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PA Civil Litigation 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
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