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115 Cards in this Set
- Front
- Back
Statutes of Limitation (defined)
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Legislative enactments that restrict the time period within which certain causes of action may be initiated after the accrual of the cause of action
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Pennsylvania SOL’s
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One year: Actions for libel, invasion of privacy, slander – the COA accrues on the date of publication
Two year limitation: Actions for all other torts Four year limitation: actions upon a contract |
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Minors Tolling Statute
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The cause of action on a minor’s claim does not begin to run until majority – after the 18th birthday
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Discovery Rule
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The commencement of the SOL time period is tolled until the P knows, or in exercise of reasonable diligence should have known
1. That he has been injured and 2. That his injury has been caused by another’s conduct Discovery rule does not apply to a defamation action BUT: the SOL for a tort claim is never more than 2 years after the date of death (Wrongful death or survival act claims) |
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Medical Negligence Claims
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A cause of action against a medical care provider must not be commenced within 7 years from the date of the alleged tort (does not apply to foreign objects in the body
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Construction Claims
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A civil action against a person performing or furnishing the design, planning, supervisions or construction of any improvement to real property must be commenced within 12 years after the completion of construction to recover damages for personal, injury, wrongful death or property damage arising out of any deficient in the design, planning, supervision or construction of the improvement
EXCEPTION: if an injury occurs more than 10 years and less than twelve years after completion of the improvement, a civil action may be commenced no later than 14 years after completion of construction of such improvement |
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Determining Whether there is PJ
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Is it constitutional under the DPC of the 14th amendment?
Is it permitted by PA statute? 1. Jxn based on domicile presence in PA served with process and actual or implied consent 2. Jxn over out of state D’s through the long arm statute |
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Acts subjecting D to jxn of PA courts include
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1. Transacting of any business in PA
2. Causing harm or tortious injury by an act or omission in PA 3. Causing harm or tortious injury in PA by an act or omission outside of PA ETC. |
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Status of PA’s Long Arm Statute
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Really liberal, basically all minimum contacts under the constitution are allowed
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PA Courts
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PA Supreme Court
Superior Court and Commonwealth Court Court of Common Pleas |
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Court of Common Pleas SMJ
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Broad powers to hear just about any case brought before them. Unlikely to see a case without SMJ in C of CP. Two possible exceptions
1. Administrative proceeding (unemployment comp, worker’s comp) 2. Federal preemption cases |
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Venue (How to Raise and Objection)
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An objection to improper venue can be waived if not properly raised in preliminary objections – if not brought up, waiver
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PA Venue Rules
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Similar to Fed Ct venue –except instead of looking at what district court you look to proper county for liming suit
Venue is always proper where COA arose (Tort action where tort occurred, contract action is where breach occurred) Or where a T/O took place out of which the COA arose (i.e. in contract action where contract was formed or obligations performed) In non-med mal action against individual, venue is also proper in any court where you can obtain service on D (typically where D lives or works) |
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Venue (corporations and partnerships)
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In actions against D Corp, Partnership, or similar entity, venue is always proper where registered office or PPB is located or where the company regularly conducts business (VERY BROAD)
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Multiple D’s (Venue)
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When multiple D’s – venue is proper as to all D’s in any court where one is subject venue
EXCEPTIONS 1. Med mal cases – litigation against a health care provider for medical negligence can only be brought in a court where the COA arose 2. Litigation against a political subdivision (town) must be brought in court where political subdivision is located (generally a local government unit) |
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What happens if you get venue wrong?
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If sustained and there is a county of proper venue in the state, then the action shall not be dismissed but shall be transferred to the proper county
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Forum Non Conveniens (By Ruled)
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The PA Rules of Civ Pro allow for a transfer of litigation to another county in PA on FNC ground. Even if the action is in a county where venue is proper, for the convenience of parties & witnesses a court may transfer an action to another court where the action could have originally been brought. Two principles
1. Generally P’s choice of furm is granted great wait 2. To obtain a challenge of venue on FNC grounds, D must demonstrate specific hardships to parties & witnesses fro the P’s choice of forum and demonstrate that these hardships are out of proportion to the P’s convenience FOR BAR EXAM: You want to consider if the P’s choice of forum is oppressive or vexatious for the D |
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Forum Non Coveniens (By Statute)
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Dismissal. When the court finds that in the interests of substantial justice, a matter should be heard in another state – they may stay or dismiss the matter in whole or in part on any condition that are just. Two factors
1. P’s choice of forum will not be disturbed except for weighty reasons and 2. No action will be dismissed unless alternative forum available Before dismissing an action – private and public factors must be strongly in favor of party moving for a dismissal |
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Types of Actions
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Actions at Law
Actions at Equity |
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Actions at Law
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Most common form of action: used for COA’s arising out of tortious conduct and breach of contract. Called a CIVIL ACTION
Other types of legal actions include: 1. Action in ejectment 2. Action to quiet title 3. Action to replevin 4. Action Mandamus 5. Action of Mortgage Foreclosure 6. Actions upon ground rent |
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Actions in Equity
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Injunctive relief, specific performance, recission, reformation of contract
Courts of Common please have power to grant legal or equitable relief Declaratory relief – parties have right to seek declaratory judgment to determine their 1. Rights 2. Status 3. Legal Relationship |
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Starting Suit
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P may initiate litigation against D by filing a
1. Complaint 2. Praecipe for writ of summons NOTE: Both forms of initial process and must be served on the D |
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Praecipe for Writ of Summons
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Writ of Summons tells the D: You are hereby notified that P has commenced an action against you
After filing P for Writ of summons – P must still file |
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Why would you file a P for W of S?
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To discover info for filing complaint. P may obtain pre-complaint discovery where
The information sought is material and necessary to obtain information needed for the filing of the complaint, and The discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party 2. To Toll SOL to protect your client’s rights (Equivalent Period Doctrine – on another card) |
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Equivalent Period Doctrine
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The filing of a P for W of S tolls the SOL for a period equivalent to the applicable SOL for commencement of the action, as long as P makes good faith effort to serve D with the writ. Complaint must be filed and served on D within the period
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Service of Process (generally)
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An objection to improper service is waivable if not properly raised in preliminary objections
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Who serves?
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Generally the sheriff. In actions in equity, actions for partition, actions to prevent waste, or actions for declaratory judgment, original process may also be served by any competent adult who is not a party or an employee or relative of a party
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How may process be served on the D? (in state)
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Individuals – for service on individual D, sheriff must personally serve
1. The D or 2. An adult family member or person in charge (PIC) at D’s residence or 3. The manager of any hotel, apartment house or place of lodging where D actually resides or 4. The defendant’s agent or PIC at any office or usual place of business of D Companies – for in-state service on corporations, partnerships, unincorporated associations or similar entities there must be personal service on 1. An officer of the corporation, or 2. The registered agent for the corporation or 3. The manager or PIC of any regular POB |
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Service of Process (Out of State)
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Service outside of PA can be rendered by certified mail – must be U.S. Mail – can’t be fedex
Must have PJ over D |
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When can initial process be served?
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P has 30 days to serve, but after the expiration of 30 days, P may reinstate complaint or reissue the writ and attempt service again, and again, and again.
P may reinstate as often as necessary – for length of time equal to original SOL. P must serve the D with the complaint or with the Writ of Summons and the complaint within the “equivalent period after commencing period” (see next card) |
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Equivalent Period Doctrine
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P has a period of time equivalent to the applicable SOL after commencing the action to serve the D with the complaint or the litigation is subject to be dismissed
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What effort Is required by P to serve?
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P must put good faith effort to serve D during equivalent period. Cases are subject to dismissal if P’s have “demonstrated an attempt to stall the judicial machinery” (filing a complaint but not giving it to the sheriff for service) OR
If P’s failure to comply with the PA R. Civ. P. has prejudiced the defendant |
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Alternative Service
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There’s other ways you can serve – like by publication, but that is unlikely to be tested
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Pleadings Include
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1. Complaint
2. Answer to the complaint 3. Reply if the answer contains a new matter or counterclaim 4. Counter-reply to a counterclaim contains new matter and 5. Preliminary objections and answers thereto of any of these listed pleadings 6. PRAECIPE for a writ of summons is NOT a pleading |
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PA State Rule 11
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Signature is required for all pleadings (and other papers directed by the court)
Signature is a certification by atty that to the best of her knowledge, information and belief, formed after a reasonable inquiry under the circumstances that 1. It is not being presented for any improper purpose 2. The claims or contentions are warranted by existing law or a non-frivolous argument for the extension, modification or reversal of existing law (good law) 3. Factual allegations have evidentiary support (or are likely to have evidentiary support after reasonable opportunity for discovery) 4. Any denials of factual allegations are warranted by the evidence or, if specifically so identified are reasonably based on lack of information and belief |
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What constitutes a “reasonable inquiry”
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Depends on factors that may include
1. How much time for investigation was available to the signer 2. Whether the signer had to rely on a client for the info as to facts underlying the pleading, motion or other paper 3. If the pleading motion or other paper was based on a plausible view of the law 4. Whether the signed depended on forwarding counsel or another member of the bar |
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Sanctions (PA Rule 11 Equivalent)
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After notice and reasonable opportunity to be heard the court may impose sanctions for violations of this rule including:
1. Non monetary sanctions (striking all or a portion of a litigation document) 2. Penalties paid into court or 3. Reasonable attorneys fees and costs to opposing counsel Should be sufficient to deter repetition of a comparable conduct. Law firms generally held jointly liable for violations committed by partners and associates. Monetary sanctions may not be awarded against a representing party. |
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Verification Required for Pleadings
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Every pleading with factual averments or denials must be verified by party verification – sworn statement that the information set forth is true to that person’s knowledge, information or belief and is not interposed for purposes of delay
Unlikely to be tested – party not available, the attorney can verify but pleading must state that they’re not available or that although they are, don’t have sufficient knowledge and must state source of knowledge |
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Complaint Requirements (PA)
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1. PA does not utilize notice pleading – requires fact pleading (a complaint must set forth all material facts on which a cause of action may be based)
2. The plaintiff must specifically state: Times, dates, places when and where the T/O occurred, Any averments of fraud and mistake, Special damages, Malice, intent, knowledge and other conditions of mind may be averred generally 3. Allegations must be in separately numbered paragraphs 4. If claim is based on contract complaint must sate if contract is oral or written 5. If they form the basis of the claim, any writings must be attached or you must explain their substance and why they are not attached |
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Pre-answer motions or Motions Objecting to Any Pleading
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Motions objecting to pleadings are called preliminary objections
Preliminary objections are pleadings and they are filled as an alternative to any other response pleading Preliminary objections may be filed by any party pleading on the following grounds (next card) |
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Preliminary Objection Grounds
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1. Lack of PJ
2. Lack of SMJ 3. Improper venue or 4. Improper service 5. Failure of pleading to conform to rules or 6. Inclusion of scandalous or impertinent matter in a pleading 7. Insufficient specificity in pleading 8. Legal insufficiency of pleading 9. Lack of capacity to sue 10. Nonjoinder to necessary party or 11. Misjoinder to causes of action 12. Pendency of prior action or agreement for ADR 13. Failure to exhaust statutory or administrative remedy 14. Full, complete and adequate non-statutory remedy |
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PJ
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Bar examiner favorite. You must know the rules
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SMJ
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Not that important in PA. Never been tested. Their jxn is broad
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Improper Venue and Improper Service
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Frequently tested
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If a pleading fails to conform to the rules
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You should be able to recognize it
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Scandalous or Impertinent Matter
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Will probably be obvious on bar exam
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Since fact pleading is required …
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Look out for sufficient specificity with regard to material facts
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Demurrer
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Important. Bar examiners can test you on your knowledge of substantive law, and on procedure, with a question that raises the legal insufficiency of a pleading
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Necessary parties
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Should be able to recognize these but this is rarely tested
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ADR agreements
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Must be raised through POs
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PO Specifics
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All PO’s must be raised at the same time
Two or more PO’s can be raised at the same time in alternative counts of PO’s All objections not raised by PO’s are waived 1. Demurrer 2. Lack of SMJ or 3. Failure to join an indispensible party Must be filed within 20 days from service of prior pleading If D files PO’s and PO’s are denied, D must file an answer to complaint, within 20 days, after notice of the order that the PO’s were denied If D does not file PO’s, D must file an answer to the complaint within 20 days from the date of service of the complaint |
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Answers to Complaints (Generally)
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D must admit or deny each paragraph or each averment of the fact in the complaint
Averments to which a responsive pleadings are required are admitted when not denied specifically or by implication General deed is the same as admission (EXCEPTION ON NEXT CARD) |
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Answer Exception
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A statement by a party that after reasonable investigation, the party is without knowledge information sufficient to form a belief as to the truth of the averment shall have the effect of a denial. BUT this cannot be used if the information is public knowledge or within the D’s control
In action seeking monetary relief for bodily injury, death, or property damage averments in a pleading may be denied generally |
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Some Factual Averments Must Be Denied Specifically
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Or they are admitted. They are:
1. Averments in support of any additional relief, demanded in the pleading and 2. Averments in preliminary objections 3. Averments related to the identity, agency, employment 4. Averments relating to the ownership, possession, control of the property or instrumentality avoided |
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Affirmative defenses (generally)
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Must be set forth in the responsive pleading under the heading of a new matter
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New matter (generally)
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Not a separate portion of the answer
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Some examples of affirmative defense
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Accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, accord and satisfaction arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity form suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, truth, waiver and:
a. SOF and SOL |
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Big Distinction with Federal Rules and PA for Affirmative Defenses
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You do NOT Have to raise comparative negligence or assumption of the risk in an answer or new matter. They won’t be waived if you fail to mention them
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Counterclaims
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D may file a counterclaim for any cause of action which the D has against the P at the time of filing the answer
NOT a separate pleading, included as part of the answer No such thing as compulsory, all have to be permissive |
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Cross-Claims
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Any party may set forth in the answer or reply under the heading Cross-Claim a COA against any other party to the action, a claim that the cross-claimed party may be
1. Solely liable on the underlying COA against the joining party 2. Liable to or with the cross-claimant on any cause of action arising out of the T/O upon which the underlying COA is based |
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Reply Pleadings
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P must file a reply to the New Matter to a counterclaim within 20 days and the failure to file a reply could result in the D’s allegations being deemed admitted
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Default Judgment
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If a D fails to file an answer or POS to the complaint within 20 days, a judgment of default can be taken by P against the D.
Prior to obtaining default judgment, P has to mail a notice of intent to take a default judgment to D, giving D an addition 10 days to file an answer |
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Certificate of Merit (COM) In professional liability cases
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Actions against doctors, lawyers, engineers, architects, accountants, nurses, pharmacists, etc.
In any professional liability claim the P must file within 60 days after filing the complaint (unless an extension is granted a COM signed by the attorney of the P stating that either 1. An expert indicated in writing that there exists a reasonable probability that the care, skill or knowledge exercised by the D fell outside of acceptable professional standards and that such conduct caused harm to the P (different from level of certainty required now as opposed to trial or 2. Some other things Deadline on D – 20 days after service of complaint or 20 days after service of COM |
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Professional Liability Actions – Additional Options for D
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1. Dismissal upon affidavit of non-involvement
Entry of judgment of non pros if a certificate of merit is timely applied by the P |
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Dismissal Upon Affidavit Of Non-Involvement
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1. Applies only to an action for negligence against a construction design or professional or to a medical professional liability action naming a health care provider as a D
2. D must file a motion to dismiss, attaching an affidavit of non-involvement 3. If a P files in response opposing the motion to dismiss and if the court finds that a prima facie case for dismissal of the action exists, the court must permit discovery directed solely to the issue of noninvolvement of the moving D 4. P may file a motion to reinstate the dismissed party if there are facts showing that the statements in the affidavit were false or inaccurate |
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Entry of judgment of non pros if a certificate of merit is not timely applied by the plaintiff
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1. Applies to any action based on allegation that licensed professional deviated from a professional standard
2. On praeciape of D, clerk enters judgment of non pros against P if COM is not ffiled within 60 days after filing of complaint 3. D seeking to enter a judgment of non pros for failure to file COM must file written notice and serve it on P’s counsel, at least 30 days before filing a P with the clerk requesting a judgment of non pros 4. Certificate of Merit must be filed with the court with a copy mailed to D |
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Right to Amend Pleading
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A party has the right to amend any pleading
1. Within 20 days after service of preliminary objections or 2. With consent of the other party or with leave of court. Rules should be “liberally construed” However – amendment will not be permitted after the expiration of the SOL for that COA where the amendment seeks to 1. Raise a new COA 2. Add new D’s to the litigation |
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Extension of Time Periods
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The time prescribed by any rule of civ pro for the doing of any act may be extended or shortened by written agreement of the parties or by order of court
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Compulsory Joinder
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Multiple COA’s arising form the same T/O against the same person, MUST be joined in the same action against the D
A failure to join a cause of action as required is a waiver of that action by P In a personal injury claim the causes of action of both spouses, or of parent and child, must be brought in the same action. Claims of each P must be set for in separate counts of the complaint |
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Permissive Joinder
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Claims of multiple P’s or claims against Multiple D’s may be brought in a single claim if
1. They arise out of same T/O or the same series of T/O’s and 2. There are common questions of law or fact affecting the rights of the parties Parties may join of be joined in the alternative although the cause of action asserted may be inconsistent with the cause of action asserted or against any of the others so joined |
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Consolidation/Coordination
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Two or more sep actions that are pending in the same count, involve common question of law or fact, or which arise from the same T/O , may be combined for joint trial, by the court on its own motion or on motion of any party. Court may also issue other orders to avoid unnecessary cost of delay
Two sep actions may only be consolidated if actions involve same parties, same subject matter, or same issues and same defenses Actions pending in different counties which involve common questions of law or fact or arise form same T/O may be coordinated. A motion must be filed in count which complaint was first filed, asking court to stay the proceedings in any count where subsequent litigation was filed |
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Additional D’s
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Any party may join a 3PD who may be
1. solely liable on underlying COA against joining party 2. Liable to or with joining party on COA arising out of T/O Joining party may file a praecipe for writ or complaint within 20 days – must be served under same rules Late joinder requires court order but there’s a 60 day automatic period P may recover from 3PD as if 3Pd has been named a D by P in initial pleading, however, 1. If joiner occurs before SOL, this is good to go 2. If P sues D within SOL but the joinder of D is outside of SOL, P may not be able to recover if jury finds that sole party responsible was party joined after SOL (can’t use additional defendant rule to get around SOL) |
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Recovery Against Joint Defendants post 6/28/2011
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Where liability is attributed to omore than one D – each shall be liable for that proportion of verdict on ration that they’re liable to all persons whom liability is apportioned and it is attributed to all D’s
Also allows D’s to identify and demonstrate liability of nonparties who settled with P prior to suit and any parties who settled prior to trial |
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Exception - Joint Liability Still Applies to
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1. Intentional misrepresentation
2. Intentional Torts 3. Dramshop Act Violations 4. Release or Threatened release of hazardous substances under the Hazardous Sites Cleanup Act 5. Where D is held liable for 60 percent or more of total liability |
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Class actions
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Require the same big 4 that federal rules do (numerosity, commonality, typicality, adequacy of representatives)
Class action must be fair and efficient method for adjudication of controversy |
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Pleading Rules for Class Actions
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1. May not initiate class action by filing Praecipae for Writ – can only be initiated in the filing of a complaint
3. Complaint must include specific class action allegations 4. 3. D may not respond with PO’s to class action allegations – must respond to class action allegations in the Answer |
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Shareholder Derivative Action – Special Pleading Rules
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Complaint must state that P is a shareholder and was shareholder at time of transaction creating the cause of action
P must also plead with particularity the efforts made to get the corp to sue on its own behalf to enforce Corp’s rights |
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Impleader
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The same thing as 3PP in Fed Ct. or Joidner of Additional D’s under PA rules
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Interpleader
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Any time during the pendency of an action, the court sua sponte or on the petition of the P and one or more claimants who are not parties of record
Should allege that 1. Claimant not a party of record has made or I expected to make demand upon D that might expose the D to double or multiple liability to the P and to such claimant 2. Whether D has admitted the claim to one or more of the claimants 3. The interests, if any that the D claims in the money or property |
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Discovery (Generally)
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Unlike the federal rules, there is no automatic disclosure requirements in PA rules. However, once a proper request is served, right to discovery is VERY BROAD
Discovery rules apply to any civil action in the Court of Common Pleas and to domestic relations matters involving alimony or equitable distribution. No discovery is allowed without court order in simple support, custody or protect form abuse matters. Again – no mandatory disclosure. |
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Mechanics of Discovery
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Types: as in Fed Ct. discovery tools include
1. Rogs 2. Depos 3. RFP’s 4. RFA’s 5. Physical examination of the P 6. Requests to inspect, copy, test or sample any tangible things in custody or control of other party |
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Timing
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Pre-complaint discovery: P can file writ of summons and begin to conduct discovery to obtain info necessary to file required fact pleading
Except for production of documents: A P asserting a medical negligence claim may not seek discovery without leave of court prior to the filing of the COM Other than restrictions preventing discovery that would be an unreasonable burden, annoyance or expenses, there is no limit on the number of depos or interrogatories that can be utilized |
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Scope of Discovery
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Proper discovery includes any info that is
Not privileged Relevant to subject matter of action Appears reasonably calculated to lead to discovery of admissible evidence |
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Improper Discovery
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Not allowed for discovery that
1. Is sought in bad faith or 2. Would cause unreasonable annoyance, embarrassment, oppression, burden or expense 3. Would require an unreasonable investigation by deponent, party, or witness |
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Work Product
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No more work product exception in PA but there is an attorney work product exception
1. Witness statements – discoverable 2. Reports of investigations - disocverable 3. Notes written by atty – not discovery 4. Mental impressions, conclusions, opinions – not discoverable 5. Representative impressions – discoverable 6. Notes concerning trial strategy, tactics – not discoverable |
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Experts
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Party may require any other party to identify any experts expected to testify at trial and state substance of facts and opinions to which expert is expected to testify, and a summary of the grounds of each opinion
Party not allowed to discover the opinions of experts retained in anticipation of litigation but not expected to be called as a witness at trial Right to depos other party’s expert witness only if good cause – court can impose restrictions on scope and order payment of experts fees |
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Claims for Personal Injuries (Discovery)
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D can obtain discovery of relevant medical records. What is relevant? Weight unreasonable embarrassment v. relevance
May be obtained from a treating physician of a party only 1. With written consent 2. Through method of discovery provided in rules. This will provide notice to the opposing party, giving that party’s atty an opportunity to file a motion for protective order D can also compel P to submit to examination by the D’s examiner |
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Compelling P to submit to exam
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Requirements
1. P’s atty can attend exam 2. If D’s rep has P examined by doctor – D must give report of exam to P’s atty even if P doesn’t intend to call the physician to testify at trial 3. IF the D’s rep has P examined by doctor selected by D AND 4. If P can demonstrate a significant pattern of compensation received by this expert (from D’s in similar types of cases) that would support a reasonable inference that doctor might color or slant his testimony in light of substantial financial incentives THEN 5. P can direct financial discovery to D’s doc to find out compensation received, percentage of witness’ litigation-related activites devoted to a particular class of litigant and the approximate income from litigation related professional services |
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Insurance Coverage
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Available to satisfy all or part of any judgment that may be entered in the litigation is discoverable
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Assets, Wealth and Net Worth of D
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When P’s claim involves punitive damages, P may discover info on D’s wealth or net worth but such discovery is only allowed by court order
Before allowing court must find reasonable basis for punitives Court must set forth appropriate restrictions as to the timing of this discovery and the scope f the discovery and the dissemination of any material discovered |
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Supplementation of Discovery Responses
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No general duty to supplement except that
1. Party must supplement a response with respect to any Q directly addressed to the identity and location of person with knowledge of discoverable info 2. Must amend prior response containing information when she knows that it is incorrect, or was incorrect when made and is no longer there |
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Objectionable Discovery
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Atty can serve objections to written discovery on adverse party or file a motion for Protective Order
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Enforcing Discovery Rules
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Procedure
1. File a motion to compel 2. If the discovery responses are still not received, then file for sanctions 3. Sanctions under PA rules are like sanctions in federal court Possible sanctions include whatever is reasonable under circumstances |
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Use of a Depo At Trial
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May be used by adverse party for any purpose
May be used by any party of witness is unavailable because he is 1. Dead 2. Outside of PA 3. At a location more than 100 miles from place A depo of a non-party medical witness may be used at trial for any purpose whether or not witness is available to testify |
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Preliminary Objections in the Nature of Demurrer
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Filed in response to complaint BEFORE answer
Failure to state a claim |
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Motion for Judgment on the Pleadings
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Filed after pleadings are closed between the parties to the motion but cannot be filed so late as to unreasonably delay trial.
Must be based only on the pleadings and not on discovery or affidavits Must be no genuine issue of material fact and Moving party is entitled to judgment as a matter of law |
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Summary Judgment (Time)
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Any party can file MSJ at any time on any issues after pleadings are closed an early enough so as not to delay trial
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Summary Judgment (Standard)
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Only appropriate if
1. There is no general issue of material fact and 2. Moving party is entitled to judgment as a matter of law Any doubts have to be resolved against granting of MSJ – must be drawn in favor of party opposing the motion |
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Support For MSJ
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All undisputed facts must be established by pleadings, discovery response, depos, and affidavits
Must set forth admissible evidence and not contain inadmissible hearsay If moving party files affidavits in support of MSJ can’t just rely on allegations or denials contained within pleadings. Responding parties must file affidavits or depo testimony that establishes specific facts for trial |
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Summary judgment (Issues)
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A MSJ can be filled with regard to any issues
Motions for partial summary judgment are specifically encouraged |
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Nanty-Glo Rule
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Under this rule, summary judgment will not be granted if: the motion is supported only by uncontradicted affidavits or deposition testimony and
The granting of SJ would require the acceptance of the credibility of the moving party’s witnesses Where a COA is dependent on the credibility and demeanor of the witnesses who will testify at trial, oral testimony alone (through either affidavits or depos) of moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact. Must be docs or admissions from the other parties in pleadings or discovery to support MSJ |
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Summary Judgment Based on Absence of Evidence
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A party may obtain summary judgment based on evidence sufficient to permit the jury form finding an essential element of the claim or defense
Affidavits of oral testimony alone cannot support MSJ. Note that the result would be different under FRCP 56 |
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Voluntary Dismissal by P – Discontinuance to Voluntary Nonsuit
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Prior to commencement of trial, P may voluntarily discontinue an action against all parties
However – court approval is required 1. In case where P is a minor or an incompetent 2. In actions for wrongful death where a minor or incompetent is a beneficiary 3. In class actions A P may discontinue an action as to less than all D’s except upon written consent of all parties or leave of court During trial a voluntary nonsuit is the only method by which P may voluntarily terminate an action but after P has rested, leave of court required After discontinuance or voluntary nonsuit – P may commence second action of same COA subject to limitations of SOL |
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Pre-Trial Conferences
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There is no provision in the PA rules for mandatory counsel meetings prior to trial or mandatory pretrial or scheduling conferences. However, parties must file a pre-trial statement listing, inter alia, witnesses, experts, damages and exhibits
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Jury Trial
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Constitutional right to jury – 12 jurors
But failure to demand jury trial seen as waiver and failure to demand a jury of 12 is waiver of that right. Court can satisfy jury trial demand by giving a jury of a lesser number. Deadline for demanding jury trial – 20 days after last pleading filed Verdict does not have to be unanimous – 5/6 is valid Each party gets 4 peremptory challenges – may not be used to discriminate based on race |
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Motion for Compulsory Nonsuit
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Filed by D (usually oral motion) after P has finished with all of P’s evidence on liability
D argues that even if jury accepts all of P’s evidence P has failed to establish relief on cause of action Can be granted at close of P’s liability evidence, considering only evidence introduced by P, or evidence favorable to P introduced by D prior to close of P’s case Rule: will be granted if P has failed to establish right to relief Court must assume that all of P’s evidence is true |
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Motion for Directed Verdict
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Federal – JMOL
Usually oral motion made at conclusion of evidence but before judge charges jury D argues that, even if jury accepts all of P’s evidence as true, no reasonable jury could find for P based on evidence which P has produced at trial. Can be granted after all evidence has been introduced Rule: When evidence is such that, without weighing the credibility of the witnesses, there can be but one reasonable conclusion as to the verdict, court may enter a directed verdict |
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Molding Verdict to Reflect Reduction for Comparative Negligence
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In all negligence actions for damages or wrongful death, personal injury or property damage, the P’s negligence shall not bar recovery where such negligence is not greater than casual negligence of D’s against whom recovery is sought, but any damages sustained by P will be reduced in proportion to P’s negligence
Thus if P is 50% negligent or less – can still recover Jury determines full value of damages sustained by P and percentage of any comparative negligence attributable to P Following verdict – court molds the verdict by reducing it by percentage of negligence attributed to P |
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Post Trial Motions
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Exclusive post trial motion
Grounds for post trial relief must be preserved by pre-trial or trial motion, objection, point for charge or other appropriate method at trial The motion must be filed within 10 days after the verdict or nonsuit. Moving party argues that even though the jury found for the other party, as a matter of law the court should grant a new trial or enter judgment for moving party |
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Death Claims (Wrongful Death and Survival Act)
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All causes of action, real or personal, survive death of P
A deceased person may not be a party to an action 1. Wrongful death must be brought by the personal rep of the estate of decedent, acting for the benefit of those entitled to recover 2. Similarly you cannot use a dead person – if person is dead you must sue the personal representative to the estate of the decedent No action for wrongful death in which a minor or incapacitated person has an interest shall be compromised, settled or discontinued without court approval If a party dies during the pendency of an action, the personal representative may be substituted after the estate is opened for the deceased |
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Compulsory Arbitration (of “small” cases)
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All civil actions where the AIC is small (50k in class counties, and 25k elsewhere) must be first submitted to and heard by panel of arbitrators
There are special rules or procedure for arbitration, which include the right to have medical bills and reports admitted without testimony of a witness of arbitration Each party – has an absolute right to appeal arbitration decision for trial de novo in court of common pleas |
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Minors or Incapacitated Persons as Parties
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For SOL purposes, COA on a minor’s claim does not run until majority
When a minor or incapacitated person is a party to an action, such person shall be represented by a guardian who shall supervise and control the conduct of the action. No such action shall be compromised, settled or discontinued without court approval |
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Wrongful Use of Civil Proceedings (Potential D’s)
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Permits claims against not only parties but against their attorneys
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Wrongful Use of Civil Proceedings (Standard)
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An atty or party who initiates or continues civil proceedings that are terminated in favor of D may be subject to liability to D form Wrongful Use of Civil Proceedings if the atty or party acted in grossly negligent manner for an improper purpose
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Wrongful Use of Civil Proceedings (Probable Cause)
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Attys should have probable cause
Lawyers will not be liable for Wrongful Use of Civil Proceedings if they have probable cause to bring the litigation. They have probable cause when they reasonably believe that the facts on which the claim is based and legal theory under which it is brought (good facts and good law) |