[30 Pa.B. 5924]
[Continued from previous Web Page] Rule 290. Eminent Domain.
(a) The initial petition presented to the court in any eminent domain proceeding shall cite the statute under which the petition is filed.
(b) Viewers shall be sworn to discharge the duties of their appointment as viewers with impartiality and fidelity according to the best of their learning and ability, upon their initial appointment to the board of view, and thereafter need not be sworn in any proceeding referred to them.
(c) A hearing shall be held at the time fixed by the viewers, and the witnesses shall be directed by the viewers or by the attorneys to appear at a time certain.
(d) Stenographic records of hearings will not be made except in unusual cases where, for good cause shown, the court has ordered the testimony to be taken stenographically or electronically.
Rule 430. Service by Publication.
The Lehigh Law Journal shall be the legal periodical for the publication of all notices.
Rule 1007. Commencement of Action--Track Assignment.
(a) Every complaint or other document initiating a civil action, except a praecipe for a writ of summons, shall be accompanied by an information and track assignment request form in a format approved by this court. The court administrator's office shall notify opposing counsel or unrepresented parties of the judge assignment and track assignment. Within ten (10) days of service of said notice any party objecting to the track assignment shall notify the court administrator's office and all other counsel and unrepresented parties of the objection. Failure to resolve the track assignment conflict after preliminary conference between counsel, unrepresented parties, and the court administrator's office, will result in the conflict being referred to the assigned judge for disposition.
(b) The caseflow management for each track, including discovery deadlines and anticipated disposition dates, will be determined by the court.
Rule 1012. Appearances.
(a) The first pleading filed by any party in a case shall have endorsed thereon an address in the commonwealth at which all papers and notices thereafter may be served upon that party. The first pleading filed by an attorney on behalf of a party shall constitute the attorney's entry of appearance for that party, and shall have endorsed thereon the attorney's supreme court identification number and an address in the commonwealth at which all papers and notices thereafter may be served upon said attorney on behalf of that party. Subsequent filings by other counsel on behalf of that party shall not have the effect of an entry of appearance unless a praecipe for appearance is filed with the clerk of courts.
(b) A change of address of an attorney of record may only be accomplished by filing a written request with the clerk of courts, directing that the clerk's attorney file be updated to reflect the attorney's change of address. The request must be on the attorney's letterhead, shall be signed by the attorney, and shall contain the attorney's full name, Supreme Court identification number and new address. When a law firm changes its address, each attorney employed by said firm shall comply with this procedure.
Rule 1018.1. Notice to Defend.
The following shall be designated in the notice to defend contained in a complaint filed by a plaintiff and a complaint filed by a defendant against an additional defendant as the organization from whom legal referral can be obtained, as required by Pa.R.C.P. 1018.1:
Bar Association of Lehigh County
Lawyer Referral Service
1114 Walnut Street
Allentown, Pennsylvania 18102
Telephone No. 610-433-7094Rule 1021. Claim for Relief--Accounting.
If the court orders a party to account under Pa.R.C.P. 1021, the procedure shall be governed by Leh.R.C.P. 1530.
Rule 1028. Preliminary Objections.
(a) Preliminary objections shall be filed with the clerk of courts, served upon the adverse parties or their counsel, and a time-stamped copy thereof shall be delivered to the court administrator's office for delivery to the assigned judge.
(b) Preliminary objections must be accompanied by a brief in support thereof unless factual issues are raised, in which case the procedure set forth in (d) shall be followed. Failure to file a brief may result in automatic dismissal of the preliminary objections.
(c) Within twenty (20) days after service of the preliminary objections, the adverse parties or their counsel shall file an amended pleading or a responsive brief with the clerk of courts, serve same upon the opposing parties or counsel, and deliver a copy to the court administrator's office for delivery to the assigned judge.
(d) Preliminary Objections raising factual issues
(1) Preliminary objections which asserts facts not otherwise of record, including but not limited to, an objection under Pa.R.C.P. 1028(a)(1), (5), or (6) shall be endorsed with a notice to plead pursuant to Pa.R.C.P. 1361. A time-stamped copy thereof shall be delivered to the court administrator's office.
(2) Any response thereto shall be filed with the clerk of courts, and a time-stamped copy delivered to the court administrator's office. If an answer is filed and served, the moving party or any other party wishing to do so, shall supplement the record with the necessary facts by affidavit or deposition within sixty (60) days from the filing of the answer, unless a hearing is required by the court.
(3) Within fourteen (14) days from the completion of the supplementation of the record, whether by the adverse party's failure to file an answer to the preliminary objections or by affidavit, deposition, or hearing the moving party shall file a brief in accordance with these rules. The opposing party shall file its brief within fourteen (14) days thereafter.
Rule 1034. Judgment on the Pleadings.
A motion for judgment on the pleadings shall set forth the reasons upon which it is based, and shall be filed and answered in conformity with Leh.R.C.P. 206.1.
Rule 1035. Motion for Summary Judgment.
A motion for summary judgment shall be filed and argued as generally set forth in Leh.R.C.P. 206.1.
Rule 1037. Judgment by Default.
(a) Where a rule to show cause has been obtained or a demand made or a notice to plead given under any applicable court rule or statute, the neglect of which entitles a party to a judgment, the clerk of courts shall enter such judgment upon praecipe by the party not in default, which praecipe shall set forth all the facts substantiating the present right to said judgment and include a certification as to the addresses of the parties. Assessment of damages shall be in accordance with Pa.R.C.P. 1037.
(b) A petition to open or strike off a judgment shall not operate to stay proceedings unless the court, in its discretion, grants a stay of proceedings. As a condition of such stay, the court may require the posting of security, whether or not execution has issued.
Rule 1037.1. Liability for Costs.
(a) Liability to the clerk of courts, sheriff, or other official for costs shall rest primarily on the party or attorney incurring such costs, and such primary liability shall continue until the costs are paid, notwithstanding any award of costs allowed by rule of law or order of court.
(b) No case shall be marked ''settled'' or ''discontinued'' unless and until all record costs have been paid in full.
Rule 1037.2. Bill of Costs. Taxation.
(a) A bill of costs for attendance of witnesses, service of subpoenas, and other expenses recoverable according to law or rule of court must be filed in the office of the clerk of courts, as may be appropriate, within ten (10) days after the trial, continuance or failure to reach the case, and a copy thereof shall be forthwith served upon all adverse parties or their attorneys. In equity hearings and trials without jury where an adjudication or decision is delayed by the court, a bill of costs will be deemed timely if filed within ten (10) days after entry of the adjudication or decision on the docket.
(b) Bills of costs shall bear the correct caption of the action and must contain the names of witnesses, the days of attendance, the number of miles traveled by each witness, and sufficient information to support all items of expense for which recovery is sought. The bill of costs shall be verified by the party or counsel of record, who shall state under oath, that the expenses listed are accurate and correct and that the witnesses listed were actually present in court on the days alleged and that in the opinion of the deponent their testimony was material.
(c) A party upon whom a bill of costs has been served may, within ten (10) days, file exceptions thereto and demand that the same be taxed by the clerk of courts. Other items of cost may be taxed in the same manner. The clerk of courts shall thereupon fix a time and place for hearing, which hearing shall be not later than thirty (30) days after demand therefor. Each party shall be given at least ten (10) days notice of the hearing. Prior payment of costs shall not constitute a waiver of the rights conferred by this rule.
(d) Either party may appeal from the decision of the clerk of courts to the court within ten (10) days after notice of the decision. The appeal shall contain a specification of the items to which exception is taken and the reasons in support thereof and shall be accompanied by a praecipe placing the matter on the next available argument list. Copies of the appeal papers shall be served upon the adverse parties or their attorneys.
(e) Execution on a judgment will not be stayed pending proceedings to tax the costs or during an appeal therefrom unless the court shall so order, but any sum or sums collected on execution which represent items of costs which are then in dispute shall be paid to the clerk of courts, as may be appropriate, to be held pending the final outcome of the proceedings to tax such costs.
Rule 1054. Specific Averments--Action in Ejectment.
If the action in ejectment is commenced by filing a praecipe for a writ of summons, there shall be filed with the praecipe a copy of the description of the land for insertion in the writ.
Rule 1081. Concealment of Property; Examination of Defendant--Action of Replevin.
Where a petition is presented to the court for examination of a defendant pursuant to Pa.R.C.P. 1081, the court may order the taking of the testimony by oral examination or written interrogatories as prescribed by the rules relating to Depositions and Discovery, Pa.R.C.P. 4001, et. seq. The clerk of courts shall issue as of course a subpoena to testify.
COMPULSORY ARBITRATION Rule 1301. Compulsory Arbitration--Scope.
(a) All civil actions which are subject to compulsory arbitration under the Judicial Code, in which the amount in controversy, exclusive of interest and costs, is Fifty Thousand ($50,000.00) Dollars or less, shall be submitted to compulsory arbitration.
Comment: Actions in ejectment, unless involving title to real property, are subject to compulsory arbitration.
(b) The amount in controversy shall be the largest amount claimed in any single count of the pleadings by any party.
(c) The court, upon the written motion of any party, or upon its own motion, may require that a case for which a trial is demanded be first submitted to compulsory arbitration pursuant to these rules.
Rule 1302. Compulsory Arbitration--Arbitrators.
(a) Each attorney who is a member of the bar of this court, who maintains his or her principal office within Lehigh County, Pennsylvania, and who expresses a willingness to serve, shall be eligible for inclusion on the list of arbitrators.
(b) Each attorney who satisfies the requirements of Rule 1302(a) may submit his or her name to the court administrator who shall, with the approval of the administrative judge-civil division, assign said attorneys to various permanent arbitration panels. The composition of the panels may be changed from time to time as may be deemed appropriate by the court administrator, with the approval of the administrative judge-civil division.
(c) Each panel so comprised shall consist of five (5) attorneys, three (3) of whom shall be the assigned arbitrators, and two (2) of whom shall be substitutes. The chairperson of each panel shall have been actively engaged in the practice of law in this court for at least three (3) years. Should a substitution of an assigned arbitrator be necessary, he or she shall arrange for one of the two substitutes to be present at the arbitration. Should neither of the two substitutes of the panel be able to sit, the assigned arbitrator may arrange for a substitute from a list of court-approved permanent substitute arbitrators. A panel member who cannot sit and who has made the proper arrangements for a substitute shall notify, in writing, the other panel members and counsel for all parties or the parties themselves if unrepresented by counsel. In addition, a copy of this writing shall be mailed to the court administrator.
(d) Each arbitrator will be compensated such rate as may be set by the court from time to time by administrative order.
Rule 1302.1. List of Arbitrators.
(a) The court administrator shall prepare and maintain a permanent roster of available arbitrators which shall be designated ''List of Arbitrators'' and shall contain the names of all attorneys who have met the qualifications set forth in Leh.R.C.P. 1302(a), supra, together with the date of admission to the bar of this court.
(b) The court administrator shall prepare and maintain a permanent roster of available chairpersons of boards of arbitrators which shall be designated ''List of Chairpersons of Boards of Arbitrators'' and shall contain the names of all attorneys who have met the qualifications of Leh.R.C.P. 1302(b), supra.
(c) Both of the lists mentioned in (a) and (b) above shall be organized in chronological order according to the date on which each attorney has become eligible for inclusion therein with the attorney having the earliest date of eligibility listed first. In the event two or more attorneys have become eligible on the same date, they shall be listed in alphabetical order.
(d) As each attorney listed on the ''List of Arbitrators'' completes three (3) years of active practice in this court, the name shall be added to the ''List of Chairpersons of Boards of Arbitrators'' and the date of the listing noted behind the name.
(e) An attorney whose name is contained on either or both of the lists above-mentioned may resign from either or both lists by letter addressed to the court administrator, whereupon the court administrator shall note the resignation and date thereof on the appropriate list or lists behind the attorney's name.
(f) The court administrator shall also note all deletions from the aforementioned lists whether by death, removal of principal office from Lehigh County, cessation of active practice in this court, suspension from practice or disbarment and the date thereof.
Rule 1302.2. Special Lists.
The court may from time to time establish special lists of arbitrators who by virtue of seniority and experience in specific fields of the law are particularly qualified to serve as arbitrators in particular types of cases as for example, medical and legal malpractice cases, products liability cases and construction contract cases.
Rule 1302.3. Composition of Boards of Arbitrators.
(a) Each board of arbitrators shall be composed of one attorney from the ''List of Chairpersons of Boards of Arbitrators'' and two attorneys from the ''List of Arbitrators''.
(b) Substitutions shall be made from the appropriate list or lists by the court administrator.
(c) Appointments to boards of arbitrators shall be made by the court administrator in the order in which the names appear on the respective lists.
(d) If an appointed arbitrator cannot serve at the time and place designated, the attorney shall, unless prevented by matters beyond his or her control, notify the court administrator at least five (5) days in advance of the date upon which the hearing has been scheduled. That attorney shall then be appointed an arbitrator at the first opportunity thereafter. If any arbitrator fails to give notice as aforesaid or simply fails to appear at a scheduled arbitration, his or her name shall be passed over and that attorney shall not receive another appointment until his or her name reappears for appointment in due course. If any arbitrator is guilty of such a failing a second time, the attorney's name shall be removed from the appropriate list or lists and he or she shall not thereafter serve as an arbitrator until reinstated upon application to the court.
Rule 1302.4. Notification of Appointment of Arbitrators.
The court administrator shall mail a copy of the appointment of a board of arbitrators to each arbitrator appointed, each attorney of record and in the event a party is not represented by an attorney to such party at his last known address by regular mail and file of record proof of such notice.
Rule 1302.5. Compensation of Arbitrators.
(a) For the first hearing, the arbitrators shall receive compensation as set by administrative order of this court.
(b) Where more than one hearing becomes necessary, additional compensation may be allowed at the discretion of the court upon petition and cause shown by the chairperson on behalf of all of the members of the board. Such a petition shall be presented to the administrative judge of the civil division of the court.
(c) No compensation shall be allowed when settlement occurs prior to the hearing, when counsel and the arbitrators report for a hearing and a settlement is announced or when no testimony is received at the hearing. In such cases, however, that panel of arbitrators shall be assigned another case at the first opportunity.
Rule 1303. Hearing.
(a) Arbitrations will be held on the date and at the time and place prescribed by the court administrator.
(b) The court administrator shall notify all attorneys of record of the date, time and place of the hearing by mail. If a party is not represented by counsel of record, that party shall be given notice by regular mail addressed to the party's last known address. The court administrator shall file of record proof of notice as aforesaid. Notice shall be given to the parties or their attorneys of record at least thirty (30) days prior to the scheduled hearing.
The court administrator shall, by regular mail, also notify all arbitrators assigned to an arbitration panel of the dates on which the arbitration panel is assigned to hear arbitration cases and the location of the arbitration hearings.
In addition, prior to the scheduled arbitration date, the court administrator shall, by mail, send all of the arbitrators assigned to the arbitration panel a list containing the names of the cases to be heard, the names of the parties and the names of all counsel for the parties. In the event any of the arbitrators believes that he/she has a conflict of interest in connection with hearing any particular case, the arbitrator shall immediately notify the court administrator in writing that the arbitrator believes there is a conflict of interest and the reasons therefore, with a copy to all counsel or unrepresented parties involved in the particular case.
(c) On the date of the arbitration hearing, all counsel should check in with the representative of the court administrator's office located at the site of the arbitration. Cases in which all parties have checked in and have indicated they are ready to proceed will be assigned to a panel for hearing, by the representative of the court administrator's office after consultation with the panel chairman. All cases on the list are intended to be reached, and all counsel should be prepared to commence their case at the time they are directed to report for the arbitration.
(d) In the event that the panels of arbitrators are unable to reach all of the cases scheduled for arbitration on a particular day, the arbitration hearing for those cases that are not reached shall be continued by the court administrator's office to the morning of the next available date for arbitrations generally. In the event that an arbitration hearing has been commenced but is not concluded on the day scheduled for the arbitration hearing, the arbitration hearing shall be continued to the morning of the next available date that the same members of the arbitration panel which commenced hearing the case are scheduled and available to hear arbitration cases.
(e) The written notice provided for above shall include the following statement:
''This matter will be heard by a board of arbitrators at the time, date and place specified but, if one or more of the parties is not present at the hearing, the matter may be heard at the same time and date before a judge of the court without the absent party or parties. There is no right to a trial de novo on appeal from a decision entered by a judge.''Rule 1303.1. Continuances.
(a) Any application for a continuance of a scheduled arbitration hearing shall be presented on the approved continuance request form to the administrative judge, civil division, or his designee, at least five (5) days prior to the arbitration date. The continuance request must be on a form approved by the court, and shall contain all of the reasons for the request for continuance. Amplification of reasons, by letter or in person, will not be considered by the court. The application for continuance will not be considered unless it contains the position of opposing counsel, either by signature of the opposing counsel or by verification of the counsel presenting the request for continuance. Good cause shall be required for continuance of an arbitration hearing. The filing of a pre-trial motion after a case has been scheduled for arbitration will not result in an automatic continuance of the arbitration hearing.
(b) If the application for continuance of a scheduled arbitration hearing is granted, the court administrator shall select and set a date certain for the arbitration hearing to be held. Counsel may select a date certain for the continuance of the arbitration hearing from a list of available dates provided by the court administrator's office, provided that all counsel agree to said date. A selection of a date certain certifies to the court that the date has been cleared with opposing counsel and the court administrator. Continuances will not be granted from a date certain selected by counsel.
(c) If an application for continuance is not made at least five (5) days prior to the arbitration hearing, then a continuance shall only be granted by the court for good cause which was not apparent five (5) days prior to the date set for the arbitration hearing.
Rule 1303.2. Scheduling of Arbitration Hearing: Notice.
(a) A matter subject to compulsory arbitration shall be listed for hearing by (1) praecipe of any party when the pleadings are closed or the time for filing pleadings has ended, and there are not any outstanding motions requiring disposition by the court, or by (2) the court administrator under circumstances hereafter described.
(b) By Praecipe of Any Party
A party may, following compliance with the discovery notice herein required, request that a matter be scheduled for arbitration by using forms provided by the clerk of courts, civil division for such purpose.
(1) A party shall not praecipe a case for arbitration until the party has served upon opposing counsel and any unrepresented parties a notice of intent to request arbitration. Within twenty (20) days after the date of the notice, a party desiring any additional discovery shall notify other counsel and unrepresented parties of the scope and nature of such additional discovery. Discovery must be completed within 120 days from the giving of notice to pursue additional discovery.
(2) If no discovery request is sent within twenty (20) days after the date of the notice of intent to arbitrate, a party may praecipe the case for arbitration.
(3) If a discovery request is made, a party may praecipe the case for arbitration upon completion of discovery or the expiration of 120 days from the giving of the notice to pursue discovery, whichever comes first, unless the time for discovery is extended by the court.
(4) A party shall not be required to serve notice of intent to request arbitration if the matter has been pending for a period one (1) year or more.
(5) Notwithstanding the foregoing, discovery in cases involving district justice appeals shall be completed within sixty (60) days from the filing of the appeal.
(c) As Set by the Court Administrator
The court administrator may schedule matters for arbitration under the following circumstances:
(1) All matters that are appeals from a district justice decision may be scheduled for arbitration hearing sixty (60) days after the appeal is taken, unless there are outstanding pleadings, motions, petitions, or other matters that require court disposition. The parties to a district justice appeal shall file pleadings and complete discovery within sixty (60) days of the date of the appeal.
(2) All other matters which are subject to compulsory arbitration may be scheduled for arbitration hearing no later than one (1) year after the commencement of the action, unless there are outstanding motions, petitions, or other matters that require court disposition. The parties to an action which is subject to compulsory arbitration shall file all pleadings and complete all discovery within one (1) year of the date of the commencement of the action, unless the time for completion of discovery has been extended by the court upon motion of any party.
(d) In the event one or more parties do not appear for the scheduled arbitration, the remaining parties may consent to having the judge assigned to monitor the case hear the matter on the same date as the scheduled arbitration hearing. It shall be discretionary with the judge whether to hear the case as requested.
(e) The filing of dispositive motions within thirty (30) days of the scheduled arbitration hearing shall not be grounds for continuance of the hearing unless good cause is shown.
Rule 1304. Conduct of Hearing, General.
(a) The board of arbitrators shall have no power to allow amendment of pleadings, allow the addition or substitution of parties or rule on preliminary objections, motions for judgment on the pleadings or motions for summary judgment.
(b) Procedural rules described in Pa.R.C.P. 1304 shall apply to the conduct of arbitration hearings.
(c) Parties may present agreements on awards to be entered by the arbitrators orally on the date of hearing, or in writing prior thereto.
(d) If it appears at the arbitration hearing that any defendant has not been properly served, judgment shall be entered for that defendant.
(e) If it appears at the arbitration hearing that a complaint has not been filed, judgment shall be entered for the defendant.
(f) If it appears at the arbitration hearing that a defendant has appealed a district justice judgment, and has not served a rule to file a complaint upon the plaintiff, an award shall be entered in favor of the plaintiff.
Rule 1305. Conduct of Hearing, Evidence.
(a) Initially all rulings on objections to evidence or on other issues which arise during the hearing shall be made by the chairperson of the board of arbitrators, and such rulings shall be final unless one of the other arbitrators disagrees with the same. In the latter instance, the arbitrators shall consult and vote, and the final ruling shall be that of the majority.
(b) Following the hearing, the chairperson of the board of arbitration may release to the respective parties the exhibits introduced.
(c) Evidentiary rules described in Pa.R.C.P. 1305 shall apply to the conduct of arbitration hearings.
Rule 1306. Award--Delay Damages.
(a) Arbitrators may consider the subject of damages for delay pursuant to Pa.R.C.P. 238 after a decision had been reached on the merits and has been entered on the award form.
(b) After the amount of the award has been so entered, the board shall make a determination as to damages for delay in accordance with Pa.R.C.P. 238 by accepting a sealed envelope containing a stipulation setting forth whether an offer was made in writing and if so, the amount as well as the date of the offer.
(c) If damages for delay under Pa.R.C.P. 238 are awarded, the amount thereof shall be added to the principal amount awarded, but shall be separately stated on the award.
Rule 1307. Costs.
Witness fees and costs shall conform to fees and costs pertaining to civil actions in the Court of Common Pleas of Lehigh County.
Rule 1308. Appeals from Arbitration.
All appeals from arbitration must be timely filed with the clerk of courts accompanied by a check in the amount of $600.00 or 50% of the amount in controversy, whichever is less. A copy of the appeal shall be provided contemporaneously by appellant to the court administrator's office.
Rule 1507. Action in Equity. Notice by Publication.
When notice by publication is given under Pa.R.C.P. 1507, the advertisement shall contain the caption of the action, a statement that an action in equity has been commenced by the named plaintiff against the named defendant concerning the subject matter briefly described, and a statement that the named person, if the name is known, or all persons interested in the subject matter, are required to appear in the action or a default decree may be entered which will affect their interests.
Rule 1521. Action in Equity. Indexing of Decree.
Decrees, nisi or final, shall also be entered on the ejectment and miscellaneous index of the court.
Rule 1530. Action in Equity. Accounting.
(a) When the court has entered a final order directing one party to account to another, the party directed to account shall state the account and file a written statement thereof in the office of the clerk of courts within thirty (30) days after notice of the entry of said order of court, unless the court shall for cause shown allow a longer time.
(b) The statement of account shall be signed and verified by the accountant, and it shall contain the following:
(1) The dates and sources of all items of debit;
(2) The dates and descriptions of all items of credit, including the names of all persons to whom disbursements were made and the purposes thereof;
(3) A recapitulation showing the total debits, the total credits, and the balance remaining.
(c) Upon filing the account, the accountant shall forthwith serve a copy thereof upon all other parties in the same manner in which a pleading may be served under Pa.R.C.P. 440.
(d) Upon the filing of exceptions, the court may refer the exceptions to an auditor that the court may appoint or may direct that the exceptions be disposed of by placing same on an argument or hearing list.
(e) If the party directed to file an account shall fail to do so within thirty (30) days or such longer period as the court may fix, the court may, on petition of any other party, find that the party directed to file an account is in contempt of court, and/or appoint an auditor to state the account upon the basis of such evidence as may be submitted to the auditor.
(f) If an auditor is appointed pursuant to subparagraph (d) or (e) of this rule, the following procedures shall govern:
(1) The auditor shall give two weeks notice in writing to the parties or their attorneys of record of the time and place fixed for hearing the matter.
(2) Testimony taken by the auditor at the hearing shall be recorded stenographically. The notes of the testimony shall not be transcribed unless exceptions are filed to the auditor's report.
(3) Within forty-five days after the conclusion of the hearing the auditor shall file a written report which insofar as it is practicable shall contain (i) a history of the proceedings before the auditor, (ii) findings of fact, numbered consecutively, (iii) a concise discussion of the evidence presented and the legal issues involved, (iv) conclusions of law, numbered consecutively, and (v) a statement of the account.
(4) Upon filing of the report the auditor shall serve a copy of the same on the parties in accordance with Pa.R.C.P. 440.
(5) Exceptions to the report of the auditor may be filed by any party within twenty (20) days after service of the auditor's report. If timely exceptions are filed, the court shall schedule and hear argument on same and shall enter such order or judgment as may be appropriate. If timely exceptions are not filed, the court shall enter judgment for the amount, if any, determined by the auditor to be due.
(6) The court shall determine the compensation and reimbursement for expenses to be allowed the auditor and stenographer, and shall direct that such items be taxed in whole or in part against the fund available for distribution or against any party or parties to the action as may be just and equitable in the circumstances. Upon the appointment of an auditor the moving party shall promptly deposit with the clerk of courts the sum of $250.00 for the compensation and expenses of the auditor and stenographer, and the moving party shall deposit such additional sums for such purpose as the court may from time to time direct. Any sum so deposited which is not required for such purposes shall be refunded to the moving party upon the entry of the final order or decree.
Rule 1534. Action in Equity. Accounting by Fiduciaries.
(a) When a receiver, assignee or other fiduciary files an account, notice shall be given of the intention to apply for confirmation thereof not less than twenty (20) days in advance of such application. Such application may be made pursuant to Leh.R.C.P. 206.1.
(b) Notice to all parties in interest shall be given by certified mail unless the court otherwise directs and proof of service shall be filed with the application for confirmation.
Rule 2039. Settlement, Compromise and Discontinuance of all Non-Death Action Cases in Which Minors Have an Interest.
(a) All actions in which a minor has an interest, except wrongful death and survival actions governed by Leh.R.C.P. 2206, shall not be settled, compromised, or discontinued until entry of a decree in the civil division or orphans' court division of this court as hereinafter provided, upon petition in accordance with this rule.
(b) If suit has been instituted in the civil division of this court, all petitions for settlement, compromise or discontinuance of a minor's action shall be handled by the administrative judge of the orphans' court division, unless the civil judge assigned to the case directs otherwise.
(c) If no suit has been instituted and if the minor is a Lehigh County resident, all petitions for settlement, or compromise of a minor's claim shall be handled by the administrative judge of the orphans' court division.
(d) Contents of Petitions
(1) Regarding non-structured settlements:
i. the minor's name, date of birth and where and with whom s/he currently resides;
ii. the names and addresses of both of the minor's parents;
iii. delineation of the factual circumstances of the case; i.e. date of accident/injury, how it occurred; identification of defendants, etc.
iv. the nature and extent of the minor's injuries; the current diagnosis of and prognosis for the minor's condition.
v. the gross amount of the settlement and whether or not it represents policy limits.
vi. if the settlement amount proposed to the minor is a portion of a gross figure allocated among others injured in the same accident (even if adults) the names of those persons, their relationship to the minor, the nature and extent of their injuries and the amount of their proposed recoveries.
vii. the total amount of medical costs incurred and how paid.
viii. the nature and amount of any subrogation or Department of Public Welfare lien proposed to be paid from the settlement proceeds.
ix. the amounts of the proposed legal fee and of costs proposed to be paid to counsel from the settlement proceeds.
x. explanation of and justification for any amount proposed to be paid from the settlement proceeds to a parent or parents of the minor.
xi. whether or not it is anticipated that a judicial determination of capacity will be necessary when the minor attains majority.
xii. the name and address of a bank or credit union doing business in Lehigh County where amounts payable during minority will be placed in an interest-bearing savings account, money-market account, or certificate of deposit entitled in the minor's name alone; or the name and date of appointment of a corporate guardian of the estate who will administer the minor's funds.
xiii. whether or not non-disclosure of the terms is a condition of the settlement; and if so, a request that the petition and decree be sealed.
(2) Regarding structured settlements:
i. All of the information required by subsection (1) of this section (d) that is factually applicable except the gross settlement figure, which shall not appear in the petition; and
ii. the name of the company issuing the annuity that will fund the structure together with its rating by 2 of the following: A.M. Best Company; Standard & Poor; Moody; or Duff & Phelps.
iii. the same information as in subsection (ii) above, regarding any guarantors of the structure.
iv. the duration for which the future payments are guaranteed, and the names and relationship to the minor of the contingent beneficiaries of the guaranteed payments.
v. that the right to alter the contingent beneficiary designation (in the manner prescribed by the issuer) is reserved to the minor upon attainment of majority.
vi. the amount, if any, of cash presently payable to the minor.
(e) Exhibits to Petitions for Approval of Settlement (Structured and Non-Structured)
(1) An itemization of costs to be reimbursed (including orphans' court filing fees to be incurred by compliance with section (g) of this rule and regarding Filing of Petitions and Decrees).
(2) A copy of contingency fee agreement.
(3) Written evidence of Department of Public Welfare or any other subrogation lien proposed to be paid from the settlement proceeds.
(4) A medical report or opinion that contains a description of injury, course of treatment, recovery and prognosis.
(5) Consent and joinder of a parent and natural guardian of the minor who is not a petitioner; or, proof of service of a copy of the petition upon such parent.
(6) A copy of the release.
(f) Disposition of Petitions: In all cases whether or not suit has been instituted.
(1) Submission
A copy of the petition, with exhibits shall be submitted (by mail, telefax or hand delivery) to the orphans' court counsel. After review, the orphans' court counsel will contact counsel for petitioner to schedule a date for presentation. The petition shall not be filed prior to presentation to the court.
(2) Presentation
Formal presentation is required in all cases unless excused by the court. Attendance at presentation is required of the minor and both parents unless the non-appearing parent:
i. is a co-petitioner; or
ii. has signed a consent and joinder to petition; or
iii. has been served with a copy of the petition and notice of its presentation; or
iv. is unable to be located after efforts deemed satisfactory to the court.
(3) Accompanying Documents
The petition, in addition to the requisite exhibits, shall, when submitted, be accompanied by:
i. a proposed decree which:
* approves the settlement as set forth in the petition;
* directs that the petitioner's counsel deposit proceeds payable during minority to an interest-bearing restricted account in the minor's name, at a federally insured bank or credit union doing business in Lehigh County.
* directs the distribution of future payments, if any, due under terms of an annuity contract.
* names the contingent beneficiaries of guaranteed payments, reserving the right to alter the designation to the minor upon attainment of majority.
* directs that a time-stamped copy of the decree filed in the civil division be filed with the clerk of orphans' court division to establish a separate orphans' court file and number.
* provides for the filing of affidavits of deposit, affidavits of payment, and/or affidavits of purchase with the clerk of the orphans' court division under the orphans' court caption and number.
* authorizes plaintiff's counsel to mark the civil docket, if any, settled, discontinued and ended.
ii. if non-disclosure of terms is a condition of settlement, a separate confidentiality order.
iii. if the settlement is structured, a letter from counsel disclosing the gross settlement figure and cost of the annuity funding the structure.
(g) Filing of Petitions and Decrees
(1) In all cases where suit has been instituted, upon entry of a decree after formal presentation, counsel for petitioner shall:
i. file the original decree, petition and exhibits with the clerk of courts; and
ii. file as many time-stamped copies of the decree as there are minor recipients of settlement proceeds (structured or non-structured) with the clerk of the orphans' court division in order to obtain a separate orphans' court file number for each minor; and
iii. obtain from the clerk of the orphans' court division as many separate affidavits of deposit as there are minors receiving cash payments during minority; and
iv. file with the clerk of the orphans' court division a separate affidavit of deposit evidencing establishment of a restricted account for each minor recipient of current settlement proceeds under the orphans' court caption and file number; and/or
v. file with the clerk of the orphans' court division a sworn acknowledgment by an authorized official of the issuer that an annuity contract was purchased to provide the payments set forth in the decree approving a structured settlement.
(2) In all cases where no suit was instituted and the minor is a Lehigh County resident, upon entry of a decree after formal presentation, counsel for petitioner shall:
i. file a separate original decree, petition and exhibits regarding each minor, with the clerk of the orphans' court division; and
ii. obtain from the clerk of the orphans' court division an affidavit of deposit for each such separate set of pleadings filed per (i) above; and
iii. file with the clerk of the orphans' court division, a separate affidavit of deposit evidencing establishment of a separate restricted account for each minor recipient of current settlement proceeds and a certification of compliance with order establishing restricted account; and/or
iv. file with the clerk of the orphans' court division, a sworn acknowledgment by an authorized official of the issuer that an annuity contract was purchased to provide the payments set forth in the decree approving a structured settlement.
Rule 2064. Compromise, Settlement, Discontinuance, or Distribution--Incapacitated Persons.
The procedure upon the presentation of a petition under Pa.R.C.P. 2064 shall be as prescribed by Leh.R.C.P. 2039.
Rule 2205. Proof of Service.
Proof of service shall be as provided by Pa.R.C.P. 405(c).
Rule 2206. Petitions for Approval of Settlement, Compromise, Discontinuance and Judgement in Wrongful Death and/or Survival Actions; Allocation of Proceeds; Notice to the Department of Revenue; Contents and Disposition of the Petition; Filing of Decrees.
(a) All wrongful death actions in which a minor or incapacitated person has an interest shall not be settled, compromised, or discontinued until entry of a decree by the civil division or orphans' court division of this court as hereinafter provided, upon petition in accordance with this rule.
(b) No survival action may be settled, compromised, or discontinued without judicial approval pursuant to petition as hereinafter provided.
(c) If suit has been instituted, all such petitions shall be handled by the judge of the civil division to whom the case has been assigned. If no such assignment has been made, the petition shall be handled or referred as the administrative judge of the civil division shall direct.
(d) If no suit has been instituted, all such petitions shall be handled by the administrative judge of the orphans' court division.
(e) Contents of Petition
Any such petition shall contain the following information:
1. Delineation of the factual circumstances of the case, i.e., date of the accident/injury, how it occurred, and identification of the defendant(s).
2. Type of injury suffered together with some medical documentation to advise the court of the extent and effect of the injuries.
3. How long the decedent lived after the accident.
4. What portion of the settlement proceeds are to be attributed to wrongful death and what portion to the survival action, together with supporting facts (e.g.; pain and suffering; pecuniary loss etc.)
5. A list of any unpaid creditors of the decedent, and how they will be paid.
6. Whether the decedent died testate or intestate, and a list of the intestate heirs, including adult children, and whether the decedent's children are also children of the surviving spouse.
7. Whether the decedent's intestate heirs are the same as his or her testate heirs and, if not, a list of the testate heirs and their relationship to decedent.
8. To what extent the surviving spouse's $30,000.00 intestate share threshold has been satisfied excluding settlement proceeds.
9. Whether or not decedent's parent(s) or spouse has forfeited his or her intestate share pursuant to 20 Pa.C.S. § 2106.
10. The date of the birth of any intestate heir who is a minor.
11. The facts establishing pecuniary loss suffered by adult children claiming a share of wrongful death proceeds; or an averment that an adult child is not claiming any interest in wrongful death proceeds.
12. The date of appointment and name of the guardian of the estate of any heir who has been adjudged incapacitated.
13. If the settlement is structured, the information required by Leh.R.C.P. 2039(d)(2) (regarding compromise of minor's actions).
(f) Exhibits to Petitions
The petition shall have attached to it as exhibits, the following items:
(1) An itemization of the costs to be reimbursed (including orphans' court filing fees to be incurred if copies of the order will need to be filed in orphans' court division as required by section (i) of this rule regarding Filing of Final Decrees).
(2) A copy of the contingency fee agreement signed by clients and counsel.
(3) Birth certificate for any beneficiary who is a minor.
(4) Consents and joinders of an adult child not claiming a portion of wrongful death proceeds, or proof of service of petition and proposed decree upon them.
(5) Guardian's certificate evidencing the appointment of a guardian of the estate of a distributee who is a minor or an incapacitated person.
(6) Regarding non-Lehigh County estates:
i. a short certificate that is not more than sixty (60) days old evidencing petitioner's appointment as personal representative.
ii. a copy of the inventory of the decedent's estate.
iii. a copy of decedent's will.
iv. notices of claims against the estate filed of record.
(7) Written evidence of Department of Public Welfare or any other subrogation liens proposed to be paid from settlement proceeds.
(8) Written response from the Office of Chief Counsel on behalf of the Department of Revenue approving or disapproving the proposed allocation of proceeds between the wrongful death and survival actions.
(9) A copy of the release.
(g) Disposition of Petitions: In all cases, whether or not suit has been instituted
(1) Submission (uncontested allocation)
If the petition has been approved by the Department of Revenue, or if no response has been received within 20 days of service of a copy of the petition upon the Department through the office of chief counsel, a photocopy of the petition, proposed decree and exhibits shall be submitted (by mail, telefax, or hand delivery) to the orphans' court counsel with a notation as to the civil division judge, if any, to whom the case is assigned. After review, the orphans' court counsel will request counsel for petitioner to submit the original pleadings (together with as many photocopies of the decree as there are counsel of record) for transmittal to the appropriate civil division or orphans' court division judge for action. The petition shall not be filed prior to submission as provided herein.
(2) Accompanying Documents
The petition, in addition to the requisite exhibits, shall be accompanied by:
i. a proposed decree, which:
* apportions the proceeds, fees, and costs between the wrongful death action and the survival action;
* directs that the share of a minor be deposited to a restricted, interest-bearing, account in a federally insured bank or credit union doing business in Lehigh County;
* directs that the share of an adjudicated incapacitated person be awarded to the guardian of his/her estate;
* directs the personal representative to promptly file a supplemental inventory and inheritance tax return that both reflect receipt of survival action proceeds with the register of wills of the county of decedent's domicile.
ii. if non-disclosure of terms is a condition of settlement, a separate confidentiality order.
iii. if the settlement is structured, a letter from counsel disclosing the gross settlement figure and the cost of the annuity funding the structure.
(3) Presentation (uncontested allocation)
Unless requested by counsel or required by the court, no hearing will be held, nor formal presentation required, where the petition for approval and allocation is uncontested by any party in interest or by the Department of Revenue. Counsel for petitioner will be contacted when a decree is entered at which time counsel shall file the pleadings in accordance with section (i) of this rule (regarding Filing of Final Decrees).
(h) Contested Allocations of Proceeds
(1) Submission of Petition and Rule
In all cases, whether or not suit has been instituted, if the petition has not been approved by the Department of Revenue and a hearing is needed on the issue of allocation of proceeds, the original petition and exhibits shall be submitted to the orphans' court counsel (as per subsection (1) of section (g) above) by mail or hand delivery together with a proposed decree (as per subsection (2) of section (g) above) and with a rule returnable which establishes a hearing date and directs service.
(2) Filing of Petition and Rule
i. Civil division--if suit has been commenced, the rule, petition, and proposed decree shall be filed with the clerk of courts-civil division.
ii. Orphans' court division--if no suit has been commenced, the rule, petition, and proposed decree shall be filed with the clerk of the orphans' court division.
(3) Service of rule, petition and proposed decree
i. The Department of Revenue--the rule, petition, and proposed decree shall be served by certified mail, return-receipt requested upon the office of chief counsel, Pennsylvania Department of Revenue at least 10 days prior to the date for hearing on allocation set by the rule returnable.
ii. Defendants--Counsel for defendants, or unrepresented defendants shall be served with the rule, petition, and proposed decree by ordinary, first class mail at least 10 days prior to the date for hearing on allocation set by the rule returnable.
(4) Entry of Decree
After hearing on the issue of allocation of proceeds, the court shall issue a decree approving settlement and directing distribution of proceeds, which shall be filed by counsel for the petitioner in accordance with section (i) of this rule (regarding Filing of Final Decrees).
(i) Filing of Final Decrees
(1) In all cases where suit has been instituted, upon entry of a decree by the court, counsel for petitioner shall:
i. file the original decree and petition plus exhibits (if not previously filed per section (h) above) with the clerk of courts - civil division; and
ii. if the decedent's estate was raised in Lehigh County, file, pursuant to 20 Pa.C.S.A. § 3323 (b) (3), a time-stamped copy of the decree with the clerk of orphans' court division. (If there are minor and/or incapacitated distributees, see subsection (2) of this section (i), below).
(2) In all cases where there are minor or incapacitated distributees and the decedent's estate was raised in Lehigh County, upon entry of a decree by the court, counsel for petitioners shall:
i. file with the clerk of orphans' court division, a time-stamped copy of the signed decree, or if no civil suit was instituted, the original petition with exhibits and decree under the caption and file number of the decedent's estate; and
ii. obtain from the clerk of the orphans' court division, as many separate affidavits of deposit as there are minor distributees and/or as many guardian's inventory forms as there are incapacitated distributees whose guardians were appointed in Lehigh County; and
iii. file with the clerk of the orphans' court division, a separate affidavit of deposit evidencing establishment of a restricted account in the name of each minor distributee, using the caption and file number of the decedent's estate with each minor's name as a parenthetical reference; and/or
iv. file with the clerk of the orphans' court division a supplemental guardian's inventory disclosing receipt of settlement proceeds on behalf of each ward adjudicated incapacitated in Lehigh County, using the guardianship caption and file number; each such inventory to be accompanied by a copy of the decree directing distribution.
(3) In all cases where there are minor distributees (resident or non-resident) and/or incapacitated distributees (whose guardian was appointed in Lehigh County) and the decedent's estate was not raised in Lehigh County, upon entry of a decree by the court, counsel for petitioner shall:
i. file with the clerk of the orphans' court division as many clocked copies of the signed decree as there are minor distributees to obtain a separate orphans' court ''M'' file number for each minor; and
ii. obtain from the clerk of the orphans' court division, as many separate affidavits of deposit as there are minor distributees and/or as many guardian's inventory forms as there are incapacitated distributees whose guardians were appointed in Lehigh County; and
iii. file with the clerk of the orphans' court division a separate affidavit of deposit evidencing establishment of a restricted account for each minor distributee, using the minor's name as caption and the newly-assigned orphans' court ''M'' file number; and/or
iv. file with the clerk of the orphans' court division a supplemental guardian's inventory disclosing receipt of settlement proceeds on behalf of each ward adjudicated incapacitated in Lehigh County; each such inventory to be accompanied by copy of the decree directing distribution.
Rule 3110. Execution Against Contents of Safe Deposit Box.
Publication shall be as provided in Pa.R.C.P. 430(b).
Rule 3121. Stay of Execution.
(a) No stay of execution shall be granted under Pa.R.C.P. 3121(b) except on petition (without a rule) setting forth the grounds therefor, with notice, including a copy of the said petition, at least twenty-four (24) hours prior to the presentation thereof, said notice to set forth the time and place where the intended application is to be made; provided, however, that where manual seizure of personal property by the sheriff is imminent, the court may entertain a petition to stay execution in such manner and with such notice as it, in its discretion, may require.
(b) A petition for a stay of execution based upon misdescription of property shall contain a corrected description of the property which thereafter shall be conclusive upon the petitioner.
(c) If the petition for stay of execution is not prosecuted with diligence, the petition may be dismissed on motion of an opposing party.
(d) The allowance of a stay of execution involving perishable property under levy shall be conditioned upon the petitioner filing approved security for the full value of the property.
(e) Allowance of every stay of execution against real estate may also be conditioned upon the petitioner paying the advertising costs incurred in addition to the filing of a bond. If the petitioner is a lessee, the stay shall be conditioned upon payment for use and occupancy pending the stay.
Rule 3128. Notice of Sale--Personal Property.
In addition to the notice requirements of Pa.R.C.P. 3128(a), notice of sale of personal property shall be given by the sheriff sending a copy of the handbill to the defendant by regular mail addressed to the last known address at least six days prior to sale.
Rule 3129.2. Notice of Sale--Real Property.
The brief description of the property required to be set forth pursuant to Pa.R.C.P. 3129.2(b)(1) need not include the metes and bounds description set forth in the last recorded deed as long as the description sets forth the location of the property by street address and reference to tax map, block and lot number.
Rule 3136. Distribution of Proceeds.
(a) The sheriff shall, by regular mail addressed to their last known addresses, promptly send to all parties in interest a copy of the schedule of distribution stating the date on which it was filed.
(b) Any party filing exceptions shall mail copies of their exceptions to all parties in interest and serve an original and a copy of said exceptions on the sheriff.
Rule 3252. Writ of Execution. Money Judgment.
The office to be named in the notice shall be that designated by the court under Leh.R.C.P. 1018.1.
Rule 3256. Praecipe for Writ. Mortgage Foreclosure.
The praecipe for the writ of execution in an action of mortgage foreclosure shall have attached to it a description of the subject property.
Rule 4007.2. Depositions--Distant Witnesses.
(a) A motion to obtain leave of court to take depositions by oral examination, where such leave is required, shall follow the procedure set forth in Leh.R.C.P. 206.1 and shall contain the following:
(1) the name of the proposed witness;
(2) the time and place of the proposed deposition and the name of the officer before whom the depositions will be taken;
(3) the scope and purpose of the questioning;
(4) the reasons relied upon to support the request for oral examination; and
(5) a request for a subpoena or subpoena duces tecum, if necessary.
Rule 4008. Depositions by Oral Examination.
Unless leave of court is obtained or all parties agree otherwise, and excepting videotape depositions for use at trial, all depositions in cases filed with this court shall be taken in Lehigh County, Pennsylvania.
Rule 4017.1. Objections at Videotape Depositions.
The following shall govern the procedure for making objections during videotape depositions:
(a) When counsel makes an objection, counsel shall merely state the word ''objection'' and request that the video operator stop the videotape. Any arguments on objections shall be made on the written transcript but off camera.
(b) Once the video is stopped, counsel should first summarize the reasons for the objection in a word or phrase. Counsel may then proceed with argument on the transcript and off the camera or may merely state the summary grounds for the objection. Arguments should be brief, and should consist of no more than the reason for the objection, an answer to the reason for the objection, and brief rebuttal.
(c) Counsel shall review the transcript together before presentation to the trial judge to resolve whatever objections can be resolved. They should present to the judge a list by page and line of the objections that still need rulings.
(d) Prior to the playing of the videotape, the court shall advise the jurors of the procedure dealing with objections and instruct them to disregard the word ''objection'' when it is made. The videotape may then be played without interruption, except for segments stricken by the judge.
[Pa.B. Doc. No. 00-1972. Filed for public inspection November 17, 2000, 9:00 a.m.]
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