Rule 1004. Filing Complaint or Praecipe on Appeal. Appeals Involving Cross-Complaints.

 A. If the appellant was the claimant in the action before the magisterial district judge, he shall file a complaint within twenty (20) days after filing his notice of appeal.

 B. If the appellant was the defendant in the action before the magisterial district judge, he shall file with his notice of appeal a praecipe requesting the prothonotary to enter a rule as of course upon the appellee to file a complaint within twenty (20) days after service of the rule or suffer entry of a judgment of non pros.

 C. When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can properly be so pleaded in that court. If the appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at any time within thirty (30) days after the date on which the appellant served a copy of his notice of appeal upon the appellee.

   Official Note

   The twenty days allowed the claimant-appellant under subdivision A will give him time to consider, among other things, matters under Rule 1007B. The procedure upon failure to file a complaint pursuant to a rule to do so entered under subdivision B will be governed by the Rules of Civil Procedure (Pa. R.C.P. No. 1037(a)).

   The landlord’s complaint in an appeal from a judgment concerning the possession of real property will contain the same material averments as those required under Rule 503C, an averment that the tenant claims possession of the property being substituted for an averment that he retains it if he has vacated the property or has been ejected from it. See, as to this general requirement of pleading, Palethorp v. Schmidt, 12 Pa. Super. 214 (1900). See also the note to Rule 1081(30).

   Subdivision C permits the appellee, when there were cross-complaints in the action before the magisterial district judge and the appellant appeals from the judgment on his complaint or on both complaints, to assert his claim by way of a counterclaim in the court of common pleas if the claim is cognizable as a counterclaim in that court. However, even when this procedure is permissible, the appellee must, if he desires to use it, still give a notice of appeal under Rule 1002, with the time extension allowed by subdivision C (see the Judicial Code, §  5571(f) 42 Pa.C.S. §  5571(f)), if he intends to appeal from the judgment on his complaint and the appellant has not appealed from that judgment, although in such a case subdivision A of Rule 1004 will not be applicable. If the appellee can and intends to avail himself of the procedure permitted by subdivision C, he need not obey any rule to file a complaint served upon him under subdivision B.

   All judgments entered must be appealed to preserve all issues, if such issue can be properly pleaded in the court of common pleas. This is of particular importance under subdivision C, where both complaints must be appealed to preserve all issues. See Borough of Downingtown v. Wagner, 702 A.2d 593 (Pa. Cmwlth. 1997).

   Adopted June 1, 1971. Amended Oct. 17, 1975, effective in 90 days; April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; amended December 15, 2000, effective January 1, 2001.

Source

   The provisions of this Rule 1004 amended through April 25, 1979, effective May 25, 1979, 9 Pa.B. 1499; amended December 15, 2000, effective January 1, 2001, 30 Pa.B. 6882. Immediately preceding text appears at serial pages (212924) to (212925).



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