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PA Bulletin, Doc. No. 97-814

THE COURTS

MONTGOMERY COUNTY

Local Rule of Civil Procedure 1041.1*; No. 97-00001-1

[27 Pa.B. 2537]

Order

   And Now, this 30th day of April, 1997, the Court approves and adopts the following Amendment to Montgomery County Local Rule of Civil Procedure 1041.1*--Asbestos Litigation--Special Provisions. This Amendment to the Rule shall become effective thirty (30) days after the date of publication in the Pennsylvania Bulletin.

   The Court Administrator is directed to publish this Order once in the Montgomery County Law Reporter and in the Legal Intelligencer. In conformity with Pa.R.C.P. 239, seven (7) certified copies of the within Order shall be filed by the Court Administrator with the Administrative Office of Pennsylvania Courts. Two (2) certified copies shall be distributed to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin. One (1) certified copy shall be filed with the Civil Procedural Rules Committee. One (1) copy shall be filed with the Prothonotary, one (1) copy with the Clerk of Courts, one (1) copy with the Court Administrator of Montgomery County, one (1) copy with the Law Library of Montgomery County, and one (1) copy with each Judge of this Court.

By the Court

JOSEPH A. SMYTH,   
President Judge

AMENDMENT TO M.R.C.P. 1041.1*

Rule 1041.1*.  Asbestos Litigation--Special Provisions.

   Asbestos litigation in Montgomery County is governed by the Pennsylvania Rules of Civil Procedure and the Montgomery County Local Rules of Civil Procedure, except as follows:

   (1)--(4)  Unchanged.

   (5)  The following procedure shall be in effect with respect to cases subject, or alleged to be subject to Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996):

   A.  Within four (4) months of the effective date of this subsection with respect to asbestos cases pending on the effective date, and within four (4) months after the filing of each asbestos case filed after the effective date of this Rule, plaintiff in each such case shall either elect to pursue a claim for medical monitoring, or transfer the case to inactive status.

   B.  A plaintiff desiring to pursue a claim for medical monitoring shall, by letter, notify the law clerk for asbestos litigation, with copies to all other counsel. The law clerk for asbestos litigation shall consult with the Court, which will issue appropriate Orders scheduling a conference, and thereafter list the case for arbitration or trial, as appropriate.

   C.  With respect to cases in which plaintiff does not presently wish to pursue a claim for medical monitoring plaintiff shall file with the Prothonotary, and serve on all other counsel and on the law clerk for asbestos litigation, a praecipe to transfer to inactive status. The praecipe shall be in the following form:

   ''[Caption]

   PRAECIPE TO TRANSFER INACTIVE STATUS TO THE PROTHONOTARY:

   Transfer the above-captioned matter to inactive status in accordance with Montgomery County Local Rule of Civil Procedure 1041.1*(5).
__________Attorney for Plaintiff

   [Certificate of Service]''

   D.  Anytime after the expiration of four (4) months from the effective date of this subsection with respect to asbestos cases pending on that date, and anytime after four (4) months from the commencement of any action commenced after the effective date of this subsection, any defendant who asserts that any case should be transferred to inactive status because it falls within the rule of Simmons v. Pacor, Inc., supra., shall file with the Prothonotary, a Petition to Transfer to Inactive Status. The Petition shall be in accordance with Pa.R.C.P. 206.1, and Montgomery County Local Rules of Civil Procedure *302 and 1041.1*(2). The argument court cover sheet shall request a return day in accordance with Montgomery County Local Rule of Civil Procedure 302(b). Copies of the petition shall be served on all other counsel in accordance with Montgomery County local rules and practice, and shall also be served on the law clerk for asbestos litigation. The moving party's proposed order shall be in the following form:

''ORDER

   AND NOW, this ____ day of 199_, IT IS ORDERED that the above-captioned matter is transferred to inactive status in accordance with Montgomery County Local Rule of Civil Procedure 1041.1*(5).

BY THE COURT:
__________J.''

Responses shall be filed at or before the time the rule is returnable, and shall be served on all counsel and on the law clerk for asbestos litigation.

   E.  Upon receipt of any responses, the law clerk for asbestos litigation shall refer the petition to the Court, which will schedule the matter for argument or hearing as appropriate. If no responses are filed the Court Administrator will forward the Petition to the Signing Judge.

   F.  After a case has been transferred to inactive status, whether by praecipe or by petition and order, the Prothonotary will maintain the case as an inactive file, the law clerk for asbestos litigation will remove the case from the list of pending cases eligible for trial listing, and no party may take any action with respect to the case, except for the taking of depositions of an aged or infirm witness for purposes of preservation of testimony unless and until the Court, by Order shall direct that the case be re-transferred to active status, upon petition and rule filed in accordance with the procedure set forth in sub-paragraph (D), above.

Comments--1.5. Unchanged.

   6.  At the time of the adoption of the addition of subparagraph (5) the Court was aware that litigation was pending in other jurisdictions relating to the manner in which claims for medical monitoring can be pursued, and if such claims can be pursued. The provisions of this subsection (5) creating a procedure to pursue medical monitoring claims does not express the Court's opinion on this issue. This Rule does not preclude any appropriate motion in any case.

[Pa.B. Doc. No. 97-814. Filed for public inspection May 23, 1997, 9:00 a.m.]


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