THE COURTS
Title 255—LOCAL
COURT RULES
McKEAN COUNTY
Adoption of Revised Local Rules of General Civil Procedure; Civil Division; No. 158 December Term 1904
[42 Pa.B. 6262]
[Saturday, October 6, 2012]
Order
And Now, this 18th day of September, 2012, it is hereby Ordered and Decreed, pursuant to Pennsylvania Rule of Civil Procedure 239, as follows:
1. The Local Rules of Civil Procedure are hereby adopted, effective 30 days after publication in the Pennsylvania Bulletin;
2. The District Court Administrator, Joanne L. Bly, of the 48th Judicial District is hereby directed to:
a. File one (1) certified copy of this Order and the Local Rules with the Administrative Office of Pennsylvania Courts;
b. File two (2) certified copies of this Order and the Local Rules, along with a compact disc (CD) with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin;
c. File one (1) certified copy of this Order and the Local Rules with the Pennsylvania Civil Procedural Rules Committee;
d. Provide one (1) copy of this Order and the Local Rules to each member of the McKean County Bar Association, distribution may be made electronically; and
e. Keep this Order and the Local Rules continuously available for public inspection and copying in the Office of the McKean County Prothonotary and Clerk of Courts.
It is further Ordered and Decreed that, contemporaneously with the effective date of the aforementioned Local Rules of Civil Procedure, any previously adopted local rules of civil procedure are rescinded and vacated.
By the Court
JOHN H. PAVLOCK,
President Judge
MCKEAN COUNTY RULES OF CIVIL PROCEDURE
RULES OF CONSTRUCTION
Rule L51. Title of Rules. Purpose.
These Local Rules of Civil Procedure are intended to implement the Pennsylvania Rules of Civil Procedure to which their numbers correspond. They shall be cited as ''Rule L__ .''
THE BUSINESS OF THE COURTS
Rule L205.2(a). Filing of Legal Papers.
In addition to the requirements forth in Pa.R.C.P. No. 204.1:
(1) All papers filed with the prothonotary shall be without folds to facilitate scanning and flat filing.
(2) All papers having multiple pages shall be numbered consecutively. The number shall appear at the bottom center position of each page.
(3) All papers having multiple pages shall be bound at the top with a binding clip or single staple in the middle, not the side.
(4) No tape, headers or backers shall be used without prior approval of the prothonotary.
(5) Attachments to any paper filed with the prothonotary shall be clearly legible. Copies shall faithfully represent the original in every respect.
Rule L205.2(b). Cover Sheet.
(1) Pursuant to Pa.R.C.P. No. 205.5 the initial pleading in any civil action including actions for custody and visitation of minor children, actions for divorce, actions in domestic relations generally and actions in the Orphan's Court except actions filed pursuant to the Protection from Abuse Act, 23 Pa.C.S.A. § 1601 et seq. and actions for support, shall be accompanied by the cover sheet published by the court administrator of Pennsylvania available on the website of the Administrative Office of Pennsylvania Courts and from the prothonotary. The party filing the initial pleading in any other type of case not listed on the cover sheet or for which there is not an applicable header (e.g. TORT) under which the case type can be added on the line ''Other:'' shall mark in the lower right hand corner of the cover sheet under the heading ''MISCELLANEOUS'' sub-heading ''Other:'' Family Law, Orphan's Court and attach the supplement set forth in subdivision (3) of this rule.
The following are a list of case types that should be used when completing the Rule 205.5 Cover Sheet where not identified.
TORT: Assault, Wrongful Death/Survival, Minor's or Incapacitated Person's Compromise
CONTRACT: Mechanic's Lien, Insurance, Negotiable Instrument, Warranty
CIVIL APPEALS: Award of Viewers, Local Agency, Board of Elections
MISCELLANEOUS: Equitable Relief (Injunction), Labor Dispute, Confirm/Vacate Arbitration Award and any other case not specifically addressed in this rule.
(2) All pleadings including the initial pleading and entries of appearance filed in any matter shall be accompanied by the local cover sheet set forth in subdivision (3) of this rule.
(3) The court administrator shall design and publish the supplement referred to in subparagraph (1) of this rule and the local cover sheet referred to in subsection (2) of this rule. The latest version of these forms shall be available from the prothonotary and on the court's website at www.mckeancountypa.org/Departments/Court_ Of_Common_Pleas/Index.aspx. The prothonotary shall assist a party appearing pro se in the completion of these forms.
Comment
A ''complex case'' is an action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties, and counsel. The factors to be used in determining if a case is ''complex'' are among other things, whether the action is likely to involve numerous pretrial motions raising difficult or novel legal issues that will be time consuming to resolve, management of a large number of witnesses or a substantial amount of documentary evidence, management of a large number of separately represented parties, or the trial of the case will take more than 2 days. An action is presumptively a complex case if it involves one or more of the following types of claims: medical malpractice, construction defect claims involving many parties; claims for wrongful death; or, insurance coverage claims arising out of any of the claims listed above.
Plaintiff/Defendant shall furnish the prothonotary with a copy of the cover sheet(s) and supplement, if any, for the court administrator.
Rule L206.4(c). Petition Procedure: Issuance of a Rule to Show Cause.
(1) Filing:
(a) All petitions shall be filed with the prothonotary in the form prescribed in Pa.R.C.P. Nos. 204.1, 206.1 and Rule L205.2(a).
(b) Scope: As used in this rule, ''petition'' means any application to open a default judgment or a judgment of non pros.
(c) The issuance of a Rule to Show Cause upon presentation of a petition shall be discretionary. A petitioner seeking the issuance of a Rule to Show Cause shall attach to the petition a proposed order in the form prescribed in Pa.R.C.P. No. 206.5(d). The court in its discretion may delete paragraphs (4) and (5) of the form order (regarding discovery and argument) and provide instead that the matter will proceed before the court on an evidentiary hearing to resolve disputed issues of fact. The court may also enter an order to require the filing of briefs or to authorize discovery to proceed other than by deposition.
(d) Petitions should not be filed with the court administrator. All petitions shall be filed with the prothonotary. Courtesy copies for the court are not required. Petitions should not be filed in duplicate or by facsimile transmission, except in emergency circumstances.
(e) The court will take no action until a petition has been filed of record, except in unusual circumstances.
(f) In the event a Rule to Show Cause is not issued, the court shall issue an appropriate order directing the respondent to file an answer to the petition and the petition will be decided under Pa.R.C.P. No. 206.7.
(2) The petition seeking the issuance of a Rule to Show Cause shall be supported with an appropriate statement of authority citing a statute, rule of court, or case law in support of the requested relief. The statement may be in the form of a brief or memorandum of law filed contemporaneously with the petition; or, in a routine petition that does not raise complex legal or factual issues, in the body of the petition itself.
(3) Any request for stay of execution pending disposition of a petition to open judgment shall be filed by separate motion.
(4) The petition and any motion seeking a stay of execution shall be scheduled for argument or hearing by the court administrator and it is not necessary for the moving party to request hearing or argument.
Comment
See Pa.R.C.P. No. 210 and L210 for the form of a brief or memorandum of law. See also Rule L303.1 and the Explanatory Comment that follows.
A petition for relief from a judgment by confession is governed by Pa.R.C.P. No. 2959.
A petition to open or strike a judgment is governed by Rule L315.
A petition to compromise, settle, or discontinue an action in which a minor has an interest under Pa.R.C.P. No. 2039 is governed by Rule L2039.1.
A petition to compromise, settle, or discontinue an action in which an incapacitated person has an interest under Pa.R.C.P. No. 2064 is governed by Rule L2064.1.
A petition to compromise, settle, or discontinue a wrongful death or survival action in which a minor or incapacitated person has an interest under Pa.R.C.P. No. 2206 is governed by Rule L2206.1.
Except as otherwise provided by the Pennsylvania Rules of Civil Procedure or by statute, all other applications for relief shall be in the form of a motion and shall be governed by Rule L208.3(a).
Rule L208.2(c). Statement of Authority.
All motions, except motions for continuances, shall be supported by a statement of authority citing a statute, rule of court or case law in support of the requested relief. The statement may be in the form of a brief or memorandum of law filed contemporaneously with the motion; or, in routine motions that do not raise complex legal or factual issues, in the body of the motion itself.
Comment
See Pa.R.C.P. No. 210 and Rule L210 for the form of a brief or memorandum of law. See also Rule L303.1 and the Explanatory Comment that follows.
Rule L208.2(d). Certification of Position: Motions.
Prior to submitting any motion, the movant or his/her counsel shall confer with all counsel of record and any unrepresented parties to determine their position with respect to the motion. The movant or his/her counsel shall include in or attach to his/her motion a certification that the movant or his/her counsel has conferred, or attempted to confer, with all interested parties to ascertain their position on the motion (contested, uncontested or no position). The ascertained position shall be indicated in the certification.
Rule L208.2(e). Discovery Motions.
A motion relating to discovery shall contain a certification by counsel for the moving party that counsel has conferred with all interested parties in an attempt to resolve the matter without court action and has been unable to reach a satisfactory resolution of the issues presented.
Rule L208.3(a). Motion Procedure: Scheduling and Argument.
(1) Filing and Scheduling:
(a) All motions shall be filed with the prothonotary in the form prescribed in Pa.R.C.P. Nos. 204.1, 208.2 and Rule L205.2(a) and shall be accompanied by a proposed order.
(b) Scope: As used in this rule, ''motion'' means any application to the court made in any civil action or proceeding except as provided by subdivision (b)(1) and (2) of Pa.R.C.P. No. 208.1.
(c)(i) Motions should not be filed with the court administrator. All motions shall be filed with the prothonotary. Courtesy copies for the court are not required.
(c)(ii) Motions should not be filed in duplicate or by facsimile transmission, except in emergency circumstances. The prothonotary shall immediately forward emergency and continuance motions to the court administrator. Continuances will be granted only in accordance with the court's continuance policy (See memoran- dum of November 16, 1993) available on the court's website at www.mckeancountypa.org/Departments/Court_Of_Common_Pleas/Index.aspx. See also Pa.R.C.P. No. 216. No such request will be granted unless good cause is shown.
(c)(iii) Every motion shall contain the certification required by Rule L208.2(d).
(d) The court will take no action until a motion has been filed of record, except in unusual circumstances.
(e) Unless the motion is certified as uncontested, the court shall provide the opportunity for argument either by written briefs or orally in open court. If oral argument is held, the court, in its discretion, may decide the matter at argument or take the matter under advisement. The court may deny the moving party's request for relief, without argument, when the motion is procedurally defective, is untimely filed or fails to set forth adequate grounds for relief. If an order is entered without oral argument, the court shall hear oral argument on an application by any party for reconsideration of such order. The application for reconsideration shall be filed within 10 days after the filing of the decision.
(f) No oral testimony shall be heard at the time of argument except by direction of the court.
(2)(a) Appearance by Advanced Communication Technology: The court, in its discretion, may permit any party to appear by telephone or by a system providing two-way simultaneous audio-visual communication. Any party wanting to participate in any argument or hearing utilizing advanced communication technology shall file a written request with the judge presiding over the matter not later than the 5th day preceding the argument or hearing unless good cause can be shown for the request's late filing. Every request to appear by advanced communication technology shall contain the certification required by Rule L208.2(d). The party or parties appearing utilizing advanced communication technology shall bear the cost thereof, unless the court provides otherwise. Notwithstanding, any Judge of this court may adopt an alternate procedure governing appearances utilizing advanced communication technology.
(b) If a party choosing to appear utilizing advanced communication technology fails to call the court or is unavailable when called to participate in the call with the court, the court may pass the matter or may treat the failure to call or participate as a failure to appear.
(3) Transcripts: The moving party in all post-trial or post-hearing motions or petitions shall, if the argument relates to the testimony presented, arrange for the transcription of so much of the testimony as may be required to resolve the issues presented.
Comment
All motions, upon filing, except motions for continuances and to appear by advanced communication technology, must be supported by a statement of authority citing a statute, rule of court or case law in support of the requested relief. See Rules L208.2(c) and L303.1. A motion decided on the papers filed of record or on such briefs or memorandums of law as may be filed by the parties will normally be decided within 30 days of the date on which the response to the motion is filed. Motions certified as uncontested will normally be decided within a few days after the motion is filed. See Rule L208.2(d). A motion on which oral argument is held will normally not be decided for 90—120 days after the motion is filed. Notwithstanding, any party or a party's attorney has the right to appear before a Judge of this court and argue any motion. See Pa.R.C.P. No. 211.
EXCEPT FOR THE ACTIONS OR PROCEEDINGS DESCRIBED IN PA.R.C.P. NO. 208.1(b)(1) AND THE MATTERS DESCRIBED IN PA.R.C.P. NO. 208.1(b)(2) EVERY APPLICATION REQUESTING A JUDGE TO ENTER AN ORDER OF COURT IS GOVERNED BY THE MOTION RULES PA.R.C.P. NOS. 208.1—208.4 AND L208.2(c)—208.3(a). IT DOES NOT MATTER WHETHER THE MOVING PARTY REFERS TO THE APPLICATION AS A ''PETITION,'' AS A ''MOTION,'' OR EVEN AS AN ''APPLICATION.'' THE MOTION RULES 208.1—208.4 APPLY.
For example, Pa.R.C.P. No. 3279(a), governing deficiency judgments, provides that the proceeding shall be commenced ''by filing a petition'' and Pa.R.C.P. Nos. 2301 et seq., governing interpleader by defendants, permit the commencement of the proceeding upon ''petition'' of a defendant and sets forth what the ''petition for interpleader'' shall allege. These proceedings are not governed by the rules governing petitions (General and Rules 206.1 et seq.) because the term petition, as used in these rules, is defined to cover only an application to open a default judgment or judgment of non pros. Every other application, even if described as a petition in other rules comes within Rule 208.1(a)'s definition of motion.
Rule 208.3(b). Motion Procedure: When Response Required.
A response along with a supporting brief or memorandum of law shall be filed by any party opposing a motion governed by Rule L208.3(a) within 20 days after service of the motion unless the time for filing the response is modified by court order or a Pennsylvania Rule of Court. If a response is not filed as provided above, the court may treat the motion as uncontested.
Comment
A response shall be filed by any party opposing a motion governed by Rule 208.3(a) even if there are no disputed facts because the response is the opposing party's method of indicating opposition.
Rules L210 and L303.1 govern the form of briefs and memorandums of law.
Rule L210. Form of Briefs and Memorandums of Law.
(a) Briefs and Memorandums of Law shall be typewritten using a 12 pt font or greater, double spaced (except for quotations) on paper 8-1/2 inches by 11 inches in size, shall be bound at the top, not at the side, and shall contain:
(1) A history of the case.
(2) A statement of the question or questions involved.
(3) A copy of, or reference to, the pertinent parts of any relevant document, report, recommendation, or order.
(4) An argument with citation of the authority relied upon.
(5) A short conclusion stating the precise relief sought.
(b) The argument shall be divided into as many parts as there are questions involved
(c) Memorandums of Law need not contain a history of the case.
(d) The brief of the responding party need only contain the argument and conclusion, but the responding party may add a counter history of the case.
(e) Briefs shall not exceed 20 pages in length without prior court approval. Memorandums of Law shall not exceed 10 pages.
(f) All briefs and memorandums of law shall be filed with the prothonotary. A courtesy copy of the brief or memorandum of law is not required.
Comment
Please see the Explanatory Comment following Rule L303.1 regarding the court's request that counsel provide copies of out of jurisdiction cases and other not readily available source material.
Rule L212.1. Pre-Trial Procedure.
(a) This rule shall apply to all civil actions, both jury and non-jury, with the exception of cases covered by Rule L1301.2, appeals from compulsory arbitration and actions in divorce under 23 Pa. C.S.A. § 3301, subsections (a), (b) and (d) of the Divorce Code, actions of annulment, and other issues permitted by law relating to the termination or validity of marriages.
(b) The parties shall complete discovery within 210 days from the filing of the complaint. Discovery will not be permitted after the 210 day period except by order of court upon good cause shown.
(c) In those cases where it is apparent that extensive discovery will be required or when the pleadings have not closed within 60 days from the filing of the complaint, the court will hold a status/case management conference to establish an alternative discovery timetable.
(d) All parties shall file with the court administrator on or before the 180th day from the filing of the complaint a status report showing:
(1)(i) whether or not discovery has been completed;
(ii) if discovery has not been completed, why discovery has not been completed;
(iii) the date by which the party reasonably believes discovery will be complete;
(iv) whether or not experts have been engaged;
(v) if experts have been engaged whether or not the case can proceed in the manner proscribed in subparagraphs (4) and (5) of this rule and, if not, the date by which the parties reasonably believe the exchange of expert reports will be complete;
(vi) what unusual questions of law are anticipated with respect to issues in the case supported with a statement of authority supporting the position taken with respect to such unusual questions of law; and
(vii) the settlement status of the case.
(2) No fee shall be charged for the filing of the report required by this rule.
(3) If a party shall fail to file the report required by this rule the court administrator shall schedule a status conference.
(4) The court administrator shall design and publish the status report. The latest version of the form shall be available from the court administrator and on the court's website at www.mckeancountypa.org/Departments/Court_Of_Common_Pleas/Index.aspx.
(e) The Plaintiff's expert report(s) shall be served on the defendant within 60 days from the close of discovery except medical reports which shall be provided to opposing counsel within 30 days of the examination. See Rule L4010.
(f) The Defendant's expert report(s) shall be served on the Plaintiff within 30 days of service of Plaintiff's expert's report(s) except medical report(s) which shall be provided to opposing counsel within 30 days of the examination. See Rule L4010.
(g) The parties shall file all dispositive motions within 120 days of the close of discovery.
(h) All motions will be decided under Rule L208.3(a) and the case listed for trial pursuant to Rule L308.1 or arbitration pursuant to Rule L1303.1(a)(1).
(i)(1) If the case is not listed for trial by one or more of the parties within 30 days of the court's final ruling on all dispositive motions the court administrator may place the case on the trial list, notify the parties of the earliest date on which the case may be tried and schedule a pre-trial conference. The filing fee shall be charged to the Plaintiff.
(2) If the case is arbitrable under Rule L1301.1 and not listed for arbitration by one or more of the parties within 30 days of the court's final ruling on all dispositive motions the court may list the case for arbitration pursuant to Rule L1303.1(a)(2)(i). The filing fee shall be charged to the Plaintiff.
(j) If before the close of discovery counsel agree on a schedule for disposition of the case which substantially meets the requirements contained in this rule, and submit the agreement to the court as a proposed order the court shall adopt the proposed order as an order of court or direct the parties to attend a case management conference.
(k) If matters arise at any time during the discovery period or thereafter which counsel reasonably believes has or will prejudice their case or has or will cause counsel to fall out of compliance with this rule, counsel shall request a status conference.
(l) At any time, the court may, in its discretion, direct the parties to attend a status conference, attend a case management conference, modify the above timetable, refer the case to mediation, list a case for arbitration, direct a case be listed for trial, or otherwise intervene to expedite the litigation.
(m) If at any time the case is referred to mediation under Rule L1341 the above timetable shall be stayed pending the conclusion of the mediation.
Explanatory Comment
It is the intention of this rule to have a case trial ready and listed for pre-trial conference within 12 months from the filing of the complaint. The time standards for general civil matters is: all non-jury cases should be tried or otherwise disposed of within 12 months/360 days after initial filing and all jury cases should be tried or otherwise disposed of within 18 months/540 days after initial filing. It is contemplated that there will be instances when a shorter or longer timetable will be indicated. In these instances the court will enter an appropriate order pursuant to subsection (11) of this rule.
Rule L212.2. Pre-Trial Statement.
(a) Three days prior to the date scheduled for the pre-trial conference each party shall submit to the court and to other counsel of record a pre-trial statement containing those items set forth in Pa.R.C.P. No. 212.2.
(b) If a party, in the exercise of reasonable diligence, first becomes aware after the pre-trial conference of the necessity or desirability of using a witness, an exhibit, a hypothetical question, plot or plan, he shall forthwith provide the court and other counsel with the same information with respect to such witness, exhibit, hypothetical question, plot or plan as is required on the pre-trial statement set forth in Pa.R.C.P. No. 212.2. Failure to provide such information shall not be compliance with this subsection, and may, in the discretion of the court, justify refusal by the court to permit the use of such witness, exhibit, hypothetical question, plot or plan at trial.
Rule L212.3. Pre-Trial Conference.
(a) For purposes of this rule, ''pre-trial'' shall mean a type of conference described in Pa.R.C.P. No. 212.3.
(b) Except as otherwise ordered by the court, pre-trial conferences shall be held at times directed by the court. Pre-trial conferences are extended to all actions not subject to arbitration under Rule L1301.
(c) Any application for continuance of the conference shall be by motion addressed to the court.
(d) Counsel attending the pre-trial conference must have complete authority to stipulate on items of evidence and admissions and must have full settlement authority. If counsel does not have such authority then the person or corporation having the actual interest in the case, whether as a party, as an insurance carrier or otherwise, shall be personally present at the pre-trial conference.
(e) The Court may impose appropriate sanctions upon a party for failure to abide by any rule pertaining to pre-trial statements or pre-trial conferences.
Rule L225. Addresses and Summing Up.
(a) Opening addresses may be made by all parties or groups of parties at the commencement of the trial in the order of their appearing in the pleadings. Any party may reserve his opening address until immediately before presenting his evidence.
(b) After the close of the testimony, each party or group of parties shall have the right of final address or argument in inverse order to the order of opening addresses, unless otherwise ordered by the court.
(c) Counsel shall not consume more than thirty minutes in either the opening address or the summing up address, except by special allowance.
Rule L226. Pre-Trial Matters, Points for Charge.
(a) Before the beginning of any jury trial counsel shall present to the court a concise memorandum of the applicable law and requested points for charge. Requested points for charge shall be exchanged by counsel at the close of evidence.
(b) All requested points for charge shall contain a citation of authority.
(c) In so far as possible, all exhibits shall be marked for identification before the beginning of trial.
Rule L227.1. Post-Trial Conferences.
In every case in which a Motion for Post-Trial Relief has been filed, the court may schedule a post-trial conference to be held as soon as the business of the court permits. The purpose of such conference shall be to determine the precise issue or issues that will be before the court on said motion and the extent of the trial record which will need to be transcribed.
MISCELLANEOUS COURT MATTERS
The Pennsylvania Rules of Civil Procedure do not specifically deal with the matters covered by Rules L300 through L507 and, therefore, there are no Pennsylvania Rules of Civil Procedure corresponding to Rules L300 through L507.
Rule L300. Service Requirements of All Papers.
Unless otherwise provided by an Act of Assembly or Rule of court, a copy of each paper filed in any case, other than the writ, complaint, or other process by which an action is commenced, shall be served by the party filing it promptly upon all other parties to the litigation or their attorneys of record. The manner of service shall be in conformity with Pa.R.C.P. No. 440. No matter shall be considered by the court unless there has been filed either a proof of service, acceptance of service or certificate of service.
Rule L301. Copies of Writings.
Whenever a copy of a writing is attached to a pleading, brief or other paper submitted to the court, such copy shall be clearly legible and faithfully represent the original in every respect, and unless the original itself is not legible the court may require a substitute copy to be made and filed before the pleading, brief or other paper will be considered by the court.
Rule L302. Reserved.
Rule L303. Matters for Argument.
(a) Upon the filing of any motion, petition, exceptions, or the like, requiring legal argument or a hearing, not otherwise covered by these Rules, an administrative order or a rule of Pennsylvania civil procedure, the court shall enter an appropriate order that sets forth the procedures the court will use for deciding the motion, petition or exceptions which may include, inter alia, one or more of the following: the filing of an answer, the filing of briefs, the conduct of discovery, and the issuance of a Rule to Show Cause.
(b) The court may provide in the order for disposition upon briefs rather than oral argument.
(c) Notice of the entry of the order shall be provided to all parties by the moving party.
Rule L303.1. Supporting Brief or Memorandum of Law.
All motions, responses, exceptions, preliminary objections, and petitions, upon filing, must be supported by a brief or memorandum of law in support thereof. If not so supported, then the motion, responses, exceptions, objections or petition shall be summarily disposed of, unless counsel promptly requests permission for good cause to file the required brief or memorandum of law at a later date.
This rule shall not apply to exceptions taken to the recommendation of the Family Law Master or Permanent Hearing Officer.
Explanatory Comment
It is not the intention of this rule to require ''full blown'' briefs on simple or routine issues. The extent of briefs or memorandums of law submitted in support of the pleading should be in proportion to the complexity of the issue which the pleading raises.
Consequently, a complicated motion, such as a motion for summary judgment, should be supported by a brief or memorandum of law which fully discusses the facts and the applicable law. See Pa.R.C.P. No. 210 and Rule L210 for the form of briefs or memorandums of law.
A routine motion or a motion presenting uncomplicated issues may be supported by a recitation of fact or authority in the motion itself or in a cover letter. In those situations, all that is required is a citation to the appropriate rule, statute or case law which establishes that the movant is entitled to the relief requested and that the court has the power to grant it. A clean copy of the case or cases that clearly support the proposition and which the court is being asked to rely on in making its decision may be attached to the motion itself. Examples: A motion for a continuance shall cite Pa.R.C.P. No. 216. A motion for sanctions for failure to serve answers to written interrogatories under Pa.R.C.P. No. 4005 shall cite Pa. R.C.P.C.P. No. 4019 (a)(1)(i) and Pa. R.C.P. No. 4019(c).
Counsel are requested to include with their brief or memorandum of law a separate appendix that contains a clean copy of any source material that the court is being asked to rely on in making its decision that comes from a jurisdiction other than Pennsylvania (cases, rulings, etc.) or to which the court does not have convenient access (treatises, law review articles, etc.) The appendix will not be made part of the record. Do not make reference to the appendix in your brief or memorandum of law.
Rule L304. Motions and Petitions.
(a) Motions and petitions shall be filed with the prothonotary or clerk of the Orphans Court for presentation to the court.
(b) Except for emergency matters and routine matters that are not contested, no motion or petition requesting ex parte action shall be heard by the court unless prior notice of its presentation has been given to opposing counsel of record.
Rule L305. Motions: Post-Trial and Post-Hearing.
The moving party in all post-trial and post-hearing motions or petitions shall, if argument thereon is to be with reference to the testimony, include a request for a transcript of the testimony, or such part thereof as the moving party desires to have transcribed for the purposes of such motion.
Rule L306. Notice.
(a) All notices shall be in writing.
(b) Except as otherwise provided by Act of Assembly, rule or special order of court, whenever any process, paper or notice is required to be served upon a party, such service shall be made in accordance with the procedure set forth in Pa.R.C.P. Nos. 400—441; if service is to be made by publication, then service shall be made as provided by Rule L430.
Rule L307. Prothonotary.
(a) The prothonotary shall immediately endorse all papers filed with the date of such filing, and shall enter into an appropriate docket all pleadings, rules, orders of court and other papers filed in every case.
(b) The prothonotary shall be responsible for the safe keeping of all records and papers belonging in her office. No paper may be taken from the files of the prothonotary without the consent of the prothonotary or one authorized by the prothonotary to give such consent. A record shall be made of any paper removed from the prothonotary's office and the person who receipts for such paper shall be responsible for return of the same and for any financial loss occasioned by failure to return the paper.
(c) Only the prothonotary, his/her clerks, attorneys registered in McKean County and such other persons as the prothonotary shall specially authorize shall be permitted direct access to the prothonotary's files.
(d) No entries shall be made in any prothonotary's docket except at the direction of the prothonotary or by order of court.
Rule L308. Listing Cases for Trial.
(a) Jury and non-jury trials: Trials will be held at such times and on such dates as shall be established by the court.
(b) To place a case on the trial list, one or more of the parties in the case or their counsel shall proceed as herein provided.
(1) File a Praecipe to List for Trial that shall substantially conform to the form shown below and serve the praecipe on all other parties and if they be represented by counsel on their counsel. The praecipe shall contain a certification by the listing party or counsel that: the pleadings are closed; there are no outstanding motions; all pretrial discovery is completed; if a jury trial has or has not been demanded; an estimate of time required for the trial; all counsel of record and self represented litigants agree that the matter is presently ready for trial and that they do not object to its listing.
(2) By motion that shall substantially conform to the form shown below showing that all counsel and unrepresented parties do not agree that the case is presently ready for trial, and requesting that the court order the case to trial. The court shall then promptly schedule a hearing to consider the matter.
(c) The prothonotary shall upon receipt of the praecipe or court order place the case upon the prothonotary's Active Trial List and shall not less frequently than monthly forward to the court administrator an updated trial list reflecting all new cases listed for trial, settlements, continuances, discontinuances or other dispositions of cases.
(d) In no event shall any matter proceed to jury selection or shall trial dates be reserved unless the pleadings are closed, discovery is completed, and there is no other impediment to the immediate trial of the case, unless the court orders otherwise for good cause.
(e) Pre-Trial Conference: The court administrator shall schedule a pre-trial conference on every case added to the trial list since the date of the last update. Said conference shall be held in the manner provided by Rule L212.3. At the pre-trial conference a date will be reserved for the trial and jury selection if there is to be a jury trial.
(f) Continuances: Once a case has been given a trial date continuances will not be granted except for extraordinary reasons. When a continuance is granted the court may impose on the party making the application the reasonable costs actually incurred by the opposing party which would not have been incurred if the application had not been made.
Form—Praecipe to List for Trial
| _________________ | : | IN THE COURT OF COMMON PLEAS OF |
Plaintiff
| : | McKEAN COUNTY, PENNSYLVANIA |
vs.
| : | CIVIL DIVISION -______ |
| : | ______ Medical Professional Liability Action |
| _________________ |
Defendant
| : | NO. _________________ |
PRAECIPE TO LIST FOR TRIAL
To the Prothonotary:
As listing counsel, pursuant to Rule 308, I hereby certify:
1. The pleadings are closed.
2. There are no outstanding motions.
3. All discovery is completed.
4. A jury trial ______ has ______ has not been demanded.
5. Preliminary estimate of time required for trial. ______ days ______ hours ______ minutes
6. All counsel of record and unrepresented parties have been contacted and agree that this matter is presently ready for trial and that they do not object to its listing.
7. A copy of this praecipe has been served on all counsel of record and unrepresented parties in the following manner:
Respectfully Submitted,
_________________
[Print Name]
_________________
Date: ______ Counsel for _________________
[Strike if not Applicable]
Form—Motion to Place Case on Trial List
| _________________ | : | IN THE COURT OF COMMON PLEAS OF |
Plaintiff
| : | McKEAN COUNTY, PENNSYLVANIA |
vs.
| : | CIVIL DIVISION -______ |
| : | ______ Medical Professional Liability Action |
| _________________ |
Defendant
| : | NO. _________________ |
MOTION TO PLACE CASE ON TRIAL LIST
COMES NOW, _________________ plaintiff/defendant (circle one) or _____ counsel for _____ , and requests that the court place the above captioned matter on the trial list, pursuant to Rule L308(b)(2).
The undersigned has contacted all counsel of record and unrepresented parties and all parties do not agree that the matter is presently ready for trial.
Proof of Service is attached.
Respectfully Submitted,
_________________
[Print Name]
_________________
Date: ______ Counsel for _________________
[Strike if not Applicable]
Rule L309. Manner of Scheduling Equity Cases.
Any party to a cause of action in equity who desires that the case be advanced for early trial listing may request by motion that the case be given priority trial status (1) after the pleadings are closed (2) after 60 days from the filing of the complaint or (3) at any time with the consent of all other parties to the action. Upon receipt of such request the prothonotary shall forthwith transmit the record papers to the court administrator who shall then schedule the case for pretrial conference and trial as soon as the business of the court permits.
Rule L310. Court Calendar.
At the beginning of each calendar year, the court shall prepare a court calendar for the current year which shall have the effect of a rule of court establishing the times that the matters set forth in the court calendar shall be heard.
Rule L311. Security For Costs.
(a) The defendant or any interested party may petition the court to require the plaintiff who resides out of state, or who is in bankruptcy, or has insolvency proceedings pending against him, to file security for costs.
(b) The court, by special order upon cause shown, may require a plaintiff or a defendant who seeks affirmative relief to enter security for costs.
(c) The claimant in a sheriff's interpleader issue shall be construed to be a plaintiff within the meaning of this rule.
(d) In default of security entered at the time fixed by the court, judgment of default or other appropriate court order may be made in favor of the party obtaining the order.
Rule L312. Bills of Costs.
(a) Bills of costs must contain the names of the witnesses, the dates of their attendance, the number of miles actually traveled by them, and the place from which mileage is claimed. The bill shall be verified by the affidavit of the party filing it or his agent or attorney that the witnesses named were actually present in court, and that, in his opinion, they were material witnesses. A copy of the bill shall be served on opposing counsel.
(b) The party upon whom a bill of costs has been served may, within 10 days after such service, file exception thereto, and the issue shall be determined by the court. Failure to file exception within 10 days shall be deemed a waiver of all objections.
Rule L313. Default Judgments.
(a) Whenever a judgment for money is taken by default and the party in whose favor the judgment is entered has filed an instrument or copy thereof, upon which the amount of the judgment is based and a calculation of the judgment is submitted, the prothonotary shall enter the judgment for the amount shown to be due upon the face of the instrument.
(b) If a default judgment cannot be made certain by computation, Pa.R.C.P. No. 1037 shall apply.
(c) In all cases in which a party to an action has appeared but subsequently defaults, before any decree or judgment shall be entered, the opposing party shall file an affidavit stating that the defaulting party is not in military service of the United States, or if the information is not available, the affidavit shall state what efforts have been made to obtain facts.
Comment
Subparagraph (c) of this rule is mandated by the ''Service Members Civil Relief Act,'' Title 50 App. U.S.C. Section 501 et seq.
Rule L314. Judgment on Verdict.
Judgment shall not be entered on a verdict within the time allowed for motions for judgment n.o.v., for new trial, or for arrest of judgment, nor until the party obtaining the verdict shall have paid the prothonotary the required jury fee as provided by law.
Rule L315. Striking or Opening Judgments Other Than Confessed Judgments Covered by Pa.R.C.P. 2959.
The pleadings and procedure for relief from judgments, other than confessed judgments, shall be the same as the pleadings and procedure for relief set forth in Pa.R.C.P. No. 2959 and Pa.R.C.P. No. 2960 for confessed judgments.
Rule L316. Judgment by Agreement.
Except in actions to which a minor or an incompetent is a party and in actions for wrongful death in which a minor or incompetent has an interest, verdicts and nonsuits, and judgments by agreement may be entered at any time but only upon written stipulation signed by the parties or by their counsel of record and filed in the case.
Rule L317. Judgments: Re-Indexing.
Judgments entered on confession may be subsequently re-indexed against any defendant under any alias name upon the plaintiff's attorney filing a praecipe therefore supported by an affidavit that such alias defendant is the same person against whom the judgment was originally entered and indexed. The subsequent re-indexing shall be noted on the docket of the original number and term and shall be re-indexed on a separate line in the judgment index, clearly showing the date of such re-indexing.
Rule L318. General Pleading Form.
Except as otherwise provided by statute, or rule of court, pleadings in all actions shall, as nearly as possible, conform to the rules relating to civil actions law.
Rule L319. Reserved.
Rule L320. Retention of Notes and Digital Recordings Made by a Court Reporter or Monitor.
(a) In all cases other than criminal cases, the court administrator is authorized to direct the destruction of notes and digital recordings made by a court reporter or monitor at any time after 7 years from the date when such notes were taken or digital recordings made.
(b) In any case in which the court reporter or monitor has transcribed from notes taken or digital recordings made and such transcription has been approved by the court and filed. The court reporter or monitor may destroy any such notes or digital recordings any time 90 days from the date of filing of the transcription.
(c) Any party may petition the court for an order directing the retention of particular notes or digital recordings of the court reporter or monitor for a period of time beyond that required herein.
Rule L430. Service, Petitions, Rules, Orders and Notices—Publication.
(a) If a defendant is dead or his identity or whereabouts is unknown and the plaintiff moves the court pursuant to Pa.R.C.P. No. 430 for a special order directing service on the defendant by publication, the plaintiff shall attach to his/her motion an affidavit that shall state:
(1) that at least four (4) of the following have been attempted: (i) sheriff service to all known addresses; (ii) inquiry of relatives, neighbors, friends and employers of defendants (3 of 4); (iii) examination of local phone directories, local tax records and voter registration records (2 of 3); (iv) inquiry of postal authority including inquiry pursuant to the Freedom of Information Act, 39 C.F.R. Part 265; (v) examination of motor vehicle records (PENN DOT Form DL-503); (vi) any other method that would reasonably lead to service on the defendant.
(2) In an action involving title to, interest in, or possession of real property including title to or interest in oil, gas and minerals:
(i) that he/she has caused to be examined the records in the offices of the Register and Recorder to ascertain the date of death of the defendant, whether he or she died testate or intestate, the names and addresses of all the defendant's heirs, legatees or devises, and whether or not there has been any adverse conveyance or distribution of the property that is the subject of the suit.
(ii) that he/she has contacted all individuals who are currently living in the vicinity of the subject property who may have or may know someone who does or may have an interest in the subject property, informed them of the pending action and have ascertained with their assistance the names of any other parties who may have an interest in the subject property.
(iii) that in the case of a corporation that has been dissolved, he/she has caused the records in the offices of the Register and Recorder to be examined to ascertain whether or not there has been an adverse conveyance or distribution of the real estate that is the subject of the suit.
(b) Whenever service by publication is authorized by law or rule of court and the manner of publication is not otherwise specified, such service shall be made by publication for two consecutive weeks in a newspaper of general circulation within McKean County. No further action can be taken until 20 days after the last publication. Proof of publication shall be filed in the prothonotary's office.
Comment
See Pa.R.C.P. No. 430(b)(1) for the form of the notice.
Rule L500. Auditors and Auditor's Reports.
(a) Auditors shall be members of the bar.
(b) Auditors' hearings shall be held at the courthouse and testimony taken either by a court stenographer or by a stenographer to be agreed upon by the parties in interest.
(c) Auditors shall give public notice of the time and place of hearings before them, by advertisement once a week for 2 successive weeks in a newspaper of general circulation of McKean County, stating therein that all persons must prove their claims before them or be debarred from coming upon the fund. In addition thereto, auditors shall obtain from the assignors or debtors, a list of their creditors, and, if the proceeds of the sale of real estate are to distributed, searches for liens and encumbrances, and award distribution accordingly, unless objections be made, in which event those whose claims are objected to shall be notified to prove their claims or be debarred from coming in upon the fund.
(d) Any person desiring an issue to be granted shall present his petition to the auditor within 48 hours after the testimony in relation to the matter in dispute is closed, setting forth under oath or affirmation that material facts are in dispute and the nature and character thereof; and it shall be the duty of the auditor forthwith to make report thereof to the court for its action.
(e) The auditor shall not file his report until 10 days after he has notified all the parties who appeared before him that it is subject to their inspection, and that it will be filed on a given date, unless written exceptions are filed with him before that time. If exceptions are filed, he shall re-examine the subject and amend his report, if, in his opinion, the exceptions are in whole or in part, well founded.
(f) The argument before the court shall be confined to the exceptions filed with the auditor; the court will, however, recommit the report if of the opinion that justice requires it.
(g) If no exceptions are filed with the auditor, the report, on motion, will be confirmed by the court.
(h) When facts are controverted before the auditor, he shall report the same as proved, in a concise or digested form and shall also state concisely the questions of law raised before him and his decisions thereon, with his reasons therefore, and when distribution is made, a distinct account or schedule of the liens on the funds, paid and unpaid, in a form convenient for review shall be made out and presented with the report showing precisely the disposition made of the funds. The testimony, documentary or otherwise shall be returned separately and filed with the report.
(i) The auditor shall file his completed report with the prothonotary, who shall mark it confirmed nisi, which confirmation shall become absolute, without further order, if no objection thereto is made within 10 days. If objection to the report is made, it shall be treated as renewal of the exceptions filed by the party with the auditor; and in this case or if exceptions are filed with the prothonotary within this ten day period, the prothonotary shall enter the case on the argument list to be taken up in due course.
(j) Upon motion made by a party interested, of misconduct or unreasonable delay on the part of any auditor, the court may either vacate his appointment or grant a rule on him to show cause why he should not proceed forthwith in the duties of his appointment; and in case of contempt, may punish him by fine or attachment.
Rule L501. Distribution.
(a) Whenever the aid of the court is desired in the distribution of money in court or in the hands of any collecting officer of the court, the party asking its interposition shall present to the court a written statement of the facts, showing its necessity or propriety, and thereupon the court may appoint an auditor to report the facts and make distribution or make such other order as may seem best calculated to bring the matter to a speedy close.
(b) The court may, on motion and upon satisfactory evidence, decree distribution of any portion of the fund in court, not included in any controversy, before or during the pendency of the audit, and order such portions of the fund that is being audited to be deposited or invested during the controversy.
(c) Duplicate receipts shall be given for all moneys paid in pursuance of such distribution, one of which shall be filed in the case and the other upon the original lien docket.
Rule L502. Receivers and Assignees for Creditors.
(a) Assignees for the benefit of creditors and receivers shall, after they have entered security, give notice of their appointment, to every creditor and party in interest of whom they have knowledge, and shall also publish notice thereon once a week for two successive weeks in a newspaper of general circulation published in McKean County.
(b) The assignee shall file with the account a petition for distribution in form similar to that of petitions for distribution required by the Orphans' Court Division of this county and all such accounts and petitions for distribution shall be filed in the office of the prothonotary.
(c) The assignee shall give written notice of the filing of the account, the petition for distribution and of the call for the audit or confirmation thereof to all parties interested. Such notice shall be given by mailing the same to the last known address of the one entitled to receive the same, at least three weeks before the presentation of the account to the court, and shall also be published by the prothonotary for two successive weeks in one newspaper of general circulation published in McKean County.
(d) Any such account filed for audit and confirmation shall be audited preliminarily by the prothonotary and then presented to the court, together with the proofs of publication and proof of the giving of the required notice to interested parties at the time fixed for the audit or confirmation thereof; and if no exceptions have been filed, the account may be confirmed absolutely.
Rule L503. Sheriff.
[Intentionally Omitted]
Rule L504. Limitations on Bail and Security.
Neither the prothonotary, nor his deputy, nor the sheriff or sheriff's deputy or clerk, shall be admitted as bail or surety in any action, civil or criminal unless by leave of the court for special reasons shown.
Rule L506. Money Paid Into Court.
(a) A party to an action may, upon motion and such notice to the adverse party as the court may direct, pay into court the amount admitted to be due, together with costs, if any. The party entitled to the money may accept the money and settle and discontinue the action or may refuse the money and proceed with the action. If the adverse party shall not recover more than the amount paid into court, all additional costs shall be deducted from the money. This tender into court shall in no way alter the rights of the parties as to legal tender made before suit.
(b) Parties wishing to extinguish liens upon real estate in which they have an interest may, on motion and such notice to the creditor as the court may direct, pay into court the amount due and have satisfaction entered upon the lien.
(c) Upon payment of money into court the same shall be deposited by the prothonotary in an account in the name of the prothonotary kept for such purposes or into an account agreed to by the parties in writing, and shall be payable only by a check signed by the prothonotary pursuant to order of court. Such interest as accrues shall enure to the benefit of those entitled to the principal. In creating any account hereunder, the prothonotary shall use the social security number or employer identification number of the person or entity entitled to such interest.
Comment
When money is paid into court the prothonotary is required to collect poundage for the handling of the money. See 42 P. S. § 21071.
Rule L507. Deputy Constables.
Petitions for approval of the appointment or revocation of the appointment of deputy constables shall set forth the following facts:
(a) The act of assembly authorizing the appointment.
(b) Name and address of the petitioner.
(c) The name of the municipality or district in which petitioner was elected.
(d) The date of commencement and expiration of the term of office of the petitioner.
(e) The name and full address of the surety on petitioner's bond and an averment that the surety has had notice of the petition, to be evidenced by the written joinder of the surety in the prayer of the petitioner.
(f) The name and full address of the person to be appointed deputy constable, or whose appointment is to be revoked, and an averment that the person to be appointed is of good repute and has not been convicted of a felony or misdemeanor.
(g) A full statement of the necessity, facts and reasons for making or revoking the appointment.
(h) If any security of any kind is given or to be given by the petitioner or his surety, then the nature, character, and extent shall be fully set forth or, in lieu thereof, an averment that no security is being given.
CIVIL ACTION—LAW
Rule L1012. Entry of Written Appearance.
All appearances shall be entered in writing by praecipe filed and where there are several plaintiffs or defendants, an appearance will be deemed for all unless expressly restricted.
Explanatory Comment
While the Pennsylvania Rules of Civil Procedure do not require an attorney to enter a written appearance, please be advised that it is the custom and practice in McKean County that an attorney do so and that failure to do so may result in notices of scheduled events being sent to your clients instead of you. Notwithstanding, the first pleading filed by an attorney on behalf of a party shall constitute the attorney's entry of appearance for that party. Further, if you have not entered a written appearance or have not filed a pleading and appear on behalf of any party in any proceeding the court will deem that you have entered your appearance generally in the case unless you inform the court otherwise at the commencement of the proceeding.
Withdrawal of appearances shall be made in accordance with Pa.R.C.P. No.1012 and the procedure outlined in the court's memorandum of May 1, 2007 available on the court's website at www.mckeancountypa.org/Departments/Court_Of_Common_Pleas/Index.aspx.
Rule L1018.1. Notice to Defend.
The party, to be named in the notice to defend, from whom legal help can be obtained is:
Northwestern Legal Services
100 Main Street
Bradford, PA 16701
Telephone: 814-362-6596
The notice shall substantially conform to the form shown below.
Form 1018.1 Notice to Defend
| _________________ | : | IN THE COURT OF COMMON PLEAS OF |
Plaintiff
| : | McKEAN COUNTY, PENNSYLVANIA |
vs.
| : | CIVIL DIVISION -______ |
| : | ______ Medical Professional Liability Action |
| _________________ |
Defendant
| : | NO. _________________ |
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