sole or shared) and physical custody
(sole, primary, partial, shared, or supervised) sought by the Moving Party as well as the
factual basis therefore.
In addition to those averments required by the Pennsylvania Rules of Civil Procedure
governing actions relating to Custody, the Complaint shall also contain:
(i) Moving Party’s Criminal Record/ Abuse History Verification pursuant to
Pa.R.C.P. No, 1915.3-2 as an exhibit;1
(ii) An averment as to the Moving Party's knowledge of the Non-Moving Party's
representation or non-representation by counsel, and if represented, an
averment as to the Non-Moving Party's counsel's name;
(iii) An averment as to the form, time and manner of furnishing a copy of the
Complaint and Non-Moving Party’s Criminal Record/ Abuse History
Verification to the Non-Moving Party or to legal counsel;
(iv) The language of the proposed custody arrangement shall be stated as a
paragraph of the Complaint;
1 For criminal charge information parties can view Docket Sheets at http://ujsportal.pacourts.us.
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
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(v) A Proposed Order of Court and Directive for Conciliation in a form similar
to Sample Form “A” (see Sample Form “A”)
(b) Time for Furnishing a Copy of the Complaint and Proposed Order to the Non-Moving
Party; Record Proof:
(1)Timing:
A true, attested copy of the Complaint or Petition for Modification and Proposed Order of
Court and Directive for Conciliation shall be furnished to the Non-Moving Party's counsel
of record or to the non-moving party if not represented, not less than five (5) days prior to
its anticipated presentation to the Court.
(2) Averment in Complaint or Petition for Modification
The Moving Party shall allege in his/her Complaint or Petition for Modification the form
and manner of furnishing notice to the Non-Moving Party and whether said notice was
given directly to the named Non-Moving Party or to named legal counsel or by first class
U.S. mail.
(c) Scheduling Presentations; Pleadings Delivered to Court Administrator:
To facilitate the proper giving of notice of the presentation of Custody Complaints and/or
Petitions for Modification, the Court Administrator shall establish a regular time each week
for the presentation of Custody Complaints and/or Petitions for Modification and the entry
of an Order of Court and Directive for Conciliation establishing temporary custody
arrangements pending a full hearing.
Counsel or self-represented parties may obtain the specific time for presentation of
Complaints or Petitions for Modification from the Court Administrator.
If a case has previously been assigned to a judge, presentation shall be scheduled in front of
that judge, unless otherwise determined by the Court Administrator
For new custody cases the case will be assigned to a judge by the Court Administrator at
the time presentation is scheduled.
A copy of the filed Complaint or Petition for Modification shall be delivered to the Court
Administrator a minimum of five (5) days prior to the scheduled time of any planned
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
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presentations of Custody Complaints or Petitions for Modification and Proposed Orders of
Court and Directive for Conciliation.
(d) Formal Presentation to the Court Not Necessary:
Certain Complaints and Petitions for Modification may be presented in the same manner
and at the same times as all other petitions and need not be presented in open Court at the
time specifically assigned for presentations of Custody Complaint or Petitions for
Modification in these cases:
(1) When the Proposed Order of Court and Directive for Conciliation makes no
provision at all for an interim custody arrangement for the child/ren.
(2) When the Proposed Order of Court and Directive for Conciliation simply maintains
the status quo as evidenced by a prior Court Order, a copy of which must be
attached to the Complaint or Petition for Modification.
(3) When all parties have stipulated to the entry of a Proposed Order of Court and
Directive for Conciliation, without respect to whether any party is represented by
counsel. However, if counsel represents any party, they shall be so identified by
name, and counsel's signature shall be required on the Stipulation.
(e) Conciliation:
(1) Assignment to Conciliator:
The Court Administrator shall assign all custody actions to a Conciliator designated by the
Court, who shall conduct a Conciliation Conference with both legal counsel and the parties.
The Conciliator shall be a member of the Bar of this Court who, along with any other members
of his/her professional practice, shall not be engaged in the practice of law in the field of
Domestic Relations. The Conciliator shall not be subject to the subpoena power of this Court to
force testimony regarding information revealed during the Conciliation Conference.
The Court Administrator shall assign the Conciliator, date, time and place for the Conciliation
Conference after the Order of Court and Directive for Conciliation has been signed by the
Court.
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
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(2) Service Upon Conciliator:
(i) The Moving Party shall also serve a copy of the Order of Court and Directive for
Conciliation, along with the Complaint or Petition for Modification upon the
assigned Conciliator within ten (10) days of the date of the Order of Court and
Directive for Conciliation.
(ii) The Non-Moving Party shall serve a copy of any Response that was filed to the
Complaint or Petition for Modification within ten (10) days of the date of the Order
of Court and Directive for Conciliation.
(iii) Failure of the Moving Party to comply with the service requirements upon the
Conciliator may result in the cancellation of the Conciliation Conference unless
actual notice has been provided by the Non-Moving Party. The Moving Party shall
certify service by filing a Certificate of Service with the Prothonotary.
Additionally, the Court Administrator shall notify the Conciliator of the list of cases
scheduled for Conciliation one (1) week in advance.
(3) Conciliator’s Fee:
(i) The Moving Party shall deposit a nonrefundable conciliator’s fee in the amount
established by the Court2 the Prothonotary upon the filing of the Complaint or
Petition for Modification.
(ii) The Conciliator shall be compensated at the rate established by the Court for each
scheduled Conciliation Conference.
(iii) Each conference is expected to last one (1) hour. In the event the Conciliation
Conference lasts more than one hour, the Conciliator may petition the Court for
additional compensation at the rate established by the Court. This additional fee
shall be added to the cost of the action and shall be collected by the Prothonotary as
directed by the Court. The Prothonotary shall post the conciliator’s fee in its office.
The fee shall be paid to the Conciliator by the Prothonotary
(iv) In the event the Moving Party is unable to pay the conciliator’s fee, such party may
apply for an Order to Proceed In Forma Pauperis. If the Court authorizes In Forma
Pauperis status, the administrative fee shall be paid by the County of Franklin.
2 The current conciliator’s fee and additional hourly fee for conciliation conferences that last longer than one hour is
available from the Prothonotary or the Court Administrator.
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
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(v) In the event a party files a request for an additional Conciliation Conference, the
party requesting the additional Conciliation Conference shall pay an additional
conciliator’s fee for such Conciliation Conference which must be paid prior to the
scheduling of an additional Conciliation Conference.
(vi) In the event a party requests a general continuance of a scheduled Conciliation
Conference, if the rescheduled Conciliation Conference is scheduled more than six
(6) months after the continued Conciliation Conference, the party requesting the
Conciliation Conference shall pay an additional conciliator’s fee for such
Conciliation Conference which must be paid prior to the scheduling of the
Conciliation Conference.
(4) Authority of Conciliator:
The Conciliator shall have the following authority and responsibility:
(i) To conciliate custody cases, which specifically includes meeting with the parties
and the children, if appropriate. If a party desires the children to be present at the
Conciliation Conference, he/she shall make said request of the Conciliator no later
than seven (7) days prior to the scheduled conference. The Conciliator shall
determine the appropriateness of the request on a case-by-case factual basis after
consultation with counsel for both parties or with a pro se party;
(ii) To address the need for home studies, as appropriate;
(iii) To address the issue of utilization of expert witnesses, as appropriate;
(iv) To recommend to the Court, where appropriate, the need for evaluation of either
party or members of their household pursuant to 23 Pa. C. S. A. § 5329; and
(v) To recommend a resolution of the custody conflict which recommendation shall be
included in the Summary Report and summited to the Court for further action.
If the parties are not able to agree upon the need for home studies and/or the need
for any other expert witnesses, either party may petition the Court pursuant to
Pa.R.C.P. 1915.8 for the appointment of an expert and the payment of his or her
fees.
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
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(5) Conciliation Memorandum by Parties:
At least three (3) days prior to the scheduled Conciliation Conference, each party shall
furnish to the Conciliator and counsel for the opposing party, or the self-represented party
individually, a Conciliation Memorandum addressing the following:
(i) Factual background, including a brief history of the case;
(ii) If not previously filed of record, Defendant/ Respondent must file of record and
include as an exhibit a Criminal Record/ Abuse History Verification pursuant to
Pa.R.C.P. No. 1915.3-2. Additionally, if a party has filed a Criminal Record/ Abuse
History Verification, any necessary updates should be made at this time.
(iii) Names and ages of the children;
(iv) A proposed order for resolution of matters;
(v) Issues, both factual and legal, for resolution;
(vi) Whether a home study is requested; and
(vii) Whether the parties will agree to a particular psychologist/psychiatrist for
evaluation or request psychological evaluations.
The parties are directed to supplement the Memorandum from time to time if new
information becomes available prior to Conciliation.
(6) Summary Report by Conciliator:
(i) Following the conclusion of each conference and within seven (7) business days
thereof, the Conciliator shall file with the Prothonotary a Summary Report and
Proposed Order of Court, if applicable, in the original plus two (2) copies. The
Conciliation Memorandums of the parties shall be attached to the original Summary
Report for filing.
(ii) In the event the parties reach a comprehensive agreement at the Conciliation
Conference, the Summary Report shall so state and the Proposed Order of Court
shall
reflect the terms of the agreement and shall be titled a Final Order of Court.
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
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(iii) In the event the parties reach a partial agreement, or fail to reach any agreement to
modify the existing order, the Conciliator’s Summary Report shall include the
following:
1. Custody status at the time of conciliation;
2. Summary of the parties' positions;
3. Identification of legal and factual issues before the Court; and
4. The Conciliator's recommendation and rationale therefore.
(iv) The Proposed Order of Court shall reflect the terms of any partial agreement
reached and the need for home studies, psychological evaluations, or need for
evaluation of either party or members of their household pursuant to 23 Pa.C.S.A. §
5329. If the Proposed Order of Court amends the Order of Court and Directive for
Conciliation signed at presentation, the Proposed Order of Court shall also include a
provision stating that the order will become a final appealable order of court one
hundred eighty-one (181) days after the date of filing of the complaint/petition and
shall include the exact date that the order will become final.
(7) Entry and Service of Order of Court:
Upon review of the Conciliator's Summary Report, the Court may issue an Order of Court
addressing the appropriate issues. A copy of said Order of Court shall be furnished to legal
counsel for the parties or in the event a party is unrepresented, to the party directly by the
Prothonotary in accordance with Pa.R.C.P. 236
(f) Pre-Trial Conferences and Hearings:
(1) Pre-Trial Conferences:
Upon the completion of home studies and psychological evaluations (if applicable), and at
any time after the entry of the Order of Court approving the Conciliator's Summary Report,
either party may file a Praecipe/ Motion for Scheduling of a Pre-Trial Conference and
Proposed Order of Court for a Pre-Trial Conference. (See, Sample Forms ''B'' and “C”).
(2) Parent Education Program:
The Proposed Order of Court for a Pre-Trial Conference shall contain language requiring
the parties to the proceeding to attend and successfully complete a parent education
program designated by the Court.
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
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The party filing the Praecipe/ Motion for Scheduling of a Pre-Trial Conference shall
provide the Prothonotary with pre-addressed, stamped envelopes for each party to the
custody action.
The Court Administrator shall send a pamphlet regarding the parent education program to
each party.
(3) Scheduling:
The assigned Judge shall schedule a Pre-Trial Conference within sixty (60) days of the
submission of a Motion by either party requesting said conference.
(4) Pre-Trial Conference Memorandum:
(i) At least five (5) days prior to the scheduled Pre-Trial Conference, a Pre-Trial
Conference Memorandum in conformity with Pa.R.C.P. 1915.4-4 shall be filed and
served.
(ii) In addition to the information required by Pa.R.C.P. 1915.4-4, the Pre-Trial
Conference Memorandum shall contain a brief summary containing the anticipated
testimony of each listed witness.
(5) Appearance by the Parties at the Pre-Trial Conference:
At the scheduled Pre-Trial Conference, both counsel shall be present and the parties shall
be personally present.
(i) In the event that neither legal counsel nor a party appears, the Pre-Trial
Conference shall be held in that party's absence upon proof of service of the
Order of Court for Pre-Trial Conference in accordance with the
Pennsylvania Rules of Civil Procedure.
(ii) Although the Court may not discuss the case with represented parties, they
are directed to be present in the event issues arise where the parties' input
may be beneficial.
(6) Hearings:
In the event that an agreement is not reached at the Pre-Trial Conference, a hearing date
shall be established by the Court at the conclusion of the Pre-Trial Conference.
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
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Adopted by Order of Court dated August 12, 1996
Published at 26 Pa. Bull. 4081 (August 23, 1996)
Amended by Order of Court dated April 23, 2003
Published at 33 Pa. Bull. 2272 (May 9, 2003)
Amended by Order of Court dated January 4, 2007
Published at 37 Pa. Bull. 401 (January 27, 2007)
Amended by Order of Court dated February 12, 2008
Published at 38 Pa. Bull. 1241 (March 15, 2008)
Amended by Order of Court dated May 3, 2011
Published at 41 Pa. Bull. 2532 (May 21, 2011)
Amended by Order of Court dated ______, 2014
Published at ___ Pa. Bull. ___ (______, 2014).
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
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SAMPLE FORM ''A''
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
PENNSYLVANIA— FRANKLIN/ FULTON COUNTY BRANCH
__________________, : Civil Action
Plaintiff :
: No. F.R.
vs. :
: In Custody
__________________, :
Defendant : Judge:
ORDER OF COURT AND DIRECTIVE FOR CONCILIATION
NOW, this ___ day of _________, 20 ______ , this Order will notify __________ , Defendant, that
you have been sued in Court to obtain custody of the child(ren): ______, date of
birth___________________.
It is ordered and directed that_______________, Esquire, the Court's Child Custody Conciliation
Officer, is hereby directed to conduct a Conciliation Conference on ____________,20 ______
at ____ o'clock __ .M at the Assigned Room, Third Floor, Franklin County Courthouse, Chambersburg,
Pennsylvania. The anticipated length of the Conciliation Conference is one (1) hour. The parties along with
their legal counsel shall appear in person at the designated time for the Conciliation Conference. A
memorandum shall be furnished to the Conciliator at least three (3) days prior to the scheduled Conciliation
Conference pursuant to 39th Judicial District Civil Rule No. 1915.3(e)(5).
Failure to provide said memorandum may result in the imposition of sanctions. At the Conciliation
Conference, an effort will be made to see if the issues can be resolved by an agreement between the parties.
If an agreement cannot be reached, the Conciliator will assist in defining and narrowing the issues to reduce
the time required for hearing by the Court. At the conclusion of the conference, the Conciliator will prepare
a Conference Summary Report for further action by the Court.
You have the right to be represented by an attorney who may attend the Conciliation Conference
with you. If you have not secured an attorney by the date of the scheduled Conciliation Conference, you
shall nonetheless personally appear at the time scheduled for the Conciliation Conference without an
attorney.
The Plaintiff has deposited the required conciliator’s fee with the Prothonotary for the cost of the
Conciliation Conference and the Court reserves the right to further assign or divide these costs.
____________________________________, Defendant, is notified that if you fail to appear as provided by
this Order, an Order of Court for Custody, partial custody or visitation may be entered against you or the
court may issue a warrant for your arrest.
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
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Pending the hearing, with emphasis placed on the arrangements for the six (6) months preceding the
filing of this Complaint and with particular attention paid to the role of primary caretaker, the Court hereby
establishes the following temporary Order for custody pending a hearing:
[The appropriate language should be inserted at this point detailing the custody arrangements
sought by the Plaintiff keeping in mind the emphasis to be place upon the prior six (6) months and the role
of primary caretaker. It is suggested one (1) inch of blank space be left for judge’s comments or changes to
the proposed Order.]
You must file with the Court a Criminal Record/ Abuse History Verification regarding you and
anyone living in your household on or before the presentation scheduled on _________________________,
but no later than thirty (30) days after the date of service of the Complaint or Petition for Modification.
No party shall be permitted to relocate the residence of the child/ren to significantly impair the
ability of another person to exercise custody UNLESS every individual who has custody rights to the
child/ren consents to the proposed relocation OR the Court approves the proposed relocation. A person
proposing to relocate MUST comply with the notice requirements pursuant to 23 Pa.C.S.A. Section
5337(c).
Defendant is hereby notified that if (s)he disputes the Plaintiff's averments regarding the current
status of the custody arrangements and this Order is entered on the basis of those averments, (s)he has the
right to request a prompt conference with the Court. If the matter of the temporary custody arrangements is
not resolved at the Conference, the Court may in atypical factual situations and at its sole discretion
schedule a brief hearing limited to the issues of determining temporary custody arrangements pending the
scheduled Conciliation Conference.
The parties and their legal counsel, if applicable, are hereby directed to engage in meaningful
negotiations to resolve this matter before the Conciliation Conference.
This Order shall become a final appealable order 181 days after the date of filing of the
attached Complaint/Petition, that is, on ____________________________ [fill in date 181 days after the
date of filing of the complaint/petition], unless prior to that date (1) a party files a praecipe, motion or
request for a trial, or (2) there is filed a final intervening order.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU
CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU
WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO
ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Pennsylvania Bar Association
Lawyer Referral Service
1-800-692-7375 (PA ONLY) or 1-717-238-6715
AMERICANS WITH DISABILITIES ACT OF 1990
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
______________________________________________________________________________
The Court of Common Pleas of Franklin County is required by law to comply with the Americans
with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations
available to disabled individuals having business before the court, please contact our office. All
arrangements must be made at least 72 hours prior to any hearing or business before the court.
By the Court,
________________________
J.
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
______________________________________________________________________________
SAMPLE FORM ''B''
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
FRANKLIN/FULTON COUNTY BRANCH - PENNSYLVANIA
__________________, : Civil Action
Plaintiff. :
: No.
vs. :
: In Custody
__________________, :
Defendant. : Judge:________________________
ORDER OF COURT
AND NOW, this ______ day of ______ , 20 ______ , upon consideration of the within Praecipe/
Motion,
IT IS HEREBY ORDERED, that a Pre-Trial Conference in the above-captioned custody matter is
scheduled for ___________________ , 20 _ , at ______ o'clock __ .m. in the Chambers of the
Honorable ____________________ , Franklin County Courthouse, Chambersburg, Pennsylvania.
A Pre-Trial Conference Memorandum shall be filed of record and a copy furnished to the Court at
least five (5) days prior to the scheduled Pre-Trial Conference pursuant to 39th Judicial District Civil
Rule No. 1915.3(f)(4). Failure to provide said Pre-Trial Conference Memorandum may be grounds
for imposition of sanctions.
Failure of a party or legal counsel to appear upon proper notice shall result in the holding of the
conference in absentia and the entry of an Order of Court that may be to the detriment of the absent
party.
IT IS FURTHER HEREBY ORDERED that all parties to this custody proceeding shall enroll in,
attend and successfully complete required parent education program which has been established by
the Court to provide guidance to the parties in helping children to adjust to custody changes. Failure
of any party to comply with this provision of this Order of Court may result in a finding of contempt
with the imposition of sanctions including fine or imprisonment or both.
By the Court,
____________________________
J.
Rule 39-1915.3.3 Commencement of Action. Complaint and Order. (cont.)
______________________________________________________________________________
Sample Form “C”
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
FRANKLIN/FULTON COUNTY BRANCH - PENNSYLVANIA
__________________, : Civil Action
Plaintiff :
: No.
vs. :
: In Custody
__________________, :
Defendant : Judge:
PRAECIPE/ MOTION FOR SCHEDULING OF A PRE-TRIAL CONFERENCE
AND NOW comes ______ , Esquire, legal counsel for the above-captioned Plaintiff/ Defendant and
moves the Court as follows:
1. A Conciliation Conference in the above-captioned matter was held on ______ .
2. A Summary Report and Proposed Order of Court was prepared by the Conciliator and filed of record on
_________________, ___, 20___ .
3. An Order of Court was signed on ______ containing further directives in this matter.
4. The undersigned legal counsel hereby certifies that all Court-ordered directives have been complied with
and the matter is now ready for a hearing.
5. Notification of this Praecipe/ Motion has been given to ______ , Esquire, attorney for (Plaintiff/Defendant)
who concurs with/opposes the request.
WHEREFORE, it is respectfully requested that an Order of Court be entered establishing a date and a
time for a Pre-Trial Conference.
Date: _______________________________ By: __________________________________
(Signature), Esquire
Counsel for (Plaintiff/Defendant)
I verify that the statements made in this Praecipe/ Motion are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn
falsification to authorities.
Date: ____________ __________________________________
(Signature), Esquire
Counsel for (Plaintiff/Defendant)