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PA Bulletin, Doc. No. 00-208

THE COURTS

PART I.  GENERAL

[231 PA. CODE CH. 1000]

Proposed Rule 1035.10 Governing Motion to Dismiss upon Affidavit of Noninvolvement; Proposed Recommendation No. 157

[30 Pa.B. 621]

   The Civil Procedural Rules Committee proposes that the Rules of Civil Procedure be amended by adding new Rule 1035.10 governing a motion to dismiss upon affidavit of noninvolvement. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   All communications in reference to the proposed recommendation should be sent not later than March 10, 2000 to: Harold K. Don, Jr., Esquire, Counsel, Civil Procedural Rules Committee, 5035 Ritter Road, Suite 700, Mechanicsburg, Pennsylvania 17055 or E-Mail to civil.rules@supreme.court.state.pa.us.

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will neither constitute part of the rules of civil procedure nor be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 1000.  ACTIONS

Subchapter A.  CIVIL ACTION

PLEADINGS

Rule 1035.10.  Dismissal Upon Affidavit of Noninvolvement.

   In an action in which an Act of Assembly provides for dismissal upon an affidavit of noninvolvement, the party seeking dismissal shall file a motion to dismiss which includes the affidavit. Upon reviewing the motion and determining that the party filing it has established a prima facie case for dismissal, the court shall enter an order scheduling a final argument and directing the plaintiff to file prior to the argument affidavits, depositions and such other evidentiary materials as would permit a jury to find that the party was involved in any activities upon which the claim is based. The final argument shall be limited to the sole issue of whether the plaintiff has met the burden.

   Official Note: The following Acts of Assembly provide for dismissal of a party from an action pursuant to an affidavit of noninvolvement: Section 7502 of the Judicial Code, 42 Pa.C.S. § 7502, relating to construction design professionals and Section 827-A of the Health Care Services Malpractice Act, 40 P. S. § 1301.827-A, relating to health care providers.

Explanatory Comment

   Proposed new Rule 1035.10 sets forth a procedure to govern dismissal from an action pursuant to an affidavit of noninvolvement. Two statutes presently provide for such an affidavit: Section 7502 of the Judicial Code1 relating to construction design professionals and Section 827-A of the Health Care Services Malpractice Act2 relating to health care providers.

   These statutes speak of having ''the action against such construction design professional dismissed upon the filing of an affidavit of noninvolvement''3 and of causing an action against a health care provider ''to be dismissed upon the filing of an affidavit of noninvolvement with the court.''4 The role of the court in these procedures, not specified by the statutes, would be supplied by the proposed rule.

By the Civil Procedural Rules Committee

REA BOYLAN THOMAS,   
Chair

[Pa.B. Doc. No. 00-208. Filed for public inspection February 4, 2000, 9:00 a.m.]

_______

1  42 Pa.C.S. § 7502.

2  40 P. S. § 1301.827-A.

3  42 Pa.C.S. § 7502(a).

4  40 Pa.C.S. § 1301.827-A(a).


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