Pa Civil Procedure

Front 1

PA Court Hierarchy

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Court of Common Pleas
Superior Court and Commonwealth Court
Supreme Court

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PA Actions at Law and Equity

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Cts of Common Pleas can grant legal or equitable relief.

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PA - Declaratory Relief

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Parties c/seek declaratory judgments w/r/t parties' relationship and/or status, or to determine their rights.

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PA Statutes of Limitations

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One Year = economic and dignitary torts (invasion of privacy, defamation)
Two Years = all other torts (IT, negligence)
Four Years = Contracts
Adverse Possession 21 years

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PA Statute of Repose

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Construction/Design/Supervision of any addition to RP (original contractor) = 12 years; 14 if injury happens between 10 and 12 years

File by end of SOL or SOR, whichever is earlier

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PA Discovery Rule

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The SOL does not begin to run until the person knows or reasonably should have known (due diligence!) of the injury and that it h/b caused by another's conduct

Note: SOL for tort claims is NEVER more than 2y after date of death.

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PA Minor Tolling Statute

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SOL begins to run once the minor reaches the age of majority (18y).

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Initiating Litigation in PA

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M/file a Complaint or a Praecipe for a Writ of Summons

M/b served by the Sheriff, except in Philadelphia County.

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Praecipe for a Writ of Summons

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Not a pleading - still M/file Complaint. Allows discovery before Complaint.

Tolls SOL = Equivalent Period Doctrine (so long as P makes GF effort to serve D)

Allows pre-C discovery where information sought is material and necessary for the filing of the Comlpaint AND it w/n cause unreasonable annoyance, embarrassment, oppression, burden, or expense to any person or party.

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PA Service of Process - Who?

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M/b served by Sheriff

In actions in equity, actions for partition, actions to prevent waste or actions for declaratory judgment, adult non-party or employee/relative of party may serve

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PA Service of Process - Individuals

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Personal Service = handing copy to D

Personal Service to an adult family member or person in charge at D's house; the manager of hotel, apt, or place of lodging where D resides; OR D's agent/person in charge at any office or regular place of business

Note: P M/make GF effort to serve D

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PA Service of Process - Companies

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Personal service to any officer or registered agent

Personal service on manager or person in charge at any regular place of business

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PA Service of Process - Out of State

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Certified US Mail - BUT MUST HAVE PJ!
- Do 2-part USC and PA Long Arm analysis.
- Distinguish b/t general and specific jdxn (general = sufficient contacts w/ forum that D c/b sued for any claim arising anywhere).

USC = Minimum Contacts (Purposeful Availment, Foreseeability) such that exerting PJ w/n offend traditional notions of Fair Play and Substantial Justice (Relatedness of contacts, Convenience of parties and Ws, and State interest in asserting jdxn)

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Acts Subjecting D to PA Jurisdiction

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Transacting any business in-state
Causing harm/tortious injury by act or omission in-state
Causing harm/tortious injury in PA by act or omission out-of-state
Having interest in, possessing or using RP in PA
Acting under authority of PA as personal representative of decedent, guardian, trustee, director/officer of corporation
Violating any PA statute, local ordinance, resolution or regulation of any gov't unit or order in PA

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PA Service of Process - When

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W/in 30d. If not, P can refile Praecipe or Complaint and serve again - as many times as necessary until SOL runs.

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PA Service of Process - Alternative Service

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Motion for Special Order Allowing Alternative Service
- demonstrate GF effort to locate and serve D
- include affidavit stating those efforts (nature and lengths)
- Ct c/authorize service by posting at last known address, publication, or other reasonable alternate means

OBJECTIONS TO SERVICE ARE WAIVABLE

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PA - Venue for Non-Medical Malpractice Actions

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Venue proper anywhere you can obtain service on D OR the COA arose (tort/breach of K occurred)

Where corporation regularly conducts business

Multiple Ds = where any D c/b subject to venue (note exceptions to claims against medical and political subdivisions)

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PA - Venue for Medical Malpractice Actions and Political Subdivisions

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Medical Malpractice = litigation against healthcare providers for medical negligence M/b brought in county where COA arose

Political Subdivisions = M/b brought in county where subdivision is located

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PA - Wrong Venue

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Ct sustains PO to venue. Dismiss if no county of proper venue exists in the state.

If proper venue c/b had in state, ct will transfer to the proper counter.

OBJECTIONS TO VENUE ARE WAIVABLE - use it or lose it.

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PA Forum non Conveniens

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P's forum choice gets great weight u/l for the convenience of the parties and Ws, the court m/transfer to another county in which the suit originally c/h/b brought.

D m/demonstrate specific hardships to party and W AND that these are out of proportion to P's convenience.

Rule = petition to transfer should NOT be granted u/l D meets the burden of demonstrating w/ detailed information on the record that P's chosen forum is oppressive or vexatious.

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PA - Extension of Time Periods

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Agreement of parties in writing - or order of the court

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PA Fact-Pleading/Complaint Requirements

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More than notice pleading - M/plead all material facts on which the COA is based.

M/specifically state:
- times, places where T/O occurred
- averments of fraud and mistake
- special damages
- if K = written or oral

M/b stated generally = averments to malice, intent, knowledge (i.e. mental states)

M/use separately numbered paragraphs for each allegation.

M/attach writings forming the basis of the claim - or explain their absence.

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PA Complaint Requirements - Verification

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M/b verified by both parties and attorneys.
- EXCEPT if party not available in jdxn at the time, attorney or person w/ sufficient knowledge can verify, but M/state that the party is not available OR does not have sufficient knowledge to verify AND the source of information for the person verifying

Sworn statement that information is true to the knowledge, information and belief AND not interposed for purposes of delay.

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PA - Effect of Attorney's Signature

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M/b on all pleadings, motions and other papers directed to the court = certifies that to the best of attorney's knowledge, information and belief formed after reasonable investigation:
- not being presented for improper purposes
- Good facts (everybody lies!)
- Good law (research first!)

Reasonable investigation = time signer had, if she had to rely on client for information, if the pleading/paper was based on a plausible interpretation of the law, whether signer depended on forwarding counsel

SANCTIONS = after notice and opportunity to be heard, ct may impose to deter repetitive conduct penalties (paid to court), strike all/part of documents, attorneys fees and costs against the Signer or his firm.

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Preliminary Objections

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M/b filed w/in 20 of service of Complaint. ALL M/b raised at one time in alternative counts

Lack of PJ
Lack of SMJ
Improper Venue
Improper Service
Failure of Pleading to Conform to PARCP or Inclusion of Scandalous or Impertinent Matter
Insufficient Specificity
Legal Insufficiency (demurrer)
Lack of Capacity to Sue
Non-Joinder of Necessary Party
Misjoinder of COAs
Pendency of Prior Action or ADR Agreement
Failure to Exhaust Statutory/Administrative Remedies

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PA - D's Answer

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M/b filed w/in 20d of Complaint or Motion Denial

M/admit or deny each paragraph/averment of fact in C
- general denials = admission u/l exception applies

EXCEPTIONS
- statement that after reasonable investigation she is w/o/k or information sufficient to form a belief (DENIAL)
- action seeking monetary relief for bodily injury, death or property damage c/b generally denied UNLESS in support of additional relief demanded, in POs, relating to ID, agency or ET of the person doing a material act, OR relating to ownership, possession or control of the property or instrumentality involved

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PA - Affirmative Defenses

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M/b set forth under New Matter and M/b pleaded or waived u/l AOR or Comparative negligence

Waivable = accord/satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, RJ, truth, waiver and SOF and SOL

Most important = SOF and SOL

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PA - Counterclaims

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No compulsory/mandatory counterclaims in PA!

Should be included in Answer and New Matter w/ separate heading.

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PA - Cross-Claims

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Any party in answer or reply c/set forth COA against any other party to the action that she m/b:
- solely liable on underlying COA against joining party OR
- liable to or w/ cross-claimant on any COA arising out of T/O upon which underlying COA is based

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PA - Reply Pleadings

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W/in 20d of receipt of New Matter/Counterclaims

Failure to reply c/result in admission

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PA - Default Judgment

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If D fails to file Answer or PO w/in 20d of receipt of complaint, P m/take Judgment of Default action against D

BUT - P M/first mail notice of intent to D to allow 10d to cure

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Certificate of Merit - Professional Liability

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P M/file COM w/in 60d of Complaint w/ court and mail a copy to D - signed by either attorney or party stating:
- expert indicated in writing that there is reasonable probability that the care, skill or knowledge exercised by D was outside acceptable professional standards and such conduct harmed P;
- claim D deviated from acceptable professional standard based solely on allegations that other licensed professionals for whom D is responsible deviated from acceptable standard OR
- Expert testimony w/b unnecessary for prosecution

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Defendant's Response to COM

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M/file answer or responsive pleading the later of either 20d from service of C or from service of COM.

Dismissal upon affidavit of non-involvement
- negligence actions against construction professionals or medical actions where D is health care provider
- D/file motion to dismiss w/ this affidavit
- If P responds in opposition to MTD, court m/find PFC for dismissal and M/permit discovery directed at issue of D's non-involvement

Entry of Judgment of Non-Pros = where COM not timely filed by P
- any action claiming licensed professional deviated from professional standard of care
- D M/file a written notice AND serve to P's counsel at least 30d pre-filing Praecipe requesting JNP
- Once Praecipe is filed, prothonotary will file JNP against P if P fails to file COM w/in 60d

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PA - Right to Amend Pleadings

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Each party w/in 20d of service of POs or w/ consent of other party or leave of court.
- Liberally allowed.

NOT Allowed after SOL expires when amendment:
- seeks to raise new COA or
- adds new Ds to the litigation

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PA - Motion for Judgment on the Pleadings

Back 35

Generally c/b filed any time after relevant pleadings are closed
- M/b within such time as to not unreasonably delay trial

Test = motion M/b based ONLY on pleadings, no discovery or affidavits; and even if everything opposing counsel says in the pleadings is true, the movant is entitled to judgment as a MOL.

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PA - Compulsory Joinder

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Multiple COAs arising out of same T/O against same person

Failure to join as required = waiver of the COA.

Personal Injury Claims
- COAs of both spouse or of parent-child M/b brought in same action
- Claims of each P M/b set forth in separate counts of the Complaint.

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PA - Permissive Joinder

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Claims of multiple Ps or against multiple Ds m/b brought together IF
- arise out of same T/O or series of T/Os AND have common questions of law or fact affecting the parties' rights
- m/b joined in alternative

Front 38

PA - Consolidation/Coordination

Back 38

Actions pending in the same county:
- involving common questions of law or fact, or arising from same T/O
- C/b consolidated to avoid unnecessary cost or delay

Actions pending in different counties:
- involving common questions of law or fact or arising out of T/O c/b coordinated
- motion M/b filed in county where c was first filed asking court to stay proceedings in any county where subsequent litigation was filed

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PA - Additional Defendants

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Any party m/join as additional D any person not already a party who c/b solely liable on the underlying COA against the joining party OR liable to/with the joining party on any COA arising from the T/O that the underlying claim is based on
- c/b liable over on the underlying COA OR jointly and severally w/ the joining party

M/file Praecipe or Complaint following initial process

Late joinder m/b allowed - but automatic right exists w/in 60d of service on original D.

Watch for SOL = P c/recover from either D or AD as if AD was sued by P in the original Complaint
- P sues D w/in SOL but D joins AD after SOL. P m/n/b able to recover if jury finds AD was the sole party responsible

Front 40

PA - Comparative Negligence

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P's negligence shall not bar recovery where her negligence is not greater than D's.

Damages reduced in proportion w/ her negligence.

Joint Defendants - Recovery
- each is liable for the proportion of his causal negligence out of the amount attributed to all Ds
- P can recover full from any D and any D paying more than his portion can seek contribution from the other Ds

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PA - Class Actions

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CAs for Monetary Damages
- Numerosity
- Commonality
- Typicality
- Adequacy of Representative

CA M/b only a FAIR AND EFFICIENT method to adjudicate (as opposed to a superior method)

Pleading Rules
- M/b initiated by Complaint, not Praecipe
- M/include specific allegations as to each element of CA
- D m/n file POs and M/respond within an Answer

Front 42

PA - Discovery Tools

Back 42

Interrogatories
Depositions
Requests for Production
Requests to Inspect, Copy, Test, Sample, etc.
Requests for P's Physical Exam AND
Requests for Admissions

Front 43

PA - Discovery

Back 43

No automatic disclosure requirements - once proper request is served, right to discovery is very broad
- No limit on interrogatories or depositions - restrictions only where w/b an unreasonable burden or expense
- Pre-C discovery = to obtain information necessary to fact-plead in C.

NOTE: Medical negligence claims = P c/n seek pre-COM discovery w/o leave of court u/l it's production of documents

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PA - Scope of Discovery

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Any information that is not privileged, is relevant to the litigation, AND appears reasonably calculated to lead to the discovery of admissible E.

Improper = sought in BF, would cause unreasonable annoyance, embarrassment, oppression, burden, or expense OR would require unreasonable investigation by deponent, party or W

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PA - Work Product

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Material developed in anticipation of litigation - no exception like FRCP except w/r/t A-C.

Discoverable = W statements, reports of investigators.

Not Discoverable = notes written by A, his mental impressions, conclusions, opinions, notes or legal theories; any party representative's mental impressions, conclusions or opinions on the merit of a claim/defense; OR notes concerning trial strategy or tactics

NOTE: can redact pieces that go to privileged information

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PA - Expert Witness Discovery

Back 46

EW Interrogatories = any other party c/b required to ID experts expected to testify; state substance of facts and opinions to which he is expected to testify AND summary of grounds for each opinion.

NOT discover = opinions of experts retained in anticipation of litigation but not expected as EW at trial

Right to Depose Opposition's EW:
- only with good cause
- ct can impose restrictions on scope and order payment of EW's fees

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PA - Medical Records Discovery

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Where P's physical condition is in controversy.

D can obtain relevant medical records ("Waiver of D-P privilege)
- unreasonably embarrassing
- relevance

Restriction = can ONLY get information from treating physician w/ written consent (HIPAA) or via a discovery method providing opposing counsel w/ notice and allows her to file Motion for PO

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PA - Discovery = Requesting Physical/Mental Examination

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Can compel P to submit to physical/mental exam by D's examiner (licensed physician, dentist or psychologist)
- P's attorney or rep can attend exam
- If D selected the doctor, report M/b given to P's counsel even if no intent to call doctor at trial
- If D selected AND P can demonstrate significant pattern of compensation received by expert from Ds in similar cases, supporting a reasonable inference that doctor m/color or slant testimony, then P can direct financial discovery of doctor:
- compensation received
- percent of his litigation-related activities devoted to particular class of litigant AND
- approximate income from litigation related to professional services

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PA - Discovery = Assets, Wealth, Net Worth and Insurance Coverage

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Insurance coverage = discoverable as to availability to satisfy all or part of any judgment; not admissible

D's Assets, Wealth, and Net Worth
- P's claim includes damages, she c/discover this!
- ONLY by court order where court sets forth appropriate restrictions as to timing of discovery, scope and dissemination of material disclosed

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PA - Discovery for Professional Liability Claims

Back 50

Limited pre-COM Filing
- P c/n conduct discovery pre-COM u/l she has leave of court
- CANNOT discovery expert's written statement supporting COM unless P intends to call EW at trial OR D is dismissed through voluntary dismissal, verdict or other court order
- Exception = production of documents or entry on property for inspection and other purposes

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PA - Supplementation of Discovery Responses

Back 51

No general duty to supplement EXCEPT:
- M/supplement w/r/t questions directly addressed to ID, location of persons w/ knowledge of discoverable information (i.e. Ws)
- Parties or Experts M/amend upon obtaining information from which she knows the prior response was either incorrect when made OR is now incorrect

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PA - Objectionable Discovery

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A receives objectionable discovery = she can serve objections OR file a Motion for a Protective Order

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PA - Enforcement of Discovery Rules

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Motion to Compel

Motion for Sanctions if still not received
- sanctions w/include whatever's reasonable under the circumstances

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PA - Use of Depositions at Trial

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Party's Deposition = c/b used by OC for any purpose at trial

Deposition of any W c/b used by any party for any purpose IF:
- party offering deposition c/n procure W's attendance by subpeona or W is otherwise unavailable (out of state, dead, more than 100 miles from trial OR unable b/c of age, sickness, or imprisonment)

Non-Party Medical Depositions = c/b used for any purpose at trial, regardless of W availability

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PA - Motion for Summary Judgment

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Filed any time on any issues after close of pleadings, early enough as to not delay trial.

No GI/MF AND movant entitled to judgment as MOL = viewed in light most favorable to non-movant

All undisputed facts M/b established by pleadings, discovery or affidavits (c/n contain hearsay)

Encouraged = Motions for Partial SJ!

Nanty-Glo Rule = MSJ not granted if motion is ONLY supported by uncontradicted affidavits or deposition testimony AND grant would require acceptance of movant Ws' credibility (jury's job!)

Absence of E = c/obtain SJ based on absence of E sufficient to permit jury to find an essential element of a claim or defense (affidavits not enough to support MSJ alone)

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PA - P's Failure to Certify as "Ready for Trial"

Back 56

Enter Judgment of Non Pros where:
- P shows lack of due diligence by failing to proceed w/ reasonable promptness
- no compelling reason for delay AND
- delay caused actual prejudice to D (economic or defense prejudice)

D seeking JNP M/come to court w/ "clean hands" and delay properly chargeable to D does not count as grounds for JNP

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PA - Pre-Trial Conferences

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No provisions for mandatory pre-trial meetings of counsel or scheduling/conferences.

PArties M/file pre-trial statement = lists Ws, experts, damages and exhibits

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PA - Voluntary Dismissal by P

Back 58

Pre-trial, P c/voluntarily dismiss against all parties - w/ court approval
where P is minor/incompetent, wrongful death where minor/incompetent is beneficiary OR CAs.

P m/n discontinue as to only some of Ds UNLESS written consent of all parties or leave of court

During trial = P M/move for Voluntary Nonsuit (requires leave of court after P has rested)

After Nonsuit or Discontinuance = P c/commence a second action on the same COA subject to the SOL

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PA - Trial Mechanics and Procedure

Back 59

Constitutional right to jury trial = 12 jurors in civil cases
- waiver = failure to demand jury trial and failure to demand 12 jurors

Deadline for demand = 20d after filing of last pleading

Verdict = d/n require unanimity - only 5/6

Peremptory Challenges = four
Unlimited challenges for cause - never on basis of race, gender, or religion

Front 60

PA - Motion for Compulsory Nonsuit

Back 60

C/b granted after P's case on liability considering ONLY E introduced by P or that favorable to P that D h/introduced prior to the close of P's case.

RULE = granted if P failed to establish a right to relief - but ct M/assume all of P's E is true.

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PA - Motion for Directed Verdict

Back 61

Granted after all E h/b introduced - generally orally after E at trial (JMOL under FRCP)

RULE = when E is such that w/o weighing Ws' credibility, there c/b only one reasonable conclusion as to verdict

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PA - Motion for Post-Trial Relief

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Exclusive post-trial motion! Replaces JNOV, new trial, to remove nonsuit, etc.

Grounds for post-trial relief M/b preserved by pre-trial or trial motion, objection, point for charge, etc.

M/b filed w/in 10d of verdict or nonsuit.

Rule = even though jury found for other party, as MOL, court s/grant new trial or enter judgment for movant

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PA - Compulsory Arbitration

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Civil actions where AIC is "small" M/b first heard by panel of arbitrators

Either party has absolute and automatic right to appeal decisions for trial de novo in the Court of Common Pleas (right to jury trial!)

Special rules = medical bills and reports c/b admitted w/o EW testimony

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PA - Minors or Incapacitated Parties

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Minors Tolling Statute - and if client reaches majority, counsel c/file suggestion of majority (puts minor in charge)

Actions c/n/b compromised, settled or discontinued w/o court approval

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PA - Wrongful Death and Survival Actions

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All COAs survive P's death - real or personal

Deceased c/n/b party - decedent's representative c/bring wrongful death

C/n discontinue, compromise, or settle wrongful death actions in which minor/incapacitated has interest w/o court approval

When party dies during pendency = representative substituted after estate is opened.

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PA - Wrongful Use of Civil Proceedings

Back 66

Permitted against parties and attorneys after first action terminates in D's favor

Standard = A/party who initiates or continues civil proceedings that are terminated in D's favor m/b subject to liability IF she acted in a grossly negligent manner AND for improper purpose

PC = A should have PC to bring any litigation and can escape liability so long as she does.
- reasonably believed in the facts and the legal theory on which the claim is based!