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Supreme Court Amends Rules to Permit Minors to Sue and Be Sued in Magistrate’s Court Without Appointment of a Guardian

Posted By Cliff Tuttle | April 19, 2015

No. 1,140


Image: law track.com

Image: law track.com

It is now possible for a minor (defined as a person under age 18) to sue and be sued before a Magisterial District Judge. This includes a civil action and a landlord and tenant action for possession of real property.

The Official Note states: “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.”

Of course, a guardian may still represent a minor before a magisterial district judge (MDJ).

Service may be made upon the minor. A judgment may be entered against the minor and the guardian, if any, shall not be personally liable.

In addition, the minor who is not represented by a guardian may enter into a compromise or settlement.  However, if there is a sum due to the minor who is not represented by a guardian, it must be paid to the natural guardian.

The Rules Change also addresses, “incompetents”, who are now designated as incapacitated persons.  An incapacitated person is in all cases to be represented by his guardian, who would have been previously appointed by the Orphans Court.

Under Rule 813, if the MDJ finds that a party is an incapacitated person, but is not represented by the guardian, he may dismiss the action without prejudice as to the incapacitated person only.  The complaint may also be amended while the action is pending.

Under Rule 815, the MDJ shall dismiss a judgment against an incompetent person not represented by a guardian, unless the guardian consents.  But a judgment in favor of an incompetent person shall not be vacated or set aside for lack of the participation of a guardian.

The Rule Amendments and comments do not state whether appointment of a guardian is required on appeal of a magistrate’s judgment to Common Pleas Court.  If either party appeals, must the minor seek an appointment of a guardian ad litem before the case can proceed?  Does this mean that the minor cannot file a complaint or answer until this is accomplished?

One has to assume that such a situation would be extremely rare.  A minor could not legally enter into a contract, such as an apartment lease, and if a parent or guardian has signed the lease, he or she would be a necessary party.

In the case of a small tort, such as property damage by a minor, the plaintiff would very much wish the parent/ guardian to be a party. However, under the Rules, the minor, not the guardian, would be financially responsible for the judgment.  Since most minors living at home have little income and few assets, this may not afford much relief. A criminal prosecution would be more likely in such a circumstance.



CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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