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MortgagePoint » Your Trusted Source for Mortgage Banking and Servicing News 44 C O N T R I B U T E D S P O T L I G H T : L E G A L L E A G U E A question that has become prevalent in Pennsylvania foreclosure of late has been, does a borrower have a right to a jury trial for in rem actions in foreclosure? This has particularly come to light as an opinion from the Philadel- phia Court of Common Pleas stated a borrower does have such a right in U.S. Bank National Association, not in its Indi- vidual Capacity but Solely as Trustee for the NRZ Pass-Through Trust XIV v Wright, August Term 2020, No. 2826 (Phila. C.C.P. February 16, 2024) (hereinafter "Wright"). Determining Whether a Litigant Has a Right to a Jury Trial A right to a jury trial in Pennsylvania generally rests on whether the right existed prior to the adoption of the Pennsylvania Constitution. Absent such an existence, the right does not exist unless specifically created by the legis- lature. The Pennsylvania Constitution states in Article I, § 6, "Trial by jury shall be as heretofore, and the right thereof remain inviolate." To date, the legislature has created no right to a jury trial in mortgage foreclo- sure actions. In fact, Pennsylvania Rules of Civil Procedure ("Rule") Nos. 1141 through 1150, which control the procedural aspects of actions in foreclosure, make no reference whatsoever to a trial by jury. In- terestingly, Rule 1150 explicitly references trials without a jury, with no mention of a trial by jury procedure. Further, there is no mention of jury instructions, standard for jurors, etc. contained within the Rules governing mortgage foreclosure actions in Pennsylvania. Without legislation creating a right to jury trial in foreclosure matters, the test for determining if a right to jury trial exists rests in a three-part test. Specifi- cally, courts are to analyze (1) whether the right has been conferred by statute; (2) whether jury trials were required in such actions before 1790; and (3) wheth- er there was a common law basis for the proceeding. Wertz v. Chapman Twp., 741 A.2d 1272, 1276 (Pa. 1999), citing, Commw. v. One (1) 1984 Z-28 Camaro Coupe, 610 A.2d 36, 39 (Pa. 1992). For determining whether the right has been conferred by statute, courts must analyze the following criteria: (1) whether the statute speaks to the right; (2) whether the statute describes the court as the entity providing relief; and (3) whether the leg- islative history supports the conclusion that the Legislature intended to include the right to a jury trial. Mishoe v. Erie Ins. Co., 824 A.2d 1153, 1156 (Pa. 2003); Wertz v. Chapman Twp., 741 A.2d 1272, 1275 (Pa. 1999). The Wright Opinion With the aforementioned frame- work in mind, the opinion from the Wright case reached the conclusion that a right to a jury trial did exist in mort- gage foreclosure actions. In support of this conclusion, the court relied on the law that controlled mortgage foreclosure prior to adoption of the Rules. Specifi- cally, the legal theory of scire facias sur mortgage under the Act of 1705, 1 Sm. L. 57, 57-69 (the "1705 Act"). In short, the Wright court used notes contained within the 1705 Act which required jury trials in certain circum- stances. The notes stated as follows: the sheriff is to impanel a jury, who are to make inquiry of all the goods and chattels of the debtor, and to appraise the same, and also to inquire as to his lands and tene- ments; and upon such inquisition, the sheriff is to deliver all the goods and chattels (except the beasts of the plough) and a moiety of the lands to the party, and must return his writ, in order to record such inquisition in that court, out of which the [writ] issued. And when the jury have found the seizin and value of the land, the sheriff, and not the jury, is to set out and deliver a moiety thereof to the plaintiff by metes and bounds […] And in Pennsylvania, it is the uniform practice to calculate the in- terest on all judgments for the seven years, to enable the jury, on the first inquisition, to decide whether or not the estate will satisfy them, by the yearly rents and profits, beyond all reprizes, within the term of seven years. IN PENNSYLVANIA, IS THERE A RIGHT TO JURY TRIAL IN IN REM FORECLOSURE ACTIONS? B y T H O M A S C . D Y E R , E S Q .