THE COURTS
Title 255--LOCAL
COURT RULES
ARMSTRONG COUNTY
Local Rules of Civil Procedure
[32 Pa.B. 4332]
PART I
LOCAL RULES OF CIVIL PROCEDURE
(cited as L.R.C.P. No. ____ )
RULES OF CONSTRUCTION Rule 51. 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 ''L.R.C.P. No. ____ .''
Rule 76. Definitions.
Unless the context clearly indicates otherwise, the words and phrases used herein shall bear the same meaning as they bear in the Pennsylvania Rules of Civil Procedure.
Rule 101. Principles of Interpretation.
In the construction of any of these rules, the principles of interpretation set forth in the Pennsylvania Rules of Civil Procedure shall be used.
BUSINESS OF COURTS Rule 205.2. Filing Legal Papers with the Prothonotary. Format.
(a) No pleading or other legal paper that complies with the Pennsylvania Rules of Civil Procedure shall be refused by the Prothonotary for filing because it fails to comply with these rules.
(b) All legal papers shall be 8 1/2" × 11" in size and be side bound.
Comment The provisions of subsection (a) of this rule mirror the provisions of Pa.R.C.P. No. 205.2.Rule 205.3. Pleadings and Other Legal Papers. Name of Attorney to be Typewritten or Printed.
Every legal paper signed by an attorney shall have the name of the attorney typewritten or printed immediately beneath the place of signature.
Rule 206.1. Petition.
(a) A petition shall specify the relief sought and state the material facts which constitute the grounds therefor.
(b) A petition shall be divided into paragraphs numbered consecutively. Each paragraph shall contain as far as practicable only one material allegation.
(c) Each petition shall have a cover sheet attached thereto as a front page. The cover sheet shall be substantially in the form prescribed by Appendix A of these Local Rules.
Rule 206.2. Answer to Petition.
(a) An answer shall state the material facts which constitute the defense to the petition.
(b) An answer to a petition shall be divided into paragraphs, numbered consecutively, corresponding to the numbered paragraphs of the petition.
(c) No answer shall contain a separate section entitled or equivalent to new matter. If an answer does contain such a separate section, no reply thereto need be filed.
Rule 206.3. Verification.
(a) A petition or an answer containing an allegation of fact which does not appear of record shall be verified.
(b) The Prothonotary shall not accept for filing any unverified petition or answer which is required to be verified.
Comment Usually a petition will aver facts not of record, and must be verified. A motion usually will aver only facts of record, and need not be verified.Rule 206.4. Rule to Show Cause.
(a) A rule to show cause shall be issued by the Court as of course upon petition. The rule shall direct that an answer be filed to the petition within twenty (20) days after service of the petition on the respondent. The Court may, in appropriate circumstances, direct that an answer be filed within a shorter period of time, or dispense with the necessity of filing an answer altogether.
(b) A petition seeking only the issuance of a rule to show cause shall be filed with the Prothonotary. Thereafter, the Prothonotary shall immediately transmit the petition to the Court Administrator. No advance notice of the filing need be given to any party.
(c) Every petition shall have attached to it a proposed order substantially in the form prescribed by Appendix B of these Local Rules, providing for an evidentiary hearing. The Court on its own motion or upon request of a party may require a case to be submitted on the basis of depositions and oral argument instead of an evidentiary hearing.
(d) The petition may request and the proposed order may provide for a stay of the proceedings. Stays will not be issued as of course.
Comment The form of the order is prescribed by Pa.R.C.P. No. 206.6(c) and the Note thereto.Rule 210. Briefs.
Issues which are raised by pleadings, petitions, motions, applications, or otherwise and which are not addressed in a brief by the person raising such issues, shall be deemed to have been waived when submission of the brief has been ordered by the Court.
Rule 212.1. Case Ready for Pre-trial Conference.
(a) A case involving a civil action or an action in equity, including an appeal from compulsory arbitration and any matter triable by a judge sitting without a jury, may be placed upon the Pre-trial Conference List upon praecipe of any party directed to the Prothonotary. A case involving an orphans' court matter shall likewise be placed on the Pre-trial Conference List by the Prothonotary upon delivery to the Prothonotary by the Clerk of the Orphans' Court Division of a copy of any praecipe filed with the Clerk to cause the matter to be scheduled for a pre-trial conference.
(b) The Prothonotary, at least monthly, shall provide the Court Administrator with a list of all cases placed upon the Pre-trial Conference List.
(c) The Court Administrator shall cause each case on the Pre-trial Conference List to be scheduled for a pre-trial conference before one of the judges of the Court. The Prothonotary shall serve a copy of the scheduling order upon all attorneys of record and upon all parties for whom no appearance has been entered, at least twenty (20) days before the scheduled date.
(d) Discovery shall be substantially completed prior to the filing of the praecipe placing the case on the Pre-trial Conference List.
(e) The Court, upon petition presented in Motions Court, upon good cause shown, may continue the date of a pre-trial conference or remove a case from the Pre-trial Conference List.
(f) A pre-trial conference subsequent to the first such conference may be scheduled by the Court on its own motion. A party may move that a subsequent pre-trial conference be scheduled by motion presented in Motions Court.
Rule 212.2. Pre-trial Statements.
(a) All parties shall file a pre-trial statement at least three (3) days prior to the initial pre-trial conference.
(b) A party may file an amended pre-trial statement as of course at any time prior to the issuance of the Trial List. After the Trial List has been issued, an amended pre-trial statement may be filed only with prior leave of court. Such leave shall be granted only for good cause and when no party will be substantially prejudiced as a result of the granting of such leave. The court may impose such conditions as it deems to be appropriate in connection with the granting of such leave, including the imposition of costs upon the moving party.
Rule 212.3. Pre-trial Conference.
(a) Unless excused by the Court, all parties must be present in the Armstrong County Courthouse during the pre-trial conference. When a party is an entity such as a corporation or partnership, an officer, principal or employee of such entity shall be present, who must have authority to settle. When the real party in interest is an insurer, the presence or immediate availability by telephone of a representative of the insurer who has authority to settle will be sufficient.
(b) Attorneys present at the pre-trial conference must have complete authority to enter into stipulations concerning liability, evidentiary, and other trial related issues.
(c) If discovery has not been completed before the pre-trial conference is conducted, the Court at the conference may, on motion of any party or on its own motion, set a date by which all discovery must be completed.
(d) The Court may proceed with a pre-trial conference when not all parties are present or represented, if it appears that notice of the conference was given under these rules.
(e) At the pre-trial conference, when it appears that the case is or will soon be ready for trial, the Court may set a date certain for the trial or may cause the case to be placed on the Ready for Trial List.
(f) 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 214. Preferences on Trial Lists.
(a) Preference shall be given in the preparation of Trial Lists as required by Pa.R.C.P. No. 214.
(b) A judge's Trial List in any month shall ordinarily be comprised of the two most senior cases on the judge's Trial Ready List, unless the preference requirements of Pa.R.C.P. No. 214 are applicable. Although the Court may treat a case on the Trial List as a ''stand-by,'' parties must be prepared to proceed on the date for trial stated in the Trial List notice.
Rule 216. Continuances. Applications.
(a) Pa.R.C.P. No. 216 shall apply to continuances of both jury and non-jury trials.
(b) Continuances of proceedings other than trials will be granted only for good cause shown. The Court shall be guided by the factors set forth in Pa.R.C.P. No. 216 in determining whether such continuances should be granted.
(c) A party seeking a continuance of any proceeding, including a trial, shall present to the Court an application for continuance substantially in the form prescribed by Appendix C of these Local Rules. When all attorneys of record and unrepresented parties do not agree that a continuance should be granted, such application shall be presented at Motions Court.
(d) The Court will not consider granting a continuance a second time upon agreement of the attorneys unless there is a statement attached to the application signed by all parties to the action that they are aware of the filing of the application and that they consent to the continuance.
Rule 236. Notice by Prothonotary of Entry of Order, Decree or Judgment.
(a) The phrase ''order, decree, or judgment,'' as used in Pa.R.C.P. No. 236 (a)(2), includes any rule to show cause, adjudication, opinion, and memorandum issued by the court.
(b) Service by the Prothonotary of a copy of the document itself shall be sufficient notice of its entry if the front page of the copy bears the date and time of its entry.
(c) The Prothonotary may serve the required notice upon an unrepresented party by ordinary mail, addressed to the party at the address most recently appearing in a pleading filed by him, or, if there is no such pleading, then to the most recent address appearing in any pleading.
Rule 248. Modification of Time.
The time prescribed by any of these rules for the doing of any act may be extended or shortened by written agreement of the parties or by order of Court.
Rule 249. Authority of Individual Judge. Motions Judge. Motions Court.
(a) The designated Motions Judge shall sit every Tuesday and Friday at 8:30 A.M., except on holidays (''Motions Court'').
(b) Motions, petitions and applications intended for consideration by the Motions Judge shall be presented at Motions Court, and are not to be filed in the Office of the Prothonotary in advance of such presentation. The Prothonotary or a deputy shall be present at every session of Motions Court to receive such papers for filing. Any motion, petition, or application which merely prays for the issuance of a rule to show cause or the scheduling of a hearing, or which has been consented to by all relevant parties need not be presented in Motions Court.
(c) Except in an emergency situation, no motion, petition or application shall be presented without compliance with the notice provisions of this rule. In an emergency situation, the nature of the emergency and the reasons why the required notice could not be given must be set forth in the petition or application then being filed.
(d) For all motions, petitions and applications subject to the notice requirements of this rule, a copy of the same together with a notice of the date and time of the intended presentation shall be served upon the other parties at least two (2) business days in advance of the presentation. Service of the copy and the notice may be accomplished personally, by first class mail or by facsimile transmission. Service by mail shall be deemed to be accomplished on the date the mail was received.
(e) A copy of the notice of intended presentation shall be presented to the Motions Judge at the time of presentation of the motion, petition or application. The copy shall have attached to it a certificate stating the date and manner of service.
(f) The notice of intended presentation shall be substantially in the form prescribed by Appendix D of these Local Rules.
(g) The certificate of service shall be substantially in the form prescribed by Appendix E of these Local Rules.
(h) Every motion, petition, and application presented to the Motions Judge shall have attached thereto a suggested order granting the relief requested.
(i) At the time of presentation of a motion, petition, or application, the Motions Judge may enter an order resolving the issues raised therein or may schedule hearing or argument thereon.
Comment Motions Court is intended as the forum for the presentation of a motion which will not require an evidentiary hearing. It may also serve as a forum for presentation when a petitioner, movant, or applicant seeks an expedited time for hearing because of the threat of immediate harm, or seeks a stay of the proceedings or other interim relief in the proposed rule to show cause. A motion to continue is properly presentable in Motions Court pursuant to L.R.C.P. No. 216 of these rules, as is a petition to compromise, settle or discontinue an action brought by a minor, under L.R.C.P. No 2039 of these rules. This list is not intended to be all-inclusive.Rule 250. Scope of Business of Courts Chapter.
These rules pertaining to Business of Courts shall apply to all civil actions and proceedings at law and in equity.
SERVICE OF ORIGINAL PROCESS AND OTHER LEGAL PAPERS Rule 430. Service of Original Process by Publication.
The Armstrong County Legal Journal, the address of which is Law Library, Armstrong County Courthouse, Kittanning, PA 16201, shall be the legal publication for advertisement of notices constituting original process.
Rule 440. Service of Legal Papers Other than Original Process. Proof of Service.
After a legal paper other than original process has been served pursuant to Pa.R.C.P. No. 440, a proof of service shall be filed with the Prothonotary, indicating the person who has been served, the manner of service and the date of service.
ACTIONS AT LAW Rule 1018.1. Notice to Defend.
(a) Every notice to defend shall designate the ''Prothonotary of Armstrong County, Armstrong County Courthouse, Room 103, Kittanning, PA 16201 (telephone: 724-543-2500)'' as the person from whom legal help can be obtained.
(b) The Prothonotary, upon receiving an oral or written inquiry as the result of a person being served with a pleading containing a notice to defend, shall, in lieu of advising such person, immediately forward to the person the names, addresses and telephone numbers of all resident members of the Armstrong County Bar Association and of Laurel Legal Services, Inc.
Rule 1028. Preliminary Objections. Brief. Scheduling Order.
At the time of filing, all preliminary objections shall be accompanied by a separate brief in support thereof, addressing issues raised in the objections. The preliminary objections must also be accompanied by a proposed order for the purpose of scheduling a hearing or argument thereon, substantially in the form prescribed by Appendix F of these Local Rules.
Rule 1034. Motion for Judgment on the Pleadings. Brief. Scheduling Order.
At the time of filing, all motions for judgment on the pleadings shall be accompanied by a separate brief in support thereof, addressing all issues raised in the motion. The motion must also be accompanied by a proposed order for the purpose of scheduling an argument thereon, substantially in the form prescribed by Appendix G of these Local Rules.
Rule 1035.2. Motion for Summary Judgment. Brief. Scheduling Order.
At the time of filing, all motions for summary judgment shall be accompanied by a separate brief in support thereof, addressing all issues raised in the motion. The motion must also be accompanied by a proposed order for the purpose of scheduling an argument thereon, substantially in the form prescribed by Appendix G of these Local Rules.
COMPULSORY ARBITRATION Rule 1301. Scope. Arbitration Limits.
(a) All cases, except those involving title to real estate, shall be referred for hearing before and decision by a Board of Arbitrators, when the amount in controversy, exclusive of interest and costs, is $25,000 or less. When the amount in controversy exceeds said limit, it shall be referred to the Board upon agreement of all parties.
Rule 1302. List of Arbitrators. Appointment to Board.
(a) A Board of Arbitration shall be composed of three members of the Bar of Armstrong County, at least one of whom shall have been admitted to the practice of law for at least five (5) years. Upon praecipe, the Prothonotary shall appoint the arbitrators from a list of lawyers who are qualified to act, and they shall be chosen in alphabetical order. No more than one lawyer from a single law firm shall be appointed to the same Board. The first arbitrator so appointed who has been admitted to the practice of law for at least five (5) years shall serve as chairman. If an appointed member becomes unable to serve, the chairman shall ask the Prothonotary to appoint a replacement, whereupon the Prothonotary shall do so.
(b) The compensation of arbitrators shall be set by orders of the president judge from time to time entered.
Rule 1303. Hearing. Notice.
(a) All hearings before a Board of Arbitration shall be conducted in the Armstrong County Courthouse.
(b) The chairman of the Board of Arbitration shall be responsible for the scheduling of hearings and the mailing of notice of such hearings. The chairman shall grant a continuance if all parties to the action agree.
(c) Not less than thirty (30) days notice in writing shall be given by the chairman to the parties or their attorneys of record and to other members of the Board.
ACTIONS IN EQUITY Rule 1524. Security for Costs.
The Court may, upon its own motion or upon petition of a party, master, auditor, etc., and rule to show cause, require a plaintiff or a defendant who claims affirmative relief to enter security for costs.
Rule 1527. Taxation of Costs.
(a) In order for costs to be taxable, a bill of costs must be submitted to the Prothonotary within ten (10) days of the date of the last hearing upon the matter. All bills of cost shall be verified by the party's attorney or, if none, by the party himself. The Prothonotary shall tax such costs unless manifest error in law or fact appear. The party filing a bill of costs shall serve a copy of the same upon all other parties whose whereabouts and addresses are known, or to their attorneys of record.
(b) The Prothonotary shall serve a copy of the taxation of costs upon the party submitting the bill and upon all other parties immediately after the Prothonotary's determination, which shall be made within five (5) days of the date of submission of the bill.
(c) Within ten (10) days of the date of the Prothonotary's taxation, any party may appeal the decision on taxation to the Court by filing a petition for appeal therefrom.
(d) Upon receipt of the petition for appeal, the Court shall set a hearing upon the same and determine de novo the issues thus presented.
(e) Any petition for appeal from the Prothonotary's decision concerning taxation of costs shall state with specificity the grounds therefor.
Comment The statute which governs the establishment of taxable costs is found at 42 Pa.C.S. § 1726.
PARTITION OF REAL PROPERTY Rule 1557. Order Directing Partition.
(a) A party seeking an order directing partition because of a default shall proceed under Pa.R.C.P. No. 1511(a), and shall file a motion with the Court alleging with specificity the facts constituting the default, including pertinent dates. No advance notice of the filing of such a motion need be given.
(b) The motion shall have attached thereto a copy of the notice of intention to enter a default judgment served upon the defaulting party pursuant to Pa.R.C.P. No. 237.1; provided, however, that this requirement shall not apply where a party has been served by publication.
Comment Pa.R.C.P. No. 237.1, pertaining to notice of praecipe for entry of judgment by default for failure to plead, applies to default judgment entered pursuant to Pa.R.C.P. No. 1511(a). See the definition of ''judgment by default'' set forth in Pa.R.C.P. No. 237.1.Rule 1559. Master Hearing.
(a) Where the parties have counsel of record, notice shall be given in writing to such counsel. The notice shall be given not less than twenty (20) days prior to making an examination or holding a hearing.
(b) Parties not represented by counsel of record shall be notified both by registered or certified mail and by first class mail not less than twenty (20) days prior to the date of making an examination or holding a hearing. If the notice by first class mail is not returned as undelivered, service shall be deemed to have been made. If all such notice to a party is returned undelivered, notice shall be given to that party by publication as set forth in (c) below.
(c) Notice to parties who cannot be notified pursuant to subsections (a) or (b) of this Rule shall be notified by publication in a newspaper of general circulation in Armstrong County one time and in the Armstrong County Legal Journal one time. Publication shall not be less than twenty (20) days before the date set for hearing or examination.
(d) The Master shall in his report set forth the notice given.
Rule 1566. Preliminary Determination. Notice to Accept or Reject.
(a) Preliminary notice of a proposed partition and allotment or purparts under Pa.R.C.P. No. 1560(b) or (c) or the inability to partition the property as provided under Pa.R.C.P. No. 1563 shall be given in the same manner as prescribed by L.R.C.P. No. 1559.
(b) The notice shall provide that the parties shall have twenty (20) days after service to accept or reject the proposed plan of allocation or to object to a private sale confined to the parties. Said notice shall also include all other applicable information specified in Pa.R.C.P. No. 1566.
(c) Notice of private sale confined to the parties as required in Pa.R.C.P. No. 1566(c) shall be given in the same manner prescribed by L.R.C.P. No. 1559, and may be combined with notice of proposed partition as set forth in subsections (a) and (b) of this Rule.
Rule 1567. Private Sale Confined to the Parties. Bond.
The Master, before accepting payment for property sold at a sale confined to the parties, shall file a bond in the amount of the payment, unless all parties waive such requirement in writing and the waiver is approved by order of Court. The Master may move the Court for such an order.
Rule 1569. Master's Report. Exceptions.
The Master shall give all persons in interest written notice of the date on which he intends to file his report and proposed decree in the same manner prescribed by L.R.C.P. No. 1559.
Rule 1572. Sale Not Confined to the Parties. Notice. Manner. Bond.
(a) Unless otherwise directed by special order of Court, a private sale not confined to the parties shall be held on the premises to be sold and shall be by open bidding. Not less than ten percent (10%) of the purchase price shall be paid at the time of sale, the balance to be paid upon delivery of the deed.
(b) Unless otherwise directed by special order of Court, notice of a public sale shall be given by the Master by publication of a notice once a week for three (3) consecutive weeks in a newspaper of general circulation in each county in which the property is located and in the Armstrong County Legal Journal. The last publication shall be no less than ten (10) days before the date of sale. Notice shall also be given by a handbill conspicuously posted on the property at least ten (10) days before the date of sale. The notice shall state the down payment required at time of sale and identify who will pay the transfer taxes and real estate taxes.
(c) The Master, before accepting payment for property sold at a sale not confined to the parties or at a public sale, shall file a bond in the amount of payment, unless all parties waive such requirement in writing and the waiver is approved by order of Court. The Master may move the Court for such an order.
Rule 1573. Return of Sale and Schedule of Distribution. Notice.
(a) Notice of the return of sale and proposed schedule of distribution shall be given by the Master in the same manner prescribed by L.R.C.P. No. 1559.
(b) The notice shall include a statement that if the return is approved, a decree nisi will be entered, which decree will become final if no exceptions thereto are filed within ten (10) days of the date it is entered.
Rule 1574. Costs and Counsel Fees.
Each attorney shall furnish to the Master a request for a specific amount of counsel fees, together with a recommendation of whether the fees should be charged against the property or the fund resulting therefrom, and shall suggest the apportionment of the same among the parties. The Master shall attach these requests, recommendations and suggestions to his return of sale for consideration by the Court.
ACTIONS PURSUANT TO PROTECTION FROM ABUSE ACT Rule 1901.3. Commencement of Action. Procedure. Temporary Order.
(a) The procedure in an action under the Protection from Abuse Act shall be governed by the requirements of the Pennsylvania Rules of Civil Procedure pertaining to such actions.
(b) The Court, in its discretion, may grant a temporary ex parte order solely on the basis of the facts averred in the petition.
(c) A temporary ex parte order providing for an eviction at the commencement of the action will only be issued after a hearing. A request for such a hearing, either oral or in writing, may be made at Motions Court, and the Court will attempt to conduct such a hearing immediately after all other motions, petitions and applications have been acted upon. Notice of such a request need not be given.
ACTIONS FOR SUPPORT Rule 1910.10. Alternative Hearing Procedures.
(a) A support action shall proceed as prescribed by Pa.R.C.P. No. 1910.12.
(b) All claims for alimony pendente lite shall be decided under the procedures set forth in Pa.R.C.P. No. 1910.12. If at the time a complaint for alimony pendente lite is filed in the Domestic Relations Section, there is a matter involving the same parties then pending before a hearing officer of the Domestic Relations Section, the claim shall be referred directly to the hearing officer for adjudication.
Comment Pa.R.C.P. No. 1920.31 and L.R.C.P. 1920.31 govern the procedure for adjudicating a claim for support or alimony pendente lite asserted in a divorce proceeding.Rule 1910.12. Office Conference. Hearing. Continuances. Appearances by Attorneys. Exceptions to Hearing Officer's Report. Transcript.
(a) An office conference scheduled as a result of the filing of a complaint shall be continued by the conference officer one time upon written request of a party. Each party shall be entitled to one such continuance. Thereafter, an additional continuance shall be allowed by the conference officer only if the parties agree thereto in writing or if an order of Court is obtained directing the same.
(b) The continuance of an office conference scheduled as a result of the filing of a petition to modify shall be allowed by the conference officer only if the parties agree thereto in writing or if an order of Court is obtained directing the same. An application seeking such an order shall be presented in Motions Court.
(c) The continuance of a hearing to be conducted by a hearing officer may be allowed at the hearing officer's discretion.
(d) An application for a court order directing a continuance of either an office conference or a hearing shall be presented in Motions Court.
(e) An attorney who represents a party in any action for support shall file a written appearance. Except as otherwise provided in Pa.R.C.P. No. 1910.6, the withdrawal of an appearance shall be governed by Pa.R.C.P. No. 1012(b).
(f) A party who files exceptions to a hearing officer's report shall order and file a transcript of the hearing conducted by the hearing officer.
Rule 1910.21. Temporary Suspension of Order for Income Withholding.
A party who seeks to suspend temporarily an order for income withholding shall present a motion in Motions Court.
Comment 23 Pa.C.S.A. Section 4348(h) states the circumstances under which an order for income withholding may be terminated.
ACTIONS FOR CUSTODY, PARTIAL CUSTODY AND VISITATION OF MINOR CHILDREN Rule 1915.3. Commencement of Action. Complaint. Order for Conciliation Conference. Conciliation Conference.
(a) An order shall be attached to the original copy of the complaint or petition directing the defendant to appear at a conciliation conference in Room 202 of the Armstrong County Courthouse. The order shall be substantially in the form prescribed by Appendix H of these Local Rules. Upon presentation of the proposed order to the Court Administrator by the Prothonotary, the Court Administrator shall cause such a conference to be scheduled for a date not more than thirty (30) days after the filing of the complaint or petition.
(b) The parties and their lawyers shall all attend the conciliation conference.
(c) As a first order of business at the conciliation conference, the parties shall view and discuss the videotape ''Children in the Middle'' by Arbuthnot and Gordon. The videotape shall be made available by the Court Administrator and must be returned to the Court Administrator at the conclusion of the conference.
(d) After viewing the videotape, the parties and their respective attorneys shall then meet and discuss the issues with the goal of reaching an amicable settlement based on the best interests and welfare of the child/children involved. When appropriate, the input of the child/children shall be received and weighed.
(e) If at the conciliation conference the parties cannot agree upon a resolution of all the issues and a hearing before a judge becomes necessary to finally resolve the issues, the parties and their lawyers shall discuss and complete a Conciliation Conference Checklist. A blank checklist will be given to the parties by the Court Administrator at the commencement of the conciliation conference. A blank checklist will also be given to any requesting party at any time in advance of the conciliation conference so that the party may prepare therefor.
(f) The Court will attempt to make itself available during any conciliation conference to decide issues such as the necessity of psychological evaluations, the necessity of home studies, or cost allocation. If the Court is then unavailable, an appropriate motion may be presented at Motions Court in order to resolve the same.
Comment The petition of a custodial parent seeking leave to relocate comes within the purview of this rule.Rule 1915.7. Consent Order. Final and Temporary.
(a) If at any time during the course of a custody proceeding the parties agree upon a resolution of all the issues and are then available to consent in writing to an order reflecting the same, they shall so notify the Court. The Court will make its staff available to the parties and their lawyers for the immediate preparation of a final consent order.
(b) If after a conciliation conference the parties cannot agree upon a resolution of all the issues, counsel and the parties shall, within seven (7) days after such conference, submit to the Court a proposed temporary order providing for the occurrence of those things agreed upon at the conciliation conference. The proposed temporary order shall contain a provision requiring the parties together to attend an orientation session before a mediator as required by L.R.C.P. No. 1940.3(a). The proposed temporary order may provide for the deferral of evaluations and home studies until after such time as mediation is rejected or terminated. The proposed temporary order shall not contain a provision for the scheduling of a hearing before the Court. The completed Conciliation Conference Checklist shall be attached to the proposed temporary order.
Comment If, after an orientation session conducted under the rules pertaining to mediation, mediation is terminated or rejected, a hearing before the Court may be obtained pursuant to L.R.C.P No. 1940.6.Rule 1915.11. Attendance of Child at Conciliation Conference or Hearing.
(a) Upon motion presented at Motions Court, the Court may direct that a child attend a conciliation conference.
(b) The parties shall make any child age nine (9) or older available to the Court for in camera examination during a hearing. Upon motion presented at Motions Court, the Court may direct that any other child attend a hearing.
Rule 1920.31. Claims for Support or Alimony Pendente Lite.
(a) When a claim for support or alimony pendente lite is filed as a count in a divorce complaint rather than as a separate action in the Domestic Relations Section, the demand for hearing thereon shall be filed with the Domestic Relations Section, together with a copy of the divorce pleading which contains that count.
(b) Upon receipt of a demand for hearing filed pursuant to subsection (a), above, the Domestic Relations Section shall require the demanding party to complete and file a complaint in form prescribed by the Domestic Relations Section. The Domestic Relations Section shall not require a filing fee in connection therewith; nor shall it impose the filing fee as a cost upon any party.
(c) If at the time the demand for hearing is filed pursuant to subsection (a), above, a matter involving the same parties is then pending before a hearing officer of the Domestic Relations Section, the claim for support or alimony pendente lite shall be referred directly to the hearing officer for adjudication.
Rule 1920.51. Appointment of Master. Preliminary Conference. Security for Payment of Master's Fees and Costs. Allocation.
(a) In all divorce or annulment actions where there are unresolved issues properly referable to a master under applicable statutes or rules of court, a party may move for the appointment of a master. The form of the motion shall be as prescribed by Pa.R.C.P. No. 1920.51(a)(3). The moving party shall pay a sum of money to the Prothonotary at the time the motion is filed, which sum shall be determined from time to time by order of Court, as security for payment of master's fees and costs.
(b) The master shall schedule a preliminary conference immediately after the order of appointment has been entered. The preliminary conference shall occur within sixty (60) days of the date of appointment, and it shall be attended by the parties and their counsel. At the preliminary conference, those present shall explore the possibility of resolving the issues in dispute without further litigation. At least three (3) days in advance of the preliminary conference, the parties shall exchange memoranda expressing their perceptions of and position on the issues, providing the master with a copy of the same.
(c) After payment to the Prothonotary of an additional sum of money as security for payment of the master's fees and costs, the master shall schedule an evidentiary hearing to receive evidence on all issues which were not resolved at the preliminary conference. The master shall schedule the evidentiary hearing only after a party has presented satisfactory proof to him that the additional security for costs have been paid. The amount of the additional security shall be determined from time to time by order of Court.
(d) The Court may, upon motion of the master presented at Motions Court, require a party to enter security for the master's fees and costs in addition to that required under subsections (a) and (c) of this rule.
(e) The master's fees and costs shall be regarded as costs of the case, and the master may recommend and the Court may order an equitable allocation of the same as part of the final adjudication and order, even if the security already paid is sufficient to pay them in full.
(f) The provisions of this rule shall apply to instances where the Court appoints a master pursuant to its own motion.
(g) The master's fee and costs incurred as a result of the scheduling or conducting of a preliminary conference or a hearing shall be paid by the Prothonotary upon approval of the court.
Comment See L.R.C.P No. 1920.31 for the procedure to be followed in claims for alimony pendente lite asserted in a divorce proceeding.Rule 1920.55-2. Master's Report. Exceptions. Transcript.
A party who files exceptions to a master's report pursuant to Pa.R.C.P. No. 1920.55-2(b) shall order and file a transcript of the hearing conducted by the master.
VOLUNTARY MEDIATION IN CUSTODY ACTIONS Rule 1940.3. Order for Orientation Session.
(a) Except as provided in subsection (b) below, in all cases where the conciliation conference conducted pursuant to L.R.C.P. No. 1915.3 leaves unresolved custody, partial custody, visitation or relocation issues, the Court will order the parties to attend an orientation session. The orientation session shall be scheduled by the parties to occur within fourteen (14) days of the date of the conciliation conference.
(b) The Court will not order the parties to attend an orientation session if such an order is prohibited by Pa.R.C.P. No. 1940.3(b).
(c) If after an orientation session the parties agree to mediation, counsel for plaintiff or petitioner shall prepare a consent order and cause it to be signed by the parties. The consent order shall be substantially in the form prescribed by Appendix I of these Local Rules. After the consent order has been signed by the parties, it shall be forwarded to the Court for signing and entry.
Rule 1940.4. Minimum Qualifications of the Mediator.
(a) All orientation sessions and mediations shall be conducted by a mediator appointed from time to time by order of the Court. A post-graduate student meeting the qualifications of Pa.R.C.P. No. 1940.4(c) may mediate if the duly appointed mediator has actual and direct supervision of the same.
(b) The Court Administrator shall cause the mediator to file an affidavit regarding qualifications and a proof of insurance in January of every year.
Comment A post-graduate student who is seeking to become a child custody mediator is afforded the opportunity to receive training under subsection (a), under certain conditions which insure maximum involvement by the duly appointed mediator in each particular case.Rule 1940.6. Termination of Mediation. Need for Hearing.
If after an orientation session mediation is rejected or terminated and there is still a need for a hearing before the Court, either party may file a motion requesting a hearing date. The motion shall inform the Court of the amount of time necessary for the hearing.
Rule 1940.7. Mediator Compensation.
A mediator shall be compensated for services rendered at a rate established from time to time by order of the Court.
MINORS AS PARTIES Rule 2039. Compromise, Settlement, Discontinuance. Distribution. Petition. Contents.
(a) Every petition for approval by the Court of a proposed compromise, settlement or discontinuance of an action for injury to the person of a minor shall contain a description of the injury, a brief account of the circumstances under which it was sustained, a statement of the nature of the evidence relied on to establish liability, any limits on the defendant's financial responsibility, a list of the expenses incurred, the fees of counsel, and arrangements for payment of unpaid bills. The petition shall be accompanied by a written report of the attending physician stating the extent of the injury, the treatment given and the prognosis for the injured party.
(b) The minor shall be present in Court at the time of the presentation of the petition unless excused by the Court for cause shown.
INCAPACITATED PERSONS AS PARTIES Rule 2064. Compromise, Settlement, Discontinuance. Distribution. Petition. Contents.
Every petition for approval by the Court of a proposed compromise, settlement or discontinuance of an action for injury to the person of an incapacitated person shall contain a description of the injury, a brief account of the circumstances under which it was sustained, a statement of the nature of the evidence relied on to establish liability, any limits on the defendant's financial responsibility, a list of the expenses incurred, the fees of counsel and arrangements for payment of unpaid bills. The petition shall be accompanied by a written report of the attending physician stating the extent of the injury, the treatment given and the prognosis for the injured party.
ACTIONS FOR WRONGFUL DEATH Rule 2205. Notice to Persons Entitled to Damages.
(a) The notice prescribed in Pa.R.C.P. No. 2205 shall be in substantially the form prescribed in Appendix J of these Local Rules. The plaintiff shall attach to the notice a copy of the complaint, if the action has been commenced by a complaint.
(b) When a person entitled to notice is not sui juris, such notice shall be addressed to his guardian if any, and if no guardian, to the person having legal custody or by whom such person is maintained.
(c) An affidavit of service of such notice shall be filed with the Prothonotary's Office and shall set forth the names and addresses of the persons to whom the notice was sent and the date of mailing such notice.
JOINDER OF PARTIES Rule 2227. Compulsory Joinder.
After a complaint has been filed, a plaintiff desiring to join an unwilling person having only a joint interest in the subject matter of the action, either as a defendant or as an involuntary plaintiff, shall proceed by petition and rule to show cause. The petition shall set forth the substantive law permitting such joinder.
Rule 2232. Defective Joinder.
(a) The notice required by Pa.R.C.P. No. 2232(a) shall be served as directed by special order of Court, entered after petition. The notice shall be in such form as prescribed by the special order.
(b) A party who has been joined and who desires to be dropped from the action pursuant to Pa.R.C.P. No. 2232(b) shall proceed by petition and rule to show cause.
(c) A party who desires to join any additional person who could have joined or who could have been joined in the action pursuant to Pa.R.C.P. No. 2232(c), shall proceed by petition and rule to show cause.
INTERVENTION Rule 2328. Petition to Intervene.
A person who seeks leave to intervene shall proceed by petition and rule to show cause.
SUBSTITUTION OF PARTIES Rule 2352. Substitution of Successor. Objections.
(a) The Prothonotary shall serve a copy of the statement filed under Pa.R.C.P. No. 2352(a) or a copy of the rule to show cause issued under Pa.R.C.P. No. 2352(b) upon all parties or their attorneys of record.
(b) A party who objects to a substitution under Pa.R.C.P. No. 2352(a) shall proceed by petition and rule to show cause.
ENFORCEMENT OF MONEY JUDGMENTS FOR THE PAYMENT OF MONEY Rule 3110. Execution Against Contents of Safe Deposit Box. Service of Petition and Rule to Show Cause by Publication.
If service of the petition and rule to show cause is to be accomplished by publication, the publication shall occur one time in a newspaper of general circulation in the community in which the safe deposit box is located.
ENFORCEMENT OF JUDGMENTS IN SPECIAL ACTIONS Rule 3252. Writ of Execution. Money Judgments. Notice.
The notice of the defendant in a writ of execution shall designate the ''Prothonotary of Armstrong County, Armstrong County Courthouse, Room 103, Kittanning, PA 16201 telephone: (724) 543-2500'' as the person from whom the defendant can obtain information on where to get legal help.
PART II
LOCAL RULES OF CRIMINAL PROCEDURE
(cited as L.R.Crim.P. ____ )
SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS Rule 101. Construction.
These rules shall construed using the same rules of construction as are used in construing the Pennsylvania Rules of Criminal Procedure.
Rule 102. Citing the Local Rules of Criminal Procedure.
These rules shall be cited as ''L.R.Crim.P. ____ .''
BUSINESS OF THE COURTS Rule 103. Definitions.
Words and phrases defined by the Pennsylvania Rules of Criminal Procedure shall bear the same meaning when used in these rules, unless the context clearly indicates otherwise.
Rule 105. Local Rules. Noncompliance.
No case shall be dismissed nor request for relief granted or denied because of failure to comply with one or more of these rules. In any case of noncompliance, the Court will alert the party to the specific provision at issue and will provide a reasonable time for subsequent compliance.
COUNSEL Rule 121. Waiver of Counsel in Guilty Plea Proceeding.
After an appropriate colloquy, the Court will require a defendant who wishes to waive counsel to sign a written waiver of counsel.
Rule 123. Application for Assignment of Counsel.
All applications for assignment of counsel pursuant to Pa.R.Crim.P. 122 shall be submitted to the Armstrong County Public Defender's Office. The application shall be in form prescribed from time to time by the Office. The determination of whether a defendant is without financial resources and unable to employ counsel shall be made by the Public Defender. The Public Defender shall be responsible for preparation of written eligibility guidelines biennially. All such guidelines shall be approved by the Court prior to implementation.
INVESTIGATIONS
SEARCH WARRANTS Rule 202. Approval of Search Warrant Applications by the Attorney for the Commonwealth.
The District Attorney of Armstrong County having filed a certification pursuant to Pa.R.Crim.P. 202, no search warrant shall be issued by any judicial officer unless the search warrant application has the approval of an attorney for the Commonwealth prior to filing.
Comment The approval of the attorney for the Commonwealth may be oral in appropriate circumstances. Whenever feasible, such oral approval should be communicated directly to the judicial officer, who should make proper notations thereof.
ACCELERATED REHABILITATIVE DISPOSITION (ARD)
COURT CASES Rule 313. Hearing. Condition of Acceptance in Cases Involving Alleged Violation of 75 Pa.C.S. § 3731.
The Court will refuse to accept into the Accelerated Rehabilitative Disposition program any defendant charged with a violation of 75 Pa.C.S. § 3731 unless, at the time of hearing, the Court has a Court Reporting Network (CRN) Report concerning the defendant in its possession.
PRE-TRIAL PROCEDURES IN COURT CASES
COMPLAINT PROCEDURES Rule 507. Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth.
(a) The District Attorney of Armstrong County having filed a certification pursuant to Pa.R.Crim.P. 507, criminal complaints and arrest warrant affidavits by police officers, as defined in the Pennsylvania Rules of Criminal Procedure, charging any offense set forth in subsection (b), below, shall not hereafter be accepted by any judicial officer unless the complaint and affidavit have the approval of an attorney for the Commonwealth prior to filing.
(b) Subsection (a) of this rule shall apply when any of the following offenses is charged:
(i) Criminal homicide, in violation of 18 Pa.C.S. § 2501;
(ii) Murder in any degree, in violation of 18 Pa.C.S. § 2502;
(iii) Voluntary manslaughter, in violation of 18 Pa.C.S. § 2503;
(iv) Involuntary manslaughter, in violation of 18 Pa.C.S. § 2504;
(v) Homicide by vehicle, in violation of 18 Pa.C.S. § 3732;
(vi) Homicide by vehicle while driving under the influence, in violation of 18 Pa.C.S. § 3735;
(vii) Aggravated assault, in violation of 18 Pa.C.S. § 2702(a)(1) through (6), inclusive;
(viii) Rape, in violation of 18 Pa.C.S. § 3121;
(ix) Involuntary deviate sexual intercourse, in violation of 18 Pa.C.S. § 3123;
(x) Robbery, in violation of 18 Pa.C.S. § 3701(a)(1)(i) through (iv), inclusive; and
(xi) Aggravated assault by vehicle while driving under the influence, in violation of 75 Pa.C.S. § 3735.1.
Comment The approval of the attorney for the Commonwealth may be oral in appropriate circumstances. When feasible, such oral approval should be communicated directly to the judicial officer, who should make proper notations thereof.
BAIL Rule 528. Monetary Condition of Release on Bail. Realty as Security.
(a) When realty is offered to satisfy a monetary condition of bail, in full or in combination with other forms of security, a completed affidavit of surety and surety information page (including a warrant of attorney for confession of judgment) must be submitted to the Clerk of Courts. The affidavit and the surety information page shall be in such form as the Clerk may prescribe from time to time.
(b) The affidavit of surety and the surety information page shall be signed by the defendant and by all owners of the realty being offered as security if the realty is not owned by the defendant.
(c) Attached to each affidavit of surety submitted pursuant to paragraph a, above, shall be the following:
(i) a photocopy of the deed, decree of distribution or other instrument of record, bearing all pertinent recording data, by which title was acquired, and
(ii) the written certification by a lawyer licensed to practice law in the Commonwealth certifying the names of the current owners of record of the realty, certifying that good and marketable title is vested in them, and further certifying the nature, holder and unpaid balance of each lien that then encumbers the realty, including, but not limited to, mortgage, judgment and tax liens. A title insurance policy with the County of Armstrong appearing as a named insured may be substituted for the lawyer's written certification.
(d) The Clerk of Courts shall make the determination of whether the net value of the property is sufficient to satisfy the monetary condition. For property located outside the Commonwealth but within the United States, the Clerk may impose reasonable conditions designed to perfect the lien. The Clerk shall not accept realty outside the Commonwealth as fulfillment of the monetary condition, in whole or in part, without special approval of Court.
(e) The Clerk of Courts shall, as final acceptance of the realty as security, cause a judgment to be confessed against all owners thereof in the appropriate county, in favor of the Commonwealth for the use of Armstrong County. The Clerk of Courts is hereby authorized to execute all judgment lien releases for property that may be encumbered by the judgment lien, but not intended to serve as security, and is further authorized to cause the judgment lien to be marked as satisfied after the full and final disposition of the case. The Clerk shall file a certificate among the papers of the criminal case certifying that judgment has been entered and setting forth the pertinent details of entry.
(f) A fee shall be paid to the Clerk of Court at the time of the submission of the affidavit of surety. The amount of the fee shall be determined from time to time by Order of the Court. No cost arising from the perfection, release or satisfaction of a judgment lien shall be paid by the Clerk, but shall be borne by the defendant or a surety.
MOTION PROCEDURES Rule 585. Nolle Prosequi.
An order of nolle prosequi will be considered only upon motion of the attorney for the Commonwealth, either orally in open court or in writing.
PLEA PROCEDURES Rule 590. Plea and Plea Agreements.
(a) At the time a plea of guilty to a felony or misdemeanor is taken in open court, the defendant shall present to the Court a completed Guilty Plea Questionnaire in form prescribed from time to time by the Court. The Court Administrator shall provide a defendant with a blank Questionnaire upon request.
(b) The Questionnaire presented to the Court shall have attached thereto a photocopy of the signed plea agreement reached by the defendant and the attorney for the Commonwealth, unless the record of the plea agreement has been sealed prior thereto.
TRIAL PROCEDURES IN COURT CASES
GENERAL PROVISIONS Rule 602. Presence of the Defendant. Transportation from Current Place of Detention.
If a defendant represented by counsel is in detention in any facility other than the Armstrong County Jail, and if he is scheduled for any appearance before the Court, defense counsel shall petition the court for an order causing his temporary release from his current place of confinement and his transportation to an confinement at the Armstrong County Jail pending and during his appearance before the Court. If the defendant is not represented by counsel, the attorney for the Commonwealth shall file such a petition. The petition shall have an appropriate Order attached thereto, and it shall be filed no later than ten (10) days before the date of appearance.
NON-JURY PROCEDURES Rule 620. Waiver of Jury Trial.
After an appropriate colloquy, a written waiver of jury trial shall be signed by the defendant if the Court ascertains that the defendant is knowingly and intelligently ready to waive the same.
POST-TRIAL PROCEDURES IN COURT CASES
SENTENCING PROCEDURES Rule 700. Sentencing Judge.
A sentence on a plea of guilty or nolo contendere may be imposed by a judge other than the judge who received the plea, if the defendant has been so notified at the time of entering the plea or if he agrees thereto at the time of sentencing.
Comment This rule is not intended to proscribe sentencing by a judge who did not receive the plea when there are extraordinary circumstances which preclude the presence of that judge.Rule 702. Aids in Imposing Sentence.
(a) As an aid in imposing sentence, the Court will consider applications submitted to the Probation Office for the electronic monitoring of the defendant while confined to his home, and the fact of approval or disapproval thereof by the Probation Office, the attorney for the Commonwealth and the Warden of the Armstrong County Jail.
(b) Applications for electronic monitoring shall be in such form as may from time to time be prescribed by the Probation Office. Such applications shall be available at the Probation Office.
(c) A bench warrant will be issued for the arrest and confinement of a defendant who fails to appear for an interview by the Probation Office in connection with the preparation of a pre-sentence investigation report.
PART III
LOCAL ORPHANS' COURT RULES
(cited as L.O.C. Rule ____ )
PRACTICE RELATING TO CERTAIN PETITIONS, MOTIONS and APPLICATIONS Rule 1.2A. Definition. Parties in Interest.
''Parties in interest'' can include intestate heirs, legatees, devisees, residuary heirs, beneficiaries, creditors, claimants, and lienholders. Who the parties in interest are in a particular situation will depend upon the circumstances.
Comment The definition does not contain an exhaustive list. For instance, 20 Pa.C.S. § 767 authorizes the Court to join a taxing authority as a party in interest when the interests of the taxing authority may be adversely affected in a proceeding before the Court. This may be done sua sponte or upon motion of a party.Rule 1.2B. Filing with Clerk. Format.
(a) All petitions, motions and applications shall be filed with the Clerk.
(b) All petitions and other legal papers shall be 8 1/2" × 11" in size and shall be stapled in the left margin. Staples shall be the sole means by which the pages are fastened. Pages shall be typewritten or printed.
Rule 1.2C. Contents of Petition. Exhibits. Consents. Order.
(a) In addition to the items required by Pa.O.C. Rule 3.4(a), a petition shall set forth the names and addresses of all persons who are parties in interest.
(b) In addition to the items required by Pa.O.C. Rule 3.4(b), a petitioner shall attach to the petition true and correct copies of all wills, deeds, contracts and other instruments pertaining thereto. The petition shall state the place, if any, where the instruments may be found of record.
(c) Whenever a party in interest other than a petitioner desires to consent to or join in the prayer of a petition, there shall be attached to the petition a written consent signed by the party in substantially the form prescribed by Appendix K of these Local Rules. All consents shall be signed by at least one witness.
(d) Every petition shall have an appropriate order attached thereto. A petition seeking the award of a citation shall have attached thereto an order awarding a citation, substantially in the form of the order prescribed by Appendix L of these Local Rules.
Rule 1.2D. Petitions Requiring Notice After Filing. Proof of Service. Answers.
(a) Except as provided in subsection (d), below, notice of the filing of a petition shall be given to all parties in interest whose consents are not attached. A copy of the petition shall be attached to the notice. The notice shall be substantially in the form prescribed by Appendix M of these Local Rules. The notice shall state that the party in interest has twenty (20) days after the date of its service upon him to file an answer to the petition; provided, however, that the Court may set a shorter period of time within which an answer may be filed or may set a date certain by which the same may be done, for good cause alleged in the petition itself.
(b) The petitioner shall file a proof of service of notice.
(c) A party in interest may file a written answer to the petition at any time within the time limit set forth in the notice. ''Answer,'' as the term is used in this rule, includes not only a formal answer admitting or denying the factual averments of the petition, but also a preliminary objection or any other objection or disagreement with the petition or the relief being sought. All answers shall be filed with the Clerk. A copy of the answer shall be served upon the petitioner or petitioner's attorney. A proof of service shall be filed thereafter.
(d) The provisions of this rule shall not apply to petitions
(i) where all parties in interest are petitioners or consent to the granting thereof;
(ii) when notice requirements are dispensed with by pertinent rule or statute, or when good cause is shown for dispensing with notice requirements;
(iii) seeking the issuance of a citation;
(iv) seeking the appointment of a guardian for an alleged incapacitated person;
(v) for termination of parental rights; and
(vi) for adoption.
Notice of petitions described in clauses (iii), (iv), (v) and (vi) shall be given as prescribed by applicable rule or statute.
RULES OF CONSTRUCTION Rule 2.1A. Construction of Rules.
These rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The Court at every stage of any action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties in interest.
Rule 2.2A. Waiver of Time Limitation.
The Court upon its own motion or the petition of any party may extend any limitation of time prescribed by these rules.
Rule 2.3A. Words and Phrases.
Unless the context clearly indicates otherwise, the words and phrases used herein shall bear the same meaning as they bear in the Pennsylvania Orphans' Court Rules.
PLEADING AND PRACTICE Rule 3.2A. Permissible Pleadings.
The pleadings in matters before this Court shall be limited to a petition, an answer, new matter, a reply, preliminary objections, and an answer to preliminary objections.
Rule 3.2B. Endorsement. Signature. Verification.
(a) Every pleading shall be endorsed with the name, address, telephone number and Supreme Court identification number of counsel and the party on whose behalf the pleading is filed.
(b) Every pleading shall be signed by the attorney, and where facts outside the record are averred, shall be verified by one or more of the parties. If this is impracticable, it may be signed and verified by someone familiar with the facts, in which case the reason for the failure of the parties to sign shall be set forth.
Rule 3.5A. Mode of Proceeding on Petition.
(a) The mode of proceeding on petition shall be by citation to be awarded by the Court upon application of petitioner in any case where jurisdiction over the person of the respondent is required and has not previously been obtained. In all other cases, the mode of proceeding shall be by notice as prescribed by Rule 1.2D of these rules. A copy of the petition shall be served with the citation or notice unless service is made by publication.
(b) No citation will be awarded which commands a party to personally appear before the Court, unless the order awarding the citation specifically directs that such a command be contained therein.
Comment In the Orphans' Court, a citation is the proper process by which initial personal jurisdiction over the person is obtained. In re: Hicks' Estate, 414 Pa. 131, 199 A.2d 283 (1964).Rule 3.5B. Citation Where Jurisdiction Over the Person is Required. Personal Service. Proof of Service.
(a) A citation where jurisdiction over the person is required shall be served in the manner prescribed by 20 Pa.C.S. § 765, when the person can be served within the Commonwealth.
(b) Proof of personal service of the citation shall be by affidavit of the person or the return of the sheriff making service. It shall state the date, time, place, and manner of service and that true copies of the citation and petition were handed to the respondent.
Comment 20 Pa.C.S. § 765 governs the service within the Commonwealth of a citation to obtain personal jurisdiction. Kelsey Estate 31 D & C 170 (1963).20 Pa.C.S. § 768 anticipates the possibility of a citation being awarded and issued even when personal jurisdiction over a respondent is not required. In such a situation, the citation itself would constitute notice and the rules pertaining to service of notice will apply.Rule 3.5C. Citation Where Jurisdiction Over the Person is Required. Service by Mail. Proof of Service.
(a) When a citation to obtain jurisdiction over a person is to be served upon a person outside the Commonwealth, service of the citation may be accomplished by certified mail, return receipt requested, within the United States and registered mail elsewhere.
(b) When service of the citation is by certified mail, the affidavit of service shall state that the return receipt bears a signature purporting to be that of the respondent, his agent, or a member of his household. The return receipt shall be filed with the affidavit. When service is by registered mail, proofs of mailing shall be filed with the affidavit.
Comment Despite the authorization by this rule to serve original process by mail upon non-residents of the Commonwealth, the Due Process Clause of the Fourteenth Amendment can operate as a limitation on the jurisdiction of our courts.20 Pa.C.S. § 768 anticipates the possibility of a citation being awarded and issued even when personal jurisdiction over a respondent is not required. In such a situation, the citation itself would constitute notice and the rules pertaining to service of notice will apply.Rule 3.5D. Citation Where Jurisdiction Over the Person is Required. Service by Publication. Proof of Service.
(a) When a citation to obtain personal jurisdiction over a person cannot be served personally or by mail because the person cannot be found, the Court may, upon motion, authorize service by publication. Notice in advance of the presentation of such a motion is not required. When the last known residence of the respondent was in Armstrong County, such service shall be by publication once a week for three (3) successive weeks in a newspaper of general circulation published in the County and in the Armstrong County Legal Journal. If the respondent's last known residence was not in Armstrong County or is unknown, the publication shall be as the Court may direct. The first publication shall not be less than twenty-one (21) days before the last day to file an answer.
(b) When service of the citation is by publication, the return shall consist of the proofs of publication verified by the affidavits of the publishers.
Comment 20 Pa.C.S. § 768 anticipates the possibility of a citation being awarded and issued even when personal jurisdiction over a respondent is not required. In such a situation, the citation itself would constitute notice and the rules pertaining to service of notice will apply.Rule 3.5E. Preliminary Objections. Answers.
The practice and procedure relating to preliminary objections and answers thereto shall be governed by the pertinent Pennsylvania Rules of Civil Procedure as implemented by the Local Rules of Civil Procedure, including those requiring the filing of proposed scheduling orders.
Rule 3.5F. Disposition of Issues Raised by Pleadings.
(a) If the respondent fails to file an answer, the averments of fact set forth in the petition shall be deemed admitted and the Court may enter a decree granting the prayer of the petition.
(i) In proceedings where personal jurisdiction over the person served was not required, the petitioner shall file a praecipe with the Clerk directing the Clerk forthwith to transmit the record to the Court. The praecipe shall be substantially in the form prescribed by Appendix N of these Local Rules.
(ii) In proceedings where personal jurisdiction over the person served was required, the petitioner shall present a motion for order to transmit the record at any duly scheduled session of Motions Court in accordance with the Local Rule of Civil Procedure pertaining thereto. The motion shall state all the relevant facts of record, including the name of the petitioner, the type of petition, the date of service upon the respondent, the fact that a proof of service was filed as required by local rule, and the fact that no answer was filed by the respondent. The motion shall have attached thereto a proposed order in the form prescribed by Appendix O of these Local Rules.
When there is more than one respondent, the Court may, in its discretion, refrain from acting until the last date has passed on which any respondent could have filed an answer.
(b) If the petitioner fails to file a reply to an answer which contains new matter, the averments of fact set forth under new matter shall be deemed admitted and the case will be at issue.
(c) If the petitioner fails to file an answer to properly and appropriately pleaded factual averments of preliminary objections, the averments of fact set forth in said preliminary objections shall be deemed admitted, and the case will be at issue on the preliminary objections.
(d) The Court may, upon motion in appropriate cases, enter judgment on the pleadings in favor of any party or parties entitled thereto.
Comment Subsection (a)(ii) provides a greater degree of protection, in default situations, to a respondent when personal jurisdiction over him must be obtained. This results from the additional notice requirements set forth in the Local Rule of Civil Procedure pertaining to Motions Court.Rule 3.5G. Motion for Judgment on the Pleadings.
The practice and procedure relating to motions for judgment on the pleadings shall be governed by the pertinent Pennsylvania Rules of Civil Procedure, as implemented by the Local Rules of Civil Procedure, including those requiring the filing of proposed scheduling orders. Notice in advance of the filing of such a motion is not required.
Rule 3.5H. Service of Pleadings and Legal Papers, Other than Petitions.
Pleadings and legal papers, other than petitions, shall be served by the filer in the manner prescribed by Pa.R.C.P. No. 440, as implemented by the Local Rules of Civil Procedure, except that all filings shall be with the Clerk.
Comment The methods of service of citations to obtain personal jurisdiction over the person are found at Rule 3.5B through Rule 3.5D of these rules. The methods of service of notice, including notice of the filing of a petition, are found at Rule 5.1A of these rules.Rule 3.5I. Jury Trial.
A person entitled to and desiring a trial by jury shall make timely demand therefor in accordance with 20 Pa.C.S. § 777.
Rule 3.5J. Trials. Jury and Non-jury. Pre-trial Conference List. Motion for Non-jury trial without Pre-trial Conference.
(a) When pleadings have been filed by the parties in conformity with prescribed procedure, or when the time for filing additional pleadings has expired, the matter may be placed on the Pre-trial Conference List by filing a praecipe with the Clerk. The Clerk shall deliver a copy thereof to the Prothonotary, and the case shall thereafter proceed as if it were an action in equity in the Civil Division, except as otherwise prescribed by these rules. A copy of the praecipe shall be served as prescribed by Rule 3.5H of these rules.
(b) As an alternative to placing a case on the Pre-trial Conference List, a matter may be scheduled for non-jury trial upon motion presented at any duly scheduled session of Motions Court pursuant to Local Rules of Civil Procedure.
Comment Under this rule, relatively simple matters may be scheduled for non-jury trial without the case being the subject of a pre-trial conference.The Prothonotary maintains a Pre-trial Conference List in accordance with the Local Rules of Civil Procedure. All filings after the case has been placed on the Pre-trial Conference List will nonetheless continue to be made with the Clerk of the Orphans' Court Division.Rule 3.5K. Continuances.
The practice and procedure relating to continuances shall be governed by the pertinent Local Rules of Civil Procedure. An application for continuance may be presented at any duly scheduled session of Motions Court pursuant to said Rules.
Rule 3.5L. Costs Taxable to Fiduciary or Estate Fund.
When a fiduciary, in good faith, defends the estate fund against a claim, the fiduciary shall not be personally liable for any taxable costs, and any costs otherwise taxable against him shall be taxed instead against the estate fund.
Rule 3.6A. Discovery.
No discovery shall be conducted except with leave of Court. After leave is granted, the permitted discovery shall be conducted as prescribed by the Pennsylvania Rules of Civil Procedure. Motions for leave to conduct discovery may be presented at any duly scheduled session of Motions Court pursuant to the Local Rules of Civil Procedure.
Rule 3.6B. Subpoenas.
Subpoenas, including subpoenas duces tecum, shall be issued as of course by the Clerk.
Rule 3.7A. Attorneys. Appearances. Surety.
(a) An endorsement of an attorney or any legal paper filed with the Clerk shall constitute a written appearance.
(b) No attorney may withdraw an appearance without leave of court unless another attorney simultaneously enters an appearance for the same party.
(c) No attorney may act as surety in any proceeding, except with leave of court.
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