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PA Bulletin, Doc. No. 03-1246

THE COURTS

PART I. GENERAL

[231 PA. CODE CH. 1000]

Amendment of the Explanatory Comment to Rule 1023.1 et seq.; No. 392 Civil Procedural Rules; Doc. No. 5

[33 Pa.B. 2976]

Order

Per Curiam:

   And Now, this 10th day of June, 2003, the Explanatory Comment to Pennsylvania Rule of Civil Procedure 1023.1 et seq. is amended to read as follows.

   Whereas prior distribution and publication of these amendments would otherwise be required, it has been determined that the amendments are of a perfunctory nature and that immediate promulgation of the amendments is required in the interest of justice and efficient administration.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b) and shall be effective immediately.

   (Editor's Note:  This Order amends the Explanatory Comment that appears at 32 Pa.B. 2315, 2316 (May 11, 2002).)

EXPLANATORY COMMENT

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II.  Practice under the rule

   The rule leaves for resolution on a case-by-case basis, considering the particular circumstances involved, the question as to when [a motion for violation of] Rule 1023.1 should be [served and when, if filed, it should be decided] invoked. Ordinarily the [motion] written notice and demand for withdrawal or correction of the paper should be served promptly after the inappropriate paper is filed, and, if delayed too long, may be viewed as untimely. In other circumstances, it should not be served until the other party has had a reasonable opportunity for discovery. Given the ''safe harbor'' provisions discussed below, a party cannot delay [serving its Rule 1023.1 motion] invoking Rule 1023.1 until conclusion of the case (or judicial rejection of the offending contention).

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   The rule provides that requests for sanctions must be made as a separate motion, i.e., not simply included as an additional prayer for relief contained in another motion. The motion for sanctions cannot be filed until at least 28 days [(or such other period as the court may set) after being served] after service of a written notice and demand, upon the party whose conduct is claimed to violate the rule, that the offending document or portion of the document be withdrawn or appropriately corrected. If, during this period, the alleged violation is corrected, as by withdrawing (whether formally or informally) some allegation or contention, the motion may not be filed with the court. These provisions are intended to provide a type of ''safe harbor'' against motions under Rule 1023.1 in that a party will not be subject to sanctions under Rule 1023.1 on the basis of another party's motion unless, after [receiving the motion] having been served with the written notice and demand, it refuses to withdraw that allegation or contention or to acknowledge that it does not currently have evidence to support it. The timely withdrawal of an allegation or contention will protect a party against a motion for sanctions.

   To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the ''safe harbor'' period begins to run only upon service of the [motion] written notice and demand. In most cases, however, counsel should give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve [a Rule 1023.1 motion] the written notice and demand.

III.  Sanctions

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   The sanction should be imposed on the persons--whether attorneys, law firms, or parties--who have violated the rule or who may be determined to be responsible for violation. The person signing, filing, submitting, or advocating a document has a nondelegable responsibility to the court and, in most situations, is the person to be sanctioned for a violation. Absent exceptional circumstances, a law firm is to be held also responsible when one of its partners, associates, or employees is determined to have violated the rule. Since such a motion may be filed only if the offending paper is not withdrawn or corrected within 28 days after service of the [motion] written notice and demand, it is appropriate that the law firm ordinarily be viewed as jointly responsible under established principles of agency.

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By the Civil Procedural Rules Committee

R. STANTON WETTICK, Jr.,   
Chair

[Pa.B. Doc. No. 03-1246. Filed for public inspection June 27, 2003, 9:00 a.m.]


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