The tenant has appealed a Judgment for Possession. Now what?

By NMoore | Dec. 28, 2016 | 5 min. read

Landlords can typically handle the eviction of a tenant without an attorney.

The Magisterial District Court Rules of Procedure are designed so that a layperson can file a Landlord and Tenant Complaint, obtain a judgment, and enforce the Judgment for Possession without legal expertise. However, when a tenant files an appeal to the Court of Common Pleas, it is time to hire an attorney.

The process of filing an appeal is not onerous for a tenant. The appeal by a residential tenant must occur within 10 days (30 days for nonresidential) from the date of the judgment for possession. The tenant simply fills out a notice of appeal form and files it at the prothonotary’s office in the county that the subject property is located. A filing fee must be paid at the time of its filing, although there is an exception for the indigent. The tenant then has 10 days to serve the appeal on the landlord and the Magisterial District Court, which can be done personally or by certified mail. The tenant must file a proof of service with the prothonotary within 10 days after filing the appeal.

Once an appeal is filed, the proceedings in Common Please Courts are de novo, which means that the result of the hearing in the Magisterial District Court is of no consequence. This places the burden on the landlord to move the case forward by filing a complaint which meets the requirements of the Rules of Civil Procedure. The notice of appeal form notifies the landlord that he has 20 days from the date of service of the appeal to file a complaint, and that the failure to do so could result in judgment against the landlord.

After the landlord files a complaint, the tenant must file a responsive pleading, usually in the form of an answer. The answer may contain “new matter” which requires a written response by the landlord. After this stage, the matter can then proceed to the discovery phase and then eventually trial—although many counties will require the matter to go through compulsory arbitration. If compulsory arbitration is required, the non-prevailing party could file an appeal of the arbitrator’s award and list the case for a trial. The entire process from appeal to trial can be time consuming and costly. It often can take six months to have the merits of the case heard by an arbitration panel or judge.

The Rules of Civil Procedure provide a guard against a tenant from filing an appeal merely as a delay tactic to being evicted. Specifically, in order for the appeal to act as a supersedeas (stop the landlord from enforcing the judgment for possession), a tenant is required to deposit with the prothonotary an amount equal to three month’s rent or the actual amount of rent in arrears, whichever amount is less. Furthermore, in order to keep the supersedeas in place during the pendency of the appeal, the tenant must pay into court the monthly rent every 30 days.

Tenants without the financial ability to pay the amounts necessary to obtain a supersedeas may make use of the indigency exceptions found in the rules. The tenant only needs to sign an affidavit indicating that he cannot afford to pay three month’s rent or the actual rent in arrears. In such a case, the tenant is only required to make a payment of one-third of the monthly rent into court at the time of filing the appeal in order to immediately obtain a supersedeas. The tenant must then pay the remaining two-thirds of rent into court within 20 days and then continue to pay the monthly rent every 30 days into court in order to keep the supersedeas in place.

If the appealing tenant fails to obtain a supersedeas, the landlord may proceed before the Magisterial District Court in enforcing the Judgment of Possession, even though the appeal is pending. Where the supersedeas was initially obtained by the tenant, but the tenant subsequently fails to make a required monthly rent payment into court, the landlord can file to terminate the supersedeas and return to the Magisterial District Court to enforce the Judgment for Possession.

If the tenant continues to make the monthly payment into court, the supersedeas stays in place and the landlord will not be able to evict the tenant until the outcome of the appeal. However, the landlord may file a motion to have the payments made into court released to him while the appeal is pending.

The Rules of Civil Procedure for pleadings, discovery and motion practice are simply too complex for a layperson. An attorney is needed to properly file pleadings, motions and serve or respond to discovery requests in accordance with these rules. Indeed, an attorney may save the landlord significant money by getting the appeal dismissed in its early stages if the tenant fails to properly perfect the appeal or by getting a supersedeas lifted when the tenant fails to make the required payment into court.

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