THE COURTS
LUZERNE COUNTY
Order Amending Rules of Civil Procedure 1038, 1301, 1308 and Rescinding Rules of Civil Procedure 1302(g) and 1311
[39 Pa.B. 2703]
[Saturday, May 30, 2009]
Order Now this 7th day of May, 2009, it is hereby Ordered and Decreed, that the Order of March 11, 2009, order amending Luzerne County rules of civil procedure 1038, 1301, 1308 and rescinding Luzerne County rules of civil procedure 1302(g) and 1311, is amended as follows:
1. The rules shall be effective thirty (30) days after publication in the Pennsylvania Bulletin.
2. Luzerne County rules of civil procedure 1038, 1301, 1308 and rescinding Luzerne County rules of civil procedure 1302(g) and 1311 has been published in the Pennsylvania Bulletin Volume 39, Number 13, March 28, 2009, at page 1523.
3. Luzerne County District Court Administrator is Ordered to file seven (7) certified copies of this Order, along with a diskette with the Administrative Office of Pennsylvania Courts, two (2) certified copies of this Order with a diskette to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin, one (1) certified copy to the Civil Procedural Rules Committee, one (1) certified copy to the Judicial Council of Pennsylvania Statewide Rules Committee and one (1) copy to the Luzerne Legal Register for publication in the next issue.
4. It is further Ordered that this Order shall be kept continuously available for public inspection and copying in the Prothonotary's Office.
By the Court
CHESTER B. MUROSKI,
President Judge
AMENDMENTS TO LUZERNE COUNTY RULES OF CIVIL PROCEDURE
MARCH 11, 2009 I. Rule 1038 is amended in its entirety to provide as follows:
Rule 1038. Trial without jury. Appeals from tax assessment of real estate.
The following provisions shall govern the trial of appeals from the tax assessment of real estate:
1. Definitions.
(a) Rsidential property is defined as a single-family residence or a multi-family residential structure with an owner occupied unit and containing no more than four units.
(b) Non-Residential is defined as all other property.
2. Mediation.
All assessment appeals shall be referred by the Prothonotary to the court administrator for mediation. A report of mediation shall be filed in all cases.
3. Trial List. Case at issue. Certificate of Readiness.
(a) After the expiration of sixty (60) days from the date of service of the original appeal petition, and after the pleadings in the case are closed and whether or not mediation has yet occurred, any of the parties may place the case at issue by filing a certificate of readiness with the Prothonotary. The certificate shall classify the case as an assessment appeal and identify the nature of property as residential or non-residential as defined herein.
(b) The court administrator shall compile a trial/conciliation list for each term designated for the trial of assessment appeals. Separate trial/conciliation lists shall be compiled for residential and non-residential property.
(c) The court administrator shall notify the parties at least ninety (90) days prior to the beginning of the trial term that the appeal is scheduled to be conciliated/tried during that term.
4. Conciliation.
(a) All appeals shall be conciliated before trial by a conciliation judge or special master assigned thereto.
(b) At the time of conciliation, all parties or their counsel shall be present with full authority to effectuate a settlement of the appeal. Note: Parties and counsel are advised to pay particular attention to the notice of conciliation. In appropriate cases, the conciliation and trial may be scheduled on the same day. In such instances, the parties must appear at the conciliation ready to move directly into trial if the conciliation does not result in settlement.
(c) If any party fails to comply with the provisions of this local rule, the court may impose sanctions or the special master may include in the report a recommendation for the imposition of appropriate sanctions, including but not limited to, attorneys' fees and costs against the party or parties failing to comply.
5. Pre-Trial Statement.
(a) Sixty days prior to the date scheduled for conciliation of tax assessment appeal, the appellant shall distribute to all counsel of record, or if counsel have not entered an appearance, on the party(ies), and to the court administrator a pre-trial statement. The pre-trial statement shall incorporate the following:
(i) a description of the use of the real estate and the nature of the real estate.
(ii) a list of all persons who will give testimony in the trial of this appeal.
(iii) a list of all exhibits which the party intends to use at trial.
(iv) any report, including without limitation an expert report or appraisal, of any person or entity who has been retained, employed, or consulted by the parties, who will give testimony in the trial of this appeal.
(b) Twenty days prior to the date scheduled for conciliation of a tax assessment appeal, the appellee(s) shall distribute to all counsel of record, or if counsel have not entered an appearance, on the party(ies), and to the court administrator a pre-trial statement. The pre-trial statement shall incorporate the following information or documents:
(i) a description of the use of the real estate and the nature of the real estate.
(ii) a list of all persons who will give testimony in the trial of this appeal.
(iii) a list of all exhibits which the party intends to use at trial.
(iv) any report, including without limitation an expert report or appraisal, of any person or entity who has been retained, employed, or consulted by the parties, who will give testimony in the trial of this appeal.
(c) All interested parties whose interests are aligned with the appellant shall distribute their Pre-Trial Statement in accordance with subsection (a) herein. All interested parties whose interests are aligned with the appellee(s) shall distribute their Pre-Trial Statement in accordance with subsection (b) herein.
(d) The failure to comply with subsections (a), (b) and (c) of this local rule shall result in appropriate relief, which may include the exclusion or limitation at trial of testimony or evidence which was not provided in the pre-trial statement or a recommendation for the imposition of attorneys' fees and costs against the party or parties failing to comply.
6. Trial By Special Master.
(a) If a special master is assigned for trial, the special master shall schedule a trial and shall provide notice of the trial to all party(ies) and/or counsel of record.
The trial shall be open to the public and recorded by a court reporter.
The special master, in the discretion of the special master, may continue the trial.
(b) Report of Special Master.
Following the trial, the special master shall file a written report and recommendation which may be in narrative form stating the reasons for the recommendations and shall include a proposed final order. The special master shall serve a copy of the report and recommendation on all counsel of record or the party(ies), if not represented, by first class United States mail and the court administrator.
(c) Objections To Report and Recommendation of Special Master.
The parties shall file objections, if any, to the report and recommendation in writing within twenty days of the date of mailing of the report and recommendation by the special master. Objections must be accompanied by a certification of counsel that the trial transcript, or necessary portions thereof, has been ordered from the court reporter. Copies of the objections and certification shall be served on all counsel of record or if counsel have not entered their appearance on the party(ies), the special master and the court administrator.
(d) Briefs on Objections.
Within twenty days of the date on which the transcript is filed of record, the moving party shall file a brief in support of objections and shall serve a copy on all counsel of record or if counsel have not entered their appearance on the party(ies) and the court administrator. The brief in support of objections shall refer to transcript page numbers where possible. The moving party's failure to file a brief in support of objections shall constitute a waiver of all issues which could have been raised therein.
(e) Opposing Briefs.
Within twenty days after the moving party has filed a brief in support of objections, responding parties shall file their briefs in opposition to objections and serve a copy on all counsel of record or if counsel have not entered their appearance, on the party(ies), and the court administrator.
(f) Argument.
After the date set for briefs in opposition to objections has passed, the moving party shall notify the court administrator that the matter is ripe for argument by filing a notice that matter is ready for argument with the court administrator on the civil argument request form which shall be made available at the court administrator's office. The moving party shall serve a copy of this notice on all counsel of record or if counsel have not entered their appearance on the party(ies). Upon the filing of this notice, the court shall schedule oral argument if requested by a party; otherwise, the matter shall be decided upon briefs.
(g) Final Order.
Following oral argument the court may enter an appropriate final order. In the event that none of the parties file objections as described above to the report and recommendation, the court shall enter a final order consistent with the report, recommendation and proposed final order submitted by the special master.
II. Rule 1301 is amended in its to entirety to provide as follows:
Rule 1301. Arbitration. Scope.
The following civil actions shall first be submitted to compulsory arbitration and heard by a board of arbitrators:
All civil actions and actions in replevin in which the amount in controversy, exclusive of interest and costs, is Fifty Thousand ($50,000.00) Dollars or less shall be submitted to and heard and decided by a Board of Arbitrators pursuant to and in accordance with the provisions of 42 Pa.C.S. § 7361 and Pa.R.C.P. 1301 et seq.
III. Rule 1302(g) Assessment Appeals is rescinded.
IV. Rule 1308 is amended in its entirety to provide as follows:
Rule 1308. Appeal--Praecipe for Trial List.
Appeals from an award of the board of arbitrators shall be ordered on the trial list on praecipe of either party.
V. Rule 1311 Procedure on Appeal is rescinded.
[Pa.B. Doc. No. 09-982. Filed for public inspection May 29, 2009, 9:00 a.m.]
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