In Re: Order Amending Rules 801-816, 818 and 820, and Ascending Rule 817 of the Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings before Magisterial District Judges

CHAPTER 800. MINORS AND [INCOMPETENTS] INCAPACITATED PERSONS AS
PARTIES

Rule 801. Definitions.

As used in this chapter:

(1) “Action” includes a civil action as defined by Rule 301 and an action by a landlord
against a tenant for the recovery of possession of real property pursuant to Rule 501.

Official Note
This chapter applies to all actions, civil in nature, within the jurisdiction of a magisterial
district judge.

(2) “Minor” means an individual under the age of eighteen years.

(3) [“Incompetent”] “Incapacitated person” means [Anyone] an adult who [,
because of his incompetency,] has a guardian appointed by a court of competent
jurisdiction pursuant to 20 Pa.C.S. § 5511.

(4) “Guardian”, except as otherwise indicated in Rules 808B and 816B, means —

(a) in the case of a minor, a guardian of the minor appointed by any court of
competent jurisdiction or by a probated will, a parent of the minor or, if selected by the
minor to represent him as guardian, any adult person.

(b) in the case of [incompetents] incapacitated persons, a guardian or other
fiduciary appointed by a court of competent jurisdiction for the incapacitated person or
the incapacitated person’s estate [of an incompetent].

Official Note: The definition of ‘‘minor’’ is the same as that set forth in Pa.R.C.P. No.
76 and is in conformity with pertinent statutory provisions. See, for example, [Act of
December 6, 1972, P. L. 1404, No. 300, § 1, 11 P.S. § 1901] § 102 of the Probate,
Estates and Fiduciaries Code, 20 Pa.C.S. § 102. ‘‘[Incompetent] Incapacitated
person’’ is defined as one who already has a guardian appointed [because of
incompetency] pursuant to 20 Pa.C.S. § 5511, the reason for not adopting the rest of
the definition in Pa.R.C.P. No. 2051 being principally that a magisterial district judge
should not become involved in appointing guardians ad litem. The definition of
‘‘guardian’’ with respect to a minor is necessarily broad in view of the system adopted in
Rule 805. The definition of ‘‘guardian’’ with respect to an [incompetent] incapacitated
person follows generally that found in Pa.R.C.P. No. 2051.
Rule 802. Minor May Be Party to Action.

[Whether or not he is represented by a guardian a minor may be a party to an
action] A minor is not required to be represented by a guardian in an action before
a magisterial district judge.

Official Note: Under this rule, a minor need not be represented by a guardian in a civil
action before a magisterial district judge. This is a departure from the procedure in other
tribunals prescribed by Pa.R.C.P. Nos. 2027 and 2031. This difference in procedure is
due in part to the determination that magisterial district judges should not be required or
allowed to appoint guardians ad litem, considering the expedition with which civil actions
before magisterial district judges are required to be handled under the general rules of
civil procedure applicable to magisterial district judges. Since magisterial district judges
will not be permitted to appoint guardians ad litem (see Rule 819), it would be manifestly
unfair to allow a minor plaintiff to bring suit by a ‘‘next friend’’ guardian but to require the
appointment of a guardian by a court of common pleas before a suit could be brought
against a minor defendant. It is considered that ample protection will be afforded the
minor party under Rule 805. See also the note to Rule 807.

The rules in this chapter are not, of course, intended to change the law governing the
basic legal liability of minors.

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Rule 803. Entitlement of Complaint.

The complaint in an action before a magisterial district judge to which a minor is a party
shall be entitled in the name of the minor, without reference to [his] the party’s minority
or any guardian.

Official Note: The complaint will be entitled in the name of the minor, whether plaintiff
or defendant. If a guardian does represent [him] the minor, this will be reflected by a
notice of intent to represent attached to the complaint form as required by Rule 805B.

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Rule 804. Service of the Complaint.

Service of the complaint upon a minor defendant, or of a cross-complaint upon a minor
plaintiff, shall be upon the minor in the manner prescribed for service of like process
upon an adult party.

Official Note: See [Pa.R.C.P. No. 2029(a)] Rules 307, 308 and 315.

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Rule 805. Representation of Minor by Guardian.

A. A guardian may represent a minor party by filing with the magisterial district judge
before whom the action is pending a written notice stating [his] the guardian’s name,
address, entitlement to act as guardian under Rule 801[(3)](4)(a) and [that he intends]
intention to represent the minor party as guardian. Such a notice shall be filed on a
Guardian’s Notice of Intent to Represent Minor Party form.

B. Upon receipt of a notice of intent to act as guardian, the magisterial district judge
shall note thereon the time and date of its filing and attach it to the record copy of the
complaint form.

C. Only one guardian may represent the minor party. If more than one person files a
notice of intent to act as guardian, precedence shall be given in the order indicated in
Rule 801[(3)](4)(a), and to the one first filing as between those of the same class.

Official Note: Subdivision A sets up a system which is intended to preserve
expedition in the processing of civil cases before magisterial district judges in which a
minor is a party and at the same time afford sufficient protection to the minor. Under this
rule, read in connection with the definition of ‘‘guardian’’ in Rule 801[(3)](4)(a),
guardians appointed by a court or by will and parents can represent the minor with or
without [his] the minor’s consent, but others are subject to [his] the minor’s selection.
Subdivision B requires the notice of intent to be attached to the complaint form, and
subdivision C provides for an automatic selection as between competing ‘‘guardians’’.
Of course, one who has filed a notice of intent to represent may withdraw, in which
event the next guardian in precedence, if any, would represent the minor party.

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Rule 806. Guardian to Supervise Action.

When a minor party is represented by a guardian—

(1) The guardian shall supervise and control the conduct of the action in behalf of the
minor.

(2) Notices required to be given by the magisterial district judge [under Rules 318,
319B and 324] shall, if the party to whom the notice must be given is a minor
represented by a guardian, be given to the guardian.

Official Note: Compare Pa.R.C.P. No[s]. 2027[, 2029(b)].

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Rule 807. Judgment; Costs.

A. Judgment may be entered for or against the minor party whether or not [he] the
minor party is represented by a guardian.

B. A judgment entered in the action shall be the obligation of the minor only. A
guardian shall not be individually liable for the payment of any judgment entered against
the minor or for the costs of the action.

Official Note: Subdivision A of this rule follows the concept adopted in Rule 802. In
view of the right of appeal de novo from judgments rendered by magisterial district
judges and the protections that are available under these rules, it was felt that such a
judgment against a minor party should not be set aside, even as a discretionary matter,
on the ground that the minor was not represented by a guardian. Compare Hamilton v.
Moore, 335 Pa. 433, 6 A.2d 787 (1939).

As to subdivision B, compare Pa.R.C.P. No. 2038. Requiring a minor plaintiff’s
guardian to pay costs seemed undesirable and unnecessary with respect to civil actions
before magisterial district judges.

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Rule 808. Compromise, Settlement, Discontinuance and Payment.

A. If a minor party is represented by a guardian, the guardian may compromise or settle
the action on behalf of the minor or may discontinue the action if it was brought by the
minor. A minor party not represented by a guardian may compromise or settle the
action or may discontinue the action if it was brought by [him] the minor.

B. The amount of a compromise, settlement or judgment in favor of a minor party shall
be paid to the guardian of the estate of the minor qualified to receive the fund if [he] the
minor party has one or one is to be appointed. If the minor has no such guardian, and
none is to be appointed, the amount shall be paid to the guardian of the person or to the
natural guardian or to the person or agency by whom the minor is maintained or to the
minor.

Official Note: [This rule takes a somewhat different approach than the
comparable] Compare Pa.R.C.P. No. 2039. [In view of the relatively small sums
involved in money judgments rendered by magisterial district judges, there
seems to be little reason for requiring the magisterial district judge to participate
and make decisions in these matters.]

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Rule 809. [Incompetent] Incapacitated Person May Be Party To Action.

An [incompetent] incapacitated person may be a party to an action before a
magisterial district judge if [he] the incapacitated person is represented by [his] a
court appointed guardian.

Official Note: Since an ‘‘[incompetent] incapacitated person’’ as defined in Rule
801[(2)](3) is [a person] an adult who already has a guardian appointed [because of
incompetency] pursuant to 20 Pa.C.S. § 5511, this rule requires that [he] the
incapacitated person be represented by [his] a court appointed guardian. See Rule
812A. Under Rule 819, the magisterial district judge cannot appoint a guardian or
guardian ad litem.

See also Rules 813 and 815 and the notes to those rules.

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Rule 810. Entitlement of Complaint.

The complaint in an action before a magisterial district judge to which an [incompetent]
incapacitated person is a party shall be entitled in the name of the [incompetent]
incapacitated person, followed by the phrase ‘‘an [incompetent] incapacitated
person, represented by A, [his guardian] Guardian.’’ The address of the
[incompetent] incapacitated person and that of [his] the guardian shall be shown on
the complaint form.

Official Note: Since the rules in this chapter relating to [incompetents]
incapacitated persons deal with persons who already have [a] guardians [because of
incompetency], the complaint is entitled to show that the [incompetent] incapacitated
person, whether plaintiff or defendant, is represented by [his] a guardian. Compare
Pa.R.C.P. No. 2054.

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Rule 811. Service of the Complaint.

Service of the complaint upon a defendant who is an [incompetent] incapacitated
person, or of a cross-complaint upon a plaintiff who is an [incompetent] incapacitated
person, shall be upon [his] the incapacitated person’s guardian. This service shall be
made in accordance with Rules 307, 308 and 315.

Official Note: Service is required to be upon the guardian. These rules generally
assume the existence of a guardian whose identity is known. Compare Pa.R.C.P. No.
421.

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Rule 812. Guardian to Represent [Incompetent] Incapacitated Person and Supervise
Action.

A. The guardian of a party who is an [incompetent] incapacitated person shall
represent [him] the incapacitated person and shall supervise and control the conduct
of the action in behalf of the [incompetent] incapacitated person.

B. Notices required to be given by the magisterial district judge [under Rules 318,
319B and 324] shall, if the party to whom the notice must be given is an [incompetent]
incapacitated person, be given to the guardian of the [incompetent] incapacitated
person.

Official Note: Compare Pa.R.C.P. Nos. 421, 2053[(a), 2055(b)].

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Rule 813. Procedure When [Incompetent Party] Incapacitated Person Not
Designated as Such.

A. Except as provided in subdivisions B and C of this rule, if during the pendency of the
action the magisterial district judge finds that a party not designated in the complaint as
an [incompetent] incapacitated person represented by [his] a guardian is an
[incompetent] incapacitated person, the magisterial district judge shall dismiss the
proceeding without prejudice. Such a finding shall be based on the fact that the party
has a guardian appointed [because of the party’s incompetency] by a court of
competent jurisdiction pursuant to 20 Pa.C.S. § 5511.

B. If the party as to whom such a finding is made is one of several plaintiffs or
defendants, the proceedings shall be dismissed only as to [him] the incapacitated
person.

C. A complaint filed by a party who is an [incompetent] incapacitated person but not
designated as such in the complaint may be amended by [his] the incapacitated
person’s guardian, at any time during the pendency of the action before judgment, to
state that the party is an [incompetent] incapacitated person represented by [his] a
guardian. A complaint filed against a party who is an [incompetent] incapacitated
person but not designated as such may be amended to state that the party is an
[incompetent] incapacitated person represented by [his] a guardian only with the
written consent of the guardian, which shall be attached to the record copy of the
complaint form.

Official Note: With the exceptions stated, subdivision A of this rule requires that the
proceedings be dismissed without prejudice when the magisterial district judge finds
that a party not designated in the complaint as an [incompetent] incapacitated
person represented by [his] a guardian is actually an [incompetent] incapacitated
person, that is, one who already has a guardian [because of incompetency]
appointed pursuant to 20 Pa.C.S. § 5511 (see Rule 801([2]3)). This rule is intended to
take care of a situation in which [incompetency] the appointment of a guardian is not
disclosed or not known at the time the complaint is filed.

[The exception in subdivision B is obvious.] The exception in the first sentence of
subdivision C contemplates a case in which the [incompetent] incapacitated person
files [his own] a complaint without disclosing [his incompetency] the appointment of
a guardian and this fact comes to light during the pendency of the action. This
exception will allow the guardian to make what is in effect a ratifying amendment to the
complaint, so that the case can go on to judgment. The exception in the second
sentence of subdivision C permits an amendment with the written consent of the
guardian in actions brought against undesignated [incompetents] incapacitated
persons, the guardian’s consent being required because service will not normally have

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been made upon [him] the guardian under these circumstances and to allow
reissuance and new service of the complaint, as amended, would be incompatible with
the general civil procedure for magisterial district judges. Neither of the amendments
provided for in subdivision C need be made in compliance with Rule 316 or Rule 509.

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Rule 814. Judgment and Costs.

A judgment entered in the action shall be the obligation of the [incompetent]
incapacitated person only. A guardian shall not be individually liable for the payment
of any judgment entered against the [incompetent] incapacitated person or for the
costs of the action.

Official Note: See Pa.R.C.P. No. 2063.

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Rule 815. Judgment—Unrepresented [Incompetent] Incapacitated Person.

A. Except as provided in subdivision B of this rule, if after judgment the magisterial
district judge finds that a party not designated in the complaint as an [incompetent]
incapacitated person represented by [his] a guardian was an [incompetent]
incapacitated person, the magisterial district judge shall, unless the party’s guardian
files [his] consent in writing to the judgment, vacate the judgment and dismiss the
proceedings without prejudice. Such a finding shall be based on the fact that the party
had a guardian appointed [because of the party’s incompetency] pursuant to 20
Pa.C.S. § 5511 by a court of competent jurisdiction.

B. A judgment in favor of a defendant shall not be vacated or set aside on the ground
that [he] the defendant was an [incompetent] incapacitated person not represented
by [his] a guardian.

Official Note: Except as provided in subdivision B, if after judgment the magisterial
district judge finds that a party not designated in the complaint as an [incompetent]
incapacitated party represented by [his] a guardian was an [incompetent]
incapacitated person as defined in Rule 801([2]3), the magisterial district judge must,
unless the party’s guardian files [his] consent in writing to the judgment, vacate the
judgment and dismiss the proceedings without prejudice. If the guardian does file [his]
consent to the judgment, it should be attached to the record copy of the complaint form.
It was thought best not to give the magisterial district judge the kind of discretion in this
matter inherent in Pa. R.C.P. No. 2056(d) and in Hamilton v. Moore, 335 Pa. 433, 6
A.2d 787 (1939). Of course, if the incapacitated person [party as to whom the
finding of incompetency is made] was one of several plaintiffs or defendants affected
by the judgment, the judgment will be vacated, and the proceedings dismissed, only as
to [him] the incapacitated person.

The exception in subdivision B forbids vacating or setting aside a judgment in favor of
a defendant on the ground that [he] a party was an [incompetent] incapacitated
person not represented by [his] a guardian. The reason for this exception is that the
rules as to [incompetents] incapacitated persons as parties are for their protection
and not for the protection of adverse parties. The word ‘‘defendant’’ as used here
includes a plaintiff with respect to a cross-complaint of the defendant but does not
include the defendant [with respect to his] who files a cross-complaint.

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Rule 816. Compromise, Settlement, Discontinuance and Payment.

A. The guardian of a party who is an [incompetent] incapacitated person may
compromise or settle the action on behalf of the [incompetent] incapacitated person
or may discontinue the action if it was brought by or on behalf of the [incompetent]
incapacitated person.

B. The amount of a compromise, settlement or judgment in favor of a party who is an
[incompetent] incapacitated person shall, if it is known that [he] the party is
[incompetent] an incapacitated person, be paid to the guardian of [his] the estate
qualified to receive the fund if [he] the incapacitated person has one or one is to be
appointed. If the [incompetent] incapacitated person has no such guardian and none
is to be appointed, the amount shall be paid to the guardian of the person or to the
person or agency by whom the [incompetent] incapacitated person is maintained.

Official Note: Compare Pa.R.C.P. No. 2064. See the note to Rule 808.

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Rule 817. [Party Both an Incompetent and a Minor.] Rescinded.

[If a party is both an incompetent and a minor, the rules in this chapter relating to
incompetents shall apply.]

[Official Note: See Pa.R.C.P. No. 2052 and its note.]

Rule 817 was rescinded in 2015 because the rule was no longer necessary due
to a change to the statutory definition of an incapacitated person. By definition,
an incapacitated person is an adult; thus, Rule 817 is no longer needed. See 20
Pa.C.S. § 5501.

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Rule 818. Representation in Rule 420 and 519.1 Matters.

A guardian of a party in interest who is a minor or an [incompetent] incapacitated
person may represent the minor or [incompetent] incapacitated person in hearings
held under Rule 420 and Rule 519.1. On behalf of the minor or [incompetent]
incapacitated person, [he] the guardian may make any appeal or file any objection,
claim, exception or request mentioned in those rules.

Official Note: This rule allows guardians of minors or [incompetents] incapacitated
persons, as defined in Rule 801([3]4), to represent them in Rule 420 and Rule 519.1
matters and matters preliminary thereto.

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Rule 820. Appellate Proceedings.

A guardian of a party who is a minor or an [incompetent] incapacitated person may
initiate in an appropriate court of common pleas an appeal, certiorari proceedings or a
statement of objection to Rule 420 and Rule 519.1 orders and determinations.

Official Note: It was thought advisable to include a provision giving guardians of
minors and [incompetents] incapacitated persons, as defined in Rule 801([3]4), the
right to initiate appeals, certiorari proceedings and statements of objection to Rule 420
and Rule 519.1 orders and determinations. In doing so, of course, they will have to
comply with applicable provisions of the rules governing appellate proceedings. Once
the case is in the court of common pleas, however, provisions of the Rules of Civil
Procedure relating to guardians ad litem and other procedures will apply.

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