PENNSYLVANIA STUDENT SUPPLEMENT

to Accompany

CIVIL LITIGATION

THIRD EDITION

Peggy N. Kerley, Joanne Banker Hames, Paul A. Sukys

Prepared by Thomas A. Dittoe, Esquire CONTENTS

PART I INTRODUCTION TO CIVIL LITIGATION FOR THE PARALEGAL Chapter 1 Litigation and the Paralegal ...... 1 Chapter 2 The Courts and Jurisdiction ...... 3

PART II INITIATING LITIGATION Chapter 3 Preliminary Considerations ...... 6 Chapter 4 Interview and Investigation Prior to Litigation...... 10 Chapter 5 Responding to the Initial Pleadings ...... 11 Chapter 6 Responses to the Initial Pleadings ...... 18 Chapter 7 Motion Practice...... 21

PART III DISCOVERY Chapter 8 Overview Of The Discovery Process...... 23 Chapter 9 Depositions ...... 25 Chapter 10 Interrogatories...... 28 Chapter 11 Physical and Mental Examinations...... 30 Chapter 12 Request for Documents ...... 31 Chapter 13 Requests for Admissions ...... 32

PART IV PRETRIAL, TRIAL AND POSTTRIAL Chapter 14 Settlements and Dismissals ...... 33 Chapter 15 Trial Techniques ...... 35 Chapter 16 Posttrial Practice ...... 37 PART I INTRODUCTION TO CIVIL LITIGATION FOR THE PARALEGAL

CHAPTER 1 LITIGATION AND THE PARALEGAL

WHAT CIVIL LITIGATION IS actions for custody, partial custody and visitation of chil- Civil litigation is any legal action commenced by one party dren (Pa. R. Civ. P. 1915.1, et seq.); actions of divorce or against another party, excluding those actions brought by annulment of marriage (Pa. R. Civ. P. 1920.1, et seq.); and the Commonwealth of Pennsylvania, pursuant to the Penn- actions for wrongful death (Pa. R. Civ. P. 2201, et seq.). sylvania Crimes Code. The authority to enact and modify The orphan’s court division of the court of common pleas the rules governing civil litigation is vested with the Penn- involves the probate of wills, adoptions, termination of pa- sylvania Supreme Court, pursuant to the Pennsylvania Con- rental rights and proceedings under the Abortion Control stitution and the Pennsylvania Judicial Code (Pa. Const. Art 5 Act, and is governed by its separate set of rules. ¤10; 42 Pa. C. S. A. ¤ 1722(a)). The Pennsylvania Judicial Code (42 Pa. C. S. A. ¤ 101, et seq.), the Pennsylvania Rules of Civil Procedure, and the Pennsylvania Rules of Appel- ALTERNATIVES TO LITIGATION late Procedure, as promulgated by the Pennsylvania Supreme Pennsylvania has enacted the Uniform Arbitration Act (42 Court, govern the practice of civil litigation in Pennsylvania. Pa. C. S. A. ¤ 7301, et seq.). The act allows parties to vol- Although Pennsylvania has eliminated the distinction untarily arbitrate a controversy on a nonjudicial basis, ei- between assumpsit and trespass (Pa. R. Civ. P. 1001(b)(1)), ther according to the provisions of the act or according to the Rules of Civil Procedure, unlike the Federal Rules of common-law arbitration. A written agreement for arbitra- Civil Procedure, do differentiate between civil actions at law tion is valid, enforceable and binding unless the agreement and actions in equity. As a result of this continued separa- can be voided under the same grounds applicable to con- tion, there are some differences in the procedural aspects of tracts (42 Pa. C. S. A. ¤ 7303). If there is such an agree- the two types of actions, as well as substantive legal differ- ment, a party may petition the court to compel the other ences between actions at law and actions in equity. party to go to arbitration (42 Pa. C. S. A. ¤ 7304(a)). Within thirty (30) days of delivery of a copy of the deci- sion of the arbitration, a party may make application to the DIFFERENT TYPES OF CIVIL LAWSUITS court to vacate the award (42 Pa. C. S. A. ¤ 7314(b)). A court Civil litigation encompasses numerous types of actions of common pleas can only vacate the award if one of the that are governed by the Pennsylvania Rules of Civil Proce- following has occurred during the arbitration (42 Pa. C. S. A. dure. These actions are generally within the jurisdiction of ¤ 7314(a)): the courts of common pleas. With the possible exception of 1. The act did not apply to the action at hand. the district justice system, the county court of common pleas 2. There was evident partiality of an arbitrator or other is the court paralegals will be involved with most. Prior to misconduct on the part of an arbitrator prejudicing the the amendment of the Rules of Civil Procedure, there were rights of a party. separate rules for trespass and assumpsit actions, however, 3. The arbitrators exceeded their powers. they have now been consolidated as a single civil action (Pa. 4. The arbitrators refused to postpone the hearing for good R. Civ. P. 1001). Other actions “at law” include actions in cause, refused to hear admissible evidence, or conducted ejectment (Pa. R. Civ. P. 105l, et seq.), actions to quiet title the hearing contrary to the act that prejudiced the rights (Pa. R. Civ. P. 1061, et seq.); actions in replevin (Pa. R. Civ. of a party. P. 1071, et seq.); actions in mandamus (Pa. R. Civ. P. 1091, 5. There was no agreement to arbitrate, if this has not et seq.); actions in quo warranto (Pa. R. Civ. P. 1111, et already been decided by the court. seq.); actions in mortgage foreclosure (Pa. R. Civ. P. 1141, et seq.); and actions upon ground rent (Pa. R. Civ. P. 1161 A party has thirty (30) days from the date of the award to et seq.). Actions “at equity” include actions for the parti- have the court modify or correct an award based upon (1) a tion of real property (Pa. R. Civ. P. 1551, et seq.) and ac- miscalculation or mistake in the description of a person, thing, tions to prevent waste (Pa. R. Civ. P. 1576, et seq.). or property; (2) any matter that was not submitted to arbi- Other civil actions that come before the courts of com- tration and which was ruled upon by the arbitrators; and (3) mon pleas include declaratory judgments (Pa. R. Civ. P. 1601, a defect as to form not affecting the merits of the decision et seq.); actions upon mechanics liens (Pa. R. Civ. P. 1651, (42 Pa. C. S. A. ¤ 7315(a)). The court then enters a judg- et seq.); class actions (Pa. R. Civ. P. 1701, et seq.); actions ment or decree confirming, modifying, or correcting the ar- pursuant to Protection from Abuse Act (Pa. R. Civ. P. 1901, bitrators’ award (42 Pa. C. S. A. ¤ 7316). et seq.); actions for support (Pa. R. Civ. P. 1910.1, et seq.);

1 PROCEDURAL V. SUBSTANTIVE LAW the Pennsylvania Supreme Court, local rules of court, and In every civil case, it is necessary to know and research rules governing procedures before political subdivisions and two types of law. First, the substantive law defines the rights, administrative agencies. duties, and obligations of not only your client but also those of the opposing party, regardless of whether you are repre- senting the plaintiff or the defendant. The substantive law SOURCES OF THE LAW will be found in case law, and in a multitude of statutes and There are many sources of law used in determining civil ordinances. Statutes are laws passed by the general assem- litigation in Pennsylvania. The primary sources are the Penn- bly and codified in Purdons, whereas ordinances are those sylvania Constitution; statutes’ enacted by the general as- passed by political subdivisions, such as cities, counties, sembly; Pennsylvania case law as stated by the various courts boroughs, and townships. Ordinances can be found in the of Pennsylvania and federal courts deciding Pennsylvania offices of these subdivisions or in the county law library. law; the Pennsylvania rules of court (usually the Rules of Once it has been determined that your client has a cause Civil Procedure, orphan’s court rules and the various rules of action or a defense to an action brought against him, it is for the appellate courts), and local rules and ordinances en- necessary to know the procedural law regarding that par- acted by cities, boroughs, townships, etc. In addition, case ticular type of action. This is important, because the failure law of other states and other federal jurisdictions may be to properly file a pleading or missing a time limitation could used where the statute or rule being adjudicated is similar lead to excess time and expense on the part of your client, or identical to the Pennsylvania statute. Examples would be or even the loss of a claim or defense on your client’s be- the Uniform Child Custody Jurisdiction Act or the Uniform half. The procedural law is found in the Pennsylvania Judi- Reciprocal Enforcement of Support Act. Other sources of cial Code, Pennsylvania Rules of Civil Procedure, Pennsylvania authority would include various treatises and handbooks. Rules of Appellate Procedure, other rules promulgated by

2 CHAPTER 2 THE COURTS AND JURISDICTION

STATE COURT SYSTEMS warranto as to any officer of statewide jurisdiction (42 Pa. The judicial power of the Commonwealth of Pennsylva- C. S. A. ¤ 721). The Supreme Court has exclusive jurisdic- nia is vested in a unified judicial system consisting of a Su- tion of appeals from final orders of the courts of common preme Court, superior court, commonwealth court, and various pleas in the following cases (42 Pa. C. S. A. ¤ 722): county courts of common pleas, community courts, the Phila- 1. Matters prescribed by general rule; delphia municipal court, the traffic court of Philadelphia, 2. The right to public office; district justices, and such other courts as may be provided 3. Matters where the qualifications, tenure, right to serve, by law (Pa. Const. Art. 5 ¤ 1). The Judicial Code includes or the manner of service of any member of the judi- the same courts with the addition of the Pittsburgh magis- ciary is drawn in question; trates court (42 Pa. C. S. A. ¤ 301). Excluding district jus- 4. Automatic review of cases where the death sentence tices, the court system of Pennsylvania consists-of three levels. has been given; The Supreme Court is the highest judicial authority in the 5. Supersession of a district attorney by an attorney gen- commonwealth, followed by the intermediate appellate su- eral or by a court or where the matter relates to the perior and commonwealth courts and the sixty-seven (67) convening, supervision, administration, operation or dis- county courts of common pleas. The courts of common pleas charge of an investigating grand jury or matters other- may be divided into divisions, such as domestic relations. wise directly effecting such a grand jury or any There are also numerous district justices in each county. investigation conducted by it; Pursuant to the Pennsylvania Constitution, the general as- 6. Matters where the right or power of the Commonwealth sembly may create additional courts or divisions of existing of Pennsylvania or any subdivision to create or issue courts, as needed, or abolish any statutory court or division indebtedness is drawn in direct question; thereof (Pa. Const. Art. 5 ¤ 8). 7. Matters where the court of common pleas has held in- The Supreme Court of Pennsylvania is the highest court valid, as repugnant to the Constitution, treaties or laws in the Commonwealth of Pennsylvania and possesses the of the United States or to the Pennsylvania Constitu- supreme judicial power of the commonwealth. The court tion, any treat or law of the United States, or any pro- consists of seven justices, one of whom is the chief justice vision of the Pennsylvania Constitution, or of any (Pa. Const. Art. 5 ¤ 2). The superior court currently consists Pennsylvania statute, or any provision of any home rule of fifteen (15) judges (42 Pa. C. S. A. ¤ 541) and a presi- charter; dent judge (Pa. Const. Art. 5 ¤ 3). The commonwealth court 8. Matters where the right to practice law is drawn in di- consists of a president judge (Pa. Const. Art. 5 ¤ 4) and rect question. nine (9) judges (42 Pa. C. S. A. ¤ 561). The courts of common pleas shall have one president judge The Supreme Court has exclusive jurisdiction of appeals and as many other judges as may be provided by law (Pa. from final orders of the commonwealth court entered in any Const. Art. 5 ¤ 5). Some courts of common pleas have sepa- matter that was originally commenced in the commonwealth rate orphan’s courts and criminal divisions as well as a family court that does not constitute an appeal to the commonwealth court division. court from another court and appeals of decisions of the Board of Finance and Revenue (42 Pa. C. S. A. ¤ 723(a) and (b)). Further, the Supreme Court has jurisdiction over JURISDICTION appeals of final orders from the Legislative Reapportion- There are two types of jurisdiction: subject matter and ment Commission, the Judicial Inquiry and Review Board, personal. A court may determine a legal action if it has both the agency vested with the power to determine whether those subject matter jurisdiction and jurisdiction of the person. members of the minor judiciary required to do so have com- Subject matter jurisdiction refers to the competency of a par- pleted a course of training and passed examinations prepar- ticular court to determine certain classes of cases. The juris- ing them for the duties of their respective offices, the agency diction may be limited by the amount in controversy, as in vested with the power to admit or recommend the admis- the cases of district justices. District justices may not hear sion of persons to the bar and the practice of law, and the civil cases with an amount in controversy greater than $4,000.00. agency vested with the power to discipline or recommend Jurisdiction of the person is usually acquired by proper ser- the discipline of attorneys at law (42 Pa. C. S. A. ¤ 725). vice of the court’s process consistent with its authority. The Supreme Court may review, upon Petition for Allow- A court’s subject matter jurisdiction is determined by the ance of Appeal and the consent of two justices of the Su- Pennsylvania State Constitution and the Pennsylvania preme Court, final orders of the superior and commonwealth Judicial Code. The Supreme Court’s jurisdiction is provided courts not otherwise subject to appeal (42 Pa. C. S. A. ¤ by law (Pa. Const. Art. 5 ¤ 2). It has original, but not exclu- 724(a)). Finally, the Supreme Court may, on its own motion sive, jurisdiction of all cases of habeas corpus, mandamus, or upon petition of a party, in any matter pending in any or prohibition to courts of inferior jurisdiction, and has quo court involving an issue of immediate public importance,

3 assume plenary jurisdiction of such matter at any stage thereof, in the following cases: appeals from determinations of the and enter a final order, or otherwise cause right and justice Department of Health in connection with any matters con- to be done (42 Pa. C. S. A. ¤ 726). cerning birth records; determinations of the Department of The superior court has no original jurisdiction, except in Transportation appealable under specified statutory provi- cases of mandamus and prohibition, to courts of inferior sions; determinations of the Secretary of the commonwealth jurisdiction, where such relief is ancillary to matters within appealable under the Pennsylvania Election Code, except its appellate jurisdiction, except to issue writs of habeas corpus matters involving statewide office; determinations of the (42 Pa. C. S. A. ¤ 741). The superior court has exclusive Workmen’s Compensation Appeal Board appealable under jurisdiction of all appeals from final orders of the courts of the Pennsylvania Occupational Disease Act; determinations common pleas, except those appeals within the exclusive of the Pennsylvania Liquor Control Board appealable under jurisdiction of the Supreme Court or the commonwealth court. the Liquor Code; determinations of the Department of Rev- The commonwealth court has original jurisdiction of all enue in connection with the administration of the estate of a civil actions or proceedings against the government of the decedent; determinations of the Pennsylvania Labor Relations Commonwealth of Pennsylvania (including any officer thereof, Board under the Public Employee Relations Act, except where acting in his or her official capacity) except actions or pro- an employee of the commonwealth is involved; determina- ceedings in the nature of applications for a writ of habeas tions of an arbitration panel established under the Health corpus or postconviction relief not ancillary to proceedings Care Services Malpractice Act; certain appeals from govern- within the appellate jurisdiction of the commonwealth court, ment agencies other than commonwealth agencies; and ap- eminent domain proceedings, and actions on claims in which peals vested by subsequent legislation (42 Pa. C. S. A. ¤ 933(a)). immunity has been waived pursuant to specified statutory District justices have jurisdiction over the following ac- provisions (42 Pa. C. S. A. ¤ 761(a)(l)); actions by the com- tions: matters that arise under the Landlord and Tenant Act monwealth government, including any officer thereof act- of 1951 within the territorial jurisdiction of the district jus- ing in his or her official capacity, except eminent domain tice, which are primarily actions to evict tenants from the proceedings (42 Pa. C. S. A. ¤ 761(a)(2)); actions arising leased premises (42 Pa. C. S. A. ¤ 1515(a)(2)); civil claims under certain provisions of the Insurance Department Act where the sum demanded does not exceed $8,000.00, as long (42 Pa. C. S. A. ¤ 761(a)(3)); or Original jurisdiction of as the title to property is not in question: and fines and pen- which is vested by subsequent legislation (42 Pa. C. S. A. ¤ alties by a government agency (42 Pa. C. S. A. ¤ 1515(a)(3)). 761(a)(4)). Additionally, the commonwealth court has ex- clusive original jurisdiction over certain contested nomina- tions and elections and all matters arising in the Office of VENUE the Secretary of the Commonwealth relating to statewide Venue differs from jurisdiction, in that it refers to which office, except nomination and election contests within the court the action should be brought, once jurisdiction of the jurisdiction of another tribunal, such as federal elections (42 court has been established. Most commonly, this would en- Pa. C. S. A. ¤ 764). tail that the action is brought in the appropriate county court The commonwealth court has exclusive appellate juris- of common pleas. Venue is governed by Pa. R. Civ. P. 1006. diction over appeals from final orders of the courts of com- An action against an individual may be brought in a county mon pleas in the following cases: commonwealth civil cases in which he or she may be served; in which the cause of (42 Pa. C. S. A. ¤ 762(a)(1)); governmental and common- action arose; where a transaction or occurrence took place wealth regulatory criminal cases (42 Pa. C. S. A. ¤ 762(a)(2)); out of which the cause of action arose; or in any other county secondary review of certain appeals from commonwealth authorized by law (Pa. R. Civ. P. 1006(a)). agencies (42 Pa. C. S. A. ¤ 762(a)(3)); local government An action brought against a political subdivision may be civil and criminal matters (42 Pa. C. S. A. ¤ 762(a)(4)); cer- brought only in the county in which the political subdivi- tain private corporation matters (42 Pa. C. S. A. ¤ 762(a)(5)); sion is located (Pa. R. Civ. P. 2103(b)). An action brought eminent domain (42 Pa. C. S. A. ¤ 762(a)(6)); or immunity against a partnership may be brought in and only in a county waiver matters (42 Pa. C. S. A. ¤ 762(a)(7)). where the partnership regularly conducts business, in the In addition, the commonwealth court has exclusive juris- county where the cause of action arose, or in a county where diction over appeals and final orders from commonwealth a transaction or occurrence took place out of which the cause agencies, including the Environmental Hearing Board, the of action arose. This would not apply to attachment, sei- Pennsylvania Public Utility Commission, the Unemployment zure, garnishment, sequestration or condemnation of real or Compensation Board of Review, and other agencies having personal property, or an action for recovery of the posses- statewide jurisdiction (42 Pa. C. S. A.¤ 763(a)). sion or determination of the title to real or personal prop- Except as otherwise provided by law, the courts of com- erty (Pa. R. Civ. P. 2130(a) and (c)). An action against a mon pleas have unlimited original jurisdiction of all cases liquidator may be brought in and only in a county where (Pa. Const. Art. 5 ¤ 5(b); 42 Pa. C. S. A. ¤ 931(b)). The courts the liquidator is liquidating the partnership business or in of common pleas also have de nova appellate jurisdiction of which the partnership last regularly conducted business, in cases initiated before district justices (42 Pa. C. S. A. ¤ 932). the county where the cause of action arose, or in a county As a general rule, the courts of common pleas have juris- where a transaction or occurrence took place out of which diction of appeals from final orders of government agencies the cause of action arose (Pa. R. Civ. P. 2130(b)).

4 An action brought against an association may be brought the commonwealth is a defendant, may be brought against in and only in a county where the association regularly con- all defendants in any county where venue is proper against ducts business or any association activity; in the county where any of the defendants (Pa. R. Civ. P. 1006(c)). If the plain- the cause of action arose; or in a county where a transaction tiff states more than one cause of action against the same or occurrence took place out of which the cause of action defendant, the action may be brought in any county in which arose (Pa. R. Civ. P. 2156(a)). any one of the individual causes of action may have been Except in actions involving an insurance policy, or by brought (Pa. R. Civ. P. 1006(f)). act of the Pennsylvania Assembly, a personal action against Improper venue shall be raised by preliminary objection, a corporation or similar entity may be brought in and only and if not raised, the preliminary objection will be waived in the county where its registered office or principal place (Pa. R. Civ. P. 1006(e)). However, even if the preliminary of business is located; a county where it regularly conducts objection is sustained the action will not be dismissed. It business; a county where the cause of action arose; or a county will be transferred to the appropriate court. The costs and where a transaction or occurrence took place out of which fees for the transfer and removal of the record must be paid the cause of action arose (Pa. R. Civ. P. 2179(a)). An action by the plaintiff (Pa. R. Civ. P. 1006(e)). upon a policy of insurance against an insurance company, Upon petition by any party, for the convenience of the association, or exchange, either incorporated or organized parties and witnesses, the court may transfer an action to a in Pennsylvania or doing business in the commonwealth, more appropriate court in another county where the action may be brought in and only in the county where its regis- could originally have been brought (Pa. R. Civ. P. 1006(d)(1)). tered office or principal place of business is located; a county If, following a petition and hearing thereon, the court finds were it regularly conducts business; a county where the cause that a fair and impartial hearing cannot be held in that county, of action arose; a county where a transaction or occurrence the court may order the action to be transferred. In such a took place out of which the cause of action arose; in the case, the Pennsylvania Supreme Court will designate the county county where the insured property is located; or in the county to which the transfer will be made (Pa. R. Civ. P. 1006(d)(2)). where the plaintiff resides, in actions upon policies of life, It is the duty of the prothonotary of the court in which accident, health, disability, and livestock insurance or fra- the action is pending, to forward to the prothonotary of the ternal benefit certificates (Pa. R. Civ. P. 2179(b)). county to which the action is transferred certified copies of An action to enforce a joint or a joint and several liabil- the docket entries, process, pleadings, depositions, and other ity against two or more defendants, except actions in which papers filed in the action (Pa. R. Civ. P. 1006(d)(3)).

5 PART II INITIATING LITIGATION

CHAPTER 3 PRELIMINARY CONSIDERATIONS

DETERMINING THE EXISTENCE of action. However, under the discovery rule exception, the OF A CAUSE OF ACTION statute of limitations is tolled where the injured party is unable, To determine an existence of a cause of action, it is nec- despite the exercise of diligence, to determine the injury or essary to obtain the facts from the client and use those facts its cause (Pocono International Raceway. Inc. v. Pocono to ascertain whether a statutory or common-law cause of Produce, Inc., 503 (Pa. 80, 468 A.2d 468 (1983)). action exists. In order to maintain a cause of action, the facts The statute of limitations for a breach of contract begins must fulfill all of the requirements of that cause of action. to run at the time of the breach (Tenny v. Dauphin Deposit Bank & Trust Co., 32 Cumberland L. J. 239 (1981)). Where a party has acknowledged an indebtedness for which a promise TIME LIMITATIONS to pay was made or can be implied, the statute of limita- The statute of limitations determines the time in which tions may begin to run from that time, and not when the an action must be initiated. In Pennsylvania, the time limits party failed to make payment on the debt. The acknowledg- are set forth in the Pennsylvania Judicial Code at 42 Pa. C. S. A. ment of the debt as an existing obligation must be clear, ¤¤ 5521Ð5537. The purpose of the statute of limitations is distinct, and unequivocal (Goodis v. Meneses, 33 D. & C. to ensure that a plaintiff, who has been harmed in some manner, 2d 671 (1964)). The four-year statute of limitations may be brings that action within a certain time. A plaintiff who does tolled by the debtors’ partial payment of a prior debt (Natu- not initiate the action within the time allotted will lose the ral Resources Lease Acquisition Program v. Tisi, 21 Crawford right to bring the action against a defendant. It is extremely Co. Leg. J, 261 (1990)). important when taking down the information from a client, In personal injury actions, the statute of limitations runs to confirm the date that the injury or harm occurred or be- from the date of the injury (Salvador v. Atlantic Steel Boiler came known to the client. This will govern the speed and Co., 256 Super. Ct. 330, 389 A.2d 1148 (1978)). An action intensity needed to initiate the action and to prepare for its for injuries arising out of an automobile accident, probably filing, as it is not unusual for a client to come to an attorney the most common personal injury action, commences upon just before the statute of limitations runs out. the date of the accident (Donnelly v. DeBourke, 280 (Pa. Under the Pennsylvania Judicial Code, the time in which Super. 486, 421 A.2d 826 (1980)). However, when, with the to bring an action ranges from a minimum of six (6) months exercise of due diligence, the plaintiff could not have ascer- to no limit. The two most common actions with a statute of tained the defendant’s liability, the statute of limitations does limitations are personal injury and breach of contract, which not begin to run until the date that the ascertainment of the have a time limitation of two (2) years (42 Pa. C. S. A. ¤ 5524) liability should have been discovered (Cathcart v. Keene and four (4) years (42 Pa. C. S. A. ¤ 5525), respectively. Industrial Insulation, 324 (Pa. Super. 123, 471 A.2d 493 Within six (6) months of a cause of action against a gov- (1984)). Thus, where knowledge is impossible because of ernmental entity or officer, a notice to the same, of possible the laws of nature, actual fraud, or concealment of the wrong- legal action against the entity or officer, must be sent to the doer, where it is impractical to impose on one who has been officer or entity (42 Pa. C. S. A. ¤ 5222(a)(1)). An action wronged the duty to export, and discover the undetectable against a governmental officer must be initiated within six act of the wrongdoer, the statute should begin to run from (6) months unless the cause of action is subject to another the time discovery of the injury is made (Med-Mar, Inc. v. limitation (42 Pa. C. S. A. ¤ 5222(b)(1)). There is a one- Dilworth. 214 (Pa. Super. 402, 257 A.2d 910 (1969)). year statute of limitations for actions of libel, slander, inva- Once the appropriate time limitation has been ascertained sions of privacy and an action on a bond (42 Pa. C. S. A. ¤ in the client interview, one must be sure to commence the 5223). A five-year limit applies to the revival of judgment action within the time allowed. The Pennsylvania Rules of lien or for specific performance of the sale of real property Civil Procedure state that an action may be commenced by (42 Pa. C. S. A. ¤ 5226). A six-year limitation exists for filing with the prothonotary a praecipe for a writ of sum- actions not otherwise mentioned (42 Pa. C. S. A. ¤ 5227) mons, a complaint, or an agreement for an amicable action and twenty-one (21) years for the possession of real prop- (Pa. R. Civ. P. 1007). erty (42 Pa. C. S. A. ¤ 5230). Unless tolled, the statute of limitations begins to run from the date when the cause of action arises (Pennsylvania Turnpike ETHICAL CONSIDERATIONS IN ACCEPTING Com. v. Atlantic Richfield Co., 31 Cmwlth Ct. 212, 375 A.2d A CASE 890 (1977)). The statute of limitations is not stayed, as a The Rules of Professional Conduct (Pa. R. P. C.) as pro- rule, simply because the plaintiff does not know of the cause mulgated by the Supreme Court of Pennsylvania govern an

6 attorney’s conduct in a case. A lawyer should only accept a A lawyer shall not represent a client if the representation of case in which he or she can provide competent representa- that client may be materially limited by the lawyer’s respon- tion. Competent representation requires the legal knowledge, sibilities to another client or to a third person, or by the skill, thoroughness, and preparation necessary for the rep- lawyer’s own interests, unless the lawyer reasonably believes resentation (Pa. R. P. C. 1.1). that the representation will not be adversely affected and A lawyer shall not bring or defend a proceeding, or as- the client consents after full disclosure and consultation (Pa. sert or controvert an issue therein, unless there is a basis for R. P. C. 1.7(b)). doing so that is not frivolous; however, an attorney may advance A lawyer who has formerly represented a client in a mat- a good faith argument for an extension, modification, or reversal ter shall not thereafter represent another person in the same of existing law (Pa. R. P. C. 3.1). or a substantially related matter in which that person’s in- A lawyer shall not enter into an agreement for, charge, terests are materially adverse to the interests of the former or collect an illegal or clearly excessive fee. The factors to client, unless the former client consents after a full disclo- be considered in determining the propriety of a fee include sure of the circumstances and consultation. Further, said attorney the following (Pa. R. P. C. 1.5(a)): shall not use information relating to the representation to the disadvantage of the former, except as the Rules of Pro- 1. Whether the fee is fixed or contingent; fessional Conduct relating to confidentiality would permit 2. The time and labor required, the novelty and difficulty with respect to a client or when the information has become of the questions involved, and the skill required to per- generally known (Pa. R. P. C. 1.9). form the legal service properly; As a general rule, a lawyer shall not represent a private 3. The likelihood, if apparent to the client, that the ac- client in connection with a matter in which the lawyer par- ceptance of the particular employment will preclude ticipated personally and substantially as a public officer or other employment by the lawyer; employee, unless the appropriate government agency con- 4. The fee customarily charged in the locality for similar sents after consultation (Pa. R. P. C. 1.11(a)) nor represent legal services; anyone in connection with a matter in which the lawyer 5. The amount involved and the results obtained; participated personally and substantially as a judge or other 6. The time limitations imposed by the client or by the adjudicative officer, arbitrator, or law clerk to such a person circumstances; (Pa. R. P. C. 1.12(a)). 7. The nature and length of the professional relationship A lawyer related to another lawyer as parent, child, sib- with the client; and ling, or spouse shall not represent a client in representation 8. The experience, reputation, and ability of the lawyer directly adverse to a person who the lawyer knows is repre- or lawyers performing the services. sented by the other lawyer, except upon consent by the client When the lawyer has not regularly represented the cli- after consultation regarding the relationship (Pa. R. P. C. 1.8(i)). ent, the basis or rate of the fee shall be communicated to the client in writing before or within a reasonable time after commencing the representation (Pa. R. P. C. 1.5(b)). ETHICAL CONSIDERATIONS AFTER A fee may be contingent on the outcome of the matter ACCEPTING A CASE for which the service is rendered, except where prohibited A lawyer shall abide by a client’s decisions concerning by the Rules of Professional Conduct or by law. A contin- the objectives of representation and shall consult with the gent fee agreement shall be in writing and shall state the client as to the means by which they are to be pursued. A method by which the fee is to be determined, including the lawyer shall abide by a client’s decision whether to accept percentage or percentages that accrue to the lawyer in the an offer of settlement. A lawyer may limit the objectives of event of settlement, trial, appeal, litigation, and other ex- the representation, if the client consents after consultation penses to be deducted from the recovery. Whether such ex- and a full disclosure of the circumstances. A lawyer shall penses are to be deducted before or after the contingent fee not counsel a client to engage or assist a client, in conduct matter, the lawyer shall provide the client with a written that the lawyer knows is criminal or fraudulent; however, a statement stating the outcome of the matter, and, if there lawyer may discuss the legal consequences of any proposed was a recovery, showing the remittance to the client and the course of conduct with a client and may counsel or assist a method of its determination (Pa. R. P. C. 1.5(c)). client to make a good faith effort to determine the validity, A lawyer shall not enter into an arrangement for, charge scope, meaning, or application of the law (Pa. R. P. C. 1.2). or collect any fee in a domestic relations matter, the pay- The lawyer shall act with reasonable diligence and prompt- ment or amount of which is contingent upon the securing of ness in representing the client (Pa. R. P. C. 1.3) and make a divorce or upon the payment of alimony or support (Pa. reasonable efforts to expedite litigation consistent with the R. P. C. 1.5(d)). interest of the client (Pa. R. P. C. 3.2). The lawyer should A lawyer shall not represent a client if the representation exercise independent professional judgment and render candid of that client will be directly adverse to another client, un- advice, and in rendering such advice, may refer, not only to less the lawyer reasonably believes the representation will the law, but to other considerations, such as moral, economic, not adversely affect the relationship with the other client social, and political factors that may be relevant to the client’s and each client consents after consultation (Pa. R. P. C. 1.7(a)). situation (Pa. R. P. C. 2.1).

7 A lawyer shall keep a client informed about the status of and of the participation of each person in the settlement (Pa. a matter, promptly comply with reasonable requests for in- R. P. C. 1.8(g)). A lawyer shall not make an agreement pro- formation, and explain a matter to the extent necessary to spectively limiting the lawyer’s ability to a client for mal- permit the client to make informed decisions regarding the practice, unless permitted by law and the client is independently representation (Pa. R. P. C. 1.4). Outside of fees, one of the represented in making the agreement. Nor shall a lawyer most common causes of friction between an attorney and a settle a claim for such liability with an unrepresented client client is the lack of communication with the client. It is or former client, without first advising that person in writ- important for the attorney to send copies of all correspon- ing that independent representation is appropriate in con- dence and pleadings to the client to keep him up to date and nection therewith (Pa. R. P. C. 1.8(h)). to help keep friction to a minimum. A lawyer shall not acquire a proprietary interest in a cause As a rule, a lawyer shall not reveal information relating of action that the lawyer is conducting for a client, except to representation of a client, unless the client consents after that the lawyer may acquire a lien granted by law to secure consultation, except where disclosures are implicitly autho- the lawyer’s fee or expenses and a contract with a client for rized to carry out the representation; to act candidly toward a reasonable contingent fee in a civil case (Pa. R. P. C. 1.8(j)). the court pursuant to Pa. Disciplinary Rule 3.3; to prevent When a client’s ability to make adequately considered the client from committing a criminal act likely to result in decisions in connection with the representation is impaired, death or substantial bodily harm or injury to financial inter- whether because of minority, mental disability, or for some ests or property of another; to prevent or rectify the conse- other reason, the lawyer should, as far as reasonably pos- quences of a client’s criminal or fraudulent act in the commission sible, maintain a normal client-lawyer relationship with the of which the lawyer’s services are being or had been used; client (Pa. R. P. C. 1.14(a)). A lawyer may seek the appoint- and in controversies between the lawyer and client (Pa. R. ment of a guardian or take other protective action with re- P. C. 1.6). spect to a client, only when the lawyer reasonably believes A lawyer shall not enter into a business transaction with that the client cannot adequately act in the client’s own in- a client or knowingly acquire an ownership, possessory, se- terest (Pa. R. P. C. 1.14(b)). curity, or other pecuniary interest adverse to a client unless A lawyer shall hold the property of clients or third per- the transactions and terms on which the lawyer acquires the sons that is in a lawyer’s possession in connection with a interest are fully disclosed and transmitted in writing to the representation separate from the lawyer’s own property. Funds client in a manner which can be reasonably understood by shall be kept in a separate account maintained in the state the client; the client is advised and is given a reasonable where the lawyer’s office is situated, or elsewhere with the opportunity to seek the advice of independent counsel in consent of the client or third person. Other property shall be the transaction and the client consents in writing thereto (Pa. identified as such and appropriately safeguarded. Complete R. P. C. 1.8(a)). A lawyer shall not use information relating records of such account funds and other property shall be to representation of a client to the disadvantage of the client preserved for five (5) years after termination of the repre- unless the client consents after consultation (Pa. R. P. C. 1.8(b)). sentation. Upon receiving funds of other property in which Prior to the conclusion of representation of a client, a a client or third person has an interest, a lawyer shall promptly lawyer shall not make or negotiate an agreement giving the notify the client or third person. Except as stated in this lawyer literary or media rights to a portrayal or account based rule, or otherwise permitted by law or by agreement with in substantial part on information relating to the representa- the client, a lawyer shall promptly deliver to the client or tion (Pa. R. P. C. 1.8(d)). A lawyer shall not provide financial third person any funds or other property that the client or assistance to a client in connection with pending or con- third person is entitled to receive and, upon request by the templated litigation, except that a lawyer may advance court client or third person, shall promptly render a full account- costs and expenses of litigation, the repayment of which may ing regarding such property. When a lawyer has possession be contingent on the outcome of the matter; and a lawyer of property in which both the lawyer and another person representing an indigent client may pay court costs and ex- claim interest, the property shall be kept separate by the penses of litigation on behalf of the client (Pa. R. P. C. 1.8(e)). lawyer, until there is an accounting and severance of their A lawyer shall not accept compensation for representing interests. If a dispute arises concerning their respective in- a client from a person other than the client, unless: the cli- terests, the portion in dispute shall be kept separate by the ent consents after full disclosure of the circumstances and lawyer until the dispute is resolved (Pa. R. P. C. 3.7(a)). consultation; there is no interference with the lawyer’s in- A lawyer shall not act as an advocate at a trial in which dependent professional judgment, or with the client-lawyer the lawyer is likely to be a necessary witness, except where relationship; and information relating to representation of the testimony relates to an uncontested issue, or the testi- the client is protected (Pa. R. P. C. 1.8(f)). mony relates to the nature and value of legal services ren- A lawyer who represents two or more clients shall not dered in the case or disqualification of the lawyer would participate in making an aggregate settlement of the claims work a substantial hardship on the client (Pa. R. P. C. 1.15). of or against the clients, or in a criminal case an aggregated Where an attorney acting as trial counsel is called as a wit- agreement as to guilty or nolo contendre pleas, unless each ness on behalf of a party whom he or she represents, the client consents after consultation, including disclosure of court may determine whether the attorney may continue to the existence and nature of all the claims or pleas involved, act as trial counsel during the remainder of the trial.

8 Except in cases where a tribunal orders a lawyer to con- objective that the lawyer considers repugnant or imprudent; tinue representation despite good cause to terminate repre- the client fails substantially to fulfill an obligation to the sentation, a lawyer shall not represent a client, or where lawyer regarding the lawyer’s services and has been given representation has commenced, shall withdraw from the rep- reasonable warning that the lawyer will withdraw unless the resentation of a client if the’ representation will result in obligation is fulfilled; the representation will result in an violation of the Rules of Professional Conduct or other law; unreasonable financial burden on the lawyer, or has been the lawyer’s physical or mental condition materially impairs rendered unreasonably difficult by the client; or other good the lawyer’s ability to represent the client; or the lawyer is cause for terminating the representation (Pa. R. P. C. 1.16 discharged. Except in cases where a tribunal orders a law- (a)Ð(c)). yer to continue representation despite good cause to termi- Upon termination of representation, a lawyer shall take nate representation, a lawyer may withdraw from representing steps to the extent reasonably practicable to protect a client’s a client if: withdrawal can be accomplished without a mate- interests, such as giving reasonable notice to the client, al- rially adverse effect on the interests of the client, or if the lowing time for employment of other counsel, surrendering client persists in a course of action involving the lawyer’s papers and property to which the client is entitled, and re- services that the lawyer reasonably believes is criminal or funding any advance payment of fee that has not been earned, fraudulent; the client has used the lawyer’s services to per- The lawyer may retain papers relating to the client to the petrate a crime of fraud; the client insists upon pursuing an extent permitted by law (Pa. R. P. C. 1.16(d)).

9 CHAPTER 4 INTERVIEW AND INVESTIGATION PRIOR TO LITIGATION

LOCATING FACT WITNESSES OR ELUSIVE TECHNIQUES FOR INTERVIEWING FACT DEFENDANTS WITNESSES Corporations are required to list their registered office in Prior to tape recording, the interviewer should obtain written their articles of incorporation (15 Pa. C. S. A. ¤ 1306(a)(2)) permission of the person being interviewed. The interviewer which must be filed with the Pennsylvania Department of should also state on the tape, prior to beginning, the date State (15 Pa. C. S. A. ¤ 1308(a)). The corporation must maintain and time of the interview, along with the name of the per- the registered office (15 Pa. C. S. A. ¤ 1507(a)) and notify son being interviewed. His or her permission should also be the department of state of any changes in that office (15 Pa. noted on the tape. If it is necessary to have a second tape, C. S. A. ¤ 1507(b)). A corporation can use an agent (15 Pa. the same procedure should be used. At the conclusion of C. S. A. ¤ 108(a)) or a commercial registered office (15 Pa. the interview, it should be clearly stated that the interview C. S. A. ¤ 109(a)). is over. In Pennsylvania, it is unlawful to record a conversa- As a general rule, any individual, corporation, associa- tion with another person for the purpose of selling the re- tion, partnership, joint-stock company, business trust, syn- cording or using it for profit without that person’s consent dicate, joint adventureship, or other combination of groups (18 Pa. C. S. A. ¤ 4116). of persons conducting any business in the commonwealth under or through any assumed or fictitious name, style, or designation other than the proper name of the entity using EXPERT WITNESSES such name, shall register its fictitious name with the depart- The Pennsylvania Rules of Civil Procedure do not define ment of state and shall amend the registration when neces- the term expert witness, although the rules do have special sary (54 Pa. C. S. A. ¤ 303). As part of the registration, it is provisions regarding the depositions, discovery, and use of required to provide the address of the entity and the names expert witnesses, which will be developed in subsequent and addresses of those “persons” comprising the entity (54 chapters. In general, an expert witness is one who, because Pa. C. S. A. ¤ 311). of the possession of knowledge not within ordinary reach, is specially qualified to testify on the subject of his or her expertise (Steele v. Shepperd, 411 Pa. 481, 192 A.2d 397 (1963). Expert testimony can be in any area of fact, includ- ing medical opinions, real estate, handwriting, accident re- construction, etc.

10 CHAPTER 5 RESPONDING TO THE INITIAL PLEADINGS

INITIAL PLEADINGS g. Any part of a pleading may be incorporated by refer- Under the Pennsylvania Rules of Civil Procedure an ac- ence in another part of the same pleading or in another tion is commenced by filing with the prothonotary a praecipe pleading in the same action. A party may incorporate for a writ of summons or a complaint (Pa. R. Civ. P. 1007). by reference any matter of record in any state or fed- The rules recognize a number of pleadings that may be filed eral court of record whose records are within the court during and in response to an action. These pleadings include in which the action is pending, or any matter that is a complaint, an answer thereto, a reply if the answer con- recorded or transcribed verbatim in the office of the tains new matter or a counterclaim, a counter-reply if the prothonotary, clerk of any court of record, recorder of reply to a counterclaim contains new matter, a preliminary deeds, or register of wills of such county. objection, and an answer thereto (Pa. R. Civ. P. 1017(a)). h. A pleading shall state specifically whether any claim Every pleading shall contain a caption setting forth the or defense set forth therein is based upon a writing. If name of the court, the number of the action and the name of so, the pleader shall attach a copy of the writing, or the pleading. In pleadings other than the complaint, it is the material part thereof, but if the writing or copy is proper to include only the name of the first party on each not accessible to him, it is sufficient so to State, to- side in the complaint with an appropriate indication of other gether with the reason, and to set forth the substance parties (i.e., “et al.”) (Pa. R. Civ. P. 1018). of the writing. Every pleading shall be divided into paragraphs numbered consecutively and each paragraph shall contain, as far as As a general rule, every pleading subsequent to the com- practical, only one material allegation (Pa. R. Civ. P. 1022). plaint shall be filed within twenty (20) days after service of Every pleading of party represented by an attorney shall be the preceding pleading, but no pleading need be filed un- signed by at least one attorney of record in his or her indi- less the preceding pleading contained a notice to defend or vidual name and, if not represented, the pleading shall be is endorsed with a notice to plead (Pa. R. Civ. P. 1026(a)). signed by the party (Pa. R. Civ. P. 1023(a)). A pleading that contains averments of facts not appearing of record in the action or containing a denial of fact shall state that the aver- PARTIES TO THE LAWSUIT ment or denial is true upon the signer’s personal knowledge The Pennsylvania Judicial Code defines a “party” as a or information and belief (Pa. R. Civ. P. 1024(a)). In addi- person who commences an action to obtain relief or against tion, every pleading shall be endorsed with the name of the whom such a claim for relief is made (42 Pa. C. S. A. ¤ 102). attorney, or if a party is not represented, it shall be endorsed While the Pennsylvania Judicial Code defines “party,” it is with the name of the party and an address within the com- the Rules of Civil Procedure that govern the manner in which monwealth (Pa. R. Civ. P. 1025). parties are to be included in a cause of action. Pennsylvania Pennsylvania Rule of Civil Procedure 1019 states the re- Rule of Civil Procedure 1018 requires that every pleading quired contents of pleadings: include the names of the parties and, in the case of a com- plaint, must include every name. Although it is possible to a. The material facts on which a cause of action or de- amend the parties, it is important, when filing the initial fense is based shall be stated in a concise and sum- pleading, to make sure the caption contains the proper des- mary form. ignation for each party. Otherwise, the case may fail for reason b. Averments of fraud or mistake shall be averred with of the action being brought against the wrong party. particularity. Malice, intent, knowledge, and other con- As a rule, all actions shall be prosecuted by and in the ditions of mind may be averred generally. name of the real party in interest, without distinction between c. In pleading the performance or occurrence of condi- contracts under seal and parol contracts. A plaintiff may sue tions precedent, it is sufficient to aver generally that in his or her own name without joining as plaintiff or use- all conditions precedent have been performed or have plaintiff any person beneficially interested when such plaintiff occurred. A denial of such performance or occurrence is acting in a fiduciary or representative capacity, which is shall be made specifically and with particularity. disclosed in the caption and in the plaintiffs initial plead- d. In pleading an official document or official act, it is ing; or is a person with whom or in whose name a contract sufficient to identify it by reference and aver that the has been made for the benefit of another (Pa R. Civ. P. 2002). document was issued or the act done in compliance When a minor is a party to an action, he or she shall be with law. represented by a guardian who shall supervise and control e. In pleading a judgment, order, or decision of a domes- the conduct of the action on behalf of the minor (Pa. R. Civ. tic or foreign court, judicial or administrative tribunal, P. 2027). The initial pleading filed on behalf of a minor plaintiff or board, commission or officer, it is sufficient to aver shall state the name and address of his or her guardian and the judgment, order, or decision without setting forth his or her relationship, if any, to the subject matter of the matter showing jurisdiction to render it. cause of action or to any of the parties thereto (Pa. R. Civ. f. Averments of time, place, and items of special damage P. 2028(b)). An action in which a minor is the defendant shall be specifically stated.

11 shall be commenced against the minor by name in the man- in such action as trustee ad litem on behalf of all persons ner in which a like action is commenced against an adult (Pa. entitled to share in the damages (Pa. R. Civ. P. 2202(a) R. Civ. P. 2028(c)). and (b)). A minor plaintiff may select his or her guardian, but such Besides the parties named in the initial complaint in a selection shall not bar the court from removing the guard- civil action, there are a number of means under the Rules of ian for cause (Pa. R. Civ. P. 2031(a)). If a minor party to an Civil Procedure to add parties to the action. The first is a action is not represented, the court shall appoint a guardian joinder of additional parties, which fall into two categories: for him either upon its own motion or upon the petition of compulsory and permissive. (1) the minor party, (2) a guardian of the minor appointed Persons having only a joint interest in the subject matter by any court of competent jurisdiction, or by a duly pro- of an action must be joined on the same side as plaintiff or bated will, (3) any relative of the minor or any other party defendant (Pa. R. Civ. P. 2227(a)). If a person who must be to the action (Pa. R. Civ. P. 2031(b)). joined as a plaintiff refuses to join, he or she shall, in a proper When an incompetent is a plaintiff, he or she shall be case, be made a defendant or an involuntary plaintiff when represented by a guardian or by a guardian ad litem who the substantive law permits such involuntary joinder (Pa. R. shall supervise and control the conduct of the action in his Civ. P. 2227(b)). If an injury, not resulting in death, is in- or her behalf (Pa. R. Civ. P. 2053(a)). When an incompetent flicted upon the party of a husband or a wife, and causes of is a defendant he or she shall be represented by a guardian. action therefor accrue to both, they shall be enforced in one If there is no guardian, or if the guardian has not served action brought by the husband and wife (Pa. R. Civ. P. 2228(a)). with process in this commonwealth and does not voluntar- If an injury, not resulting in death, is inflicted upon the ily appear in the action, the incompetent party shall be rep- person of a minor, and causes of action therefore accrue to resented by guardian ad litem. The guardian or guardian ad the minor and to the parent or parents of the minor, they litem shall supervise and control the conduct of the action shall be enforced in one action brought by the parent or parents in his or her behalf (Pa. R. Civ. P. 2053(b)). The initial pleading and the child. Either parent may sue therefor in the name of filed in behalf of an incompetent plaintiff shall state the name both, but if the parents live apart, the action shall be brought and address of his or her guardian, if any, the nature of his by the parent having custody of the child and control of its or her guardianship, and a reference to the record of his or services (Pa. R. Civ. P. 2228(b)). her appointment (Pa. R. Civ. P. 2054(b)). If the court finds a In the case of a permissive joinder, persons may join as plaintiff to be incapacitated at some time during the pro- plaintiffs who assert any right to relief jointly, severally, ceedings, a guardian, or guardian ad litem will be appointed separately, or in the alternative, in respect of or arising out (Pa. R. Civ. P. 2056). of the same transaction, occurrence, or series of transac- An action by or against a political subdivision shall be tions or occurrences if any common question of law or fact brought in the name of the political subdivision (Pa. R. Civ. affecting the rights to relief of all such persons will arise in P. 2102(b)). the action (Pa. R. Civ. P. 2229(a)). A plaintiff may join as A partnership having a right of action shall prosecute such defendants persons against whom he or she asserts any right right in the names of the then-partners trading in the firm to relief jointly, severally, separately, or in the alternative, name (Pa. R. Civ. P. 2127(a)). An action prosecuted by the in respect of or arising out of the same transaction, occur- liquidator of a dissolved partnership shall be prosecuted in rence, or series of transactions or occurrences if any com- the name of the liquidator (Pa. R. Civ. P. 2127(b)). An action mon question of law or fact affecting the rights to relief of all against a partnership may be prosecuted against one or more such persons will arise in the action (Pa. R. Civ. P. 2229(b)). partners as individuals trading as the partnership (Pa. R. Civ. Parties may join or be joined in the alternative, although P. 2128(a)). the cause of action asserted by or against any one or more An action prosecuted by an association shall be prosecuted of them is inconsistent with the cause of action asserted by in the name of a member or members thereof or trustees ad or against any of the others so joined (Pa. R. Civ. P. 2229(c)). litem for such association (Pa. R. Civ. P. 2152). In an action A person who asserts a cause of action ex contracu may join prosecuted against an association, it shall be sufficient to as defendants all or any one or more persons alleged to be name as defendant either the association by its name, whether liable to him on or by reason of the breach of the contrac- the name is registered, filed, or not, or any officer of the as- tual obligation sued upon, regardless of the capacities in sociation as trustee ad litem for such association (Pa. R. Civ. which such persons are respectively liable, or whether they P. 2153(a)). are primarily or secondarily liable, or whether their liabili- An action shall be prosecuted by or against a corporation ties arise from the same or separate acts or undertakings; or similar entity in its corporate name (Pa. R. Civ. P. 2177). but where the liability of any defendant is solely joint. the An action for wrongful death shall be brought only by the plaintiff shall join all other persons jointly liable with such personal representative of the decedent for the benefit of those defendant (Pa. R. Civ. P. 2229(d)). persons entitled by law to recover damages for such wrong- In an action to adjudicate title to or an interest in real ful death; except if no action for wrongful death has been or personal property, persons whose claims are not adverse brought within six (6) months after the death of the dece- to each other may join as plaintiffs and any person whose dent, the action may be brought by the personal represen- claim is adverse to that of the plaintiff may be joined as a tative or by any person entitled by law to recover damages defendant (Pa. R. Civ. P. 2229(e)).

12 Except in cases pertaining to class actions, a defendant terplead the plaintiff and one or more claimants who are or additional defendant may join as an additional defendant not parties of record (Pa. R. Civ. P. 2302). Pa. R. Civ. P. any person, whether or not a party to the action, who may 2303 sets forth the contents of the petition for interpleader be solely liable to the plaintiffs cause of action or liable which shall allege: over to the joining party on the plaintiffs cause of action or 1. That a claimant not a party of record has made or is jointly or severally liable with the joining party on the plaintiffs expected to make a demand upon the defendant as a cause of action or liable to the joining party on any cause of result of which the defendant is or may be exposed to action arising out of the transaction or occurrence or series double or multiple liability to the plaintiff and to such of transactions or occurrences upon which the plaintiff’s cause claimant as to all or any party of the claim asserted by of action is based (Pa. R. Civ. P. 2252(a)). the plaintiff; If the person sought to be joined is not a party to the 2. That the petition is filed in good faith and not in collu- action, the joining party may, as a matter of course, file a sion with the plaintiff or any claimant; new action by filing a praecipe for a writ of summons or 3. The interest, if any, that the defendant claims in the complaint (Pa. R. Civ. P. 2252(b)). lf the joinder is by writ money or property in controversy, and whether he or of summons, the joining party shall file his or her complaint she is able to pay or deliver that part of the money or within twenty (20) days from the filing of the praecipe for property as to which he or she claims no interest into the writ. If the joining party fails to file his or her com- court or to such person as the court may direct; and plaint within the required time, the plaintiff or additional 4. Whether he or she has admitted the claim of, or sub- defendant joined may seek a rule to file the complaint and jected himself to independent liability to, the plaintiff an eventual judgment of non pros pursuant to Pa. R. Civ. P. or any claimant in respect to the subject matter of the 1037(a) if the complaint is not filed within twenty (20) days action. of the rule (Pa. R. Civ. P. 2252(b)(1)). If the person sought to be joined is a party, the joining party shall, without mov- The petition shall be subscribed and verified. A copy of ing for severance or the filing of a praecipe for a writ of the petition shall be served upon the plaintiff or his or her summons or a complaint, assert in his or her answer as new attorney and the plaintiff’s answer, if any, shall be filed within matter that such party alone is liable to the plaintiff, liable twenty (20) days of such service (Pa. R. Civ. P. 2305). Pending over to the joining party, jointly or severally liable to the disposition, all proceedings are stayed (Pa. R. Civ. P. 2303(c)). plaintiff, or liable to the joining party directly setting forth The court shall direct an interpleader if the allegations are the ground therefor (Pa. R. Civ. P. 2252(d)). established by either proof or by failure of the plaintiff to file Except in cases involving asbestos litigation, neither the a sufficient answer; however, the court may deny the peti- praecipe for a writ to join an additional defendant nor a com- tion if the defendant has unreasonably delayed in filing the plaint if the joinder is commenced by a complaint, shall be petition or has admitted the claim of, or subjected himself filed by the original defendant or an additional defendant to independent liability to the plaintiff or any claimant, with later than sixty (60) days after the service upon the original knowledge that an inconsistent claim would be later asserted defendant of the initial pleading of the plaintiff or any amend- against him by any known or unknown person (Pa. R. Civ. ment thereof, unless such filing is allowed by the court upon P. 2306)(a). If the defendant petitions to interplead claim- cause shown (Pa. R. Civ. P. 2253). ants who in good faith and without collusion have started The procedure, including pleadings, between the party independent actions against the defendant in the same or joining an additional defendant and the additional defen- different courts, the court in which the petition for inter- dant shall be the same as though the party joining the addi- pleader is filed shall grant the petition where otherwise proper tional defendant were a plaintiff and the additional defendant under these rules if the petition is filed in the first action com- were a defendant (Pa. R. Civ. P. 2255(a)). No pleadings shall menced against the defendant; or may refuse the petition be filed between the additional defendant and any party other although it would be proper to grant it under these rules if it than the one joining him, except that the additional defen- is filed in any action other than the first action, and the granting dant may file a counterclaim against the plaintiff (Pa. R. of the interpleader would unduly prejudice any party to any Civ. P. 2255(b)). No judgment on the pleadings may be en- of the actions commenced against the defendant (Pa. R. Civ. tered in favor of any party against an additional defendant P. 2306(b)). for failure to answer the complaint of the party joining him, The court shall not deny the petition for interpleader merely but all allegations of fact in such complaint to which an because: (1) the defendant has an interest in the action or answer is required and which are not sufficiently answered asserts that he or she is not liable in whole or in part to any shall be conclusive upon the additional defendant (Pa. R. Civ. or all of the claimants and the plaintiff; (2) there is no priv- P. 2255(c)). The plaintiff shall recover from an additional ity between any of the parties of record or the claimants or defendant found liable to him alone or jointly with the de- their claims do not have a common origin; (3) the plaintiff fendant, as though such additional defendant had been joined and the claimants do not assert the identical right or de- as a defendant and duly served and the initial pleading of mand the identical relief of the defendant; or (4) the court the plaintiff had averred such liability (Pa. R. Civ. P. 2255(d)). believes that the claim of the plaintiff or any claimant is The court, at any time during the pendency of an action, without merit in law or fact (Pa. R. Civ. P. 2306(c)). on its own motion or upon petition of a defendant, may in- Upon granting a petition for interpleader, the court shall

13 make such order as may be deemed just under the circum- ted to intervene or shall state in the petition that he or she stances relating to the payment or delivery into court, or to adopts by reference in whole or in part certain named pleadings such person as the court shall direct, of any money or prop- or parts of pleadings already filed in the action (Pa. R. Civ. erty in controversy disclaimed by the defendant. When the P. 2328(a)). A copy of the petition shall be served upon each defendant has complied with such order, the court shall en- party to the action (Pa. R. Civ. P. 2328(b)). ter an order discharging him of all liability to the plaintiff Upon the filing of the petition and after hearing, of which and to any interpleaded claimant who has been served in due notice shall be given to all parties, the court, if the alle- respect to the money or property so paid or delivered. If the gations of the petition have been established and are found defendant has disclaimed all interest in the action, the court to be sufficient, shall enter an order allowing intervention; shall also discharge him from all liability for any costs ac- but an application for intervention may be refused if the cruing after the entry of the order and shall allow him the claim or defense of the petitioner is not in subordination to costs incurred by him in the action, to be paid from such and in recognition of the propriety of the action; or the in- money or property in the first instance and taxed as costs in terest of the petitioner is already adequately represented; or the action (Pa. R. Civ. P. 2307). the petitioner has unduly delayed in making application for Unless extended by the court within twenty (20) days of intervention or the intervention will unduly delay, embar- the order directing interpleader, each interpleaded claimant rass, or prejudice the trial or the adjudication of the rights shall be served in the same manner as provided for service of the parties (Pa. R. Civ. P. 2329). of original process with a copy of the petition and order of A class action is an action brought by or against parties the court and a copy of all pleadings theretofore filed in the or representatives of a class until the court refuses to certify action. A copy of the order shall be served upon the plain- it as such or revokes a prior certification under these rules tiff or his or her attorney (Pa. R. Civ. P. 2308). (Pa. R. Civ. P. 1701(a)). Unless otherwise pmvided in the Within the time required, each claimant interpleaded shall class action rules, the procedure shall be in accordance with file a statement of his or her claim against the defendant the rules governing the form of action in which relief is sought and any money or property paid or delivered by said defen- (Pa. R. Civ. P. 1701(b)). One or more members of a class dant pursuant to the court order. The form and verification may sue or be sued as a representative party on behalf of all of the statement shall be the same as a complaint. A copy of members in a class only if (Pa. R. Civ. P. 1702): the statement shall be served upon the plaintiff and any other 1. The class is so numerous that joinder of all members interpleaded claimants, and upon the defendant, if he or she is impracticable; has not disclaimed all interest in the action (Pa. R. Civ. P. 2. there are questions of law or fact common to the class; 2309). The defendant may, if he or she has not disclaimed 3. The claims or defenses of the representative parties are all interest in the action, file an answer to claimant’s state- typical of the claims or defenses of the class; ment within twenty (20) days. If the claimant has included 4. The representative parties will fairly and adequately “Additional Matter” in his or her statement, the plaintiff or assert and protect the interests of the class; and any other interpleading party shall within twenty (20) after 5. A class action provides a fair and efficient method for service of the statement file an answer to such “Additional adjudication of the controversy. Matter” (Pa. R. Civ. P. 2310). All allegations of fact in a claimant’s statement that are not answered or sufficiently This is somewhat different from Federal Rule of Civil answered, shall be conclusive between the parties concerned Procedure 23 regarding class actions, which requires that (Pa. R. Civ. P. 2311). the class action be superior to other available means. Under At any time during the pendency of an action, a person the Pennsylvania Rules of Civil Procedure, it must only be not a party thereto shall be permitted to intervene therein if a fair and efficient method of adjudication. The rule also the entry of a judgment in such action or the satisfaction of varies from the federal rule, in that the standard applies to such judgment will impose any liability upon such person all class actions, while the federal rule applies the superior- to indemnify in whole or in part the party against whom ity method only to actions based on common questions of judgment may be entered or such person is so situated as to law and fact. be adversely affected by a distribution of property in the A class action may only be commenced by complaint (Pa. custody of the court or of an officer thereof; or such person R. Civ. P. 1703(a)). Within thirty (30) days after the plead- could have been joined therein, or the determination of such ings are closed or within thirty (30) days after the last re- action may affect any legally enforceable interest of such quired pleading was due, the plaintiff shall move that the person whether or not he or she may be bound by a judg- action certified as a class action. Either a party or the court ment in the action (Pa. R. Civ. P. 2327). can extend the time for cause shown (Pa. R. Civ. P. 1707(a)). An application for leave to intervene shall be made by a The rules set forth the criteria; for certification the class petition in the form of and verified in the manner of the action as fair and efficient method of adjudication in Pa. R. plaintiffs initial pleading in a civil action, setting forth the Civ. P. 1708: ground on which intervention is sought and statement of (a) Where monetary recovery alone is sought, the court relief or the defense that the petitioner desires to demand or shall consider (1) whether common questions of law assert. The petitioner shall attach to the petition a copy of or fact predominate over any question affecting only any pleading that he or she will file in the action if permit- individual members; (2) the size of the class and the

14 difficulties likely to be encountered in the management that the subject matter jurisdiction and the venue of the court of the action as a class action; (3) whether the pros- be established, otherwise the complaint will be subject to ecution of separate action as by or against individual preliminary objections on those grounds. That would gen- members of the class would create a risk of (i) incon- erally be accomplished in the establishing of the facts nec- sistent or varying adjudications with respect to indi- essary for the claim for which relief is requested. vidual members of the class that would confront the party opposing the class with incompatible standards of conduct; or (ii) adjudications with respect to indi- DRAFTING THE COMPLAINT vidual members of the class that would as a practical When drafting the complaint, it is important to remem- matter be dispositive of the interests of other members ber the difference between the federal practice and that of not parties to the adjudications or substantially impair Pennsylvania. In a federal action it is only necessary to plead or impede their ability to protect their interests; (4) the sufficient facts to put the defendant on notice of the cause extent and nature of any litigation already commenced of action; that is, a statement to the effect that the defen- by or against members of the class involving any of dant operated his or her automobile in a negligent manner the same issues; (5) whether the particular forum is is sufficient, In Pennsylvania, this would be insufficient to appropriate for the litigation of the claims of the entire withstand preliminary objections. Further, it is necessary to class; (6) whether in view of the complexities of the state how the defendant operated his or her car in a negli- issues or the expenses of litigation the separate claims gent manner, in that he or she failed to keep a proper watch of individual class members are insufficient in amount upon the roadway, or ran a red light. to support separate actions; (7) whether it is likely that The plaintiff may state in the complaint more than one the amount that may be recovered by individual class cause of action against the same defendant Each cause of members will be so small in relation to the expense action and any special damage relate thereto shall be stated and effort of administering the action as not to justify in a separate count containing a demand for relief (Pa. R. a class action. Civ. P. 1020(a)). Persons are joined as plaintiffs, the com- (b) Where equitable or declaratory relief alone is sought plaint shall state the cause of action, any special damage, the court shall consider (1) the criteria set forth in sub- and the demand for relief of each plaintiff in a separate count, sections (1) through (5) of the above and (2) whether preceded by a heading naming the parties to the cause of the party opposing the class has acted or refused to act action therein set forth (Pa. R. Civ. P. 1020(b)). Causes of on grounds generally applicable to the class, thereby action and defenses may be pleaded in the alternative (Pa. making final equitable or declaratory relief appropri- R. Civ. P. 1020(c)). If a transaction or occurrence gives rise ate with respect to the class. to more than one cause of action against the same person, (c) Where both monetary and other relief is sought the court including causes of action in the alternative, they may be shall consider all the criteria set forth above. joined in separate counts in the action against any such per- son (Pa. R. Civ. P. 1020(d)(1)). The failure to join a required The criteria set forth in (1) through (5) of subdivision (a) cause of action under Pa. R. Civ. P. 1020(d)(1) shall be deemed are taken almost verbatim from the federal rule while add- a waiver of that cause of action as against all parties to the ing subdivisions (6) and (7). action (Pa. R. Civ. P. 1020(d)(4)). The criteria for determination of fair and adequate repre- Any complaint demanding relief shall specify the relief sentation are given in Pa. R. Civ. P. 1709, and the court shall to which the party deems itself entitled. Relief in the alter- consider: native or of several different types, including an account- ing, may be demanded (Pa. R. Civ. P. 1021(a)). Complaints 1. whether the attorney for the representative parties will demanding relief for unliquidated damages will not set forth adequately represent the interests of the class, a specific sum (Pa. R. Civ. P. 1021(b)). In counties having 2. whether the representative parties have a conflict of rules governing compulsory arbitration, the plaintiff shall interest in the maintenance of the class action, and also state whether the amount claimed exceeds the jurisdic- 3. whether the representative parties have or can acquire tional amount requiring arbitration referral by local rule (Pa. financial resources to assure that the interests of the R. Civ, P. 1021(c)). The jurisdictional amount is not uni- class wiil not be harmed. form throughout the commonwealth. In some counties the This is different from the federal rule as those rules con- amount may be as high as $50,000.00. tain no specific criteria for determining the adequacy of the Every complaint of a party represented by an attorney representation by the parties or their attorneys. shall be signed by at least one attorney of record in the attorney’s individual name (Pa. R. Civ. P. 1023(a)). If a party is not represented the complaint shall be signed by the party (Pa. JURISDICTION AND VENUE R. Civ. P. 1023(a)). The complaint that contains averments There is no rule in the Pennsylvania Rules of Civil Pro- of facts not appearing of record in the action or containing cedure providing for a specific provision in the complaint a denial of fact, shall state that the averment or denial is stating jurisdiction and venue. However, it would be neces- true upon the signer’s personal knowledge or information sary that in the facts set forth in the complaint in some manner and belief (Pa. R. Civ. P. 1024(a)). In addition, every com-

15 plaint shall be endorsed with the name of the attorney, or if vice of original process upon an adult defendant, or by handing a party is not represented by an attorney it shall be endorsed a copy to the minor’s guardian (Pa. R. Civ. P. 420). with the name of the party and an address within the com- If the defendant is an incompetent, original process shall monwealth (Pa. R. Civ. P. 1025). be served upon the incompetent in the manner prescribed for the service of original process upon an adult defendant, or by handing a copy to the incompetent’s guardian (Pa. R. FILING THE COMPLAINT Civ. P. 421). The complaint is filed with the prothonotary of the county Service of original process upon the commonwealth or in which the action is brought. Every complaint must begin an officer of the commonwealth, or a department, board, with a notice to defend (Pa. R. Civ. P. 1018.1(a)). As a rule commission or instrumentality of the commonwealth, or a of practice, if the complaint is to be served by the sheriff, a member thereof, shall be made at the office of the defen- sheriffs service form should accompany the complaint, which dant and the office of the attorney general by handing a copy will be forwarded to the sheriff by the prothonotary. to the person in charge thereof (Pa. R. Civ. P. 422(a)). Service of original process upon a political subdivision shall be made by handing a copy to an agent duly autho- THE SUMMONS rized by the political subdivision to receive such service of The alternative means of original process, other than by process, or the person in charge at the office of the defen- complaint, is by filing with the prothonotary a praecipe for dant or the mayor, or the president, chairman, secretary, or a writ of summons (Pa. R. Civ. P. 1007(1)). A party may clerk of the tax levying body thereof; and in counties where want to file a writ of summons when it is necessary to toll there is no tax levying body, the chairman or clerk of the the statute of limitations, where there is insufficient time to board of county commissioners (Pa. R. Civ. P. 422(b)). prepare the complaint. If a party does not have all the facts, Service of original process upon a partnership and all it can file a writ of summons and then use the discovery partners named in the action or upon an unincorporated as- procedures to obtain the information to prepare the com- sociation shall be made upon any of the following persons plaint. The prothonotary will then prepare the writ of sum- provided the person served is not a plaintiff in the action: mons and either forward it to the sheriffs department or return any partner, officer, or registered agent of the partnership it to the plaintiff for service. The service of the writ of sum- or association or an agent authorized by the partnership or mons is accomplished in the same manner as the complaint. association in writing to receive service of process for it, or the manager, clerk, or other person in charge for the time being of any regular place of business or activity of the part- SERVICE OF THE COMPLAINT nership or association (Pa. R. Civ. P. 423). As a general rule, service of original process may only Service of original process upon a corporation or similar be served within the Commonwealth of Pennsylvania by the entity shall be made by handing a copy to any of the fol- sheriff (Pa. R. Civ. P. 400(a)). The original process may be lowing persons provided the person served is not a plaintiff served: in the action: an executive officer, partner, or trustee of the corporation or similar entity or the manager, clerk, or other 1. By handing a copy to the defendant (Pa. R. Civ, P. person in charge for the time being of any regular place of 402(a)(1)); or business or activity of the corporation or similar entity, or 2. By handing a copy an agent authorized by the corporation or similar entity in (i) at the residence of the defendant to an adult mem- writing to receive service of process (Pa. R. Civ. P. 424). ber of the family with whom he or she resides; if If, in actions involving an interest in real property, the no adult member of the family is found, then it relief sought is possession or mortgage foreclosure, origi- may be handed to an adult person in charge of such nal service shall be served upon any person not named as a residence (Pa. R. Civ, P. 402(a)(2)(i)); or party who is found in possession of the property (Pa. R. (ii) at the residence of the defendant to the clerk or Civ. P. 410(b)(1)). If a special order of court for service is manager of the hotel, inn, apartment house, boarding sought for a real estate action, service shall be by publica- house, or other place of lodging at which he or tion; posting a copy of the original process on the most public she resides (Pa. R. Civ. P. 402(a)(2)(ii)); or part of the property, registered mail to the defendant’s last (iii) at any office or usual place of business of the de- known address, and by such other methods, if any, as the fendant to his or her agent or to the person for the court deems appropriate to give notice to the defendant (Pa. time being in charge thereof (Pa. R. Civ. P. R. Civ. P. 410(c)). 402(a)(2)(iii)). If service cannot be made under the applicable rule, the 3. Service can also be made by other means, such as mail, plaintiff may move the court for a special order directing when the other party is willing to accept such service the method of service. The motion for special service must and by filing an Acceptance of Service (Pa. R. Civ. P. be accompanied by an affidavit stating the nature and ex- 402(b)). tent of the investigation that has been made to determine When the defendant is a minor, original process shall be the whereabouts of the defendant and the reasons why ser- served upon the minor in the manner prescribed for the ser- vice cannot be made (Pa. R. Civ. P. 430(a)). If special ser-

16 vice is by publication, notice of the action must be pub- AMENDING THE COMPLAINT lished once in the legal publication and once in a newspa- A party may at any time change the form of action, cor- per of general circulation within the county (Pa. R. Civ. P. rect the name of a party, or amend its pleading. This can be 430(b)(1)). done either with the filed consent of the adverse party or by In actions for custody, partial custody, and visitation, and leave of court (Pa. R. Civ. P. 1033). The amended pleading for actions for divorce or annulment of marriage, service of may aver transactions or occurrences that have happened original process, can be personally served by a competent before or after the filing of the original pleading, even though adult. In those delineated above, may be served within the they give rise to a new cause of action or defense. An amendment commonwealth by mail (Pa. R. Civ. P. 1930.4(a)). Service may be made to conform the pleading to the evidence of- by mail is accomplished by mailing the papers to the defen- fered or admitted (Pa. R. Civ. P. 1033). The last type of dant through any form of mail requiring a receipt signed by amendment to conform to evidence offered or admitted has the defendant or his or her authorized agent (Pa. R. Civ. P. even been allowed where the verdict has already been reached 1930.4(c)). If the mail is returned with the notation of a (Standard Pipeline Coating Co. v. Solomon & Teslovich, Inc., refusal by the defendant to accept the mail, the plaintiff shall 344 Pa. Super, 367, 496 A.2d 840 (1985)). However, the have the right of service by mailing a copy to the defendant same type of amendment was denied where it would have at the same address by ordinary mail with the return ad- required additional discovery, hearing, briefing, and would dress of the sender appearing thereon (Pa. R. Civ. P. have resulted in substantial prejudice to the defendant (Small 1930.4(c)(1)). If the mail is returned unclaimed, the plain- v. Columbia Gas of Pennsylvania, Inc., 363 Pa. Super. 61, tiff must make service by other means allowed under the 525 A.2d 424 (1987)). However, a party may not use the rules (Pa. R. Civ. P. 1930.4(c)(2)). procedure under Pa. R. Civ. P. 1033 to add or substract new Original service shall be served outside the commonwealth parties. within ninety (90) days of the issuance of the writ or the The allowance of an amendment is to be liberally con- filing of the complaint or the reissuance or the reinstate- strued to secure the just, speedy, and inexpensive determi- ment thereof: by a competent adult who is not a party by nation of every action or proceeding to which they are applicable handing a copy to the defendant; or by handing a copy at (Pa. R. Civ. P. 126) and such amendments should be allowed the residence of the defendant to an adult member of the unless they violate the law or unfairly prejudice the rights family with whom he or she resides, however, if no adult of the other party (MacGregor v. Mediq. Inc., 395 Pa. Su- member of the family is found, then to an adult person in per. 221, 576 A.2d 1123 (1990)). An example of when an charge of such residence, or at the residence of the defen- amendment would not be allowed is where the statute of dant to the clerk or manager of the hotel, inn, apartment limitations would bar the new cause of action. house, boarding house, or other place of lodging at which A party may file an amended pleading as of course within he or she resides, or at any office or usual place of business twenty (20) days after the service of a copy of preliminary of the defendant to his or her agent or to the person for the objections (Pa. R. Civ. P. 1028(c)(1)). In addition, as a re- time being in charge thereof; by any competent adult through sult of a determination of preliminary objections the court the mail as provided above; in the manner provided by the may allow an amended pleading (Pa. R. Civ. P. 1028(d)). law of the jurisdiction in which the service is made for ser- The Pennsylvania Rules of Civil Procedure do not set a vice in an action in any of its courts of general jurisdiction; limit on the number of amendments a party may make; however, in the manner provided by treaty; or as directed by the for- the liberality of the rules will not allow successive amend- eign authority in response to a letter rogatory or request (Pa. ments when there is no possibility of the pleading being R. Civ. P. 404). sustained (Behrend v. Yellow Cab Co., 441 Pa. 105, 271 A.2d Under the Pennsylvania Rules of Civil Procedure, the original 241 (1970)). The amendment of the complaint generally re- process must be served within thirty (30) days after the is- lates back to the filing of the amended complaint. suance of a writ of summons or after the filing of the com- After the original filing there may arise a situation where plaint (Pa. R. Civ. P. 401(a)). Writs of summons and complaints a successor to an original party will be substituted for the may be reissued and reinstated at any time and any number original party. This could occur where the original party has of times by the prothonotary upon praecipe and upon pre- died during the action and his or her estate would be substi- sentation of the writ or complaint (Pa. R. Civ. P. 401(b)(1) tuted. A successor is anyone who by operation of law, elec- and (2)). The issued writ of summon and the reinstated com- tion, or appointment has succeeded to the interest or office plaint must be served within thirty (30) days of its reissuance of a party to an action (Pa. R. Civ. P. 2351). and reinstatement (Pa. R. Civ. P. 401(b)(4)). The successor may become a party to a pending action A writ may be reissued at any time after the original is- by filing of record a statement of the material facts on which suance during the period equivalent to that permitted by the the right to substitution is based (Pa. R. Civ. P. 2352(a)). If statute of limitations; each reissuance gives rise to a new the successor does not voluntarily become a party, the pro- period of equal length in which the writ may again by reis- thonotary, upon praecipe of an adverse party setting forth sued (Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976)). the material facts, shall enter a rule upon the successor to The same holds true for complaints that are reinstated (Hilton show cause of why he or she should not be substituted as a v. Mayer, 58 Del. Co. Rep. 26 (1970)). party (Pa. R. Civ. P. 2352(b)).

17 CHAPTER 6 RESPONSES TO THE INITIAL PLEADINGS

RESPONDING TO THE INITIAL PLEADING DRAFTING THE ANSWER A party responds to a pleading by filing either an answer In addition to admitting or denying the averments of the or preliminary objections (Pa. R. Civ. P. 1017(a)). An answer complaint, the answer may include new matter, which in- or preliminary objections may be filed to a complaint, a coun- cludes all affirmative defenses including but not limited to terclaim or new matter, a crossclaim or third-party complaint. the defenses of accord and satisfaction, arbitration and award, assumption of the risk, consent, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consid- TYPES OF ANSWERS eration, fair comment, fraud, illegality, immunity from suit, The answer or responsive pleading, such as a reply to impossibility of performance, justification, laches, license, new matter, shall state the facts upon which a defense is payment, privilege, release, res judicata, statute of limita- based in a concise and summary form (Pa. R. Civ. P. 1019(a)). tions, truth, and waiver. New matter may also include any It is necessary to prepare an answer where a party wishes to other material facts that are not mere denials (Pa. R. Civ. P. deny the allegations or a pleading (Pa. R. Civ. P. l029); raise 1030). These material facts would also be used not only as affirmative defenses; or other facts not representing denials a defense, but also to provide a basis for any counterclaim. (Pa. R. Civ. P. 1030); or to file a counterclaim (Pa. R. Civ. P. 1031). The answer or responsive pleading, must be filed within twenty (20) days of service of the preceding plead- COUNTERCLAIMS, CROSSCLAIMS, AND ing if the pleading contains a notice to defend or is endorsed THIRD PARTY COMPLAINTS with a notice to plead (Pa. R. Civ. P. 1026(a)). Counterclaims and third-party complaints are pleadings A party waives all defenses and objections that are not that seek affirmative relief on the part of the party filing the raised by preliminary objection, answer or reply. The ex- pleading, and may only be filed after the original process ceptions to the rule are the defense of failure to state a claim has been served. In other words, counterclaims and third- upon which relief can be granted, the defense of failure to party complaints cannot be filed until the original complaint join an indispensable party, and the objection of failure to has been served. state a legal defense to a claim may also be made by a later The defendant may set forth in the answer under the heading pleading, if one is permitted, or by motion for judgment on “Counterclaim,” any cause of action that it has against the the pleadings or at the trial on the merit (Pa. R. Civ. P. 1032(1)) plaintiff at the time of filing the answer (Pa. R. Civ. P. 1031(a)) and whenever it appears by suggestion of the parties or oth- and is subject to the same rules as a complaint (Pa. R. Civ. erwise that the court lacks jurisdiction of the subject mat- P. 1019). counterclaim need not diminish or defeat the re- ter, or that there has been a failure to join an indispensable lief demanded by the plaintiff, and it may exceed the relief party, the court shall dismiss the action (Pa. R. Civ. P. 1032(2)). in amount or be different in kind from that demanded by A responsive pleading shall admit or deny each averment the plaintiff (Pa. R. Civ. P. 1031(b)). Under the Pennsylva- of fact in the preceding pleading or any part thereof to which nia Rules of Civil Procedure, the assertion of a counterclaim it is responsive. A party denying only a part of an averment is permissive as opposed to mandatory. It is purely the op- shall specify so much of it as admitted and shall deny the tion of the defendant to file the counterclaim. Pennsylvania remainder. Admissions and denials in a responsive pleading does not have an equivalent to Fed. R. Civ. P. 13(a), which shall refer specifically to the paragraph in which the aver- requires that certain types of counterclaims be joined in the ment is admitted or denied (Pa. R. Civ. P. 1029(a)). Aver- plaintiffs action. ments in a pleading to which a responsive pleading is required The counterclaim must be divided into consecutively are admitted when not denied specifically or by necessary numbered paragraphs, and shall contain as far as practicable implication. A general denial or a demand for proof, except only one material allegation (Pa. R. Civ, P. 1022). The coun- where the party states that after a reasonable investigation, terclaim of a party represented by an attorney shall be signed it is without knowledge or information sufficient to form a by at least one attorney of record in the attorney’s individual belief as to the truth of an averment, shall have the effect of name (Pa. R. Civ. P. 1023(a)). If a party is not represented, an admission (Pa. R. Civ. P. 1029(b)). Where the party states the counterclaim shall be signed by the party (Pa. R. Civ. P. that after a reasonable investigation, it is without knowl- 1023(a)). The counterclaim which contains averments of facts edge or information sufficient to form a belief as to the truth not appearing of record in the action or containing a denial of an averment, such shall have the effect of a denial (Pa. R. of fact shall state that the averment or denial is true upon Civ. P. 1029(c)). Averments in a pleading to which no re- the signer’s personal knowledge or information and belief sponsive pleading is required shall be deemed to be denied (Pa. R. Civ. P. 1024(a)). In addition, every counterclaim shall (Pa. R. Civ. P. 1029(d)). Averments of bodily injury, death, be endorsed with the name of the attorney, or if a party is and/or property damage can be denied generally, however, not represented by an attorney, it shall be endorsed with the averments dealing with identity must be specifically denied name of the party and an address within the commonwealth (Pa. R. Civ. P. 1029(e)). (Pa. R. Civ. P. 1025). There is no need for a plaintiff to file

18 a responsive pleading to a counterclaim unless it contains a 2. A motion to strike off a pleading due to lack of confor- notice to plead (Pa. R. Civ. P. 1026(a)). mity to law or rule of court or because of scandalous The purpose of a third-party complaint or complaint against or impertinent matter; an additional defendant is to allow the original defendant to 3. A motion for a more specific pleading; bring into the action a third party who may be liable in whole 4. A demurrer, which may not include the bar of a statute or in part to the defendant on the original claim brought of limitations or frauds; and against the defendant. 5. A petition raising the defense of lack of capacity to Original process of the third-party complaint shall be served sue, pendency of a prior action, nonjoinder of a neces- upon the additional defendant in the same manner as an original sary party, or misjoinder of a cause of action. defendant. Copies of all pleadings filed in the action shall be served with the additional defendant complaint (Pa. R. A party may file an amended pleading as of course within Civ. P. 425(a)). A copy of the complaint must also be served twenty (20) days after service of a copy of preliminary ob- upon every prior party, but it is not necessary to attach cop- jections (Pa. R. Civ. P. 1028(c)(1)). If a party does not file ies of pleadings previously filed in the action (Pa. R. Civ. P. an amended pleading, the court shall promptly determine 425(b)). In addition, the complaint against an additional all preliminary objections (Pa. R. Civ. P. 1028(c)(2)). The defendant must begin with the notice to defend (Pa. R. Civ. procedure for that determination will be found in the rules P. 1018.1(a)). of the court where the action is filed, and will vary from county to county. If the preliminary objections are endorsed with a notice LEGAL CHALLENGES TO THE COMPLAINT to plead and contain averments of fact that are not part of Preliminary objections are available to any party and may the record, an answer to the preliminary objections must be be filed against any pleading. They are most commonly used filed with twenty (20) day after service (Pa. R. Civ. P. 1026). by a defendant against the plaintiffs complaint. All prelimi- The failure to deny the averments in a properly endorsed nary objections are required to be raised at one time and a preliminary objection will require that the averments be ad- party may file inconsistent preliminary objections (Pa. R. mitted (Pa. R. Civ. P. 1029(b)). Civ. P. 1028(b)). For example, a party may file a demurrer If the preliminary objections are overruled, the objecting and a motion for a more specific pleading at the same time. party shall have the right to respond within twenty (20) days Two or more preliminary objections may be raised in one after notice of the order or within such other time as the pleading (Pa. R. Civ. P. 1028(b)). The filing of the prelimi- court shall order (Pa. R. Civ. P. 1028(d)). Thus, a defendant nary objections will stay the action until the preliminary who had filed preliminary objections would have a mini- matters are determined mum of twenty (20) days in which to file an answer to the Service of the preliminary objections occurs by handing complaint. or mailing a copy to each party at the address of the party’s If the preliminary objections are sustained in whole or in attorney of record (Pa. R. Civ. P. 440(a)). If there is no at- part, a new pleading shall be filed within (20) days after torney of record, service occurs by handing a copy to the notice of the order, or within such other time as the court party or by mailing a copy to or leaving a copy for the party may order (Pa. R. Civ. P. 1028(e)). Therefore, if a defendant’s at the address endorsed on an appearance or prior pleading motion for more specific pleading is sustained by the court, of the residence or place of business of the party (Pa. R. the plaintiff would have at least twenty (20) days to file an Civ. P. 440(a)(1)), or if such service cannot be made, then it amended complaint. However, a court should only grant a is done by leaving a copy at or mailing a copy to the last preliminary objection that results in the dismissal of a suit known address of the party to be served (Pa. R. Civ. P. or denial of a claim in cases that are clear and free from 440(a)(2)). doubt; but, where it is certain that no amendment can cure The preliminary objections must include a notice to plead the defects, a court may enter final judgment (Myers v. Kane, where there are averments of facts; a caption; averments in 23 Cmwlth Ct 213, 350 A.2d 909 (1976)). paragraph form; claim for relief; signature and endorsement or the attorney, or the party if not represented; and a verifi- cation where there are facts not appearing of record. The FAILURE TO ANSWER preliminary objections must state specifically the grounds The prothonotary, on praecipe of the plaintiff, shall enter upon which they are based (Pa. R. Civ. P. 1028(b)). Gener- judgment against the defendant for failure to file within the ally, a party must file all of its preliminary objections at required time, an answer to a complaint containing a notice one time or it waives the right to raise them later (Lexing- to defend or for any relief admitted to be due by the defendant’s ton Ins. Co. v. Commonwealth. Ins. Dept., 116 Cmwlth Ct pleadings (Pa. R. Civ. P. 1037(b)). However, no judgment 259, 541 A.2d 834 (1988)). by default shall be entered by the prothonotary unless the Pursuant to Pa. R. Civ. P. 1017(b), a party’s preliminary praecipe for entry includes a certification that a written no- objections are limited to tice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to 1. A petition raising a question of jurisdiction or venue, his or her attorney of record, if any, after the default oc- or attacking the form of service of a writ of summons;

19 curred and at least ten (10) days prior to the date of the damages for the cost of the repairs (Pa. R. Civ. P. 1037(b)(2)(i). filing of the praecipe. If a written agreement for an exten- The praecipe shall be accompanied by an affidavit of the sion of time specifies a time within which the required ac- repair person containing an itemized repair bill setting forth tion must be taken, and a default occurs thereafter, judgment the charges for labor and material used in the repair of the by default may be entered by the prothonotary without prior property; it shall also state the qualifications of the person notice under this rule. A copy of the notice or agreement who made or supervised the repairs, that the repairs were shall be attached to the praecipe (Pa. R. Civ. P. 237.1(a)). necessary, and that the prices for labor and materials were There are two exceptions to this rule, in that it does not fair and reasonable and were those customarily charged (Pa. apply to a judgment entered pursuant to an order of court or R. Civ. P. 1037(b)(2)(ii)). The plaintiff shall send a copy of rule to show cause, or to defaults in residential mortgage the affidavit and repair bill to the defendant by registered foreclosures (Pa. R. Civ. P. 237.1(b)). mail directed to his or her last known address, together with Once a default judgment has been entered, the prothono- a notice setting forth the date of the intended assessment of tary shall assess damages for the amount to which the plaintiff damage (which shall be not less than ten (10) days from the is entitled, if it is a sum certain or which can be made cer- mailing of the notice) and a statement that damages will be tain by computation; but if it is not, the damages shall be assessed in the amount of the repair bill unless, prior to the assessed at a trial where the issues shall be limited to the date of assessment, the defendant, by written praecipe, files amount of the damages (Pa. R. Civ. P. 1037(b)(1)). For ex- with the prothonotary a request for trial on the issue of such ample, a claim for damages in a contract action can usually damages. The plaintiff shall also file an affidavit of mailing be determined by the amount paid or the amount that was of notice with the prothonotary (Pa. R. Civ. P. 1037(b)(2)(iii)). due to be paid, whereas in a personal injury action for dam- If a judgment has been entered, the party against whom ages arising out of an automobile accident, damages would the judgment was entered may petition the court to open be determined by a jury and the sole question would be on the judgment. In order for the court to open a judgment, it damages and not as to liability. must find that the petition to open judgment was promptly In all actions in which the only damages to be assessed filed, the failure to act on the original complaint can be rea- are the cost of repairs made to property, the prothonotary, sonably explained and that there is a meritorious defense to on praecipe of the plaintiff, waiving any other damages un- the underlying claim (Penny’s v. Richard Kastner Co., 297 der the judgment and the filing of affidavits, shall assess Pa. Super. 167, 443 A.2d 353 (1982)).

20 CHAPTER 7 MOTION PRACTICE

PREPARING, SERVING, AND RESPONDING include a complaint, an answer thereto, a reply if the an- Many pretrial matters concern motions and petitions. In swer contains new matter, or a counterclaim a counter-re- many circumstances, there is little practical difference in ply if the reply to a counterclaim contains new matter, a whether the particular action is considered a motion or pe- preliminary objection, and an answer thereto (Pa. R. Civ. P. tition. The Pennsylvania Rules of Civil Procedure do not 1017(a)). state the formal requirements of a motion, nor the proce- The rule does not state the form of the motion for judg- dure to be followed for its determination. It is not a plead- ment on the pleadings and the formal requirements would ing (Pa. R. Civ. P. 1017), and the formal rules of pleadings be governed by local practice, however, it should certainly are not specifically applicable to the motion, although in consist of a statement of reasons as to why the judgment practice those same rules are used in preparing the motion. should be granted. A motion for judgment on the pleadings However, the reasons for the motion should be stated with must be served upon every other part to the action and such specificity. Local practice will guide the filing of the mo- service would be according to Pa. R. Civ. 440 (Pa. R. Civ. tion and the procedure for its determination. P. 440(a)). The procedure for the determination of the mo- The motions and petitions must be served upon every other tion for judgment would also be governed by local rules of party to the action (Pa. R. Civ. P. 440(a)). Service is accom- the county where the action is located. plished by leaving a copy for or mailing a copy to the party Action for judgment on summary judgment is not con- at his or her address, or to his or her attorney of record any sidered a pleading (Pa. R. Civ. P. 1017(a)) and a party would other address as agreed upon (Pa. R. Civ. P. 440(a)). If there not be required to file an answer in twenty (20) days, The is no attorney of record, service is achieved within the county responding party would be permitted, according to local by leaving a copy for or mailing a copy at the residence or practice, to file an answer or response to the motion, after place of business of the party (Pa. R. Civ. P. 440(a)(1)), or which the court would render a decision on the motion. The outside of the county in which the action is pending, within court could require oral argument by the attorneys and/or or without the commonwealth, by having a competent adult briefs on the motion. hand a copy to the person served, or by leaving a copy at or A motion for judgment on the pleadings may only be mailing a copy by registered mail to the last known address granted where there are no facts at issue and the law is so of the party to be served or by publication where no address clear that a trial would be a fruitless exercise (Beardell v. is known (Pa. R. Civ. P. 440(a)(2)). Service is complete upon Western Wayne School Dist., 91 Cmwlth Ct. 348, 496 A.2d mailing (Pa. R. Civ. P. 440(a) and (b)). 1373 (1985)). In a motion for judgment on the pleadings, Motions and Petitions can also be served by facsimili. all well-pleaded material facts and inferences reasonably The Petition or Motion must be accompanied by a cover deduced therefrom must be accepted as true, however, con- sheet, which incudes the name, address and telephone num- clusions of law and unjustified inferences will not be con- ber of all parties, the fax numbers of all parties, the title of sidered (Merritt v. Board of Education, 99 Cmwlth Ct. 178, the Petition or Motion, and the number of pages (Pa. R. Civ. 513 A.2d 504 (1986)). Of course, the responding party could P. 440(d)(1)). As a general rule, responses to Petitions or move to amend its complaint pursuant to Pa. R. Civ. P. 1033, Motions must be done in twenty (20) days, or within other or the court, within its discretion, may grant the responding times as set forth by the court. party an opportunity to amend its complaint upon the filing of the motion for judgment on the pleadings (Puleo v. Broad Street Hospital, 267 Pa. Super, 581, 407 A.2d 394 (1979)). SPECIFIC MOTIONS In addition to the motion for judgment on the pleadings, There are several motions available to a party to effec- a party, after the pleadings are closed, but within such time tively terminate an action without the case having to trial. as not to delay trial, may move for summary judgment on These would be in addition to preliminary objections and a the pleadings and any depositions answers to interrogato- judgment upon default and include a motion for judgment ries, admissions on file, and supporting affidavits (Pa. R. on the pleading (Pa. R. Civ. P. 1034) and a motion for sum- Civ. P. 1035.2). Any party may move for summary judg- mary judgment (Pa. R. Civ. P. 1035.1). ment including the plaintiff, defendant, an additional de- The motion for judgment on the pleadings made pursu- fendant, an interpleaded party, or a garnishee. ant to Pa. R. Civ. P. 1034 is patterned after Fed. R. Civ. P. The responding party may serve opposing affidavits at 12(c). The purpose of the motion is to permit the court, upon any time prior to the day of hearing (Pa. R. Civ. P. 1035.4). application of either party, to determine whether judgment Supporting and opposing affidavits shall be made on per- should be granted prior to trial. At any time after the plead- sonal knowledge, set forth such facts as would be admis- ings are closed, but at such time as to not delay the trial of sible in evidence, and show affirmatively that the signer is the case, a party may move for judgment on the pleadings competent to testify to the matters stated therein. Verified (Pa. R. Civ. P. 1034(a)). The court has the authority to enter or certified copies of all papers or parts thereto referred to such judgment or order as it deems proper on the pleadings in an affidavit shall be attached thereto or served therewith (Pa. R. Civ. P. 1034(b)). The definition of pleadings would Pa. R. Civ, P. 1035.4).

21 The Pennsylvania Rules of Civil Procedure do not state would prepare. Included among these are a motion to strike the formal requirements of the motion for summary judg- evidence; a motion to have the jury view premises involved ment nor the procedure to be followed for its determina- in the case; and a motion in limini. tion. As in the case of the motion for judgment on the pleading, A motion to strike evidence is made when a court allows the motion for summary judgment is not a pleading (Pa. R. evidence admitted over an objection to be stricken by the Civ. P. 1017), and the formal rules of pleadings are not spe- aggrieved party, which the attorney making the motion be- cifically applicable to the motion for summary judgment, lieves to have been improperly admitted (Jones v. Spidle, but the party filing the motion should adhere to those rules. 446 Pa, 106, 286 A.2d 366 (1971)). If the motion is filed However, the reasons why the motion should be granted are without an objection during the trial, the evidence will only to be stated with specificity. Local practice will guide the be stricken if the reason for striking the evidence was un- filing of the motion and the procedure for its determination. known and could not have been known with ordinary dili- Most likely, the procedure would be similar or identical to gence at the time the evidence was presented (Boring v. that used for the motion for judgment on the proceedings. Metropolitan Edison Co., 435 Pa. 513, 257 A.2d 565 (1969)). The motion for summary judgment must be served upon The motion can be made to strike out the entire testimony every other party to the action (Pa. R. Civ. P. 440(a)). As of a witness or only a part thereof. The only other course with the service of other motions, the manner of service is open to the attorney who has not objected to the evidence is set forth in Pa. R. Civ. P. 440. a request for the court to instruct the jury to disregard the The judgment sought shall be granted if the pleadings, testimony (Boring v. Metropolitan Edison Co., 435 Pa, 513, depositions, answers to interrogatories, and admissions on 257 A.2d 565 (1969)). The motion to strike should be made file, together with the affidavits, if any, show there is no when the improper evidence is admitted by the court or when genuine issue as to any material fact and that the moving it becomes known to the attorney that it is improper (Jones party is entitled to judgment as a matter of law. The court v. Spidle, 446 Pa. 103, 286 A.2d 366 (1971)). may render a judgment as to liability alone, despite the fact A party may make an application to the court to have the that there is a genuine issue as to the amount of damages jury view any premises involved in the litigation. The re- (Pa. R. Civ. P. 1035.5). quest can be made prior to trial or during the actual trial of As in the case of a motion for judgment on the plead- the case. The granting of the request is within the discretion ings, the opposing party could move to amend its pleadings of the court, which may impose upon the requesting party pursuant to Pa. R. Civ. P. No, 1033. In addition, a motion such reasonable costs or expenses as may be involved in for summary judgment should be denied if the party oppos- connection with such view, or may direct that any costs thereby ing the motion can cure the defect in its pleadings (Bell v. incurred shall follow the judgment entered in such action Shetrom, 214 Pa. Super. 309, 257 A.2d 323 (1969)). (Pa. R. Civ. P. 219). There is no provision for default, even if the responding The motion in limini will generally be a pretrial motion, party does not respond, since even if it does not so respond, although it can also be made during the trial, to exclude the motion for summary judgment shall be entered against evidence that is potentially inflammatory, prejudicial, with- it only “if appropriate” (Pa. R. Civ. P. 1035.5). The party out probative value, and which would be excluded with a proper against whom the Motion is being made must file a response objection. The moving party seeks an order prohibiting dis- (Pa. R. Civ. P. 1035.3(a)). cussion of the evidence before the jury and a determination If a favorable decision on the motion for summary judg- of the evidence’s admissibility. The motion can also be used ment does not conclude the case and a trial is necessary, the to determine the inclusion of evidence at the trial. court shall make an order specifying the facts that appear An oral or written motion for directed verdict may be without substantial controversy, including the extent to which made at the close of the evidence to the judge (Pa. R. Civ. P. the amount of damages or other relief is not in controversy, 226(b)). The directed verdict would require the jury to find and including the extent to which the amount of damages or in favor of the party requesting the directed verdict. other relief is not in controversy and directing such further At the conclusion of the trial, any party may file a mo- proceedings in the action as are just. Upon trial of the ac- tion for posttrial relief. The motion must be made in writ- tion, the facts so specified shall be deemed established and ing. In a motion for posttrial relief, a party may request the the trial shall be conducted accordingly (Pa. R. Civ. P. 1035.5). court to order a new trial as to all or any of the issues; di- Although the attorney, and not the paralegal, would make rect the entry of judgment in favor of the moving party; re- motions during the trial, the paralegal would likely be in- move a nonsuit, affirm, modify, or change the decision or volved in the preparation of any such motion. There are several decree nisi; or enter any other appropriate order (Pa. R. Civ. motions available to an attorney during the trial that the paralegal P. 227.1(a)).

22 PART III DISCOVERY

CHAPTER 8 OVERVIEW OF THE DISCOVERY PROCESS

THE NATURE OF DISCOVERY The filing of discovery material with the prothonotary is Pennsylvania Rules of Civil Procedure 4001, et seq. govern not required unless relevant to a motion or other pretrial the use of discovery in civil cases. The use of discovery has proceeding; ordered by the court; or required by statute (Pa. several purposes including: the prevention of a party being R. Civ. P. 4002.1). The reason for not requiring the filing of penalized from proving its claim because the evidence is in discovery material is simply the limited amount of storage the possession of its adversary; the allowance of the parties space. This also applies to depositions taken for use at trial. to become familiar with the pertinent facts of the case to prepare for trial; and the elimination of surprise. Discovery also helps to expedite and facilitate the litigation process. THE EXTENT OF ALLOWABLE DISCOVERY Although the rules set out in detail the procedures of dis- Discovery may be used to inquire into any matter that is covery, they may be modified by agreement of the parties relevant to the subject matter involved in the pending ac- (Pa. R. Civ. P. 4002). tion, whether it relates to the claim or defense of the party In general, discovery procedures can be used in any civil seeking discovery or to the claim or defense of any other action or proceeding at law or in equity brought in or ap- party, including the existence, description, nature, content, pealed to any court that is subject to these rules, including custody, condition, and location of any books, documents, any action pursuant to the Eminent Domain Code or the or other tangible things and the identity and location of per- Municipal Claims Act (Pa. R. Civ. P. 4001(a)). However, sons having knowledge of any discoverable matter (Pa. R. discovery is not available for simple support, custody of minor Civ. P. 4003.1); matters involving insurance (Pa. R. Civ. P. children, or protection from abuse, unless authorized by the 4003.2); and trial preparation material in general (Pa. R. court (Pa. R. Civ. P. 1930.5(a)). Civ. P. 4003.3), including a party’s representative attorney, The reasoning for not permitting discovery is that most consultant, surety, indemnitor, insurer or agent. However, parties involved in support proceedings do not have the re- unlike Fed. R. Civ. P. 26(b)(3), there is no requirement of a sources to spend on discovery. It is also believed that the showing of a substantial need and undue hardship in order procedures used in support conferences supply the basic to discover trial preparation material and differentiates be- discovery needed as to incomes and expenses. In addition, tween notes and memorandum prepared by an attorney and the parties are usually familiar with each other’s expenses the same prepared by a party’s representative, such as an and incomes. insurance agent, previously made statements by any party Since both parties are familiar with each other’s activities or witness about the action at hand (Pa. R. Civ. P. 4003.4), and living conditions in regard to children, discovery is pre- including written statements or a transcription of an oral cluded in custody proceedings, unless authorized by the court statement made by the person taking the statement and re- (Pa. R. Civ. P. 1930.5(a)). Discovery is allowed without leave corded simultaneously, which differs from the federal rules of court for complex support, and in divorce for claims for in that a party may automatically discover statements made alimony and the determination and distribution of property by witnesses; facts known by and opinions of experts (Pa. rights and counsel fees and expenses (Pa. R. Civ. P. 1930.5). R. Civ. P. 4003.5); and discovery of the treating physicians Pursuant to Pa. R. Civ. P. 4001(d), a party has several (Pa. R. Civ. P. 4003.6). methods of obtaining discovery: However, the mental impressions of a party’s attorney and his or her work product are not discoverable, This would a. Depositions upon oral examination also include the mental impressions, conclusions, or opin- b. Depositions upon written interrogatories ions of a party’s representative respecting the merit of a claim c. Written interrogatories to a party or defense, or respecting strategy and tactics (Pa. R. Civ. P. d. Production of documents and things and entry for in- 4003.3). spection and other purposes All material sought through discovery must be relevant e. Physical and mental examinations to the subject matter (Pa. R. Civ. P. 4003.1(a)). Courts should f. Requests for admissions interpret the definition of relevancy broadly and liberally Generally, a party is not precluded from using one form (Garlitz v. P.B.S. Coals, Inc., 35 Som. Leg. J. 319 (1978)), of discovery because it had obtained or is entitled to dis- and if there is any basis for relevancy, the discovery should covery by other means. The person seeking the discovery is be permitted and doubts resolved in favor of relevancy (Everson permitted to pick and choose among the means available. v. Dinulos, 13 Lebanon Co. L. J. 4 (1970)). The party ob- Discovery can be used in any sequence selected by the party, jecting to relevancy has the burden of proof to establish its however, subsequent and continual attempts at discovery may right to refuse the requests of discovery (Hepps v. Philadel- be limited by protective order. phia Newspapers, Inc., 25 Chest. Co. L. R. 358 (1977)).

23 One can also seek production of documents from nonparties. 4. That certain matters shall not be inquired into (Pa. R. Written notice must be served upon all parties (Pa. R. Civ. Civ. P. 4012(a)(4)). P. 4009.21(a)). Objections to the notice and the request will 5. That the scope of discovery or deposition shall be con- not be served on the nonparty until the objection is ruled ducted with no one present except persons designated upon by the court (Pa. R. Civ. P. 4009.21(c) and (d)(1)). If by the court (Pa. R. Civ. P. 4012(a)(6)). no objections are made, then the request may be served (Pa. 6. That a deposition shall be sealed and shall be opened R. Civ. P. 4009.21(d)(2)). only by order of the court (Pa. R. Civ. P. 4012(a)(7)). A subpoena must be served with the request, which is 7. That the parties simultaneously file specified documents obtained from the prothonotary under seal and signed by or in sealed envelopes to be opened as directed infor- the court. The subpoena can be served personally, by mail mation by the court (Pa. R. Civ. P. 4012(a)(8)); and with return receipt requested, or by ordinary mail with no- 8. That a trade secret or other confidential information tice and acknowledgment of receipt of subpoena (Pa. R. Civ. shall not be disclosed, or be disclosed only in a desig- P. 234.2). nated way (Pa. R. Civ. P. 4012(a)(9)). Discovery may not be served in bad faith, must relate to a matter that is not privileged, and shall not require making A court, upon motion by a parry, may enter an order of an unreasonable investigation by a party or witness or cause sanctions against a party for refusal to obey a court order unreasonable annoyance, embarrassment, oppression, bur- respecting discovery or a party or person who fails to make den, or expense (Pa. R. Civ. P. 4011). discovery (Pa. R. Civ. P. 4019). Those sanctions include: The party to whom the discovery is directed may request 1. An order that the matter questioned about be estab- the court to grant a protective order limiting or prohibiting lished in accordance with the claim of the serving party the scope of the discovery, which justice requires to protect (Pa. R. Civ. P. 4019(c)(1)); a party or person from unreasonable annoyance, embarrass- 2. A refusal to allow the disobedient party to oppose claims ment, oppression, burden, or expense (Pa. R. Civ. P. 4012(a)). or defenses or prohibit them from introducing certain The motion for a protective order may be filed with the testimony (Pa. R. Civ. P. 4019(c)(2)); court by a party or by a person not a party from whom the 3. striking of pleadings or parts thereof or staying further discovery is being sought (Pa. R. Civ. P. 4012(a)). The bur- proceedings until the order is obeyed or entering a judg- den is on the person or party seeking the protective order to ment of non pros or by default (Pa. R. Civ. P. 4019(c)(3)); show the need for the protection (Hartman v. Yorktown Mut. 4. Punishment for contempt (Pa. R. Civ. P. 4019(c)(4)); Ins. Co., 36 Beaver Co. L. J. 107 (1977)). The filing of a 5. Such order as the court deems (Pa. R. Civ. P. 4019(c)(5)); motion for a protective order shall not stay the means of 6. The payment of expenses and attorney fees, if an order discovery to which the motion is directed until the motion compelling discovery has not been complied with (Pa. is disposed of by the court, unless the court shall so order R. Civ. P. 4019(g)(1)). for good cause shown (Pa. R. Civ. P. 4013). The court’s protective order may include the following: The granting of attorney fees for obtaining a court order for sanctions can only occur after there has already been a 1. That the discovery or deposition shall be prohibited court order compelling the opposing party to make discov- (Pa. R. Civ. P. 4012(a)(1)); ery, and the opposing party has not complied with that or- 2. That the discovery or deposition shall be only on specified der (Pa. R. Civ. P. 4019(g)(1)). Attorney fees may also be terms and conditions, including a designation of time granted against a party who files a motion or an application and place (Pa. R. Civ. P. 4012(a)(2)). under the discovery rules for the purpose of bad faith or 3. That the discovery or deposition shall be only by a method delay. If such costs are imposed, that party may not take of discovery or deposition other than that selected by further action until the costs are paid nor may the party re- the party seeking discovery or deposition (Pa. R. Civ. cover the costs if ultimately successful in the action (Pa. R. P. 4012(a)(3)). Civ. P. 4019(h)).

24 CHAPTER 9 DEPOSITIONS

THE DEPOSITION Generally a deposition may be taken without leave of court The deposition is an oral examination taken for the pur- (Pa. R. Civ. P. 4007.2(a)), although, leave of court is re- pose of discovery, preparation of pleadings, preparation for quired if the plaintiff takes the deposition prior to the expi- trial of the case, or use at a hearing on pretrial proceedings ration of thirty (30) days after service of the original process or trial itself. The procedure is much the same as in court and the defendant has not otherwise sought discovery, un- with regard to the examination and cross-examination of less the person to be examined is aged or infirm or is about witnesses. Ordinarily, the attorneys, the parties, and the to leave the county where the action is pending for a place witnesses to be deposed are present. outside the commonwealth or a place more than 100 miles Oral depositions are governed by Pennsylvania Rule of from the courthouse where the action is pending (Pa. R. Civ. Civil Procedure 4007.1. Any party may take a deposition of P. 4007.2(b)). The attorney must sign the notice of deposi- any person by oral examination. A person is defined as a tion setting forth facts as to why leave of court is not re- natural person, corporation, partnership, or association (Pa. quired prior to the expiration of the thirty (30) day period R. Civ. P. 76). There must be reasonable notice given to the (Pa. R. Civ. P. 4007.2(c)). deponent and to all parties. It is not necessary to subpoena If the deponent is in prison, the deposition may be taken a party to be deposed (Pa. R. Civ. P. 4007.1(a)), however, a only by leave of court and upon such terms as the court set subpoena is mandatory to require a nonparty to attend a (Pa. R. Civ. P. 4007.2(d)). In a divorce action, discovery is deposition (Pa. R. Civ. P. 234.1(b)(2)). allowed for alimony equitable distribution and counsel fees The notice of deposition shall state the time and place of and expenses (Pa. R. Civ. P. 1930.5(b)). If the deponent is the taking of the deposition and the name and address of an expert whose opinions or reports have already been dis- each person to be examined, if known, or a general descrip- closed in response to interrogatories, the deposition of the tion sufficient to identify the deponent or the class or group expert can only be taken by leave of court (Pa. R. Civ. P. to which it belongs (Pa. R. Civ. P. 4007.1(b)). It is impor- 4003.5(a)(2)). tant that all parties are served with notice of the deposition, Pursuant to Pa. R. Civ. P. 4008, when a deposition is to be since a lack of notice would lead to the deprivation of cross- taken more than one hundred (100) miles from the court- examination of a witness which may result in the deposi- house, the court, upon motion, may make an order requiring tion being suppressed at the time of trial (Hoover v. Haefner, the payment of reasonable expenses, including attorney fees. 32 Lanc. L. Rev. 189). Service of the notice is accomplished Depositions may not be served in bad faith and must re- by leaving a copy for or mailing a copy to the party at his or late to a matter that is not privileged. Depositions shall not her address or to its attorney of record (Pa. R. Civ. P. 440(a)). require making an unreasonable investigation by a party or If there is no attorney of record, service is achieved within witness, or cause unreasonable annoyance, embarrassment, the county by leaving a copy for or mailing a copy to the oppression, burden, or expense (Pa. R. Civ. P. 4011). party at the residence or place of business of the party (Pa. R. Civ. P. 440(a)(1) and (2)). It is not necessary to state the matters to be inquired into, THE NATURE OF THE ORAL DEPOSITION unless the plaintiff has commenced the action by writ of Depositions shall be taken before an officer authorized summons and desires to take the deposition for the purpose to administer oaths by the laws of the United States or the of preparing a complaint. If this is the case, a brief state- Commonwealth of Pennsylvania or of the place where the ment as to the nature of the cause of action and of the mat- deposition is to take place, or by a person appointed by the ters to be inquired into shall be included on the notice (Pa. R. court (Pa. R. Civ. P. 4015(a)). At most times, this person Civ. P. 4007.1(c)). will be either an official court reporter or a private court The party taking the deposition of another party may in- reporter or an employee of a court reporting service. How- clude a request for production of documents with the notice ever, no deposition shall be taken before a person who is a of deposition. If the person to be examined is not a party, relative, employee, or attorney of any of the parties or a the person must be served with subpoena duces tecum to relative or employee of the attorney or a person financially produce designated materials (Pa. R. Civ. P. 4007.1(d)(1) interested in the action (Pa. R. Civ. P. 4015(c)). and (2)). If the person to be deposed is a public or private Objection to the taking of a deposition due to the dis- corporation, a partnership or association, or a governmental qualification of the person before whom it is to be taken is agency, the notice must describe with reasonable particu- waived unless made before the taking of the deposition or larity the matters to be inquired into and the materials to be as soon thereafter as it becomes known or could have been produced. Such an organization must then designate one or known with reasonable diligence (Pa. R. Civ. P. 4016(a)). more officers, directors or managing agents, or other per- Objections to the competency of a witness or competency, sons who consent to testify on its behalf. A subpoena shall relevancy, or materiality of the testimony are not waived by advise a nonparty organization of its duty to make such a failure to make them before or during the deposition, un- designation (Pa. R. Civ. P. 4007.1(e)). less the objection was known to the objecting party at the

25 time and which might have obviated or removed the objec- attending (Pa. R. Civ. P. 4019(e)). The same would be true tion if made at that time (Pa. R. Civ. P. 4016(b)). if a deponent fails to show and was not served with a sub- Errors and irregularities occurring at the oral deposition poena to appear (Pa. R. Civ. P. 4019(f)). that might have been obviated, removed, or cured if objec- At trial, any portion of or the entire deposition, if other- tions had been promptly made are waived unless season- wise admissible under the rules of evidence, may be used against able objection is made at the deposition (Pa. R. Civ. P. 4016(c)). any party who was present or represented at the deposition Any errors and irregularities in the notice of deposition are or who had notice thereof in accordance with the following: waived unless written objection is promptly served upon the 1. Any deposition may be used by any party for the pur- party giving notice (Pa. R. Civ. P. 4016(d)). pose of contradicting or impeaching the testimony of a Prior to the start of the deposition, the person before whom deponent as a Witness (Pa. R. Civ. P. 4020(a)(1)); the deposition is taken shall put the witness under oath or 2. The deposition of a party or of anyone who at the time affirmation and shall personally or by someone acting un- of the taking of the deposition was an officer, director, der its direction and in its presence record the testimony of or managing agent of a party or person designated to the witness (Pa. R. Civ. P. 4017(a)). The court reporter will testify on behalf of a public or private corporation, swear the witness in and then the deposing party will begin partnership or association or governmental agency which its questioning of the deponent. The witness’s testimony shall is a party (Pa. R. Civ. P. 4020(a)(2)); be transcribed and any objections to the preparation or cor- 3. The deposition of any witness may be used by any party rectness of the transcript are to be filed in writing with the for any purpose if the witness is dead, the witness is at court, promptly after discovery of the grounds of objection a distance greater than one hundred (100) miles from (Pa. R. Civ. P. 4017(b)). the place of the trial or outside the commonwealth, unless If a deponent refuses to be sworn or answer any ques- the absence is caused by the party seeking to use the tion, the deposition shall be completed on other matters or deposition; the witness is unable to attend trial due to be adjourned as the proponent may prefer. After reasonable age, sickness, infirmity, or imprisonment; if the party notice to all persons affected, the proponent may apply to offering the deposition has been unable to subpoena the court, where the action is pending or where the deposi- the witness; and upon application or notice that excep- tion is taken, for an order compelling the witness to be sworn tional circumstances exist and the interest of justice or to answer the question, under penalty of contempt, ex- allow the deposition to be used (Pa. R. Civ. P. 4021(a)(3)); cept where the deposition of a witness (not a party) is taken 4. The deposition of a medical witness may be used at outside the commonwealth. In this case, the application must trial whether or not the witness is available to testify be made to the court of the jurisdiction in which the deposi- (Pa. R. Civ. P. 4020(a)(5)). tion is to be taken (Pa. R. Civ. P. 4019(b)). Following the transcription, a copy of deposition shall The substitution of parties does not affect the right to be submitted to the witness for inspection and signing un- use depositions and when an action is dismissed and an- less waived by the witness and the parties (as is commonly other action is brought on the same subject and involving done in practice) or the witness is ill, cannot be found, or the same parties, all depositions previously taken and duly refuses to sign. A witness shall make any changes on the filed in the former action may be used in the latter action as deposition and state his or her reasons for the changes. If if originally taken therein (Pa. R. Civ. P. 4020(b)). not signed within thirty (30) days, the deposition may be Objections, not waived under Pennsylvania Rule of Civil used as though signed, unless the court holds that the rea- Procedure 4016(b), may be made at the trial or hearing to son given for the refusal to sign requires the rejection of the receive in evidence all or part of any deposition for any rea- deposition in whole or in part (Pa. R. Civ. P. 4017(c)). son that would require the exclusion of the evidence if the Upon motion, the court may enter an appropriate order witness were present and testifying (Pa. R. Civ. P. 4020(c)). regarding sanctions of a person, an officer, or managing agent of a party or a person designated to be examined under Penn- sylvania Rule of Civil Procedure 4007.l(e), who after no- SPECIAL TYPES OF DEPOSITIONS tice fails to appear before the person who is to take the Pennsylvania Rule of Civil Procedure 4004 provides for deposition (Pa. R. Civ. P. 4019(a)(1)(iv)), or if a party or the use of written interrogatories to a nonparty, including deponent, or an officer or managing agent of a party or de- nonpersons such as corporations, partnerships, associations, ponent induces a witness not to appear (Pa. R. Civ. P. or government agencies. The party taking such action must 4019(a)(1)(v)). Pennsylvania Rule of Civil Procedure 4019 file the deposition upon written interrogatories with the pro- provides the sanctions available to the court to impose for thonotary (and upon each party or its attorney), who trans- failure to participate in the taking of a deposition. mits the depositions to an officer authorized to take depositions In addition to sanctions against the party being deposed, and who then files the deposition with the prothonotary af- if the party giving notice of the deposition fails to attend ter completion. The answers are provided by means of oral and another party attends in person or by attorney pursuant testimony, which is transcribed. to the notice of deposition, the court may order the party Within thirty (30) days of receipt of written interrogato- giving such notice to pay the reasonable expenses, includ- ries, other parties may serve and file cross-interrogatories ing attorney fees incurred by the party and its attorney in (Pa. R. Civ. P. 4004(a)(1)). Additional interrogatories must

26 be served and filed within ten (10) days (Pa. R. Civ. P. whom it is to be taken, whether the deposition is to be simul- 4004(a)(1)). The same sanctions apply for refusal to answer taneously recorded by stenographic means, and the name as for regular interrogatories. and address of the videotape operator and his or her em- In addition to normal stenographic recording of the depo- ployer, The operator may be an employee of the attorney sition, a deposition may be videotaped (Pa. R. Civ. P. 4017.1(a)) taking the deposition (Pa. R. Civ. P. 4017.1(b)). and may be used in court only if accompanied by a tran- The deposition shall begin with the operator stating, on script (Pa. R. Civ. P. 4017.1(a)(2)). If the witness is an ex- camera, its name and address, the name and address of its pert, other than a party, the deposition may be used at trial employer, the date, time and place of the deposition, the for any purpose, whether or not the person is available to caption of the case, the name of the witness, and the party testify (Pa. R. Civ. P. 4017.1(g)). on whose behalf the deposition is being taken, The officer This procedure would be used for persons who would be swearing in the witness shall identify itself and swear in the unavailable for trial or for physicians whose appearances at witness on camera. At the conclusion of the deposition, the trial, due to their schedules are difficult to arrange. The use operator shall state, on camera, that the deposition is con- of a videotape is more compelling to a jury than the simple cluded (Pa. R. Civ. P. 4017.1(c)). reading of a transcript. It permits a jury to view the demeanor The deposition shall be timed with the use of a digital of the deponent for themselves, which is impossible to as- clock on camera showing continually the hour, minute, and certain from a mere transcript. second of each tape (Pa. R. Civ. P. 4017.1(d)). The witness Every notice or subpoena (to nonparties) for the taking is not required to sign the deposition (Pa. R. Civ. P. 4017.1(e)). of a videotape deposition shall state that it is to be video- The attorney taking the deposition shall retain the copy of taped, the name and address of the person whose deposition the deposition and shall supply a copy thereof upon the re- is to be taken, the name and address of the officer before quest and at the cost of a party (Pa. R. Civ. P. 4017.1(f)).

27 CHAPTER 10 INTERROGATORIES

INTERROGATORIES DRAFTING ANSWERS TO Pennsylvania Rule of Civil Procedure 4005 governs written INTERROGATORIES interrogatories to a party, including additional defendants Pennsylvania Rule of Civil Procedure 4006 governs the as well as co-defendants. Pennsylvania Rule of Civil Proce- manner in which the responding party answers written in- dure 4005 limits written interrogatories to a party, whereas terrogatories. Each interrogatory must be answered “fully a deposition by written interrogatories is covered by Pa. R. and completely” in writing by the party (Pa. R. Civ. P. Civ. P. 4004. The use of interrogatories is not exclusive and 4006(a)(1)) unless there is specific written objection to the other available means of discovery may be also used. same, however, an objection to one or more interrogatories As a general rule, written interrogatories may be served does not excuse the answering of the remaining questions at any time including with the original process (Pa. R. Civ. P. (Pa. R. Civ. P. 4006(a)(2)). The interrogatory is to be an- 4005(a)). Service is accomplished by hand delivery to a party swered by the party served (Pa. R. Civ. P. 4005(a)). Where or its attorney of record or by the mailing of the same (Pa. R. that party is a public or private corporation, partnership or Civ. P. 440(a)). association, the answers are to be supplied by any officer or agent (Pa. R. Civ. P. 4005(a)). As in the federal rules where the answer may be deter- DRAFTING INTERROGATORIES mined from the records of the party served and where the There are limits placed upon the use of written inter- burden of obtaining the answer is substantially the same for rogatories. They may not be served in bad faith and must either party, an answer may be made by specifying the records relate to a matter that is not privileged. Interrogatories shall and affording the serving party an opportunity to examine not require making an unreasonable investigation by a party and copy the records. However, the Pennsylvania rules go or witness or cause unreasonable annoyance, embarrassment, beyond the federal rules, by allowing the option to be open oppression, burden, or expense (Pa. R. Civ. P. 4011). Out- to all records and not just business records. Pennsylvania side these limits, interrogatories may relate to any matter also provides that the inquiring party must also provide any discoverable pursuant to Pa. R. Civ. P. 4003.1Ð4003.6. compilation, abstracts, or summaries of the records to the Although interrogatories can be used to discover infor- providing party (Pa. R. Civ. P. 4006(b)). mation about documents, the production of the documents Interrogatories pertaining to the testimony of an expert cannot be accomplished with interrogatories and must be witness may be done by filing the report of the expert wit- done by a request for production of documents. ness or by having the interrogatories answered directly by The party to whom the interrogatories are directed may the expert (Pa. R. Civ. P. 4003.5(a)(1)(b)). request the court to grant a protective order limiting or pro- The party giving the answers to the interrogatories is re- hibiting the scope of the interrogatories (Pa. R. Civ. P. 4012). quired to sign the answers (Pa. R. Civ. P. 4006(a)(2)). But, The court may make any protective order that would be ap- when there are several respondents to the interrogatories propriate under the circumstances of the case pursuant to represented by the same counsel, it is only necessary that Pa. R. Civ. P. 4019. one of the respondents sign the answers. If an expert pre- In addition, in divorce actions, the use of interrogatories pares its answer and/or report, it must be signed (Pa. R. Civ. are further limited and are not allowed except in regard to P. 4003.5(a)(1)(b)). claims for alimony and the determination and distribution The answering party must file and serve a copy of its an- of property rights, unless authorized by special order of the swers within thirty (30) days of their receipt (Pa. R. Civ. P. court (Pa. R. Civ. P. 1930.5(b)). 406(a)(2)). A copy of the answers must be served upon every The Pennsylvania Rules of Civil Procedure do not spe- party to the action (Pa. R. Civ. P. 440(a)). In addition to their cifically limit the number of interrogatories in a given set, use in obtaining information on an opponent’s case, the an- or the number of sets of interrogatories that may be served, swers to interrogatories may be used at trial (Pa. R. Civ. P. although the number may be limited, upon motion of the 4020) and in determining motions for summary judgment (Pa. party served, by the court as justice requires to protect the R. Civ. P. 1035.1(2)). party from unreasonable annoyance, embarrassment, oppres- Although the Pennsylvania Rules of Civil Procedure do sion, burden or expense (Pa. R. Civ. P. 4005(c)). not authorize a motion for more specific answers, some courts The Pennsylvania Rules of Civil Procedure provide that of common pleas have authorized such a motion (Luken v. the interrogatories be served upon the party from whom the Antine, 65 D. & C. 2d 100 (1974); McBride v. Westinghouse answers are requested (Pa. R. Civ. P. 4005(a)). The sets are Electric Corp., 30 Beaver Co. L. J. 201 (1970)). Parties also to be prepared in such a manner as to allow the answering have a duty to supplement previous responses to interroga- party space to provide an answer or objection. Although, if tories with respect to any question directly addressed to the there is insufficient space, the remainder of the answer may identity and location of persons having knowledge of dis- be set forth on a supplemental sheet (Pa. R. Civ. P. 4006(a)(1)). coverable matters and the identity of each person expected The interrogatories need not be filed with the prothonotary. to be called as an expert witness (Pa. R. Civ. P. 4007.4(1)),

28 or when the party has knowledge that a response was incor- the procedure used to determine the validity of the objection. rect when made or is no longer true (Pa. R. Civ. P. 4007.4(2)). An interrogatory is not objectionable simply because an A party may object to an interrogatory within the thirty answer will require an opinion or the application of law to (30) day period, and if it refuses to answer a particular question fact (Pa. R. Civ. P. 4003.1(c)). It is not grounds for an ob- it must state the reason for its objection (Pa. R. Civ. P. jection that the information sought is inadmissible at trial, 4006(a)(2)). If the serving party wishes to contest the ob- if the information sought is reasonably calculated to lead to jection, it may file a motion to the court for the served party discovery of admissible evidence (Pa. R. Civ. P. 4003.1(b)). to provide an answer (Pa. R. Civ. P. 4006(a)(2)). The objec- If a party fails to answer or object to the interrogatories, tion to any interrogatory shall be signed by the attorney making in whole or in part, within the prescribed time, the court the objection (Pa. R. Civ. P. 4006(a)(2)). The local rules of may, upon motion of the inquiring party, impose sanctions court for the county in which the action is pending will govern for its failure to comply pursuant to Pa. R. Civ. P. 4019.

29 CHAPTER 11 PHYSICAL AND MENTAL EXAMINATIONS

Pennsylvania Rule of Civil Procedure 4010(a) provides The order may be made only upon motion for good cause that when the mental or physical condition of a party (in- shown and upon notice to the person to be examined and to cluding blood group, generally used in cases to determine all parties. The purpose of the good cause and notice is to paternity and in child support actions where a father has protect parties and the persons under their legal control against denied paternity), or of a person in the custody or under the an invasion of their right to privacy. In addition, the order legal control of a party, is in controversy, the court may or- shall specify the time, place, manner, conditions, and scope der the party to submit to a physical or mental examination of the examination and the person(s) by whom it is to be by a physician or to produce for examination the person in made (Pa. R. Civ. P. 4010(a)(3)). The person to be exam- its custody or legal control. ined has the right to counsel or other representation (Pa. R. Unlike written interrogatories and a request for produc- Civ. P. 4010(a)(4)(i)). This discovery does not apply to any tion of documents, a physical and/or mental examination actions which involve custody (Pa. R. Civ. P. 4010(a)(4)(ii)). can only be obtained by order of court (Pa. R. Civ. P. 4010(a)(2)). A copy of the detailed written report by the examining The rule does not limit the number of examinations that are physician shall be delivered to the person examined setting allowed, but more than one examination would be a matter forth its findings, including results of all tests made, diag- within the discretion of the court. A second examination may noses, and conclusions, together with like reports of all ear- be permitted where there has been a long time since the lier examinations of the same condition (Pa. R. Civ. P. first examination or where there is new information to be 4010(b)(l)). If such a report is requested and received, the discovered. recipient must deliver, on request, a copy of all prior or later The standard of in controversy is considered broad in examinations made by its physician (Pa. R. Civ. P. 4010(b)(l)). Pennsylvania. The reasoning behind the broad interpreta- If a party fails to comply with a court-ordered physical tion is that to get to the truth of the underlying case, it is and/or mental examination, the court may, upon motion, impose necessary to have the person examined. Personal injury ac- sanctions for its failure to comply pursuant to Pa. R. Civ. P. tions would fall within the standard of in controversy. 4019.

30 CHAPTER 12 REQUEST FOR DOCUMENTS

REQUESTING THE PRODUCTION are under the control of the party requested (Kohr Estate, OF DOCUMENTS 71 D & C 2d 48 (1976)). Pursuant to Pennsylvania Rule of Civil Procedure 4009.1, As in the case of other means of discovery, the request a nearly verbatim reproduction of Fed. R. Civ. P. 34, a party for production of documents may not be served in bad faith may request any other party to: produce and permit inspec- and must relate to a matter that is not privileged. The pro- tion and copying of any designated documents that fall within duction of documents shall not require making an unrea- the scope of discovery and that are in the possession, cus- sonable investigation by a party or witness or cause unreasonable tody, or control of the party served (Pa. R. Civ. P. 4009.1), annoyance, embarrassment, oppression, burden, or expense or; to permit entry upon land or property in the possession (Pa. R. Civ. P. 4011). or control of the party served with the request for the pur- pose of inspecting, measuring, surveying, photographing, testing, or sampling the property or any designated object RESPONDING TO A REQUEST FOR or operation thereon (Pa. R. Civ. P. 4009.1). DOCUMENTS The request for production of documents must state the The party served with the request must file a written re- items to be inspected, either by individual item or category, sponse within thirty (30) days after service of the request and must describe each item and category with reasonable (Pa. R. Civ. P. 4009.12(a)). A party may also make an ob- accuracy (Pa. R. Civ. P. 4009.11(b)). One can also request jection, and the reasons therefore, to any such request for permission to enter upon real property (Pa. R. Civ. P. 4009.31). production (Pa. R. Civ. P. 4009.12(a)(1)). In addition to A party may serve a request for production of documents objections, a party may seek a protective order under Pa. R. upon the plaintiff after the commencement of the action or Civ. P. 4012. upon any other party with or after service of the original If a party fails to respond to the request for production of process (Pa. R. Civ. P. 4009.11(a)). documents, the requesting party may move for sanctions under It is not required that the requested documents be both in Pa. R. Civ. P. 4019(a). the possession and control of the party, as long as the docu- As in the case of the federal rules, an independent action ments are under the party’s control. For example, several can be entertained against a party for production of documents courts of common pleas have determined that medical records and permission to enter upon land (Pa. R. Civ. P. 4009.32(a)).

31 CHAPTER 13 REQUESTS FOR ADMISSIONS

THE REQUEST FOR ADMISSIONS RESPONDING TO THE REQUEST FOR Under Pennsylvania Rule of Civil Procedure 4014(a), a ADMISSIONS party may serve upon any other party a written request for The answer must deny or admit the matter or state why a admission, for purposes of the pending action only. This denial or admission cannot be made. A party may admit and method of discovery is designed to reduce trial time by elimi- deny part of any request (Pa. R. Civ. P. 4014(b)). An an- nating or narrowing the issues and to clarify issues raised swering party cannot give lack of information as a reason in prior pleadings. It is not used to find facts, but to find out for failure to admit or deny unless the party states it made a what issues in the case will be contested. reasonable inquiry and information known or readily avail- able to it is not sufficient to form a response. If a party requesting admission does not feel that the an- DRAFTING THE REQUEST FOR swer is sufficient or that an objection is improper, it may ADMISSIONS move the court for such a determination. If the court does The request is limited to those matters within the scope not uphold an objection, it may order that the request be of the discovery rules. The request can relate to statements answered. If the court rules on the sufficiency of the an- or opinions of fact or of the application of law to fact, in- swer, it may order either that the matter be admitted or that cluding the genuineness, authenticity, correctness, execu- an amended answer by served. The court may also post- tion, signing, delivery, mailing, or receipt of any document pone a determination of a request for admission to a pre- (Pa. R. Civ. P. 4014(a)). Copies of any such documents must trial conference or a time designated prior to trial (Pa. R. be included with the request for admission, unless they have Civ. P. 4014(c)). already been furnished, or are available for inspection and Any matter admitted is conclusively established unless copying in the county where the action is pending (Pa. R. the court, on motion, permits withdrawal or amendment of Civ. P. 4014(a)). Documents include contracts, agreements, the admission when the presentation of the merits of the deeds, mortgages, leases, receipts, checks, books of account, action are served thereby and the party obtaining the ad- letters, maps, surveys, or memorandum. mission fails to show that such action will prejudice it in The request can be served upon the plaintiff after com- maintaining its action or defense (Pa. R. Civ. P. 4014(d)). mencement of the action or upon any other party with or If, at a trial or hearing, a party who has requested admis- after service of original process (Pa. R. Civ. P. 4014(a)). sions proves the matter that the other party has failed to ad- Each request must be separately set forth and is deemed mit as requested, the court, upon motion, may order taxing as admitted unless a verified answer signed by the party, which costs the reasonable expenses incurred in making such proof, is not required by Fed. R. Civ. P. 36, or an objection signed including attorney fees, unless the court finds the request by the attorney is served within thirty (30) days of service. was objectionable; the admission sought was of no substan- If the request is served with the original process, the defen- tial importance; the party failing to admit had reasonable dant need not file a response until forty-five (45) days after ground to believe it might prevail on the matter; or there service (Pa. R. Civ. P. 4014(b)). was other good reason to fail to admit (Pa. R. Civ. P. 4019(d)).

32 PART IV PRETRIAL, TRIAL AND POSTTRIAL

CHAPTER 14 SETTLEMENTS AND DISMISSALS

SETTLEMENT OFFERS DISMISSALS, CONSENT DECREES, Pennsylvania prefers that the parties be able to reach a AND DISTRIBUTION OF FUNDS settlement of their civil actions without the need of the case A discontinuance is the exclusive method to voluntarily going to trial. Obviously, this helps to alleviate some of the terminate an action, in whole or in part, by the plaintiff be- case load in the county courts that can cause a backlog of fore commencement of the trial (Pa. R. Civ. P. 229(a)). A pending cases. This policy is reflected in the case law that discontinuance may not be entered to less than all defen- prohibits offers of settlement or compromise to be admis- dants, except upon written consent of all parties, without sible at a trial or hearing (Durant v. McKelvey. 187 Pa. Su- leave of court and after notice to all parties (Pa. R. Civ. P. per. 461, 144 A.2d 527 (1987)). The reasoning behind the 229(b)). The court, upon petition and after notice, may strike decision is simple: if offers of settlement or compromise off a discontinuance in order to protect the rights of any would be admissible, it would lead to a lack of such offers party from unreasonable inconvenience, vexation, harass- being made by the parties. If you are representing a defen- ment, expense, or prejudice (Pa. R. Civ. P. 229(c)). dant it is also important to at least make an offer in order to Court approval of a discontinuance must be obtained in preclude the imposition of delay damages. any action in which a minor is party (Pa. R. Civ. P. 2039(a)), The plaintiff in a civil action seeking monetary relief for an action for wrongful death in which a minor has a benefi- bodily injury, death or property damage, may also request cial interest (Pa. R. Civ. P. 2206(a)), an action in which an that damages for delay be added to the amount of compen- incompetent is a party (Pa. R. Civ. P. 2064), or in class ac- satory damages (Pa. R. Civ. P. 238(a)(1)). Damages for de- tions (Pa. R. Civ. P. 1714(a)). lay shall be awarded for the period of time from a date one A judgment of non pros is a judgment entered on motion year after the date that original process was served, up to of the defendant, involuntarily terminating an action on the the time of the award, verdict, or decision (Pa. R. Civ. P, ground of the plaintiffs delay in the prosecution of the ac- 238(a)(2)(ii)). Any written notice must include the notice tion at any stage of the proceeding (Holliday v. Foster, 221 required pursuant to Pa. R. Civ. P. 238(c). Pa. Super. 388, 292 A.2d 438 (1972)). Entry of non pros is The period of time for which damages for delay is calcu- proper when a party to the proceeding has shown a want of lated shall exclude the period of time after which the defen- due diligence in failing to proceed with reasonable prompt- dant has made a written offer of settlement in a specified ness, there has been no compelling reason for the delay, and sum with prompt cash payment to the plaintiff or a struc- the delay has caused some prejudice to the adverse party, tured settlement underwritten by a financially responsible such as the death of or unexplained absence of material wit- entity, and continued that offer in effect for at least ninety nesses. Prejudice, however, for purposes of entering non pros, (90) days or until commencement of trial, if the offer is not is not limited to the death or absence of material witnesses, accepted and the plaintiff does not recover more than 125 but may also attach where, because of delay, there is loss of percent of the amount offered, or during which period the documentary evidence or any substantial diminution in a plaintiff caused delay of the trial (Pa. R. Civ. P. 238(b)). party’s ability to properly present its case (Neshaminy Con- The plaintiff must file a written motion for delay dam- structors, Inc. v. Plymouth Township, 132 Cmwlth. Ct. 229, ages within ten (10) days after the verdict or notice of the 572 A.2d 814 (1990)). decision (Pa. R. Civ. P. 238(c)). The defendant may answer The usual means of having a request of non pros brought the motion within an additional ten (10) days of the filing to the attention of the court is through a petition and hear- of the motion (Pa. R. Civ. P. 238(c)(1)). The court may not ing thereon. Again, the procedure would be determined by rule on a motion for delay damages until all posttrial mo- local rules of court. However, where an action is not com- tions have been decided (Pa. R. Civ. P. 238(c)(3)(i)). menced by a complaint (either by writ of summons or an In an action being heard by a board of arbitrators, the appeal from a decision of a district justice), the prothono- plaintiff must notify the defendant of the intention to re- tary, upon praecipe of the defendant, shall enter a rule upon quest delay damages at least twenty (20) days prior to the the plaintiff to file a complaint. If a complaint is not filed hearing. The defendant who objects to the request must submit within twenty (20) days after service of the rule, the pro- a statement within ten (10) days setting forth the objections thonotary, upon praecipe of the defendant, shall enter a judgment and whether the defendant made an offer, including date of non pros (Pa. R. Civ. P. 1037(a)). and amount of offer, in writing. The parties must also state Where a case is called for trial, if without satisfactory therein if any of the delay is attributable to the plaintiff. excuse a plaintiff is not ready, the court may enter a nonsuit The board of arbitrators will then decide if the awarding of on motion of the defendant or a non pros on the court’s own delay damages is appropriate (Pa. R. Civ. P. 238(d)(1)). motion (Pa. R. Civ. P. 218(a)).

33 In addition, a voluntary nonsuit shall be the exclusive alternative, a compulsory nonsuit of any plaintiff in favor method of termination of an action, in whole or in part by of any or all of the defendants shall not be entered prior to the plaintiff during trial (Pa. R. Civ. P. 230(a)). There is no the close of the case of all plaintiffs against all defendants; court approval necessary for the voluntary nonsuit as long unless the compulsory nonsuit is entered against all plain- as the plaintiff has not rested its case in chief (Pa. R. Civ. P. tiffs as to all defendants, the court, upon the conclusion of 230(b)). Once all of the evidence has been presented, a plaintiff the trial as to all parties but not before, may direct a verdict may not take advantage of the voluntary nonsuit (Pa. R. Civ. in favor of each defendant as to whom the evidence, regard- P. 230(b)). less of the party by whom offered, does not warrant a find- In a case involving only one defendant, at the close of ing by the jury that such defendant is liable jointly, severally, plaintiffs case on liability, and before any evidence on be- or separately to any plaintiff (Pa. R. Civ. P. 2231(h)). half of the defendant has been introduced, the court on oral When a plaintiff has joined two or more defendants and motion of a party, may enter a nonsuit if the plaintiff has the evidence does not justify a recovery against all of them, failed to establish a right to relief. If the motion is not granted, the court shall enter a nonsuit or direct a verdict in favor of the trial shall proceed. If the motion is granted, the plaintiff any defendant not shown to be liable either jointly, sever- may file a written motion for the removal of the nonsuit ally or separately. Further, the action shall continue deter- (Pa. R. Civ. P. 230.1). Also, a court may compel the plain- mination of which the remaining defendants are jointly, tiff in any action to produce all of its evidence upon the severally, or separately liable with the same effect as though question of the defendant’s liability before it calls any wit- the defendants found to liable were the only ones joined. ness to testify solely to the extent of the injury or damages. As in other cases, the court may enter judgment, notwith- The defendant’s attorney may then move for a nonsuit. If standing the verdict, in favor of or against any of such de- the motion is refused, the trial shall continue (Pa. R. Civ. P. fendants (Pa. R. Civ. P. 2232(d)). 224). Motions for nonsuit may not be made against unrep- A discontinuance or nonsuit shall not affect the right of resented minors (Pa. R. Civ. P. 2035) or incompetents (Pa. the defendant to proceed with a previously filed counter- R. Civ. P. 2035). claim (Pa. R. Civ. P. 232(a)). A counterclaim may not be In an action in which plaintiffs have been joined in the terminated, in whole or in part, by the defendant, except by alternative, a compulsory nonsuit shall not be entered against discontinuance or voluntary nonsuit; this is subject to con- any plaintiff until the close of the case of all plaintiffs; un- ditions similar to those applicable the plaintiff (Pa. R. Civ. less the compulsory nonsuit is entered against all plaintiffs, P. 232(b)). the court, upon conclusion of the trial as to all parties, but After a discontinuance or voluntary nonsuit, the plaintiff not before, may direct a verdict for any defendant against may commence a second action upon the same cause of ac- any plaintiff who, upon all the evidence, regardless of the tion upon payment of the costs of the former action (Pa. R. party by whom offered, is not entitled to recover (Pa. R. Civ. P. 231(a)). A plaintiff may not commence a second ac- Civ. P. 2231(g)). tion upon the same cause of action after the entry of a com- In an action in which defendants have been joined in the pulsory nonsuit (Pa. R. Civ. P. 231(b)).

34 CHAPTER 15 TRIAL TECHNIQUES

PREPARATION OF WITNESSES ing a copy to the party at the residence or place of business A subpoena is an order of the court commanding a per- of that party (Pa. R. Civ. P. 440(a)). son to attend and testify at a particular time and place. It The party serving a subpoena or a notice to attend or a may also require the person to produce documents or things notice to produce may excuse compliance with the same that are under the possession, custody, or control of that (Pa. R. Civ. P. 234.4(a)). A motion to quash a subpoena, person (Pa. R. Civ. P. 234.1(a)). The subpoena may be used notice to attend, or notice to produce may be filed by a party to command a person to attend and to produce documents or by the person served. After hearing, the court may make or things only at a trial or hearing in an action or proceed- an order to protect a party or witness from unreasonable ing pending in the court or the taking of a deposition in an annoyance, embarrassment, oppression, burden, or expense action or proceeding pending in the court (Pa. R. Civ. P. (Pa. R. Civ. P. 234.4(b)). 234.1(b)). A court may compel the attendance of any per- If a witness fails to comply with a subpoena, the court son confined in jail or prison by issuing, upon motion, an may issue a bench warrant and, if the failure to comply is order directed to the custodian of the person so confined to willful, may adjudge the witness to be in contempt, except release the person to the custody of a sheriff or other appro- when service of the subpoena is by mail (Pa. R. Civ. P. 234.5(a); priate agent (Pa. R. Civ. P. 234.2(d)). If a party fails to comply with a subpoena, a notice to at- The subpoena is issued by the prothonotary at the re- tend, or a notice to produce, the court may enter any order quest of a party (Pa. R. Civ. P. 234.2(a)). A copy of the sub- imposing sanctions authorized under Pa. R. Civ. P. 4019(c) poena may be served in the same manner as original service and if the failure to comply is in bad faith, the court may upon any adult in the commonwealth pursuant to Pa. R. Civ. impose on that party the reasonable expenses incurred by P. 402(a), or by any form of mail requiring a return receipt, the opposing party by reason of such delay or bad faith, with postage prepaid and restricted delivery. Service is complete including attorney fees. If the failure is willful the court, upon delivery of the mail to the defendant or any of the after hearing, may adjudge the party to be in contempt (Pa. persons referred to in Pa. R. Civ. P. 402(a)(2) (Pa. R. Civ. P. R. Civ. P. 234.5(b)). 234.2(b)). Service of the subpoena may be made by ordi- nary mail and must contain two copies of the Notice and Acknowledgment prescribed by Pa. R. Civ. P. 234.9, and a THE JURY PROCESS self-addressed, stamped envelope (Pa. R. Civ. P. 234.2(c)). Parties to a civil action have a constitutional and a statu- However, no bench warrant may be issued and no adjudica- tory right to a jury trial (Pa. Const. Art. I ¤ 6; 42 Pa. C. S. A. tion of contempt may be made for nonappearance of a wit- ¤ 5104(a)). The constitutional guarantee only applies in those ness served by ordinary mail, unless the witness has returned cases where the matter of right to a jury trial was established a signed acknowledgment (Pa. R. Civ. P. 234.5(a)). at the time the constitution was enacted (William Goldman A party must also include with the subpoena, the fee for Theaters. Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 (1961)). one day’s attendance and round-trip mileage, which shall There is no right to jury trial in those cases involving be tendered upon demand at the time the person is served legislatively created causes of action, unless the legislation with the subpoena. If a subpoena is served by mail, a check gives that right (Zabka v. Allegheny County Health Dept., in the amount of one day’s attendance and round-trip mile- 130 Pitts. Leg. J. 309 (1982)). There is no right to a jury age shall be enclosed with the subpoena (Pa. R. Civ. P. 234.2(c)). trial in equity cases (Rosenberg v. Rosenberg. 276 Pa. Su- The manner of requiring a party to attend a hearing or per. 203, 419 A.2d 167 (1980)); however, the court on its trial is somewhat different from that of witnesses. A party own motion or upon the petition of any party, may submit may compel the attendance of another party or officer or to trial by jury any or all issues of fact, but the verdict of managing agent thereof for trial or hearing by serving upon the jury is not binding upon the court (Pa. R. Civ. P. 1513). that party a notice to attend. The notice shall be served rea- There is no right to trial by jury in divorce proceedings, sonably in advance of the date upon which attendance is but either party in a divorce or annulment may request a required. The notice may also require the party to produce court to have a jury trial as to issues of fact, unless it would documents or things (Pa. R. Civ. P. 234.3(a)). If the atten- be prejudicial to public morals (23 Pa. C. S. A. ¤ 3322). In dance of another party is not required, a party may compel addition, support and custody proceedings are not subject the production of documents or things by the other party by to trial by jury, although in matters of determining pater- serving upon that party a notice to produce (Pa. R. Civ. P. nity, the defendant does have a right to a jury trial (Com- 234.3(b)). monwealth v. Dillworth. 431 Pa. 479, 246 A.2d 859 (1968)). Service of the notice to attend and a notice to produce is In any action in which the right to jury trial exists, that accomplished by leaving a copy for or mailing a copy to the right shall be deemed waived unless a party files and serves party at his or her address or to its attorney, of record (Pa. a written demand for a jury trial not later than twenty (20) R. Civ. P. 440(a)). If there is no attorney of record, service days after service of the last permissible pleading. The de- is achieved within the county by leaving a copy for or mail- mand shall be made by endorsement on a pleading or by a

35 separate writing (Pa. R. Civ. P. 1007.1(a)). Where an appeal Every citizen of voting age is qualified to be a juror, un- is taken from an award in compulsory arbitration and a jury less unable to read, write, speak, and understand the En- trial has not theretofore been demanded, the right to a jury glish language or is incapable, by reason of mental or physical trial shall be deemed waived unless the appellant endorses infirmity or has been convicted of a crime punishable by a demand for a jury trial on its appeal, or unless the appel- imprisonment for more than one year and has not been granted lee files and serves a written demand for a jury trial not a pardon or amnesty therefrom (42 Pa. C. S. A. ¤ 4502). The later than ten (10) days after being served with the notice of jury selection list is composed of all voter registration lists appeal (Pa. R. Civ. P. 1007.1(b)). The request for jury trial in the county and may be supplemented by additional sources, is generally placed in the complaint; many times in the same such as telephone directories, tax assessment, or school census paragraph as the request for relief. (42 Pa. C. S. A. ¤ 4521(a)). A demand for a trial by jury may not be withdrawn with- The civil jury will consist of twelve members. Each party out the consent of all parties who have appeared in the ac- shall be entitled to four peremptory challenges to prospec- tion (Pa. R. Civ. P. 1007.1(c)(1)). A demand for a jury trial tive jurors, which are exercised in turn beginning with the on behalf of a party shall be deemed withdrawn if, at the plaintiff and following in the order in which the party was time a case is called for trial, that party without satisfactory named or became a party to the action. In order to achieve a excuse fails to appear, or appears but is not ready. Any other fair distribution of challenges, the court in any case may party appearing and ready who has not already demanded a allow additional peremptory challenges and allocate them trial a jury shall forthwith demand a trial by jury or shall be among the parties. Where there is more than one plaintiff or deemed to have waived the same (Pa. R. Civ. P. 1007.1(c)(2)). defendant or more than one additional defendant, the court Even in cases where, historically, the parties would be may consider any one or more of such groups as a single entitled to a jury trial, the case may be referred to compul- party (Pa. R. Civ. P. 221). The peremptory challenge allows sory arbitration (42 Pa. C. S. A. ¤ 7361). Pennsylvania Rules a party to strike off a juror without cause. of Civil Procedure 1301 et seq. govern compulsory arbitra- In addition to peremptory challenges, a party has an un- tion. The deciding factor in determining whether a case is limited number of challenges for cause. Grounds to chal- referred to compulsory arbitration depends upon the amount lenge a juror for cause would include situations where a in controversy. The amount is determined by the size of the juror has expressed an opinion as to the case, has shown county in which the action is pending. prejudice towards a party, or knows one of the parties.

36 CHAPTER 16 POSTTRIAL PRACTICE

TRIAL AND POSTTRIAL MOTIONS 1. An order refusing to open, vacate, or strike off a Posttrial motions are not available in every action and judgment; may not be filed to orders directing partition (Pa. R. Civ. P. 2. An order confirming, modifying or dissolving, or re- 1557); orders of support (Pa. R. Civ. P. 1910.11(k) and fusing to confirm, modify or dissolve an attachment, 1910.12(g)); orders of custody, partial custody, or visita- custodianship, receivership, or similar matter affecting tion of children (Pa. R. Civ. P. 1915.10(b)); or a final de- the possession or control of property except for attach- cree of divorce based upon a master’s report (Pa. R. Civ. P. ments pursuant to the Pennsylvania Divorce Code; 1920.55-2(e)). 3. An order granting, continuing, modifying, refusing, or Posttrial relief may not be granted unless the grounds dissolving injunctions or refusing to dissolve or modify therefore, if then available, were raised in a pretrial pro- injunctions, except for those pursuant to the Pennsyl- ceeding or by motion, objection, point for charge, request vania Divorce Code; for findings of fact or conclusions of law, offer of proof, or 4. An order in a civil action or proceeding awarding a other appropriate method at trial. The motion shall state how new trial; the grounds were asserted in pretrial proceedings or at trial. 5. An order directing partition; Grounds not specified in the motion are deemed waived, 6. An order that is made appealable by statute or gen- unless leave is granted upon cause shown to specify addi- eral rule; tional grounds (Pa. R. Civ. P. 227.1(b)). The reasons for re- 7. An order in a civil action or proceeding sustaining the lief must be specified in the motion, along with the relief venue of the matter or jurisdiction over the person or requested. A party may seek relief in the alternative (Pa. R. over real or personal property if the plaintiff, petitioner, Civ. P. 227.1(d)). or other party benefitting from the order files of record A party must file posttrial motions within ten (10) days within ten (10) days after the entry of the order an election after the verdict, discharge of the jury because of inability that the order shall be deemed final or the court states to agree, or nonsuit in the case of a jury trial; or notice of in the order that a substantial issue of venue or juris- nonsuit or the filing of the decision or adjudication in the diction is presented; or case of a trial without jury or an equity trial (Pa. R. Civ. P. 8. An order in a civil action or proceeding changing venue, 227.1(c)). If one party has filed a motion for posttrial relief, transferring the matter to another court of coordinate any other party may file a posttrial motion within ten (10) jurisdiction, or declining to proceed in the matter on the days after the filing of the first posttrial motion (Pa. R. Civ. basis of forum non conveniens or analogous principles. P. 227.1(c)). A copy of the posttrial motion shall be promptly served upon every other party to the action as well as to the Although a party may file an appeal to either the com- trial judge (Pa. R. Civ. P. 227.1(f)). monwealth court or the superior court and may do so as of right, unless the case falls within the Supreme Court’s man- datory appellate jurisdiction, a party does not have a right THE PRELIMINARY STEPS IN THE APPEAL to have its appeal heard by the Supreme Court. No order of a court may be appealed until it has been Not every case has an automatic right of appeal to the entered upon the appropriate docket in the lower court (Pa. Supreme Court of Pennsylvania, and in those cases, the party R. App. P. 301(a)). With minor exceptions spelled out in the files a Petition for Allowance of Appeal and a reproduced statute, any appeal must be taken within thirty (30) days record (Pa. R. Civ. P. 1112). The Petition for Allowance of (42 Pa. C. S. A. 5571(b)). The time period applies to all Appeal is governed by Pa. R. App. P. 1115 and shall con- appeals and is uniform throughout the state and the court tain the following: system. Prior to appealing any order, it must first be deter- 1. A reference to the official and unofficial reports of the mined what kind of order was entered by the court and to opinions delivered in the courts below, if any, and if which court the appeal is to be made. As previously stated, reported. Any such opinion shall be appended. appeals from the courts of common pleas can go to either 2. The text of the order in question, or the portions thereof commonwealth court or superior court, depending upon the sought to be reviewed, and the date of its entry in the case. Generally, those cases in which the commonwealth or appellate court below. a political subdivision is a party will go to the common- 3. The questions presented for review, expressed in the wealth court criminal cases and civil cases involving only terms and circumstances of the case, but without un- private parties will go to the superior court, necessary detail. The statement of questions presented The Rules of Appellate Procedure set forth two types of will be deemed to include every subsidiary question appeals: interlocutory appeals and appeals from final orders. fairly comprised therein. Only the questions set forth Interlocutory appeals are further divided into appeals as of in the petition, or fairly comprised therein, will ordi- right and by permission. Pursuant to Pa. R. App. P. 311, an narily be considered by the court in the event an ap- interlocutory appeal may be taken as of right from: peal is allowed.

37 4. A concise statement of the case containing the facts appellee must serve its brief within thirty (30) days after material to a consideration of the questions presented. service of the appellant’s brief. A reply brief must be filed 5. A concise statement of the reasons relied upon for al- within fourteen (14) days after service of the preceding brief lowance of an appeal. (Pa. R. Civ. P. No 2185(a)). 6. There shall be appended to the petition a copy of any Twenty-five (25) copies of the brief and reproduced record opinions delivered relating to the order sought to be shall be filed with the prothonotary of the Supreme Court, reviewed, as well as all opinions of government units fifteen (15) copies to the prothonotary of the commonwealth or lower courts in the case, and, if reference thereto is court, and ten (10) copies to the prothonotary of the supe- necessary to ascertain the grounds of the order, opin- rior court. In addition, two (2) copies are to be served upon ions in companion cases. every party (Pa. R. Civ. P. No 2187(a)). If an appellant fails 7. There shall be appended to the petition the verbatim to file the brief within the required time, the appellee may texts of the pertinent provisions of constitutional pro- move for dismissal of the matter. If the appellee fails to file visions, statutes, ordinances, regulations or other similar its brief in the required time, it will not be permitted to be enactments that the case involves. heard at oral argument (Pa. R. Civ. P. No 2188). If the appeal is complicated or the reproduced record is large, it may be better to use one of the service companies THE APPELLATE BRIEF that will produce the brief and/or reproduced record for use The appellate brief and reproduced record are governed on appeal. Although the law office will have to prepare the by Pennsylvania Rule of Appellate Procedure 2101 et seq. substantive work, the service company will make sure that The appellant’s brief consists of a statement of jurisdiction, the brief conforms to the rules and will also file and serve the order or other determination in question, a statement of the brief and/or reproduced record. the questions involved, the statement of the case, the sum- mary of argument, the argument, a short conclusion stating the precise relief sought, and the opinions and pleadings FINAL PROCEDURES that are relevant to the questions presented on appeal (Pa. Once a judgment has been rendered in favor of a plain- R. Civ. P. No 2111(b)). tiff, it is up to the plaintiff to collect on the judgment Com- The brief of the appellee, except as otherwise prescribed monly, this will be accomplished by the defendant paying by the appellate rules, need only contain a summary of ar- the amount of the judgment to the plaintiff. At that time, the gument and the complete argument for the appellee. How- plaintiff would file a praecipe with the prothonotary requesting ever, the appellee may add a counterstatement of the questions that the docket be marked as satisfied and costs paid. How- involved and a counterstatement of the case. Unless the ap- ever, it is not always that easy and further action may be pellee does so, or the brief of the appellee otherwise chal- necessary to enforce the judgment. lenges the questions involved or the statement of the case The prothonotary is specifically authorized to enter judgment as stated by appellant, it will be assumed the appellee is (42 Pa. C. S. A. ¤ 227.4), and must do so upon praecipe of a satisfied with them, or with such parts of them as remain party upon a jury verdict, if no timely posttrial motions are unchallenged (Pa. R. Civ. P. No 2112). filed (Pa. R. Civ. P. 227.4(1)), or when a court grants or The appellant may file a brief in reply to matters raised denies relief, but does not itself enter judgment or orders by the appellee’s brief not previously raised in the appellant’s the prothonotary to do so (Pa. R. Civ. P. 227.4(2)). brief, and if the appellee has cross-appealed, the appellee It is also important to have the judgment placed on the may file a similarly limited brief in reply to the response of judgment docket, which is also maintained at the prothono- the appellant to the issues presented by the cross-appeal (Pa. tary’s office. This is to enable the prevailing party to main- R. Civ. P. No 2113(a)). tain its rights to the loser’s property against subsequent third A party also files a reproduced record of the pleadings parties who may also have a claim against the debtor’s property. and filings in the lower court along with the brief. The re- A judgment may be transferred to another county by fil- produced record, which can be either separate from or at- ing of record a certified copy of all docket entries in the tached to the brief depending upon the size of the record, action and a certification of the amount of the judgment (Pa. shall contain all relevant docket entries, any relevant related R. Civ. P. 3002(a)). This would be necessary when the de- matter as well as any relevant portions of the pleadings, charge fendant has property located in a county that is different or findings, any other parts of the record to which the par- from that in which the judgment was initially rendered. ties wish to direct the particular attention of the appellate A judgment is enforced by a writ of execution (Pa. R. court (Pa. R. Civ. P. No 2152(a)). Civ. P. 3102). The execution is commenced by filing a praecipe The schedule for filing briefs will be set by the protho- for writ of execution with the prothonotary of any county in notary of the appellate court. It is based upon the time esti- which the judgment has been entered (Pa. R. Civ. P. 3103(a)). mated when the case will be argued or submitted to the court The writ of execution is served by the sheriff (Pa. R. Civ. P. (Pa. R. Civ. P. No 2185(b)). If there is no date fixed by the 3108). In addition, the executing party may direct the sher- prothonotary, the appellant’s brief is to be filed within forty iff to take manual possession or custody of any tangible personal (40) days of the filing of the record of the lower court. The property upon which he or she has made a levy. The sheriff

38 may require a bond or security for the cost of retaining the 1. Enjoining the negotiation, transfer, assignment, or other property (Pa. R. Civ. P. 3109). disposition of any security, document of title, pawn ticket, All property, real or personal, of the judgment debtor, instrument, mortgage or document representing any prop- which is not exempt under Pa. R. Civ. P. 3123, is subject to erty interest of the defendant subject to execution; execution (Mamlin v. Genoe, 340 Pa. 320, 17 A.2d 407 (1941)); 2. Enjoining the transfer, removal, conveyance, assignment, even property owned by the judgment in the possession of a or other disposition of property of the defendant sub- third party. ject to execution; If the judgment debtor still does not pay the amount of 3. Directing the defendant or any other party or person to the judgment, the sheriff will hold a sale of the property take such action as the court may direct to preserve under levy for the purposes of satisfying the judgment. collateral security property of the defendant levied upon There may be times when the party with the judgment or attached, or any security interest levied upon or at- does not know what property is owned by the debtor, and in tached; those circumstances, the plaintiff, before or after the issu- 4. Directing the disclosure to the sheriff of the where- ance of a writ of execution, may, for the purpose of discov- abouts of property of the defendant; ery of assets of the defendant, take the testimony of any 5. Directing that property of the defendant that has been person, including a defendant or garnishee, upon oral ex- removed from the county or concealed for the purpose amination or writ interrogatories. The rules governing such of avoiding execution shall be delivered to the sheriff discovery are those governing pretrial discovery (Pa. R. Civ. or made available for execution; and P. 3117(a)). The plaintiff, may on petition of the plaintiff, 6. Granting such other relief as may be deemed neces- after notice and hearing, seek the court to enter an order sary and appropriate (Pa. R. Civ. P. 3118). against any party or person to aid in the execution. The court may enter an order on any of following: The Petition and Notice is served pursuant to Pa. R. Civ. P. 3118(b).

39