PART I Introduction to Civil Litigation for the Paralegal

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PART I Introduction to Civil Litigation

for the Paralegal

CHAPTER 1 Litigation and the Paralegal

Civil litigation is any legal action commenced by oneparty against another party, excluding those actionsbrought by the Commonwealth of Pennsylvania, pursuantto the Pennsylvania Crimes Code. The authority to enactand modify the rules governing civil litigation is vestedwith the Pennsylvania Supreme Court, pursuant to thePennsylvania Constitution and the Pennsylvania JudicialCode (Pa. Const. Art 5 §10; 42 Pa. C. S. A. § 1722(a)). ThePennsylvania Judicial Code (42 Pa. C. S. A. § 101, et seq.),the Pennsylvania Rules of Civil Procedure, thePennsylvania Rules of Evidence, and the PennsylvaniaRules of Appellate Procedure, as promulgated by the

Pennsylvania Supreme Court, govern the practice of civillitigation in Pennsylvania.

Although Pennsylvania has eliminated the distinctionbetween assumpsit and trespass (Pa. R. Civ. P. 1001(b)(1)),the Rules of Civil Procedure, unlike the Federal Rules ofCivil Procedure, do differentiate between civil actions atlaw and actions in equity. As a result of this continued sep-aration, there are some differences in the procedural as-pects of the two types of actions, as well as substantivelegal differences between actions at law and actions inequity.

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WHAT CIVIL LITIGATION IS

DIFFERENT TYPES OF CIVIL LAWSUITS

Civil litigation encompasses numerous types of actionsthat are governed by the Pennsylvania Rules of CivilProcedure. These actions are generally within the jurisdic-tion of the courts of common pleas. With the possibleexception of the district justice system, the county court ofcommon pleas is the court paralegals will be involved withmost. Prior to the amendment of the Rules of CivilProcedure, there were separate rules for trespass andassumpsit actions, however, they have now been consoli-dated as a single civil action (Pa. R. Civ. P. 1001). Otheractions “at law” include actions in ejectment (Pa. R. Civ. P.105l, et seq.), actions to quiet title (Pa. R. Civ. P. 1061, etseq.); actions in replevin (Pa. R. Civ. P. 1071, et seq.); ac-tions in mandamus (Pa. R. Civ. P. 1091, et seq.); actions inquo warranto (Pa. R. Civ. P. 1111, et seq.); actions in mort-gage foreclosure (Pa. R. Civ. P. 1141, et seq.); and actions

upon ground rent (Pa. R. Civ. P. 1161 et seq.). Actions “atequity” include actions for the partition of real property(Pa. R. Civ. P. 1551, et seq.) and actions to prevent waste(Pa. R. Civ. P. 1576, et seq.).

Other civil actions that come before the courts ofcommon pleas include declaratory judgments (Pa. R. Civ.P. 1601, et seq.); actions upon mechanics liens (Pa. R. Civ.P. 1651, et seq.); class actions (Pa. R. Civ. P. 1701, et seq.);actions pursuant to Protection from Abuse Act (Pa. R. Civ.P. 1901, et seq.); actions for support (Pa. R. Civ. P. 1910.1,et seq.); actions for custody, partial custody and visitationof minor children (Pa. R. Civ. P. 1915.1, et seq.); actions ofdivorce or annulment of marriage (Pa. R. Civ. P. 1920.1, etseq.); and actions for wrongful death (Pa. R. Civ. P. 2201,et seq.).

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The orphan’s court division of the court of commonpleas involves the probate of wills, adoptions, termination

of parental rights and proceedings under the Abortion Con-trol Act, and is governed by its separate set of rules.

2 PART I Introduction to Civil Litigation for the Paralegal

ALTERNATIVES TO LITIGATION

Pennsylvania has enacted 42 Pa. C. S. A. § 7361, whichprovides for compulsory arbitration of civil matters beforea board of three members of the bar of the court.Compulsory arbitration does not apply to disputesinvolving title to real property (42 Pa. C. S.A. § 7361(b)(1))or where the amount in controversy, exclusive of interestand costs, exceeds $50,000 in judicial districts embracingfirst, second, second class A or third class counties orhome rule charters, or $25,000.00 in any other judicial dis-trict (42 Pa. C. S. A. § 7361(b (2)).

Any party who is dissatisfied with the arbitration deci-sion may appeal for trial de novo in the court in accor-dance with the general time limitations imposed under therules of civil procedure (42 Pa. C. S. A. § 7361(d)).

Provision for compulsory arbitration continues the ex-isting practice under which, in the absence of a rule of theCommonwealth Supreme Court, each common pleas courtmay determine whether there shall be arbitration in its dis-trict, the kinds of cases to be arbitrated, and the judicialamount within the limits fixed by § 7361.

The General Assembly of Pennsylvania has enactedthe Medical Care Availability and Reduction of Error(Mcare) Act, 40 Pa. C. S. A. § 1303.501et seq. in part “toensure a fair legal process and reasonable compensationfor persons injured due to medical negligence.” The Actspeaks directly to several issues of civil procedure, in-cluding a statute of repose, which provides as a generalrule that no cause of action against a medical professionalmay be commenced after seven years from the date ofthe alleged tort or breach of contract (40 Pa. C. S. A. §1303.513(a)). This limitation does not apply if injury wascaused by a foreign object unintentionally left in the indi-vidual’s body (40 Pa. C. S. A. § 1303.513(b)); to injuredminors, who may choose the later of the seven yearstatute of repose or attainment of age 20 (Pa. C. S. A. §1303.513(c)); or death or survival actions, which must bebrought within two years after the death (40 Pa. C. S. A. §1303.513(d)). Other areas of civil practice impacted bythe Mcare Act include limitations on punitive damages(40 Pa. C. S. A. § 1303.505); qualifications of expert wit-nesses (Pa. C. S .A. § 1303.512); and the establishment ofthe Interbranch Commission on Venue to review and

analyze issues of venue as they relate to medical profes-sional liability actions filed in the Commonwealth (40 Pa.C. S. A. § 1303.514)).

Pennsylvania has also enacted the Uniform ArbitrationAct (42 Pa. C. S. A. § 7301, et seq.). The act allows partiesto voluntarily arbitrate a controversy on a nonjudicialbasis, either according to the provisions of the act or ac-cording to common-law arbitration. A written agreementfor arbitration is valid, enforceable and binding unless theagreement can be voided under the same grounds applica-ble to contracts (42 Pa. C. S. A. § 7303). If there is such anagreement, a party may petition the court to compel theother party to go to arbitration (42 Pa. C. S. A. § 7304(a)).

Within thirty (30) days of delivery of a copy of the de-cision of the arbitration, a party may make application tothe court to vacate the award (42 Pa. C. S. A. § 7314(b)). Acourt of common pleas can only vacate the award if one ofthe following has occurred during the arbitration (42 Pa.C. S. A. § 7314(a)):

1. The act did not apply to the action at hand.

2. There was evident partiality of an arbitrator orother misconduct on the part of an arbitrator prej-udicing the rights of a party.

3. The arbitrators exceeded their powers.

4. The arbitrators refused to postpone the hearing forgood cause, refused to hear admissible evidence,or conducted the hearing contrary to the act thatprejudiced the rights of a party.

5. There was no agreement to arbitrate, if this has notalready been decided by the court.

A party has thirty (30) days from the date of the awardto have the court modify or correct an award based upon(1) a miscalculation or mistake in the description of a per-son, thing, or property; (2) any matter that was not submit-ted to arbitration and which was ruled upon by thearbitrators; and (3) a defect as to form not affecting themerits of the decision (42 Pa. C. S. A. § 7315(a)). The courtthen enters a judgment or decree confirming, modifying, orcorrecting the arbitrators’ award (42 Pa. C. S. A. § 7316).

PROCEDURAL V. SUBSTANTIVE LAW

In every civil case, it is necessary to know and researchtwo types of law. First, the substantive law defines therights, duties, and obligations of not only your client butalso those of the opposing party, regardless of whether you

are representing the plaintiff or the defendant. The sub-stantive law will be found in case law, and in a multitude ofstatutes and ordinances. Statutes are laws passed by thegeneral assembly and codified in Purdons, whereas


CHAPTER 2 The Courts and Jurisdiction 3

SOURCES OF THE LAW

There are many sources of law used in determining civillitigation in Pennsylvania. The primary sources are thePennsylvania Constitution; statutes’ enacted by the generalassembly; Pennsylvania case law as stated by the variouscourts of Pennsylvania and federal courts decidingPennsylvania law; the Pennsylvania rules of court (usuallythe Rules of Civil Procedure, Pennsylvania Rules of Evi-dence, orphan’s court rules and the various rules for theappellate courts), and local rules and ordinances enacted

by cities, boroughs, townships, etc. In addition, case law ofother states and other federal jurisdictions may be usedwhere the statute or rule being adjudicated is similar oridentical to the Pennsylvania statute. Examples would bethe Uniform Child Custody Jurisdiction Act or the Uni-form Reciprocal Enforcement of Support Act. Othersources of authority would include various treatises andhandbooks.

THE ROLE OF THE LITIGATION PARALEGAL

Pennsylvania has specifically legislated that paralegals orlegal assistants who practice law or hold themselves out tothe public as being entitled to practice law, commit a thirddegree misdemeanor (42 Pa. C. S. A. § 2524). Lawyerswho employ paralegals and other assistants as part of their

practice are required, under the Pennsylvania Rules of Pro-fessional Conduct, to provide such assistants with appro-priate instruction and supervision concerning the ethicalaspects of their employment (Pa. R. P. C. 5.3).

CHAPTER 2The Courts and Jurisdiction

STATE COURT SYSTEMS

The judicial power of the Commonwealth of Pennsylvaniais vested in a unified judicial system consisting of aSupreme Court, superior court, commonwealth court, andvarious county courts of common pleas, communitycourts, the Philadelphia municipal court, the traffic courtof Philadelphia, district justices, and such other courts asmay be provided by law (Pa. Const. Art. 5 § 1). The Judi-cial Code includes the same courts with the addition of thePittsburgh magistrates court (42 Pa. C. S. A. § 301). Ex-cluding district justices, the court system of Pennsylvaniaconsists-of three levels. The Supreme Court is the highestjudicial authority in the commonwealth, followed by theintermediate appellate superior and commonwealth courts

and the sixty-seven (67) county courts of common pleas.The courts of common pleas may be divided intodivisions, such as domestic relations. There are also nu-merous district justices in each county. Pursuant to thePennsylvania Constitution, the general assembly may cre-ate additional courts or divisions of existing courts, asneeded, or abolish any statutory court or division thereof(Pa. Const. Art. 5 § 8).

The Supreme Court of Pennsylvania is the highestcourt in the Commonwealth of Pennsylvania and pos-sesses the supreme judicial power of the commonwealth.The court consists of seven justices, one of whom is thechief justice (Pa. Const. Art. 5 § 2). The superior court

ordinances are those passed by political subdivisions, suchas cities, counties, boroughs, and townships. Ordinancescan be found in the offices of these subdivisions or in thecounty law library.

Once it has been determined that your client has acause of action or a defense to an action brought againsthim, it is necessary to know the procedural law regardingthat particular type of action. This is important, becausethe failure to properly file a pleading or missing a time

limitation could lead to excess time and expense on thepart of your client, or even the loss of a claim or defenseon your client’s behalf. The procedural law is found in thePennsylvania Judicial Code, Pennsylvania Rules of CivilProcedure, Pennsylvania Rules of Appellate Procedure,other rules promulgated by the Pennsylvania SupremeCourt, local rules of court, and rules governing proce-dures before political subdivisions and administrativeagencies.


currently consists of fifteen (15) judges (42 Pa. C. S. A. §541) and a president judge (Pa. Const. Art. 5 § 3). Thecommonwealth court consists of a president judge (Pa.Const. Art. 5 § 4) and nine (9) judges (42 Pa. C. S. A. §561).


The courts of common pleas shall have one presidentjudge and as many other judges as may be provided by law(Pa. Const. Art. 5 § 5). Some courts of common pleas haveseparate probate and orphan’s courts and criminal divi-sions as well as a family court division.

JURISDICTION

There are two types of jurisdiction: subject matter andpersonal. A court may determine a legal action if it hasboth subject matter jurisdiction and jurisdiction of theperson. Subject matter jurisdiction refers to the compe-tency of a particular court to determine certain classes ofcases. The jurisdiction may be limited by the amount incontroversy, as in the cases of district justices. Districtjustices may not hear civil cases with an amount incontroversy greater than $8,000.00 (42 Pa. C. S. A.§ 1515(a)(3)). Jurisdiction of the person is usually ac-quired by proper service of the court’s process consistentwith its authority.

A court’s subject matter jurisdiction is determined bythe Pennsylvania State Constitution and the PennsylvaniaJudicial Code. The Supreme Court’s jurisdiction is pro-vided by law (Pa. Const. Art. 5 § 2). It has original, but notexclusive, jurisdiction of all cases of habeas corpus,mandamus, or prohibition to courts of inferior jurisdiction,and has quo warranto as to any officer of statewide juris-diction (42 Pa. C. S. A. § 721). The Supreme Court has ex-clusive jurisdiction of appeals from final orders of thecourts of common pleas in the following cases (42 Pa. C.S. A. § 722):

1. Matters prescribed by general rule;

2. The right to public office;

3. Matters where the qualifications, tenure, right toserve, or the manner of service of any member ofthe judiciary is drawn in question;

4. Automatic review of cases where the death sen-tence has been given;

5. Supersession of a district attorney by an attorneygeneral or by a court or where the matter relates tothe convening, supervision, administration, opera-tion or discharge of an investigating grand jury ormatters otherwise directly effecting such a grandjury or any investigation conducted by it;

6. Matters where the right or power of the Common-wealth of Pennsylvania or any subdivision tocreate or issue indebtedness is drawn in directquestion;

7. Matters where the court of common pleas has heldinvalid, as repugnant to the Constitution, treatiesor laws of the United States or to the PennsylvaniaConstitution, any treat or law of the United States,or any provision of the Pennsylvania Constitution,

or of any Pennsylvania statute, or any provision ofany home rule charter;

8. Matters where the right to practice law is drawn indirect question.

The Supreme Court has exclusive jurisdiction of ap-peals from final orders of the commonwealth court enteredin any matter that was originally commenced in the com-monwealth court that does not constitute an appeal to thecommonwealth court from another court and appeals ofdecisions of the Board of Finance and Revenue (42 Pa. C.S. A. § 723(a) and (b)). Further, the Supreme Court has ju-risdiction over appeals of final orders from the LegislativeReapportionment Commission, Court of Judicial Disci-pline, the agency vested with the power to determinewhether those members of the minor judiciary required todo so have completed a course of training and passedexaminations preparing them for the duties of their respec-tive offices, the agency vested with the power to admit orrecommend the admission of persons to the bar and thepractice of law, and the agency vested with the power todiscipline or recommend the discipline of attorneys at law(42 Pa. C. S. A. § 725). The Supreme Court may review,upon Petition for Allowance of Appeal and the consent oftwo justices of the Supreme Court, final orders of thesuperior and commonwealth courts not otherwise subjectto appeal (42 Pa. C. S. A. § 724(a)). Finally, the SupremeCourt may, on its own motion or upon petition of a party,in any matter pending in any court involving an issue ofimmediate public importance, assume plenary jurisdictionof such matter at any stage thereof, and enter a final order,or otherwise cause right and justice to be done (42 Pa. C.S. A. § 726).

The superior court has no original jurisdiction, exceptin cases of mandamus and prohibition, to courts of inferiorjurisdiction, where such relief is ancillary to matterswithin its appellate jurisdiction, except to issue writs ofhabeas corpus (42 Pa. C. S. A. § 741). The superior courthas exclusive jurisdiction of all appeals from final ordersof the courts of common pleas, except those appealswithin the exclusive jurisdiction of the Supreme Court orthe commonwealth court (42 Pa. C. S. A. § 742).

The commonwealth court has original jurisdiction ofall civil actions or proceedings against the government ofthe Commonwealth of Pennsylvania (including any officerthereof, acting in his or her official capacity) except actionsor proceedings in the nature of applications for a writ ofhabeas corpus or postconviction relief not ancillary to


proceedings within the appellate jurisdiction of the com-monwealth court, eminent domain proceedings, andactions on claims in which immunity has been waived pur-suant to specified statutory provisions (42 Pa. C. S. A. §761(a)(l)); actions by the commonwealth government, in-cluding any officer thereof acting in his or her official ca-pacity, except eminent domain proceedings (42 Pa. C. S. A.§ 761(a)(2)); actions arising under certain provisions of theInsurance Department Act (42 Pa. C. S. A. § 761(a)(3)); orOriginal jurisdiction of which is vested by subsequent leg-islation (42 Pa. C. S. A. § 761(a)(4)). Additionally, thecommonwealth court has exclusive original jurisdictionover certain contested nominations and elections and allmatters arising in the Office of the Secretary of the Com-monwealth relating to statewide office, except nominationand election contests within the jurisdiction of another tri-bunal, such as federal elections (42 Pa. C. S. A. § 764).

The commonwealth court has exclusive appellatejurisdiction over appeals from final orders of the courts ofcommon pleas in the following cases: commonwealth civilcases (42 Pa. C. S. A. § 762(a)(1)); governmental andcommonwealth regulatory criminal cases (42 Pa. C. S. A.§ 762(a)(2)); secondary review of certain appeals fromcommonwealth agencies (42 Pa. C. S. A. § 762(a)(3));local government civil and criminal matters (42 Pa. C. S.A. § 762(a)(4)); certain private corporation matters (42 Pa.C. S. A. § 762(a)(5)); eminent domain (42 Pa. C. S. A. §762(a)(6)); or immunity waiver matters (42 Pa. C. S. A. §762(a)(7)).

In addition, the commonwealth court has exclusivejurisdiction over appeals and final orders from common-wealth agencies, including the Board of Claims, the Envi-ronmental Hearing Board, the Pennsylvania Public UtilityCommission, the Unemployment Compensation Board ofReview, and other agencies having statewide jurisdiction(42 Pa. C. S. A.§ 763(a)).

Except as otherwise provided by law, the courts ofcommon pleas have unlimited original jurisdiction of allcases (Pa. Const. Art. 5 § 5(b); 42 Pa. C. S. A. § 931(b)).The courts of common pleas also have de novo appellatejurisdiction of cases initiated before district justices(42 Pa. C. S. A. § 932).

As a general rule, the courts of common pleas have ju-risdiction of appeals from final orders of governmentagencies in the following cases: appeals from determina-tions of the Department of Health in connection with anymatters concerning birth records; determinations of theDepartment of Transportation appealable under specifiedstatutory provisions; determinations of the Workmen’sCompensation Appeal Board appealable under thePennsylvania Occupational Disease Act; determinationsof the Pennsylvania Liquor Control Board appealableunder the Liquor Code; determinations of the Departmentof Revenue in connection with the administration of theestate of a decedent; determinations of the PennsylvaniaLabor Relations Board under the Public Employee Rela-tions Act, except where an employee of the common-wealth is involved; certain appeals from governmentagencies other than commonwealth agencies; and appealsvested by subsequent legislation (42 Pa. C. S. A. § 933(a)).

District justices have jurisdiction over the followingactions: summary offenses, except those arising out of thesame episode or transaction involving a delinquency peti-tion under Chapter 63 (42 Pa. C. S. A. § 1515(a)(1)); mat-ters arising under the Landlord and Tenant Act of 1951 thatare within the territorial jurisdiction of the district justice(42 Pa. C. S. A. § 1515(a)(2)); all civil claims where thesum demanded does not exceed $8,000.00, except thoseinvolving title to real property (42 Pa. C. S.A. § 1515(a)(3));arraignments and bail hearings except in cases relatingto murder and voluntary manslaughter (42 Pa. C. S. A§ 1515(a)(4)); offenses relating to driving under the influ-ence of alcohol or controlled substance, provided it is thedefendant’s first offense, there is no personal injury to an-other, the defendant pleads guilty and is not a juvenile, andthat property damage does not exceed $500.00 (42 Pa. C.S. A. § 1515(a)(5)); offenses under Title 18 (crimes and of-fenses), Title 30 (fish) and Title 35 (health and safety) thatare classified as misdemeanors of the third degree (42 Pa.C. S. A. § 1515(a)(6)); and matters of jurisdiction whichare vested in the district justices by statute (42 Pa. C. S. A.§ 1515(a)(7)).

CHAPTER 2 The Courts and Jurisdiction 5

VENUE

Venue differs from jurisdiction, in that it refers to whichcourt the action should be brought, once jurisdiction of thecourt has been established. Most commonly, this wouldentail that the action is brought in the appropriate countycourt of common pleas. Venue is governed by Pa. R. Civ. P.1006. An action against an individual may be brought in acounty in which he or she may be served; in which thecause of action arose; where a transaction or occurrencetook place out of which the cause of action arose; or in anyother county authorized by law (Pa. R. Civ. P. 1006(a)).

A medical professional liability action may bebrought against a health care provider for a medical pro-fessional liability claim only in the county where the causeof action arose. (Pa. R. Civ. P. 1006 (a.1)).

An action brought against a political subdivision maybe brought only in the county in which the political subdi-vision is located (Pa. R. Civ. P. 2103(b)). An actionbrought against a partnership may be brought in and onlyin a county where the partnership regularly conducts busi-ness, in the county where the cause of action arose, or in a


county where a transaction or occurrence took place out ofwhich the cause of action arose. This would not apply toattachment, seizure, garnishment, sequestration or con-demnation of real or personal property, or an action for re-covery of the possession or determination of the title toreal or personal property (Pa. R. Civ. P. 2130(a) and (c)).An action against a liquidator may be brought in and onlyin a county where the liquidator is liquidating the partner-ship business or in which the partnership last regularlyconducted business, in the county where the cause of ac-tion arose, or in a county where a transaction or occur-rence took place out of which the cause of action arose(Pa. R. Civ. P. 2130(b)).

An action brought against an association may bebrought in and only in a county where the association reg-ularly conducts business or any association activity; in thecounty where the cause of action arose; or in a countywhere a transaction or occurrence took place out of whichthe cause of action arose (Pa. R. Civ. P. 2156(a)).

Except in actions involving an insurance policy, or byact of the Pennsylvania Assembly, a personal actionagainst a corporation or similar entity may be brought inand only in the county where its registered office or princi-pal place of business is located; a county where it regularlyconducts business; a county where the cause of actionarose; or a county where a transaction or occurrence tookplace out of which the cause of action arose (Pa. R. Civ. P.2179(a)). An action upon a policy of insurance against aninsurance company, association, or exchange, either incor-porated or organized in Pennsylvania or doing business inthe commonwealth, may be brought in and only in thecounty where its registered office or principal place ofbusiness is located; a county were it regularly conductsbusiness; a county where the cause of action arose; acounty where a transaction or occurrence took place out ofwhich the cause of action arose; in the county where theinsured property is located; or in the county where theplaintiff resides, in actions upon policies of life, accident,health, disability, and livestock insurance or fraternal ben-efit certificates (Pa. R. Civ. P. 2179(b)).

An action to enforce a joint or a joint and several lia-bility against two or more defendants, except actions inwhich the commonwealth is a defendant, may be broughtagainst all defendants in any county where venue is properagainst any of the defendants (Pa. R. C. P. 1006(c)(1)). Ifthe action to enforce a joint or joint and several liabilityagainst two or more defendants includes one or more med-ical professional liability claims, the action may bebrought in any county where venue is appropriate underPa. R. C. P. 1006(a.1). (Pa. R. C. P. 1006(c)(2)). If theplaintiff states more than one cause of action against thesame defendant, the action may be brought in any countyin which any one of the individual causes of action mayhave been brought (Pa. R. Civ. P. 1006(f)).

Improper venue shall be raised by preliminary objec-tion, and if not raised, the preliminary objection will bewaived (Pa. R. Civ. P. 1006(e)). However, even if thepreliminary objection is sustained the action will not bedismissed. It will be transferred to the appropriate court.The costs and fees for the transfer and removal of therecord must be paid by the plaintiff (Pa. R. Civ. P.1006(e)).

Upon petition by any party, for the convenience of theparties and witnesses, the court may transfer an action to amore appropriate court in another county where the actioncould originally have been brought (Pa. R. Civ. P.1006(d)(1)). If, following a petition and hearing thereon,the court finds that a fair and impartial hearing cannot beheld in that county, the court may order the action to betransferred. In such a case, the Pennsylvania SupremeCourt will designate the county to which the transfer willbe made (Pa. R. Civ. P. 1006(d)(2)).

It is the duty of the prothonotary of the court in whichthe action is pending, to forward to the prothonotary ofthe county to which the action is transferred certifiedcopies of the docket entries, process, pleadings, deposi-tions, and other papers filed in the action (Pa. R. Civ. P.1006(d)(3)).



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PART II Initiating Litigation

CHAPTER 3Preliminary Considerations

DETERMINING THE EXISTENCE OF A CAUSE OF ACTION

To determine an existence of a cause of action, it is neces-sary to obtain the facts from the client and use those factsto ascertain whether a statutory or common-law cause of

action exists. In order to maintain a cause of action, thefacts must fulfill all of the requirements of that cause ofaction.

TIME LIMITATIONS

The statute of limitations determines the time in which anaction must be initiated. In Pennsylvania, the time limitsare set forth in the Pennsylvania Judicial Code at 42 Pa. C.S. A. §§ 5521–5538. The purpose of the statute of limita-tions is to ensure that a plaintiff, who has been harmed insome manner, brings that action within a certain time. Aplaintiff who does not initiate the action within the time al-lotted will lose the right to bring the action against a de-fendant. It is extremely important when taking down theinformation from a client, to confirm the date that the in-jury or harm occurred or became known to the client. Thiswill govern the speed and intensity needed to initiate theaction and to prepare for its filing, as it is not unusual for aclient to come to an attorney just before the statute of lim-itations runs out.

Under the Pennsylvania Judicial Code, the time inwhich to bring an action ranges from a minimum of six (6)months to no limit. The two most common actions with astatute of limitations are personal injury and breach ofcontract, which have a time limitation of two (2) years (42Pa. C. S. A. § 5524) and four (4) years (42 Pa. C. S. A. §5525), respectively.

Within six (6) months of a cause of action against agovernmental entity or officer, a notice to the same, of pos-sible legal action against the entity or officer, must be sentto the officer or entity (42 Pa. C. S. A. § 5522(a)(1)). Anaction against a governmental officer must be initiated

within six (6) months unless the cause of action is subjectto another limitation (42 Pa. C. S. A. § 5522(b)(1)). Thereis a oneyear statute of limitations for actions of libel, slan-der, invasions of privacy and an action on a bond (42 Pa. C.S. A. § 5523). A five-year limit applies to the revival ofjudgment lien or for specific performance of the sale ofreal property (42 Pa. C. S. A. § 5526). A six-year limita-tion exists for actions not otherwise mentioned (42 Pa. C.S. A. § 5527). Actions for escheatment and for paymentinto the State Treasury without escheat must be com-menced within fifteen years (42 Pa. C. S. A. § 5528). Exe-cution against personal property must be issued withintwenty years after the entry of the judgment (42 Pa. C. S. A.5529) and actions for the possession of real property mustbe commenced within twenty-one years (42 Pa. C. S. A.§ 5530).

Unless tolled, the statute of limitations beginsto run from the date when the cause of action arises(Pennsylvania Turnpike Com. v. Atlantic Richfield Co., 31Cmwlth Ct. 212, 375 A.2d 890 (1977)). The statute of lim-itations is not stayed, as a rule, simply because the plaintiffdoes not know of the cause of action. However, under thediscovery rule exception, the statute of limitations is tolledwhere the injured party is unable, despite the exercise ofdiligence, to determine the injury or its cause (Pocono In-ternational Raceway. Inc. v. Pocono Produce, Inc., 503(Pa. 80, 468 A.2d 468 (1983)).


The statute of limitations for a breach of contract be-gins to run at the time of the breach (Tenny v. Dauphin De-posit Bank & Trust Co., 32 Cumberland L. J. 239 (1981)).Where a party has acknowledged an indebtedness forwhich a promise to pay was made or can be implied, thestatute of limitations may begin to run from that time, andnot when the party failed to make payment on the debt.The acknowledgment of the debt as an existing obligation must be clear, distinct, and unequivocal (Goodis v.Meneses, 33 D. & C. 2d 671 (1964)). The four-year statuteof limitations may be tolled by the debtors’ partial pay-ment of a prior debt (Natural Resources Lease AcquisitionProgram v. Tisi, 21 Crawford Co. Leg. J, 261 (1990)).

In personal injury actions, the statute of limitationsruns from the date of the injury (Salvador v. Atlantic SteelBoiler Co., 256 Super. Ct. 330, 389 A.2d 1148 (1978)). Anaction for injuries arising out of an automobile accident,probably the most common personal injury action, com-mences upon the date of the accident (Donnelly v.DeBourke, 280 (Pa. Super. 486, 421 A.2d 826 (1980)).However, when, with the exercise of due diligence, theplaintiff could not have ascertained the defendant’s liabil-ity, the statute of limitations does not begin to run until thedate that the ascertainment of the liability should havebeen discovered (Cathcart v. Keene Industrial Insulation,

324 (Pa. Super. 123, 471 A.2d 493 (1984)). Thus, whereknowledge is impossible because of the laws of nature, ac-tual fraud, or concealment of the wrongdoer, where it isimpractical to impose on one who has been wronged theduty to export, and discover the undetectable act of thewrongdoer, the statute should begin to run from the timediscovery of the injury is made (Med-Mar, Inc. v.Dilworth. 214 (Pa. Super. 402, 257 A.2d 910 (1969)).

Additional factors may toll the statute of limitations,including absence from the Commonwealth or fraudulentconcealment of the person against whom the action isbrought (42 Pa. C. S. A. § 5532); minority, at the time thecause of action accrues, of the person who wishes to bringthe action (42 Pa. C. S. A. § 5533(b)); an intervening war,where the cause of action occurred in a country withwhich the United States then or subsequently entered intowar (42 Pa. C. S. A. § 5534); or termination or stay of thematter (42 Pa. C. S. A. § 5535).

Once the appropriate time limitation has been ascer-tained in the client interview, one must be sure to com-mence the action within the time allowed. ThePennsylvania Rules of Civil Procedure state that an actionmay be commenced by filing with the prothonotary apraecipe for a writ of summons or a complaint. (Pa. R.Civ. P. 1007).

8 PART II Initiating Litigation

ETHICAL CONSIDERATIONS IN ACCEPTING A CASE

The Rules of Professional Conduct (Pa. R. P. C.) as pro-mulgated by the Supreme Court of Pennsylvania governan attorney’s conduct in a case. Recognizing that lawyersgenerally employ assistants in their practice, includingparalegals, and that those individuals frequently act on thelawyer’s behalf, a lawyer is required to provide such non-lawyer assistants with appropriate instruction and supervi-sion concerning the ethical aspects of their employment,particularly in the area of confidentiality (Pa. R. P. C. 5.3).The commentary to Rule 5.3 specifically requires that “alawyer having direct supervisory authority over the non-lawyer should make reasonable efforts to ensure that theperson’s conduct is compatible with the professionalobligations of the lawyer.” A lawyer should only accept acase in which he or she can provide competent representa-tion. Competent representation requires the legal knowl-edge, skill, thoroughness, and preparation necessary forthe representation (Pa. R. P. C. 1.1).

A lawyer shall not bring or defend a proceeding, or as-sert or controvert an issue therein, unless there is a basisfor doing so that is not frivolous; however, an attorney mayadvance a good faith argument for an extension, modifica-tion, or reversal of existing law (Pa. R. P. C. 3.1).

A lawyer shall not enter into an agreement for, charge,or collect an illegal or clearly excessive fee. The factors tobe considered in determining the propriety of a fee include

the following (Pa. R. P. C. 1.5(a)):

1. Whether the fee is fixed or contingent;

2. The time and labor required, the novelty and diffi-culty of the questions involved, and the skill re-quired to perform the legal service properly;

3. The likelihood, if apparent to the client, that theacceptance of the particular employment will pre-clude other employment by the lawyer;

4. The fee customarily charged in the locality forsimilar legal services;

5. The amount involved and the results obtained;

6. The time limitations imposed by the client or bythe circumstances;

7. The nature and length of the professional relation-ship with the client; and

8. The experience, reputation, and ability of thelawyer or lawyers performing the services.

When the lawyer has not regularly represented theclient, the basis or rate of the fee shall be communicated tothe client in writing before or within a reasonable timeafter commencing the representation (Pa. R. P. C. 1.5(b)).

A fee may be contingent on the outcome of the matterfor which the service is rendered, except where prohibitedby the Rules of Professional Conduct or by law. A


contingent fee agreement shall be in writing and shallstate the method by which the fee is to be determined, in-cluding the percentage or percentages that accrue to thelawyer in the event of settlement, trial, appeal, litigation,and other expenses to be deducted from the recovery.Whether such expenses are to be deducted before or afterthe contingent fee matter, the lawyer shall provide theclient with a written statement stating the outcome of thematter, and, if there was a recovery, showing the remit-tance to the client and the method of its determination (Pa.R. P. C. 1.5(c)).

A lawyer shall not enter into an arrangement for,charge or collect any fee in a domestic relations matter, thepayment or amount of which is contingent upon the secur-ing of a divorce or upon the payment of alimony or support(Pa. R. P. C. 1.5(d)).

A lawyer shall not represent a client if the representa-tion of that client will be directly adverse to another client,unless the lawyer reasonably believes the representationwill not adversely affect the relationship with the otherclient and each client consents after consultation (Pa. R. P.C. 1.7(a)). A lawyer shall not represent a client if the rep-resentation of that client may be materially limited by thelawyer’s responsibilities to another client or to a third per-son, or by the lawyer’s own interests, unless the lawyerreasonably believes that the representation will not be ad-versely affected and the client consents after full disclo-sure and consultation (Pa. R. P. C. 1.7(b)).

A lawyer who has formerly represented a client in amatter shall not thereafter represent another person in thesame or a substantially related matter in which that per-son’s interests are materially adverse to the interests ofthe former client, unless the former client consents aftera full disclosure of the circumstances and consultation.Further, said attorney shall not use information relatingto the representation to the disadvantage of the former,except as the Rules of Professional Conduct relating toconfidentiality would permit with respect to a client orwhen the information has become generally known (Pa.R. P. C. 1.9).

As a general rule, a lawyer shall not represent a privateclient in connection with a matter in which the lawyer par-ticipated personally and substantially as a public officer oremployee, unless the appropriate government agency con-sents after consultation (Pa. R. P. C. 1.11(a)) nor representanyone in connection with a matter in which the lawyerparticipated personally and substantially as a judge orother adjudicative officer, arbitrator, or law clerk to such aperson (Pa. R. P. C. 1.12(a)).

A lawyer related to another lawyer as parent, child,sibling, or spouse shall not represent a client in representa-tion directly adverse to a person who the lawyer knows isrepresented by the other lawyer, except upon consent bythe client after consultation regarding the relationship (Pa.R. P. C. 1.8(i)).

CHAPTER 3 Preliminary Considerations 9

ETHICAL CONSIDERATIONS AFTER ACCEPTING A CASE

A lawyer shall abide by a client’s decisions concerning theobjectives of representation and shall consult with theclient as to the means by which they are to be pursued. Alawyer shall abide by a client’s decision whether to acceptan offer of settlement. A lawyer may limit the objectives ofthe representation, if the client consents after consultationand a full disclosure of the circumstances. A lawyer shallnot counsel a client to engage or assist a client, in conductthat the lawyer knows is criminal or fraudulent; however, alawyer may discuss the legal consequences of any pro-posed course of conduct with a client and may counsel orassist a client to make a good faith effort to determine thevalidity, scope, meaning, or application of the law (Pa. R.P. C. 1.2).

The lawyer shall act with reasonable diligence andpromptness in representing the client (Pa. R. P. C. 1.3) andmake reasonable efforts to expedite litigation consistentwith the interest of the client (Pa. R. P. C. 3.2). The lawyershould exercise independent professional judgment andrender candid advice, and in rendering such advice, mayrefer, not only to the law, but to other considerations, suchas moral, economic, social, and political factors that maybe relevant to the client’s situation (Pa. R. P. C. 2.1).

A lawyer shall keep a client informed about the statusof a matter, promptly comply with reasonable requests forinformation, and explain a matter to the extent necessaryto permit the client to make informed decisions regardingthe representation (Pa. R. P. C. 1.4). Outside of fees, oneof the most common causes of friction between an attor-ney and a client is the lack of communication with theclient. It is important for the attorney to send copies of allcorrespondence and pleadings to the client to keep him upto date and to help keep friction to a minimum.

As a rule, a lawyer shall not reveal information relat-ing to representation of a client, unless the client consentsafter consultation, except where disclosures are implicitly authorized to carry out the representation; to act candidlytoward the court pursuant to Pa. Disciplinary Rule 3.3; toprevent the client from committing a criminal act likely toresult in death or substantial bodily harm or injury to fi-nancial interests or property of another; to prevent or rec-tify the consequences of a client’s criminal or fraudulentact in the commission of which the lawyer’s services arebeing or had been used; and in controversies between thelawyer and client (Pa. R. P. C. 1.6).


A lawyer shall not enter into a business transactionwith a client or knowingly acquire an ownership, posses-sory, security, or other pecuniary interest adverse to aclient unless the transactions and terms on which thelawyer acquires the interest are fully disclosed and trans-mitted in writing to the client in a manner which can bereasonably understood by the client; the client is advisedand is given a reasonable opportunity to seek the advice ofindependent counsel in the transaction and the client con-sents in writing thereto (Pa. R. P. C. 1.8(a)). A lawyer shallnot use information relating to representation of a client tothe disadvantage of the client unless the client consents after consultation (Pa. R. P. C. 1.8(b)).

Prior to the conclusion of representation of a client, alawyer shall not make or negotiate an agreement givingthe lawyer literary or media rights to a portrayal or accountbased in substantial part on information relating to the rep-resentation (Pa. R. P. C. 1.8(d)). A lawyer shall not providefinancial assistance to a client in connection with pendingor contemplated litigation, except that a lawyer may ad-vance court costs and expenses of litigation, the repaymentof which may be contingent on the outcome of the matter;and a lawyer representing an indigent client may pay courtcosts and expenses of litigation on behalf of the client (Pa. R. P. C. 1.8(e)).

A lawyer shall not accept compensation for represent-ing a client from a person other than the client, unless: the client consents after full disclosure of the circumstancesand consultation; there is no interference with the lawyer’sindependent professional judgment, or with the client-lawyer relationship; and information relating to represen-tation of the client is protected (Pa. R. P. C. 1.8(f )).

A lawyer who represents two or more clients shall notparticipate in making an aggregate settlement of theclaims of or against the clients, or in a criminal case an ag-gregated agreement as to guilty or nolo contendre pleas,unless each client consents after consultation, includingdisclosure of the existence and nature of all the claims orpleas involved, and of the participation of each person inthe settlement (Pa. R. P. C. 1.8(g)). A lawyer shall notmake an agreement prospectively limiting the lawyer’sability to a client for malpractice, unless permitted by lawand the client is independently represented in making theagreement. Nor shall a lawyer settle a claim for such lia-bility with an unrepresented client or former client, with-out first advising that person in writing that independentrepresentation is appropriate in connection therewith (Pa.R. P. C. 1.8(h)).

A lawyer shall not acquire a proprietary interest in acause of action that the lawyer is conducting for a client,except that the lawyer may acquire a lien granted by law tosecure the lawyer’s fee or expenses and a contract with aclient for a reasonable contingent fee in a civil case (Pa. R.P. C. 1.8( j)).

When a client’s ability to make adequately considereddecisions in connection with the representation is

impaired, whether because of minority, mental disability,or for some other reason, the lawyer should, as far as rea-sonably possible, maintain a normal client-lawyer relation-ship with the client (Pa. R. P. C. 1.14(a)). A lawyer mayseek the appointment of a guardian or take other protectiveaction with respect to a client, only when the lawyer rea-sonably believes that the client cannot adequately act in theclient’s own interest (Pa. R. P. C. 1.14(b)).

A lawyer shall hold the property of clients or thirdpersons that is in a lawyer’s possession in connection witha representation separate from the lawyer’s own property.Funds shall be kept in a separate account maintained in thestate where the lawyer’s office is situated, or elsewherewith the consent of the client or third person. Other prop-erty shall be identified as such and appropriately safe-guarded. Complete records of such account funds andother property shall be preserved for five (5) years aftertermination of the representation. Upon receiving funds ofother property in which a client or third person has an in-terest, a lawyer shall promptly notify the client or thirdperson. Except as stated in this rule, or otherwise permit-ted by law or by agreement with the client, a lawyer shallpromptly deliver to the client or third person any funds orother property that the client or third person is entitled toreceive and, upon request by the client or third person,shall promptly render a full accounting regarding suchproperty. When a lawyer has possession of property inwhich both the lawyer and another person claim interest,the property shall be kept separate by the lawyer, untilthere is an accounting and severance of their interests. If adispute arises concerning their respective interests, theportion in dispute shall be kept separate by the lawyer untilthe dispute is resolved (Pa. R. P. C. 3.7(a)).

A lawyer shall not act as an advocate at a trial in whichthe lawyer is likely to be a necessary witness, except wherethe testimony relates to an uncontested issue, or the testi-mony relates to the nature and value of legal services ren-dered in the case or disqualification of the lawyer wouldwork a substantial hardship on the client (Pa. R. P. C.1.15). Where an attorney acting as trial counsel is called asa witness on behalf of a party whom he or she represents,the court may determine whether the attorney may con-tinue to act as trial counsel during the remainder of thetrial.

Except in cases where a tribunal orders a lawyer tocontinue representation despite good cause to terminaterepresentation, a lawyer shall not represent a client, orwhere representation has commenced, shall withdrawfrom the representation of a client if the’ representationwill result in violation of the Rules of Professional Con-duct or other law; the lawyer’s physical or mental condi-tion materially impairs the lawyer’s ability to represent theclient; or the lawyer is discharged. Except in cases wherea tribunal orders a lawyer to continue representation de-spite good cause to terminate representation, a lawyer maywithdraw from representing a client if: withdrawal can be



accomplished without a materially adverse effect on theinterests of the client, or if the client persists in a course ofaction involving the lawyer’s services that the lawyer rea-sonably believes is criminal or fraudulent; the client hasused the lawyer’s services to perpetrate a crime of fraud;the client insists upon pursuing an objective that thelawyer considers repugnant or imprudent; the client failssubstantially to fulfill an obligation to the lawyer regard-ing the lawyer’s services and has been given reasonablewarning that the lawyer will withdraw unless the obliga-tion is fulfilled; the representation will result in an unrea-sonable financial burden on the lawyer, or has been

rendered unreasonably difficult by the client; or othergood cause for terminating the representation (Pa. R. P. C.1.16 (a)–(c)).

Upon termination of representation, a lawyer shalltake steps to the extent reasonably practicable to protect aclient’s interests, such as giving reasonable notice to theclient, allowing time for employment of other counsel,surrendering papers and property to which the client is en-titled, and refunding any advance payment of fee that hasnot been earned, The lawyer may retain papers relating tothe client to the extent permitted by law (Pa. R. P. C.1.16(d)).

CHAPTER 4 Interview and Investigation Prior to Litigation 11

CHAPTER 4Interview and Investigation Prior to Litigation

LOCATING FACT WITNESSES OR ELUSIVE DEFENDANTS

Corporations are required to list their registered office intheir articles of incorporation (15 Pa. C. S. A. §1306(a)(2)) which must be filed with the Pennsylvania De-partment of State (15 Pa. C. S. A. § 1308(a)). The corpo-ration must maintain the registered office (15 Pa. C. S. A.§ 1507(a)) and notify the department of state of anychanges in that office (15 Pa. C. S. A. § 1507(b)). A cor-poration can use an agent (15 Pa. C. S. A. § 108(a)) or acommercial registered office (15 Pa. C. S. A. § 109(a)).

As a general rule, any individual, corporation, associ-ation, partnership, joint-stock company, business trust,

syndicate, joint adventureship, or other combination ofgroups of persons conducting any business in the com-monwealth under or through any assumed or fictitiousname, style, or designation other than the proper name ofthe entity using such name, shall register its fictitiousname with the department of state and shall amend theregistration when necessary (54 Pa. C. S. A. § 303). Aspart of the registration, it is required to provide the addressof the entity and the names and addresses of those “per-sons” comprising the entity (54 Pa. C. S. A. § 311).

TECHNIQUES FOR INTERVIEWING FACT WITNESSES

Prior to tape recording, the interviewer should obtain writ-ten permission of the person being interviewed. The inter-viewer should also state on the tape, prior to beginning, thedate and time of the interview, along with the name of the person being interviewed. His or her permission should also be noted on the tape. If it is necessary to have a sec-

ond tape, the same procedure should be used. At the con-clusion of the interview, it should be clearly stated that theinterview is over. In Pennsylvania, it is unlawful to recorda conversation with another person for the purpose of sell-ing the recording or using it for profit without that person’sconsent (18 Pa. C. S. A. § 4116).

EVIDENCE

The Pennsylvania Rules of Evidence, adopted by theSupreme Court of Pennsylvania in 1998, apply to all tri-als, hearings and proceedings which began on or afterOctober 1, 1998. Although the Pennsylvania rules closely

follow the format of the Federal Rules, the guiding prin-ciple in creating state specific rules of evidence was topreserve the substance of Pennsylvania’s common law ofevidence.


With respect to relevancy, Pennsylvania Rule of Evi-dence 401 is identical to the federal rules and codifies ex-isting Pennsylvania law as stated by the Supreme Court inCommonwealth v. Scott, 480 Pa. 50, 54, 389 A.2d 79, 82(1978): “Evidence which tends to establish some fact ma-terial to the case, or which tends to make a fact at issuemore or less probable, is relevant.” Whether evidence hasa tendency to make a given fact more or less probable isdetermined by the court in light of reason, experience, sci-entific principles and additional testimony offered duringthe case.

Even when relevant, however, evidence can be ex-cluded if its probative value is outweighed by the danger ofunfair prejudice, confusion of the issues, or misleading thejury, or by considerations of undue delay, waste of time orneedless presentation of cumulative evidence. (Pa. R. E.403). Character evidence is limited in its admissibility byPa.R.E. 404 which, with certain limited exceptions, pro-vides that character evidence cannot be used to prove con-duct. Pennsylvania does not permit proof of character byopinion evidence (Pa. R. E. 405). However, evidence of thehabit of a person or the routine practice of an organization,whether corroborated or not and regardless of the presenceof eyewitnesses, is relevant to prove that the conduct ofthe person or organization on a particular occasion was inconformity with the habit or routine practice (Pa. R. E. 406).

Facts that are generally considered inadmissible in-clude the following:

1. Evidence of subsequent remedial measures of-fered to prove fault or negligence (Pa. R. E. 407).

2. Evidence of compromise or offers to compromisea lawsuit (Pa. R. E. 408).

3. Evidence of furnishing or offering or promising topay medical, hospital or similar expenses occa-sioned by an injury (Pa. R. E. 409).

4. Subsequently withdrawn guilty pleas, a plea ofnolo contendere or statements made during pleasdiscussions, except in vehicle matters (Pa. R. E.410).

5. Evidence of liability insurance (Pa. R. E. 411).

6. Evidence of the beliefs or opinions of a witness onmatters of religion offered for the purpose ofdemonstrating impairment or enhancement ofcredibility (P. R. E. 610).

The requirement of authentication or identification asa condition precedent to admissibility is satisfied, underthe Pennsylvania Rules of Evidence, by evidence suffi-cient to support a finding that the matter in question iswhat its proponent claims (Pa. R. E. 901). Extrinsic evi-dence of authenticity, as a condition precedent to admissi-bility, is not required with respect to:

1. Domestic public documents under seal (Pa. R. E.902(1)).

2. Certified domestic public documents (Pa. R. E.901(2)).

3. Foreign public documents (Pa. R. E. 902(3)).

4. Certified copies of public records (Pa. R. E.902(4)).

5. Official publications such as books, pamphlets orother publications issued by a public authority (Pa. R. E. 902(5)).

6. Newspapers and periodicals (Pa. R. E. 902(6)).

7. Trade inscriptions and other tags or labels affixedin the course of business and indicating ownership(Pa. R. E. 902(7)).

8. Documents accompanied by a certificate of ac-knowledgement executed in a manner provided bylaw (Pa. R. E. 902(8)).

9. Commercial paper and related documents (Pa. R.E. 902(9)).

10. Any signature, document or other matter declaredby statute to be presumptively or prima facie gen-uine (Pa. R. E. 902(10)).

11. Certified domestic records of regularly conductedactivity (Pa. R. E. 902(11)).

12. Certified foreign records of regularly conductedactivity (Pa. R. E. 902(12)).

To prove the content of a writing, recording, or photo-graph, the original is required (Pa. R. E. 1002) except that aduplicate will be admissible to the same extent as an orig-inal unless a genuine question is raised as to the authentic-ity of the original or circumstances make the admission ofthe duplicate in lieu of the original unfair (Pa. R. E. 1003).Furthermore, the original is not required, and other evi-dence of the contents of a writing, recording or photo-graph is admissible if the originals are lost or destroyed,other than by the proponent acting in bad faith, the origi-nal cannot be obtained by any judicial process or proce-dure, the opponent of the offering, who has possession,was put on notice of intention to use, but fails to present itat the hearing, or the evidence is not closely related to acontrolling issue (Pa. R. E. 1004). The Pennsylvania Rulesof Evidence specifically define “writings,” “recordings,”“photographs,” “original” and “duplicate,” incorporatinginto those definitions modern technology and its impactupon originality (Pa. R. E. 1001).

The federal rules of evidence list 33 exceptions to thehearsay rule. Pennsylvania Rules of Evidence follow thefederal numbering system as far as practicable, but recog-nize fewer exceptions, and arrange them more logically.The Pennsylvania hearsay rules divide exceptions into thegeneral categories of hearsay exceptions where the declar-ant’s availability is immaterial (Pa. R. E. 803), exceptionswhere the declarant is unavailable (Pa. R. E. 804), andhearsay within hearsay (Pa. R. E. 805).



CHAPTER 5 Responding to the Initial Pleadings 13

EXPERT WITNESSES

Pennsylvania Rule of Evidence 702 allows an individualqualified as an expert by knowledge, skill, experience,training or education to testify as to his opinion if scien-tific, technical or other specialized knowledge beyond thatpossessed by a layperson will assist the trier of fact inunderstanding evidence or determining a fact in issue. Pa. R. E. 702 does not change the Pennsylvania rule for

qualifying a witness to testify as an expert. In Miller v.Brass Rail Tavern, Inc., 541 Pa. 474, 480–81, 664 A.2d525, 528 (1995), the Supreme Court held that the test to beapplied when qualifying an individual as an expert witnessis whether he has any reasonable pretension to specializedknowledge on the subject being investigated.

CHAPTER 5Responding to the Initial Pleadings

INITIAL PLEADINGS

Under the Pennsylvania Rules of Civil Procedure an actionis commenced by filing with the prothonotary a praecipefor a writ of summons or a complaint (Pa. R. Civ. P. 1007).The rules recognize a number of pleadings that may befiled during and in response to an action. These pleadingsinclude a complaint, an answer thereto, a reply if the an-swer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, apreliminary objection, and an answer thereto (Pa. R. Civ. P.1017(a)).

Every pleading shall contain a caption setting forth thename of the court, the number of the action and the name ofthe pleading. In pleadings other than the complaint, it isproper to include only the name of the first party on eachside in the complaint with an appropriate indication ofother parties (i.e., “et al.”) (Pa. R. Civ. P. 1018).

Every pleading shall be divided into paragraphs num-bered consecutively and each paragraph shall contain, asfar as practical, only one material allegation (Pa. R. Civ. P.1022). Every pleading of party represented by an attorneyshall be signed by at least one attorney of record in his orher individual name and, if not represented, the pleadingshall be signed by the party (Pa. R. Civ. P. 1023.1(b)). Apleading that contains averments of facts not appearing ofrecord in the action or containing a denial of fact shallstate that the averment or denial is true upon the signer’spersonal knowledge or information and belief (Pa. R. Civ.P. 1024(a)). In addition, every pleading shall be endorsedwith the name of the attorney, or if a party is not repre-sented, it shall be endorsed with the name of the party andan address within the commonwealth (Pa. R. Civ. P. 1025).

Pennsylvania Rule of Civil Procedure 1019 states therequired contents of pleadings:

a. The material facts on which a cause of action ordefense is based shall be stated in a concise andsummary form.

b. Averments of fraud or mistake shall be averredwith particularity. Malice, intent, knowledge, andother conditions of mind may be averred generally.

c. In pleading the performance or occurrence of con-ditions precedent, it is sufficient to aver generallythat all conditions precedent have been performedor have occurred. A denial of such performance oroccurrence shall be made specifically and withparticularity.

d. In pleading an official document or official act, itis sufficient to identify it by reference and averthat the document was issued or the act done incompliance with law.

e. In pleading a judgment, order, or decision of a do-mestic or foreign court, judicial or administrativetribunal, or board, commission or officer, it is suf-ficient to aver the judgment, order, or decisionwithout setting forth matter showing jurisdictionto render it.

f. Averments of time, place, and items of specialdamage shall be specifically stated.

g. Any part of a pleading may be incorporated byreference in another part of the same pleading orin another pleading in the same action. A party


may incorporate by reference any matter of recordin any state or federal court of record whoserecords are within the court in which the action ispending, or any matter that is recorded or tran-scribed verbatim in the office of the prothonotary,clerk of any court of record, recorder of deeds, orregister of wills of such county.

h. When any claim or defense is based upon anagreement, the pleading shall state specifically ifthe agreement is oral or written.

i. When any claim or defense is based upon a writ-ing, the pleader shall attach a copy of the writing,

or the material part thereof, but if the writing orcopy is not accessible to the pleader he can so statewith supporting reason and set forth the substanceof the writing.

As a general rule, every pleading subsequent to thecomplaint shall be filed within twenty (20) days after ser-vice of the preceding pleading, but no pleading need befiled unless the preceding pleading contained a notice todefend or is endorsed with a notice to plead (Pa. R. Civ. P.1026(a)).


PARTIES TO THE LAWSUIT

The Pennsylvania Judicial Code defines a “party” as a per-son who commences an action to obtain relief or againstwhom such a claim for relief is made (42 Pa. C. S. A. §102). While the Pennsylvania Judicial Code defines“party,” it is the Rules of Civil Procedure that govern themanner in which parties are to be included in a cause ofaction. Pennsylvania Rule of Civil Procedure 1018 re-quires that every pleading include the names of the partiesand, in the case of a complaint, must include every name.Although it is possible to amend the parties, it is impor-tant, when filing the initial pleading, to make sure the cap-tion contains the proper designation for each party. Other-wise, the case may fail for reason of the action beingbrought against the wrong party.

As a rule, all actions shall be prosecuted by and in thename of the real party in interest, without distinction be-tween contracts under seal and parol contracts. A plaintiffmay sue in his or her own name without joining as plain-tiff or useplaintiff any person beneficially interested whensuch plaintiff is acting in a fiduciary or representative ca-pacity, which is disclosed in the caption and in the plain-tiffs initial pleading; or is a person with whom or in whosename a contract has been made for the benefit of another(Pa. R. Civ. P. 2002).

When a minor is a party to an action, he or she shall berepresented by a guardian who shall supervise and controlthe conduct of the action on behalf of the minor (Pa. R.Civ. P. 2027). The initial pleading filed on behalf of aminor plaintiff shall state the name and address of his orher guardian and his or her relationship, if any, to the sub-ject matter of the cause of action or to any of the partiesthereto (Pa. R. Civ. P. 2028(b)). An action in which a minoris the defendant shall be commenced against the minor byname in the manner in which a like action is commencedagainst an adult (Pa. R. Civ. P. 2028(c)).

A minor plaintiff may select his or her guardian, butsuch selection shall not bar the court from removing theguardian for cause (Pa. R. Civ. P. 2031(a)). If a minor partyto an action is not represented, the court shall appoint aguardian for him either upon its own motion or upon the

petition of (1) the minor party, (2) a guardian of the minorappointed by any court of competent jurisdiction, or by aduly probated will, (3) any relative of the minor or anyother party to the action (Pa. R. Civ. P. 2031(b)).

When an incapacitated person is a plaintiff, he or sheshall be represented by a guardian or by a guardian adlitem who shall supervise and control the conduct of theaction in his or her behalf (Pa. R. Civ. P. 2053(a)). When anincapacitated person is a defendant he or she shall be rep-resented by a guardian. If there is no guardian, or if theguardian has not served with process in this common-wealth and does not voluntarily appear in the action, theincapacitated party shall be represented by guardian adlitem. The guardian or guardian ad litem shall superviseand control the conduct of the action in his or her behalf(Pa. R. Civ. P. 2053(b)). The initial pleading filed in behalfof an incapacitated plaintiff shall state the name and ad-dress of his or her guardian, if any, the nature of his or herguardianship, and a reference to the record of his or herappointment (Pa. R. Civ. P. 2054(b)). If the court finds aplaintiff to be incapacitated at some time during the pro-ceedings, a guardian, or guardian ad litem will be ap-pointed (Pa. R. Civ. P. 2056).

An action by or against a political subdivision shall bebrought in the name of the political subdivision (Pa. R.Civ. P. 2102(b)).

A partnership having a right of action shall prosecutesuch right in the names of the then-partners trading in thefirm name (Pa. R. Civ. P. 2127(a)). An action prosecutedby the liquidator of a dissolved partnership shall be prose-cuted in the name of the liquidator (Pa. R. Civ. P. 2127(b)).An action against a partnership may be prosecuted againstone or more partners as individuals trading as the partner-ship (Pa. R. Civ. P. 2128(a)).

An action prosecuted by an unincorporated associa-tion shall be prosecuted in the name of a member or mem-bers thereof or trustees ad litem for such association(Pa. R. Civ. P. 2152). In an action prosecuted against anassociation, it shall be sufficient to name as defendanteither the association by its name, whether the name is


registered, filed, or not, or any officer of the association astrustee ad litem for such association (Pa. R. Civ. P.2153(a)).

An action shall be prosecuted by or against a corpora-tion or similar entity in its corporate name (Pa. R. Civ.P. 2177).

An action for wrongful death shall be brought only bythe personal representative of the decedent for the benefitof those persons entitled by law to recover damages forsuch wrongful death; except if no action for wrongfuldeath has been brought within six (6) months after thedeath of the decedent, the action may be brought by thepersonal representative or by any person entitled by law torecover damages in such action as trustee ad litem on be-half of all persons entitled to share in the damages (Pa. R.Civ. P. 2202(a) and (b)).

Besides the parties named in the initial complaint in acivil action, there are a number of means under the Rulesof Civil Procedure to add parties to the action. The first isa joinder of additional parties, which fall into two cate-gories: compulsory and permissive.

Persons having only a joint interest in the subject mat-ter of an action must be joined on the same side as plain-tiff or defendant (Pa. R. Civ. P. 2227(a)). If a person whomust be joined as a plaintiff refuses to join, he or she shall,in a proper case, be made a defendant or an involuntaryplaintiff when the substantive law permits such involun-tary joinder (Pa. R. Civ. P. 2227(b)). If an injury, not re-sulting in death, is inflicted upon the party of a husband ora wife, and causes of action therefor accrue to both, theyshall be enforced in one action brought by the husband andwife (Pa. R. Civ. P. 2228(a)).

If an injury, not resulting in death, is inflicted upon theperson of a minor, and causes of action therefor accrue tothe minor and to the parent or parents of the minor, theyshall be enforced in one action brought by the parent orparents and the child. Either parent may sue therefor in thename of both, but if the parents live apart, the action shallbe brought by the parent having custody of the child andcontrol of its services (Pa. R. Civ. P. 2228(b)).

In the case of a permissive joinder, persons may joinas plaintiffs who assert any right to relief jointly, severally,separately, or in the alternative, in respect of or arising outof the same transaction, occurrence, or series of transac-tions or occurrences if any common question of law orfact affecting the rights to relief of all such persons willarise in the action (Pa. R. Civ. P. 2229(a)). A plaintiff mayjoin as defendants persons against whom he or she assertsany right to relief jointly, severally, separately, or in the al-ternative, in respect of or arising out of the same transac-tion, occurrence, or series of transactions or occurrences ifany common question of law or fact affecting the rights torelief of all such persons will arise in the action (Pa. R.Civ. P. 2229(b)). Parties may join or be joined in the alter-native, although the cause of action asserted by or againstany one or more of them is inconsistent with the cause of

action asserted by or against any of the others so joined(Pa. R. Civ. P. 2229(c)). A person who asserts a cause ofaction ex contracu may join as defendants all or any one ormore persons alleged to be liable to him on or by reason ofthe breach of the contractual obligation sued upon, regard-less of the capacities in which such persons are respec-tively liable, or whether they are primarily or secondarilyliable, or whether their liabilities arise from the same orseparate acts or undertakings; but where the liability ofany defendant is solely joint. the plaintiff shall join allother persons jointly liable with such defendant (Pa. R.Civ. P. 2229(d)).

In an action to adjudicate title to or an interest in realor personal property, persons whose claims are not adverseto each other may join as plaintiffs and any person whoseclaim is adverse to that of the plaintiff may be joined as adefendant (Pa. R. Civ. P. 2229(e)).

Except in cases pertaining to class actions, a defen-dant or additional defendant may join as an additional de-fendant any person, whether or not a party to the action,who may be solely liable to the plaintiffs cause of action orliable over to the joining party on the plaintiffs cause of ac-tion or jointly or severally liable with the joining party onthe plaintiffs cause of action or liable to the joining partyon any cause of action arising out of the transaction or oc-currence or series of transactions or occurrences uponwhich the plaintiff ’s cause of action is based (Pa. R. Civ.P. 2252(a)).

If the person sought to be joined is not a party to theaction, the joining party may, as a matter of course, file anew action by filing a praecipe for a writ of summons orcomplaint (Pa. R. Civ. P. 2252(b)). lf the joinder is by writof summons, the joining party shall file his or her com-plaint within twenty (20) days from the filing of thepraecipe for the writ. If the joining party fails to file his orher complaint within the required time, the plaintiff or ad-ditional defendant joined may seek a rule to file the com-plaint and an eventual judgment of non pros pursuant toPa. R. Civ. P. 1037(a) if the complaint is not filed withintwenty (20) days of the rule (Pa. R. Civ. P. 2252(b)(1)). Ifthe person sought to be joined is a party, the joining partyshall, without moving for severance or the filing of apraecipe for a writ of summons or a complaint, assert inhis or her answer as new matter that such party alone is li-able to the plaintiff, liable over to the joining party, jointlyor severally liable to the plaintiff, or liable to the joiningparty directly setting forth the ground therefor (Pa. R. Civ.P. 2252(d)).

Except in cases involving asbestos litigation, neitherthe praecipe for a writ to join an additional defendant nora complaint if the joinder is commenced by a complaint,shall be filed by the original defendant or an additional de-fendant later than sixty (60) days after the service upon theoriginal defendant of the initial pleading of the plaintiff orany amendment thereof, unless such filing is allowed bythe court upon cause shown (Pa. R. Civ. P. 2253).



The procedure, including pleadings, between theparty joining an additional defendant and the additionaldefendant shall be the same as though the party joining theadditional defendant were a plaintiff and the additional de-fendant were a defendant (Pa. R. Civ. P. 2255(a)). Nopleadings shall be filed between the additional defendantand any party other than the one joining him, except thatthe additional defendant may file a counterclaim againstthe plaintiff (Pa. R. Civ. P. 2255(b)). No judgment on thepleadings may be entered in favor of any party against anadditional defendant for failure to answer the complaint ofthe party joining him, but all allegations of fact in suchcomplaint to which an answer is required and which arenot sufficiently answered shall be conclusive upon the ad-ditional defendant (Pa. R. Civ. P. 2255(c)). The plaintiffshall recover from an additional defendant found liable tohim alone or jointly with the defendant, as though such ad-ditional defendant had been joined as a defendant and dulyserved and the initial pleading of the plaintiff had averredsuch liability (Pa. R. Civ. P. 2255(d)).

The court, at any time during the pendency of an ac-tion, on its own motion or upon petition of a defendant,may interplead the plaintiff and one or more claimantswho are not parties of record (Pa. R. Civ. P. 2302). Pa. R.Civ. P. 2303 sets forth the contents of the petition for inter-pleader which shall allege:

1. That a claimant not a party of record has made oris expected to make a demand upon the defendantas a result of which the defendant is or may be ex-posed to double or multiple liability to the plaintiffand to such claimant as to all or any party of theclaim asserted by the plaintiff;

2. That the petition is filed in good faith and not incollusion with the plaintiff or any claimant;

3. The interest, if any, that the defendant claims inthe money or property in controversy, and whetherhe or she is able to pay or deliver that part of themoney or property as to which he or she claims nointerest into court or to such person as the courtmay direct; and

4. Whether he or she has admitted the claim of, orsubjected himself to independent liability to, theplaintiff or any claimant in respect to the subjectmatter of the action.

The petition shall be subscribed and verified. A copyof the petition shall be served upon the plaintiff or his orher attorney and the plaintiff ’s answer, if any, shall be filedwithin twenty (20) days of such service (Pa. R. Civ. P.2305). Pending disposition, all proceedings are stayed(Pa. R. Civ. P. 2303(c)).

The court shall direct an interpleader if the allegationsare established by either proof or by failure of the plaintiffto file a sufficient answer; however, the court may deny thepetition if the defendant has unreasonably delayed in filingthe petition or has admitted the claim of, or subjected

himself to independent liability to the plaintiff or anyclaimant, with knowledge that an inconsistent claim wouldbe later asserted against him by any known or unknownperson (Pa. R. Civ. P. 2306)(a). If the defendant petitions tointerplead claimants who in good faith and without collu-sion have started independent actions against the defen-dant in the same or different courts, the court in which thepetition for interpleader is filed shall grant the petitionwhere otherwise proper under these rules if the petition isfiled in the first action commenced against the defendant;or may refuse the petition although it would be proper togrant it under these rules if it is filed in any action otherthan the first action, and the granting of the interpleaderwould unduly prejudice any party to any of the actionscommenced against the defendant (Pa. R. Civ. P. 2306(b)).

The court shall not deny the petition for interpleadermerely because: (1) the defendant has an interest in the ac-tion or asserts that he or she is not liable in whole or in partto any or all of the claimants and the plaintiff; (2) there isno privity between any of the parties of record or theclaimants or their claims do not have a common origin;(3) the plaintiff and the claimants do not assert the identi-cal right or demand the identical relief of the defendant; or(4) the court believes that the claim of the plaintiff or anyclaimant is without merit in law or fact (Pa. R. Civ. P.2306(c)).

Upon granting a petition for interpleader, the courtshall make such order as may be deemed just under the cir-cumstances relating to the payment or delivery into court,or to such person as the court shall direct, of any money or property in controversy disclaimed by the defendant.When the defendant has complied with such order, thecourt shall enter an order discharging him of all liability tothe plaintiff and to any interpleaded claimant who hasbeen served in respect to the money or property so paid ordelivered. If the defendant has disclaimed all interest inthe action, the court shall also discharge him from all lia-bility for any costs accruing after the entry of the order andshall allow him the costs incurred by him in the action, tobe paid from such money or property in the first instanceand taxed as costs in the action (Pa. R. Civ. P. 2307).

Unless extended by the court within twenty (20) daysof the order directing interpleader, each interpleadedclaimant shall be served in the same manner as providedfor service of original process with a copy of the petitionand order of the court and a copy of all pleadings thereto-fore filed in the action. A copy of the order shall be servedupon the plaintiff or his or her attorney (Pa. R. Civ. P.2308).

Within the time required, each claimant interpleadedshall file a statement of his or her claim against the defen-dant and any money or property paid or delivered by saiddefendant pursuant to the court order. The form and verifi-cation of the statement shall be the same as a complaint. Acopy of the statement shall be served upon the plaintiff andany other interpleaded claimants, and upon the defendant,



if he or she has not disclaimed all interest in the action(Pa. R. Civ. P. 2309). The defendant may, if he or she hasnot disclaimed all interest in the action, file an answer toclaimant’s statement within twenty (20) days. If theclaimant has included “Additional Matter” in his or her statement, the plaintiff or any other interpleading partyshall within twenty (20) after service of the statement filean answer to such “Additional Matter” (Pa. R. Civ. P.2310). All allegations of fact in a claimant’s statement thatare not answered or sufficiently answered, shall be conclu-sive between the parties concerned (Pa. R. Civ. P. 2311).

At any time during the pendency of an action, a personnot a party thereto shall be permitted to intervene thereinif the entry of a judgment in such action or the satisfactionof such judgment will impose any liability upon such per-son to indemnify in whole or in part the party againstwhom judgment may be entered or such person is so situ-ated as to be adversely affected by a distribution of prop-erty in the custody of the court or of an officer thereof; or such person could have been joined therein, or the deter-mination of such action may affect any legally enforceableinterest of such person whether or not he or she may bebound by a judgment in the action (Pa. R. Civ. P. 2327).

An application for leave to intervene shall be made by a petition in the form of and verified in the manner ofthe plaintiffs initial pleading in a civil action, setting forththe ground on which intervention is sought and statementof relief or the defense that the petitioner desires to de-mand or assert. The petitioner shall attach to the petition acopy of any pleading that he or she will file in the action if permitted to intervene or shall state in the petition that he or she adopts by reference in whole or in part certainnamed pleadings or parts of pleadings already filed in theaction (Pa. R. Civ. P. 2328(a)). A copy of the petition shallbe served upon each party to the action (Pa. R. Civ. P.2328(b)).

Upon the filing of the petition and after hearing, ofwhich due notice shall be given to all parties, the court, ifthe allegations of the petition have been established and arefound to be sufficient, shall enter an order allowing inter-vention; but an application for intervention may be refusedif the claim or defense of the petitioner is not in subordina-tion to and in recognition of the propriety of the action; orthe interest of the petitioner is already adequately repre-sented; or the petitioner has unduly delayed in making ap-plication for intervention or the intervention will undulydelay, embarrass, or prejudice the trial or the adjudicationof the rights of the parties (Pa. R. Civ. P. 2329).

A class action is an action brought by or against par-ties or representatives of a class until the court refuses tocertify it as such or revokes a prior certification underthese rules (Pa. R. Civ. P. 1701(a)). Unless otherwise pm-vided in the class action rules, the procedure shall be in ac-cordance with the rules governing the form of action inwhich relief is sought (Pa. R. Civ. P. 1701(b)). One or moremembers of a class may sue or be sued as a representative

party on behalf of all members in a class only if (Pa. R.Civ. P. 1702):

1. The class is so numerous that joinder of all mem-bers is impracticable;

2. There are questions of law or fact common to theclass;

3. The claims or defenses of the representative par-ties are typical of the claims or defenses of theclass;

4. The representative parties will fairly and ade-quately assert and protect the interests of the class;and

5. A class action provides a fair and efficient methodfor adjudication of the controversy.

This is somewhat different from Federal Rule of CivilProcedure 23 regarding class actions, which requires thatthe class action be superior to other available means.Under the Pennsylvania Rules of Civil Procedure, it mustonly be a fair and efficient method of adjudication. Therule also varies from the federal rule, in that the standardapplies to all class actions, while the federal rule appliesthe superiority method only to actions based on common questions of law and fact.

A class action may only be commenced by complaint(Pa. R. Civ. P. 1703(a)). Within thirty (30) days after thepleadings are closed or within thirty (30) days after the lastrequired pleading was due, the plaintiff shall move that theaction certified as a class action. Either a party or the courtcan extend the time for cause shown (Pa. R. Civ. P.1707(a)). The rules set forth the criteria; for certificationthe class action as fair and efficient method of adjudicationin Pa. R. Civ. P. 1708:

(a) Where monetary recovery alone is sought, thecourt shall consider (1) whether common ques-tions of law or fact predominate over any questionaffecting only individual members; (2) the size ofthe class and the difficulties likely to be encoun-tered in the management of the action as a classaction; (3) whether the prosecution of separate ac-tion as by or against individual members of theclass would create a risk of (i) inconsistent or vary-ing adjudications with respect to individual mem-bers of the class that would confront the partyopposing the class with incompatible standards ofconduct; or (ii) adjudications with respect to indi-vidual members of the class that would as a practi-cal matter be dispositive of the interests of othermembers not parties to the adjudications or sub-stantially impair or impede their ability to protecttheir interests; (4) the extent and nature of any liti-gation already commenced by or against membersof the class involving any of the same issues; (5)whether the particular forum is appropriate for thelitigation of the claims of the entire class;



(6) whether in view of the complexities of the is-sues or the expenses of litigation the separateclaims of individual class members are insufficientin amount to support separate actions; (7) whetherit is likely that the amount that may be recoveredby individual class members will be so small in re-lation to the expense and effort of administeringthe action as not to justify a class action.

(b) Where equitable or declaratory relief alone issought the court shall consider (1) the criteria setforth in subsections (1) through (5) of the aboveand (2) whether the party opposing the class hasacted or refused to act on grounds generally ap-plicable to the class, thereby making final equi-table or declaratory relief appropriate with respectto the class.

(c) Where both monetary and other relief is soughtthe court shall consider all the criteria set forthabove.

The criteria set forth in (1) through (5) of subdivision(a) are taken almost verbatim from the federal rule whileadding subdivisions (6) and (7).

The criteria for determination of fair and adequaterepresentation are given in Pa. R. Civ. P. 1709, and thecourt shall consider:

1. whether the attorney for the representative partieswill adequately represent the interests of theclass,

2. whether the representative parties have a conflictof interest in the maintenance of the class action,and

3. whether the representative parties have or can ac-quire financial resources to assure that the inter-ests of the class wiil not be harmed.

This is different from the federal rule as those rulescontain no specific criteria for determining the adequacyof the representation by the parties or their attorneys.


JURISDICTION AND VENUE

There is no rule in the Pennsylvania Rules of Civil Pro-cedure providing for a specific provision in the complaintstating jurisdiction and venue. However, it would be nec-essary that the facts set forth in the complaint in somemanner that the subject matter jurisdiction and the venue

of the court be established, otherwise the complaint willbe subject to preliminary objections on those grounds.That would generally be accomplished in the establishingof the facts necessary for the claim for which relief is re-quested.

DRAFTING THE COMPLAINT

When drafting the complaint, it is important to rememberthe difference between the federal practice and that ofPennsylvania. In a federal action it is only necessary toplead sufficient facts to put the defendant on notice of thecause of action; that is, a statement to the effect that the defendant operated his or her automobile in a negligentmanner is sufficient, In Pennsylvania, this would be insuf-ficient to withstand preliminary objections. Further, it isnecessary to state how the defendant operated his or hercar in a negligent manner, in that he or she failed to keep a proper watch upon the roadway, or ran a red light.

The plaintiff may state in the complaint more than onecause of action against the same defendant Each cause ofaction and any special damage relate thereto shall bestated in a separate count containing a demand for relief(Pa. R. Civ. P. 1020(a)). If persons are joined as plaintiffs,the complaint shall state the cause of action, any specialdamage, and the demand for relief of each plaintiff in aseparate count, preceded by a heading naming the partiesto the cause of action therein set forth (Pa. R. Civ. P.1020(b)). Causes of action and defenses may be pleaded in

the alternative (Pa. R. Civ. P. 1020(c)). If a transaction oroccurrence gives rise to more than one cause of actionagainst the same person, including causes of action in thealternative, they may be joined in separate counts in theaction against any such person (Pa. R. Civ. P. 1020(d)(1)).The failure to join a required cause of action under Pa. R.Civ. P. 1020(d)(1) shall be deemed a waiver of that causeof action as against all parties to the action (Pa. R. Civ. P.1020(d)(4)).

Any complaint demanding relief shall specify the re-lief to which the party deems itself entitled. Relief in thealternative or of several different types, including an ac-counting, may be demanded (Pa. R. Civ. P. 1021(a)). Com-plaints demanding relief for unliquidated damages will notset forth a specific sum (Pa. R. Civ. P. 1021(b)). In countieshaving rules governing compulsory arbitration, the plain-tiff shall also state whether the amount claimed exceedsthe jurisdictional amount requiring arbitration referral bylocal rule (Pa. R. Civ, P. 1021(c)). The jurisdictionalamount is not uniform throughout the commonwealth. Insome counties the amount may be as high as $50,000.00.


Every complaint of a party represented by an attorneyshall be signed by at least one attorney of record in the at-torney’s individual name (Pa. R. Civ. P. 1023.1(b)). If aparty is not represented the complaint shall be signed bythe party (Pa. R. Civ. P. 1023.1(b)). The complaint thatcontains averments of facts not appearing of record in theaction or containing a denial of fact, shall state that the

averment or denial is true upon the signer’s personalknowledge or information and belief (Pa. R. Civ. P.1024(a)). In addition, every complaint shall be endorsedwith the name of the attorney, or if a party is not repre-sented by an attorney it shall be endorsed with the name ofthe party and an address within the commonwealth (Pa. R.Civ. P. 1025).


FILING THE COMPLAINT

The complaint is filed with the prothonotary of the countyin which the action is brought. Every complaint mustbegin with a notice to defend (Pa. R. Civ. P. 1018.1(a)). Asa rule of practice, if the complaint is to be served by the

sheriff, a sheriffs service form should accompany the com-plaint, which will be forwarded to the sheriff by the pro-thonotary.

THE SUMMONS

The alternative means of original process, other than bycomplaint, is by filing with the prothonotary a praecipe fora writ of summons (Pa. R. Civ. P. 1007(1)). A party maywant to file a writ of summons when it is necessary to tollthe statute of limitations, where there is insufficient time to prepare the complaint. If a party does not have all thefacts, it can file a writ of summons and then use the

discovery procedures to obtain the information to preparethe complaint. The prothonotary will then prepare the writof summons and either forward it to the sheriffs depart-ment or return it to the plaintiff for service. The service ofthe writ of summons is accomplished in the same manneras the complaint.

SERVICE OF THE COMPLAINT

As a general rule, service of original process may only beserved within the Commonwealth of Pennsylvania by thesheriff (Pa. R. Civ. P. 400(a)). The original process may beserved:

1. By handing a copy to the defendant (Pa. R. Civ, P.402(a)(1)); or

2. By handing a copy (i) at the residence of the defendant to an adult

member of the family with whom he or sheresides; if no adult member of the family isfound, then it may be handed to an adultperson in charge of such residence (Pa. R.Civ, P. 402(a)(2)(i)); or

(ii) at the residence of the defendant to the clerkor manager of the hotel, inn, apartmenthouse, boarding house, or other place oflodging at which he or she resides (Pa. R.Civ. P. 402(a)(2)(ii)); or

(iii) at any office or usual place of business ofthe defendant to his or her agent or to theperson for the time being in charge thereof(Pa. R. Civ. P. 402(a)(2)(iii)).

3. Service can also be made by other means, such asmail, when the other party is willing to acceptsuch service and by filing an Acceptance of Ser-vice (Pa. R. Civ. P. 402(b)).

When the defendant is a minor, original process shallbe served upon the minor in the manner prescribed for theservice of original process upon an adult defendant, or byhanding a copy to the minor’s guardian (Pa. R. Civ. P. 420).

If the defendant is an incapacitated person, originalprocess shall be served upon the incapacitated person inthe manner prescribed for the service of original processupon an adult defendant, or by handing a copy to the inca-pacitated person’s guardian (Pa. R. Civ. P. 421).

Service of original process upon the commonwealthor an officer of the commonwealth, or a department, board,commission or instrumentality of the commonwealth, or amember thereof, shall be made at the office of the defen-dant and the office of the attorney general by handing acopy to the person in charge thereof (Pa. R. Civ. P. 422(a)).

Service of original process upon a political subdivi-sion shall be made by handing a copy to an agent duly au-thorized by the political subdivision to receive such ser-vice of process, or the person in charge at the office of thedefendant or the mayor, or the president, chairman, secre-tary, or clerk of the tax levying body thereof; and incounties where there is no tax levying body, the chairmanor clerk of the board of county commissioners (Pa. R. Civ.P. 422(b)).

Service of original process upon a partnership and allpartners named in the action or upon an unincorporated as-sociation shall be made upon any of the following persons


provided the person served is not a plaintiff in the action:any partner, officer, or registered agent of the partnership orassociation or an agent authorized by the partnership or as-sociation in writing to receive service of process for it, orthe manager, clerk, or other person in charge for the timebeing of any regular place of business or activity of thepartnership or association (Pa. R. Civ. P. 423).

Service of original process upon a corporation or sim-ilar entity shall be made by handing a copy to any of thefollowing persons provided the person served is not aplaintiff in the action: an executive officer, partner, ortrustee of the corporation or similar entity or the manager,clerk, or other person in charge for the time being of anyregular place of business or activity of the corporation orsimilar entity, or an agent authorized by the corporation orsimilar entity in writing to receive service of process (Pa.R. Civ. P. 424).

If, in actions involving an interest in real property, therelief sought is possession or mortgage foreclosure, origi-nal service shall be served upon any person not named asa party who is found in possession of the property (Pa. R.Civ. P. 410(b)(1)). If a special order of court for service issought for a real estate action, service shall be by publica-tion; posting a copy of the original process on the mostpublic part of the property, registered mail to the defen-dant’s last known address, and by such other methods, ifany, as the court deems appropriate to give notice to thedefendant (Pa. R. Civ. P. 410(c)).

If service cannot be made under the applicable rule,the plaintiff may move the court for a special order direct-ing the method of service. The motion for special servicemust be accompanied by an affidavit stating the nature andextent of the investigation that has been made to determinethe whereabouts of the defendant and the reasons why ser-vice cannot be made (Pa. R. Civ. P. 430(a)). If special ser-vice is by publication, notice of the action must be pub-lished once in the legal publication and once in anewspaper of general circulation within the county (Pa. R.Civ. P. 430(b)(1)).

In actions for custody, partial custody, and visitation,and for actions for divorce or annulment of marriage, ser-vice of original process, can be personally served by acompetent adult. In those delineated above, may be servedwithin the commonwealth by mail (Pa. R. Civ. P.1930.4(a)). Service by mail is accomplished by mailing thepapers to the defendant through any form of mail requiringa receipt signed by the defendant or his or her authorized

agent (Pa. R. Civ. P. 1930.4(c)). If the mail is returned withthe notation of a refusal by the defendant to accept themail, the plaintiff shall have the right of service by mailinga copy to the defendant at the same address by ordinarymail with the return address of the sender appearingthereon (Pa. R. Civ. P. 1930.4(c)(1)). If the mail is returnedunclaimed, the plaintiff must make service by other meansallowed under the rules (Pa. R. Civ. P. 1930.4(c)(2)).

Original service shall be served outside the common-wealth within ninety (90) days of the issuance of the writor the filing of the complaint or the reissuance or the rein-statement thereof: by a competent adult who is not a partyby handing a copy to the defendant; or by handing a copyat the residence of the defendant to an adult member of thefamily with whom he or she resides, however, if no adultmember of the family is found, then to an adult person incharge of such residence, or at the residence of the defen-dant to the clerk or manager of the hotel, inn, apartmenthouse, boarding house, or other place of lodging at whichhe or she resides, or at any office or usual place of businessof the defendant to his or her agent or to the person for thetime being in charge thereof; by any competent adultthrough the mail as provided above; in the manner pro-vided by the law of the jurisdiction in which the service ismade for service in an action in any of its courts of generaljurisdiction; in the manner provided by treaty; or as di-rected by the foreign authority in response to a letter roga-tory or request (Pa. R. Civ. P. 404).

Under the Pennsylvania Rules of Civil Procedure, theoriginal process must be served within thirty (30) daysafter the issuance of a writ of summons or after the filingof the complaint (Pa. R. Civ. P. 401(a)). Writs of summonsand complaints may be reissued and reinstated at any timeand any number of times by the prothonotary uponpraecipe and upon presentation of the writ or complaint(Pa. R. Civ. P. 401(b)(1) and (2)). The issued writ of sum-mon and the reinstated complaint must be served withinthirty (30) days of its reissuance and reinstatement (Pa. R.Civ. P. 401(b)(4)).

A writ may be reissued at any time after the originalissuance during the period equivalent to that permitted bythe statute of limitations; each reissuance gives rise to anew period of equal length in which the writ may again byreissued (Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882(1976)). The same holds true for complaints that are rein-stated (Hilton v. Mayer, 58 Del. Co. Rep. 26 (1970)).


AMENDING THE COMPLAINT

A party may at any time change the form of action, correctthe name of a party, or amend its pleading. This can bedone either with the filed consent of the adverse party or

by leave of court (Pa. R. Civ. P. 1033). The amended plead-ing may aver transactions or occurrences that have hap-pened before or after the filing of the original pleading,


even though they give rise to a new cause of action or de-fense. An amendment may be made to conform the plead-ing to the evidence offered or admitted (Pa. R. Civ. P.1033). The last type of amendment to conform to evidenceoffered or admitted has even been allowed where the ver-dict has already been reached (Standard Pipeline CoatingCo. v. Solomon & Teslovich, Inc., 344 Pa. Super. 367, 496A.2d 840 (1985)). However, the same type of amendment was denied where it would have required additional dis-covery, hearing, briefing, and would have resulted in sub-stantial prejudice to the defendant (Small v. Columbia Gasof Pennsylvania, Inc., 363 Pa. Super. 61, 525 A.2d 424(1987)). However, a party may not use the procedure underPa. R. Civ. P. 1033 to add or substract new parties.

The allowance of an amendment is to be liberally con-strued to secure the just, speedy, and inexpensive determi-nation of every action or proceeding to which they are ap-plicable (Pa. R. Civ. P. 126) and such amendments shouldbe allowed unless they violate the law or unfairly prejudicethe rights of the other party (MacGregor v. Mediq. Inc.,395 Pa. Super. 221, 576 A.2d 1123 (1990)). An example ofwhen an amendment would not be allowed is where thestatute of limitations would bar the new cause of action.

A party may file an amended pleading as of coursewithin twenty (20) days after the service of a copy of pre-liminary objections (Pa. R. Civ. P. 1028(c)(1)). In addition,

as a result of a determination of preliminary objections thecourt may allow an amended pleading (Pa. R. Civ. P.1028(d)).

The Pennsylvania Rules of Civil Procedure do not seta limit on the number of amendments a party may make;however, the liberality of the rules will not allow succes-sive amendments when there is no possibility of the plead-ing being sustained (Behrend v. Yellow Cab Co., 441 Pa.105, 271 A.2d 241 (1970)). The amendment of the com-plaint generally relates back to the filing of the amendedcomplaint.

After the original filing there may arise a situationwhere a successor to an original party will be substitutedfor the original party. This could occur where the originalparty has died during the action and his or her estate wouldbe substituted. A successor is anyone who by operation oflaw, election, or appointment has succeeded to the interest or office of a party to an action (Pa. R. Civ. P. 2351).

The successor may become a party to a pending actionby filing of record a statement of the material facts onwhich the right to substitution is based (Pa. R. Civ. P.2352(a)). If the successor does not voluntarily become aparty, the prothonotary, upon praecipe of an adverse partysetting forth the material facts, shall enter a rule upon thesuccessor to show cause of why he or she should not besubstituted as a party (Pa. R. Civ. P. 2352(b)).

CHAPTER 6 Responses to the Initial Pleadings 21

CHAPTER 6 Responses to the Initial Pleadings

RESPONDING TO THE INITIAL PLEADING

A party responds to a pleading by filing either an answer orpreliminary objections (Pa. R. Civ. P. 1017(a)). An answeror preliminary objections may be filed to a complaint, a

counterclaim or new matter, a crossclaim or third-partycomplaint.

TYPES OF ANSWERS

The answer or responsive pleading, such as a reply to newmatter, shall state the facts upon which a defense is basedin a concise and summary form (Pa. R. Civ. P. 1019(a)). Itis necessary to prepare an answer where a party wishes todeny the allegations or a pleading (Pa. R. Civ. P. l029);raise affirmative defenses; or other facts not representing denials (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

pleading if the pleading contains a notice to defend or isendorsed with a notice to plead (Pa. R. Civ. P. 1026(a)).

A party waives all defenses and objections that are notraised by preliminary objection, answer or reply. The ex-ceptions to the rule are the defense of failure to state aclaim upon which relief can be granted, the defense of fail-ure to join an indispensable party, and the objection offailure to state a legal defense to a claim may also be madeby a later pleading, if one is permitted, or by motion for


judgment on the pleadings or at the trial on the merit (Pa.R. Civ. P. 1032(a)) and whenever it appears by suggestionof the parties or otherwise that the court lacks jurisdic-tion of the subject matter, or that there has been a failure tojoin an indispensable party, the court shall dismiss the ac-tion (Pa. R. Civ. P. 1032(b)).

A responsive pleading shall admit or deny each aver-ment of fact in the preceding pleading or any part thereofto which it is responsive. A party denying only a part of anaverment shall specify so much of it as admitted and shalldeny the remainder. Admissions and denials in a respon-sive pleading shall refer specifically to the paragraph inwhich the averment is admitted or denied (Pa. R. Civ. P.1029(a)). Averments in a pleading to which a responsivepleading is required are admitted when not denied specifi-

cally or by necessary implication. A general denial or a de-mand for proof, except where the party states that after areasonable investigation, it is without knowledge or infor-mation sufficient to form a belief as to the truth of an aver-ment, shall have the effect of an admission (Pa. R. Civ. P.1029(b)). Where the party states that after a reasonable in-vestigation, it is without knowledge or information suffi-cient to form a belief as to the truth of an averment, suchshall have the effect of a denial (Pa. R. Civ. P. 1029(c)).Averments in a pleading to which no responsive pleadingis required shall be deemed to be denied (Pa. R. Civ. P.1029(d)). Averments of bodily injury, death, and/or prop-erty damage can be denied generally, however, avermentsdealing with identity must be specifically denied (Pa. R.Civ. P. 1029(e)).


DRAFTING THE ANSWER

In addition to admitting or denying the averments of thecomplaint, the answer may include new matter, which in-cludes all affirmative defenses including but not limited tothe defenses of accord and satisfaction, arbitration andaward, assumption of the risk, consent, contributory negli-gence, discharge in bankruptcy, duress, estoppel, failure ofconsideration, fair comment, fraud, illegality, immunity

from suit, impossibility of performance, justification,laches, license, payment, privilege, release, res judicata, statute of limitations, truth, and waiver. New matter mayalso include any other material facts that are not mere de-nials (Pa. R. Civ. P. 1030). These material facts would alsobe used not only as a defense, but also to provide a basisfor any counterclaim.

COUNTERCLAIMS, CROSSCLAIMS, AND THIRD PARTY COMPLAINTS

Counterclaims and third-party complaints are pleadingsthat seek affirmative relief on the part of the party filingthe pleading, and may only be filed after the originalprocess has been served. In other words, counterclaimsand thirdparty complaints cannot be filed until the originalcomplaint has been served.

The defendant may set forth in the answer under theheading “Counterclaim,” any cause of action that it hasagainst the plaintiff at the time of filing the answer (Pa. R.Civ. P. 1031(a)) and is subject to the same rules as a com-plaint (Pa. R. Civ. P. 1019). Counterclaim need not dimin-ish or defeat the relief demanded by the plaintiff, and itmay exceed the relief in amount or be different in kindfrom that demanded by the plaintiff (Pa. R. Civ. P. 1031(b)).Under the Pennsylvania Rules of Civil Procedure, the as-sertion of a counterclaim is permissive as opposed tomandatory. It is purely the option of the defendant to filethe counterclaim. Pennsylvania does not have an equiva-lent to Fed. R. Civ. P. 13(a), which requires that certaintypes of counterclaims be joined in the plaintiffs action.

The counterclaim must be divided into consecutivelynumbered paragraphs, and shall contain as far as practica-ble only one material allegation (Pa. R. Civ, P. 1022). Thecounterclaim of a party represented by an attorney shall besigned by at least one attorney of record in the attorney’sindividual name (Pa. R. Civ. P. 1023.1(b)). If a party is notrepresented, the counterclaim shall be signed by the party

(Pa. R. Civ. P. 1023.1(b)). The counterclaim which con-tains averments of facts not appearing of record in the ac-tion or containing a denial of fact shall state that the aver-ment or denial is true upon the signer’s personalknowledge or information and belief (Pa. R. Civ. P.1024(a)). In addition, every counterclaim shall be en-dorsed with the name of the attorney, or if a party is notrepresented by an attorney, it shall be endorsed with thename of the party and an address within the common-wealth (Pa. R. Civ. P. 1025). There is no need for a plaintiffto file a responsive pleading to a counterclaim unless itcontains a notice to plead (Pa. R. Civ. P. 1026(a)).

The purpose of a third-party complaint or complaintagainst an additional defendant is to allow the original de-fendant to bring into the action a third party who may be li-able in whole or in part to the defendant on the originalclaim brought against the defendant.

Original process of the third-party complaint shall beserved upon the additional defendant in the same manneras an original defendant. Copies of all pleadings filed inthe action shall be served with the additional defendantcomplaint (Pa. R. Civ. P. 425(a)). A copy of the complaintmust also be served upon every prior party, but it is notnecessary to attach copies of pleadings previously filed in the action (Pa. R. Civ. P. 425(b)). In addition, thecomplaint against an additional defendant must begin withthe notice to defend (Pa. R. Civ. P. 1018.1(a)).


CHAPTER 6 Responses to the Initial Pleadings 23

LEGAL CHALLENGES TO THE COMPLAINT

Preliminary objections are available to any party and maybe filed against any pleading. They are most commonlyused by a defendant against the plaintiff ’s complaint. All preliminary objections are required to be raised at onetime and a party may file inconsistent preliminary objec-tions (Pa. R. Civ. P. 1028(b)). For example, a party may filea demurrer and a motion for a more specific pleading atthe same time. Two or more preliminary objections may beraised in one pleading (Pa. R. Civ. P. 1028(b)). The filing of the preliminary objections will stay the action until thepreliminary matters are determined.

Service of preliminary objections and, in fact, allpleadings and legal papers other than original process hasbeen expanded to take new forms of transmission intoconsideration. Traditionally, service may occur by handingor mailing a copy to each party at the address of the party’sattorney of record (Pa. R. Civ. P. 440(a)(1)(i)). If there isno attorney of record, service occurs by handing a copy tothe party or by mailing a copy or by leaving a copy for theparty at the address endorsed on an appearance or priorpleading, or the residence or place of business of the party(Pa. R. Civ. P. 440(a)(2)(i)). If none of the above can be ac-complished, service can be effected by leaving or mailinga copy to the last known address of the party to be served(Pa. R. Civ. P. 440(a)(2)(ii)).

In any of the above situations, facsimile transmissionof the preliminary objections or other legal papers will beconsidered service if the parties agree or if a telephonenumber for facsimile transmission is included on an ap-pearance or prior legal paper filed with the court (Pa. R.Civ. P. 440(d)(1)). Pa. R. Civ. P. 205.4 also allows a partyto file a legal paper with the prothonotary by means ofelectronic filing if electronic filing is permitted by generalrule, rule of court, or special order of the court. Pursuant toPa. R. Civ. P. 205.4(g)(2) service may be by electronictransmission, if the parties agree or if an electronic mailaddress is included on the appearance or prior legal paperfiled with the court in the action.

The preliminary objections must include a notice toplead where there are averments of facts; a caption; aver-ments in paragraph form; claim for relief; signature andendorsement or the attorney, or the party if not repre-sented; and a verification where there are facts not appear-ing of record. The preliminary objections must statespecifically the grounds upon which they are based (Pa. R.Civ. P. 1028(b)). Generally, a party must file all of its pre-liminary objections at one time or it waives the right toraise them later (Lexington Ins. Co. v. Commonwealth. Ins.Dept., 116 Cmwlth Ct 259, 541 A.2d 834 (1988)).

Pursuant to Pa. R. Civ. P. 1028(a), a party’s prelimi-nary objections are limited to

1. A petition raising a question of jurisdiction orvenue, or attacking the form of service of a writ ofsummons;

2. A motion to strike off a pleading due to lack ofconformity to law or rule of court or because ofscandalous or impertinent matter;

3. A motion for a more specific pleading;

4. A demurrer, which may not include the bar of astatute of limitations or frauds;

5. Lack of capacity to sue, nonjoinder of as neces-sary party or misjoinder of a cause of action; and

6. Pendency of a prior action or agreement for alter-native dispute resolution.

A party may file an amended pleading as of coursewithin twenty (20) days after service of a copy of prelimi-nary objections (Pa. R. Civ. P. 1028(c)(1)). If a party doesnot file an amended pleading, the court shall promptlydetermine all preliminary objections (Pa. R. Civ. P.1028(c)(2)). The procedure for that determination will befound in the rules of the court where the action is filed, andwill vary from county to county.

If the preliminary objections are endorsed with a no-tice to plead and contain averments of fact that are not partof the record, an answer to the preliminary objections mustbe filed with twenty (20) day after service (Pa. R. Civ. P.1026). The failure to deny the averments in a properly en-dorsed preliminary objection will require that the aver-ments be admitted (Pa. R. Civ. P. 1029(b)).

If the preliminary objections are overruled, the object-ing party shall have the right to respond to the underlyingpleading within twenty (20) days after notice of the orderor within such other time as the court shall order (Pa. R.Civ. P. 1028(d)). Thus, a defendant who had filed prelimi-nary objections would have a minimum of twenty (20)days in which to file an answer to the complaint.

If the preliminary objections are sustained in whole orin part, a new pleading shall be filed within (20) days afternotice of the order, or within such other time as the courtmay order (Pa. R. Civ. P. 1028(e)). Therefore, if a defen-dant’s motion for more specific pleading is sustained bythe court, the plaintiff would have at least twenty (20) daysto file an amended complaint. However, a court shouldonly grant a preliminary objection that results in the dis-missal of a suit or denial of a claim in cases that are clearand free from doubt; but, where it is certain that noamendment can cure the defects, a court may enter finaljudgment (Myers v. Kane, 23 Cmwlth Ct 213, 350 A.2d909 (1976)).

Pennsylvania lawmakers have determined that a sig-nificant obstacle to the statewide practice of law has beenthe inability of lawyers to learn how each court of com-mon pleas operates, particularly with respect to pre-trialprocedures. New Rules 239.1 through 239.8 and amend-ments to Pa. R. Civ. P. 239 eliminate this problem by re-quiring the promulgation of local rules which describethe steps litigants must take in having pre-trial matters


decided, and require the use of standardized numberingand posting, upon the web site of the Administrative Of-fice of Pennsylvania Courts, of the local rules. Pa. R. Civ.P. 239.5 is the specific mandate relating to preliminary

objections, and requires each local court to create a rule,numbered Local Rule 1028(c) that describes that court’sprocedures for the disposition of preliminary objections.


FAILURE TO ANSWER

The prothonotary, on praecipe of the plaintiff, shall enterjudgment against the defendant for failure to file within therequired time, an answer to a complaint containing a noticeto defend or for any relief admitted to be due by the defen-dant’s pleadings (Pa. R. Civ. P. 1037(b)). However, no judg-ment by default shall be entered by the prothonotary unlessthe praecipe for entry includes a certification that a writtennotice of intention to file the praecipe was mailed or deliv-ered to the party against whom judgment is to be enteredand to his or her attorney of record, if any, after the defaultoccurred and at least ten (10) days prior to the date of thefiling of the praecipe. If a written agreement for an exten-sion of time specifies a time within which the required ac-tion must be taken, and a default occurs thereafter, judg-ment by default may be entered by the prothonotarywithout prior notice under this rule. A copy of the notice oragreement shall be attached to the praecipe (Pa. R. Civ. P.237.1(a)). There are two exceptions to this rule, in that itdoes not apply to a judgment entered pursuant to an orderof court or rule to show cause. (Pa. R. Civ. P. 237.1(b)).

Once a default judgment has been entered, the pro-thonotary shall assess damages for the amount to whichthe plaintiff is entitled, if it is a sum certain or which can bemade certain by computation; but if it is not, the damagesshall be assessed at a trial where the issues shall be limitedto the amount of the damages (Pa. R. Civ. P. 1037(b)(1)).For example, a claim for damages in a contract action canusually be determined by the amount paid or the amountthat was due to be paid, whereas in a personal injury actionfor damages arising out of an automobile accident, dam-ages would be determined by a jury and the sole questionwould be on damages and not as to liability.

In all actions in which the only damages to be assessedare the cost of repairs made to property, the prothonotary,on praecipe of the plaintiff, waiving any other damagesunder the judgment and the filing of affidavits, shall assessdamages for the cost of the repairs (Pa. R. Civ. P.1037(b)(2)(i). The praecipe shall be accompanied by an af-fidavit of the repair person containing an itemized repairbill setting forth the charges for labor and material used inthe repair of the property; it shall also state the qualifica-tions of the person who made or supervised the repairs,that the repairs were necessary, and that the prices for laborand materials were fair and reasonable and were those cus-tomarily charged (Pa. R. Civ. P. 1037(b)(2)(ii)). The plain-tiff shall send a copy of the affidavit and repair bill to thedefendant by registered mail directed to his or her lastknown address, together with a notice setting forth the dateof the intended assessment of damage (which shall be notless than ten (10) days from the mailing of the notice) anda statement that damages will be assessed in the amount ofthe repair bill unless, prior to the date of assessment, thedefendant, by written praecipe, files with the prothonotarya request for trial on the issue of such damages. The plain-tiff shall also file an affidavit of mailing of notice with theprothonotary (Pa. R. Civ. P. 1037(b)(2)(iii)).

If a judgment has been entered, the party againstwhom the judgment was entered may petition the court toopen the judgment. In order for the court to open a judg-ment, it must find that the petition to open judgment waspromptly filed, the failure to act on the original complaintcan be reasonably explained and that there is a meritoriousdefense to the underlying claim (Penny’s v. RichardKastner Co., 297 Pa. Super. 167, 443 A.2d 353 (1982)).

CHAPTER 7 Motion Practice

PREPARING, SERVING, AND RESPONDING

Many pretrial matters concern motions and petitions. Inmany circumstances, there is little practical difference inwhether the particular action is considered a motion or

petition. The Pennsylvania Rules of Civil Procedure do notstate the formal requirements of a motion, nor the proce-dure to be followed for its determination. It is not a


pleading (Pa. R. Civ. P. 1017), and the formal rules ofpleadings are not specifically applicable to the motion, al-though in practice those same rules are used in preparingthe motion. However, the reasons for the motion should bestated with specificity. Local practice will guide the filingof the motion and the procedure for its determination.

Motions and petitions must be served upon everyother party to the action. Traditionally, service may occurby handing or mailing a copy to each party at the addressof the party’s attorney of record (Pa. R. Civ. P. 440(a)(1)(i)). If there is no attorney of record, service occurs byhanding a copy to the party or by mailing a copy or byleaving a copy for the party at the address endorsed on anappearance or prior pleading, or the residence or place ofbusiness of the party (Pa. R. Civ. P. 440(a)(2)(i)). If none

of the above can be accomplished, service can be effectedby leaving or mailing a copy to the last known address ofthe party to be served (Pa. R. Civ. P. 440(a)(2)(ii)).

In any of the above situations, facsimile transmissionof the motion or petition will be considered service if theparties agree or if a telephone number for facsimile trans-mission is included on an appearance or prior legal paperfiled with the court (Pa. R. Civ. P. 440(d)(1)). Pa. R. Civ. P.205.4 also allows a party to file a legal paper with the pro-thonotary by means of electronic filing if electronic filingis permitted by general rule, rule of court, or special orderof the court. As a general rule, responses to petitions ormotions must be filed within twenty (20) days, or withinother times as set forth by the court.

CHAPTER 7 Motion Practice 25

SPECIFIC MOTIONS

There are several motions available to a party to effec-tively terminate an action without the case having to go totrial. These would be in addition to preliminary objectionsand a judgment upon default and include a motion forjudgment on the pleadings (Pa. R. Civ. P. 1034) and a mo-tion for summary judgment (Pa. R. Civ. P. 1035.1).

The motion for judgment on the pleadings made pur-suant to Pa. R. Civ. P. 1034 is patterned after Fed. R. Civ. P.12(c). The purpose of the motion is to permit the court,upon application of either party, to determine whetherjudgment should be granted prior to trial. At any time afterthe pleadings are closed, but at such time as to not delaythe trial of the case, a party may move for judgment on thepleadings (Pa. R. Civ. P. 1034(a)). The court has the au-thority to enter such judgment or order as it deems properon the pleadings (Pa. R. Civ. P. 1034(b)). The definition ofpleadings would include a complaint, an answer thereto, areply if the answer contains new matter, or a counterclaim a counter-reply if the reply to a counterclaim contains newmatter, a preliminary objection, and an answer thereto(Pa. R. Civ. P. 1017(a)).

The form and local practices relating to the filing of amotion for judgment on the pleadings is governed by Pa.R. Civ. P. 239.6, which requires each local court of com-mon pleas to promulgate a local rule numbered Local Rule1034(a). Service of the motion should conform to the re-quirements of Pa. R. Civ. P. 440 relating to manual or fac-simile service or Pa. R. Civ. P. 205.4 relating to electronicfilings and service.

A motion for judgment on the pleadings may only be granted where there are no facts at issue and the law is soclear that a trial would be a fruitless exercise (Beardell v.Western Wayne School Dist., 91 Cmwlth Ct. 348, 496 A.2d1373 (1985)). In a motion for judgment on the pleadings,all well-pleaded material facts and inferences reasonably deduced therefrom must be accepted as true, however,conclusions of law and unjustified inferences will not be

considered (Merritt v. Board of Education, 99 Cmwlth Ct.178, 513 A.2d 504 (1986)). Of course, the respondingparty could move to amend its complaint pursuant toPa. R. Civ. P. 1033, or the court, within its discretion, maygrant the responding party an opportunity to amend itscomplaint upon the filing of the motion for judgment onthe pleadings ( Puleo v. Broad Street Hospital, 267 Pa.Super, 581, 407 A.2d 394 (1979)).

In addition to the motion for judgment on the plead-ings, a party, after the pleadings are closed, but within suchtime as not to delay trial, may move for summary judg-ment. Any party may move for summary judgment includ-ing the plaintiff, defendant, an additional defendant, aninterpleaded party, or a garnishee.

Unlike a motion for judgment on the pleadings, whichis limited to examination of the pleadings between the par-ties, Pa. R. Civ. P. 1035.2 provides for the granting of amotion for summary judgment based upon the evidentiaryrecord. Evidence may be one of two types. Under Pa. R.Civ. P. 1035.2(1) the record must show that there are no re-maining disputed material facts, no issue for the jury todetermine. Evidence containing an admission by one partywould be an example of such an evidentiary record. UnderPa. R. Civ. P. 1035.2(2) the motion will be granted if therecord contains insufficient evidence of facts to make outa prima facie cause of action, again leaving no issue forjury deliberation. A motion filed pursuant to subparagraph(1) may be filed at any time after the pleadings are closed,but a motion filed under subparagraph (2) must wait untilthe completion of discovery relevant to the motion, in-cluding production of expert reports.

The party opposing the motion may not rely on mereallegations or denials of the pleadings, but must file a re-sponse within thirty days after service of the motion iden-tifying evidence in the record that supports the existenceof disputed facts or evidence in the record that establishesa prima facie case (Pa. R. Civ. P. 1035.3).


The responding party may serve opposing affidavits atany time prior to the day of hearing (Pa. R. Civ. P. 1035.4).Supporting and opposing affidavits shall be made on per-sonal knowledge, set forth such facts as would be admissi-ble in evidence, and show affirmatively that the signer iscompetent to testify to the matters stated therein. Verifiedor certified copies of all papers or parts thereto referred toin an affidavit shall be attached thereto or served therewithPa. R. Civ. P. 1035.4).

The form and local practices relating to the filing of amotion for judgment on the pleadings are governed by Pa.R. Civ. P. 239.7, which requires each local court of com-mon pleas to promulgate a local rule numbered Local Rule1035.2(a). Service of the motion should conform to the re-quirements of Pa. R. Civ. P. 440 relating to manual or fac-simile service or Pa. R. Civ. P. 205.4 relating to electronicfilings and service.

As in the case of a motion for judgment on the plead-ings, the opposing party could move to amend its plead-ings pursuant to Pa. R. Civ. P. No, 1033. In addition, a mo-tion for summary judgment should be denied if the partyopposing the motion can cure the defect in its pleadings(Bell v. Shetrom, 214 Pa. Super. 309, 257 A.2d 323 (1969)).

If a favorable decision on the motion for summaryjudgment does not conclude the case and a trial is neces-sary, the court shall make an order specifying the facts thatappear without substantial controversy, including the ex-tent to which the amount of damages or other relief is notin controversy, and including the extent to which theamount of damages or other relief is not in controversyand directing such further proceedings in the action as arejust. Upon trial of the action, the facts so specified shall bedeemed established and the trial shall be conducted ac-cordingly (Pa. R. Civ. P. 1035.5).

Although the attorney, and not the paralegal, would make motions during the trial, the paralegal would likelybe involved in the preparation of any such motion. Thereare several motions available to an attorney during the trialthat the paralegal would prepare. Included among theseare a motion to strike evidence; a motion to have the juryview premises involved in the case; and a motion inlimine.

A motion to strike evidence is made when a court al-lows evidence admitted over an objection to be stricken bythe aggrieved party, which the attorney making the motionbelieves to have been improperly admitted (Jones v.Spidle, 446 Pa, 106, 286 A.2d 366 (1971)). If the motion isfiled without an objection during the trial, the evidencewill only be stricken if the reason for striking the evidence

was unknown and could not have been known with ordi-nary diligence at the time the evidence was presented(Boring v. Metropolitan Edison Co., 435 Pa. 513, 257 A.2d565 (1969)). The motion can be made to strike out the en-tire testimony of a witness or only a part thereof. The onlyother course open to the attorney who has not objected tothe evidence is a request for the court to instruct the jury todisregard the testimony (Boring v. Metropolitan EdisonCo., 435 Pa, 513, 257 A.2d 565 (1969)). The motion tostrike should be made when the improper evidence is ad-mitted by the court or when it becomes known to the attor-ney that it is improper (Jones v. Spidle, 446 Pa. 103, 286A.2d 366 (1971)).

A party may make an application to the court to have the jury view any premises involved in the litigation. Therequest can be made prior to trial or during the actual trialof the case. The granting of the request is within the dis-cretion of the court, which may impose upon the request-ing party such reasonable costs or expenses as may be in-volved in connection with such view, or may direct thatany costs thereby incurred shall follow the judgment en-tered in such action (Pa. R. Civ. P. 219).

The motion in limine will generally be a pretrialmotion, although it can also be made during the trial, toexclude evidence that is potentially inflammatory, preju-dicial, without probative value, and which would beexcluded with a proper objection. Pennsylvania Rule ofEvidence 403 provides for the exclusion of relevant evi-dence, if its probative value is outweighed by the danger ofunfair prejudice, confusion of the issues, or misleading thejury, or by considerations of undue delay, waste of time, orneedless presentation of cumulative evidence. The movingparty seeks an order prohibiting discussion of the evidencebefore the jury and a determination of the evidence’s ad-missibility. The motion can also be used to determine theinclusion of evidence at the trial.

An oral or written motion for directed verdict may bemade at the close of the evidence to the judge (Pa. R. Civ.P. 226(b)). The directed verdict would require the jury tofind in favor of the party requesting the directed verdict.

At the conclusion of the trial, any party may file a mo-tion for posttrial relief. The motion must be made in writ-ing. In a motion for posttrial relief, a party may request thecourt to order a new trial as to all or any of the issues; di-rect the entry of judgment in favor of the moving party; re-move a nonsuit, affirm, modify, or change the decision ordecree nisi; or enter any other appropriate order (Pa. R.Civ. P. 227.1(a)).



27

PART IIIDiscovery

CHAPTER 8Overview of the Discovery ProcessSS

THE NATURE OF DISCOVERY

Pennsylvania Rules of Civil Procedure 4001, et seq. gov-ern the use of discovery in civil cases. The use of discov-ery has several purposes including: the prevention of aparty being penalized from proving its claim because theevidence is in the possession of its adversary; the al-lowance of the parties to become familiar with the perti-nent facts of the case to prepare for trial; and the elimina-tion of surprise. Discovery also helps to expedite andfacilitate the litigation process. Although the rules set outin detail the procedures of discovery, they may be modi-fied by agreement of the parties (Pa. R. Civ. P. 4002).

In general, discovery procedures can be used in anycivil action or proceeding brought in or appealed to anycourt that is subject to these rules, including any actionpursuant to the Eminent Domain Code or the MunicipalClaims Act (Pa. R. Civ. P. 4001(a)).

However, discovery is not available for simple support,custody of minor children, or protection from abuse, unlessauthorized by the court (Pa. R. Civ. P. 1930.5(a)). The rea-soning for not permitting discovery is that most parties in-volved in support proceedings do not have the resources tospend on discovery. It is also believed that the proceduresused in support conferences supply the basic discoveryneeded as to incomes and expenses. In addition, the partiesare usually familiar with each other’s expenses and incomes.

Since both parties are familiar with each other’s activ-ities and living conditions in regard to children, discoveryis precluded in custody proceedings, unless authorized bythe court (Pa. R. Civ. P. 1930.5(a)). Discovery is allowed

without leave of court for complex support, and in divorcefor claims for alimony and the determination and distribu-tion of property rights and counsel fees and expenses (Pa.R. Civ. P. 1930.5).

Pursuant to Pa. R. Civ. P. 4001(d), a party has severalmethods of obtaining discovery:

a. Depositions upon oral examination

b. Depositions upon written interrogatories

c. Written interrogatories to a party

d. Production of documents and things and entry forinspection and other purposes

e. Physical and mental examinations

f. Requests for admissions

Generally, a party is not precluded from using oneform of discovery because it had obtained or is entitled todiscovery by other means. The person seeking the discov-ery is permitted to pick and choose among the meansavailable. Discovery can be used in any sequence selectedby the party, however, subsequent and continual attemptsat discovery may be limited by protective order.

The filing of discovery material with the prothonotaryis not required unless relevant to a motion or other pretrialproceeding; ordered by the court; or required by statute(Pa. R. Civ. P. 4002.1). The reason for not requiring the fil-ing of discovery material is simply the limited amount ofstorage space. This also applies to depositions taken foruse at trial.

THE EXTENT OF ALLOWABLE DISCOVERY

Discovery may be used to inquire into any matter that isrelevant to the subject matter involved in the pending ac-tion, whether it relates to the claim or defense of the party

seeking discovery or to the claim or defense of any otherparty, including the existence, description, nature, con-tent, custody, condition, and location of any books,


documents, or other tangible things and the identity andlocation of persons having knowledge of any discoverablematter (Pa. R. Civ. P. 4003.1); matters involving insurance(Pa. R. Civ. P. 4003.2); and trial preparation material ingeneral (Pa. R. Civ. P. 4003.3), including a party’s repre-sentative attorney, consultant, surety, indemnitor, insureror agent. However, unlike Fed. R. Civ. P. 26(b)(3), there isno requirement of a showing of a substantial need andundue hardship in order to discover trial preparation ma-terial and differentiates between notes and memorandumprepared by an attorney and the same prepared by aparty’s representative, such as an insurance agent, previ-ously made statements by any party or witness about theaction at hand (Pa. R. Civ. P. 4003.4), including writtenstatements or a transcription of an oral statement made bythe person taking the statement and recorded simultane-ously, which differs from the federal rules in that a partymay automatically discover statements made by wit-nesses; facts known by and opinions of experts (Pa. R.Civ. P. 4003.5); and discovery of the treating physicians(Pa. R. Civ. P. 4003.6).

However, the mental impressions of a party’s attorneyand his or her work product are not discoverable, Thiswould also include the mental impressions, conclusions,or opinions of a party’s representative respecting the meritof a claim or defense, or respecting strategy and tactics(Pa. R. Civ. P. 4003.3).

All material sought through discovery must be rele-vant to the subject matter (Pa. R. Civ. P. 4003.1(a)). Courtsshould interpret the definition of relevancy broadly andliberally (Garlitz v. P.B.S. Coals, Inc., 35 Som. Leg. J. 319(1978)), and if there is any basis for relevancy, the discov-ery should be permitted and doubts resolved in favor ofrelevancy (Everson v. Dinulos, 13 Lebanon Co. L. J. 4(1970)). The party objecting to relevancy has the burden ofproof to establish its right to refuse the requests of discov-ery (Hepps v. Philadelphia Newspapers, Inc., 25 Chest.Co. L. R. 358 (1977)).

One can also seek production of documents from non-parties. Written notice must be served upon all parties (Pa.R. Civ. P. 4009.21(a)). Objections to the notice and the re-quest will not be served on the nonparty until the objectionis ruled upon by the court (Pa. R. Civ. P. 4009.21(c) and(d)(1)). If no objections are made, then the request may beserved (Pa. R. Civ. P. 4009.21(d)(2)).

A subpoena must be served with the request, which isobtained from the prothonotary under seal and signed bythe court. The subpoena can be served personally, by mailwith return receipt requested, or by ordinary mail with no-tice and acknowledgment of receipt of subpoena (Pa. R.Civ. P. 234.2).

Discovery may not be served in bad faith, must relateto a matter that is not privileged, and shall not require mak-ing an unreasonable investigation by a party or witness orcause unreasonable annoyance, embarrassment, oppres-sion, burden, or expense (Pa. R. Civ. P. 4011).

The party to whom the discovery is directed may re-quest the court to grant a protective order limiting or pro-hibiting the scope of the discovery, which justice requiresto protect a party or person from unreasonable annoyance,embarrassment, oppression, burden, or expense (Pa. R.Civ. P. 4012(a)).

The motion for a protective order may be filed with thecourt by a party or by a person not a party from whom thediscovery is being sought (Pa. R. Civ. P. 4012(a)). The bur-den is on the person or party seeking the protective order toshow the need for the protection (Hartman v. YorktownMut. Ins. Co., 36 Beaver Co. L. J. 107 (1977)). The filing ofa motion for a protective order shall not stay the means ofdiscovery to which the motion is directed until the motionis disposed of by the court, unless the court shall so orderfor good cause shown (Pa. R. Civ. P. 4013).

The court’s protective order may include the following:

1. That the discovery or deposition shall be prohib-ited (Pa. R. Civ. P. 4012(a)(1));

2. That the discovery or deposition shall be only onspecified terms and conditions, including a desig-nation of time and place (Pa. R. Civ. P. 4012(a)(2)).

3. That the discovery or deposition shall be only by amethod of discovery or deposition other than thatselected by the party seeking discovery or deposi-tion (Pa. R. Civ. P. 4012(a)(3)).

4. That certain matters shall not be inquired into (Pa.R. Civ. P. 4012(a)(4)).

5. That the scope of discovery or deposition be lim-ited (Pa. R. Civ. P. 4012(a)(5)).

6. That the scope of discovery or deposition shall beconducted with no one present except personsdesignated by the court (Pa. R. Civ. P. 4012(a)(6)).

7. That a deposition shall be sealed and shall beopened only by order of the court (Pa. R. Civ.P. 4012(a)(7)).

8. That the parties simultaneously file specified doc-uments or in sealed envelopes to be opened asdirected information by the court (Pa. R. Civ.P. 4012(a)(8)); and

9. That a trade secret or other confidential informa-tion shall not be disclosed, or be disclosed only ina designated way (Pa. R. Civ. P. 4012(a)(9)).

A court, upon motion by a parry, may enter an order ofsanctions against a party for refusal to obey a court orderrespecting discovery or a party or person who fails to makediscovery (Pa. R. Civ. P. 4019). Those sanctions include:

1. An order that the matter questioned about be es-tablished in accordance with the claim of the serv-ing party (Pa. R. Civ. P. 4019(c)(1));

2. A refusal to allow the disobedient party to opposeclaims or defenses or prohibit them from introduc-ing certain testimony (Pa. R. Civ. P. 4019(c) (2));

28 PART III Discovery


3. striking of pleadings or parts thereof or stayingfurther proceedings until the order is obeyed orentering a judgment of non pros or by default (Pa.R. Civ. P. 4019(c)(3));

4. Punishment for contempt (Pa. R. Civ. P. 4019(c)(4));

5. Such order as the court deems (Pa. R. Civ.P. 4019(c) (5));

6. The payment of expenses and attorney fees, if anorder compelling discovery has not been compliedwith (Pa. R. Civ. P. 4019(g)(1)).

The granting of attorney fees for obtaining a courtorder for sanctions can only occur after there has alreadybeen a court order compelling the opposing party to makediscovery, and the opposing party has not complied withthat order (Pa. R. Civ. P. 4019(g)(1)). Attorney fees mayalso be granted against a party who files a motion or an ap-plication under the discovery rules for the purpose of badfaith or delay. If such costs are imposed, that party may nottake further action until the costs are paid nor may theparty recover the costs if ultimately successful in the ac-tion (Pa. R. Civ. P. 4019(h)).

CHAPTER 9 Depositions 29

CHAPTER 9Depositions

THE DEPOSITION

The deposition is an oral examination taken for thepurpose of discovery, preparation of pleadings, preparationfor trial of the case, or use at a hearing on pretrial proceed-ings or trial itself. The procedure is much the same as incourt with regard to the examination and cross-examina-tion of witnesses. Ordinarily, the attorneys, the parties, andthe witnesses to be deposed are present.

Oral depositions are governed by Pennsylvania Ruleof Civil Procedure 4007.1. Any party may take a deposi-tion of any person by oral examination. A person is de-fined as a natural person, corporation, partnership, or as-sociation (Pa. R. Civ. P. 76). There must be reasonablenotice given to the deponent and to all parties. It is notnecessary to subpoena a party to be deposed (Pa. R. Civ.P. 4007.1(a)), however, a subpoena is mandatory to requirea nonparty to attend a deposition (Pa. R. Civ. P.234.1(b)(2)).

The notice of deposition shall state the time and placeof the taking of the deposition and the name and address ofeach person to be examined, if known, or a general de-scription sufficient to identify the deponent or the class orgroup to which it belongs (Pa. R. Civ. P. 4007.1(b)). It isimportant that all parties are served with notice of the de-position, since a lack of notice would lead to the depriva-tion of cross-examination of a witness which may resultin the deposition being suppressed at the time of trial -(Hoover v. Haefner, 32 Lanc. L. Rev. 189).

Service of the notice may occur by handing or mailinga copy to each party at the address of the party’s attorney

of record (Pa. R. Civ. P. 440(a)(1)(i)). If there is no attorneyof record, service occurs by handing a copy to the party orby mailing a copy or by leaving a copy for the party at theaddress endorsed on an appearance or prior pleading, orthe residence or place of business of the party (Pa. R. Civ.P. 440(a)(2)(i)). If none of the above can be accomplished,service can be effected by leaving or mailing a copy to thelast known address of the party to be served (Pa. R. Civ. P.440(a)(2)(ii)). Facsimile transmission of the notice will beconsidered service if the parties agree or if a telephonenumber for facsimile transmission is included on an ap-pearance or prior legal paper filed with the court (Pa. R.Civ. P. 440(d)(1)).

It is not necessary to state the matters to be inquiredinto, unless the plaintiff has commenced the action by writof summons and desires to take the deposition for the pur-pose of preparing a complaint. If this is the case, a briefstatement as to the nature of the cause of action and of thematters to be inquired into shall be included on the notice(Pa. R. Civ. P. 4007.1(c)).

The party taking the deposition of another party mayinclude a request for production of documents with thenotice of deposition. If the person to be examined is not aparty, the person must be served with subpoenaduces tecum to produce designated materials (Pa. R. Civ.P. 4007.1(d)(1) and (2)). If a non-party is to be examinedby deposition, he can be served with a subpoena ducestecum to produce materials specifically designated in thenotice. The witness must produce these materials at the


deposition. (Pa. R. Civ. P. 4007.1(d)(2)). If the person to bedeposed is a public or private corporation, a partnership orassociation, or a governmental agency, the notice must de-scribe with reasonable particularity the matters to be in-quired into and the materials to be produced. Such an or-ganization must then designate one or more officers,directors or managing agents, or other persons who con-sent to testify on its behalf. A subpoena shall advise a non-party organization of its duty to make such a designation(Pa. R. Civ. P. 4007.1(e)).

Generally a deposition may be taken without leave ofcourt (Pa. R. Civ. P. 4007.2(a)), although, leave of court isrequired if the plaintiff takes the deposition prior to the ex-piration of thirty (30) days after service of the originalprocess and the defendant has not otherwise sought dis-covery, unless the person to be examined is aged or infirmor is about to leave the county where the action is pendingfor a place outside the commonwealth or a place more than100 miles from the courthouse where the action is pending(Pa. R. Civ. P. 4007.2(b)). The attorney must sign the no-tice of deposition setting forth facts as to why leave ofcourt is not required prior to the expiration of the thirty(30) day period (Pa. R. Civ. P. 4007.2(c)).

Leave of court is also required where a plaintiff whohas asserted a professional liability claim (40 P.S.

§1303.503), seeks discovery with respect to the claimprior to the filing of a certificate of merit. (Pa. R. Civ. P.1042.5). While discovery is prohibited in simple support,custody or Protection from Abuse proceedings, it can betaken with leave of court in alimony, equitable distribu-tion, counsel fee and expense, and complex support pro-ceedings (Pa. R. Civ. P. 1930.5).

If the deponent is in prison, the deposition may betaken only by leave of court and upon such terms as thecourt set (Pa. R. Civ. P. 4007.2(d)). If the deponent is anexpert whose opinions or reports have already been dis-closed in response to interrogatories, the deposition of theexpert can only be taken by leave of court (Pa. R. Civ.P. 4003.5(a)(2)).

Pursuant to Pa. R. Civ. P. 4008, when a deposition is tobe taken more than one hundred (100) miles from thecourthouse, the court, upon motion, may make an order re-quiring the payment of reasonable expenses, including at-torney fees.

Depositions may not be served in bad faith and mustrelate to a matter that is not privileged. Depositions shallnot require making an unreasonable investigation by aparty or witness, or cause unreasonable annoyance, em-barrassment, oppression, burden, or expense (Pa. R. Civ.P. 4011).


THE NATURE OF THE ORAL DEPOSITION

Depositions shall be taken before an officer authorized toadminister oaths by the laws of the United States or theCommonwealth of Pennsylvania or of the place wherethe deposition is to take place, or by a person appointed bythe court (Pa. R. Civ. P. 4015(a)). At most times, this per-son will be either an official court reporter or a privatecourt reporter or an employee of a court reporting service.However, no deposition shall be taken before a personwho is a relative, employee, or attorney of any of the par-ties or a relative or employee of the attorney or a personfinancially interested in the action (Pa. R. Civ. P. 4015(c)).

Objection to the taking of a deposition due to the dis-qualification of the person before whom it is to be taken iswaived unless made before the taking of the deposition oras soon thereafter as it becomes known or could have beenknown with reasonable diligence (Pa. R. Civ. P. 4016(a)).Objections to the competency of a witness or competency,relevancy, or materiality of the testimony are not waivedby failure to make them before or during the deposition,unless the objection was known to the objecting party atthe time and which might have obviated or removed theobjection if made at that time (Pa. R. Civ. P. 4016(b)).

Errors and irregularities occurring at the oral deposi-tion that might have been obviated, removed, or cured ifobjections had been promptly made are waived unless sea-sonable objection is made at the deposition (Pa. R. Civ.P. 4016(c)). Any errors and irregularities in the notice of

deposition are waived unless written objection is promptlyserved upon the party giving notice (Pa. R. Civ.P. 4016(d)).

Prior to the start of the deposition, the person beforewhom the deposition is taken shall put the witness underoath or affirmation and shall personally or by someone act-ing under its direction and in its presence record the testi-mony of the witness (Pa. R. Civ. P. 4017(a)). The court re-porter will swear the witness in and then the deposingparty will begin its questioning of the deponent. The wit-ness’s testimony shall be transcribed and any objections tothe preparation or correctness of the transcript are to befiled in writing with the court, promptly after discovery of the grounds of objection (Pa. R. Civ. P. 4017(b)).

If a deponent refuses to be sworn or answer any ques-tion, the deposition shall be completed on other matters orbe adjourned as the proponent may prefer. After reason-able notice to all persons affected, the proponent mayapply to the court, where the action is pending or wherethe deposition is taken, for an order compelling the wit-ness to be sworn or to answer the question, under penaltyof contempt, except where the deposition of a witness (nota party) is taken outside the commonwealth. In this case,the application must be made to the court of the jurisdic-tion in which the deposition is to be taken (Pa. R. Civ. P.4019(b)).


Following the transcription, a copy of deposition shallbe submitted to the witness for inspection and signing un-less waived by the witness and the parties (as is commonlydone in practice) or the witness is ill, cannot be found, orrefuses to sign. A witness shall make any changes on thedeposition and state his or her reasons for the changes. Ifnot signed within thirty (30) days, the deposition may beused as though signed, unless the court holds that the rea-son given for the refusal to sign requires the rejection ofthe deposition in whole or in part (Pa. R. Civ. P. 4017(c)).

Upon motion, the court may enter an appropriateorder regarding sanctions of a person, an officer, or man-aging agent of a party or a person designated to be exam-ined under Pennsylvania Rule of Civil Procedure4007.l(e), who after notice fails to appear before the per-son who is to take the deposition (Pa. R. Civ. P.4019(a)(1)(iv)), or if a party or deponent, or an officer ormanaging agent of a party or deponent induces a witnessnot to appear (Pa. R. Civ. P. 4019(a)(1)(v)). PennsylvaniaRule of Civil Procedure 4019 provides the sanctions avail-able to the court to impose for failure to participate in thetaking of a deposition.

In addition to sanctions against the party being de-posed, if the party giving notice of the deposition fails toattend and another party attends in person or by attorneypursuant to the notice of deposition, the court may orderthe party giving such notice to pay the reasonable ex-penses, including attorney fees incurred by the party andits attorney in attending (Pa. R. Civ. P. 4019(e)). The samewould be true if a deponent fails to show and was notserved with a subpoena to appear (Pa. R. Civ. P. 4019(f)).

At trial, any portion of or the entire deposition, if oth-erwise admissible under the rules of evidence, may beused against any party who was present or represented atthe deposition or who had notice thereof in accordancewith the following:

1. Any deposition may be used by any party for thepurpose of contradicting or impeaching the testi-

mony of a deponent as a Witness (Pa. R. Civ. P.4020(a)(1));

2. The deposition of a party or of anyone who at thetime of the taking of the deposition was an officer,director, or managing agent of a party or persondesignated to testify on behalf of a public or pri-vate corporation, partnership or association orgovernmental agency which is a party (Pa. R. Civ.P. 4020(a)(2));

3. The deposition of any witness may be used by anyparty for any purpose if the witness is dead, thewitness is at a distance greater than one hundred(100) miles from the place of the trial or outsidethe commonwealth, unless the absence is causedby the party seeking to use the deposition; the wit-ness is unable to attend trial due to age, sickness,infirmity, or imprisonment; if the party offeringthe deposition has been unable to subpoena thewitness; and upon application or notice that ex-ceptional circumstances exist and the interest ofjustice allow the deposition to be used (Pa. R. Civ.P. 4021(a)(3));

4. The deposition of a medical witness may be usedat trial whether or not the witness is available totestify (Pa. R. Civ. P. 4020(a)(5)).

The substitution of parties does not affect the right touse depositions and when an action is dismissed and an-other action is brought on the same subject and involvingthe same parties, all depositions previously taken and dulyfiled in the former action may be used in the latter actionas if originally taken therein (Pa. R. Civ. P. 4020(b)).

Objections, not waived under Pennsylvania Rule ofCivil Procedure 4016(b), may be made at the trial or hear-ing to receive in evidence all or part of any deposition forany reason that would require the exclusion of the evi-dence if the witness were present and testifying (Pa. R.Civ. P. 4020(c)).

CHAPTER 9 Depositions 31

SPECIAL TYPES OF DEPOSITIONS

Pennsylvania Rule of Civil Procedure 4004 provides forthe use of deposition by written interrogatories to a non-party, including nonpersons such as corporations, partner-ships, associations, or government agencies. A copy of allinterrogatories for taking of a deposition is transmitted toan officer authorized to take depositions. The answers areprovided by means of oral testimony, which is transcribed.

Within thirty (30) days of receipt of written interroga-tories, other parties may serve and file cross-interrogatories(Pa. R. Civ. P. 4004(a)(1)). Additional interrogatories mustbe served and filed within ten (10) days (Pa. R. Civ. P.4004(a)(1)).The same sanctions apply for refusal to answeras for regular interrogatories.

In addition to normal stenographic recording of thedeposition, a deposition may be videotaped (Pa. R. Civ. P.4017.1(a)) and may be used in court only if accompaniedby a transcript (Pa. R. Civ. P. 4017.1(a)(2)). If the witnessis an expert, other than a party, the deposition may be usedat trial for any purpose, whether or not the person is avail-able to testify (Pa. R. Civ. P. 4017.1(g)).

This procedure would be used for persons who wouldbe unavailable for trial or for physicians whose appear-ances at trial, due to their schedules are difficult toarrange. The use of a videotape is more compelling to ajury than the simple reading of a transcript. It permitsa jury to view the demeanor of the deponent for


themselves, which is impossible to ascertain from a meretranscript.

Every notice or subpoena (to nonparties) for the tak-ing of a videotape deposition shall state that it is to bevideotaped, the name and address of the person whose de-position is to be taken, the name and address of the officerbefore whom it is to be taken, whether the deposition is tobe simultaneously recorded by stenographic means, and the name and address of the videotape operator and his orher employer, The operator may be an employee of the at-torney taking the deposition (Pa. R. Civ. P. 4017.1(b)).

The deposition shall begin with the operator stating,on camera, its name and address, the name and address ofits employer, the date, time and place of the deposition, the

caption of the case, the name of the witness, and the partyon whose behalf the deposition is being taken, The officerswearing in the witness shall identify itself and swear inthe witness on camera. At the conclusion of the deposition,the operator shall state, on camera, that the deposition is concluded (Pa. R. Civ. P. 4017.1(c)).

The deposition shall be timed with the use of a digitalclock on camera showing continually the hour, minute,and second of each tape (Pa. R. Civ. P. 4017.1(d)). The wit-ness is not required to sign the deposition (Pa. R. Civ.P. 4017.1(e)). The attorney taking the deposition shall re-tain the copy of the deposition and shall supply a copythereof upon the request and at the cost of a party (Pa. R.Civ. P. 4017.1(f)).


CHAPTER 10 Interrogatories

INTERROGATORIES

Pennsylvania Rule of Civil Procedure 4005 governs writteninterrogatories to a party, including additional defendantsas well as co-defendants. Pennsylvania Rule of Civil Proce-dure 4005 limits written interrogatories to a party, whereasa deposition by written interrogatories is covered by Pa. R.Civ. P. 4004. The use of interrogatories is not exclusive andother available means of discovery may be also used.

As a general rule, written interrogatories may beserved at any time including with the original process (Pa.R. Civ. P. 4005(a)). Service is accomplished by hand deliv-ery to a party or its attorney of record or by the mailing ofthe same (Pa. R. Civ. P. 440(a)).

DRAFTING INTERROGATORIES

There are limits placed upon the use of written interroga-tories. They may not be served in bad faith and must relateto a matter that is not privileged. Interrogatories shall notrequire making an unreasonable investigation by a party orwitness or cause unreasonable annoyance, embarrassment,oppression, burden, or expense (Pa. R. Civ. P. 4011). Out-side these limits, interrogatories may relate to any matterdiscoverable pursuant to Pa. R. Civ. P. 4003.1– 4003.6.

Although interrogatories can be used to discover in-formation about documents, the production of the docu-ments cannot be accomplished with interrogatories andmust be done by a request for production of documents.

The party to whom the interrogatories are directedmay request the court to grant a protective order limitingor prohibiting the scope of the interrogatories (Pa. R. Civ.P. 4012). The court may make any protective order thatwould be appropriate under the circumstances of the casepursuant to Pa. R. Civ. P. 4019.

In addition, in divorce actions, the use of interrogato-ries are further limited and are not allowed except in

regard to claims for alimony and the determination anddistribution of property rights, unless authorized by spe-cial order of the court (Pa. R. Civ. P. 1930.5(b)).

The Pennsylvania Rules of Civil Procedure do notspecifically limit the number of interrogatories in a givenset, or the number of sets of interrogatories that may beserved, although the number may be limited, upon motionof the party served, by the court as justice requires to pro-tect the party from unreasonable annoyance, embarrass-ment, oppression, burden or expense (Pa. R. Civ.P. 4005(c)).

The Pennsylvania Rules of Civil Procedure providethat the interrogatories be served upon the party fromwhom the answers are requested (Pa. R. Civ. P. 4005(a)).The sets are to be prepared in such a manner as to allowthe answering party space to provide an answer or objec-tion. Although, if there is insufficient space, the remainderof the answer may be set forth on a supplemental sheet (Pa.R. Civ. P. 4006(a)(1)). The interrogatories need not be filedwith the prothonotary.


CHAPTER 11 Physical and Mental Examinations 33

DRAFTING ANSWERS TO INTERROGATORIES

Pennsylvania Rule of Civil Procedure 4006 governs themanner in which the responding party answers written in-terrogatories. Each interrogatory must be answered “fullyand completely” in writing by the party unless there is spe-cific written objection to the same, however, an objectionto one or more interrogatories does not excuse the answer-ing of the remaining questions (Pa. R. Civ. P. 4006(a)(2)).The interrogatory is to be answered by the party served (Pa. R. Civ. P. 4005(a)). Where that party is a public or pri-vate corporation, partnership or association, the answersare 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-mined from the records of the party served and where theburden of obtaining the answer is substantially the samefor either party, an answer may be made by specifying therecords and affording the serving party an opportunity toexamine and copy the records. However, the Pennsylvaniarules go beyond the federal rules, by allowing the option to be open to all records and not just business records.Pennsylvania also provides that the inquiring party mustalso provide any compilation, abstracts, or summaries ofthe records to the providing party (Pa. R. Civ. P. 4006(b)).

Interrogatories pertaining to the testimony of an ex-pert witness may be done by filing the report of the expertwitness or by having the interrogatories answered directlyby the expert (Pa. R. Civ. P. 4003.5(a)(1)(b)).

The party giving the answers to the interrogatories isrequired to sign the answers (Pa. R. Civ. P. 4006(a)(2)).But, when there are several respondents to the interrogato-ries represented by the same counsel, it is only necessarythat one of the respondents sign the answers. If an expertprepares its answer and/or report, it must be signed (Pa. R.Civ. P. 4003.5(a)(1)(b)).

The answering party must file and serve a copy of itsanswers within thirty (30) days of their receipt (Pa. R. Civ.P. 4006(a)(2)). A copy of the answers must be served uponevery party to the action (Pa. R. Civ. P. 440(a)). In additionto their use in obtaining information on an opponent’s

case, the answers to interrogatories may be used at trial(Pa. R. Civ. P. 4020) and in determining motions for sum-mary judgment (Pa. R. Civ. P. 1035.1(2)).

Although the Pennsylvania Rules of Civil Proceduredo not authorize a motion for more specific answers, somecourts of common pleas have authorized such a motion(Luken v. Antine, 65 D. & C. 2d 100 (1974); McBride v.Westinghouse Electric Corp., 30 Beaver Co. L. J. 201(1970)). Parties also have a duty to supplement previousresponses to interrogatories with respect to any questiondirectly addressed to the identity and location of personshaving knowledge of discoverable matters and the identityof each person expected to be called as an expert witness(Pa. R. Civ. P. 4007.4(1)), or when the party has knowl-edge that a response was incorrect when made or is nolonger true (Pa. R. Civ. P. 4007.4(2)).

A party may object to an interrogatory within thethirty (30) day period, and if it refuses to answer a particu-lar question it must state the reason for its objection (Pa. R.Civ. P. 4006(a)(2)). If the serving party wishes to contestthe objection, it may file a motion to the court for theserved party to provide an answer (Pa. R. Civ.P. 4006(a)(2)). The objection to any interrogatory shall besigned by the attorney making the objection (Pa. R. Civ.P. 4006(a)(2)). The local rules of court for the county inwhich the action is pending will govern the procedureused to determine the validity of the objection.

An interrogatory is not objectionable simply becausean answer will require an opinion or the application of lawto fact (Pa. R. Civ. P. 4003.1(c)). It is not grounds for anobjection that the information sought is inadmissible attrial, if the information sought is reasonably calculated tolead to discovery of admissible evidence (Pa. R. Civ.P. 4003.1(b)).

If a party fails to answer or object to the interrogato-ries, in whole or in part, within the prescribed time, thecourt may, upon motion of the inquiring party, imposesanctions for its failure to comply pursuant to Pa. R. Civ.P. 4019.

CHAPTER 11Physical and Mental Examinations

Pennsylvania Rule of Civil Procedure 4010(a) providesthat when the mental or physical condition of a party, or ofa person in the custody or under the legal control of a

party, is in controversy, the court may order the party tosubmit to physical or mental examination by a licensedphysician, licensed dentist, or licensed psychologist.


Physical examination may include blood or generic test-ing, generally used in cases to determine paternity and inchild support actions where a father has denied paternity.

Unlike written interrogatories and a request for pro-duction of documents, a physical and/or mental examina-tion can only be obtained by order of court (Pa. R. Civ.P. 4010(a)(2)). The rule does not limit the number of ex-aminations that are allowed, but more than one examina-tion would be a matter within the discretion of the court. Asecond examination may be permitted where there hasbeen a long time since the first examination or where thereis new information to be discovered.

The standard of in controversy is considered broad inPennsylvania. The reasoning behind the broad interpreta-tion is that to get to the truth of the underlying case, it isnecessary to have the person examined. Personal injuryactions would fall within the standard of in controversy.

The order may be made only upon motion for goodcause shown and upon notice to the person to be examinedand to all parties. The purpose of the good cause and no-tice is to protect parties and the persons under their legalcontrol against an invasion of their right to privacy. In ad-dition, the order shall specify the time, place, manner,conditions, and scope of the examination and the person(s)

by whom it is to be made (Pa. R. Civ. P. 4010(a)(3)). Theperson to be examined has the right to counsel or otherrepresentation (Pa. R. Civ. P. 4010(a)(4)(i)). This discoverydoes not apply to any actions which involve custody (Pa.R. Civ. P. 4010(a)(4)(ii)).

A copy of the detailed written report by the examinershall be delivered to the person examined setting forth itsfindings, including results of all tests made, diagnoses, andconclusions, together with like reports of all earlier exam-inations of the same condition (Pa. R. Civ. P. 4010(b)(l)). Ifsuch a report is requested and received, the recipient mustdeliver, on request, a copy of all prior or later examina-tions made by its physician (Pa. R. Civ. P. 4010(b)(l)).

If a party fails to comply with a court-ordered physi-cal and/or mental examination, the court may, upon mo-tion, impose sanctions for its failure to comply pursuant toPa. R. Civ. P. 4019.

When the earning capacity of a party, or of a person inthe custody or under the legal control of a party, is in con-troversy, the court may order the party to submit to an eval-uation by a suitably licensed or certified evaluator or toproduce for evaluation the person in the party’s custody orlegal control. (Pa. R. Civ. P. 4010.1).


CHAPTER 12Request for Documents

REQUESTING THE PRODUCTION OF DOCUMENTS

Pursuant to Pennsylvania Rule of Civil Procedure 4009.1,a nearly verbatim reproduction of Fed. R. Civ. P. 34, aparty may request any other party to: produce and permit inspection and copying of any designated documents thatfall within the scope of discovery and that are in the pos-session, custody, or control of the party served (Pa. R. Civ.P. 4009.1), or; to permit entry upon land or property in thepossession or control of the party served with the requestfor the purpose of inspecting, measuring, surveying, pho-tographing, testing, or sampling the property or any desig-nated object or operation thereon (Pa. R. Civ. P. 4009.1).

The request for production of documents must statethe items to be inspected, either by individual item or cat-egory, and must describe each item and category with rea-sonable accuracy (Pa. R. Civ. P. 4009.11(b)). One can alsorequest permission to enter upon real property (Pa. R. Civ.P. 4009.31).

A party may serve a request for production of docu-ments upon the plaintiff after the commencement of theaction or upon any other party with or after service of theoriginal process (Pa. R. Civ. P. 4009.11(a)).

It is not required that the requested documents be bothin the possession and control of the party, as long as thedocuments are under the party’s control. For example, sev-eral courts of common pleas have determined that medicalrecords are under the control of the party requested (KohrEstate, 71 D & C 2d 48 (1976)).

As in the case of other means of discovery, the requestfor production of documents may not be served in badfaith and must relate to a matter that is not privileged. Theproduction of documents shall not require making an un-reasonable investigation by a party or witness or cause un-reasonable annoyance, embarrassment, oppression, bur-den, or expense (Pa. R. Civ. P. 4011).


CHAPTER 13 Requests for Admissions 35

RESPONDING TO A REQUEST FOR DOCUMENTS

The party served with the request must file a written re-sponse within thirty (30) days after service of the request(Pa. R. Civ. P. 4009.12(a)). A party may also make an ob-jection, and the reasons therefore, to any such request forproduction (Pa. R. Civ. P. 4009.12(a)(1)). In addition toobjections, a party may seek a protective order under Pa.R. Civ. P. 4012.

If a party fails to respond to the request for productionof documents, the requesting party may move for sanc-tions under Pa. R. Civ. P. 4019(a).

As in the case of the federal rules, an independent ac-tion can be entertained against a party for production ofdocuments and permission to enter upon land (Pa. R. Civ.P. 4009.32(a)).

CHAPTER 13Requests for Admissions

THE REQUEST FOR ADMISSIONS

Under Pennsylvania Rule of Civil Procedure 4014(a), aparty may serve upon any other party a written request foradmission, for purposes of the pending action only. Thismethod of discovery is designed to reduce trial time by

eliminating or narrowing the issues and to clarify issuesraised in prior pleadings. It is not used to find facts, but tofind out what issues in the case will be contested.

DRAFTING THE REQUEST FOR ADMISSIONS

The request is limited to those matters within the scope ofthe discovery rules. The request can relate to statements oropinions of fact or of the application of law to fact, includ-ing the genuineness, authenticity, correctness, execution,signing, delivery, mailing, or receipt of any document (Pa.R. Civ. P. 4014(a)). Copies of any such documents must beincluded with the request for admission, unless they havealready been furnished, or are available for inspection andcopying in the county where the action is pending (Pa. R.Civ. P. 4014(a)). Documents include contracts, agree-ments, deeds, mortgages, leases, receipts, checks, booksof account, letters, maps, surveys, or memorandum.

The request can be served upon the plaintiff aftercommencement of the action or upon any other partywith or after service of original process (Pa. R. Civ.P. 4014(a)).

Each request must be separately set forth and isdeemed admitted unless a verified answer signed by theparty, which is not required by Fed. R. Civ. P. 36, or anobjection signed by the attorney is served within thirty(30) days of service. If the request is served with theoriginal process, the defendant need not file a responseuntil forty-five (45) days after service (Pa. R. Civ.P. 4014(b)).

RESPONDING TO THE REQUEST FOR ADMISSIONS

The answer must deny or admit the matter or state why adenial or admission cannot be made. A party may admitand deny part of any request (Pa. R. Civ. P. 4014(b)). Ananswering party cannot give lack of information as a rea-son for failure to admit or deny unless the party states itmade a reasonable inquiry and information known or read-ily available to it is not sufficient to form a response.

If a party requesting admission does not feel that theanswer is sufficient or that an objection is improper, it maymove the court for such a determination. If the court doesnot uphold an objection, it may order that the request beanswered. If the court rules on the sufficiency of the

answer, it may order either that the matter be admitted orthat an amended answer by served. The court may alsopostpone a determination of a request for admission to apretrial conference or a time designated prior to trial (Pa.R. Civ. P. 4014(c)).

Any matter admitted is conclusively established un-less the court, on motion, permits withdrawal or amend-ment of the admission when the presentation of the meritsof the action are served thereby and the party obtaining theadmission fails to show that such action will prejudice it inmaintaining its action or defense (Pa. R. Civ. P. 4014(d)).



37

Pennsylvania prefers that the parties be able to reach a set-tlement of their civil actions without the need of the casegoing to trial. Obviously, this helps to alleviate some of thecase load in the county courts that can cause a backlog ofpending cases. This policy is reflected in the case law thatprohibits offers of settlement or compromise to be admis-sible at a trial or hearing (Durant v. McKelvey. 187 Pa.Super. 461, 144 A.2d 527 (1987)). The reasoning behindthe decision is simple: if offers of settlement or compro-mise would be admissible, it would lead to a lack of suchoffers being made by the parties. If you are representing a defendant it is also important to at least make an offer inorder to preclude the imposition of delay damages.

The plaintiff in a civil action seeking monetary relieffor bodily injury, death or property damage, may also re-quest that damages for delay be added to the amount ofcompensatory damages (Pa. R. Civ. P. 238(a)(1)). Dam-ages for delay shall be awarded for the period of time froma date one year after the date that original process wasserved, up to the time of the award, verdict, or decision(Pa. R. Civ. P, 238(a)(2)).

The period of time for which damages for delay is cal-culated shall exclude the period of time after which thedefendant has made a written offer of settlement in a speci-fied sum with prompt cash payment to the plaintiff or astructured settlement underwritten by a financially respon-

sible entity, and continued that offer in effect for at leastninety (90) days or until commencement of trial, if theoffer is not accepted and the plaintiff does not recovermore than 125 percent of the amount offered, or duringwhich period the plaintiff caused delay of the trial (Pa. R.Civ. P. 238(b)).

The plaintiff must file a written motion for delay dam-ages within ten (10) days after the verdict or notice of thedecision (Pa. R. Civ. P. 238(c)). Any written notice mustinclude the notice required pursuant to Pa. R. Civ. P.238(c). The defendant may answer the motion withintwenty (20) days of the filing of the motion (Pa. R. Civ. P.238(c)(1)). The court may not rule on a motion for delaydamages until all posttrial motions have been decided (Pa.R. Civ. P. 238(c)(3)(i)).

In an action being heard by a board of arbitrators, theplaintiff must notify the defendant of the intention to re-quest delay damages at least twenty (20) days prior to thehearing. The defendant who objects to the request mustsubmit a statement within ten (10) days setting forth theobjections and whether the defendant made an offer, in-cluding date and amount of offer, in writing. The partiesmust also state therein if any of the delay is attributable tothe plaintiff. The board of arbitrators will then decide if theawarding of delay damages is appropriate (Pa. R. Civ. P.238(d)(1)).

PART IVPretrial, Trial and Posttrial

CHAPTER 14Settlements and Dismissals

SETTLEMENT OFFERS

DISMISSALS, CONSENT DECREES, AND DISTRIBUTION OF FUNDS

A discontinuance is the exclusive method to voluntarilyterminate an action, in whole or in part, by the plaintiff be-fore commencement of the trial (Pa. R. Civ. P. 229(a)). Adiscontinuance may not be entered to less than all defen-dants, except upon written consent of all parties, without

leave of court and after notice to all parties (Pa. R. Civ. P.229(b)). The court, upon petition and after notice, maystrike off a discontinuance in order to protect the rights ofany party from unreasonable inconvenience, vexation, ha-rassment, expense, or prejudice (Pa. R. Civ. P. 229(c)).


Court approval of a discontinuance must be obtainedin any action in which a minor is party (Pa. R. Civ. P.2039(a)), an action for wrongful death in which a minor orincapacitated person has a beneficial interest (Pa. R. Civ. P.2206(a)), an action in which an incapacitated person is aparty (Pa. R. Civ. P. 2064), or in class actions (Pa. R. Civ.P. 1714(a)).

A judgment of non pros is a judgment entered on mo-tion of the defendant, involuntarily terminating an actionon the ground of the plaintiff ’s delay in the prosecution ofthe action at any stage of the proceeding (Holliday v.Foster, 221 Pa. Super. 388, 292 A.2d 438 (1972)). Entry ofnon pros is proper when a party to the proceeding hasshown a want of due diligence in failing to proceed withreasonable promptness, there has been no compelling rea-son for the delay, and the delay has caused some prejudiceto the adverse party, such as the death of or unexplained absence of material witnesses. Prejudice, however, forpurposes of entering non pros, is not limited to the death orabsence of material witnesses, but may also attach where,because of delay, there is loss of documentary evidence orany substantial diminution in a party’s ability to properlypresent its case (Neshaminy Constructors, Inc. v. Ply-mouth Township, 132 Cmwlth. Ct. 229, 572 A.2d 814(1990)).

The usual means of having a request of non prosbrought to the attention of the court is through a petitionand hearing thereon. Procedure for the entry of a judgmentby non pros is governed by Pennsylvania Rule of CivilProcedure 237.1. No judgment of non pros for failure tofile a complaint or by default for failure to plead can be en-tered by the prothonotary unless the praecipe for entryincludes a written certification that written notice of theintent to file was mailed or delivered at least ten days priorto the filing of the praecipe. (Pa. R. Civ. P. 237.1(2)(i)).However, where an action is not commenced by a com-plaint (either by writ of summons or an appeal from a de-cision of a district justice), the prothonotary, uponpraecipe of the defendant, shall enter a rule upon the plain-tiff to file a complaint. If a complaint is not filed withintwenty (20) days after service of the rule, the prothonotary,upon praecipe of the defendant, shall enter a judgment ofnon pros (Pa. R. Civ. P. 1037(a)).

Where a case is called for trial, if without satisfactoryexcuse a plaintiff is not ready, the court may enter a non-suit on motion of the defendant or a non pros on the court’sown motion (Pa. R. Civ. P. 218(a)).

In addition, a voluntary nonsuit shall be the exclusivemethod of termination of an action, in whole or in part by

the plaintiff during trial (Pa. R. Civ. P. 230(a)). A voluntarynonsuit can only be obtained with court approval upongood cause shown and cannot be granted after the close ofevidence. (Pa. R. Civ. P. 230(b)).

A compulsory or involuntary nonsuit is ordered by thecourt upon the failure of the plaintiff to substantiate hisclaim by evidence. In an action involving only one plain-tiff and one defendant, the court may enter nonsuit uponthe defendant’s motion if, at the close of plaintiff ’s case onliability, the plaintiff has failed to establish a right to relief.(Pa. R. Civ. P. 230.1(a)(1)). The court considers only theevidence presented by plaintiff and any evidence favorableto plaintiff presented by defendant prior to the close ofplaintiff ’s case. (Pa. R. Civ. P. 230.1(a)(2)). A compulsorynonsuit can also be entered against any plaintiff in a suitinvolving multiple plaintiffs and defendants. Where thereis more than one plaintiff, a nonsuit cannot be entered untilthe close of evidence for all the plaintiffs. (Pa. R. Civ. P.230.1(b)). Nonsuit can be entered in favor of all defen-dants or any of the defendants if all defendants stipulate onthe record that no evidence will be presented that wouldestablish the liability of the moving defendant. (Pa. R. Civ.P. 230.1(c)).

When a plaintiff has joined two or more defendants and the evidence does not justify a recovery against all ofthem, the court shall enter a nonsuit or direct a verdict infavor of any defendant not shown to be liable either jointly,severally or separately. Further, the action shall continuedetermination of which the remaining defendants arejointly, severally, or separately liable with the same effectas though the defendants found to liable were the onlyones joined. As in other cases, the court may enter judg-ment, notwithstanding the verdict, in favor of or againstany of such defendants (Pa. R. Civ. P. 2232(d)).

A discontinuance or nonsuit shall not affect the rightof the defendant to proceed with a previously filed coun-terclaim (Pa. R. Civ. P. 232(a)). A counterclaim may not beterminated, in whole or in part, by the defendant, except bydiscontinuance or voluntary nonsuit; this is subject to con-ditions similar to those applicable the plaintiff (Pa. R. Civ.P. 232(b)).

After a discontinuance or voluntary nonsuit, the plain-tiff may commence a second action upon the same causeof action upon payment of the costs of the former action(Pa. R. Civ. P. 231(a)). A plaintiff may not commence asecond action upon the same cause of action after the entryof a compulsory nonsuit (Pa. R. Civ. P. 231(b)).

38 PART IV Pretrial, Trial and Posttrial


CHAPTER 15 Trial Techniques 39

CHAPTER 15 Trial Techniques

PREPARATION OF WITNESSES

A subpoena is an order of the court commanding a personto attend and testify at a particular time and place. It mayalso require the person to produce documents or thingsthat are under the possession, custody, or control of thatperson (Pa. R. Civ. P. 234.1(a)). The subpoena may be used to command a person to attend and to produce documentsor things only at a trial or hearing in an action or proceed-ing pending in the court or the taking of a deposition in anaction or proceeding pending in the court (Pa. R. Civ. P.234.1(b)). A court may compel the attendance of any per-son confined in jail or prison by issuing, upon motion, anorder directed to the custodian of the person so confined torelease the person to the custody of a sheriff or other ap-propriate agent (Pa. R. Civ. P. 234.2(d)).

The subpoena is issued by the prothonotary at the re-quest of a party (Pa. R. Civ. P. 234.2(a)). A copy of the sub-poena may be served in the same manner as original serviceupon any adult in the commonwealth pursuant to Pa. R. Civ.P. 402(a), or by any form of mail requiring a return receipt,with postage prepaid and restricted delivery. Service iscomplete upon delivery of the mail to the defendant or anyof the persons referred to in Pa. R. Civ. P. 402(a)(2) (Pa. R.Civ. P. 234.2(b)). Service of the subpoena may be made byordinary mail and must contain two copies of the Noticeand Acknowledgment prescribed by Pa. R. Civ. P. 234.9,and a self-addressed, stamped envelope (Pa. R. Civ. P.234.2(c)). However, no bench warrant may be issued and noadjudication of contempt may be made for nonappearanceof a witness served by ordinary mail, unless the witness hasreturned a signed acknowledgment (Pa. R. Civ. P. 234.5(a)).

A party must also include with the subpoena, the feefor one day’s attendance and round-trip mileage, whichshall be tendered upon demand at the time the person isserved with the subpoena. If a subpoena is served by mail,a check in the amount of one day’s attendance and round-trip mileage shall be enclosed with the subpoena (Pa. R.Civ. P. 234.2(c)).

The manner of requiring a party to attend a hearing ortrial is somewhat different from that of witnesses. A party

may compel the attendance of another party or officer ormanaging agent thereof for trial or hearing by servingupon that party a notice to attend. The notice shall beserved reasonably in advance of the date upon which at-tendance is required. The notice may also require the partyto produce documents or things (Pa. R. Civ. P. 234.3(a)). Ifthe attendance of another party is not required, a party maycompel the production of documents or things by the otherparty by serving upon that party a notice to produce (Pa.R. Civ. P. 234.3(b)).

Service of the notice to attend and a notice to pro-duce is accomplished by leaving a copy, mailing or fax-ing a copy to the party at his or her address or to itsattorney, of record (Pa. R. Civ. P. 440(a)). If there is no at-torney of record, service is achieved within the county byleaving a copy for or mailing a copy to the party at theresidence or place of business of that party (Pa. R. Civ.P. 440(a)).

The party serving a subpoena or a notice to attend or anotice to produce may excuse compliance with the same(Pa. R. Civ. P. 234.4(a)). A motion to quash a subpoena,notice to attend, or notice to produce may be filed by aparty or by the person served. After hearing, the court maymake an order to protect a party or witness from unrea-sonable annoyance, embarrassment, oppression, burden,or expense (Pa. R. Civ. P. 234.4(b)).

If a witness fails to comply with a subpoena, the courtmay issue a bench warrant and, if the failure to comply iswillful, may adjudge the witness to be in contempt, exceptwhen service of the subpoena is by mail (Pa. R. Civ. P.234.5(a); If a party fails to comply with a subpoena, a no-tice to attend, or a notice to produce, the court may enterany order imposing sanctions authorized under Pa. R. Civ.P. 4019(c) and if the failure to comply is in bad faith, thecourt may impose on that party the reasonable expenses incurred by the opposing party by reason of such delay orbad faith, including attorney fees. If the failure is willfulthe court, after hearing, may adjudge the party to be incontempt (Pa. R. Civ. P. 234.5(b)).

THE JURY PROCESS

Parties to a civil action have a constitutional and a statutoryright to a jury trial (Pa. Const. Art. I § 6; 42 Pa. C. S. A. §5104(a)).The constitutional guarantee only applies in those

cases where the matter of right to a jury trial was establishedat the time the constitution was enacted (William GoldmanTheaters. Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 (1961)).


There is no right to jury trial in those cases involvinglegislatively created causes of action, unless the legislationgives that right (Zabka v. Allegheny County Health Dept.,130 Pitts. Leg. J. 309 (1982)). There is no right to a jurytrial in equity cases (Rosenberg v. Rosenberg. 276 Pa.Super. 203, 419 A.2d 167 (1980)); however, the court onits own motion or upon the petition of any party, may sub-mit to trial by jury any or all issues of fact, but the verdictof the jury is not binding upon the court (Pa. R. Civ. P.1513).

There is no right to trial by jury in divorce proceed-ings, but either party in a divorce or annulment may re-quest a court to have a jury trial as to issues of fact, unlessit would be prejudicial to public morals (23 Pa. C. S. A. §3322). In addition, support and custody proceedings arenot subject to trial by jury, although in matters of deter-mining paternity, the defendant does have a right to a jurytrial (Commonwealth v. Dillworth. 431 Pa. 479, 246 A.2d859 (1968)).

In any action in which the right to jury trial exists, thatright shall be deemed waived unless a party files andserves a written demand for a jury trial not later thantwenty (20) days after service of the last permissiblepleading. The demand shall be made by endorsement on apleading or by a separate writing (Pa. R. Civ. P. 1007.1(a)).Where an appeal is taken from an award in compulsory ar-bitration and a jury trial has not theretofore been de-manded, the right to a jury trial shall be deemed waivedunless the appellant endorses a demand for a jury trial onits appeal, or unless the appellee files and serves a writtendemand for a jury trial not later than ten (10) days afterbeing served with the notice of appeal (Pa. R. Civ. P.1007.1(b)). The request for jury trial is generally placed inthe complaint; many times in the same paragraph as the request for relief.

A demand for a trial by jury may not be withdrawnwithout the consent of all parties who have appeared in theaction (Pa. R. Civ. P. 1007.1(c)(1)). A demand for a jurytrial on behalf of a party shall be deemed withdrawn if, atthe time a case is called for trial, that party without satis-factory excuse fails to appear, or appears but is not ready.Any other party appearing and ready who has not alreadydemanded a trial a jury shall forthwith demand a trial byjury or shall be deemed to have waived the same (Pa. R.Civ. P. 1007.1(c)(2)).

Even in cases where, historically, the parties would beentitled to a jury trial, the case may be referred to compul-sory arbitration (42 Pa. C. S. A. § 7361). PennsylvaniaRules of Civil Procedure 1301 et seq. govern compulsory arbitration. The deciding factor in determining whether acase is referred to compulsory arbitration depends upon

the amount in controversy. The amount is determined bythe county in which the action is pending.

Every citizen of voting age is qualified to be a juror,unless unable to read, write, speak, and understand theEnglish language or is incapable, by reason of mental orphysical infirmity or has been convicted of a crime pun-ishable by imprisonment for more than one year and hasnot been granted a pardon or amnesty therefrom (42 Pa. C.S. A. § 4502). The jury selection list is composed of allvoter registration lists in the county and may be supple-mented by additional sources, such as telephone directo-ries, tax assessment, or school census (42 Pa. C. S. A. §4521(a)).

The civil jury will consist of twelve members. Eachparty shall be entitled to four peremptory challenges toprospective jurors, which are exercised in turn beginningwith the plaintiff and following in the order in which theparty was named or became a party to the action. In orderto achieve a fair distribution of challenges, the court in anycase may allow additional peremptory challenges and allo-cate them among the parties. Where there is more than oneplaintiff or defendant or more than one additional defen-dant, the court may consider any one or more of suchgroups as a single party (Pa. R. Civ. P. 221). The peremp-tory challenge allows a party to strike off a juror withoutcause.

In addition to peremptory challenges, a party has anunlimited number of challenges for cause. Grounds tochallenge a juror for cause would include situations wherea juror has expressed an opinion as to the case, has shownprejudice towards a party, or knows one of the parties.

Subject to the requirements of due process of law andof the constitutional rights of the parties, the court maymake and enforce rights and orders that (1)limit the num-ber of witnesses whose testimony is similar or cumulative;(2)limit the number of attorneys representing the sameparty or group of parties who may actively participate inthe trial; (3) regulate the length and number of addresses tothe jury or to the court; and (4) regulate or exclude thepublic from the proceeding (Pa. R. Civ. P. 223). When ajury trial is expected to last more than two (2) days, thecourt, in its discretion, may permit jurors to take notes (Pa.R. Civ. P. 223.2).

The Pennsylvania Rules of Evidence, adopted by theSupreme Court of Pennsylvania in 1998, apply to all tri-als, hearings and proceedings which began on or afterOctober 1, 1998. Although the Pennsylvania rules closelyfollow the format of the Federal Rules, the guiding prin-ciple in creating state specific rules of evidence was topreserve the substance of Pennsylvania’s common law ofevidence.



CHAPTER 16 Posttrial Practice 41

CHAPTER 16Posttrial Practice

TRIAL AND POSTTRIAL MOTIONS

Posttrial motions are not available in every action and maynot be filed to orders directing partition (Pa. R. Civ. P.1557); orders of support (Pa. R. Civ. P. 1910.11(k) and1910.12(g)); orders of custody, partial custody, or visita-tion of children (Pa. R. Civ. P. 1915.10(b)); or a final de-cree of divorce based upon a master’s report (Pa. R. Civ. P.1920.55-2(e)).

Posttrial relief may not be granted unless the groundstherefore, if then available, were raised in a pretrial pro-ceeding or by motion, objection, point for charge, requestfor findings of fact or conclusions of law, offer of proof, orother appropriate method at trial. The motion shall statehow the grounds were asserted in pretrial proceedings or attrial. Grounds not specified in the motion are deemedwaived, unless leave is granted upon cause shown to spec-

ify additional grounds (Pa. R. Civ. P. 227.1(b)). The rea-sons for relief must be specified in the motion, along withthe relief requested. A party may seek relief in the alterna-tive (Pa. R. Civ. P. 227.1(d)).

A party must file posttrial motions within ten (10)days after the verdict, discharge of the jury because of in-ability to agree, or nonsuit in the case of a jury trial; or no-tice of nonsuit or the filing of the decision or adjudicationin the case of a trial without jury or an equity trial (Pa. R.Civ. P. 227.1(c)). If one party has filed a motion for post-trial relief, any other party may file a posttrial motionwithin ten (10) days after the filing of the first posttrial mo-tion (Pa. R. Civ. P. 227.1(c)). A copy of the posttrial motionshall be promptly served upon every other party to the ac-tion as well as to the trial judge (Pa. R. Civ. P. 227.1(f )).

THE PRELIMINARY STEPS IN THE APPEAL

No order of a court may be appealed until it has been en-tered upon the appropriate docket in the lower court (Pa.R. App. P. 301(a)). With minor exceptions spelled out inthe statute, any appeal must be taken within thirty (30)days (42 Pa. C. S. A. 5571(b)). The time period applies toall appeals and is uniform throughout the state and thecourt system. Prior to appealing any order, it must first bedetermined what kind of order was entered by the courtand to which court the appeal is to be made. As previ-ously stated, appeals from the courts of common pleascan go to either commonwealth court or superior court,depending upon the case. Generally, those cases in whichthe commonwealth or a political subdivision is a partywill go to the commonwealth court criminal cases andcivil cases involving only private parties will go to the su-perior court,

The Rules of Appellate Procedure set forth two typesof appeals: interlocutory appeals and appeals from finalorders. Interlocutory appeals are further divided into ap-peals as of right and by permission. Pursuant to Pa. R.App. P. 311, an interlocutory appeal in a civil case may betaken as of right from:

1. An order refusing to open, vacate, or strike off ajudgment;

2. An order confirming, modifying or dissolving, orrefusing to confirm, modify or dissolve an attach-ment, custodianship, receivership, or similar

matter affecting the possession or control of prop-erty except for attachments pursuant to thePennsylvania Divorce Code;

3. An order granting, continuing, modifying, refus-ing, or dissolving injunctions or refusing to dis-solve or modify injunctions, except for those pur-suant to the Pennsylvania Divorce Code;

4. An order in a civil action or proceeding awardinga new trial;

5. An order directing partition;

6. An order that is made appealable by statute orgeneral rule;

7. An order in a civil action or proceeding sustainingthe venue of the matter or jurisdiction over theperson or over real or personal property if theplaintiff, petitioner, or other party benefitting fromthe order files of record within ten (10) days afterthe entry of the order an election that the ordershall be deemed final or the court states in theorder that a substantial issue of venue or jurisdic-tion is presented; or

8. An order in a civil action or proceeding changingvenue, transferring the matter to another court ofcoordinate jurisdiction, or declining to proceed inthe matter on the basis of forum non conveniens oranalogous principles.


Although a party may file an appeal to either the com-monwealth court or the superior court and may do so as ofright, unless the case falls within the Supreme Court’smandatory appellate jurisdiction, a party does not have aright to have its appeal heard by the Supreme Court.

Not every case has an automatic right of appeal to theSupreme Court of Pennsylvania, and in those cases, theparty files a Petition for Allowance of Appeal and a repro-duced record (Pa. R. Civ. P. 1112). The Petition for Al-lowance of Appeal is governed by Pa. R. App. P. 1115 andshall contain the following:

1. A reference to the official and unofficial reports ofthe opinions delivered in the courts below, if any,and if reported. Any such opinion shall be ap-pended.

2. The text of the order in question, or the portionsthereof sought to be reviewed, and the date of itsentry in the appellate court below.

3. The questions presented for review, expressed inthe terms and circumstances of the case, but with-out unnecessary detail. The statement of questions

presented will be deemed to include every sub-sidiary question fairly comprised therein. Only thequestions set forth in the petition, or fairly com-prised therein, will ordinarily be considered by thecourt in the event an appeal is allowed.

4. A concise statement of the case containing thefacts material to a consideration of the questionspresented.

5. A concise statement of the reasons relied upon forallowance of an appeal.

6. There shall be appended to the petition a copy ofany opinions delivered relating to the order soughtto be reviewed, as well as all opinions of govern-ment units or lower courts in the case, and, if ref-erence thereto is necessary to ascertain thegrounds of the order, opinions in companioncases.

7. There shall be appended to the petition the verba-tim texts of the pertinent provisions of constitu-tional provisions, statutes, ordinances, regulationsor other similar enactments that the case involves.


THE APPELLATE BRIEF

The appellate brief and reproduced record are governed byPennsylvania Rule of Appellate Procedure 2101 et seq.The appellant’s brief consists of a statement of jurisdic-tion, a statement of the scope and standard of review, theorder or other determination in question, a statement of thequestions involved, the statement of the case, the summaryof argument, the argument, a short conclusion stating theprecise relief sought, and the opinions and pleadings thatare relevant to the questions presented on appeal (Pa. R.Civ. P. No 2111(a)).

The brief of the appellee, except as otherwise pre-scribed by the appellate rules, need only contain a sum-mary of argument and the complete argument for the ap-pellee. However, the appellee may add a counterstatementof the questions involved and a counterstatement of thecase. Unless the appellee does so, or the brief of the ap-pellee otherwise challenges the questions involved or thestatement of the case as stated by appellant, it will be as-sumed the appellee is satisfied with them, or with suchparts of them as remain unchallenged (Pa. R. Civ. P. No 2112).

The appellant may file a brief in reply to mattersraised by the appellee’s brief not previously raised in theappellant’s brief, and if the appellee has cross-appealed,the appellee may file a similarly limited brief in reply tothe response of the appellant to the issues presented by thecross-appeal (Pa. R. Civ. P. No 2113(a)).

A party also files a reproduced record of the pleadingsand filings in the lower court along with the brief. The

reproduced record, which can be either separate from orattached to the brief depending upon the size of the record,shall contain all relevant docket entries, any relevant re-lated matter as well as any relevant portions of the plead-ings, charge or findings, any other parts of the record towhich the parties wish to direct the particular attention ofthe appellate court (Pa. R. Civ. P. No 2152(a)).

The schedule for filing briefs will be set by the pro-thonotary of the appellate court. It is based upon the timeestimated when the case will be argued or submitted to thecourt (Pa. R. Civ. P. No 2185(b)). If there is no date fixedby the prothonotary, the appellant’s brief is to be filedwithin forty (40) days of the filing of the record of thelower court. The appellee must serve its brief within thirty(30) days after service of the appellant’s brief. A replybrief must be filed within fourteen (14) days after serviceof the preceding brief (Pa. R. Civ. P. No 2185(a)).

Twenty-five (25) copies of the brief and reproducedrecord shall be filed with the prothonotary of the SupremeCourt, fifteen (15) copies of the brief and eight (8) copiesof the record to the prothonotary of the commonwealthcourt, and seven (7) copies to the prothonotary of the su-perior court. In addition, two (2) copies are to be servedupon every party (Pa. R. Civ. P. No 2187(a)). If an appel-lant fails to file the brief within the required time, theappellee may move for dismissal of the matter. If the ap-pellee fails to file its brief in the required time, it will notbe permitted to be heard at oral argument (Pa. R. Civ. P. No 2188).


If the appeal is complicated or the reproduced recordis large, it may be better to use one of the service compa-nies that will produce the brief and/or reproduced recordfor use on appeal. Although the law office will have to pre-

pare the substantive work, the service company will makesure that the brief conforms to the rules and will also fileand serve the brief and/or reproduced record.

CHAPTER 16 Posttrial Practice 43

FINAL PROCEDURES

Once a judgment has been rendered in favor of a plaintiff,it is up to the plaintiff to collect on the judgment. Com-monly, this will be accomplished by the defendant payingthe amount of the judgment to the plaintiff. At that time,the plaintiff would file a praecipe with the prothonotary re-questing that the docket be marked as satisfied and costspaid. However, it is not always that easy and further actionmay be necessary to enforce the judgment.

The prothonotary is specifically authorized to enterjudgment (42 Pa. C. S. A. § 227.4), and must do so uponpraecipe of a party upon a jury verdict, if no timely post-trial motions are filed (Pa. R. Civ. P. 227.4(1)), or when acourt grants or denies relief, but does not itself enter judg-ment or orders the prothonotary to do so (Pa. R. Civ. P.227.4(2)).

It is also important to have the judgment placed on thejudgment docket, which is also maintained at the pro-thonotary’s office. This is to enable the prevailing party tomaintain its rights to the loser’s property against subse-quent third parties who may also have a claim against thedebtor’s property.

A judgment may be transferred to another county byfiling of record a certified copy of all docket entries in theaction and a certification of the amount of the judgment(Pa. R. Civ. P. 3002(a)). This would be necessary when thedefendant has property located in a county that is differentfrom that in which the judgment was initially rendered.

A judgment is enforced by a writ of execution (Pa. R.Civ. P. 3102). The execution is commenced by filing apraecipe for writ of execution with the prothonotary of anycounty in which the judgment has been entered (Pa. R. Civ.P. 3103(a)). The writ of execution is served by the sheriff(Pa. R. Civ. P. 3108). In addition, the executing party maydirect the sheriff to take manual possession or custody ofany tangible personal property upon which he or she hasmade a levy. The sheriff may require a bond or security forthe cost of retaining the property (Pa. R. Civ. P. 3109).

All property, real or personal, of the judgment debtor,which is not exempt under Pa. R. Civ. P. 3123, is subject toexecution (Mamlin v. Genoe, 340 Pa. 320, 17 A.2d 407(1941)); even property owned by the judgment in the pos-session of a third party.

If the judgment debtor still does not pay the amount ofthe judgment, the sheriff will hold a sale of the propertyunder levy for the purposes of satisfying the judgment.

There may be times when the party with the judg-ment does not know what property is owned by thedebtor, and in those circumstances, the plaintiff, before orafter the issuance of a writ of execution, may, for the pur-pose of discovery of assets of the defendant, take the tes-timony of any person, including a defendant or garnishee,upon oral examination or writ interrogatories. The rulesgoverning such discovery are those governing pretrial dis-covery (Pa. R. Civ. P. 3117(a)). The plaintiff, may on peti-tion of the plaintiff, after notice and hearing, seek thecourt to enter an order against any party or person to aidin the execution. The court may enter an order on any offollowing:

1. Enjoining the negotiation, transfer, assignment, orother disposition of any security, document oftitle, pawn ticket, instrument, mortgage or docu-ment representing any property interest of the de-fendant subject to execution;

2. Enjoining the transfer, removal, conveyance, as-signment, or other disposition of property of thedefendant subject to execution;

3. Directing the defendant or any other party or per-son to take such action as the court may direct topreserve collateral security property of the defen-dant levied upon or attached, or any security inter-est levied upon or attached;

4. Directing the disclosure to the sheriff of thewhereabouts of property of the defendant;

5. Directing that property of the defendant that hasbeen removed from the county or concealed forthe purpose of avoiding execution shall be deliv-ered to the sheriff or made available for execution;and

6. Granting such other relief as may be deemed nec-essary and appropriate (Pa. R. Civ. P. 3118).

The Petition and Notice is served pursuant to Pa. R.Civ. P. 3118(b).

