Prepared by

Thomas A. Dittoe, Esquire

PENNSYLVANIASTUDENT SUPPLEMENT

to Accompany

CIVIL LITIGATIONTHIRD EDITION

Peggy N. Kerley, Joanne Banker Hames, Paul A. Sukys

CONTENTS

PART I INTRODUCTION TO CIVIL LITIGATION FOR THE PARALEGAL

Chapter 1 Litigation and the Paralegal ...................................................................... 1

Chapter 2 The Courts and Jurisdiction ...................................................................... 3

PART II INITIATING LITIGATION

Chapter 3 Preliminary Considerations ...................................................................... 6

Chapter 4 Interview and Investigation Prior to Litigation ....................................... 10

Chapter 5 Responding to the Initial Pleadings ........................................................ 11

Chapter 6 Responses to the Initial Pleadings .......................................................... 18

Chapter 7 Motion Practice....................................................................................... 21

PART III DISCOVERY

Chapter 8 Overview Of The Discovery Process ...................................................... 23

Chapter 9 Depositions ............................................................................................. 25

Chapter 10 Interrogatories ......................................................................................... 28

Chapter 11 Physical and Mental Examinations......................................................... 30

Chapter 12 Request for Documents .......................................................................... 31

Chapter 13 Requests for Admissions ........................................................................ 32

PART IV PRETRIAL, TRIAL AND POSTTRIAL

Chapter 14 Settlements and Dismissals .................................................................... 33

Chapter 15 Trial Techniques ..................................................................................... 35

Chapter 16 Posttrial Practice ..................................................................................... 37

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PART I INTRODUCTION TO CIVIL LITIGATION FORTHE PARALEGAL

CHAPTER 1 LITIGATION AND THE PARALEGAL

WHAT CIVIL LITIGATION ISCivil litigation is any legal action commenced by one party

against another party, excluding those actions brought bythe Commonwealth of Pennsylvania, pursuant to the Penn-sylvania Crimes Code. The authority to enact and modifythe rules governing civil litigation is vested with the Penn-sylvania Supreme Court, pursuant to the Pennsylvania Con-stitution and the Pennsylvania Judicial Code (Pa. Const. Art 5§10; 42 Pa. C. S. A. § 1722(a)). The Pennsylvania JudicialCode (42 Pa. C. S. A. § 101, et seq.), the Pennsylvania Rulesof Civil Procedure, and the Pennsylvania Rules of Appel-late Procedure, as promulgated by the Pennsylvania SupremeCourt, govern the practice of civil litigation in Pennsylvania.

Although Pennsylvania has eliminated the distinctionbetween assumpsit and trespass (Pa. R. Civ. P. 1001(b)(1)),the Rules of Civil Procedure, unlike the Federal Rules ofCivil Procedure, do differentiate between civil actions at lawand actions in equity. As a result of this continued separa-tion, there are some differences in the procedural aspects ofthe two types of actions, as well as substantive legal differ-ences between actions at law and actions in equity.

DIFFERENT TYPES OF CIVIL LAWSUITSCivil litigation encompasses numerous types of actions

that are governed by the Pennsylvania Rules of Civil Proce-dure. These actions are generally within the jurisdiction ofthe courts of common pleas. With the possible exception ofthe district justice system, the county court of common pleasis the court paralegals will be involved with most. Prior tothe amendment of the Rules of Civil Procedure, there wereseparate rules for trespass and assumpsit actions, however,they have now been consolidated as a single civil action (Pa.R. Civ. P. 1001). Other actions “at law” include actions inejectment (Pa. R. Civ. P. 105l, et seq.), actions to quiet title(Pa. R. Civ. P. 1061, et seq.); actions in replevin (Pa. R. Civ.P. 1071, et seq.); actions in mandamus (Pa. R. Civ. P. 1091,et seq.); actions in quo warranto (Pa. R. Civ. P. 1111, etseq.); actions in mortgage foreclosure (Pa. R. Civ. P. 1141,et seq.); and actions upon ground rent (Pa. R. Civ. P. 1161et seq.). Actions “at equity” include actions for the parti-tion of real property (Pa. R. Civ. P. 1551, et seq.) and ac-tions to prevent waste (Pa. R. Civ. P. 1576, et seq.).

Other civil actions that come before the courts of com-mon pleas include declaratory judgments (Pa. R. Civ. P. 1601,et seq.); actions upon mechanics liens (Pa. R. Civ. P. 1651,et seq.); class actions (Pa. R. Civ. P. 1701, et seq.); actionspursuant to Protection from Abuse Act (Pa. R. Civ. P. 1901,et seq.); actions for support (Pa. R. Civ. P. 1910.1, et seq.);

actions for custody, partial custody and visitation of chil-dren (Pa. R. Civ. P. 1915.1, et seq.); actions of divorce orannulment of marriage (Pa. R. Civ. P. 1920.1, et seq.); andactions for wrongful death (Pa. R. Civ. P. 2201, et seq.).

The orphan’s court division of the court of common pleasinvolves the probate of wills, adoptions, termination of pa-rental rights and proceedings under the Abortion ControlAct, and is governed by its separate set of rules.

ALTERNATIVES TO LITIGATIONPennsylvania has enacted the Uniform Arbitration Act (42

Pa. C. S. A. § 7301, et seq.). The act allows parties to vol-untarily arbitrate a controversy on a nonjudicial basis, ei-ther according to the provisions of the act or according tocommon-law arbitration. A written agreement for arbitra-tion is valid, enforceable and binding unless the agreementcan be voided under the same grounds applicable to con-tracts (42 Pa. C. S. A. § 7303). If there is such an agree-ment, a party may petition the court to compel the otherparty to go to arbitration (42 Pa. C. S. A. § 7304(a)).

Within thirty (30) days of delivery of a copy of the deci-sion of the arbitration, a party may make application to thecourt to vacate the award (42 Pa. C. S. A. § 7314(b)). A courtof common pleas can only vacate the award if one of thefollowing has occurred during the arbitration (42 Pa. C. S. A.§ 7314(a)):

1. The act did not apply to the action at hand.2. There was evident partiality of an arbitrator or other

misconduct on the part of an arbitrator prejudicing therights of a party.

3. The arbitrators exceeded their powers.4. The arbitrators refused to postpone the hearing for good

cause, refused to hear admissible evidence, or conductedthe hearing contrary to the act that prejudiced the rightsof a party.

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

A party has thirty (30) days from the date of the award tohave the court modify or correct an award based upon (1) amiscalculation or mistake in the description of a person, thing,or property; (2) any matter that was not submitted to arbi-tration and which was ruled upon by the arbitrators; and (3)a defect as to form not affecting the merits of the decision(42 Pa. C. S. A. § 7315(a)). The court then enters a judg-ment or decree confirming, modifying, or correcting the ar-bitrators’ award (42 Pa. C. S. A. § 7316).

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PROCEDURAL V. SUBSTANTIVE LAWIn every civil case, it is necessary to know and research

two types of law. First, the substantive law defines the rights,duties, and obligations of not only your client but also thoseof the opposing party, regardless of whether you are repre-senting the plaintiff or the defendant. The substantive lawwill be found in case law, and in a multitude of statutes andordinances. Statutes are laws passed by the general assem-bly and codified in Purdons, whereas ordinances are thosepassed by political subdivisions, such as cities, counties,boroughs, and townships. Ordinances can be found in theoffices of these subdivisions or in the county law library.

Once it has been determined that your client has a causeof action or a defense to an action brought against him, it isnecessary to know the procedural law regarding that par-ticular type of action. This is important, because the failureto properly file a pleading or missing a time limitation couldlead to excess time and expense on the part of your client,or even the loss of a claim or defense on your client’s be-half. The procedural law is found in the Pennsylvania Judi-cial Code, Pennsylvania Rules of Civil Procedure, PennsylvaniaRules of Appellate Procedure, other rules promulgated by

the Pennsylvania Supreme Court, local rules of court, andrules governing procedures before political subdivisions andadministrative agencies.

SOURCES OF THE LAWThere are many sources of law used in determining civil

litigation in Pennsylvania. The primary sources are the Penn-sylvania Constitution; statutes’ enacted by the general as-sembly; Pennsylvania case law as stated by the various courtsof Pennsylvania and federal courts deciding Pennsylvanialaw; the Pennsylvania rules of court (usually the Rules ofCivil Procedure, orphan’s court rules and the various rulesfor the appellate courts), and local rules and ordinances en-acted by cities, boroughs, townships, etc. In addition, caselaw of other states and other federal jurisdictions may beused where the statute or rule being adjudicated is similaror identical to the Pennsylvania statute. Examples would bethe Uniform Child Custody Jurisdiction Act or the UniformReciprocal Enforcement of Support Act. Other sources ofauthority would include various treatises and handbooks.

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CHAPTER 2 THE COURTS AND JURISDICTION

STATE COURT SYSTEMSThe judicial power of the Commonwealth of Pennsylva-

nia is vested in a unified judicial system consisting of a Su-preme Court, superior court, commonwealth court, and variouscounty courts of common pleas, community courts, the Phila-delphia municipal court, the traffic court of Philadelphia,district justices, and such other courts as may be providedby law (Pa. Const. Art. 5 § 1). The Judicial Code includesthe same courts with the addition of the Pittsburgh magis-trates court (42 Pa. C. S. A. § 301). Excluding district jus-tices, the court system of Pennsylvania consists-of three levels.The Supreme Court is the highest judicial authority in thecommonwealth, followed by the intermediate appellate su-perior and commonwealth courts and the sixty-seven (67)county courts of common pleas. The courts of common pleasmay be divided into divisions, such as domestic relations.There are also numerous district justices in each county.Pursuant to the Pennsylvania Constitution, the general as-sembly may create additional courts or divisions of existingcourts, as needed, or abolish any statutory court or divisionthereof (Pa. Const. Art. 5 § 8).

The Supreme Court of Pennsylvania is the highest courtin the Commonwealth of Pennsylvania and possesses thesupreme judicial power of the commonwealth. The courtconsists of seven justices, one of whom is the chief justice(Pa. Const. Art. 5 § 2). The superior court currently consistsof fifteen (15) judges (42 Pa. C. S. A. § 541) and a presi-dent judge (Pa. Const. Art. 5 § 3). The commonwealth courtconsists of a president judge (Pa. Const. Art. 5 § 4) andnine (9) judges (42 Pa. C. S. A. § 561).

The courts of common pleas shall have one president judgeand as many other judges as may be provided by law (Pa.Const. Art. 5 § 5). Some courts of common pleas have sepa-rate orphan’s courts and criminal divisions as well as a familycourt division.

JURISDICTIONThere are two types of jurisdiction: subject matter and

personal. A court may determine a legal action if it has bothsubject matter jurisdiction and jurisdiction of the person.Subject matter jurisdiction refers to the competency of a par-ticular court to determine certain classes of cases. The juris-diction may be limited by the amount in controversy, as inthe cases of district justices. District justices may not hearcivil cases with an amount in controversy greater than $4,000.00.Jurisdiction of the person is usually acquired by proper ser-vice of the court’s process consistent with its authority.

A court’s subject matter jurisdiction is determined by thePennsylvania State Constitution and the PennsylvaniaJudicial Code. The Supreme Court’s jurisdiction is providedby law (Pa. Const. Art. 5 § 2). It has original, but not exclu-sive, jurisdiction of all cases of habeas corpus, mandamus,or prohibition to courts of inferior jurisdiction, and has quo

warranto as to any officer of statewide jurisdiction (42 Pa.C. S. A. § 721). The Supreme Court has exclusive jurisdic-tion of appeals from final orders of the courts of commonpleas in the following cases (42 Pa. C. S. A. § 722):

1. Matters prescribed by general rule;2. The right to public office;3. Matters where the qualifications, tenure, right to serve,

or the manner of service of any member of the judi-ciary is drawn in question;

4. Automatic review of cases where the death sentencehas been given;

5. Supersession of a district attorney by an attorney gen-eral or by a court or where the matter relates to theconvening, supervision, administration, operation or dis-charge of an investigating grand jury or matters other-wise directly effecting such a grand jury or anyinvestigation conducted by it;

6. Matters where the right or power of the Commonwealthof Pennsylvania or any subdivision to create or issueindebtedness is drawn in direct question;

7. Matters where the court of common pleas has held in-valid, as repugnant to the Constitution, treaties or lawsof the United States or to the Pennsylvania Constitu-tion, any treat or law of the United States, or any pro-vision of the Pennsylvania Constitution, or of anyPennsylvania statute, or any provision of any home rulecharter;

8. Matters where the right to practice law is drawn in di-rect question.

The Supreme Court has exclusive jurisdiction of appealsfrom final orders of the commonwealth court entered in anymatter that was originally commenced in the commonwealthcourt that does not constitute an appeal to the commonwealthcourt from another court and appeals of decisions of theBoard of Finance and Revenue (42 Pa. C. S. A. § 723(a)and (b)). Further, the Supreme Court has jurisdiction overappeals of final orders from the Legislative Reapportion-ment Commission, the Judicial Inquiry and Review Board,the agency vested with the power to determine whether thosemembers of the minor judiciary required to do so have com-pleted a course of training and passed examinations prepar-ing them for the duties of their respective offices, the agencyvested with the power to admit or recommend the admis-sion of persons to the bar and the practice of law, and theagency vested with the power to discipline or recommendthe discipline of attorneys at law (42 Pa. C. S. A. § 725).The Supreme Court may review, upon Petition for Allow-ance of Appeal and the consent of two justices of the Su-preme Court, final orders of the superior and commonwealthcourts not otherwise subject to appeal (42 Pa. C. S. A. §724(a)). Finally, the Supreme Court may, on its own motionor upon petition of a party, in any matter pending in anycourt involving an issue of immediate public importance,

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assume plenary jurisdiction of such matter at any stage thereof,and enter a final order, or otherwise cause right and justiceto be done (42 Pa. C. S. A. § 726).

The superior court has no original jurisdiction, except incases of mandamus and prohibition, to courts of inferiorjurisdiction, where such relief is ancillary to matters withinits appellate jurisdiction, except to issue writs of habeas corpus(42 Pa. C. S. A. § 741). The superior court has exclusivejurisdiction of all appeals from final orders of the courts ofcommon pleas, except those appeals within the exclusivejurisdiction of the Supreme Court or the commonwealth court.

The commonwealth court has original jurisdiction of allcivil actions or proceedings against the government of theCommonwealth of Pennsylvania (including any officer thereof,acting in his or her official capacity) except actions or pro-ceedings in the nature of applications for a writ of habeascorpus or postconviction relief not ancillary to proceedingswithin the appellate jurisdiction of the commonwealth court,eminent domain proceedings, and actions on claims in whichimmunity has been waived pursuant to specified statutoryprovisions (42 Pa. C. S. A. § 761(a)(l)); actions by the com-monwealth government, including any officer thereof act-ing in his or her official capacity, except eminent domainproceedings (42 Pa. C. S. A. § 761(a)(2)); actions arisingunder certain provisions of the Insurance Department Act(42 Pa. C. S. A. § 761(a)(3)); or Original jurisdiction ofwhich is vested by subsequent legislation (42 Pa. C. S. A. §761(a)(4)). Additionally, the commonwealth court has ex-clusive original jurisdiction over certain contested nomina-tions and elections and all matters arising in the Office ofthe Secretary of the Commonwealth relating to statewideoffice, except nomination and election contests within thejurisdiction of another tribunal, such as federal elections (42Pa. C. S. A. § 764).

The commonwealth court has exclusive appellate juris-diction over appeals from final orders of the courts of com-mon pleas in the following cases: commonwealth civil cases(42 Pa. C. S. A. § 762(a)(1)); governmental and common-wealth regulatory criminal cases (42 Pa. C. S. A. § 762(a)(2));secondary review of certain appeals from commonwealthagencies (42 Pa. C. S. A. § 762(a)(3)); local governmentcivil and criminal matters (42 Pa. C. S. A. § 762(a)(4)); cer-tain private corporation matters (42 Pa. C. S. A. § 762(a)(5));eminent domain (42 Pa. C. S. A. § 762(a)(6)); or immunitywaiver matters (42 Pa. C. S. A. § 762(a)(7)).

In addition, the commonwealth court has exclusive juris-diction over appeals and final orders from commonwealthagencies, including the Environmental Hearing Board, thePennsylvania Public Utility Commission, the UnemploymentCompensation Board of Review, and other agencies havingstatewide jurisdiction (42 Pa. C. S. A.§ 763(a)).

Except as otherwise provided by law, the courts of com-mon pleas have unlimited original jurisdiction of all cases(Pa. Const. Art. 5 § 5(b); 42 Pa. C. S. A. § 931(b)). The courtsof common pleas also have de nova appellate jurisdiction ofcases initiated before district justices (42 Pa. C. S. A. § 932).

As a general rule, the courts of common pleas have juris-diction of appeals from final orders of government agencies

in the following cases: appeals from determinations of theDepartment of Health in connection with any matters con-cerning birth records; determinations of the Department ofTransportation appealable under specified statutory provi-sions; determinations of the Secretary of the commonwealthappealable under the Pennsylvania Election Code, exceptmatters involving statewide office; determinations of theWorkmen’s Compensation Appeal Board appealable underthe Pennsylvania Occupational Disease Act; determinationsof the Pennsylvania Liquor Control Board appealable underthe Liquor Code; determinations of the Department of Rev-enue in connection with the administration of the estate of adecedent; determinations of the Pennsylvania Labor RelationsBoard under the Public Employee Relations Act, except wherean employee of the commonwealth is involved; determina-tions of an arbitration panel established under the HealthCare Services Malpractice Act; certain appeals from govern-ment agencies other than commonwealth agencies; and ap-peals vested by subsequent legislation (42 Pa. C. S. A. § 933(a)).

District justices have jurisdiction over the following ac-tions: matters that arise under the Landlord and Tenant Actof 1951 within the territorial jurisdiction of the district jus-tice, which are primarily actions to evict tenants from theleased premises (42 Pa. C. S. A. § 1515(a)(2)); civil claimswhere the sum demanded does not exceed $8,000.00, as longas the title to property is not in question: and fines and pen-alties by a government agency (42 Pa. C. S. A. § 1515(a)(3)).

VENUEVenue differs from jurisdiction, in that it refers to which

court the action should be brought, once jurisdiction of thecourt has been established. Most commonly, this would en-tail that the action is brought in the appropriate county courtof common pleas. Venue is governed by Pa. R. Civ. P. 1006.An action against an individual may be brought in a countyin which he or she may be served; in which the cause ofaction arose; where a transaction or occurrence took placeout of which the cause of action arose; or in any other countyauthorized by law (Pa. R. Civ. P. 1006(a)).

An action brought against a political subdivision may bebrought only in the county in which the political subdivi-sion is located (Pa. R. Civ. P. 2103(b)). An action broughtagainst a partnership may be brought in and only in a countywhere the partnership regularly conducts business, in thecounty where the cause of action arose, or in a county wherea transaction or occurrence took place out of which the causeof action arose. This would not apply to attachment, sei-zure, garnishment, sequestration or condemnation of real orpersonal property, or an action for recovery of the posses-sion or determination of the title to real or personal prop-erty (Pa. R. Civ. P. 2130(a) and (c)). An action against aliquidator may be brought in and only in a county wherethe liquidator is liquidating the partnership business or inwhich the partnership last regularly conducted business, inthe county where the cause of action arose, or in a countywhere a transaction or occurrence took place out of whichthe cause of action arose (Pa. R. Civ. P. 2130(b)).

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An action brought against an association may be broughtin and only in a county where the association regularly con-ducts business or any association activity; in the county wherethe cause of action arose; or in a county where a transactionor occurrence took place out of which the cause of actionarose (Pa. R. Civ. P. 2156(a)).

Except in actions involving an insurance policy, or byact of the Pennsylvania Assembly, a personal action againsta corporation or similar entity may be brought in and onlyin the county where its registered office or principal placeof business is located; a county where it regularly conductsbusiness; a county where the cause of action arose; or a countywhere a transaction or occurrence took place out of whichthe cause of action arose (Pa. R. Civ. P. 2179(a)). An actionupon a policy of insurance against an insurance company,association, or exchange, either incorporated or organizedin Pennsylvania or doing business in the commonwealth,may be brought in and only in the county where its regis-tered office or principal place of business is located; a countywere it regularly conducts business; a county where the causeof action arose; a county where a transaction or occurrencetook place out of which the cause of action arose; in thecounty where the insured property is located; or in the countywhere the plaintiff resides, in actions upon policies of life,accident, health, disability, and livestock insurance or fra-ternal benefit certificates (Pa. R. Civ. P. 2179(b)).

An action to enforce a joint or a joint and several liabil-ity against two or more defendants, except actions in which

the commonwealth is a defendant, may be brought againstall defendants in any county where venue is proper againstany of the defendants (Pa. R. Civ. P. 1006(c)). If the plain-tiff states more than one cause of action against the samedefendant, the action may be brought in any county in whichany one of the individual causes of action may have beenbrought (Pa. R. Civ. P. 1006(f)).

Improper venue shall be raised by preliminary objection,and if not raised, the preliminary objection will be waived(Pa. R. Civ. P. 1006(e)). However, even if the preliminaryobjection is sustained the action will not be dismissed. Itwill be transferred to the appropriate court. The costs andfees for the transfer and removal of the record must be paidby the plaintiff (Pa. R. Civ. P. 1006(e)).

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

It is the duty of the prothonotary of the court in whichthe action is pending, to forward to the prothonotary of thecounty to which the action is transferred certified copies ofthe docket entries, process, pleadings, depositions, and otherpapers filed in the action (Pa. R. Civ. P. 1006(d)(3)).

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DETERMINING THE EXISTENCEOF A CAUSE OF ACTION

To determine an existence of a cause of action, it is nec-essary to obtain the facts from the client and use those factsto ascertain whether a statutory or common-law cause ofaction exists. In order to maintain a cause of action, the factsmust fulfill all of the requirements of that cause of action.

TIME LIMITATIONSThe statute of limitations determines the time in which

an action must be initiated. In Pennsylvania, the time limitsare set forth in the Pennsylvania Judicial Code at 42 Pa. C. S. A.§§ 5521–5537. The purpose of the statute of limitations isto ensure that a plaintiff, who has been harmed in some manner,brings that action within a certain time. A plaintiff who doesnot initiate the action within the time allotted will lose theright to bring the action against a defendant. It is extremelyimportant when taking down the information from a client,to confirm the date that the injury or harm occurred or be-came known to the client. This will govern the speed andintensity needed to initiate the action and to prepare for itsfiling, as it is not unusual for a client to come to an attorneyjust before the statute of limitations runs out.

Under the Pennsylvania Judicial Code, the time in whichto bring an action ranges from a minimum of six (6) monthsto no limit. The two most common actions with a statute oflimitations are personal injury and breach of contract, whichhave a time limitation of two (2) years (42 Pa. C. S. A. § 5524)and four (4) years (42 Pa. C. S. A. § 5525), respectively.

Within six (6) months of a cause of action against a gov-ernmental entity or officer, a notice to the same, of possiblelegal action against the entity or officer, must be sent to theofficer or entity (42 Pa. C. S. A. § 5222(a)(1)). An actionagainst a governmental officer must be initiated within six(6) months unless the cause of action is subject to anotherlimitation (42 Pa. C. S. A. § 5222(b)(1)). There is a one-year statute of limitations for actions of libel, slander, inva-sions of privacy and an action on a bond (42 Pa. C. S. A. §5223). A five-year limit applies to the revival of judgmentlien or for specific performance of the sale of real property(42 Pa. C. S. A. § 5226). A six-year limitation exists foractions not otherwise mentioned (42 Pa. C. S. A. § 5227)and twenty-one (21) years for the possession of real prop-erty (42 Pa. C. S. A. § 5230).

Unless tolled, the statute of limitations begins to run fromthe date when the cause of action arises (Pennsylvania TurnpikeCom. v. Atlantic Richfield Co., 31 Cmwlth Ct. 212, 375 A.2d890 (1977)). The statute of limitations is not stayed, as arule, simply because the plaintiff does not know of the cause

PART II INITIATING LITIGATION

CHAPTER 3 PRELIMINARY CONSIDERATIONS

of action. However, under the discovery rule exception, thestatute of limitations is tolled where the injured party is unable,despite the exercise of diligence, to determine the injury orits cause (Pocono International Raceway. Inc. v. PoconoProduce, Inc., 503 (Pa. 80, 468 A.2d 468 (1983)).

The statute of limitations for a breach of contract beginsto run at the time of the breach (Tenny v. Dauphin DepositBank & Trust Co., 32 Cumberland L. J. 239 (1981)). Wherea party has acknowledged an indebtedness for which a promiseto pay was made or can be implied, the statute of limita-tions may begin to run from that time, and not when theparty failed to make payment on the debt. The acknowledg-ment of the debt as an existing obligation must be clear,distinct, and unequivocal (Goodis v. Meneses, 33 D. & C.2d 671 (1964)). The four-year statute of limitations may betolled by the debtors’ partial payment of a prior debt (Natu-ral Resources Lease Acquisition Program v. Tisi, 21 CrawfordCo. Leg. J, 261 (1990)).

In personal injury actions, the statute of limitations runsfrom the date of the injury (Salvador v. Atlantic Steel BoilerCo., 256 Super. Ct. 330, 389 A.2d 1148 (1978)). An actionfor injuries arising out of an automobile accident, probablythe most common personal injury action, commences uponthe date of the accident (Donnelly v. DeBourke, 280 (Pa.Super. 486, 421 A.2d 826 (1980)). However, when, with theexercise of due diligence, the plaintiff could not have ascer-tained the defendant’s liability, the statute of limitations doesnot begin to run until the date that the ascertainment of theliability should have been discovered (Cathcart v. KeeneIndustrial Insulation, 324 (Pa. Super. 123, 471 A.2d 493(1984)). Thus, where knowledge is impossible because ofthe laws of nature, actual fraud, or concealment of the wrong-doer, where it is impractical to impose on one who has beenwronged the duty to export, and discover the undetectableact of the wrongdoer, the statute should begin to run fromthe time discovery of the injury is made (Med-Mar, Inc. v.Dilworth. 214 (Pa. Super. 402, 257 A.2d 910 (1969)).

Once the appropriate time limitation has been ascertainedin the client interview, one must be sure to commence theaction within the time allowed. The Pennsylvania Rules ofCivil Procedure state that an action may be commenced byfiling with the prothonotary a praecipe for a writ of sum-mons, a complaint, or an agreement for an amicable action(Pa. R. Civ. P. 1007).

ETHICAL CONSIDERATIONS IN ACCEPTINGA CASE

The Rules of Professional Conduct (Pa. R. P. C.) as pro-mulgated by the Supreme Court of Pennsylvania govern an

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attorney’s conduct in a case. A lawyer should only accept acase in which he or she can provide competent representa-tion. Competent representation requires the legal knowledge,skill, thoroughness, and preparation necessary for the rep-resentation (Pa. R. P. C. 1.1).

A lawyer shall not bring or defend a proceeding, or as-sert or controvert an issue therein, unless there is a basis fordoing so that is not frivolous; however, an attorney may advancea good faith argument for an extension, modification, or reversalof existing law (Pa. R. P. C. 3.1).

A lawyer shall not enter into an agreement for, charge,or collect an illegal or clearly excessive fee. The factors tobe considered in determining the propriety of a fee includethe following (Pa. R. P. C. 1.5(a)):

1. Whether the fee is fixed or contingent;2. The time and labor required, the novelty and difficulty

of the questions involved, and the skill required to per-form the legal service properly;

3. The likelihood, if apparent to the client, that the ac-ceptance of the particular employment will precludeother employment by the lawyer;

4. The fee customarily charged in the locality for similarlegal services;

5. The amount involved and the results obtained;6. The time limitations imposed by the client or by the

circumstances;7. The nature and length of the professional relationship

with the client; and8. The experience, reputation, and ability of the lawyer

or lawyers performing the services.

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

A fee may be contingent on the outcome of the matterfor which the service is rendered, except where prohibitedby the Rules of Professional Conduct or by law. A contin-gent fee agreement shall be in writing and shall state themethod by which the fee is to be determined, including thepercentage or percentages that accrue to the lawyer in theevent of settlement, trial, appeal, litigation, and other ex-penses to be deducted from the recovery. Whether such ex-penses are to be deducted before or after the contingent feematter, the lawyer shall provide the client with a writtenstatement stating the outcome of the matter, and, if therewas a recovery, showing the remittance to the client and themethod of its determination (Pa. R. P. C. 1.5(c)).

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

A lawyer shall not represent a client if the representationof that client will be directly adverse to another client, un-less the lawyer reasonably believes the representation willnot adversely affect the relationship with the other clientand each client consents after consultation (Pa. R. P. C. 1.7(a)).

A lawyer shall not represent a client if the representation ofthat client may be materially limited by the lawyer’s respon-sibilities to another client or to a third person, or by thelawyer’s own interests, unless the lawyer reasonably believesthat the representation will not be adversely affected andthe client consents after full disclosure and consultation (Pa.R. P. C. 1.7(b)).

A lawyer who has formerly represented a client in a mat-ter shall not thereafter represent another person in the sameor a substantially related matter in which that person’s in-terests are materially adverse to the interests of the formerclient, unless the former client consents after a full disclo-sure of the circumstances and consultation. Further, said attorneyshall not use information relating to the representation tothe disadvantage of the former, except as the Rules of Pro-fessional Conduct relating to confidentiality would permitwith respect to a client or when the information has becomegenerally known (Pa. R. P. C. 1.9).

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

A lawyer related to another lawyer as parent, child, sib-ling, or spouse shall not represent a client in representationdirectly adverse to a person who the lawyer knows is repre-sented by the other lawyer, except upon consent by the clientafter consultation regarding the relationship (Pa. R. P. C. 1.8(i)).

ETHICAL CONSIDERATIONS AFTERACCEPTING A CASE

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

The lawyer shall act with reasonable diligence and prompt-ness in representing the client (Pa. R. P. C. 1.3) and makereasonable efforts to expedite litigation consistent with theinterest of the client (Pa. R. P. C. 3.2). The lawyer shouldexercise independent professional judgment and render candidadvice, and in rendering such advice, may refer, not only tothe law, but to other considerations, such as moral, economic,social, and political factors that may be relevant to the client’ssituation (Pa. R. P. C. 2.1).

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A lawyer shall keep a client informed about the status ofa matter, promptly comply with reasonable requests for in-formation, and explain a matter to the extent necessary topermit the client to make informed decisions regarding therepresentation (Pa. R. P. C. 1.4). Outside of fees, one of themost common causes of friction between an attorney and aclient is the lack of communication with the client. It isimportant for the attorney to send copies of all correspon-dence and pleadings to the client to keep him up to date andto help keep friction to a minimum.

As a rule, a lawyer shall not reveal information relatingto representation of a client, unless the client consents afterconsultation, except where disclosures are implicitly autho-rized to carry out the representation; to act candidly towardthe court pursuant to Pa. Disciplinary Rule 3.3; to preventthe client from committing a criminal act likely to result indeath or substantial bodily harm or injury to financial inter-ests or property of another; to prevent or rectify the conse-quences of a client’s criminal or fraudulent act in the commissionof which the lawyer’s services are being or had been used;and in controversies between the lawyer and client (Pa. R.P. C. 1.6).

A lawyer shall not enter into a business transaction witha client or knowingly acquire an ownership, possessory, se-curity, or other pecuniary interest adverse to a client unlessthe transactions and terms on which the lawyer acquires theinterest are fully disclosed and transmitted in writing to theclient in a manner which can be reasonably understood bythe client; the client is advised and is given a reasonableopportunity to seek the advice of independent counsel inthe transaction and the client consents in writing thereto (Pa.R. P. C. 1.8(a)). A lawyer shall not use information relatingto representation of a client to the disadvantage of the clientunless the client consents after consultation (Pa. R. P. C. 1.8(b)).

Prior to the conclusion of representation of a client, alawyer shall not make or negotiate an agreement giving thelawyer literary or media rights to a portrayal or account basedin substantial part on information relating to the representa-tion (Pa. R. P. C. 1.8(d)). A lawyer shall not provide financialassistance to a client in connection with pending or con-templated litigation, except that a lawyer may advance courtcosts and expenses of litigation, the repayment of which maybe contingent on the outcome of the matter; and a lawyerrepresenting an indigent client may pay court costs and ex-penses of litigation on behalf of the client (Pa. R. P. C. 1.8(e)).

A lawyer shall not accept compensation for representinga client from a person other than the client, unless: the cli-ent consents after full disclosure of the circumstances andconsultation; there is no interference with the lawyer’s in-dependent professional judgment, or with the client-lawyerrelationship; and information relating to representation ofthe client is protected (Pa. R. P. C. 1.8(f)).

A lawyer who represents two or more clients shall notparticipate in making an aggregate settlement of the claimsof or against the clients, or in a criminal case an aggregatedagreement as to guilty or nolo contendre pleas, unless eachclient consents after consultation, including disclosure ofthe existence and nature of all the claims or pleas involved,

and of the participation of each person in the settlement (Pa.R. P. C. 1.8(g)). A lawyer shall not make an agreement pro-spectively limiting the lawyer’s ability to a client for mal-practice, unless permitted by law and the client is independentlyrepresented in making the agreement. Nor shall a lawyersettle a claim for such liability with an unrepresented clientor former client, without first advising that person in writ-ing that independent representation is appropriate in con-nection therewith (Pa. R. P. C. 1.8(h)).

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

When a client’s ability to make adequately considereddecisions in connection with the representation is impaired,whether because of minority, mental disability, or for someother reason, the lawyer should, as far as reasonably pos-sible, maintain a normal client-lawyer relationship with theclient (Pa. R. P. C. 1.14(a)). A lawyer may seek the appoint-ment of a guardian or take other protective action with re-spect to a client, only when the lawyer reasonably believesthat the client cannot adequately act in the client’s own in-terest (Pa. R. P. C. 1.14(b)).

A lawyer shall hold the property of clients or third per-sons that is in a lawyer’s possession in connection with arepresentation separate from the lawyer’s own property. Fundsshall be kept in a separate account maintained in the statewhere the lawyer’s office is situated, or elsewhere with theconsent of the client or third person. Other property shall beidentified as such and appropriately safeguarded. Completerecords of such account funds and other property shall bepreserved for five (5) years after termination of the repre-sentation. Upon receiving funds of other property in whicha client or third person has an interest, a lawyer shall promptlynotify the client or third person. Except as stated in thisrule, or otherwise permitted by law or by agreement withthe client, a lawyer shall promptly deliver to the client orthird person any funds or other property that the client orthird person is entitled to receive and, upon request by theclient or third person, shall promptly render a full account-ing regarding such property. When a lawyer has possessionof property in which both the lawyer and another personclaim interest, the property shall be kept separate by thelawyer, until there is an accounting and severance of theirinterests. If a dispute arises concerning their respective in-terests, the portion in dispute shall be kept separate by thelawyer until the dispute is resolved (Pa. R. P. C. 3.7(a)).

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

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Except in cases where a tribunal orders a lawyer to con-tinue representation despite good cause to terminate repre-sentation, a lawyer shall not represent a client, or whererepresentation has commenced, shall withdraw from the rep-resentation of a client if the’ representation will result inviolation of the Rules of Professional Conduct or other law;the lawyer’s physical or mental condition materially impairsthe lawyer’s ability to represent the client; or the lawyer isdischarged. Except in cases where a tribunal orders a law-yer to continue representation despite good cause to termi-nate representation, a lawyer may withdraw from representinga client if: withdrawal can be accomplished without a mate-rially adverse effect on the interests of the client, or if theclient persists in a course of action involving the lawyer’sservices that the lawyer reasonably believes is criminal orfraudulent; the client has used the lawyer’s services to per-petrate a crime of fraud; the client insists upon pursuing an

objective that the lawyer considers repugnant or imprudent;the client fails substantially to fulfill an obligation to thelawyer regarding the lawyer’s services and has been givenreasonable warning that the lawyer will withdraw unless theobligation is fulfilled; the representation will result in anunreasonable financial burden on the lawyer, or has beenrendered unreasonably difficult by the client; or other goodcause for terminating the representation (Pa. R. P. C. 1.16(a)–(c)).

Upon termination of representation, a lawyer shall takesteps to the extent reasonably practicable to protect a client’sinterests, such as giving reasonable notice to the client, al-lowing time for employment of other counsel, surrenderingpapers and property to which the client is entitled, and re-funding any advance payment of fee that has not been earned,The lawyer may retain papers relating to the client to theextent permitted by law (Pa. R. P. C. 1.16(d)).

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LOCATING FACT WITNESSES OR ELUSIVEDEFENDANTS

Corporations are required to list their registered office intheir articles of incorporation (15 Pa. C. S. A. § 1306(a)(2))which must be filed with the Pennsylvania Department ofState (15 Pa. C. S. A. § 1308(a)). The corporation must maintainthe registered office (15 Pa. C. S. A. § 1507(a)) and notifythe department of state of any changes in that office (15 Pa.C. S. A. § 1507(b)). A corporation can use an agent (15 Pa.C. S. A. § 108(a)) or a commercial registered office (15 Pa.C. S. A. § 109(a)).

As a general rule, any individual, corporation, associa-tion, partnership, joint-stock company, business trust, syn-dicate, joint adventureship, or other combination of groupsof persons conducting any business in the commonwealthunder or through any assumed or fictitious name, style, ordesignation other than the proper name of the entity usingsuch name, shall register its fictitious name with the depart-ment of state and shall amend the registration when neces-sary (54 Pa. C. S. A. § 303). As part of the registration, it isrequired to provide the address of the entity and the namesand addresses of those “persons” comprising the entity (54Pa. C. S. A. § 311).

CHAPTER 4 INTERVIEW AND INVESTIGATION PRIOR TO LITIGATION

TECHNIQUES FOR INTERVIEWING FACTWITNESSES

Prior to tape recording, the interviewer should obtain writtenpermission of the person being interviewed. The interviewershould also state on the tape, prior to beginning, the dateand time of the interview, along with the name of the per-son being interviewed. His or her permission should also benoted on the tape. If it is necessary to have a second tape,the same procedure should be used. At the conclusion ofthe interview, it should be clearly stated that the interviewis over. In Pennsylvania, it is unlawful to record a conversa-tion with another person for the purpose of selling the re-cording or using it for profit without that person’s consent(18 Pa. C. S. A. § 4116).

EXPERT WITNESSESThe Pennsylvania Rules of Civil Procedure do not define

the term expert witness, although the rules do have specialprovisions regarding the depositions, discovery, and use ofexpert witnesses, which will be developed in subsequentchapters. In general, an expert witness is one who, becauseof the possession of knowledge not within ordinary reach,is specially qualified to testify on the subject of his or herexpertise (Steele v. Shepperd, 411 Pa. 481, 192 A.2d 397(1963). Expert testimony can be in any area of fact, includ-ing medical opinions, real estate, handwriting, accident re-construction, etc.

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INITIAL PLEADINGSUnder the Pennsylvania Rules of Civil Procedure an ac-

tion is commenced by filing with the prothonotary a praecipefor a writ of summons or a complaint (Pa. R. Civ. P. 1007).The rules recognize a number of pleadings that may be filedduring and in response to an action. These pleadings includea complaint, an answer thereto, a reply if the answer con-tains new matter or a counterclaim, a counter-reply if thereply to a counterclaim contains new matter, a preliminaryobjection, and an answer thereto (Pa. R. Civ. P. 1017(a)).

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

Every pleading shall be divided into paragraphs numberedconsecutively and each paragraph shall contain, as far aspractical, only one material allegation (Pa. R. Civ. P. 1022).Every pleading of party represented by an attorney shall besigned by at least one attorney of record in his or her indi-vidual name and, if not represented, the pleading shall besigned by the party (Pa. R. Civ. P. 1023(a)). A pleading thatcontains averments of facts not appearing of record in theaction or containing a denial of fact shall state that the aver-ment or denial is true upon the signer’s personal knowledgeor information and belief (Pa. R. Civ. P. 1024(a)). In addi-tion, every pleading shall be endorsed with the name of theattorney, or if a party is not represented, it shall be endorsedwith the name of the party and an address within the com-monwealth (Pa. R. Civ. P. 1025).

Pennsylvania Rule of Civil Procedure 1019 states the re-quired contents of pleadings:

a. The material facts on which a cause of action or de-fense is based shall be stated in a concise and sum-mary form.

b. Averments of fraud or mistake shall be averred withparticularity. Malice, intent, knowledge, and other con-ditions of mind may be averred generally.

c. In pleading the performance or occurrence of condi-tions precedent, it is sufficient to aver generally thatall conditions precedent have been performed or haveoccurred. A denial of such performance or occurrenceshall be made specifically and with particularity.

d. In pleading an official document or official act, it issufficient to identify it by reference and aver that thedocument was issued or the act done in compliancewith law.

e. In pleading a judgment, order, or decision of a domes-tic or foreign court, judicial or administrative tribunal,or board, commission or officer, it is sufficient to averthe judgment, order, or decision without setting forthmatter showing jurisdiction to render it.

f. Averments of time, place, and items of special damageshall be specifically stated.

CHAPTER 5 RESPONDING TO THE INITIAL PLEADINGS

g. Any part of a pleading may be incorporated by refer-ence in another part of the same pleading or in anotherpleading in the same action. A party may incorporateby reference any matter of record in any state or fed-eral court of record whose records are within the courtin which the action is pending, or any matter that isrecorded or transcribed verbatim in the office of theprothonotary, clerk of any court of record, recorder ofdeeds, or register of wills of such county.

h. A pleading shall state specifically whether any claimor defense set forth therein is based upon a writing. Ifso, the pleader shall attach a copy of the writing, orthe material part thereof, but if the writing or copy isnot accessible to him, it is sufficient so to State, to-gether with the reason, and to set forth the substanceof the writing.

As a general rule, every pleading subsequent to the com-plaint shall be filed within twenty (20) days after service ofthe preceding pleading, but no pleading need be filed un-less the preceding pleading contained a notice to defend oris endorsed with a notice to plead (Pa. R. Civ. P. 1026(a)).

PARTIES TO THE LAWSUITThe Pennsylvania Judicial Code defines a “party” as a

person who commences an action to obtain relief or againstwhom such a claim for relief is made (42 Pa. C. S. A. § 102).While the Pennsylvania Judicial Code defines “party,” it isthe Rules of Civil Procedure that govern the manner in whichparties are to be included in a cause of action. PennsylvaniaRule of Civil Procedure 1018 requires that every pleadinginclude the names of the parties and, in the case of a com-plaint, must include every name. Although it is possible toamend the parties, it is important, when filing the initialpleading, to make sure the caption contains the proper des-ignation for each party. Otherwise, the case may fail for reasonof the action being brought against the wrong party.

As a rule, all actions shall be prosecuted by and in thename of the real party in interest, without distinction betweencontracts under seal and parol contracts. A plaintiff may suein his or her own name without joining as plaintiff or use-plaintiff any person beneficially interested when such plaintiffis acting in a fiduciary or representative capacity, which isdisclosed in the caption and in the plaintiffs initial plead-ing; or is a person with whom or in whose name a contracthas been made for the benefit of another (Pa R. Civ. P. 2002).

When a minor is a party to an action, he or she shall berepresented by a guardian who shall supervise and controlthe conduct of the action on behalf of the minor (Pa. R. Civ.P. 2027). The initial pleading filed on behalf of a minor plaintiffshall state the name and address of his or her guardian andhis or her relationship, if any, to the subject matter of thecause of action or to any of the parties thereto (Pa. R. Civ.P. 2028(b)). An action in which a minor is the defendant

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shall be commenced against the minor by name in the man-ner in which a like action is commenced against an adult (Pa.R. Civ. P. 2028(c)).

A minor plaintiff may select his or her guardian, but suchselection shall not bar the court from removing the guard-ian for cause (Pa. R. Civ. P. 2031(a)). If a minor party to anaction is not represented, the court shall appoint a guardianfor him either upon its own motion or upon the petition of(1) the minor party, (2) a guardian of the minor appointedby any court of competent jurisdiction, or by a duly pro-bated will, (3) any relative of the minor or any other partyto the action (Pa. R. Civ. P. 2031(b)).

When an incompetent is a plaintiff, he or she shall berepresented by a guardian or by a guardian ad litem whoshall supervise and control the conduct of the action in hisor her behalf (Pa. R. Civ. P. 2053(a)). When an incompetentis a defendant he or she shall be represented by a guardian.If there is no guardian, or if the guardian has not servedwith process in this commonwealth and does not voluntar-ily appear in the action, the incompetent party shall be rep-resented by guardian ad litem. The guardian or guardian adlitem shall supervise and control the conduct of the actionin his or her behalf (Pa. R. Civ. P. 2053(b)). The initial pleadingfiled in behalf of an incompetent plaintiff shall state the nameand address of his or her guardian, if any, the nature of hisor her guardianship, and a reference to the record of his orher appointment (Pa. R. Civ. P. 2054(b)). If the court finds aplaintiff to be incapacitated at some time during the pro-ceedings, a guardian, or guardian ad litem will be appointed(Pa. R. Civ. P. 2056).

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

A partnership having a right of action shall prosecute suchright in the names of the then-partners trading in the firmname (Pa. R. Civ. P. 2127(a)). An action prosecuted by theliquidator of a dissolved partnership shall be prosecuted inthe name of the liquidator (Pa. R. Civ. P. 2127(b)). An actionagainst a partnership may be prosecuted against one or morepartners as individuals trading as the partnership (Pa. R. Civ.P. 2128(a)).

An action prosecuted by an association shall be prosecutedin the name of a member or members thereof or trustees adlitem for such association (Pa. R. Civ. P. 2152). In an actionprosecuted against an association, it shall be sufficient toname as defendant either the association by its name, whetherthe name is registered, filed, or not, or any officer of the as-sociation as trustee ad litem for such association (Pa. R. Civ.P. 2153(a)).

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

An action for wrongful death shall be brought only by thepersonal representative of the decedent for the benefit of thosepersons entitled by law to recover damages for such wrong-ful death; except if no action for wrongful death has beenbrought within six (6) months after the death of the dece-dent, the action may be brought by the personal represen-tative or by any person entitled by law to recover damages

in such action as trustee ad litem on behalf of all personsentitled to share in the damages (Pa. R. Civ. P. 2202(a)and (b)).

Besides the parties named in the initial complaint in acivil action, there are a number of means under the Rules ofCivil Procedure to add parties to the action. The first is ajoinder of additional parties, which fall into two categories:compulsory and permissive.

Persons having only a joint interest in the subject matterof an action must be joined on the same side as plaintiff ordefendant (Pa. R. Civ. P. 2227(a)). If a person who must bejoined as a plaintiff refuses to join, he or she shall, in a propercase, be made a defendant or an involuntary plaintiff whenthe substantive law permits such involuntary joinder (Pa. R.Civ. P. 2227(b)). If an injury, not resulting in death, is in-flicted upon the party of a husband or a wife, and causes ofaction therefor accrue to both, they shall be enforced in oneaction brought by the husband and wife (Pa. R. Civ. P. 2228(a)).

If an injury, not resulting in death, is inflicted upon theperson of a minor, and causes of action therefore accrue tothe minor and to the parent or parents of the minor, theyshall be enforced in one action brought by the parent or parentsand the child. Either parent may sue therefor in the name ofboth, but if the parents live apart, the action shall be broughtby the parent having custody of the child and control of itsservices (Pa. R. Civ. P. 2228(b)).

In the case of a permissive joinder, persons may join asplaintiffs who assert any right to relief jointly, severally,separately, or in the alternative, in respect of or arising outof the same transaction, occurrence, or series of transac-tions or occurrences if any common question of law or factaffecting the rights to relief of all such persons will arise inthe action (Pa. R. Civ. P. 2229(a)). A plaintiff may join asdefendants persons against whom he or she asserts any rightto relief jointly, severally, separately, or in the alternative,in respect of or arising out of the same transaction, occur-rence, or series of transactions or occurrences if any com-mon question of law or fact affecting the rights to relief of allsuch persons will arise in the action (Pa. R. Civ. P. 2229(b)).Parties may join or be joined in the alternative, althoughthe cause of action asserted by or against any one or moreof them is inconsistent with the cause of action asserted byor against any of the others so joined (Pa. R. Civ. P. 2229(c)).A person who asserts a cause of action ex contracu may joinas defendants all or any one or more persons alleged to beliable to him on or by reason of the breach of the contrac-tual obligation sued upon, regardless of the capacities inwhich such persons are respectively liable, or whether theyare primarily or secondarily liable, or whether their liabili-ties arise from the same or separate acts or undertakings;but where the liability of any defendant is solely joint. theplaintiff shall join all other persons jointly liable with suchdefendant (Pa. R. Civ. P. 2229(d)).

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

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Except in cases pertaining to class actions, a defendantor additional defendant may join as an additional defendantany person, whether or not a party to the action, who maybe solely liable to the plaintiffs cause of action or liableover to the joining party on the plaintiffs cause of action orjointly or severally liable with the joining party on the plaintiffscause of action or liable to the joining party on any cause ofaction arising out of the transaction or occurrence or seriesof transactions or occurrences upon which the plaintiff’s causeof action is based (Pa. R. Civ. P. 2252(a)).

If the person sought to be joined is not a party to theaction, the joining party may, as a matter of course, file anew action by filing a praecipe for a writ of summons orcomplaint (Pa. R. Civ. P. 2252(b)). lf the joinder is by writof summons, the joining party shall file his or her complaintwithin twenty (20) days from the filing of the praecipe forthe writ. If the joining party fails to file his or her com-plaint within the required time, the plaintiff or additionaldefendant joined may seek a rule to file the complaint andan eventual judgment of non pros pursuant to Pa. R. Civ. P.1037(a) if the complaint is not filed within twenty (20) daysof the rule (Pa. R. Civ. P. 2252(b)(1)). If the person soughtto be joined is a party, the joining party shall, without mov-ing for severance or the filing of a praecipe for a writ ofsummons or a complaint, assert in his or her answer as newmatter that such party alone is liable to the plaintiff, liableover to the joining party, jointly or severally liable to theplaintiff, or liable to the joining party directly setting forththe ground therefor (Pa. R. Civ. P. 2252(d)).

Except in cases involving asbestos litigation, neither thepraecipe for a writ to join an additional defendant nor a com-plaint if the joinder is commenced by a complaint, shall befiled by the original defendant or an additional defendantlater than sixty (60) days after the service upon the originaldefendant of the initial pleading of the plaintiff or any amend-ment thereof, unless such filing is allowed by the court uponcause shown (Pa. R. Civ. P. 2253).

The procedure, including pleadings, between the partyjoining an additional defendant and the additional defen-dant shall be the same as though the party joining the addi-tional defendant were a plaintiff and the additional defendantwere a defendant (Pa. R. Civ. P. 2255(a)). No pleadings shallbe filed between the additional defendant and any party otherthan the one joining him, except that the additional defen-dant may file a counterclaim against the plaintiff (Pa. R.Civ. P. 2255(b)). No judgment on the pleadings may be en-tered in favor of any party against an additional defendantfor failure to answer the complaint of the party joining him,but all allegations of fact in such complaint to which ananswer is required and which are not sufficiently answeredshall be conclusive upon the additional defendant (Pa. R. Civ.P. 2255(c)). The plaintiff shall recover from an additionaldefendant found liable to him alone or jointly with the de-fendant, as though such additional defendant had been joinedas a defendant and duly served and the initial pleading ofthe plaintiff had averred such liability (Pa. R. Civ. P. 2255(d)).

The court, at any time during the pendency of an action,on its own motion or upon petition of a defendant, may in-

terplead the plaintiff and one or more claimants who arenot parties of record (Pa. R. Civ. P. 2302). Pa. R. Civ. P.2303 sets forth the contents of the petition for interpleaderwhich shall allege:

1. That a claimant not a party of record has made or isexpected to make a demand upon the defendant as aresult of which the defendant is or may be exposed todouble or multiple liability to the plaintiff and to suchclaimant as to all or any party of the claim asserted bythe plaintiff;

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

3. The interest, if any, that the defendant claims in themoney or property in controversy, and whether he orshe is able to pay or deliver that part of the money orproperty as to which he or she claims no interest intocourt or to such person as the court may direct; and

4. Whether he or she has admitted the claim of, or sub-jected himself to independent liability to, the plaintiffor any claimant in respect to the subject matter of theaction.

The petition shall be subscribed and verified. A copy ofthe petition shall be served upon the plaintiff or his or herattorney and the plaintiff’s answer, if any, shall be filed withintwenty (20) days of such service (Pa. R. Civ. P. 2305). Pendingdisposition, all proceedings are stayed (Pa. R. Civ. P. 2303(c)).

The court shall direct an interpleader if the allegations areestablished by either proof or by failure of the plaintiff to filea sufficient answer; however, the court may deny the peti-tion if the defendant has unreasonably delayed in filing thepetition or has admitted the claim of, or subjected himselfto independent liability to the plaintiff or any claimant, withknowledge that an inconsistent claim would be later assertedagainst him by any known or unknown person (Pa. R. Civ.P. 2306)(a). If the defendant petitions to interplead claim-ants who in good faith and without collusion have startedindependent actions against the defendant in the same ordifferent courts, the court in which the petition for inter-pleader is filed shall grant the petition where otherwise properunder these rules if the petition is filed in the first action com-menced against the defendant; or may refuse the petitionalthough it would be proper to grant it under these rules if itis filed in any action other than the first action, and the grantingof the interpleader would unduly prejudice any party to anyof the actions commenced against the defendant (Pa. R. Civ.P. 2306(b)).

The court shall not deny the petition for interpleader merelybecause: (1) the defendant has an interest in the action orasserts that he or she is not liable in whole or in part to anyor all of the claimants and the plaintiff; (2) there is no priv-ity between any of the parties of record or the claimants ortheir claims do not have a common origin; (3) the plaintiffand the claimants do not assert the identical right or de-mand the identical relief of the defendant; or (4) the courtbelieves that the claim of the plaintiff or any claimant iswithout merit in law or fact (Pa. R. Civ. P. 2306(c)).

Upon granting a petition for interpleader, the court shall

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make such order as may be deemed just under the circum-stances relating to the payment or delivery into court, or tosuch person as the court shall direct, of any money or prop-erty in controversy disclaimed by the defendant. When thedefendant has complied with such order, the court shall en-ter an order discharging him of all liability to the plaintiffand to any interpleaded claimant who has been served inrespect to the money or property so paid or delivered. If thedefendant has disclaimed all interest in the action, the courtshall also discharge him from all liability for any costs ac-cruing after the entry of the order and shall allow him thecosts incurred by him in the action, to be paid from suchmoney or property in the first instance and taxed as costs inthe action (Pa. R. Civ. P. 2307).

Unless extended by the court within twenty (20) days ofthe order directing interpleader, each interpleaded claimantshall be served in the same manner as provided for serviceof original process with a copy of the petition and order ofthe court and a copy of all pleadings theretofore filed in theaction. A copy of the order shall be served upon the plain-tiff or his or her attorney (Pa. R. Civ. P. 2308).

Within the time required, each claimant interpleaded shallfile a statement of his or her claim against the defendantand any money or property paid or delivered by said defen-dant pursuant to the court order. The form and verificationof the statement shall be the same as a complaint. A copy ofthe statement shall be served upon the plaintiff and any otherinterpleaded claimants, and upon the defendant, if he or shehas not disclaimed all interest in the action (Pa. R. Civ. P.2309). The defendant may, if he or she has not disclaimedall interest in the action, file an answer to claimant’s state-ment within twenty (20) days. If the claimant has included“Additional Matter” in his or her statement, the plaintiff orany other interpleading party shall within twenty (20) afterservice of the statement file an answer to such “AdditionalMatter” (Pa. R. Civ. P. 2310). All allegations of fact in aclaimant’s statement that are not answered or sufficientlyanswered, shall be conclusive between the parties concerned(Pa. R. Civ. P. 2311).

At any time during the pendency of an action, a personnot a party thereto shall be permitted to intervene therein ifthe entry of a judgment in such action or the satisfaction ofsuch judgment will impose any liability upon such personto indemnify in whole or in part the party against whomjudgment may be entered or such person is so situated as tobe adversely affected by a distribution of property in thecustody of the court or of an officer thereof; or such personcould have been joined therein, or the determination of suchaction may affect any legally enforceable interest of suchperson whether or not he or she may be bound by a judg-ment in the action (Pa. R. Civ. P. 2327).

An application for leave to intervene shall be made by apetition in the form of and verified in the manner of theplaintiffs initial pleading in a civil action, setting forth theground on which intervention is sought and statement ofrelief or the defense that the petitioner desires to demand orassert. The petitioner shall attach to the petition a copy ofany pleading that he or she will file in the action if permit-

ted to intervene or shall state in the petition that he or sheadopts by reference in whole or in part certain named pleadingsor parts of pleadings already filed in the action (Pa. R. Civ.P. 2328(a)). A copy of the petition shall be served upon eachparty to the action (Pa. R. Civ. P. 2328(b)).

Upon the filing of the petition and after hearing, of whichdue notice shall be given to all parties, the court, if the alle-gations of the petition have been established and are foundto be sufficient, shall enter an order allowing intervention;but an application for intervention may be refused if theclaim or defense of the petitioner is not in subordination toand in recognition of the propriety of the action; or the in-terest of the petitioner is already adequately represented; orthe petitioner has unduly delayed in making application forintervention or the intervention will unduly delay, embar-rass, or prejudice the trial or the adjudication of the rightsof the parties (Pa. R. Civ. P. 2329).

A class action is an action brought by or against partiesor representatives of a class until the court refuses to certifyit as such or revokes a prior certification under these rules(Pa. R. Civ. P. 1701(a)). Unless otherwise pmvided in theclass action rules, the procedure shall be in accordance withthe rules governing the form of action in which relief is sought(Pa. R. Civ. P. 1701(b)). One or more members of a classmay sue or be sued as a representative party on behalf of allmembers in a class only if (Pa. R. Civ. P. 1702):

1. The class is so numerous that joinder of all membersis impracticable;

2. there are questions of law or fact common to the class;3. The claims or defenses of the representative parties are

typical of the claims or defenses of the class;4. The representative parties will fairly and adequately

assert and protect the interests of the class; and5. A class action provides a fair and efficient method for

adjudication of the controversy.

This is somewhat different from Federal Rule of CivilProcedure 23 regarding class actions, which requires thatthe class action be superior to other available means. Underthe Pennsylvania Rules of Civil Procedure, it must only bea fair and efficient method of adjudication. The rule alsovaries from the federal rule, in that the standard applies toall class actions, while the federal rule applies the superior-ity method only to actions based on common questions oflaw and fact.

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

(a) Where monetary recovery alone is sought, the courtshall consider (1) whether common questions of lawor fact predominate over any question affecting onlyindividual members; (2) the size of the class and the

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difficulties likely to be encountered in the managementof the action as a class action; (3) whether the pros-ecution of separate action as by or against individualmembers of the class would create a risk of (i) incon-sistent or varying adjudications with respect to indi-vidual members of the class that would confront theparty opposing the class with incompatible standardsof conduct; or (ii) adjudications with respect to indi-vidual members of the class that would as a practicalmatter be dispositive of the interests of other membersnot parties to the adjudications or substantially impairor impede their ability to protect their interests; (4) theextent and nature of any litigation already commencedby or against members of the class involving any ofthe same issues; (5) whether the particular forum isappropriate for the litigation of the claims of the entireclass; (6) whether in view of the complexities of theissues or the expenses of litigation the separate claimsof individual class members are insufficient in amountto support separate actions; (7) whether it is likely thatthe amount that may be recovered by individual classmembers will be so small in relation to the expenseand effort of administering the action as not to justifya class action.

(b) Where equitable or declaratory relief alone is soughtthe court shall consider (1) the criteria set forth in sub-sections (1) through (5) of the above and (2) whetherthe party opposing the class has acted or refused to acton grounds generally applicable to the class, therebymaking final equitable or declaratory relief appropri-ate with respect to the class.

(c) Where both monetary and other relief is sought the courtshall consider all the criteria set forth above.

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

The criteria for determination of fair and adequate repre-sentation are given in Pa. R. Civ. P. 1709, and the court shallconsider:

1. whether the attorney for the representative parties willadequately represent the interests of the class,

2. whether the representative parties have a conflict ofinterest in the maintenance of the class action, and

3. whether the representative parties have or can acquirefinancial resources to assure that the interests of theclass wiil not be harmed.

This is different from the federal rule as those rules con-tain no specific criteria for determining the adequacy of therepresentation by the parties or their attorneys.

JURISDICTION AND VENUEThere is no rule in the Pennsylvania Rules of Civil Pro-

cedure providing for a specific provision in the complaintstating jurisdiction and venue. However, it would be neces-sary that in the facts set forth in the complaint in some manner

that the subject matter jurisdiction and the venue of the courtbe established, otherwise the complaint will be subject topreliminary objections on those grounds. That would gen-erally be accomplished in the establishing of the facts nec-essary for the claim for which relief is requested.

DRAFTING THE COMPLAINTWhen drafting the complaint, it is important to remem-

ber the difference between the federal practice and that ofPennsylvania. In a federal action it is only necessary to pleadsufficient facts to put the defendant on notice of the causeof action; that is, a statement to the effect that the defen-dant operated his or her automobile in a negligent manneris sufficient, In Pennsylvania, this would be insufficient towithstand preliminary objections. Further, it is necessary tostate how the defendant operated his or her car in a negli-gent manner, in that he or she failed to keep a proper watchupon the roadway, or ran a red light.

The plaintiff may state in the complaint more than onecause of action against the same defendant Each cause ofaction and any special damage relate thereto shall be statedin a separate count containing a demand for relief (Pa. R.Civ. P. 1020(a)). Persons are joined as plaintiffs, the com-plaint shall state the cause of action, any special damage,and the demand for relief of each plaintiff in a separate count,preceded by a heading naming the parties to the cause ofaction therein set forth (Pa. R. Civ. P. 1020(b)). Causes ofaction and defenses may be pleaded in the alternative (Pa.R. Civ. P. 1020(c)). If a transaction or occurrence gives riseto more than one cause of action against the same person,including causes of action in the alternative, they may bejoined in separate counts in the action against any such per-son (Pa. R. Civ. P. 1020(d)(1)). The failure to join a requiredcause of action under Pa. R. Civ. P. 1020(d)(1) shall be deemeda waiver of that cause of action as against all parties to theaction (Pa. R. Civ. P. 1020(d)(4)).

Any complaint demanding relief shall specify the reliefto which the party deems itself entitled. Relief in the alter-native or of several different types, including an account-ing, may be demanded (Pa. R. Civ. P. 1021(a)). Complaintsdemanding relief for unliquidated damages will not set fortha specific sum (Pa. R. Civ. P. 1021(b)). In counties havingrules governing compulsory arbitration, the plaintiff shallalso state whether the amount claimed exceeds the jurisdic-tional amount requiring arbitration referral by local rule (Pa.R. Civ, P. 1021(c)). The jurisdictional amount is not uni-form throughout the commonwealth. In some counties theamount may be as high as $50,000.00.

Every complaint of a party represented by an attorneyshall be signed by at least one attorney of record in the attorney’sindividual name (Pa. R. Civ. P. 1023(a)). If a party is notrepresented the complaint shall be signed by the party (Pa.R. Civ. P. 1023(a)). The complaint that contains avermentsof facts not appearing of record in the action or containinga denial of fact, shall state that the averment or denial istrue upon the signer’s personal knowledge or informationand belief (Pa. R. Civ. P. 1024(a)). In addition, every com-

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plaint shall be endorsed with the name of the attorney, or ifa party is not represented by an attorney it shall be endorsedwith the name of the party and an address within the com-monwealth (Pa. R. Civ. P. 1025).

FILING THE COMPLAINTThe complaint is filed with the prothonotary of the county

in which the action is brought. Every complaint must beginwith a notice to defend (Pa. R. Civ. P. 1018.1(a)). As a ruleof practice, if the complaint is to be served by the sheriff, asheriffs service form should accompany the complaint, whichwill be forwarded to the sheriff by the prothonotary.

THE SUMMONSThe alternative means of original process, other than by

complaint, is by filing with the prothonotary a praecipe fora writ of summons (Pa. R. Civ. P. 1007(1)). A party maywant to file a writ of summons when it is necessary to tollthe statute of limitations, where there is insufficient time toprepare the complaint. If a party does not have all the facts,it can file a writ of summons and then use the discoveryprocedures to obtain the information to prepare the com-plaint. The prothonotary will then prepare the writ of sum-mons and either forward it to the sheriffs department or returnit to the plaintiff for service. The service of the writ of sum-mons is accomplished in the same manner as the complaint.

SERVICE OF THE COMPLAINTAs a general rule, service of original process may only

be served within the Commonwealth of Pennsylvania by thesheriff (Pa. R. Civ. P. 400(a)). The original process may beserved:

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

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

ber of the family with whom he or she resides; ifno adult member of the family is found, then itmay be handed to an adult person in charge of suchresidence (Pa. R. Civ, P. 402(a)(2)(i)); or

(ii) at the residence of the defendant to the clerk ormanager of the hotel, inn, apartment house, boardinghouse, or other place of lodging at which he orshe resides (Pa. R. Civ. P. 402(a)(2)(ii)); or

(iii) at any office or usual place of business of the de-fendant to his or her agent or to the person for thetime being in charge thereof (Pa. R. Civ. P.402(a)(2)(iii)).

3. Service can also be made by other means, such as mail,when the other party is willing to accept such serviceand by filing an Acceptance of Service (Pa. R. Civ. P.402(b)).

When the defendant is a minor, original process shall beserved upon the minor in the manner prescribed for the ser-

vice of original process upon an adult defendant, or by handinga copy to the minor’s guardian (Pa. R. Civ. P. 420).

If the defendant is an incompetent, original process shallbe served upon the incompetent in the manner prescribedfor the service of original process upon an adult defendant,or by handing a copy to the incompetent’s guardian (Pa. R.Civ. P. 421).

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

Service of original process upon a political subdivisionshall be made by handing a copy to an agent duly autho-rized by the political subdivision to receive such service ofprocess, or the person in charge at the office of the defen-dant or the mayor, or the president, chairman, secretary, orclerk of the tax levying body thereof; and in counties wherethere is no tax levying body, the chairman or clerk of theboard of county commissioners (Pa. R. Civ. P. 422(b)).

Service of original process upon a partnership and allpartners named in the action or upon an unincorporated as-sociation shall be made upon any of the following personsprovided the person served is not a plaintiff in the action:any partner, officer, or registered agent of the partnershipor association or an agent authorized by the partnership orassociation in writing to receive service of process for it, orthe manager, clerk, or other person in charge for the timebeing of any regular place of business or activity of the part-nership or association (Pa. R. Civ. P. 423).

Service of original process upon a corporation or similarentity shall be made by handing a copy to any of the fol-lowing persons provided the person served is not a plaintiffin the action: an executive officer, partner, or trustee of thecorporation or similar entity or the manager, clerk, or otherperson in charge for the time being of any regular place ofbusiness or activity of the corporation or similar entity, oran agent authorized by the corporation or similar entity inwriting to receive service of process (Pa. R. Civ. P. 424).

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

If service cannot be made under the applicable rule, theplaintiff may move the court for a special order directingthe method of service. The motion for special service mustbe accompanied by an affidavit stating the nature and ex-tent of the investigation that has been made to determinethe whereabouts of the defendant and the reasons why ser-vice cannot be made (Pa. R. Civ. P. 430(a)). If special ser-

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vice is by publication, notice of the action must be pub-lished once in the legal publication and once in a newspa-per of general circulation within the county (Pa. R. Civ. P.430(b)(1)).

In actions for custody, partial custody, and visitation, andfor actions for divorce or annulment of marriage, service oforiginal process, can be personally served by a competentadult. In those delineated above, may be served within thecommonwealth by mail (Pa. R. Civ. P. 1930.4(a)). Serviceby mail is accomplished by mailing the papers to the defen-dant through any form of mail requiring a receipt signed bythe defendant or his or her authorized agent (Pa. R. Civ. P.1930.4(c)). If the mail is returned with the notation of arefusal by the defendant to accept the mail, the plaintiff shallhave the right of service by mailing a copy to the defendantat the same address by ordinary mail with the return ad-dress of the sender appearing thereon (Pa. R. Civ. P.1930.4(c)(1)). If the mail is returned unclaimed, the plain-tiff must make service by other means allowed under therules (Pa. R. Civ. P. 1930.4(c)(2)).

Original service shall be served outside the commonwealthwithin ninety (90) days of the issuance of the writ or thefiling of the complaint or the reissuance or the reinstate-ment thereof: by a competent adult who is not a party byhanding a copy to the defendant; or by handing a copy atthe residence of the defendant to an adult member of thefamily with whom he or she resides, however, if no adultmember of the family is found, then to an adult person incharge of such residence, or at the residence of the defen-dant to the clerk or manager of the hotel, inn, apartmenthouse, boarding house, or other place of lodging at whichhe or she resides, or at any office or usual place of businessof the defendant to his or her agent or to the person for thetime being in charge thereof; by any competent adult throughthe mail as provided above; in the manner provided by thelaw of the jurisdiction in which the service is made for ser-vice in an action in any of its courts of general jurisdiction;in the manner provided by treaty; or as directed by the for-eign authority in response to a letter rogatory or request (Pa.R. Civ. P. 404).

Under the Pennsylvania Rules of Civil Procedure, the originalprocess must be served within thirty (30) days after the is-suance of a writ of summons or after the filing of the com-plaint (Pa. R. Civ. P. 401(a)). Writs of summons and complaintsmay be reissued and reinstated at any time and any numberof times by the prothonotary upon praecipe and upon pre-sentation of the writ or complaint (Pa. R. Civ. P. 401(b)(1)and (2)). The issued writ of summon and the reinstated com-plaint must be served within thirty (30) days of its reissuanceand reinstatement (Pa. R. Civ. P. 401(b)(4)).

A writ may be reissued at any time after the original is-suance during the period equivalent to that permitted by thestatute of limitations; each reissuance gives rise to a newperiod of equal length in which the writ may again by reis-sued (Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976)).The same holds true for complaints that are reinstated (Hiltonv. Mayer, 58 Del. Co. Rep. 26 (1970)).

AMENDING THE COMPLAINTA party may at any time change the form of action, cor-

rect the name of a party, or amend its pleading. This can bedone either with the filed consent of the adverse party or byleave of court (Pa. R. Civ. P. 1033). The amended pleadingmay aver transactions or occurrences that have happenedbefore or after the filing of the original pleading, even thoughthey give rise to a new cause of action or defense. An amendmentmay be made to conform the pleading to the evidence of-fered or admitted (Pa. R. Civ. P. 1033). The last type ofamendment to conform to evidence offered or admitted haseven been allowed where the verdict has already been reached(Standard Pipeline Coating Co. v. Solomon & Teslovich, Inc.,344 Pa. Super, 367, 496 A.2d 840 (1985)). However, thesame type of amendment was denied where it would haverequired additional discovery, hearing, briefing, and wouldhave resulted in substantial prejudice to the defendant (Smallv. Columbia Gas of Pennsylvania, Inc., 363 Pa. Super. 61,525 A.2d 424 (1987)). However, a party may not use theprocedure under Pa. R. Civ. P. 1033 to add or substract newparties.

The allowance of an amendment is to be liberally con-strued to secure the just, speedy, and inexpensive determi-nation of every action or proceeding to which they are applicable(Pa. R. Civ. P. 126) and such amendments should be allowedunless they violate the law or unfairly prejudice the rightsof the other party (MacGregor v. Mediq. Inc., 395 Pa. Su-per. 221, 576 A.2d 1123 (1990)). An example of when anamendment would not be allowed is where the statute oflimitations would bar the new cause of action.

A party may file an amended pleading as of course withintwenty (20) days after the service of a copy of preliminaryobjections (Pa. R. Civ. P. 1028(c)(1)). In addition, as a re-sult of a determination of preliminary objections the courtmay allow an amended pleading (Pa. R. Civ. P. 1028(d)).

The Pennsylvania Rules of Civil Procedure do not set alimit on the number of amendments a party may make; however,the liberality of the rules will not allow successive amend-ments when there is no possibility of the pleading beingsustained (Behrend v. Yellow Cab Co., 441 Pa. 105, 271 A.2d241 (1970)). The amendment of the complaint generally re-lates back to the filing of the amended complaint.

After the original filing there may arise a situation wherea successor to an original party will be substituted for theoriginal party. This could occur where the original party hasdied during the action and his or her estate would be substi-tuted. A successor is anyone who by operation of law, elec-tion, or appointment has succeeded to the interest or officeof a party to an action (Pa. R. Civ. P. 2351).

The successor may become a party to a pending actionby filing of record a statement of the material facts on whichthe right to substitution is based (Pa. R. Civ. P. 2352(a)). Ifthe successor does not voluntarily become a party, the pro-thonotary, upon praecipe of an adverse party setting forththe material facts, shall enter a rule upon the successor toshow cause of why he or she should not be substituted as aparty (Pa. R. Civ. P. 2352(b)).

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RESPONDING TO THE INITIAL PLEADINGA party responds to a pleading by filing either an answer

or preliminary objections (Pa. R. Civ. P. 1017(a)). An answeror preliminary objections may be filed to a complaint, a coun-terclaim or new matter, a crossclaim or third-party complaint.

TYPES OF ANSWERSThe answer or responsive pleading, such as a reply to

new matter, shall state the facts upon which a defense isbased in a concise and summary form (Pa. R. Civ. P. 1019(a)).It is necessary to prepare an answer where a party wishes todeny the allegations or a pleading (Pa. R. Civ. P. l029); raiseaffirmative defenses; or other facts not representing denials(Pa. R. Civ. P. 1030); or to file a counterclaim (Pa. R. Civ.P. 1031). The answer or responsive pleading, must be filedwithin twenty (20) days of service of the preceding plead-ing if the pleading contains a notice to defend or is endorsedwith a notice to plead (Pa. R. Civ. P. 1026(a)).

A party waives all defenses and objections that are notraised by preliminary objection, answer or reply. The ex-ceptions to the rule are the defense of failure to state a claimupon which relief can be granted, the defense of failure tojoin an indispensable party, and the objection of failure tostate a legal defense to a claim may also be made by a laterpleading, if one is permitted, or by motion for judgment onthe pleadings or at the trial on the merit (Pa. R. Civ. P. 1032(1))and whenever it appears by suggestion of the parties or oth-erwise that the court lacks jurisdiction of the subject mat-ter, or that there has been a failure to join an indispensableparty, the court shall dismiss the action (Pa. R. Civ. P. 1032(2)).

A responsive pleading shall admit or deny each avermentof fact in the preceding pleading or any part thereof to whichit is responsive. A party denying only a part of an avermentshall specify so much of it as admitted and shall deny theremainder. Admissions and denials in a responsive pleadingshall refer specifically to the paragraph in which the aver-ment is admitted or denied (Pa. R. Civ. P. 1029(a)). Aver-ments in a pleading to which a responsive pleading is requiredare admitted when not denied specifically or by necessaryimplication. A general denial or a demand for proof, exceptwhere the party states that after a reasonable investigation,it is without knowledge or information sufficient to form abelief as to the truth of an averment, shall have the effect ofan admission (Pa. R. Civ. P. 1029(b)). Where the party statesthat after a reasonable investigation, it is without knowl-edge or information sufficient to form a belief as to the truthof an averment, such shall have the effect of a denial (Pa. R.Civ. P. 1029(c)). Averments in a pleading to which no re-sponsive pleading is required shall be deemed to be denied(Pa. R. Civ. P. 1029(d)). Averments of bodily injury, death,and/or property damage can be denied generally, however,averments dealing with identity must be specifically denied(Pa. R. Civ. P. 1029(e)).

CHAPTER 6 RESPONSES TO THE INITIAL PLEADINGS

DRAFTING THE ANSWERIn addition to admitting or denying the averments of the

complaint, the answer may include new matter, which in-cludes all affirmative defenses including but not limited tothe defenses of accord and satisfaction, arbitration and award,assumption of the risk, consent, contributory negligence,discharge in bankruptcy, duress, estoppel, failure of consid-eration, fair comment, fraud, illegality, immunity from suit,impossibility of performance, justification, laches, license,payment, privilege, release, res judicata, statute of limita-tions, truth, and waiver. New matter may also include anyother material facts that are not mere denials (Pa. R. Civ. P.1030). These material facts would also be used not only asa defense, but also to provide a basis for any counterclaim.

COUNTERCLAIMS, CROSSCLAIMS, ANDTHIRD PARTY COMPLAINTS

Counterclaims and third-party complaints are pleadingsthat seek affirmative relief on the part of the party filing thepleading, and may only be filed after the original processhas been served. In other words, counterclaims and third-party complaints cannot be filed until the original complainthas been served.

The defendant may set forth in the answer under the heading“Counterclaim,” any cause of action that it has against theplaintiff at the time of filing the answer (Pa. R. Civ. P. 1031(a))and is subject to the same rules as a complaint (Pa. R. Civ.P. 1019). counterclaim need not diminish or defeat the re-lief demanded by the plaintiff, and it may exceed the reliefin amount or be different in kind from that demanded bythe plaintiff (Pa. R. Civ. P. 1031(b)). Under the Pennsylva-nia Rules of Civil Procedure, the assertion of a counterclaimis permissive as opposed to mandatory. It is purely the op-tion of the defendant to file the counterclaim. Pennsylvaniadoes not have an equivalent to Fed. R. Civ. P. 13(a), whichrequires that certain types of counterclaims be joined in theplaintiffs action.

The counterclaim must be divided into consecutivelynumbered paragraphs, and shall contain as far as practicableonly one material allegation (Pa. R. Civ, P. 1022). The coun-terclaim of a party represented by an attorney shall be signedby at least one attorney of record in the attorney’s individualname (Pa. R. Civ. P. 1023(a)). If a party is not represented,the counterclaim shall be signed by the party (Pa. R. Civ. P.1023(a)). The counterclaim which contains averments of factsnot appearing of record in the action or containing a denialof fact shall state that the averment or denial is true uponthe signer’s personal knowledge or information and belief(Pa. R. Civ. P. 1024(a)). In addition, every counterclaim shallbe endorsed with the name of the attorney, or if a party isnot represented by an attorney, it shall be endorsed with thename of the party and an address within the commonwealth(Pa. R. Civ. P. 1025). There is no need for a plaintiff to file

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a responsive pleading to a counterclaim unless it contains anotice to plead (Pa. R. Civ. P. 1026(a)).

The purpose of a third-party complaint or complaint againstan additional defendant is to allow the original defendant tobring into the action a third party who may be liable in wholeor in part to the defendant on the original claim broughtagainst the defendant.

Original process of the third-party complaint shall be servedupon the additional defendant in the same manner as an originaldefendant. Copies of all pleadings filed in the action shallbe served with the additional defendant complaint (Pa. R.Civ. P. 425(a)). A copy of the complaint must also be servedupon every prior party, but it is not necessary to attach cop-ies of pleadings previously filed in the action (Pa. R. Civ. P.425(b)). In addition, the complaint against an additionaldefendant must begin with the notice to defend (Pa. R. Civ.P. 1018.1(a)).

LEGAL CHALLENGES TO THE COMPLAINTPreliminary objections are available to any party and may

be filed against any pleading. They are most commonly usedby a defendant against the plaintiffs complaint. All prelimi-nary objections are required to be raised at one time and aparty may file inconsistent preliminary objections (Pa. R.Civ. P. 1028(b)). For example, a party may file a demurrerand a motion for a more specific pleading at the same time.Two or more preliminary objections may be raised in onepleading (Pa. R. Civ. P. 1028(b)). The filing of the prelimi-nary objections will stay the action until the preliminarymatters are determined

Service of the preliminary objections occurs by handingor mailing a copy to each party at the address of the party’sattorney of record (Pa. R. Civ. P. 440(a)). If there is no at-torney of record, service occurs by handing a copy to theparty or by mailing a copy to or leaving a copy for the partyat the address endorsed on an appearance or prior pleadingof the residence or place of business of the party (Pa. R.Civ. P. 440(a)(1)), or if such service cannot be made, then itis done by leaving a copy at or mailing a copy to the lastknown address of the party to be served (Pa. R. Civ. P.440(a)(2)).

The preliminary objections must include a notice to pleadwhere there are averments of facts; a caption; averments inparagraph form; claim for relief; signature and endorsementor the attorney, or the party if not represented; and a verifi-cation where there are facts not appearing of record. Thepreliminary objections must state specifically the groundsupon which they are based (Pa. R. Civ. P. 1028(b)). Gener-ally, a party must file all of its preliminary objections atone time or it waives the right to raise them later (Lexing-ton Ins. Co. v. Commonwealth. Ins. Dept., 116 Cmwlth Ct259, 541 A.2d 834 (1988)).

Pursuant to Pa. R. Civ. P. 1017(b), a party’s preliminaryobjections are limited to

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

2. A motion to strike off a pleading due to lack of confor-mity to law or rule of court or because of scandalousor impertinent matter;

3. A motion for a more specific pleading;4. A demurrer, which may not include the bar of a statute

of limitations or frauds; and5. A petition raising the defense of lack of capacity to

sue, pendency of a prior action, nonjoinder of a neces-sary party, or misjoinder of a cause of action.

A party may file an amended pleading as of course withintwenty (20) days after service of a copy of preliminary ob-jections (Pa. R. Civ. P. 1028(c)(1)). If a party does not filean amended pleading, the court shall promptly determineall preliminary objections (Pa. R. Civ. P. 1028(c)(2)). Theprocedure for that determination will be found in the rulesof the court where the action is filed, and will vary fromcounty to county.

If the preliminary objections are endorsed with a noticeto plead and contain averments of fact that are not part ofthe record, an answer to the preliminary objections must befiled with twenty (20) day after service (Pa. R. Civ. P. 1026).The failure to deny the averments in a properly endorsedpreliminary objection will require that the averments be ad-mitted (Pa. R. Civ. P. 1029(b)).

If the preliminary objections are overruled, the objectingparty shall have the right to respond within twenty (20) daysafter notice of the order or within such other time as thecourt shall order (Pa. R. Civ. P. 1028(d)). Thus, a defendantwho had filed preliminary objections would have a mini-mum of twenty (20) days in which to file an answer to thecomplaint.

If the preliminary objections are sustained in whole or inpart, a new pleading shall be filed within (20) days afternotice of the order, or within such other time as the courtmay order (Pa. R. Civ. P. 1028(e)). Therefore, if a defendant’smotion for more specific pleading is sustained by the court,the plaintiff would have at least twenty (20) days to file anamended complaint. However, a court should only grant apreliminary objection that results in the dismissal of a suitor denial of a claim in cases that are clear and free fromdoubt; but, where it is certain that no amendment can curethe defects, a court may enter final judgment (Myers v. Kane,23 Cmwlth Ct 213, 350 A.2d 909 (1976)).

FAILURE TO ANSWERThe prothonotary, on praecipe of the plaintiff, shall enter

judgment against the defendant for failure to file within therequired time, an answer to a complaint containing a noticeto defend or for any relief admitted to be due by the defendant’spleadings (Pa. R. Civ. P. 1037(b)). However, no judgmentby default shall be entered by the prothonotary unless thepraecipe for entry includes a certification that a written no-tice of intention to file the praecipe was mailed or deliveredto the party against whom judgment is to be entered and tohis or her attorney of record, if any, after the default oc-

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curred and at least ten (10) days prior to the date of thefiling of the praecipe. If a written agreement for an exten-sion of time specifies a time within which the required ac-tion must be taken, and a default occurs thereafter, judgmentby default may be entered by the prothonotary without priornotice under this rule. A copy of the notice or agreementshall be attached to the praecipe (Pa. R. Civ. P. 237.1(a)).There are two exceptions to this rule, in that it does notapply to a judgment entered pursuant to an order of court orrule to show cause, or to defaults in residential mortgageforeclosures (Pa. R. Civ. P. 237.1(b)).

Once a default judgment has been entered, the prothono-tary shall assess damages for the amount to which the plaintiffis entitled, if it is a sum certain or which can be made cer-tain by computation; but if it is not, the damages shall beassessed at a trial where the issues shall be limited to theamount of the damages (Pa. R. Civ. P. 1037(b)(1)). For ex-ample, a claim for damages in a contract action can usuallybe determined by the amount paid or the amount that wasdue to be paid, whereas in a personal injury action for dam-ages arising out of an automobile accident, damages wouldbe determined by a jury and the sole question would be ondamages and not as to liability.

In all actions in which the only damages to be assessedare the cost of repairs made to property, the prothonotary,on praecipe of the plaintiff, waiving any other damages un-der the judgment and the filing of affidavits, shall assess

damages for the cost of the repairs (Pa. R. Civ. P. 1037(b)(2)(i).The praecipe shall be accompanied by an affidavit of therepair person containing an itemized repair bill setting forththe charges for labor and material used in the repair of theproperty; it shall also state the qualifications of the personwho made or supervised the repairs, that the repairs werenecessary, and that the prices for labor and materials werefair and reasonable and were those customarily charged (Pa.R. Civ. P. 1037(b)(2)(ii)). The plaintiff shall send a copy ofthe affidavit and repair bill to the defendant by registeredmail directed to his or her last known address, together witha notice setting forth the date of the intended assessment ofdamage (which shall be not less than ten (10) days from themailing of the notice) and a statement that damages will beassessed in the amount of the repair bill unless, prior to thedate of assessment, the defendant, by written praecipe, fileswith the prothonotary a request for trial on the issue of suchdamages. The plaintiff shall also file an affidavit of mailingof notice with the prothonotary (Pa. R. Civ. P. 1037(b)(2)(iii)).

If a judgment has been entered, the party against whomthe judgment was entered may petition the court to openthe judgment. In order for the court to open a judgment, itmust find that the petition to open judgment was promptlyfiled, the failure to act on the original complaint can be rea-sonably explained and that there is a meritorious defense tothe underlying claim (Penny’s v. Richard Kastner Co., 297Pa. Super. 167, 443 A.2d 353 (1982)).

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PREPARING, SERVING, AND RESPONDINGMany pretrial matters concern motions and petitions. In

many circumstances, there is little practical difference inwhether the particular action is considered a motion or pe-tition. The Pennsylvania Rules of Civil Procedure do notstate the formal requirements of a motion, nor the proce-dure to be followed for its determination. It is not a plead-ing (Pa. R. Civ. P. 1017), and the formal rules of pleadingsare not specifically applicable to the motion, although inpractice those same rules are used in preparing the motion.However, the reasons for the motion should be stated withspecificity. Local practice will guide the filing of the mo-tion and the procedure for its determination.

The motions and petitions must be served upon every otherparty to the action (Pa. R. Civ. P. 440(a)). Service is accom-plished by leaving a copy for or mailing a copy to the partyat his or her address, or to his or her attorney of record anyother address as agreed upon (Pa. R. Civ. P. 440(a)). If thereis no attorney of record, service is achieved within the countyby leaving a copy for or mailing a copy at the residence orplace of business of the party (Pa. R. Civ. P. 440(a)(1)), oroutside of the county in which the action is pending, withinor without the commonwealth, by having a competent adulthand a copy to the person served, or by leaving a copy at ormailing a copy by registered mail to the last known addressof the party to be served or by publication where no addressis known (Pa. R. Civ. P. 440(a)(2)). Service is complete uponmailing (Pa. R. Civ. P. 440(a) and (b)).

Motions and Petitions can also be served by facsimili.The Petition or Motion must be accompanied by a coversheet, which incudes the name, address and telephone num-ber of all parties, the fax numbers of all parties, the title ofthe Petition or Motion, and the number of pages (Pa. R. Civ.P. 440(d)(1)). As a general rule, responses to Petitions orMotions must be done in twenty (20) days, or within othertimes as set forth by the court.

SPECIFIC MOTIONSThere are several motions available to a party to effec-

tively terminate an action without the case having to trial.These would be in addition to preliminary objections and ajudgment upon default and include a motion for judgmenton the pleading (Pa. R. Civ. P. 1034) and a motion for sum-mary judgment (Pa. R. Civ. P. 1035.1).

The motion for judgment on the pleadings made pursu-ant to Pa. R. Civ. P. 1034 is patterned after Fed. R. Civ. P.12(c). The purpose of the motion is to permit the court, uponapplication of either party, to determine whether judgmentshould be granted prior to trial. At any time after the plead-ings are closed, but at such time as to not delay the trial ofthe case, a party may move for judgment on the pleadings(Pa. R. Civ. P. 1034(a)). The court has the authority to entersuch judgment or order as it deems proper on the pleadings(Pa. R. Civ. P. 1034(b)). The definition of pleadings would

CHAPTER 7 MOTION PRACTICE

include a complaint, an answer thereto, a reply if the an-swer contains new matter, or a counterclaim a counter-re-ply if the reply to a counterclaim contains new matter, apreliminary objection, and an answer thereto (Pa. R. Civ. P.1017(a)).

The rule does not state the form of the motion for judg-ment on the pleadings and the formal requirements wouldbe governed by local practice, however, it should certainlyconsist of a statement of reasons as to why the judgmentshould be granted. A motion for judgment on the pleadingsmust be served upon every other part to the action and suchservice would be according to Pa. R. Civ. 440 (Pa. R. Civ.P. 440(a)). The procedure for the determination of the mo-tion for judgment would also be governed by local rules ofthe county where the action is located.

Action for judgment on summary judgment is not con-sidered a pleading (Pa. R. Civ. P. 1017(a)) and a party wouldnot be required to file an answer in twenty (20) days, Theresponding party would be permitted, according to localpractice, to file an answer or response to the motion, afterwhich the court would render a decision on the motion. Thecourt could require oral argument by the attorneys and/orbriefs on the motion.

A motion for judgment on the pleadings may only begranted where there are no facts at issue and the law is soclear that a trial would be a fruitless exercise (Beardell v.Western Wayne School Dist., 91 Cmwlth Ct. 348, 496 A.2d1373 (1985)). In a motion for judgment on the pleadings,all well-pleaded material facts and inferences reasonablydeduced therefrom must be accepted as true, however, con-clusions of law and unjustified inferences will not be con-sidered (Merritt v. Board of Education, 99 Cmwlth Ct. 178,513 A.2d 504 (1986)). Of course, the responding party couldmove to amend its complaint pursuant to Pa. R. Civ. P. 1033,or the court, within its discretion, may grant the respondingparty an opportunity to amend its complaint upon the filingof the motion for judgment on the pleadings (Puleo v. BroadStreet Hospital, 267 Pa. Super, 581, 407 A.2d 394 (1979)).

In addition to the motion for judgment on the pleadings,a party, after the pleadings are closed, but within such timeas not to delay trial, may move for summary judgment onthe pleadings and any depositions answers to interrogato-ries, admissions on file, and supporting affidavits (Pa. R.Civ. P. 1035.2). Any party may move for summary judg-ment including the plaintiff, defendant, an additional de-fendant, an interpleaded party, or a garnishee.

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

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The Pennsylvania Rules of Civil Procedure do not statethe formal requirements of the motion for summary judg-ment nor the procedure to be followed for its determina-tion. As in the case of the motion for judgment on the pleading,the motion for summary judgment is not a pleading (Pa. R.Civ. P. 1017), and the formal rules of pleadings are not spe-cifically applicable to the motion for summary judgment,but the party filing the motion should adhere to those rules.However, the reasons why the motion should be granted areto be stated with specificity. Local practice will guide thefiling of the motion and the procedure for its determination.Most likely, the procedure would be similar or identical tothat used for the motion for judgment on the proceedings.

The motion for summary judgment must be served uponevery other party to the action (Pa. R. Civ. P. 440(a)). Aswith the service of other motions, the manner of service isset forth in Pa. R. Civ. P. 440.

The judgment sought shall be granted if the pleadings,depositions, answers to interrogatories, and admissions onfile, together with the affidavits, if any, show there is nogenuine issue as to any material fact and that the movingparty is entitled to judgment as a matter of law. The courtmay render a judgment as to liability alone, despite the factthat there is a genuine issue as to the amount of damages(Pa. R. Civ. P. 1035.5).

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

There is no provision for default, even if the respondingparty does not respond, since even if it does not so respond,the motion for summary judgment shall be entered againstit only “if appropriate” (Pa. R. Civ. P. 1035.5). The partyagainst whom the Motion is being made must file a response(Pa. R. Civ. P. 1035.3(a)).

If a favorable decision on the motion for summary judg-ment does not conclude the case and a trial is necessary, thecourt shall make an order specifying the facts that appearwithout substantial controversy, including the extent to whichthe amount of damages or other relief is not in controversy,and including the extent to which the amount of damages orother relief is not in controversy and directing such furtherproceedings in the action as are just. Upon trial of the ac-tion, the facts so specified shall be deemed established andthe trial shall be conducted accordingly (Pa. R. Civ. P. 1035.5).

Although the attorney, and not the paralegal, would makemotions during the trial, the paralegal would likely be in-volved in the preparation of any such motion. There are severalmotions available to an attorney during the trial that the paralegal

would prepare. Included among these are a motion to strikeevidence; a motion to have the jury view premises involvedin the case; and a motion in limini.

A motion to strike evidence is made when a court allowsevidence admitted over an objection to be stricken by theaggrieved party, which the attorney making the motion be-lieves to have been improperly admitted (Jones v. Spidle,446 Pa, 106, 286 A.2d 366 (1971)). If the motion is filedwithout an objection during the trial, the evidence will onlybe stricken if the reason for striking the evidence was un-known and could not have been known with ordinary dili-gence at the time the evidence was presented (Boring v.Metropolitan Edison Co., 435 Pa. 513, 257 A.2d 565 (1969)).The motion can be made to strike out the entire testimonyof a witness or only a part thereof. The only other courseopen to the attorney who has not objected to the evidence isa request for the court to instruct the jury to disregard thetestimony (Boring v. Metropolitan Edison Co., 435 Pa, 513,257 A.2d 565 (1969)). The motion to strike should be madewhen the improper evidence is admitted by the court or whenit becomes known to the attorney that it is improper (Jonesv. Spidle, 446 Pa. 103, 286 A.2d 366 (1971)).

A party may make an application to the court to have thejury view any premises involved in the litigation. The re-quest can be made prior to trial or during the actual trial ofthe case. The granting of the request is within the discretionof the court, which may impose upon the requesting partysuch reasonable costs or expenses as may be involved inconnection with such view, or may direct that any costs therebyincurred shall follow the judgment entered in such action(Pa. R. Civ. P. 219).

The motion in limini will generally be a pretrial motion,although it can also be made during the trial, to excludeevidence that is potentially inflammatory, prejudicial, with-out probative value, and which would be excluded with a properobjection. The moving party seeks an order prohibiting dis-cussion of the evidence before the jury and a determinationof the evidence’s admissibility. The motion can also be usedto determine the inclusion of evidence at the trial.

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

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

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THE NATURE OF DISCOVERYPennsylvania Rules of Civil Procedure 4001, et seq. govern

the use of discovery in civil cases. The use of discovery hasseveral purposes including: the prevention of a party beingpenalized from proving its claim because the evidence is inthe possession of its adversary; the allowance of the partiesto become familiar with the pertinent facts of the case toprepare for trial; and the elimination of surprise. Discoveryalso helps to expedite and facilitate the litigation process.Although the rules set out in detail the procedures of dis-covery, they may be modified by agreement of the parties(Pa. R. Civ. P. 4002).

In general, discovery procedures can be used in any civilaction or proceeding at law or in equity brought in or ap-pealed to any court that is subject to these rules, includingany action pursuant to the Eminent Domain Code or theMunicipal Claims Act (Pa. R. Civ. P. 4001(a)). However,discovery is not available for simple support, custody of minorchildren, or protection from abuse, unless authorized by thecourt (Pa. R. Civ. P. 1930.5(a)).

The reasoning for not permitting discovery is that mostparties involved in support proceedings do not have the re-sources to spend on discovery. It is also believed that theprocedures used in support conferences supply the basicdiscovery needed as to incomes and expenses. In addition,the parties are usually familiar with each other’s expensesand incomes.

Since both parties are familiar with each other’s activitiesand living conditions in regard to children, discovery is pre-cluded in custody proceedings, unless authorized by the court(Pa. R. Civ. P. 1930.5(a)). Discovery is allowed without leaveof court for complex support, and in divorce for claims foralimony and the determination and distribution of propertyrights and counsel fees and expenses (Pa. R. Civ. P. 1930.5).

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

a. Depositions upon oral examinationb. Depositions upon written interrogatoriesc. Written interrogatories to a partyd. Production of documents and things and entry for in-

spection and other purposese. Physical and mental examinationsf. Requests for admissions

Generally, a party is not precluded from using one formof discovery because it had obtained or is entitled to dis-covery by other means. The person seeking the discovery ispermitted to pick and choose among the means available.Discovery can be used in any sequence selected by the party,however, subsequent and continual attempts at discovery maybe limited by protective order.

PART III DISCOVERY

CHAPTER 8 OVERVIEW OF THE DISCOVERY PROCESS

The filing of discovery material with the prothonotary isnot required unless relevant to a motion or other pretrialproceeding; ordered by the court; or required by statute (Pa.R. Civ. P. 4002.1). The reason for not requiring the filing ofdiscovery material is simply the limited amount of storagespace. This also applies to depositions taken for use at trial.

THE EXTENT OF ALLOWABLE DISCOVERYDiscovery may be used to inquire into any matter that is

relevant to the subject matter involved in the pending ac-tion, whether it relates to the claim or defense of the partyseeking discovery or to the claim or defense of any otherparty, including the existence, description, nature, content,custody, condition, and location of any books, documents,or other tangible things and the identity and location of per-sons having knowledge of any discoverable matter (Pa. R.Civ. P. 4003.1); matters involving insurance (Pa. R. Civ. P.4003.2); and trial preparation material in general (Pa. R.Civ. P. 4003.3), including a party’s representative attorney,consultant, surety, indemnitor, insurer or agent. However,unlike Fed. R. Civ. P. 26(b)(3), there is no requirement of ashowing of a substantial need and undue hardship in orderto discover trial preparation material and differentiates be-tween notes and memorandum prepared by an attorney andthe same prepared by a party’s representative, such as aninsurance agent, previously made statements by any partyor witness about the action at hand (Pa. R. Civ. P. 4003.4),including written statements or a transcription of an oralstatement made by the person taking the statement and re-corded simultaneously, which differs from the federal rulesin that a party may automatically discover statements madeby witnesses; facts known by and opinions of experts (Pa.R. Civ. P. 4003.5); and discovery of the treating physicians(Pa. R. Civ. P. 4003.6).

However, the mental impressions of a party’s attorneyand his or her work product are not discoverable, This wouldalso include the mental impressions, conclusions, or opin-ions of a party’s representative respecting the merit of a claimor defense, or respecting strategy and tactics (Pa. R. Civ. P.4003.3).

All material sought through discovery must be relevantto the subject matter (Pa. R. Civ. P. 4003.1(a)). Courts shouldinterpret the definition of relevancy broadly and liberally(Garlitz v. P.B.S. Coals, Inc., 35 Som. Leg. J. 319 (1978)),and if there is any basis for relevancy, the discovery shouldbe permitted and doubts resolved in favor of relevancy (Eversonv. Dinulos, 13 Lebanon Co. L. J. 4 (1970)). The party ob-jecting to relevancy has the burden of proof to establish itsright to refuse the requests of discovery (Hepps v. Philadel-phia Newspapers, Inc., 25 Chest. Co. L. R. 358 (1977)).

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One can also seek production of documents from nonparties.Written notice must be served upon all parties (Pa. R. Civ.P. 4009.21(a)). Objections to the notice and the request willnot be served on the nonparty until the objection is ruledupon by the court (Pa. R. Civ. P. 4009.21(c) and (d)(1)). Ifno objections are made, then the request may be served (Pa.R. Civ. P. 4009.21(d)(2)).

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

Discovery may not be served in bad faith, must relate toa matter that is not privileged, and shall not require makingan unreasonable investigation by a party or witness or causeunreasonable annoyance, embarrassment, oppression, bur-den, or expense (Pa. R. Civ. P. 4011).

The party to whom the discovery is directed may requestthe court to grant a protective order limiting or prohibitingthe scope of the discovery, which justice requires to protecta party or person from unreasonable annoyance, embarrass-ment, oppression, burden, or expense (Pa. R. Civ. P. 4012(a)).

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

The court’s protective order may include the following:

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

2. That the discovery or deposition shall be only on specifiedterms and conditions, including a designation of timeand place (Pa. R. Civ. P. 4012(a)(2)).

3. That the discovery or deposition shall be only by a methodof discovery or deposition other than that selected bythe party seeking discovery or deposition (Pa. R. Civ.P. 4012(a)(3)).

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

5. That the scope of discovery or deposition shall be con-ducted with no one present except persons designatedby the court (Pa. R. Civ. P. 4012(a)(6)).

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

7. That the parties simultaneously file specified documentsor in sealed envelopes to be opened as directed infor-mation by the court (Pa. R. Civ. P. 4012(a)(8)); and

8. That a trade secret or other confidential informationshall not be disclosed, or be disclosed only in a desig-nated way (Pa. R. Civ. P. 4012(a)(9)).

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

1. An order that the matter questioned about be estab-lished in accordance with the claim of the serving party(Pa. R. Civ. P. 4019(c)(1));

2. A refusal to allow the disobedient party to oppose claimsor defenses or prohibit them from introducing certaintestimony (Pa. R. Civ. P. 4019(c)(2));

3. striking of pleadings or parts thereof or staying furtherproceedings until the order is obeyed or entering a judg-ment of non pros or by default (Pa. R. Civ. P. 4019(c)(3));

4. Punishment for contempt (Pa. R. Civ. P. 4019(c)(4));5. Such order as the court deems (Pa. R. Civ. P. 4019(c)(5));6. The payment of expenses and attorney fees, if an order

compelling discovery has not been complied with (Pa.R. Civ. P. 4019(g)(1)).

The granting of attorney fees for obtaining a court orderfor sanctions can only occur after there has already been acourt order compelling the opposing party to make discov-ery, and the opposing party has not complied with that or-der (Pa. R. Civ. P. 4019(g)(1)). Attorney fees may also begranted against a party who files a motion or an applicationunder the discovery rules for the purpose of bad faith ordelay. If such costs are imposed, that party may not takefurther action until the costs are paid nor may the party re-cover the costs if ultimately successful in the action (Pa. R.Civ. P. 4019(h)).

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THE DEPOSITION The deposition is an oral examination taken for the pur-

pose of discovery, preparation of pleadings, preparation fortrial of the case, or use at a hearing on pretrial proceedingsor trial itself. The procedure is much the same as in courtwith regard to the examination and cross-examination ofwitnesses. Ordinarily, the attorneys, the parties, and thewitnesses to be deposed are present.

Oral depositions are governed by Pennsylvania Rule ofCivil Procedure 4007.1. Any party may take a deposition ofany person by oral examination. A person is defined as anatural person, corporation, partnership, or association (Pa.R. Civ. P. 76). There must be reasonable notice given to thedeponent and to all parties. It is not necessary to subpoenaa party to be deposed (Pa. R. Civ. P. 4007.1(a)), however, asubpoena is mandatory to require a nonparty to attend adeposition (Pa. R. Civ. P. 234.1(b)(2)).

The notice of deposition shall state the time and place ofthe taking of the deposition and the name and address ofeach person to be examined, if known, or a general descrip-tion sufficient to identify the deponent or the class or groupto which it belongs (Pa. R. Civ. P. 4007.1(b)). It is impor-tant that all parties are served with notice of the deposition,since a lack of notice would lead to the deprivation of cross-examination of a witness which may result in the deposi-tion being suppressed at the time of trial (Hoover v. Haefner,32 Lanc. L. Rev. 189). Service of the notice is accomplishedby leaving a copy for or mailing a copy to the party at his orher address or to its attorney of record (Pa. R. Civ. P. 440(a)).If there is no attorney of record, service is achieved withinthe county by leaving a copy for or mailing a copy to theparty at the residence or place of business of the party (Pa. R.Civ. P. 440(a)(1) and (2)).

It is not necessary to state the matters to be inquired into,unless the plaintiff has commenced the action by writ ofsummons and desires to take the deposition for the purposeof preparing a complaint. If this is the case, a brief state-ment as to the nature of the cause of action and of the mat-ters to be inquired into shall be included on the notice (Pa. R.Civ. P. 4007.1(c)).

The party taking the deposition of another party may in-clude a request for production of documents with the noticeof deposition. If the person to be examined is not a party,the person must be served with subpoena duces tecum toproduce designated materials (Pa. R. Civ. P. 4007.1(d)(1)and (2)). If the person to be deposed is a public or privatecorporation, a partnership or association, or a governmentalagency, the notice must describe with reasonable particu-larity the matters to be inquired into and the materials to beproduced. Such an organization must then designate one ormore officers, directors or managing agents, or other per-sons who consent to testify on its behalf. A subpoena shalladvise a nonparty organization of its duty to make such adesignation (Pa. R. Civ. P. 4007.1(e)).

CHAPTER 9 DEPOSITIONS

Generally a deposition may be taken without leave of court(Pa. R. Civ. P. 4007.2(a)), although, leave of court is re-quired if the plaintiff takes the deposition prior to the expi-ration of thirty (30) days after service of the original processand the defendant has not otherwise sought discovery, un-less the person to be examined is aged or infirm or is aboutto leave the county where the action is pending for a placeoutside the commonwealth or a place more than 100 milesfrom the courthouse where the action is pending (Pa. R. Civ.P. 4007.2(b)). The attorney must sign the notice of deposi-tion setting forth facts as to why leave of court is not re-quired prior to the expiration of the thirty (30) day period(Pa. R. Civ. P. 4007.2(c)).

If the deponent is in prison, the deposition may be takenonly by leave of court and upon such terms as the court set(Pa. R. Civ. P. 4007.2(d)). In a divorce action, discovery isallowed for alimony equitable distribution and counsel feesand expenses (Pa. R. Civ. P. 1930.5(b)). If the deponent isan expert whose opinions or reports have already been dis-closed in response to interrogatories, the deposition of theexpert can only be taken by leave of court (Pa. R. Civ. P.4003.5(a)(2)).

Pursuant to Pa. R. Civ. P. 4008, when a deposition is to betaken more than one hundred (100) miles from the court-house, the court, upon motion, may make an order requiringthe payment of reasonable expenses, including attorney fees.

Depositions may not be served in bad faith and must re-late to a matter that is not privileged. Depositions shall notrequire making an unreasonable investigation by a party orwitness, or cause unreasonable annoyance, embarrassment,oppression, burden, or expense (Pa. R. Civ. P. 4011).

THE NATURE OF THE ORAL DEPOSITIONDepositions shall be taken before an officer authorized

to administer oaths by the laws of the United States or theCommonwealth of Pennsylvania or of the place where thedeposition is to take place, or by a person appointed by thecourt (Pa. R. Civ. P. 4015(a)). At most times, this personwill be either an official court reporter or a private courtreporter or an employee of a court reporting service. How-ever, no deposition shall be taken before a person who is arelative, employee, or attorney of any of the parties or arelative or employee of the attorney or a person financiallyinterested in the action (Pa. R. Civ. P. 4015(c)).

Objection to the taking of a deposition due to the dis-qualification of the person before whom it is to be taken iswaived unless made before the taking of the deposition oras soon thereafter as it becomes known or could have beenknown with reasonable diligence (Pa. R. Civ. P. 4016(a)).Objections to the competency of a witness or competency,relevancy, or materiality of the testimony are not waived byfailure to make them before or during the deposition, un-less the objection was known to the objecting party at the

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time and which might have obviated or removed the objec-tion if made at that time (Pa. R. Civ. P. 4016(b)).

Errors and irregularities occurring at the oral depositionthat might have been obviated, removed, or cured if objec-tions had been promptly made are waived unless season-able objection is made at the deposition (Pa. R. Civ. P. 4016(c)).Any errors and irregularities in the notice of deposition arewaived unless written objection is promptly served upon theparty giving notice (Pa. R. Civ. P. 4016(d)).

Prior to the start of the deposition, the person before whomthe deposition is taken shall put the witness under oath oraffirmation and shall personally or by someone acting un-der its direction and in its presence record the testimony ofthe witness (Pa. R. Civ. P. 4017(a)). The court reporter willswear the witness in and then the deposing party will beginits questioning of the deponent. The witness’s testimony shallbe transcribed and any objections to the preparation or cor-rectness of the transcript are to be filed in writing with thecourt, promptly after discovery of the grounds of objection(Pa. R. Civ. P. 4017(b)).

If a deponent refuses to be sworn or answer any ques-tion, the deposition shall be completed on other matters orbe adjourned as the proponent may prefer. After reasonablenotice to all persons affected, the proponent may apply tothe court, where the action is pending or where the deposi-tion is taken, for an order compelling the witness to be swornor to answer the question, under penalty of contempt, ex-cept where the deposition of a witness (not a party) is takenoutside the commonwealth. In this case, the application mustbe made to the court of the jurisdiction in which the deposi-tion is to be taken (Pa. R. Civ. P. 4019(b)).

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

Upon motion, the court may enter an appropriate orderregarding sanctions of a person, an officer, or managing agentof a party or a person designated to be examined under Penn-sylvania Rule of Civil Procedure 4007.l(e), who after no-tice fails to appear before the person who is to take thedeposition (Pa. R. Civ. P. 4019(a)(1)(iv)), or if a party ordeponent, or an officer or managing agent of a party or de-ponent induces a witness not to appear (Pa. R. Civ. P.4019(a)(1)(v)). Pennsylvania Rule of Civil Procedure 4019provides the sanctions available to the court to impose forfailure to participate in the taking of a deposition.

In addition to sanctions against the party being deposed,if the party giving notice of the deposition fails to attendand another party attends in person or by attorney pursuantto the notice of deposition, the court may order the partygiving such notice to pay the reasonable expenses, includ-ing attorney fees incurred by the party and its attorney in

attending (Pa. R. Civ. P. 4019(e)). The same would be trueif a deponent fails to show and was not served with a sub-poena to appear (Pa. R. Civ. P. 4019(f)).

At trial, any portion of or the entire deposition, if other-wise admissible under the rules of evidence, may be used againstany party who was present or represented at the depositionor who had notice thereof in accordance with the following:

1. Any deposition may be used by any party for the pur-pose of contradicting or impeaching the testimony of adeponent as a Witness (Pa. R. Civ. P. 4020(a)(1));

2. The deposition of a party or of anyone who at the timeof the taking of the deposition was an officer, director,or managing agent of a party or person designated totestify on behalf of a public or private corporation,partnership or association or governmental agency whichis a party (Pa. R. Civ. P. 4020(a)(2));

3. The deposition of any witness may be used by any partyfor any purpose if the witness is dead, the witness is ata distance greater than one hundred (100) miles fromthe place of the trial or outside the commonwealth, unlessthe absence is caused by the party seeking to use thedeposition; the witness is unable to attend trial due toage, sickness, infirmity, or imprisonment; if the partyoffering the deposition has been unable to subpoenathe witness; and upon application or notice that excep-tional circumstances exist and the interest of justiceallow the deposition to be used (Pa. R. Civ. P. 4021(a)(3));

4. The deposition of a medical witness may be used attrial whether or not the witness is available to testify(Pa. R. Civ. P. 4020(a)(5)).

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

Objections, not waived under Pennsylvania Rule of CivilProcedure 4016(b), may be made at the trial or hearing toreceive in evidence all or part of any deposition for any rea-son that would require the exclusion of the evidence if thewitness were present and testifying (Pa. R. Civ. P. 4020(c)).

SPECIAL TYPES OF DEPOSITIONSPennsylvania Rule of Civil Procedure 4004 provides for

the use of written interrogatories to a nonparty, includingnonpersons such as corporations, partnerships, associations,or government agencies. The party taking such action mustfile the deposition upon written interrogatories with the pro-thonotary (and upon each party or its attorney), who trans-mits the depositions to an officer authorized to take depositionsand who then files the deposition with the prothonotary af-ter completion. The answers are provided by means of oraltestimony, which is transcribed.

Within thirty (30) days of receipt of written interrogato-ries, other parties may serve and file cross-interrogatories(Pa. R. Civ. P. 4004(a)(1)). Additional interrogatories must

27

be served and filed within ten (10) days (Pa. R. Civ. P.4004(a)(1)). The same sanctions apply for refusal to answeras for regular interrogatories.

In addition to normal stenographic recording of the depo-sition, a deposition may be videotaped (Pa. R. Civ. P. 4017.1(a))and may be used in court only if accompanied by a tran-script (Pa. R. Civ. P. 4017.1(a)(2)). If the witness is an ex-pert, other than a party, the deposition may be used at trialfor any purpose, whether or not the person is available totestify (Pa. R. Civ. P. 4017.1(g)).

This procedure would be used for persons who would beunavailable for trial or for physicians whose appearances attrial, due to their schedules are difficult to arrange. The useof a videotape is more compelling to a jury than the simplereading of a transcript. It permits a jury to view the demeanorof the deponent for themselves, which is impossible to as-certain from a mere transcript.

Every notice or subpoena (to nonparties) for the takingof a videotape deposition shall state that it is to be video-taped, the name and address of the person whose depositionis to be taken, the name and address of the officer before

whom it is to be taken, whether the deposition is to be simul-taneously recorded by stenographic means, and the nameand address of the videotape operator and his or her em-ployer, The operator may be an employee of the attorneytaking the deposition (Pa. R. Civ. P. 4017.1(b)).

The deposition shall begin with the operator stating, oncamera, its name and address, the name and address of itsemployer, the date, time and place of the deposition, thecaption of the case, the name of the witness, and the partyon whose behalf the deposition is being taken, The officerswearing in the witness shall identify itself and swear in thewitness on camera. At the conclusion of the deposition, theoperator shall state, on camera, that the deposition is con-cluded (Pa. R. Civ. P. 4017.1(c)).

The deposition shall be timed with the use of a digitalclock on camera showing continually the hour, minute, andsecond of each tape (Pa. R. Civ. P. 4017.1(d)). The witnessis not required to sign the deposition (Pa. R. Civ. P. 4017.1(e)).The attorney taking the deposition shall retain the copy ofthe deposition and shall supply a copy thereof upon the re-quest and at the cost of a party (Pa. R. Civ. P. 4017.1(f)).

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INTERROGATORIES Pennsylvania Rule of Civil Procedure 4005 governs written

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

As a general rule, written interrogatories may be servedat any time including with the original process (Pa. R. Civ. P.4005(a)). Service is accomplished by hand delivery to a partyor its attorney of record or by the mailing of the same (Pa. R.Civ. P. 440(a)).

DRAFTING INTERROGATORIES There are limits placed upon the use of written inter-

rogatories. They may not be served in bad faith and mustrelate to a matter that is not privileged. Interrogatories shallnot require making an unreasonable investigation by a partyor witness or cause unreasonable annoyance, embarrassment,oppression, burden, or expense (Pa. R. Civ. P. 4011). Out-side these limits, interrogatories may relate to any matterdiscoverable pursuant to Pa. R. Civ. P. 4003.1–4003.6.

Although interrogatories can be used to discover infor-mation about documents, the production of the documentscannot be accomplished with interrogatories and must bedone by a request for production of documents.

The party to whom the interrogatories are directed mayrequest the court to grant a protective order limiting or pro-hibiting the scope of the interrogatories (Pa. R. Civ. P. 4012).The court may make any protective order that would be ap-propriate under the circumstances of the case pursuant toPa. R. Civ. P. 4019.

In addition, in divorce actions, the use of interrogatoriesare further limited and are not allowed except in regard toclaims for alimony and the determination and distributionof property rights, unless authorized by special order of thecourt (Pa. R. Civ. P. 1930.5(b)).

The Pennsylvania Rules of Civil Procedure do not spe-cifically limit the number of interrogatories in a given set,or the number of sets of interrogatories that may be served,although the number may be limited, upon motion of theparty served, by the court as justice requires to protect theparty from unreasonable annoyance, embarrassment, oppres-sion, burden or expense (Pa. R. Civ. P. 4005(c)).

The Pennsylvania Rules of Civil Procedure provide thatthe interrogatories be served upon the party from whom theanswers are requested (Pa. R. Civ. P. 4005(a)). The sets areto be prepared in such a manner as to allow the answeringparty space to provide an answer or objection. Although, ifthere is insufficient space, the remainder of the answer maybe set forth on a supplemental sheet (Pa. R. Civ. P. 4006(a)(1)).The interrogatories need not be filed with the prothonotary.

CHAPTER 10 INTERROGATORIES

DRAFTING ANSWERS TOINTERROGATORIES

Pennsylvania Rule of Civil Procedure 4006 governs themanner in which the responding party answers written in-terrogatories. Each interrogatory must be answered “fullyand completely” in writing by the party (Pa. R. Civ. P.4006(a)(1)) unless there is specific written objection to thesame, however, an objection to one or more interrogatoriesdoes not excuse the answering of the remaining questions(Pa. R. Civ. P. 4006(a)(2)). The interrogatory is to be an-swered by the party served (Pa. R. Civ. P. 4005(a)). Wherethat party is a public or private corporation, partnership orassociation, the answers are to be supplied by any officer oragent (Pa. R. Civ. P. 4005(a)).

As in the federal rules where the answer may be deter-mined from the records of the party served and where theburden of obtaining the answer is substantially the same foreither party, an answer may be made by specifying the recordsand affording the serving party an opportunity to examineand copy the records. However, the Pennsylvania rules gobeyond the federal rules, by allowing the option to be opento all records and not just business records. Pennsylvaniaalso provides that the inquiring party must also provide anycompilation, abstracts, or summaries of the records to theproviding party (Pa. R. Civ. P. 4006(b)).

Interrogatories pertaining to the testimony of an expertwitness may be done by filing the report of the expert wit-ness or by having the interrogatories answered directly bythe expert (Pa. R. Civ. P. 4003.5(a)(1)(b)).

The party giving the answers to the interrogatories is re-quired to sign the answers (Pa. R. Civ. P. 4006(a)(2)). But,when there are several respondents to the interrogatoriesrepresented by the same counsel, it is only necessary thatone of the respondents sign the answers. If an expert pre-pares its answer and/or report, it must be signed (Pa. R. Civ.P. 4003.5(a)(1)(b)).

The answering party must file and serve a copy of its an-swers within thirty (30) days of their receipt (Pa. R. Civ. P.406(a)(2)). A copy of the answers must be served upon everyparty to the action (Pa. R. Civ. P. 440(a)). In addition to theiruse in obtaining information on an opponent’s case, the an-swers to interrogatories may be used at trial (Pa. R. Civ. P.4020) and in determining motions for summary judgment (Pa.R. Civ. P. 1035.1(2)).

Although the Pennsylvania Rules of Civil Procedure donot authorize a motion for more specific answers, some courtsof common pleas have authorized such a motion (Luken v.Antine, 65 D. & C. 2d 100 (1974); McBride v. WestinghouseElectric Corp., 30 Beaver Co. L. J. 201 (1970)). Parties alsohave a duty to supplement previous responses to interroga-tories with respect to any question directly addressed to theidentity and location of persons having knowledge of dis-coverable matters and the identity of each person expectedto be called as an expert witness (Pa. R. Civ. P. 4007.4(1)),

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or when the party has knowledge that a response was incor-rect when made or is no longer true (Pa. R. Civ. P. 4007.4(2)).

A party may object to an interrogatory within the thirty(30) day period, and if it refuses to answer a particular questionit must state the reason for its objection (Pa. R. Civ. P.4006(a)(2)). If the serving party wishes to contest the ob-jection, it may file a motion to the court for the served partyto provide an answer (Pa. R. Civ. P. 4006(a)(2)). The objec-tion to any interrogatory shall be signed by the attorney makingthe objection (Pa. R. Civ. P. 4006(a)(2)). The local rules ofcourt for the county in which the action is pending will govern

the procedure used to determine the validity of the objection.An interrogatory is not objectionable simply because an

answer will require an opinion or the application of law tofact (Pa. R. Civ. P. 4003.1(c)). It is not grounds for an ob-jection that the information sought is inadmissible at trial,if the information sought is reasonably calculated to lead todiscovery of admissible evidence (Pa. R. Civ. P. 4003.1(b)).

If a party fails to answer or object to the interrogatories,in whole or in part, within the prescribed time, the courtmay, upon motion of the inquiring party, impose sanctionsfor its failure to comply pursuant to Pa. R. Civ. P. 4019.

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Pennsylvania Rule of Civil Procedure 4010(a) providesthat when the mental or physical condition of a party (in-cluding blood group, generally used in cases to determinepaternity and in child support actions where a father hasdenied paternity), or of a person in the custody or under thelegal control of a party, is in controversy, the court may or-der the party to submit to a physical or mental examinationby a physician or to produce for examination the person inits custody or legal control.

Unlike written interrogatories and a request for produc-tion of documents, a physical and/or mental examinationcan only be obtained by order of court (Pa. R. Civ. P. 4010(a)(2)).The rule does not limit the number of examinations that areallowed, but more than one examination would be a matterwithin the discretion of the court. A second examination maybe permitted where there has been a long time since thefirst examination or where there is new information to bediscovered.

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

CHAPTER 11 PHYSICAL AND MENTAL EXAMINATIONS

The order may be made only upon motion for good causeshown and upon notice to the person to be examined and toall parties. The purpose of the good cause and notice is toprotect parties and the persons under their legal control againstan invasion of their right to privacy. In addition, the ordershall specify the time, place, manner, conditions, and scopeof the examination and the person(s) by whom it is to bemade (Pa. R. Civ. P. 4010(a)(3)). The person to be exam-ined has the right to counsel or other representation (Pa. R.Civ. P. 4010(a)(4)(i)). This discovery does not apply to anyactions which involve custody (Pa. R. Civ. P. 4010(a)(4)(ii)).

A copy of the detailed written report by the examiningphysician shall be delivered to the person examined settingforth its findings, including results of all tests made, diag-noses, and conclusions, together with like reports of all ear-lier examinations of the same condition (Pa. R. Civ. P.4010(b)(l)). If such a report is requested and received, therecipient must deliver, on request, a copy of all prior or laterexaminations made by its physician (Pa. R. Civ. P. 4010(b)(l)).

If a party fails to comply with a court-ordered physicaland/or mental examination, the court may, upon motion, imposesanctions for its failure to comply pursuant to Pa. R. Civ. P.4019.

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REQUESTING THE PRODUCTIONOF DOCUMENTS

Pursuant to Pennsylvania Rule of Civil Procedure 4009.1,a nearly verbatim reproduction of Fed. R. Civ. P. 34, a partymay request any other party to: produce and permit inspec-tion and copying of any designated documents that fall withinthe scope of discovery and that are in the possession, cus-tody, or control of the party served (Pa. R. Civ. P. 4009.1),or; to permit entry upon land or property in the possessionor control of the party served with the request for the pur-pose of inspecting, measuring, surveying, photographing,testing, or sampling the property or any designated objector operation thereon (Pa. R. Civ. P. 4009.1).

The request for production of documents must state theitems to be inspected, either by individual item or category,and must describe each item and category with reasonableaccuracy (Pa. R. Civ. P. 4009.11(b)). One can also requestpermission to enter upon real property (Pa. R. Civ. P. 4009.31).

A party may serve a request for production of documentsupon the plaintiff after the commencement of the action orupon any other party with or after service of the originalprocess (Pa. R. Civ. P. 4009.11(a)).

It is not required that the requested documents be both inthe possession and control of the party, as long as the docu-ments are under the party’s control. For example, severalcourts of common pleas have determined that medical records

CHAPTER 12 REQUEST FOR DOCUMENTS

are under the control of the party requested (Kohr Estate,71 D & C 2d 48 (1976)).

As in the case of other means of discovery, the requestfor production of documents may not be served in bad faithand must relate to a matter that is not privileged. The pro-duction of documents shall not require making an unrea-sonable investigation by a party or witness or cause unreasonableannoyance, embarrassment, oppression, burden, or expense(Pa. R. Civ. P. 4011).

RESPONDING TO A REQUEST FORDOCUMENTS

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

If a party fails to respond to the request for production ofdocuments, the requesting party may move for sanctions underPa. R. Civ. P. 4019(a).

As in the case of the federal rules, an independent actioncan be entertained against a party for production of documentsand permission to enter upon land (Pa. R. Civ. P. 4009.32(a)).

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THE REQUEST FOR ADMISSIONSUnder Pennsylvania Rule of Civil Procedure 4014(a), a

party may serve upon any other party a written request foradmission, for purposes of the pending action only. Thismethod of discovery is designed to reduce trial time by elimi-nating or narrowing the issues and to clarify issues raisedin prior pleadings. It is not used to find facts, but to find outwhat issues in the case will be contested.

DRAFTING THE REQUEST FORADMISSIONS

The request is limited to those matters within the scopeof the discovery rules. The request can relate to statementsor opinions of fact or of the application of law to fact, in-cluding the genuineness, authenticity, correctness, execu-tion, signing, delivery, mailing, or receipt of any document(Pa. R. Civ. P. 4014(a)). Copies of any such documents mustbe included with the request for admission, unless they havealready been furnished, or are available for inspection andcopying in the county where the action is pending (Pa. R.Civ. P. 4014(a)). Documents include contracts, agreements,deeds, mortgages, leases, receipts, checks, books of account,letters, maps, surveys, or memorandum.

The request can be served upon the plaintiff after com-mencement of the action or upon any other party with orafter service of original process (Pa. R. Civ. P. 4014(a)).

Each request must be separately set forth and is deemedadmitted unless a verified answer signed by the party, whichis not required by Fed. R. Civ. P. 36, or an objection signedby the attorney is served within thirty (30) days of service.If the request is served with the original process, the defen-dant need not file a response until forty-five (45) days afterservice (Pa. R. Civ. P. 4014(b)).

RESPONDING TO THE REQUEST FORADMISSIONS

The answer must deny or admit the matter or state why adenial or admission cannot be made. A party may admit anddeny part of any request (Pa. R. Civ. P. 4014(b)). An an-swering party cannot give lack of information as a reasonfor failure to admit or deny unless the party states it made areasonable inquiry and information known or readily avail-able to it is not sufficient to form a response.

If a party requesting admission does not feel that the an-swer is sufficient or that an objection is improper, it maymove the court for such a determination. If the court doesnot uphold an objection, it may order that the request beanswered. If the court rules on the sufficiency of the an-swer, it may order either that the matter be admitted or thatan amended answer by served. The court may also post-pone a determination of a request for admission to a pre-trial conference or a time designated prior to trial (Pa. R.Civ. P. 4014(c)).

Any matter admitted is conclusively established unlessthe court, on motion, permits withdrawal or amendment ofthe admission when the presentation of the merits of theaction are served thereby and the party obtaining the ad-mission fails to show that such action will prejudice it inmaintaining its action or defense (Pa. R. Civ. P. 4014(d)).

If, at a trial or hearing, a party who has requested admis-sions proves the matter that the other party has failed to ad-mit as requested, the court, upon motion, may order taxing ascosts the reasonable expenses incurred in making such proof,including attorney fees, unless the court finds the requestwas objectionable; the admission sought was of no substan-tial importance; the party failing to admit had reasonableground to believe it might prevail on the matter; or therewas other good reason to fail to admit (Pa. R. Civ. P. 4019(d)).

CHAPTER 13 REQUESTS FOR ADMISSIONS

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SETTLEMENT OFFERSPennsylvania prefers that the parties be able to reach a

settlement of their civil actions without the need of the casegoing to trial. Obviously, this helps to alleviate some of thecase load in the county courts that can cause a backlog ofpending cases. This policy is reflected in the case law thatprohibits offers of settlement or compromise to be admis-sible at a trial or hearing (Durant v. McKelvey. 187 Pa. Su-per. 461, 144 A.2d 527 (1987)). The reasoning behind thedecision is simple: if offers of settlement or compromisewould be admissible, it would lead to a lack of such offersbeing made by the parties. If you are representing a defen-dant it is also important to at least make an offer in order topreclude the imposition of delay damages.

The plaintiff in a civil action seeking monetary relief forbodily injury, death or property damage, may also requestthat damages for delay be added to the amount of compen-satory damages (Pa. R. Civ. P. 238(a)(1)). Damages for de-lay shall be awarded for the period of time from a date oneyear after the date that original process was served, up tothe time of the award, verdict, or decision (Pa. R. Civ. P,238(a)(2)(ii)). Any written notice must include the noticerequired pursuant to Pa. R. Civ. P. 238(c).

The period of time for which damages for delay is calcu-lated shall exclude the period of time after which the defen-dant has made a written offer of settlement in a specifiedsum with prompt cash payment to the plaintiff or a struc-tured settlement underwritten by a financially responsibleentity, and continued that offer in effect for at least ninety(90) days or until commencement of trial, if the offer is notaccepted and the plaintiff does not recover more than 125percent of the amount offered, or during which period theplaintiff caused delay of the trial (Pa. R. Civ. P. 238(b)).

The plaintiff must file a written motion for delay dam-ages within ten (10) days after the verdict or notice of thedecision (Pa. R. Civ. P. 238(c)). The defendant may answerthe motion within an additional ten (10) days of the filingof the motion (Pa. R. Civ. P. 238(c)(1)). The court may notrule on a motion for delay damages until all posttrial mo-tions have been decided (Pa. R. Civ. P. 238(c)(3)(i)).

In an action being heard by a board of arbitrators, theplaintiff must notify the defendant of the intention to re-quest delay damages at least twenty (20) days prior to thehearing. The defendant who objects to the request must submita statement within ten (10) days setting forth the objectionsand whether the defendant made an offer, including dateand amount of offer, in writing. The parties must also statetherein if any of the delay is attributable to the plaintiff.The board of arbitrators will then decide if the awarding ofdelay damages is appropriate (Pa. R. Civ. P. 238(d)(1)).

PART IV PRETRIAL, TRIAL AND POSTTRIAL

CHAPTER 14 SETTLEMENTS AND DISMISSALS

DISMISSALS, CONSENT DECREES,AND DISTRIBUTION OF FUNDS

A discontinuance is the exclusive method to voluntarilyterminate an action, in whole or in part, by the plaintiff be-fore commencement of the trial (Pa. R. Civ. P. 229(a)). Adiscontinuance may not be entered to less than all defen-dants, except upon written consent of all parties, withoutleave of court and after notice to all parties (Pa. R. Civ. P.229(b)). The court, upon petition and after notice, may strikeoff a discontinuance in order to protect the rights of anyparty from unreasonable inconvenience, vexation, harass-ment, expense, or prejudice (Pa. R. Civ. P. 229(c)).

Court approval of a discontinuance must be obtained inany action in which a minor is party (Pa. R. Civ. P. 2039(a)),an action for wrongful death in which a minor has a benefi-cial interest (Pa. R. Civ. P. 2206(a)), an action in which anincompetent is a party (Pa. R. Civ. P. 2064), or in class ac-tions (Pa. R. Civ. P. 1714(a)).

A judgment of non pros is a judgment entered on motionof the defendant, involuntarily terminating an action on theground of the plaintiffs delay in the prosecution of the ac-tion at any stage of the proceeding (Holliday v. Foster, 221Pa. Super. 388, 292 A.2d 438 (1972)). Entry of non pros isproper when a party to the proceeding has shown a want ofdue diligence in failing to proceed with reasonable prompt-ness, there has been no compelling reason for the delay, andthe delay has caused some prejudice to the adverse party,such as the death of or unexplained absence of material wit-nesses. Prejudice, however, for purposes of entering non pros,is not limited to the death or absence of material witnesses,but may also attach where, because of delay, there is loss ofdocumentary evidence or any substantial diminution in aparty’s ability to properly present its case (Neshaminy Con-structors, Inc. v. Plymouth Township, 132 Cmwlth. Ct. 229,572 A.2d 814 (1990)).

The usual means of having a request of non pros broughtto the attention of the court is through a petition and hear-ing thereon. Again, the procedure would be determined bylocal rules of court. However, where an action is not com-menced by a complaint (either by writ of summons or anappeal from a decision of a district justice), the prothono-tary, upon praecipe of the defendant, shall enter a rule uponthe plaintiff to file a complaint. If a complaint is not filedwithin twenty (20) days after service of the rule, the pro-thonotary, upon praecipe of the defendant, shall enter a judgmentof non pros (Pa. R. Civ. P. 1037(a)).

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

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In addition, a voluntary nonsuit shall be the exclusivemethod of termination of an action, in whole or in part bythe plaintiff during trial (Pa. R. Civ. P. 230(a)). There is nocourt approval necessary for the voluntary nonsuit as longas the plaintiff has not rested its case in chief (Pa. R. Civ. P.230(b)). Once all of the evidence has been presented, a plaintiffmay not take advantage of the voluntary nonsuit (Pa. R. Civ.P. 230(b)).

In a case involving only one defendant, at the close ofplaintiffs case on liability, and before any evidence on be-half of the defendant has been introduced, the court on oralmotion of a party, may enter a nonsuit if the plaintiff hasfailed to establish a right to relief. If the motion is not granted,the trial shall proceed. If the motion is granted, the plaintiffmay file a written motion for the removal of the nonsuit(Pa. R. Civ. P. 230.1). Also, a court may compel the plain-tiff in any action to produce all of its evidence upon thequestion of the defendant’s liability before it calls any wit-ness to testify solely to the extent of the injury or damages.The defendant’s attorney may then move for a nonsuit. Ifthe motion is refused, the trial shall continue (Pa. R. Civ. P.224). Motions for nonsuit may not be made against unrep-resented minors (Pa. R. Civ. P. 2035) or incompetents (Pa.R. Civ. P. 2035).

In an action in which plaintiffs have been joined in thealternative, a compulsory nonsuit shall not be entered againstany plaintiff until the close of the case of all plaintiffs; un-less the compulsory nonsuit is entered against all plaintiffs,the court, upon conclusion of the trial as to all parties, butnot before, may direct a verdict for any defendant againstany plaintiff who, upon all the evidence, regardless of theparty by whom offered, is not entitled to recover (Pa. R.Civ. P. 2231(g)).

In an action in which defendants have been joined in the

alternative, a compulsory nonsuit of any plaintiff in favorof any or all of the defendants shall not be entered prior tothe close of the case of all plaintiffs against all defendants;unless the compulsory nonsuit is entered against all plain-tiffs as to all defendants, the court, upon the conclusion ofthe trial as to all parties but not before, may direct a verdictin favor of each defendant as to whom the evidence, regard-less of the party by whom offered, does not warrant a find-ing by the jury that such defendant is liable jointly, severally,or separately to any plaintiff (Pa. R. Civ. P. 2231(h)).

When a plaintiff has joined two or more defendants andthe evidence does not justify a recovery against all of them,the court shall enter a nonsuit or direct a verdict in favor ofany defendant not shown to be liable either jointly, sever-ally or separately. Further, the action shall continue deter-mination of which the remaining defendants are jointly,severally, or separately liable with the same effect as thoughthe defendants found to liable were the only ones joined.As in other cases, the court may enter judgment, notwith-standing the verdict, in favor of or against any of such de-fendants (Pa. R. Civ. P. 2232(d)).

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

After a discontinuance or voluntary nonsuit, the plaintiffmay commence a second action upon the same cause of ac-tion upon payment of the costs of the former action (Pa. R.Civ. P. 231(a)). A plaintiff may not commence a second ac-tion upon the same cause of action after the entry of a com-pulsory nonsuit (Pa. R. Civ. P. 231(b)).

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PREPARATION OF WITNESSESA subpoena is an order of the court commanding a per-

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

The subpoena is issued by the prothonotary at the re-quest of a party (Pa. R. Civ. P. 234.2(a)). A copy of the sub-poena may be served in the same manner as original serviceupon any adult in the commonwealth pursuant to Pa. R. Civ.P. 402(a), or by any form of mail requiring a return receipt,with postage prepaid and restricted delivery. Service is completeupon delivery of the mail to the defendant or any of thepersons referred to in Pa. R. Civ. P. 402(a)(2) (Pa. R. Civ. P.234.2(b)). Service of the subpoena may be made by ordi-nary mail and must contain two copies of the Notice andAcknowledgment prescribed by Pa. R. Civ. P. 234.9, and aself-addressed, stamped envelope (Pa. R. Civ. P. 234.2(c)).However, no bench warrant may be issued and no adjudica-tion of contempt may be made for nonappearance of a wit-ness served by ordinary mail, unless the witness has returneda signed acknowledgment (Pa. R. Civ. P. 234.5(a)).

A party must also include with the subpoena, the fee forone day’s attendance and round-trip mileage, which shallbe tendered upon demand at the time the person is servedwith the subpoena. If a subpoena is served by mail, a checkin the amount of one day’s attendance and round-trip mile-age shall be enclosed with the subpoena (Pa. R. Civ. P. 234.2(c)).

The manner of requiring a party to attend a hearing ortrial is somewhat different from that of witnesses. A partymay compel the attendance of another party or officer ormanaging agent thereof for trial or hearing by serving uponthat party a notice to attend. The notice shall be served rea-sonably in advance of the date upon which attendance isrequired. The notice may also require the party to producedocuments or things (Pa. R. Civ. P. 234.3(a)). If the atten-dance of another party is not required, a party may compelthe production of documents or things by the other party byserving upon that party a notice to produce (Pa. R. Civ. P.234.3(b)).

Service of the notice to attend and a notice to produce isaccomplished by leaving a copy for or mailing a copy to theparty at his or her address or to its attorney, of record (Pa.R. Civ. P. 440(a)). If there is no attorney of record, serviceis achieved within the county by leaving a copy for or mail-

CHAPTER 15 TRIAL TECHNIQUES

ing a copy to the party at the residence or place of businessof that party (Pa. R. Civ. P. 440(a)).

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

If a witness fails to comply with a subpoena, the courtmay issue a bench warrant and, if the failure to comply iswillful, may adjudge the witness to be in contempt, exceptwhen service of the subpoena is by mail (Pa. R. Civ. P. 234.5(a);If a party fails to comply with a subpoena, a notice to at-tend, or a notice to produce, the court may enter any orderimposing sanctions authorized under Pa. R. Civ. P. 4019(c)and if the failure to comply is in bad faith, the court mayimpose on that party the reasonable expenses incurred bythe opposing party by reason of such delay or bad faith,including attorney fees. If the failure is willful the court,after hearing, may adjudge the party to be in contempt (Pa.R. Civ. P. 234.5(b)).

THE JURY PROCESSParties to a civil action have a constitutional and a statu-

tory right to a jury trial (Pa. Const. Art. I § 6; 42 Pa. C. S. A.§ 5104(a)). The constitutional guarantee only applies in thosecases where the matter of right to a jury trial was establishedat the time the constitution was enacted (William GoldmanTheaters. Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 (1961)).

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

There is no right to trial by jury in divorce proceedings,but either party in a divorce or annulment may request acourt to have a jury trial as to issues of fact, unless it wouldbe prejudicial to public morals (23 Pa. C. S. A. § 3322). Inaddition, support and custody proceedings are not subjectto trial by jury, although in matters of determining pater-nity, the defendant does have a right to a jury trial (Com-monwealth v. Dillworth. 431 Pa. 479, 246 A.2d 859 (1968)).

In any action in which the right to jury trial exists, thatright shall be deemed waived unless a party files and servesa written demand for a jury trial not later than twenty (20)days after service of the last permissible pleading. The de-mand shall be made by endorsement on a pleading or by a

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separate writing (Pa. R. Civ. P. 1007.1(a)). Where an appealis taken from an award in compulsory arbitration and a jurytrial has not theretofore been demanded, the right to a jurytrial shall be deemed waived unless the appellant endorsesa demand for a jury trial on its appeal, or unless the appel-lee files and serves a written demand for a jury trial notlater than ten (10) days after being served with the notice ofappeal (Pa. R. Civ. P. 1007.1(b)). The request for jury trialis generally placed in the complaint; many times in the sameparagraph as the request for relief.

A demand for a trial by jury may not be withdrawn with-out the consent of all parties who have appeared in the ac-tion (Pa. R. Civ. P. 1007.1(c)(1)). A demand for a jury trialon behalf of a party shall be deemed withdrawn if, at thetime a case is called for trial, that party without satisfactoryexcuse fails to appear, or appears but is not ready. Any otherparty appearing and ready who has not already demanded atrial a jury shall forthwith demand a trial by jury or shall bedeemed to have waived the same (Pa. R. Civ. P. 1007.1(c)(2)).

Even in cases where, historically, the parties would beentitled to a jury trial, the case may be referred to compul-sory arbitration (42 Pa. C. S. A. § 7361). Pennsylvania Rulesof Civil Procedure 1301 et seq. govern compulsory arbitra-tion. The deciding factor in determining whether a case isreferred to compulsory arbitration depends upon the amountin controversy. The amount is determined by the size of thecounty in which the action is pending.

Every citizen of voting age is qualified to be a juror, un-less unable to read, write, speak, and understand the En-glish language or is incapable, by reason of mental or physicalinfirmity or has been convicted of a crime punishable byimprisonment for more than one year and has not been granteda pardon or amnesty therefrom (42 Pa. C. S. A. § 4502). Thejury selection list is composed of all voter registration listsin the county and may be supplemented by additional sources,such as telephone directories, tax assessment, or school census(42 Pa. C. S. A. § 4521(a)).

The civil jury will consist of twelve members. Each partyshall be entitled to four peremptory challenges to prospec-tive jurors, which are exercised in turn beginning with theplaintiff and following in the order in which the party wasnamed or became a party to the action. In order to achieve afair distribution of challenges, the court in any case mayallow additional peremptory challenges and allocate themamong the parties. Where there is more than one plaintiff ordefendant or more than one additional defendant, the courtmay consider any one or more of such groups as a singleparty (Pa. R. Civ. P. 221). The peremptory challenge allowsa party to strike off a juror without cause.

In addition to peremptory challenges, a party has an un-limited number of challenges for cause. Grounds to chal-lenge a juror for cause would include situations where ajuror has expressed an opinion as to the case, has shownprejudice towards a party, or knows one of the parties.

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TRIAL AND POSTTRIAL MOTIONSPosttrial motions are not available in every action and

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

Posttrial relief may not be granted unless the groundstherefore, if then available, were raised in a pretrial pro-ceeding or by motion, objection, point for charge, requestfor findings of fact or conclusions of law, offer of proof, orother appropriate method at trial. The motion shall state howthe grounds were asserted in pretrial proceedings or at trial.Grounds not specified in the motion are deemed waived,unless leave is granted upon cause shown to specify addi-tional grounds (Pa. R. Civ. P. 227.1(b)). The reasons for re-lief must be specified in the motion, along with the reliefrequested. A party may seek relief in the alternative (Pa. R.Civ. P. 227.1(d)).

A party must file posttrial motions within ten (10) daysafter the verdict, discharge of the jury because of inabilityto agree, or nonsuit in the case of a jury trial; or notice ofnonsuit or the filing of the decision or adjudication in thecase of a trial without jury or an equity trial (Pa. R. Civ. P.227.1(c)). If one party has filed a motion for posttrial relief,any other party may file a posttrial motion within ten (10)days after the filing of the first posttrial motion (Pa. R. Civ.P. 227.1(c)). A copy of the posttrial motion shall be promptlyserved upon every other party to the action as well as to thetrial judge (Pa. R. Civ. P. 227.1(f)).

THE PRELIMINARY STEPS IN THE APPEALNo order of a court may be appealed until it has been

entered upon the appropriate docket in the lower court (Pa.R. App. P. 301(a)). With minor exceptions spelled out in thestatute, any appeal must be taken within thirty (30) days(42 Pa. C. S. A. 5571(b)). The time period applies to allappeals and is uniform throughout the state and the courtsystem. Prior to appealing any order, it must first be deter-mined what kind of order was entered by the court and towhich court the appeal is to be made. As previously stated,appeals from the courts of common pleas can go to eithercommonwealth court or superior court, depending upon thecase. Generally, those cases in which the commonwealth ora political subdivision is a party will go to the common-wealth court criminal cases and civil cases involving onlyprivate parties will go to the superior court,

The Rules of Appellate Procedure set forth two types ofappeals: interlocutory appeals and appeals from final orders.Interlocutory appeals are further divided into appeals as ofright and by permission. Pursuant to Pa. R. App. P. 311, aninterlocutory appeal may be taken as of right from:

CHAPTER 16 POSTTRIAL PRACTICE

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

2. An order confirming, modifying or dissolving, or re-fusing to confirm, modify or dissolve an attachment,custodianship, receivership, or similar matter affectingthe possession or control of property except for attach-ments pursuant to the Pennsylvania Divorce Code;

3. An order granting, continuing, modifying, refusing, ordissolving injunctions or refusing to dissolve or modifyinjunctions, except for those pursuant to the Pennsyl-vania Divorce Code;

4. An order in a civil action or proceeding awarding anew trial;

5. An order directing partition;6. An order that is made appealable by statute or gen-

eral rule;7. An order in a civil action or proceeding sustaining the

venue of the matter or jurisdiction over the person orover real or personal property if the plaintiff, petitioner,or other party benefitting from the order files of recordwithin ten (10) days after the entry of the order an electionthat the order shall be deemed final or the court statesin the order that a substantial issue of venue or juris-diction is presented; or

8. An order in a civil action or proceeding changing venue,transferring the matter to another court of coordinatejurisdiction, or declining to proceed in the matter on thebasis of forum non conveniens or analogous principles.

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

Not every case has an automatic right of appeal to theSupreme Court of Pennsylvania, and in those cases, the partyfiles a Petition for Allowance of Appeal and a reproducedrecord (Pa. R. Civ. P. 1112). The Petition for Allowance ofAppeal is governed by Pa. R. App. P. 1115 and shall con-tain the following:

1. A reference to the official and unofficial reports of theopinions delivered in the courts below, if any, and ifreported. Any such opinion shall be appended.

2. The text of the order in question, or the portions thereofsought to be reviewed, and the date of its entry in theappellate court below.

3. The questions presented for review, expressed in theterms and circumstances of the case, but without un-necessary detail. The statement of questions presentedwill be deemed to include every subsidiary questionfairly comprised therein. Only the questions set forthin the petition, or fairly comprised therein, will ordi-narily be considered by the court in the event an ap-peal is allowed.

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4. A concise statement of the case containing the factsmaterial to a consideration of the questions presented.

5. A concise statement of the reasons relied upon for al-lowance of an appeal.

6. There shall be appended to the petition a copy of anyopinions delivered relating to the order sought to bereviewed, as well as all opinions of government unitsor lower courts in the case, and, if reference thereto isnecessary to ascertain the grounds of the order, opin-ions in companion cases.

7. There shall be appended to the petition the verbatimtexts of the pertinent provisions of constitutional pro-visions, statutes, ordinances, regulations or other similarenactments that the case involves.

THE APPELLATE BRIEFThe appellate brief and reproduced record are governed

by Pennsylvania Rule of Appellate Procedure 2101 et seq.The appellant’s brief consists of a statement of jurisdiction,the order or other determination in question, a statement ofthe questions involved, the statement of the case, the sum-mary of argument, the argument, a short conclusion statingthe precise relief sought, and the opinions and pleadingsthat are relevant to the questions presented on appeal (Pa.R. Civ. P. No 2111(b)).

The brief of the appellee, except as otherwise prescribedby the appellate rules, need only contain a summary of ar-gument and the complete argument for the appellee. How-ever, the appellee may add a counterstatement of the questionsinvolved and a counterstatement of the case. Unless the ap-pellee does so, or the brief of the appellee otherwise chal-lenges the questions involved or the statement of the caseas stated by appellant, it will be assumed the appellee issatisfied with them, or with such parts of them as remainunchallenged (Pa. R. Civ. P. No 2112).

The appellant may file a brief in reply to matters raisedby the appellee’s brief not previously raised in the appellant’sbrief, and if the appellee has cross-appealed, the appelleemay file a similarly limited brief in reply to the response ofthe appellant to the issues presented by the cross-appeal (Pa.R. Civ. P. No 2113(a)).

A party also files a reproduced record of the pleadingsand filings in the lower court along with the brief. The re-produced record, which can be either separate from or at-tached to the brief depending upon the size of the record,shall contain all relevant docket entries, any relevant relatedmatter as well as any relevant portions of the pleadings, chargeor findings, any other parts of the record to which the par-ties wish to direct the particular attention of the appellatecourt (Pa. R. Civ. P. No 2152(a)).

The schedule for filing briefs will be set by the protho-notary of the appellate court. It is based upon the time esti-mated when the case will be argued or submitted to the court(Pa. R. Civ. P. No 2185(b)). If there is no date fixed by theprothonotary, the appellant’s brief is to be filed within forty(40) days of the filing of the record of the lower court. The

appellee must serve its brief within thirty (30) days afterservice of the appellant’s brief. A reply brief must be filedwithin fourteen (14) days after service of the preceding brief(Pa. R. Civ. P. No 2185(a)).

Twenty-five (25) copies of the brief and reproduced recordshall be filed with the prothonotary of the Supreme Court,fifteen (15) copies to the prothonotary of the commonwealthcourt, and ten (10) copies to the prothonotary of the supe-rior court. In addition, two (2) copies are to be served uponevery party (Pa. R. Civ. P. No 2187(a)). If an appellant failsto file the brief within the required time, the appellee maymove for dismissal of the matter. If the appellee fails to fileits brief in the required time, it will not be permitted to beheard at oral argument (Pa. R. Civ. P. No 2188).

If the appeal is complicated or the reproduced record islarge, it may be better to use one of the service companiesthat will produce the brief and/or reproduced record for useon appeal. Although the law office will have to prepare thesubstantive work, the service company will make sure thatthe brief conforms to the rules and will also file and servethe brief and/or reproduced record.

FINAL PROCEDURESOnce a judgment has been rendered in favor of a plain-

tiff, it is up to the plaintiff to collect on the judgment Com-monly, this will be accomplished by the defendant payingthe amount of the judgment to the plaintiff. At that time, theplaintiff would file a praecipe with the prothonotary requestingthat the docket be marked as satisfied and costs paid. How-ever, it is not always that easy and further action may benecessary to enforce the judgment.

The prothonotary is specifically authorized to enter judgment(42 Pa. C. S. A. § 227.4), and must do so upon praecipe of aparty upon a jury verdict, if no timely posttrial motions arefiled (Pa. R. Civ. P. 227.4(1)), or when a court grants ordenies relief, but does not itself enter judgment or ordersthe prothonotary to do so (Pa. R. Civ. P. 227.4(2)).

It is also important to have the judgment placed on thejudgment docket, which is also maintained at the prothono-tary’s office. This is to enable the prevailing party to main-tain its rights to the loser’s property against subsequent thirdparties who may also have a claim against the debtor’s property.

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

A judgment is enforced by a writ of execution (Pa. R.Civ. P. 3102). The execution is commenced by filing a praecipefor writ of execution with the prothonotary of any county inwhich the judgment has been entered (Pa. R. Civ. P. 3103(a)).The writ of execution is served by the sheriff (Pa. R. Civ. P.3108). In addition, the executing party may direct the sher-iff to take manual possession or custody of any tangible personalproperty upon which he or she has made a levy. The sheriff

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may require a bond or security for the cost of retaining theproperty (Pa. R. Civ. P. 3109).

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

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

There may be times when the party with the judgmentdoes not know what property is owned by the debtor, and inthose circumstances, the plaintiff, before or after the issu-ance of a writ of execution, may, for the purpose of discov-ery of assets of the defendant, take the testimony of anyperson, including a defendant or garnishee, upon oral ex-amination or writ interrogatories. The rules governing suchdiscovery are those governing pretrial discovery (Pa. R. Civ.P. 3117(a)). The plaintiff, may on petition of the plaintiff,after notice and hearing, seek the court to enter an orderagainst any party or person to aid in the execution. The courtmay enter an order on any of following:

1. Enjoining the negotiation, transfer, assignment, or otherdisposition of any security, document of title, pawn ticket,instrument, mortgage or document representing any prop-erty interest of the defendant subject to execution;

2. Enjoining the transfer, removal, conveyance, assignment,or other disposition of property of the defendant sub-ject to execution;

3. Directing the defendant or any other party or person totake such action as the court may direct to preservecollateral security property of the defendant levied uponor attached, or any security interest levied upon or at-tached;

4. Directing the disclosure to the sheriff of the where-abouts of property of the defendant;

5. Directing that property of the defendant that has beenremoved from the county or concealed for the purposeof avoiding execution shall be delivered to the sheriffor made available for execution; and

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

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