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At the Service of the Clerk and Local Custom

Some lawyers like to joke that the Clerk of Court “is god” because the Clerk is, more or less, the gateway into Court.  If the Clerk rejects documents being filed he can frustrate the efforts made by the person doing the filing to seek redress in Court.  In the same way, the Clerk accepting documents allows one access to the Court.  Now, in theory at least, the Clerk is to abide by the Rules of Civil Procedure when accepting or rejecting documents for filing; unfortunately, however, sometimes local habit or custom becomes confused with actual rules and they (custom and habit) can be enforced just as stringently as the actual Rules.

It is practically axiomatic that a case filed in Court needs to be served, which more-or-less means delivered, to the opposing party through hand delivery to ensure the person received it and had an adequate amount of time to respond to it.  The requirement for service is no different in the context of a divorce complaint.

Along with most divorces is an Affidavit and Counteraffiavit under Section 3301(d) of Title 23 of the Pennsylvania Code that is sent to the parties.  Section 3301(d) governs divorces litigated (and often granted) on the basis that the parties are separated for at least two years.  Now, the Affidavit referred to above is prepared by the person seeking the divorce on the basis of a two-year separation and it must be sent to the other party to give him/her the opportunity to accept or deny the assertions in the Affidavit through the filing of the aforesaid Counteraffidavit.  The only thing the Rules require is for the Affidavit and Counteraffidavit to be sent to the opposing party by mail.

Despite the simple requirement described above, fairly early in my career I learned of the power of the Clerk and his interpretation of the Rules and the application of local custom.  I sent an opposing party the Affidavit and Counteraffidavit by mail and then tried to file it with the Court accordingly.  When I tried filing it with the Clerk he rejected it on the basis that the Affidavit and Counteraffidavit were not personally served (i.e.: personally handed to the opposing party as opposed to simply mailed); mind you, the Rules do not require personal service yet this is a great example of what I mention above: local habit and custom  became confused with actual rules as, apparently, personal service of the Affidavit was the typical custom in Philadelphia.

I suggested to the Clerk that he should accept my filing as it is compliant with the Rules and his requirement for personal service is not found in the Rules.  Needless to say, our interaction became somewhat heated when I tried to press him to accept my filing.  It got to the point where I told him to show me where in the Rules personal service is required.  In response, the Clerk brought out a practice manual (not the Rules!) to show me what the suggested “best practice” is for service.  He failed to understand that neither a practice manual nor suggested best practice are the same as the Rules, yet, due to local custom and habit having been hardened into de facto rules, he refused to budge on the point.  Ultimately, I compelled him to take my filing and he, after I left, wrote, in handwriting, on my filing that it was to be rejected as non-compliant and got the judge to sign it.

As a result of the above, I now include the Affidavit and Counteraffidavit as an exhibit to the divorce complaints I file and serve so there is absolutely no doubt that they are served personally upon the opposing party.  Even if the parties have been separated for less than two years, I modify the Affidavit to say something like “the parties will be separated for two years on [date]” just to ensure maximum compliance and clarity.  I highly recommend other family practitioners to do the above as it helps streamline the process, ensure compliance with both the Rules and local custom, and eliminates any question as to the service of the Affidavit and Counteraffidavit.

Part of an attorney’s practice is not just to know the laws and rules applicable to a certain case but to also have familiarity with the idiosyncrasies of a given Court Clerk as he can cause a case to bottleneck in his office and stymie its progress.  Unfortunately, as with me above, these lessons are sometimes learned through trial and error, but through the trial a new and more efficient practice has emerged and I hope it helps other family law practitioners as much as it has helped me.

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One thought on “At the Service of the Clerk and Local Custom

  1. Pingback: A Collection of Family Law Writings by James W. Cushing, Esquire | judicialsupport

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