[42 Pa.B. 6262]
[Saturday, October 6, 2012]
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Northwestern Legal Services 100 Main Street
Bradford, Pennsylvania 16701
Telephone: 1-814-362-6596
Rule L1028(c). Preliminary Objections.
(1) Filing. All preliminary objections shall be filed with the prothonotary in the form prescribed in Pa.R.C.P. No. 204.1 and Rule L205.2(a). Preliminary Objections should not be filed with the court administrator. Courtesy copies for the court are not required. Preliminary Objections should not be filed in duplicate or by facsimile transmission, except in emergency circumstances. Preliminary Objections which assert facts not otherwise of record, including but not limited to an objection under Pa.R.C.P. No. 1028(a)(1), (5) or (6) shall be endorsed with a notice to plead pursuant to Pa.R.C.P. No. 1361.
(2) The court will take no action until the preliminary objections have been filed of record, except in unusual circumstances.
(3) Statement of applicable authority: All preliminary objections 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 preliminary objections; or, if the preliminary objections do not raise complex legal or factual issues, in the body of the preliminary objections itself. If not so supported, then the preliminary objections 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.
(4) Amended Complaint, Answer or Reply brief: The opposing party shall file an amended complaint, answer or reply brief to the preliminary objections within 20 days after service of them unless the time for filing the response is modified by court order. If an amended complaint, answer or reply brief is not timely filed, then the preliminary objections shall be sustained unless counsel promptly requests permission for good cause to file the required amended complaint, answer or reply brief at a later date.
(5) 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. 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.
(6) No oral testimony shall be heard at the time of argument except by direction of the court.
(7) In the event there are disputed issues of fact, the court will schedule the matter for hearing.
(8)(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 motion not later than the 5th day preceding the argument or hearing unless good cause can be shown for the late filing of the motion. 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.
Comment
All Preliminary Objections, upon filing, must 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 preliminary objections; or, if the preliminary objections do not raise complex legal or factual issues, in the body of the preliminary objections itself. See Pa.R.C.P. No. 210, Rules L210 and L303.1 and the Explanatory Comment that follows. Preliminary Objections 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 answer or reply brief is filed. Preliminary Objections on which oral argument is held will normally not be decided for 90—120 days after the Preliminary Objections are 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.
Failure to answer preliminary objections raising questions of fact and endorsed with a notice to plead constitutes an admission of the facts pleaded.
Rule L1033. Amended Pleading.
Whenever an amended pleading is filed, such pleading shall be a complete pleading and not merely set forth the amendments to the former pleading. The amended pleading shall clearly indicate that it is an amended pleading, the paragraphs shall be renumbered, and the new portion shall be underlined.
Rule L1034(a). Motion for Judgment on the Pleadings.
(1) Filing. A motion for judgment on the pleadings shall be filed with the prothonotary in the form prescribed in Pa.R.C.P. No. 204.1 and Rule L205.2(a). It should not be filed with the court administrator. Courtesy copes for the court are not required. It should not be filed in duplicate or by facsimile transmission, except in emergency circumstances.
(2) The court will take no action until the motion has been filed of record, except in unusual circumstances.
(3) Statement of applicable authority. All Motions for Judgment on the Pleadings shall be supported by a brief or memorandum of law filed contemporaneously with the motion.
(4) Reply brief: The opposing party shall file an answer or reply brief to the motion within 20 days after service of the motion unless the time for filing the response is modified by court order. If a response is not filed as provided above, the court may treat the motion as uncontested.
(5) 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. 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.
(6) No oral testimony shall be heard at the time of argument except by direction of the court.
(7)(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 utilizing advanced communication technology shall file a motion not later than the 5th day preceding the argument unless good cause can be shown for the late filing of the motion. 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.
Comment
All Motions for Judgment on the Pleadings, upon filing, must be supported by a brief or memorandum of law filed contemporaneously with the motion. See Pa.R.C.P. No. 210, Rules L210 and L303.1 and the Explanatory Comment that follows. A Motion for Judgment on the Pleadings 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 reply brief is filed. A Motion for Judgment on the Pleadings 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.
Rule L1035.2(a). Motion for Summary Judgment.
The procedures for the disposition of a Motion for Summary Judgment are identical to the procedures for the disposition of a Motion for Judgment on the Pleadings described in Rule L1034(a) except that a Response in Opposition to the Motion for Summary Judgment shall be filed as provided in Pa.R.C.P. No. 1035.3.
Rule L1038(a). Proposed Findings of Fact, Conclusions of Law and Memorandum in Support.
At any non-jury trial, except by leave of court, no party shall be permitted to present evidence either in support of or in opposition to any claim or cause of action unless the party has first presented proposed findings of fact, conclusions of law and a memorandum in support thereof unless the presentation of same are postponed by court order.
The court, in its discretion, may grant a continuance to allow the non-filing party to prepare the required findings, conclusions of law and memorandum, except the costs of litigation thereby caused to the other party or parties to the action may be imposed as a sanction on the non-filing party.
Rule L1038(b). Trial without Jury.
Parties who elect to have their case tried without a jury after demand for jury trial has been filed shall enter into and file the following stipulation:
''The undersigned parties in the above captioned case hereby agree that it shall be tried by a Judge without a jury in accordance with Pa.R.C.P. No. 1038.''
ACTION TO QUIET TITLE
Rule L1066. Form of Judgments or Order.
Any order entered under Pa.R.C.P. No. 1066(b)(1) shall include a description of the property. If notice of the entry of such an order is given by publication, it shall be given as provided by Rule L1064.
ARBITRATION
Rule 1301.1. Scope.
(a) All cases which are at issue, where the amount in controversy (exclusive of interest and costs) shall be $50,000 or less, except those involving title to real estate, equity actions, mortgage foreclosure, and other actions which do not involve the recovery of money damages, including divorce, mandamus and quo warranto, shall be submitted to and heard and decided by a Board of Arbitration.
(b) This rule shall apply to cases involving more than one claim, including counter claims, if none of such claims exceed $50,000 exclusive of interest and costs.
(c) Cases which are not at issue, and whether or not suit has been filed, may be submitted to a Board of Arbitration by agreement of reference signed by all parties or their counsel. The agreement of reference shall define the issues to be submitted to the Board, and, when agreeable to the parties, shall also contain stipulations with respect to facts agreed or defenses waived. When a case is submitted to the Board by agreement of reference, the agreement shall take the place of pleadings and shall be filed of record in the office of the prothonotary and shall be assigned a number and term.
(d) Any case not arbitrable under this rule may be submitted to arbitration according to the procedure herein provided, by stipulations of all parties thereto or their counsel.
(e) The court may, at any time, in its discretion, enter an order allowing any case, arbitrable under this rule to be listed for trial pursuant to Rule L308.1. A dismissal or judgment which results from this rule will be treated as any other final judgment in a civil action subject to Pa.R.C.P. No. 227.1.
(f) The court may, at any time, in its discretion, enter an order transferring a case to arbitration even though the original demand may have exceeded $50,000.
Comment
While a Board of Arbitration may hear a lawsuit in which any party claims an amount in excess of $50,000, the award of the Board of Arbitration to any party may not exceed $50,000 (exclusive of interest and costs). However, with the agreement of all parties, a Board of Arbitration may award up to the amount agreed upon in excess of $50,000 if all parties also agree that the arbitration award is final and cannot be appealed to court.
Rule 1301.2. Pleading, Discovery and Dispositive Motions—Small Claims.
(a) This rule shall cover all arbitrable cases that:
(1) arise from an appeal to the decision of a Magisterial District Judge even if the Plaintiff's claim is for an amount in excess of $12,000;
(2) are commenced with the filing of a simple complaint wherein the amount in controversy is $12,000 or less; or
(3) are commenced with a complaint prepared in conformity with Pa.R.C.P. No. 204.1 and Pa.R.C.P. Nos. 1019 et seq. wherein the amount in controversy is $12,000 or less.
(b) In all cases covered by this rule, a simplified complaint and a simplified answer shall be permitted and encouraged. The simplified complaint and the simplified answer shall be available from the prothonotary and online at www.mckeancountypa.org/Departments/Court_Of_Common_Pleas/Index.aspx.
(c) Discovery in cases covered by this rule, including a Request for Admission under Pa.R.C.P. No. 4014, is discouraged and shall be permitted only by order of court. A party wanting to conduct discovery shall file a motion pursuant to Rule L208.3(a). The requirement that a statement of applicable authority accompany the motion is waived. The motion shall, inter alia, contain the reason or reasons why discovery is needed and what information, documents etc. are being sought.
(d) Preliminary Objections may be filed to any pleading. No objection shall be made based on the failure of the pleading to conform to a rule of court.
(e) Motions for Judgment on the Pleadings and for Summary Judgment shall not be permitted in cases covered by this rule.
(f) The failure of a party to raise a defense or objection in his or her simplified answer or by preliminary objection shall not constitute a waiver of such defense or objection under Pa.R.C.P. No. 1032 and may be heard at the time of the hearing at the discretion of the Board of Arbitration.
(g) A self represented litigant may file a simplified answer to a complaint nonetheless filed in conformity with the Pa.R.C.P. No. 204.1 and Pa.R.C.P. Nos. 1019 et seq. The self represented litigant when replying to such a complaint should reply using separate numbered paragraphs corresponding to the numbered paragraphs of the complaint. Any matter not covered in the self represented litigant's replies to the separate paragraphs of the complaint should be set forth in separately numbered paragraphs under the caption ''New Matter, Counterclaim or Cross-Claim''.
(h) Self represented litigants who appeal from a decision of a Magisterial District Judge in matters covered by this rule shall be furnished with a copy of the simplified complaint or simplified answer, ancillary forms and printed instructions for their use.
Explanatory Comment
This rule is intended to afford represented and self represented litigants reasonable access to the court and to provide a timely and affordable means to resolve small claims not involving complex issues or needing extensive discovery. Certain rules of pleading and evidence have been established to enable fair and prompt resolution of claims.
This rule does not affect for compulsory arbitration cases which are appealed pursuant to Pa.R.C.P. Nos. 1308—1311 the right to discovery provided by Pa.R.C.P. Nos. 4001—4020, the right to file a motion for judgment on the pleadings provided by Pa.R.C.P. No. 1034 and L1034(a) or, the right to file a motion for summary judgment provided by Pa.R.C.P. No. 1035.2 and L1035.2(a).
Comment
A party wanting to conduct discovery after an appeal is taken is required to obtain court approval pursuant to Rule L1308(b).
Rule 1301.3. Discovery (Except Small Claims)—Personal Injury.
(a) For any personal injury claim filed, the plaintiff may serve arbitration discovery requests that conform substantially to the form available from the court administrator and on the court's website at www.mckeancountypa.org/Departments/Court_Of_Common_Pleas/Index.aspx. They may be served together with the copy of the Complaint or on the defendant thereafter.
(b) The defendant shall furnish the information sought in the discovery requests within 30 days of receipt of the discovery requests.
(c) For any personal injury claim filed, any defendant may serve arbitration discovery requests that substantially conform to the form available from the court administrator and on the court's website at www. mckeancountypa.org/Departments/Court_Of_Common_Pleas/Index.aspx. They may be served together with the copy of the Answer or on the plaintiff thereafter.
(d) The plaintiff shall furnish the information sought in the discovery requests within 30 days of receipt of the discovery requests.
(e)(1) A party may not seek additional discovery through interrogatories or requests for production of documents until that party has sought discovery through the arbitration discovery requests described herein.
(2) A party may not include any additional interrogatories or requests for production of documents in the arbitration discovery requests provided for in this rule.
(f) This rule applies to additional defendants.
(g) This rule does not apply to claims that do not exceed the sum of $12,000 (exclusive of interest and costs) wherein the parties' right to discovery for Small Claims shall be governed by Rule L1301.2(c).
Comment
While this rule does not bar additional discovery in arbitration proceedings, it is anticipated that depositions, additional interrogatories or additional requests for the production of documents will be unreasonably burdensome in most arbitration proceedings involving personal injury claims.
This rule does not affect the right to discovery provided by Pa.R.C.P. Nos. 4001—4020 for compulsory arbitration cases which are appealed pursuant to Pa.R.C.P. Nos. 1308—1311.
Rule L1302. Arbitrators.
(a) The Board of Arbitration shall be composed of 3 attorneys. The prothonotary shall maintain a list of available arbitrators who shall all be members of the Bar actively engaged in the practice of law primarily in McKean County. The Board of Arbitration shall be chaired by a member of the bar admitted to the practice of law for at least 3 years.
(b) After an arbitration panel has been selected and all parties notified thereof, any party or their counsel may request that an arbitrator disqualify themselves if their impartiality might reasonably be questioned including but not limited to instances where: they have a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding, or they have served as a lawyer in the matter in controversy or they have a substantial financial interest in the matter in controversy.
(c) Before entering upon their duties the members of the Board of Arbitration shall subscribe to an oath to perform their duties and decide the case submitted to them justly and equitably, and with due diligence, which oath shall be filed with their award. In all cases, a decision by majority of the members of the Board of Arbitration shall be conclusive.
(d) Each member of a Board of Arbitration who has signed the award shall receive as compensation for his/her services in each case or if several cases are heard on the same day by the same Board of Arbitration for each half day session a fee of $250. In cases requiring hearings of unusual duration or involving questions of unusual complexity, the court, on petition of the members of the Board and for cause shown, may allow additional compensation. The members of a Board shall not be entitled to receive their fees until after filing an award with the prothonotary. When the same is filed, the prothonotary shall issue an order for payment of such fees which shall be immediately paid from County funds as in the case of all other County debts. Fees paid to Arbitrators shall not be taxed as costs or follow the award as other costs.
Rule 1303.1. Hearing.
(a)(1) After the pleadings have been closed for 30 days cases may be listed for arbitration by one or more of the parties in the case or their counsel filing a Praecipe for Arbitration that shall include, to the extent possible, an estimate of the number of hours, or portion thereof, anticipated to be needed for the hearing, together with a listing fee in the amount of $100. The praecipe shall substantially conform to the form shown below. The party or counsel filing the Praecipe for Arbitration shall deliver a copy to the court administrator and shall forthwith serve a copy of the praecipe upon all other counsel of record and any unrepresented parties, who, if for any reason oppose such listing, shall within 10 days thereafter file their objection(s). Ten days after the case has been praeciped onto the list, if no objections thereto have been filed, the prothonotary shall promptly appoint a panel of 3 arbitrators one of whom to be appointed chairperson to hear and decide the case, and shall forward copies of all pleadings and other documents filed in the case to all arbitrators. The chairperson so appointed shall forthwith establish the time, date and place of the hearing and notify all counsel of record, unrepresented parties, and members of the arbitration panel thereof at least 30 days in advance unless a shorter time is stipulated to. All hearings shall be held within 60 days of the date the chairperson is appointed by the prothonotary. In the event the case is settled prior to hearing but after the chairperson has scheduled a hearing, $50 of the filing fee shall be paid to the chairperson as reimbursement for office expenses. In the event the case has been settled prior to hearing and before the chairperson has scheduled a hearing, $50 of the filing fee shall be refunded to the party who paid it. In either event the remaining $50 shall be retained by the prothonotary to reimburse expenses. The filing fee shall be charged to the party first listing the case for hearing, and only be assessed one time per case.
(a)(2)(i) The court may at any time, in its discretion, enter an order listing any case, arbitrable under this rule, for arbitration and may also set the time, date and place for the hearing. The court administrator shall forthwith notify all counsel of record and unrepresented parties that the case has been listed for arbitration and if a hearing date has been set, the time, date and place of the hearing. Counsel or any party who for any reason oppose such listing, shall within 10 days thereafter file their objection(s). Ten days after the case has been listed, if no objection thereto has been filed or no praecipe has been filed marking the case ''settled and discontinued'', the prothonotary shall promptly appoint a panel of 3 arbitrators one of whom to be appointed chairperson to hear and decide the case, and shall forward copies of all pleadings and other documents filed in the case to all arbitrators. In the event the case is settled before the Board of Arbitration is appointed no fee shall be assessed. In the event the case is settled after the Board of Arbitration has been appointed and before the hearing a fee in the amount of $50 shall be collected by the prothonotary from the Plaintiff to reimburse the prothonotary for expenses. A party who demonstrates a financial inability to pay all or a part of the aforesaid fee may request the court waive all or part of the fee.
(a)(2)(ii) If the court has entered an order listing the case for arbitration and did not in its order set the time, date and place for the hearing of the case and the Board of Arbitration has been appointed by the prothonotary, the chairperson shall forthwith establish the time, date and place of the hearing and notify all counsel of record, unrepresented parties, and members of the arbitration panel thereof at least 30 days in advance unless a shorter time is stipulated to. All hearings shall be held within 60 days of the date the Board of Arbitration is appointed by the prothonotary. In the event the case is settled before the Board of Arbitration is appointed no filing fee shall be assessed. In the event the case is settled after the Board of Arbitration has been appointed and before the chairperson has scheduled the hearing a fee in the amount of $50 shall be collected by the prothonotary from the Plaintiff as reimbursement to the prothonotary for expenses. In the event the case is settled after the chairperson has scheduled the hearing and before the hearing a fee in the amount of $100 shall be collected by the prothonotary from the Plaintiff, $50 of the fee shall be paid to the chairperson as reimbursement for his or her office expenses and the remaining $50 shall be retained by the prothonotary. A party who demonstrates a financial inability to pay all or a part of the aforesaid fee may request the court waive all or part of it.
Comment
In the event the matter is settled prior to hearing but after the Board of Arbitration has been appointed, counsel, or if there is no counsel involved, the parties, shall notify the chairperson of the Board of Arbitration of the terms of the settlement. See Rule L1306.
Form—Praecipe to List for Arbitration
| _________________ | : | IN THE COURT OF COMMON PLEAS OF |
Plaintiff
| : | McKEAN COUNTY, PENNSYLVANIA |
vs.
| : | CIVIL DIVISION - Law |
| _________________ |
Defendant
| : | NO. _________________ |
PRAECIPE TO LIST FOR ARBITRATION
To the Prothonotary:
Please list the above captioned matter for arbitration pursuant L1301.3(a)(1).
1. Are the pleadings closed? ______ yes ______ no (if no, explain below):
__________
__________
2. Are there any outstanding motions? ______ yes ______ no (if no, explain below):
__________
__________
3. Is discovery completed? ______ yes ______ no (If no, explain below):
__________
__________
4. The number of hours estimated to be needed for the hearing are: ______ hour(s).
5. 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]
Rule 1303.2. Notice.
The notice required to be given of the hearing pursuant to Pa.R.C.P. No. 1303(a)(1) shall be as follows:
Form—Arbitration Hearing Notice
| _________________ | : | IN THE COURT OF COMMON PLEAS OF |
Plaintiff
| : | McKEAN COUNTY, PENNSYLVANIA |
vs.
| : | CIVIL DIVISION - Law |
| _________________ |
Defendant
| : | NO. _________________ |
ARBITRATION HEARING NOTICE
Your case will be heard before a Board of Arbitration at the McKean County Courthouse, 500 Main Street, Smethport, Pennsylvania, on ______ , ______ , 201______ at ______ 9:00 A.M. ______ 1:00 P.M. Requests for continuances shall be made as soon as possible after receipt of this notice. The attached Motion for Continuance shall be used. Last minute requests for continuances ordinarily will not be granted.
DUTY TO APPEAR AT THE HEARING
THIS MATTER WILL BE HEARD BY A BOARD OF ARBITRATION 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 TRAIL DE NOVO ON APPEAL FROM A DECSION ENTERED BY A JUDGE.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Northwestern Legal Services
100 Main Street
Bradford, Pennsylvania 16701
Telephone: 1-814-362-6596
Rule 1303.3. Failure to Appear for Hearing.
If a party fails to appear for a scheduled arbitration hearing, the matter may, if all present parties agree, be transferred immediately to a Judge of the Court of Common Pleas for an ex parte hearing on the merits and entry of a non-jury verdict, from which there shall be no right to a trial de novo on appeal.
Comment
This rule results in the loss of a right to a trial de novo on appeal. A dismissal or judgment which results from this rule will be treated as any other final judgment in a civil action subject to Pa.R.C.P. No. 227.1.
Rule 1304.2. Conduct of Hearing.
(a) The Board of Arbitration, or a majority of the members thereof, shall conduct the hearing before them with due regard to the law and according to the established rules of evidence, and shall have the general powers of a court including, but not limited to, the following powers:
(1) To issue subpoenas to witnesses to appear before the Board as in other civil actions, and to issue an attachment upon allowance by the court for failure to comply therewith.
(2) To compel the production of all books, papers and documents which they shall deem material to the case.
(3) To administer oaths or affirmations to witnesses, to determine the admissibility of evidence, to permit testimony to be offered by deposition, and to decide the law and facts of the case submitted to them.
(4) To adjourn their meetings from time to time.
(i) If, after the appointment of a Board of Arbitration, but before hearing, one of the members thereof shall die or become incapable of acting, or shall refuse to attend the hearing, or shall remove or depart from the county, the remaining members of the Board shall, upon agreement of the parties, proceed to hear the matter at issue.
(ii) If a member of the Board dies or becomes incapable of acting, or shall fail or refuse to perform his duties, after hearing but before an award shall be made, the case shall be decided and the award signed by the remaining members of the Board. If they cannot agree, the matters shall be heard de novo by a new Board, to consist of the remaining members plus a third to be appointed by the prothonotary.
(b)(1) The Board shall have the right to proceed ex parte in a proper case if, after due notice, one of the parties fails to appear at the hearing and does not request a continuance for good cause, or
(2) If a party fails to appear at the hearing the case may be transferred immediately to a Judge of the court of common pleas for an ex parte hearing on the merits and entry of a non-jury verdict, from which there shall be no right to a trial de novo on appeal. A non-jury verdict entered at a hearing held pursuant to this rule shall not exceed $50,000 (exclusive of interest and costs) to any party.
(c) In all cases the filing of proposed findings of fact, conclusions of law and a memorandum of support shall be permitted and encouraged. The findings of fact, conclusions of law and memorandum shall be filed with the prothonotary in advance of the arbitration hearing and a copy served on each party and each arbitrator.
(d) At least 7 days before the date of the hearing, the case may be continued 1 time by agreement of all counsel and unrepresented parties. The counsel or party requesting the continuance shall give written notice of such continuance to the arbitrators. The chairperson of the Board of Arbitration shall reschedule the case to be heard within 30 days, with notice of hearing to be provided to all arbitrators, counsel and unrepresented parties. In the event that the parties cannot agree to a continuance more than 7 days prior to the scheduled hearing date a motion for continuance must be made to and ruled upon by the court. If the case is continued by the court, the chairperson shall reschedule the hearing following the procedure set forth above.
Rule 1306. Award.
(a) In the event the matter is settled prior to hearing but after the Board of Arbitration is appointed counsel or, if there is no counsel involved, the parties shall notify the chairperson of the Board of Arbitration of the terms of the settlement and the Board of Arbitration shall enter an award consistent with the terms of settlement and file the same with the prothonotary.
(b) The Board of Arbitration shall make their decision promptly and shall file their award with the prothonotary within 7 days after the making of their decision. The award shall be signed by all or a majority of the members of the Board. The award shall dispose of all claims for relief and shall comply with Pa.R.C.P. No. 1312. The prothonotary shall file the award and enter the same in the proper dockets and transmit a copy thereof by mail to the parties or their counsel. The prothonotary shall record any award in the judgment index as verdicts are now recorded.
(c) Any party seeking damages under Pa.R.C.P. 238 (relating to award of damages for delay in an action for bodily injury, death or property damage) shall at the conclusion of the hearing submit to the Board of Arbitration, in a sealed envelope, a statement substantially in the form shown below. If no settlement offer has been made by any one or more defendants the Board of Arbitration shall reconvene the hearing for the purpose of assessing delay damages. The arbitrators shall not open said envelope until they have reached their basic award. The envelope and the writing contained therein shall be filed with the papers in the case.
Form—Delay Damages
| _________________ | : | IN THE COURT OF COMMON PLEAS OF |
Plaintiff
| : | McKEAN COUNTY, PENNSYLVANIA |
vs.
| : | CIVIL DIVISION - Law |
| _________________ |
Defendant
| : | NO. _________________ |
DELAY DAMAGES
To the Board of Arbitration:
(1) On what date did the cause of action accrue?_________________
(2) On what date was the Complaint filed?_________________
(3) Was a written offer of settlement made by the Defendant, or additional Defendant?
______ Yes
If yes, by whom? _________________ and state:
(a) The date of the written offer _________________ ;
(b) Was it in effect at the time of commencement of the hearing? ______ Yes ______ No;
(c) The amount of the offer of settlement was ____ ;
Attach a copy of the written offer of settlement.
______ No
Respectfully submitted,
Attorney for Plaintiff(s)
_________________
Attorney for Defendant(s)
_________________
Rule 1308. Appeal.
(a) The award, if any, unless appealed from as herein provided, shall be final and shall have all the attributes and legal effect of a judgment entered by a court of competent jurisdiction. If no appeal is taken within the time allotted therefore, execution process may be issued on the award as in the case of other judgments.
(b) An appeal from an award by the Board of Arbitration shall be taken pursuant to Pa.R.C.P. Nos. 1308—1311. Appellant shall furnish the prothonotary with a copy of the appeal from the award of the Board of Arbitration for the court administrator. Discovery shall be permitted only by order of court upon good cause shown.
(c) The appealing party shall pay to the prothonotary the sum of $750.00 but not more than 50% of the amount in controversy, as compensation for the Arbitrators, which shall not be taxed as costs or be recoverable in any proceeding. A party who demonstrates a financial inability to pay all or a part of the aforesaid fee may request the court waive all or part of it.
(d) All appeals shall be de novo except when the case is transferred to and decided by a Judge of the Court of Common Pleas pursuant to Rule L1304.2(b)(2). Despite any costs which a successful appellant may recover from the adverse party, he shall nevertheless not be entitled to recover the arbitrators' fees paid by him as a condition of taking his appeal.
(e) Any party may file exceptions with the court from the decision of the Board of Arbitration within 20 days from the filing of the award for either or both of the following reasons and for no other:
(1) That the arbitrators misbehaved themselves in the conduct of the case;
(2) That the actions of the Board were procured by corruption or other undue means. If such exceptions shall be sustained, the award of the Board shall be vacated by the court.
Comment
An appeal from an award of a Board of Arbitration is governed by Pa.R.C.P. Nos. 1308, et seq.
MEDIATION
The Pennsylvania Rules of Civil Procedure contain 3 rules that relate to mediation. They are Pa.R.C.P. No. 1042.21 (Medical Professional Liability Actions), Pa.R.C.P. No. 4011(d) (Limitation of Discovery and Deposition) and Pa.R.C.P. No.1940.1 et seq. (Mediation in Custody Actions) See also L1940.1. There is no Pennsylvania Rule of Civil Procedure that corresponds to Rule L1341.
Rule L1341. Mediation.
(a) Appropriate civil cases including medical professional liability actions that have progressed beyond the exchange of expert reports and family law cases that involve a claim for equitable distribution of property may be referred to mediation by order of the court (mediation of custody disputes is addressed by Rule L1940.1), on the motion of any party which shall include a certification that it believes there is a realistic possibility of settlement, following a stipulation by all parties, or on the court's initiative.
(b)(1) The parties shall within 30 days after the date of the court order referring the case to mediation choose a mediator who is available during the appropriate period and has no apparent conflict of interest. If the parties are unable to choose a mutually acceptable mediator the court will appoint a mediator.
(2) Except by agreement of all the parties or as otherwise ordered by the court, one-half the cost of the mediator's services must be borne by the plaintiff(s) and one-half by the defendant(s). In a case with third-party defendants, the cost must be divided into three equal shares. Compensation must be paid directly to the mediator upon the conclusion of the mediation, or as otherwise agreed to by the parties and the mediator. Failure to pay the mediator shall be brought to the court's attention.
(3) A party who demonstrates a financial inability to pay all or a part of that party's pro rata share of the mediator's fee may request the court waive all or part of that party's share of the fee. Other parties to the case who are able to pay the fee must bear their pro rata portions of the fee.
(c) Promptly after being chosen to mediate a case, the mediator shall, after consulting with all parties, fix the date, time and place of the mediation. All mediations shall be held within 90 days of the court's order referring the case to mediation.
(d) At least 10 days before the date of the mediation, the mediation may be continued 1 time by agreement of all counsel. The counsel or party requesting the continuance shall give written notice of such continuance to the mediator. The mediator shall reschedule the case to be heard within 60 days, with notice of hearing to be provided to all counsel. In the event that the parties cannot agree to a continuance more than 10 days prior to the scheduled mediation date a motion for continuance must be made to and ruled upon by the court. If the case is continued by the court, the mediator shall reschedule the mediation in accordance with the court's order granting the continuance.
(e)(1) All named parties and their counsel are required to attend the mediation unless excused under subparagraph (d) below. A party other than a natural person (e.g. a corporation or an association) satisfies this attendance requirement if represented by a decision maker(s) (other than outside counsel) who has full settlement authority and is knowledgeable about the facts of the case. A unit or agency of government satisfies this attendance requirement if represented by a person who has, to the greatest extent feasible, full settlement authority, and is knowledgeable about the facts of the case, the government unit's position, and the procedures and policies under which the government unit decides whether to accept proposed settlements. If the action is brought by the government on behalf of one or more individuals, at least one such individual also must attend. Any party who fails to have physically in attendance the necessary decision maker(s) will be subject to sanctions.
(2) Each represented party must be accompanied at the mediation by the lawyer who will be primarily responsible for handling the trial of the matter. If a party is preceding pro se and if any other party is being represented by a lawyer at the mediation, the court will appoint an attorney to assist the pro se party at the mediation. The appointed attorney shall receive as compensation for his/her services a fee of $250.00 that shall be paid by the pro se party. In mediations of unusual duration (more than 1 day) the court, on petition of the attorney and for cause shown, may allow additional compensation. The court may waive all or part of the attorney's fee if the pro se party demonstrates a financial inability to pay.
(3) Insurer representatives are required to attend in person unless excused under subparagraph (4) below, if their agreement would be necessary to achieve a settlement.
(4) A person who is required to attend mediation may be excused from attending in person only after a showing that personal attendance would impose an extraordinary or otherwise unjustifiable hardship. A person seeking to be excused must file a motion with the court no fewer than 10 days before the date set for the mediation, simultaneously copying all counsel and the mediator.
(5) A person excused from appearing in person at mediation must be available to participate by telephone.
(f) The mediation must be informal and must employ a facilitative method. The mediator may hold separate, private caucuses with each side or each lawyer or, if the parties agree, with the parties only. The mediator may not disclose communications made during the caucus to another party or counsel without the consent of the party who made the communication.
(g) Within 5 days of the conclusion of the mediation, the mediator shall file a written report with the court that includes the caption and case number, the date of the mediation, whether any follow up is scheduled, whether the case settled in whole or in part, and any stipulations the parties agree may be disclosed.
Explanatory Comment
Mediation is a flexible, non-binding, confidential process (See 42 Pa.C.S. § 5949) in which a neutral person (the mediator), selected by the parties, facilitates settlement negotiations. The mediator improves communication across party lines, helps parties articulate their interests and understand those of their opponent, identifies issues and helps generate options for a mutually agreeable resolution to the dispute. A hallmark of mediation is its capacity to expand traditional settlement discussion and broaden resolution options, often by exploring litigant needs and interests that may be formally independent of the legal issues in controversy.
Comment
All named parties and their counsel are required to attend the mediation This requirement reflects the court's view that the principal values of mediation include affording litigants opportunities to articulate directly to the other parties their positions and interests and to hear, first hand, their opponent's version of the matters in dispute. Mediation also enables parties to search directly with their opponent for mutually agreeable solutions.
MINORS AS PARTIES
Rule L2039.1. Minors—Compromise, Settlement, Discontinuance and Distribution.
(a) A petition for settlement of a case in which a minor has an interest shall be filed with the prothonotary.
(b) The petition shall:
(1) Set forth the factual circumstances of the case;
(2) State the reasons why the settlement is a proper one; and
(3) Be accompanied by the following:
(i) A proposed Order of Distribution;
(ii) A written report of a physician;
(iii) In property damage claims, a statement by the party who made the repairs or appraised the loss;
(iv) A statement under oath by the guardian certifying (1) the present physical or mental condition of the minor, and (2) approval of the proposed settlement and distribution thereof;
(v) A statement of the professional opinion of counsel as to the reasonableness of the proposed settlement and the basis for such opinion; and,
(vi) In the event that the minor is 16 years of age or over, his or her written approval of the proposed settlement and distribution thereof.
(c) The Order of Distribution shall include an award of counsel fees. The standard for the award of counsel fees in the representation of minors is that the fees be reasonable in accordance with the guidelines set forth in Rule 1.5 of the Rules of Professional Conduct. The attorney fee determined shall be reduced by the amount of collateral payments received as counsel fees for representation involving the same matter from third parties such as BlueCross/Blue Shield.
(d) The court, may in its discretion, require the personal appearance of the minor, his or her guardian(s), his or her doctor, or any other relevant party, as well as the production of any evidence deemed necessary for approval of the Petition.
Comment
Under normal circumstances a counsel fee in the amount of one-quarter of the net fund recovered shall be considered reasonable, subject to the approval of the court.
INCAPACITATED PERSONS AS PARTIES
Rule L2064.1. Incapacitated Persons
Compromise, Settlement, Discontinuance and Distribution.
(a) A petition for settlement of a case in which an incapacitated person has an interest shall be filed with the prothonotary.
(b) The petition shall:
(1) Set forth the factual circumstances of the case;
(2) State the reasons why the settlement is a proper one; and
(3) Be accompanied by the following:
(i) A proposed Order of Distribution;
(ii) A written report of a physician;
(iii) In property damage claims, a statement by the party who made the repairs or appraised the loss;
(iv) A statement under oath by the guardian certifying (1) the present physical or mental condition of the incompetent person, and (2) approval of the proposed settlement and distribution thereof;
(v) A statement of the professional opinion of counsel as to the reasonableness of the proposed settlement and the basis for such opinion; and,
(c) The Order of Distribution shall include an award of counsel fees. The standard for the award of counsel fees is that the fees be reasonable in accordance with the guidelines set forth in Rule 1.5 of the Rules of Professional Conduct. The attorney fee determined shall be reduced by the amount of collateral payments received as counsel fees for representation involving the same matter from third parties such as BlueCross/Blue Shield.
(d) The court, may in its discretion, require the personal appearance of the incompetent person, his or her guardian, his or her doctor, or any other relevant party, as well as the production of any evidence deemed necessary for approval of the Petition.
Comment
Under normal circumstances a counsel fee in the amount of one-quarter of the net fund recovered shall be considered reasonable, subject to the approval of the court.
UNINCORPORATED ASSOCIATIONS AS PARTIES
Rule L2152. Actions by Associations.
The Plaintiff's initial pleading in an action prosecuted by an association shall set forth the names and addresses of the officers thereof or of all persons known to be holding themselves out as such. In case the said officers do not constitute the trustees ad litem, or have not consented to the prosecution of the action by consent in writing attached to the initial pleading, the plaintiffs shall serve notice, in the manner provided in Pa.R.C.P. No. 440 of the bringing of the action upon said officers within 10 days thereafter and file proof thereof in the action; otherwise, the action shall be automatically stayed until such proof is filed.
ACTIONS FOR WRONGFUL DEATH
Rule L2205. Notice to Persons Entitled to Damages.
Notice shall in all cases be given personally or by registered or certified mail to each person entitled by law to recover damages in the action, unless the plaintiff shall file an affidavit that the identity or whereabouts of any such person is unknown to him after diligent search therefore, in which case the plaintiff shall cause the notice to be advertised one time in a newspaper of general circulation published in McKean County. Proof of such publication shall be filed in the prothonotary's office
Rule L2206.1. Minors and Incapacitated Persons.
Actions for Wrongful Death Compromise, Settlement, Discontinuance and Judgment
The procedures for compromise, settlement, discontinuance and distribution in wrongful death and survival actions in which a minor or an incapacitated person has an interest shall be identical to the procedures for the approval of settlements described in Rules L2039.1 or L2064.1.
Rule L2232. Service of Notice to Persons Required to be Joined.
Service under this rule shall be made by personal service by any competent adult as provided in Pa.R.C.P. No. 402 or by registered mail pursuant to Pa.R.C.P. No. 403.
SUBSTITUTION OF PARTIES
Rule L2353. Service of Rule.
When a party seeks to serve a successor by publication, he shall advertise a notice of the Rule one time in a newspaper of general circulation published in McKean County. Proof of such publication shall be filed in the prothonotary's office.
Rule L2952. Confessed Judgments.
When a judgment is entered upon any instrument containing a warrant of attorney, which instrument accompanies a mortgage, a statement shall be placed in the complaint showing the book and the page where said mortgage is recorded. If the instrument is entered without a complaint, a statement shall be placed upon the instrument itself.
ENFORCEMENT OF JUDGMENTS
Rule L3110. Execution Against Contents of Safe Deposit Box.
When the Plaintiff seeks to serve a party by publication as provided in Pa.R.C.P. No. 3110(c) it shall be sufficient service to publish said notice one time in a newspaper of general circulation in McKean County. Proof of such publication shall be filed in the prothonotary's office.
Rule L3112. Service upon Garnishee.
Real Property of Defendant in Name of Third Party
Whenever a party seeks to serve a garnishee by publication as provided in Pa.R.C.P. No. 3112(c) it shall be sufficient service to publish said notice one time in a newspaper of general circulation in McKean County. Proofs of publication shall be filed in the prothonotary's office.
Rule L3123. Debtor's Exemption.
The sheriff following an appraisal or designation shall immediately thereafter and before sale give notice thereof by first class United States mail to all interested parties of the appraisal or designation, which notice shall set forth the right of appeal to the Court of Common Pleas within 48 hours thereof.
Rule L3128. Notice of Sale of Personal Property.
One copy of the handbill shall be mailed, by certified United States mail, to the defendant by the sheriff.
DEPOSITIONS AND DISCOVERY
Rule L4010. Exchange of Medical Reports.
When a mental or physical examination has been made pursuant to Pa.R.C.P. No. 4010, counsel shall be prepared to exchange medical reports, as provided therein, not more than 30 days after the examination has been made.
[Pa.B. Doc. No. 12-1941. Filed for public inspection October 5, 2012, 9:00 a.m.]
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