Pennsylvania Bulletin

PA Bulletin, Doc. No. 02-36

THE COURTS

PART I.  GENERAL

[231 PA. CODE CH. 200]

Proposed Recommendation No. 176; Proposed New Rule 212.4 Governing Pre-Trial Procedure in Appeals Pursuant to the Eminent Domain Code

[32 Pa.B. 247]

   The Civil Procedural Rules Committee proposes that new Rule of Civil Procedure 212.4 governing pretrial procedure in appeals pursuant to the Eminent Domain Code be promulgated as set forth herein. 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 1, 2002 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 not constitute part of the rules of civil procedure or be officially adopted or promulgated by the Court.

   (Editor's Note:  The following section is new and is printed in regular type to enhance readability.)

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 200.  BUSINESS OF COURTS

Rule 212.4.  Applicability of Rules. Eminent Domain.

   (a)  The name of a valuation expert and his or her statement of valuation required to be served on the opposing party by Section 703(2) of the Eminent Domain Code shall be served within the time provided for the filing of a pre-trial statement by Rule 212.1. A party failing to comply with this rule shall be subject to the sanctions set forth in Rule 212.2(c).

   (b)  Section 703(2) of the Eminent Domain Code, 26 P. S. § 1-703(2), is suspended only insofar as it provides for the name and report of the valuation expert to be served at least ten days before the commencement of the trial.

Explanatory Comment

   Section 1-703(2) of the Eminent Domain Code, 26 P. S. § 1-703(2),¹ requires that an expert report be filed at least 10 days prior to the commencement of the trial. At the time this requirement was enacted, very few courts required the filing of an expert report prior to trial. The ten-day requirement for exchanging reports now provides less notice of the proposed expert testimony than is provided in other civil actions.

   Pa.R.C.P. 212.1² requires the filing of a pre-trial statement

   (1)  by the plaintiff not later than sixty days prior to the earliest trial date,

   (2)  by the defendant not later than thirty days prior to the earliest trial date, and

   (3)  by an additional defendant not later than fifteen days prior to the earliest trial date.

   The pretrial statement pursuant to Rule 212.2(a)³ is required to contain ''a list of the names and addresses of all person who may be called as witnesses by the party filing the statement'' and ''a copy of the written report  . . .  containing the opinion and the basis for the opinion of any person who may be called as an expert witness''

   It is proposed that new Rule 212.4 be added to the rules of civil procedure to conform the time for serving the name of a valuation expert and his or her statement of valuation to that of Rule 212.1. This proposal will place eminent domain cases on a footing which corresponds to jury trials generally and fosters the salutary principles underlying the pre-trial rules.

By the Civil Procedural Rules Committee

R. STANTON WETTICK, Jr.,
Chair

______

   ¹ § 1-703. Trial in the court of common pleas on appeal
   At the trial in court on appeal:
   (1)  * * *
   (2)  If any valuation expert who has not previously testified before the viewers is to testify, the party calling him must disclose his name and serve a statement of his valuation of the property before and after the condemnation and his opinion of the highest and best use of the property before the condemnation and of any part thereof remaining after the condemnation, on the opposing party at least ten days before the commencement of the trial.
   (3) * * *

   ² Rule 212.1. Civil Actions to be Tried by Jury. Notice of Earliest Trial Date. Time for Completing Discovery and Filing Pre-Trial Statement
   (a)  In a civil action in which the damages sought exceed the jurisdictional limit for compulsory arbitration and which is to be tried by a jury, notice shall be given by the court of the earliest date on which the case may be tried. The notice should be given at least thirty days before the plaintiff's pre-trial statement is due to be filed. The notice may include a date by which discovery shall be completed.
   Note:  It is not intended by this rule to change the form and manner of notice of trial.
   (b)  A pre-trial statement shall be filed
   (1)  by the plaintiff not later than sixty days prior to the earliest trial date,
   (2)  by the defendant not later than thirty days prior to the earliest trial date, and
   (3)  by an additional defendant not later than fifteen days prior to the earliest trial date.
   Note:  A copy of the pre-trial statement must be served upon every other party to the action. See Rule 440(a).
   (c)(1)  The times set forth in subdivision (b) may be made earlier by published local rule or by special order or as set forth in a trial list published in the county law journal or otherwise made available to the parties.
   (2)  The times set forth in subdivision (b) may be made later by published local rule or by special order in a particular case.
   Note:  In a county which requires that discovery be complete and expert reports be exchanged prior to listing a case for trial, the court by local rule may provide for the simultaneous filing of pre-trial statements.
   The court by local rule may extend Rules 212.1 and 212.2 to apply to actions to be tried non-jury as well as by jury and to other forms of action in addition to civil actions.

   ³ Rule 212.2. Civil Actions to be Tried by Jury. Pre-Trial Statement. Content. Sanctions
   (a)  A pre-trial statement shall contain
   (1)  a brief narrative statement of the case;
   (2)  a list of the types and amounts of all damages claimed;
   (3)  a list of the names and addresses of all persons who may be called as witnesses by the party filing the statement, classifying them as liability or damage witnesses. A reference which does not state the name of the witness shall be permitted when the witness is described by title or representative capacity;
   Note:  A listing of ''anyone named in discovery'' is insufficient under this rule. A listing of a ''records custodian'' of a specific entity is a sufficient listing.
   This rule does not contemplate that the pre-trial statement include a list of witnesses for use in rebuttal or for impeachment. These matters are governed by case law.
   (4)  a list of all exhibits which a party intends to use at trial;
   Note:  This rule does not contemplate that the pre-trial statement include a list of exhibits for use in rebuttal or for impeachment. These matters are governed by case law.
   (5)  a copy of the written report, or answer to written interrogatory consistent with Rule 4003.5, containing the opinion and the basis for the opinion of any person who may be called as an expert witness;
   Note:  The notes or records of a physician may be supplied in lieu of written reports.
   (6)  stipulations of the parties, if any; and
   (7)  such additional information as the court by local rule or special order may require.
   * * *

[Pa.B. Doc. No. 02-36. Filed for public inspection January 11, 2002, 9:00 a.m.]

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