pennsylvania civil procedure - amazon s3s3.amazonaws.com/mythm-vids-prod/pa.steinman.civpro.pdf ·...

PENNSYLVANIA CIVIL PROCEDURE PROFESSOR ADAM STEINMAN

SETON HALL UNIVERSITY SCHOOL OF LAW

CHAPTER 1: INTRODUCTION AND PERSONAL JURISDICTION

A. Pennsylvania Court System

1. In General

o Pennsylvania is divided into _________________________ judicial districts. o Each has a court of common pleas. o Most judicial districts are one county.

2. Court of Common Pleas

o Trial court of ____________________________________________________ jurisdiction o Small civil cases go to small claims courts – have jurisdictional limits.

District courts – jurisdictional limit of $12,000.

Editor's Note 1: The jurisdictional limit in Pennsylvania district courts has been amended to a $12,000 limit.

Philadelphia municipal court – jurisdictional limit of $___________________________.

o Cases filed with the courts of common pleas can be sent to compulsory ______________________________ under local rule and most, if not all, counties have this.

Philadelphia and Allegheny Counties have compulsory arbitration for claims of $50,000 or less, but in some counties it is lower.

The arbitration panels consist of ________________________ attorneys. The losing party at arbitration has the right to appeal for a trial de novo in the court of

common pleas. Actions involving _________________ to real property are NOT subject to compulsory

arbitration.

3. Intermediate Appellate Courts

o Pennsylvania has two intermediate appellate courts:

Superior Court - takes most cases. Commonwealth court - deals with cases by and against governmental entities and

administrative law matters.

• Commonwealth court has considerable ____________________________________ jurisdiction, but not in areas typically tested on the bar.

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4. Pennsylvania Supreme Court

o Highest court

B. Vocabulary

• Prothonotary - ______________________________________________________ • ______________________________________________ - request directed to the prothonotary. • ____________________________________________________________ - pre-answer response

to the complaint.

o Equivalent of a Rule 12 motion in federal practice

• _______________________________________________________________ - means of commencing a lawsuit without filing a complaint.

o Form of alternative original process

• Motion v. petition: both are requests for the court to rule on a matter.

o A _____________________________________ is based solely on matters already of record. o A __________________________ includes factual averments not of record and may require

_____________________________________________________________ for adjudication.

Exam Tip 1: Pay attention to substance and proper vocabulary. Rule numbers are not necessary, but may help in your answers. Use the substance from the federal rules as a backup but not the rule number.

Exam Tip 2: How do you know to use the Pennsylvania rules in your answer? The question will place you in the Pennsylvania court of common pleas. If the question involves litigation in federal district court, use the Federal Rules of Civil Procedure.

C. Personal Jurisdiction

• Pennsylvania has two long-arm statutes which allow its courts to exercise personal jurisdiction over defendants in civil cases.

1. Title 42 § 5301

o Confers __________________________________________________ over individuals who:

Are in PA when process is served; _____________________________________________ in PA when process is served; or ____________________________________________ to jurisdiction.

o General jurisdiction exists over corporations who are:

________________________________________ in PA; Carry on _______________________________________________________________

parts of their general business in PA; or ____________________________________________________ to jurisdiction.

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• Same rule applies to partnerships or other organizations formed under PA law.

o Allows personal jurisdiction over the defendant for ALL actions asserted against that party, even if the claim is based on events that occurred outside of PA.

o Must comport with constitutional _____________________________________

2. Title 42 § 5322

o Creates ___________________ jurisdiction over non-residents “to the fullest extent allowed under the Constitution of the United States and may be based on the most ____________________________________________________ with PA allowed under the Constitution of the United States.”

o The following acts will confer personal jurisdiction, provided there is minimum contacts and the acts give rise to the plaintiff’s cause of action:

Transacting any ____________________________________________ in Pennsylvania;

• Includes:

o The shipping of merchandise directly or indirectly into or through PA; o Ownership, use, or possession of any real property within PA; or o Engaging in any ____________________________ or

_____________________________ in PA.

Contracting to supply services or things in PA; Causing harm or tortious ____________________________ by an act or omission in PA; Having an interest in, using, or possessing real property in PA; Contracting to _____________________ any person, property, or risk in PA, at the time

of contracting; and Causing harm or tortious injury in PA by act or omission _________________________

PA (“Tort out, harm in”).

• NOT satisfied if plaintiff having some residual pain and suffering while recuperating in PA from an accident that occurred in another state.

• PA courts do not extend specific jurisdiction to out-of-state medical providers who cause injury to PA residents even though the effect of the negligence might be felt in PA.

o In such cases, the harm itself did not occur in PA but in the state in which the malpractice was committed.

o Personal jurisdiction MUST comport with constitutional Due Process.

Example 1: A plane crash in PA was allegedly caused by an airplane that was defectively designed and/or manufactured in Switzerland. After a series of sales to entities in Europe and the United States, a Rhode Island company owned the plane when it crashed in PA. The defective design and manufacture occurred in


Switzerland and the harm occurred in PA, thus satisfying the “tort out, harm in” provision. Nonetheless, the court held that the sequence of transactions that brought the plane to PA was a “fortuitous contact” that could not satisfy the minimum contacts requirement. The mere foreseeability that the product might end up in the forum state does not render the seller amenable to suit in that forum. This precluded specific personal jurisdiction.

CHAPTER 2: VENUE

A. Where Can an Action be Brought?

• Two components: ___________________________________ and ___________________.

B. Jurisdiction

• Refers to the court’s inherent power or competency to hear and decide a case • Court must have ________________________________________________ jurisdiction AND

___________________________________________________ jurisdiction over the defendant.

C. Venue

1. In General

o Definition: Venue refers to the particular _______________________________________ area in which a court with personal and subject matter jurisdiction may adjudicate a case.

o Venue is the proper locality, usually a county, in which the suit may be commenced and proceed.

o May be more than one proper venue o Governed by the PA Rules of Civil Procedure

2. Actions Against Individuals

o Rule 1006(a): An action against an individual may be brought in a county in which:

The individual may be ________________________________________________; The cause of action _____________________________________; A transaction or occurrence took place out of which the cause of action arose; In any other county authorized by law; OR The property or a part of the property which is the subject matter or the action is

_______________________, provided that ___________________________________ relief is sought with respect to the property.

3. Actions Against Corporations, Unincorporated Associations, and Partnerships

o An action against a corporation, unincorporated association, or partnership may be brought in a county where:

The defendant regularly conducts ________________________________________;


The cause of action arose; A transaction or occurrence took place out of which the cause of action arose; OR The property or a part of the property which is the subject matter or the action is

located provided that equitable relief is sought with respect to the property.

o For a corporation, venue is also proper in the county where its registered office or _____________________________________________________________ is located.

o For an unincorporated association, venue is also proper in the county where it regularly conducts any _____________________________________________________________.

o Relevant Rules:

Rule 2130 (partnerships) Rule 2156 (unincorporated associations) Rule 2179 (corporations)

4. “Where the Cause of Action Arose”

o Usually where the ________________________________________________ element of the cause of action was satisfied, frequently the injury in a personal injury case.

Example 2: Unjust enrichment – venue is proper where the defendants were located when they received the benefits.

Example 3: Wrongful death – venue is proper in the county in which a decedent was ________________________________________________, not in the county of __________________________________________.

5. Partnerships (Rule 2130), Unincorporated Associations (Rule 2156), and Corporations (Rule 2179): Where do they “regularly conduct business?”

o Courts look to the “__________________ and __________________________” of the defendant’s acts.

a. “Quality”

Only those “___________________________________ to the corporate objects” count.

• NOT incidental acts

Distinction between acts necessary to the entity’s existence (these are sufficient) and those in aid of a main purpose (collateral and incidental, thus insufficient).

b. “Quantity”

Acts must be “so __________________________ and ____________________________ to be habitual.”

Regularity of the acts is more important than frequency. PA Supreme Court – mere solicitation of business in a particular county does not

amount to conducting business in that county.


Note 1: Corporations – you must consider only the defendant corporation’s activities in the plaintiff’s chose forum, not those of related corporate entities.

Example 4: The activities of a sister corporation that has the same corporate parent as the defendant corporation will not be attributed to the defendant corporation for venue purposes.

Exam Tip 3: Look to the primary purpose of the defendant’s business and where that consistently takes place, even if it is a small amount.

6. Multiple Causes of Action against a Single Defendant

o Rule 1006(f) - venue is proper in ________________________________ county in which one of the individual causes of action could have been brought.

7. Venue in an Action against Multiple Defendants

o Under Rule 1006(c), apart from cases containing a medical malpractice claim, an action to enforce a joint or joint and several liability against two or more defendants (except the Commonwealth) may be brought against ______________ defendants in any county in which venue may be laid against _______________________________ of the defendants.

o Only need proper venue against one defendant

8. Actions Against Political Subdivisions

o Such as cities and towns o Must be brought in the county where the subdivision is ______________________________

9. Special Rule for Medical Malpractice Actions

o Rule 1006(a.1) provides that “a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action ___________________________________________________.”

Does not apply to a cause of action that arises outside of PA

o A medical professional liability claim is “[a]ny claim seeking the recovery of damages or loss from a health care provider arising out of any _____________ or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided.”

o “Health care services” - defined as medical care and ________________________________ activities.

Does NOT include ancillary services

• Such as hiring physicians, drafting rules, or supervising and reviewing the work of health care professionals

Example 5: Health care services did not include a non-profit group’s referral of a pregnant woman to a midwife instead of to a physician.


o Under this rule, the cause of action is deemed to have arisen where the health care services are ________________________________________________________________.

Example 6: A telephone call giving medical advice from a different county where the care was not rendered does not create venue where the call was made.

Example 7: If a physician improperly prescribes a drug, venue lies where the prescription is made, not where the plaintiff ingested the drug and sustained injury.

o Multiple defendants: In cases including a medical professional liability claim against any defendant, venue will only be proper in the county in which the medical professional liability cause of action arose.

If two health care providers are in the case, with _______________________________ professional liability claims that arose in different counties, then the case could proceed in either county.

Exam Tip 4: Watch for this rule on the bar.

CHAPTER 3: CHANGE OF VENUE

A. Grounds for Changing Venue

• Venue may be changed in three ways:

o ____________________________________________________ by preliminary objection; o Petitions for ______________________________________________________________; or o A showing of an inability to hold a _______________________________________________

trial in the plaintiff’s chosen forum.

B. Improper Venue

• When the defendant claims venue is improper under the venue rules set forth above, it must file a _____________________________________________________ in response to the complaint.

• If the defendant does not do so, the objection to venue is ___________________. Rule 1006(e). • ONLY challenge to venue that can be made by preliminary objection • If the preliminary objection is sustained and another PA county would be proper venue, the

action will not be dismissed, but __________________________________ to the appropriate court of that county.

• Propriety of venue in the plaintiff’s chosen forum is assessed at the time case is initiated.

C. Forum Non Conveniens - Within PA

• Even when venue is legally ___________________, a defendant may seek a transfer based on forum non conveniens.


• Rule 1006(d): For the convenience of parties and witnesses, the court upon petition of any party may transfer an action to the appropriate court of any other ____________________ where the action could have been brought initially.

• Petition, NOT a motion • A petition to transfer for forum non conveniens should NOT be granted unless the defendant

meets its burden of demonstrating, with detailed information on the record, that the plaintiff’s chosen forum is “______________________________________ or vexatious to the defendant.”

o Defendant must show more than that the other forum is more convenient.

Example 8: The Superior Court recently found a plaintiff’s forum oppressive because of the effect on the defendant – trial in the chosen forum would have required the defendant business to entirely close down during trial.

• When the defendant seeks a transfer to a county adjacent to the plaintiff’s chosen forum, the transfer petition will usually be ____________________ because the travel will not be onerous.

• The court’s ruling for a petition for change of venue turns on a number of things, including the practicalities relevant to easy and expeditious conduct of litigation, such as:

o Location of _____________________________________________________; o Location of evidence; and o The propriety of a jury view of the sight of an accident.

• Court will NOT consider the trial court’s congestion and back log; not relevant to intra-state forum non conveniens.

• Improper forum ___________________________ can support a forum non conveniens transfer.

o Occurs when a plaintiff ______________________________________________________ by naming and serving parties who are not proper defendants solely for the purpose of manipulating the venue rules to create venue where it does not properly exist.

o When the claims involving defendants that established venue are dismissed, the remaining defendants who seek forum non conveniens transfer must prove that the plaintiff’s inclusion of the dismissed defendants was designed to harass the remaining defendants.

D. Impossibility of a Fair and Impartial Trial

• Rule 1006 (d)(2) provides that when upon petition and hearing the court finds that a fair and _______________________ trial cannot be held in the county for reasons stated in record, the court may order that the action be __________________________________________.

• This order is certified to the Pennsylvania ___________________________________________, which selects the county to hear the case.

E. Forum Non Conveniens—Dismissal for Case to Proceed Outside PA

• Contained in Pennsylvania’s Judicial Code, 42 Pa.C.S. 5322(e) - provides for dismissal or stay of a case for forum non conveniens “when the tribunal finds that in the interest of substantial


____________________ the matter should be heard in another forum,” which means in another state (or another country).

o This is interstate application of forum non conveniens, while Rule 1006 addresses intrastate.

• Key term: _______________________________________________________. • A plaintiff’s choice of the place of the suit will not be disturbed except for weighty reasons. • No action will be dismissed unless an ________________________________________________

is available to the plaintiff. • The “weighty reasons” are evaluated using “______________________ and public

_________________ factors.”

o Private factors - identical to the factors considered under Rule 1006(d)(1) for forum non conveniens transfer within Pennsylvania (such as access to evidence).

o Public interest factors - include the relationship of the litigation to the forum and having the trial in a forum that is familiar with the state law that must govern the case (choice of law).

Unlike the intrastate version of forum non conveniens, the trial court may consider its own _______________________________ alongside these other public interest factors.

Court may also consider how far the litigation has progressed in the initial forum – may make transfer less convenient.

Example 9: An asbestos exposure case was filed in Philadelphia when the plaintiff and decedent were Kansas residents. The decedent had worked exclusively in Kansas and the decedent’s asbestos-related illness was diagnosed in Kansas. While some of the products had been manufactured in Philadelphia, no key manufacturing or marketing decisions were made there. The case was dismissed to proceed in Kansas.

CHAPTER 4: ORIGINAL PROCESS AND SERVICE OF PROCESS

A. Original Process

o In Pennsylvania state courts, an action may be commenced two ways - by filing with the prothonotary:

A praecipe for a writ of summons; OR A ______________________________________. Rule 1007.

o When an action is commenced by writ of summons , the defendant can file a praecipe for the prothonotary to issue a rule upon the plaintiff to file a complaint. Rule 1037(a).

If a complaint is not filed within ______ days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of _______________________.


B. Service of Process

1. Service within Pennsylvania

o Generally, original process shall be served within the Commonwealth only by the _________________________. Rule 400(a).

o If an action is commenced in one county, but service is to be made in another, the sheriff of the county where service may be made shall be ________________________________ for that purpose by the sheriff of the county where the action was commenced. Rule 400(d).

o An exception to service by the sheriff for the following causes of action:

Actions in ________________________________ Partitions Declaratory judgments Custody, visitation, divorce, annulment, support, and protection from abuse Actions to prevent waste

• Service can be made by any competent person at least __________ years old who is NOT a _______________________ to the action OR a relative or employee of a party to the action.

o Another exception to service by the sheriff involves Philadelphia County, the First Judicial District - Rule 400.1.

When an action is commenced in Philadelphia, service may be made in Philadelphia by the sheriff or a __________________________________________, which is defined as:

• An individual ______________ years of age or older • Who is neither a party to the action nor an employee or a relative of a party. Rule

76.

If service is to be made in Pennsylvania outside Philadelphia, the Philadelphia sheriff can deputize the other county’s sheriff, or a competent adult can forward the process to the sheriff of the county where service may be made. Rule 400.1(a)(2).

If the action is commenced outside Philadelphia but service is to be made in Philadelphia, it may be by deputized service or a competent adult.

2. Manner of Service

a. Rule for Serving Individuals

Rule 402 Similar to Fed. R. Civ. P. 4(e) Original process may be served:

• By handing a copy to the defendant; or • By handing a copy:


o At the _______________________ of the defendant to an adult member of the family with whom he resides, but if no adult member of the family is found, then to an ________________________________________________________ of such residence;

o To the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which the defendant resides; or

o At any ______________ or ___________________________________________ of the defendant to his agent or to the person for the time being in charge thereof.

For __________________ (Rule 420) and _____________________________________ persons (Rule 421), the rule is the same, but copies can also be handed to their respective _________________________________.

b. Partnerships and Unincorporated Associations

Rule 423 Service may be made on the following provided they are not themselves a plaintiff:

• Any partner, officer or registered agent of the partnership or association; • An agent authorized by the partnership or association in ______________________

to receive service of process for it; OR • The manager, clerk or other person for the time being in charge of any regular place

of business or activity of the partnership or association.

c. Corporations and Similar Entities

Rule 424 Allows service upon an authorized agent or manager, clerk or other person for the time

being in charge OR an executive officer, partner or trustee of the corporation or similar entity.

d. The Commonwealth and Political Subdivisions

For the Commonwealth or an officer, board, department or instrumentality of the Commonwealth, service shall be made at the _________________ of the defendant and the office of the attorney general by handing a copy to “the person in charge thereof.”

For a political subdivision, a copy can be handed to an agent authorized to receive service or the person in charge of the office of the defendant.

3. Service Outside Pennsylvania

o Governed by Rule 404 o Allows service:

By a ______________________________________ under the manner of Rule 402(a) for individuals;


By __________________ under Rule 403; In a manner authorized in the jurisdiction where service is to be made; or In a manner provided by treaty or as directed by a foreign authority.

4. Service by Mail

o Rule 403 allows service by any form of mail requiring a receipt _______________________ by the defendant or his authorized agent.

o If the mail is returned as refused by the defendant, the plaintiff can serve by ordinary mail. 403(1).

o If the mail is returned as ____________________________________, the plaintiff must attempt service by another means authorized by the Pennsylvania rules.

5. Service Pursuant to Special Order of Court

o If service by the regular methods fails, the plaintiff may move the court for a _______________________________________ directing the method of service. Rule 430.

o The motion must explain the investigation to determine the defendant’s location and the reasons service has failed.

o Can be by publication in the publication designated by the court for publication of legal notices and in one newspaper of general circulation in the county.

C. Time for Service

• Whether the case is commenced by writ or complaint, original process shall be served in Pennsylvania within _________ days after the issuance of the writ or the filing of the complaint. Rule 401(a).

• If service is to be made outside Pennsylvania, original process must be served within __________ days of issuance of the writ or filing the complaint. Rule 404.

• If service is NOT made within the applicable time period, the original process needs to be revived, through _________________________________ the writ or reinstating the complaint.

o The writ may be issued, or the complaint reinstated, “any number of times.” Rule 401(b)(2). o This starts the applicable time period for service running again.

• Statute of limitations: Service of original process AFTER the statute of limitations expires can commence the action only if the statute is tolled or suspended in the interim.

o Tolled only if the plaintiff makes a good faith effort to effectuate service. o A plaintiff’s case will be dismissed only when plaintiffs have demonstrated an intent to stall

the judicial machinery or where plaintiffs’ failure to comply with the Rules of Civil Procedure has prejudiced the defendant.

“Intent to stall the judicial machinery” is not the specific intent to delay effectuating service or prosecuting the case.

An extreme lack of diligence, or neglect, can suffice.


D. Proof of Service/Return of Service

• After service is made or attempted, the sheriff or other person making service shall make a ____________________________________ of service, or if no service has been made, a return of no service shall be made upon the expiration of the period allowed for service. Rule 405(a).

• Filed with the prothonotary • The return of service must include:

o The date, time, place and manner of service; o The ____________________________________ of the person served; and o Any other facts necessary for the court to determine whether proper service has been

made.

• Service made by mail - proof of service shall include:

o A return receipt signed by the defendant; or o If the defendant has refused the mail and plaintiff has used ordinary mail, the returned

letter with the notation that the defendant refused acceptance AND an affidavit of sending by ordinary mail.

• If service was made by someone other than the sheriff, i.e., a “competent adult,” the return of service shall be by ____________________________________. Rule 405(d).

CHAPTER 5: PLEADINGS

A. Fact Pleading

• Pennsylvania uses a fact-pleading regime. • The ___________________________________ on which a cause of action or defense is based

shall be stated in a concise and summary form. Rule 1019(a).

B. Pleadings Allowed

• The following pleadings are allowed, as listed in Rule 1017:

o A _____________________________ and an answer thereto, which also includes a complaint to join an additional defendant;

o A reply if the answer contains new matter, a counterclaim or a cross-claim; o A ____________________________________ if the reply to a counterclaim or cross-claim

includes new matter; and o A preliminary objection and a response thereto.

C. Requirements for the Complaint

1. In General

o The complaint filed by a plaintiff and by a defendant against an additional defendant must begin with a ______________________________________________.


o Explains the consequences if the defendant fails to take action in response to the complaint, including the possibility of judgment being entered against the defendant

o Provides the address and phone number of the office to contact for those who cannot afford an attorney

2. General and Specific Averments

o The complaint must be divided into _____________________________________________ ______________________, each of which shall contain as far as practicable one material allegation. Rule 1022.

o It must include the material facts on which the asserted causes of action are based (Rule 1019(a)).

o Averments of fraud or mistake shall be averred with particularity (1019(b)). o Conditions of mind like knowledge, intent, and malice may be averred _________________. o Averments of “time, place, and items of special damage shall be specifically stated.”

1019(d). o Plaintiffs may plead “performance or occurrence of conditions precedent” generally.

1019(c).

Denial of such shall be made specifically and with particularity.

D. Joinder of Claims - Multiple Causes of Action

• Under Rule 1020, the plaintiff may state several causes of action in the complaint. • MUST state all causes of action against the same defendant arising out of a

________________________________________________________________ or occurrence.

o Failure to do so is deemed a __________________________ of the omitted cause of action.

• Each cause of action must be stated in a separate count of the complaint.

E. Damages Averments and Arbitration

1. Damages Averments

o Rule 1021 - any pleading demanding relief must specify the __________________________. o BUT if damages are not liquidated (i.e., not susceptible to precise calculation), the pleader

shall not claim any specific sum.

2. Arbitration

o If the county has a compulsory arbitration rule, the plaintiff shall state whether the amount does or does not exceed the jurisdictional amount requiring arbitration referral. 1020(d).

o Court may order ____________________________________ or hold a hearing to determine the amount in controversy and whether the matter is subject to compulsory arbitration.


F. Pleadings Based on Agreements

• If a claim (or defense) is based on an agreement, the pleader must state whether the agreement is ___________________________________________________ - 1019(h).

• If a claim or defense is “based on a writing,” the pleader must either:

o Attach a copy of the writing; OR o Explain why a copy is not available and set forth the substance of the writing.

G. Verification

• Under Rule 1024, every pleading containing an averment of fact not appearing of record in the action or containing a _______________________ of fact shall state that the averment or denial is true upon the signer’s personal knowledge or information and belief and shall be verified.

• A pleading _______________ be verified upon personal knowledge as to a part and upon information and belief as to the remainder.

• Verified - supported by ________________ or affirmation or made subject to the PA criminal penalties relating to unsworn falsification to authorities. Rule 76.

H. Answer with New Matter

1. In General

o Under Rule 1029, a responsive pleading shall admit or deny each averment of ___________. o Conclusions of law need not be admitted or denied. o If NOT denied specifically or by necessary implication, the averments of fact are deemed

____________________________. 1029(b). o The responding pleader, such as a defendant answering a complaint, cannot respond to an

averment of fact by simply stating “denied;” the defendant’s version of the facts must be stated in the responding pleading - different from FRCP.

o Averments in preliminary objections also must be specifically denied.

2. Exception

o Rule 1029(e) allows ___________________ denials in cases seeking monetary relief for bodily injury, death or property damage.

o Does NOT apply to averments relating to:

The ________________________ of the person by whom a material act was committed; The agency or employment of such a person; or The ownership, possession or control of the property or instrumentality involved.

• These MUST be denied specifically.

3. New Matter and Affirmative Defenses

o Affirmative defenses shall be pleaded under a heading entitled “New Matter,” which follows the defendant’s numbered responses to the averments in the complaint.


o Affirmative defenses include statute of limitations, duress, _________________________, justification, payment, privilege, and others.

o If not pleaded in new matter (or raised by preliminary objection, if appropriate), most affirmative defenses are _______________________.

The following defenses are NOT waived, and need not be pleaded in new matter:

• ___________________________________________________________; • Comparative negligence; • Contributory negligence; • Failure to ______________________________________________; • Failure to join an indispensable party; • Failure to state a legal ________________________________________ to a claim; • Failure to exhaust a statutory remedy; and • Any other nonwaivable defense or objection.

o The statute of limitations defense ___________________________________ be waived.

4. New Matter and Other Material Averments

o A party may set forth as new matter any other _____________________________ facts which are not merely denials of the averments of the preceding pleading.

o These other material facts might elaborate upon specific denials in the answer or may support the affirmative defenses.

o The plaintiff will need to reply to those facts provided the pleading containing the New Matter was properly endorsed with a ____________________________________________.

I. Notice to Plead, Twenty Day Response Period

• Under Rule 1026, every pleading subsequent to the complaint shall be filed within ___________ days after service of the preceding pleading.

• No pleading need be filed unless the preceding pleading contains a notice to defend and is endorsed with a notice to plead.

o The notice to defend is placed on complaints.

• All other pleadings containing an averment of fact, such as new matter, counterclaims, and some preliminary objections, must be endorsed with a “notice to plead” on the front page, or no response is required.

J. Reply to New Matter

• If the defendant’s New Matter is properly endorsed with a Notice to Plead, and includes averments of fact requiring a response, the plaintiff will have to file a _____________________ to new matter governed by all the pleading rules requiring specific denials, etc.


K. Counterclaims

• PA - all counterclaims are ________________________________________________. • Rule 1031 - the defendant may set forth in the answer under the heading ‘Counterclaim’ any

cause of action cognizable in a civil action which the defendant has against the plaintiff at the time the action was __________________________________________________.

• Defendant CAN elect to file a separate lawsuit rather than assert a counterclaim, even if claim is related to the initial lawsuit - different from FRCP.

• To prevent piecemeal litigation, PA courts have wide power under Rules 213 and 213.1 to consolidate, coordinate, sever, and stay actions in the interest of judicial economy.

L. Cross-claims

• In its answer or reply, a party may set forth the following cross-claims against any other party to the action:

o The other party is _______________________________________ on the underlying cause of action; and/or

o The other party is liable with or to the cross-claimant on any cause of action arising out of the same ___________________________________________________________________ or series of transactions or occurrences upon which the underlying cause of action is based.

CHAPTER 6: PLEADINGS (CONT'D)

A. Rule 1023.1: Pennsylvania’s Rule 11

• Applies to every “pleading, written motion, and other paper directed to the court" • Does NOT apply to ____________________________________________________ responses • Substantially the same as Federal Rule 11. • Violations can lead to sanctions, but there are some differences under the Pennsylvania Rule:

o The party against whom the motion was made has ________________ days, as opposed to 21 days, to respond (Pa. Civ. P. R. 1023.2); and

o Sanctions may also include the striking of documents, in part or in their entirety. (Pa. Civ. P. R. 1023.4).

B. Amendment (Rule 1033)

• Similar to the federal rule that governs amending pleadings • Leave to amend is _________________________________________________, and will be

granted when it does not unduly prejudice or surprise the opposing party. • A party may amend as a matter of right within _____________ days of service of a preliminary

objection. • An amendment introducing a new cause of action will NOT be permitted after the statute of

limitations has run.


o An amendment after the limitations period has expired may amplify a stated cause of action, but may not propose a new theory of liability.

• A proposed amendment to add an entirely new _________________________ to the case after the statute of limitations has expired will NOT be permitted.

o If, however, the amendment is to correct the ___________________ of a party that was sued under the wrong designation, it will generally be allowed.

C. Motion for Judgment on the Pleadings (Rule 1034)

• The standard is identical to the ___________________________________________ standard. • A motion for judgment on the pleadings should be granted only where the pleadings

demonstrate that:

o No genuine issue of fact exists; and o The moving party is entitled to judgment as a matter of ________________.

• Only well pleaded, admitted facts are considered • Neither party can be deemed to have admitted either conclusions of ___________ or unjustified

inferences. • The court should confine itself to the pleadings and any documents or exhibits properly

attached to them, but may not consider ____________________________________ evidence.

D. Default Judgments

1. In General

o A defendant’s deadline to respond by answer or preliminary objection is ___________ days of service of the complaint.

o Upon a defendant’s failure to respond, to set the stage for a default judgment, the plaintiff must serve a ___________________________________________ to take default judgment under Rule 237.1, which gives ten days’ notice.

o If the defendant still does not respond, the plaintiff can file a praecipe with the prothonotary for entering a default judgment.

Must include certification of service of the notice of intent to take the default judgment and a copy of the notice. Rule 1037.

2. Amount of Judgment, Assessment of Damages Hearing

o If the damages are a ___________________________________ or can be calculated to become a sum certain, as with a set sum plus interest at a specified rate, the prothonotary will enter judgment in that amount. Rule 1037(b)(1).

o If not, the damages will be assessed at a ___________________ devoted solely to that issue.


3. Injunctions

o If the plaintiff has requested an injunction or other equitable relief, the court will enter an appropriate order and may take testimony to assist in its decision and framing the order. Rule 1037(d).

4. Attacking Default Judgments

After a default judgment is entered, the defendant will sometimes seek relief from the judgment, through a petition to open or motion to strike the judgment.

a. Motion to Strike

A judgment can be stricken, or simply wiped away as invalid, when a defect clearly ___________________________________.

On a motion to strike, the court considers only the record and does not accept additional ____________________________.

b. Petition to Open

If no obvious defect appears of record, the defendant would file a petition to open the judgment.

Explains the circumstances surrounding the defendant’s failure to respond to the complaint, which are not matters of record, and thus require a “petition” as opposed to a “motion.”

The petition must include a verified copy of the proposed answer. A defendant must establish three elements:

i) The defendant _______________ filed a petition to open the default judgment.

ii) The defendant pleaded a ____________________________________________ to the allegations in the complaint, which requires the defense to be set forth...in precise, specific and clear terms.

(a) The defense must be legally valid so that if proven at trial it would justify relief.

iii) The defendant must provide a ________________________________________ or explanation for failing to file a responsive pleading.

(a) This depends on the facts, but excusable negligence must establish an oversight rather than a deliberate decision not to defend.”

If the petition is filed within ten days of the entry of judgment on the docket, the judgment shall be opened provided the proposed answer states a ___________________________________________________________________.


E. SPECIAL PLEADING RULES—PROFESSIONAL LIABILITY ACTIONS

1. Application

o The rules apply to actions in which a _____________________________________________ claim is asserted by or on behalf of a patient or client of the licensed professional against:

(1) A licensed professional; and/or (2) A partnership, corporation or similar entity responsible for a licensed professional

who deviated from an acceptable professional standard, e.g., a claim for lack of informed consent. Rule 1042.1.

2. Licensed Professionals

o Include health care providers; accountants; architects; chiropractors; dentists; engineers and land surveyors; nurses; optometrists; pharmacists; physical therapists; psychologists; veterinarians; and attorneys.

o Also applies to any of these who are licensed by another state o The complaint must identify ______________________________________________

against whom the plaintiff is asserting a professional liability claim. Rule 1042.2.

3. Certificates of Merit

a. Requirements

Plaintiffs asserting professional liability claims are required to file, within sixty days of filing the complaint, a certificate of merit signed by the attorney or party.

The certificate must state one of three things:

• An appropriate licensed _________________________________ has supplied a written statement that there exists a reasonable _____________________________ that the defendant’s conduct at issue fell outside acceptable professional standards and was a cause in bringing about the harm;

• The claim is based solely on allegations that other licensed professionals for whom the defendant is ______________________________ deviated from an acceptable professional standard; or

• _________________________________________ of an appropriate licensed professional is not necessary to establish the claim.

b. Certificates of Merit and the Timing of Pleading and Discovery

The defendant need not file a responsive pleading until _____________ days after the certificate of merit is filed (Rule 1042.4).

A plaintiff may not serve ___________________________________ or take depositions before the certificate is filed (Rule 1042.5).


• The plaintiff may seek document production or the production of documents before filing the certificate.

The plaintiff must file the certificate within _____________ days of filing the complaint.

• The court can extend this period “upon good cause shown” for no more than another 60 days at a time, though multiple extensions are possible. Rule 1042.3(d).

c. Defendant’s Response to Plaintiff’s Failure to File a Required Certificate of Merit

The defendant files and serves upon plaintiff’s counsel a __________________________ ________________________ to file a praecipe seeking entry of judgment of non pros, no sooner than the thirty-first day after the complaint was filed.

Must provide the plaintiff 30 days’ notice before the defendant seeks entry of the judgment.

The plaintiff can respond by filing a motion seeking a determination that a certificate is not necessary, which ____________________ the time for filing a certificate.

If the plaintiff does not file a certificate within the __________ days, the prothonotary shall enter judgment ________________ upon the defendant’s praecipe, provided that:

• No motion for ____________________________________ and no timely motion for extension have been filed;

• No certificate has been filed; • The defendant has attached a certificate of service for the notice of intent to enter

judgment; and • The praecipe for judgment is filed no less than thirty days after the filing of the

notice of intention to enter judgment non pros. Rule 1042.7.

d. Challenging the Certificate Requirement

If the plaintiff contests the certificate requirement, the court examines the ________________________ of the complaint—rather than its form—to determine whether the claim against a defendant sounds in professional negligence or in contract.

To establish a professional negligence action, a plaintiff must show the defendant’s conduct fell below the relevant standard of care, which usually requires expert testimony.

CHAPTER 7: PRELIMINARY OBJECTIONS, JOINDER OF PARTIES, AND CLASS ACTIONS

A. Preliminary Objections

1. In General

o Preliminary objections can be filed to ____________________________________, meaning that a plaintiff can seek to strike an affirmative defense stated in a defendant’s __________.


o All preliminary objections must be raised ____________________________, and they may be inconsistent with each other.

o These are like trial objections, and are either “___________________________” or “____________________________.”

2. 8 Grounds for Preliminary Objections (Rule 1028(a))

1) Lack of personal or subject matter jurisdiction, improper venue, or improper _______________ of the complaint or writ of summons.

2) Failure of a _____________________________ to conform to law or rule of court or inclusion of scandalous or impertinent matter.

3) Insufficient _____________________________________ in a pleading.

• Pleading that lacks enough information for the defendant to formulate a response, or lacks the _____________________________________ required in Pennsylvania’s fact pleadings system.

4) The pleading fails to state facts sufficient to constitute a cause of action (legal insufficiency).

• Analogous to Federal Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted - standard is the same.

• The court assumes the truth of the _____________ stated in the complaint, and draws all reasonable inferences in the plaintiff’s favor, but does not assume the truth of conclusions of law.

• Must appear with certainty that the law would not permit recovery by the plaintiff upon the facts alleged.

5) Lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action.

• Nonjoinder - party required for the action is not present. • Under Rule 2227(a), persons having only a joint interest in the subject matter must

be joined on the same side as plaintiffs or defendants.

6) Pendency of a ___________________________________ or agreement for alternative dispute resolution.

• Pendency of a prior action (sometimes called lis pendens) - another lawsuit already exists involving the same or substantially the same _____________________, rights asserted (claims), and the same relief sought.

• If a party seeks ___________________________ based on a prior pending action, the three-pronged identity test must be applied strictly.


• The parties need not be completely identical for dismissal on this ground, provided _________________ exists, i.e., the absent parties in one suit have the same legal interests as those in the other.

• An agreement for ADR will usually be clear from the facts.

7) Failure to exercise or exhaust a statutory remedy.

• Comes up in regulatory matters that need to go to administrative agencies, e.g., employment discrimination

8) Full, complete and adequate non-statutory remedy at law - typically in response to an equity claim.

3. Waiver for Failure to Raise Preliminary Objection

All of the above objections will be waived if they are not raised by preliminary objection, except:

o Lack of ____________________________________________ jurisdiction o Failure to state facts sufficient to constitute a cause of action o Defect in ______________________________ or misjoinder of parties

Editor's Note 2: In addition, the failure to exercise or exhaust a statutory remedy is not waived if not raised by preliminary objection.

4. Amendment Moots Preliminary Objections

o If a party, usually the defendant, files Preliminary Objections, the other party has twenty days within which to file an _____________________________ pleading, which moots the Preliminary Objections.

o Issues raised by other Preliminary Objections, such as improper venue, improper service, or lack of capacity to sue, usually cannot be cured by _________________________________, and might require _______________________________________ for adjudication.

B. Joinder of Parties

1. Compulsory Joinder

o Parties with only a _________________________________ interest in the subject matter MUST be joined with the appropriate party, on the same side as that party. Rule 2227.

o If a person who must be joined as a plaintiff refuses to join, that party shall be made a defendant or “involuntary plaintiff” when allowed under PA law.

o If an injury not causing ________________ occurs to a husband or wife, such that both have claims, the claims must be brought in one action by both husband and wife. Rule 2228(a).

o Same rule applies with injury to a minor when causes of action accrue to the minor and parents. Rule 2228(b).

2. Permissive Joinder (Rule 2229)

o The rule in Pennsylvania is essentially the same as the federal rule.


o For permissive joinder, the claims by or against the joined parties must:

Arise out of the same transaction, occurrence, or series of transactions or occurrences; AND

Have a _______________________________________ question of law or fact.

3. Additional Defendants

o Equivalent of impleader (third-party claims) o under the FRCP o A person may join as an additional defendant, a party who may be:

________________ liable on the underlying cause of action against the joining party; or Liable to or with the joining party on any cause of action arising out of the transaction

or occurrence or series of transactions or occurrences upon which the underlying cause of action against the joining party is based. Rule 2252

o The joining party may file either a complaint or a praecipe for a writ of summons.

If by writ, the joining party must file a complaint within twenty days of filing the praecipe for the writ. Rule 2252(b)(1).

4. Intervention

o While an action is pending, a person not a party will be permitted to intervene if:

Judgment in the action will impose any ______________________________ upon the person to indemnify the party against whom judgment may be entered;

The person will be _____________________________ affected by a distribution or other disposition of property in court custody;

The person could have _________________ or been __________________ as a party; or The action’s resolution may affect any legally enforceable interest of the person.

o The application to intervene is by _________________________ in the form of a complaint.

The petition must include a copy of pleadings the petitioner intends to file if permitted to intervene, or shall adopt other parties’ pleadings by reference.

o Rule 2329: After a hearing, if the court finds the intervention allegations have been established and satisfy one of the grounds for intervention, the court __________________ order intervention, unless one of the grounds for refusal exists:

The petitioner’s interest is already ________________________________ represented; The petitioner’s undue ______________________ in filing the petition, or the

intervention will unduly delay or prejudice the trial or the rights of the parties; OR The petitioner’s claim or defense is not in subordination to and in recognition of the

propriety of the action - means the intervenor takes the case “as he finds it,” and is not


seeking to revisit prior rulings, raise issues that have been waived, or otherwise question the status of the case.

C. Class Actions

1. In General

o Pennsylvania’s class action rules (1701-1716) are similar to the federal rules BUT do NOT require the court to find that a class action is “superior to other available methods” for adjudicating the case - Fed. R. Civ. P. 23(b)(3).

o Under Rule 1702, the court only needs to find that a class action provides a _____________ _________________________________________ method for adjudicating the controversy.

2. Fair and Efficient Method for Adjudication

o Factors in Rule 1708 are similar to the federal considerations. o Pennsylvania rule explicitly includes a ________________________________ consideration. o When monetary relief alone is sought, the court can consider:

Given the complexities of the issues or the expenses of litigation, would separate claims by individual class members be insufficient to support separate action? (If yes, this cuts in favor of a class action.)

Will the amount of recovery for each individual class member be so small in relation to the expense and effort of administering the class action as not to justify a class action? (If yes, this cuts against a class action.)

3. Fair and Adequate Representation

o Rule 1709 states the factors:

Whether attorneys will _______________________ represent the interests of the class; Whether representative parties have a ____________________________________; and Whether the representative parties have adequate ______________________________

to protect the interests of the class.

4. Class Action Complaints

o Class actions cannot be commenced by writ of ____________________________. o Must begin with a complaint (Rule 1703), which must include the designation “Class Action”

in its caption (Rule 1704). o The complaint must include a section entitled "___________________________________,”

which states factual averments supporting the class action prerequisites from Rule 1702, and the criteria from Rules 1708 and 1709 on which the plaintiffs rely for class certification.

5. Responses to Complaint

o Fact issues with respect to class action allegations __________________________ be raised by Preliminary Objection.


o These challenges to class certification must appear in the answer and new matter.

CHAPTER 8: DISCOVERY

A. In General

1. Comparison to Federal Rules

o Discovery under the PA Rules of Civil Procedure is similar to federal practice in many respects.

o The discovery tools are the same. o Basic process is the same and the rules are identical in many areas, such as the use of

depositions at trial. o Several material differences exist in areas that frequently arise – such as the timing of

discovery, expert discovery, and the scope of work product protection.

2. Number of Interrogatories or Document Requests

o PA Rules do not include __________________________ on the number of interrogatories or document requests, nor do they limit the number and duration of ____________________.

o The court CAN place limits on discovery “as justice requires.”

B. Scope of Discovery

1. In General

o Rule 4003.1 o Discoverable material includes any matter, not privileged, which is _____________________

to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.

o Information need not be admissible, as long as it appears ____________________________ ___________________________ to lead to the discovery of admissible evidence.

o Discovery of Opinions: A party cannot object on the grounds that the information sought involves an ____________________________________________________________ that relates to a fact or the application of law to fact. Rule 4003.1(c).

2. Sequence and Timing of Discovery

a. No required disclosures

Under the Pennsylvania rules, the parties need not produce anything without a request from another party.

_________ required disclosures under the Pennsylvania rules.

b. No required discovery plan and scheduling order

Less structure is imposed at the outset under the PA rules.


No requirement in the Pennsylvania Rules that the parties “confer as soon as practicable” about discovery and formulate a detailed discovery plan, as under Fed. R. Civ. P. 26(f).

The Pennsylvania rules do not require the court to issue a scheduling order similar to that required by Fed. R. Civ. P. 16(b).

Conferences and scheduling orders are __________________________ and can be requested by the parties or ordered on the court’s own motion.

c. No required sequence for discovery

Unless the court orders otherwise, methods of discovery may be used in ____________ _________________________.

The fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery.

Interrogatories may be served with the complaint or any time thereafter. A plaintiff needs leave of court to notice a deposition before ___________ days after

service of the complaint, unless the defendant has sought discovery or other exigent circumstances exist. Rule 4007.2.

3. Pre-Complaint Discovery

o Governed by Rule 4003.8 o A plaintiff may obtain pre-complaint discovery where the information sought is __________

__________________________________ to filing the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.

o Upon a motion for a protective order or other objection, the court may require the plaintiff to state with particularity how the discovery will ___________________________________ the preparation of the complaint.

o The court will weigh the _______________________________ of the discovery against the ___________________ imposed on any person or party from whom the discovery is sought.

Note 2: The Federal Rules of Civil Procedure do contain some pre-complaint discovery in Rule 27 which allows pre-litigation depositions to perpetuate testimony.

4. Punitive Damages (Rule 4003.7)

A party may obtain information concerning the ___________________ of a defendant in a claim for punitive damages only upon order of court establishing appropriate limits about time, scope, and permissible dissemination of the information.


5. Insurance Policies (Rule 4003.2)

Parties may obtain information about insurance agreements under which an insurance company may be liable to satisfy all or part of a judgment, or to ________________________________ or reimburse for payments made to satisfy the judgment.

5. Statements

o Governed by Rule 4003.4 o Defined as:

Written statements signed or otherwise adopted or approved by the person making it; or

A contemporaneously made recording or transcript of an oral statement.

o Statements or copies of statements concerning the action or its subject matter and made by parties or non-party witnesses __________________________________________________ upon written request.

Differs from FRCP

o Non-party witnesses are entitled to immediate receipt of their own statements upon written request.

C. Electronically Stored Information (ESI)

1. General Rules

o PA Supreme Court recently amended the Rules of Civil Procedure to address discovery of electronically stored information.

o Amendments effective August 2012 o Most important revision in Rule 4009.1. o Includes electronically stored information as a form of material that can be subject to a

______________________________________________ along with all other types of physical documents.

o A party requesting ESI may specify the ___________________ in which it is to be produced. o No format specified – ESI may be produced in the form in which it is ordinarily maintained

OR in a reasonably usable form.

2. Standard

o Scope is determined by traditional principles of proportionality under PA law – not federal jurisprudence (although the result is similar under either set of rules).

o Court must consider:

The nature and scope of the litigation, including the _____________________________ and ____________________________________ of the issues and the amounts at stake;

The ______________________ of the ESI and its importance to the court’s adjudication;


The ___________, _________________, and delay that may be imposed on the parties; The ease of producing ESI and whether substantially similar information is available with

less burden; and Any ________________________________________ relevant under the circumstances.

3. Differences from Federal Rules

o Procedure - PA rule treats ESI like any other discoverable material; the federal rule creates a burden-shifting procedure specifically for ESI when a party withholds the ESI from sources it claims are not reasonably accessible due to undue burden or cost.

o Federal rules: The resisting party bears the burden of showing that ESI is not reasonably accessible. If that burden is satisfied, the court can order discovery if the party seeking discovery shows ____________________ and the cost-benefit analysis favors the discovery.

o The PA rules dispense with the burden-shifting process and engage the cost-benefit analysis with the proportionality standard immediately.

D. Work Product or “Trial Preparation Material”

1. Basic Rule

Rule 4003.3: Party may obtain matter even though prepared in anticipation of ______________ or trial unless it falls within the attorney work product doctrine.

2. Attorney Opinion Work Product Not Discoverable

o The discovery shall not include disclosure of the attorney's __________________________, conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.

o Classified as an attorney’s “opinion” work product and is not discoverable.

3. Non-Attorney Representatives

Discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the _________________________________ of a claim or defense or respecting legal strategy or tactics.

4. The “At Issue” Exception

o Under both federal and Pennsylvania rules, if an attorney’s opinion work product in one case becomes ___________________________________ in another case, it is discoverable.

Example 10: The plaintiff was injured at an ice skating rink and sought damages from the rink’s owner. The plaintiff’s counsel interviewed two witnesses, the plaintiff’s daughter and one of her daughter’s friends. After the witnesses left the counsel’s office, the counsel dictated a summary of the witnesses’ accounts of the accident which had been reduced to writing. The defendant requested production of the written summaries of the witnesses’ accounts. The plaintiff objected based on the work product doctrine. The defendant filed a motion to compel. What should be the result? This


___________________________________ under Rule 4003.3 as attorneys’ notes. Is the information discoverable? _______________, but the defendant’s counsel needs to request it in a different format, such as interrogatories asking for everything the witness has told the plaintiff’s attorney.

What if an insurance adjuster had interviewed the witnesses and taken the notes instead? They _______________________ discoverable because they would not include opinions about the value or the merit of a case or about legal strategy and tactics.

CHAPTER 9: DISCOVERY (CONT'D) AND SUMMARY JUDGMENT

A. Discovery from Non-Parties via Subpoenas

• The Pennsylvania Rules require information from non-parties to be obtained using a subpoena, which can request testimony, documents, or both.

1. Deposition

o When a party seeks a deposition of a non-party, the party serves a subpoena under Rule 234.1, and otherwise proceeds under the general deposition rule, 4007.1.

o The subpoena can include a request to ___________________________________________ at the deposition - must specify the documents to be produced.

o The documents cannot be produced before the deposition unless the parties ____________. o Rule 4007.1 requires “reasonable notice” to the parties of the deposition.

2. Documents Only

o Starts with Rule 4009.21 o Impose a __________ day notice and objection period o Before serving the subpoena, the party serves notice on all other parties of the intent to

serve the subpoena, at least 20 days in advance. o Any party can then _________________ to the subpoena and the objections are served on

all parties. o In the face of objections, the party seeking the discovery cannot serve the subpoena, and

the court must decide the matter on motion. o If no objection or if approved by the court, issued and served pursuant to regular subpoena

rules.

B. Enforcement of Discovery Rules

1. Protective Orders

o Just as in federal practice, a party or person from whom discovery is sought may file a motion for a protective order seeking to preclude the _______________________________ or limit it in some way.


o Frequently, non-parties file motions for protective orders when discovery is sought from them via subpoena.

o The rules are similar in substance - Pennsylvania’s is 4012.

2. Motions to Compel and for Sanctions

Pennsylvania’s rules (4019) for motions to compel and for sanctions are similar to Federal Rules.

C. Expert Discovery

1. No Required Disclosures Under Pennsylvania Rules

o Fed. R. Civ. P. 26(a)(2) requires parties to disclose expert witnesses and to produce their reports that include their opinions, data used, exhibits, qualifications, and other information.

o The Pennsylvania rules do not require automatic disclosure of expert witnesses and their reports.

2. Expert Interrogatories

o Rule 4003.5 directs parties to obtain information about other parties’ experts through __________________________________________________ requiring disclosure of:

The expert’s __________________________________________; The ___________________________________________ of the expert’s testimony; and The substance of the facts and opinions to which the expert is expected to testify and a

summary of the __________________________________ for each opinion.

o The party responding to these interrogatories may submit an expert report, or simply answer the interrogatories themselves - the answer or report must be signed by the expert.

o This is the ONLY form of expert discovery to which parties are entitled in _______________ _________________.

3. Expert Depositions

o Under the PA rules, expert depositions are _______________________________________. o Upon _________________________________, the court may order further discovery by

other means. Rule 4003.5(a)(2). o In contrast, Fed. R. Civ. P. 26(b)(4) provides that a party may depose any person who has

been identified as an expert whose opinions may be presented at trial.

4. Experts Not Expected to Testify at Trial

o Experts consulted in anticipation of litigation, but not expected to testify, are generally shielded from discovery.

o Under Rule 4003.5(a)(3), no discovery of non-testifying expert opinions unless:

A ______________________________________ who conducted a court-ordered physical or mental examination; or


On order of court due to _____________________________________ circumstances under which the party cannot obtain the same information by other means.

5. Undisclosed Experts

o Rule 4003.5(b) - an expert who is not disclosed in response to expert interrogatories is _________________________________________________________________ to testify.

o Exception: the court may allow the expert to testify if the failure to disclose the expert was caused by ___________________________________ circumstances beyond the control of the defaulting party.

6. Duty to Supplement

o Responses to expert discovery must be supplemented if the information changes. Rule 4007.4.

o Identities of experts and the substance of their proposed opinions must be supplemented.

7. Situations When Rule 4003.5 Does Not Apply

o Rule 4003.5's limits on discovery does not apply when a _________________ himself is an expert, such as a physician, architect or other professional person, AND the alleged improper exercise of his professional skills is involved in the action.

Can be deposed and required to answer interrogatories just like any other party Cannot object to providing opinions

o The limits only apply to experts retained or specially __________________ for the litigation.

Does not apply to regular employees of parties who may have conducted investigations and prepared reports, and who may be qualified as experts in their fields.

These individuals have ________________________________________ from discovery, even if their employers do not intend to call them as witnesses at trial.

Can be deposed like any other employee of a party.

8. Expert Discovery in Medical Malpractice Cases

a. In General

In 2004, Pennsylvania adopted special pre-trial procedures for Medical Professional Liability Actions.

Rules 1042.26 through 1042.36 contain elaborate procedures relating to ____________ ____________________ in these cases.

b. Report Must Address All Liability Issues

The expert reports must encompass ________ issues in the ______________________ phase of the case, including issues of professional negligence and causation of harm, for which a party will offer expert testimony at trial. Rule 1042.27.


Even without an explicit request for “all opinions,” in medical malpractice cases the parties must provide all opinions.

No surprise is permitted, even if the other side doesn’t craft properly worded _________________________________ under Rule 4003.5.

c. Summary Judgment for Failure to Produce Report

If a party is ordered by the court to produce an expert report and fails to do so, that testimony can be ___________________________ at trial.

The court is directed to promptly consider a motion for __________________________ which is based solely on a court order barring a party from introducing expert discovery.

D. Supplementing Discovery Responses (Rule 4007.4)

• A party or expert whose response to discovery was ___________________ when made is under no duty to supplement the response to include information thereafter acquired except when:

o The information confirms that the initial response was _________________________ when made or—though correct when made—is ___________________________________ true;

o The question was directly addressed to the identity and location of persons having knowledge of discoverable matters; or

o The question was directly addressed to the identity of each person expected to be called as _______________________________________________ at trial, and the subject matter and substance of the anticipated expert testimony.

E. Summary Judgment Rules

• Rules 1035.1 through 1035.5

1. Basic Standard (Rule 1035.2)

o Rule 1035.2 articulates two types of summary judgment:

1) There is no genuine issue of any material fact as to a necessary ____________________ of the cause of action or defense which could be established by additional discovery or expert report.

2) Summary judgment can be entered when, after the completion of discovery including expert reports, an adverse party who will bear the burden of proof at trial has failed to produce __________________ of facts essential to the cause of action or defense which in a jury trial would require submission to a jury.

o Summary judgment can be granted outside the normal procedure with briefs, as when it is required after a motion in _____________________ knocks out evidence essential to a case.

2. Response (Rule 1035.3)

A party can oppose summary judgment by identifying one or more issues of fact arising from:


o Evidence in the record _____________________________ the evidence cited in support of the motion; or

o ________________________ of one or more witnesses testifying in support of the motion.

3. The “Nanty-Glo” Rule

o Rule: ______________ testimony alone, either through testimonial affidavits or depositions, of the ________________________________ or the moving party’s witnesses, even if ____________________________________, is generally insufficient to establish the absence of a genuine issue of material fact.

o This rule lies behind Rule 1035.3's provision allowing a party opposing summary judgment to challenge the ________________________ of witnesses testifying in support of the motion.

The non-moving party may attack the motion because the cause of action is dependent upon the credibility and demeanor of the witnesses who will testify at trial. Rule 1035.3.

o NOT followed under the Federal Rules o Narrow application - The Nanty-Glo rule only applies if:

The plaintiff does state a _______________________________________________; and The defendant relies exclusively on the oral testimony of its own witnesses,

• Such that the court would, in granting the motion, be accepting that testimony as true and thereby passing on the credibility of those witnesses.

CHAPTER 10: TRIAL MOTIONS, POST-TRIAL RELIEF, APPEALS, AND STATUTES OF LIMITATIONS

A. Trial Motions - Compulsory Nonsuit at Trial

1. In General

o Trial motion based on a plaintiff’s failure to establish a cause of action. o Governed by Rule 230.1 o Standard is the same as for summary judgment or judgment as a matter of law.

2. One Plaintiff, One Defendant

o The court may enter a nonsuit on any and all causes of action if, at the close of the ___________________________________ case on liability, the plaintiff has failed to establish its prima facie case.

o The court must consider only evidence introduced by the plaintiff or evidence ____________________________ to the plaintiff introduced by the defendant before the close of plaintiff’s case. Rule 230.1(a)(1,2).


o The court will NOT consider evidence in the defendant’s case that may have been introduced before the close of plaintiff’s case, as might happen when a witness will not be available during defendant’s case.

3. Multiple Plaintiffs

If the case involves more than one plaintiff, no nonsuit may be entered against any plaintiff until the close of the cases of ______________________________________. 230.1(b).

4. Multiple Defendants

o If the case involves more than one defendant, the court may not enter a nonsuit against any plaintiff until the close of the cases of all plaintiffs as against all _______________________.

o Court may enter a nonsuit in favor of all defendants, or in favor of any defendants who have moved for nonsuit provided all defendants stipulate they will not present evidence that would establish the movant’s liability. Rule 230.1(c)

B. Post-Trial Relief

1. In General

o “Post-trial relief,” including motions for JNOV, remittitur, and new trial, is governed by Rule 227.1.

o The court may:

Order a _______________________________________________ as to any or all issues; Direct the entry of _______________________________________ in favor of any party; Remove a nonsuit; Affirm, modify or change the decision; or Enter any other appropriate order such as remittitur.

2. Waiver if Issue Not Raised at Trial

o Post-trial relief may not be granted unless the issue was raised in pretrial proceedings or at __________________________, provided the grounds for the motion were then available.

o In addition, the written motion must specifically articulate the grounds for relief and how they were raised earlier.

3. New Trial - Verdict Against Weight of Evidence

If the motion is for a new trial because the verdict was against the weight of the evidence, the verdict must be so contrary to the evidence as to “shock _______________________________ _____________________________.”

4. New Trial - Ruling on Evidence

o If the motion for a new trial is based on an evidentiary ruling, the ruling must be “erroneous and _____________________________________________ to the complaining party.”

o Evidentiary rulings that did not affect the verdict are NOT grounds for post-trial relief.


5. Remittitur

o Damages awarded by the jury were excessively high and should be reduced. o Court should fix the highest amount any jury could properly award, giving due weight to all

the evidence offered. o Remittitur will be ordered if the verdict so _______________________ the sense of justice

as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption.

C. Interlocutory Appeals

1. In General

o Governed by the Rules of ___________________________________________ Procedure o Exceptions to the general rule requiring a ______________________________ for an appeal

under Pa. R. App. P. 341.

2. Interlocutory Appeals as of Right - Rule 311

o These include:

Orders affecting _______________________, such as refusing to open, strike, or vacate a judgment;

Orders granting ___________________________________________; Changes of _____________________________________; and

• These include orders transferring cases to other counties for improper venue, or orders “declining to proceed in the matter” for forum non conveniens.

Injunctions.

• This includes orders granting, continuing, modifying, refusing, or dissolving injunctions.

3. Collateral Orders

o Appeals from collateral orders may be taken as of right. o These are orders for which:

The issue involved is _____________________ from the main cause of action, i.e., not on the merits;

The right involved is too _______________________________ to be denied review; and The question presented is such that if review is postponed until final judgment, the

claim will be irreparably lost.

o Most discovery orders are NOT appealable under this rule but orders adjudicating privilege claims frequently are appealable as collateral orders.


D. STATUTES OF LIMITATIONS AND REPOSE

1. Introduction

o A statute of limitations begins running when the cause of action accrues.

In some cases the “_____________________________ rule” applies to toll the statute until the plaintiff reasonably should know of her injury and its _____________________.

o A statute of ______________________ is triggered by an event other than accrual of the cause of action, i.e., not by the injury or plaintiff’s discovery of her injury.

Statutes of repose extinguish all causes of action after their periods expire, even those which have not yet _________________, and they cannot be ______________________ via the discovery rule.

2. Limitation Periods

o ___________________ for actions against governmental units for personal injury or property damage, unless:

The plaintiff has provided required written notice to the government identifying the plaintiff, stating the time and place of the accident, and identifying any treating physician.

o One Year Limitation for _______________, ___________________, and invasion of privacy. o Two Year Limitation for most ____________________ cases,

Including assault, battery, false imprisonment, malicious prosecution, abuse of process, personal injury, wrongful death, taking or injuring personal property, waste and trespass of real property, and “any other action...to recover damages for injury to person or property...founded on negligent, intentional, or otherwise tortious conduct or any other action...sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified” by statute.

The two year period includes ______________________________________________, and insurance bad faith actions.

Asbestos claims have their own statute, 5524.1, which is also two years.

o Four Year Limitation for most __________________________________ claims, including those for sales governed by Pennsylvania’s U.C.C.

o The four-year period also applies to actions for identity theft - must be commenced within four years of the offense OR four years from the plaintiff’s discovery of the theft.

Note 3: If a contract is an “instrument in writing under seal,” a 20-year limitation period applies. 42 Pa.C.S. 5529(b). This generally requires a written or printed seal, word, scrawl or other sign that indicates the parties’ intention that the document is under seal.


o Five Year Period for actions for _________________________________________________ of a real estate sales contract, or damages for breach of such contract. 42 Pa.C.S. 5526.

o Other actions for the possession of real property, including collection of rents and adverse possession actions, are subject to a ______-year limitation period. 42 Pa. Cons. Stat. § 5530.

o Six Year Period for all claims not specifically identified in another section, 42 Pa.C.S. 5527(b).

3. Statute of Repose for Construction Projects

o Causes of action for personal injury, death, or property damage arising out of a deficiency in design, planning, supervision, or construction of an improvement to real property must be brought within _____________________________ years after construction is completed.

o If injury or death occurs between __________________ years after completion, the plaintiff has until ____________ years after completion.

o Defendant in actual possession or control when the deficiency in the improvement causes injury - the defendant may NOT raise the statute of repose as a defense.

4. Medical Professional Liability Actions

o Subject to the statute of limitations, typically the __________________ period for tort actions, which can be extended via the discovery rule.

o Also subject to a __________________________________________________, which extinguishes medical professional liability claims ______________ years from the date of the alleged tort or breach of contract regardless of when the plaintiff __________________ or should have discovered the cause of action. 40 Pa.C.S. 1303.513.

o Does not apply to injuries caused by objects left in the plaintiff’s body. 40 Pa.C.S. 1303.513.

5. Infancy, Insanity, and Imprisonment

o Insanity and imprisonment ______________________ toll the statute of limitations, unless specifically provided by statute.

o If a plaintiff is an unemancipated minor when his or her cause of action accrues, the statute does not begin running until the plaintiff turns _______________.

o If the plaintiff’s action is for childhood sexual abuse, the period is ________________ years after turning 18.

6. Plaintiff’s Death Before Suit

When an individual dies, his or her causes of action must be brought no later than _______ year after death, or before the expiration of the applicable limitation period under law, whichever is ________________. 20 Pa.C.S. 3383.

Example 11: If someone dies two months after her personal injury cause of action accrues, her representative has the remainder of the normally applicable two-year period. If she dies eighteen months after the claim accrues, her representative has one year from death to commence suit.


7. The Discovery Rule

o Generally, the cause of action accrues and the statute of limitations begins to run when an ________________________ is inflicted.

o Rule temporarily suspends the SOL if the plaintiff is ___________________ that he has been injured.

o SOL begins to run when the plaintiff discovers or reasonably should have discovered that:

She has been injured; AND That the injury has been caused by another person's conduct.

o The appropriate standard is “reasonable diligence.” o Does NOT apply if plaintiff was aware of injury but uncertain about the defendant's

___________________

8. Fraudulent Concealment

o A defendant may not invoke the benefit of a statute of limitations if, by his own conduct, he has caused the plaintiff to "relax his vigilance."

o This does not require an intent to deceive. o Standard is the same: the statute begins running when, by use of reasonable diligence, the

plaintiff should have known about the injury and its cause.

9. Raising the Statute of Limitations/Repose as a Defense

o Cannot be raised by preliminary objection, but must be asserted in new matter and thereafter adjudicated by summary judgment or __________________________.

o Some cases include jury trials specifically devoted to this issue. o The courts emphasize that whether a party was able, in the exercise of reasonable diligence,

to know of his injury and its cause is normally a _________________________ question.

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