PA: Civ Pro

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benlaw
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26075
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PA: Civ Pro
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2010-07-20 12:21:46
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  1. Statute of Limitations
    • 1 YR: Libel, slander, invasion of privacy.
    • 2 YR: All other torts
    • 4 YR: Contract actions -- starts at breach.

    • Minors & Tolling: CoA on a minor's claim ≠ start until reach age of majority.
    • Discovery Rule: SoL tolled until P knows, or in the exercise of reasonable diligence should have known, that (i) he has been injured; or (2) injury has been caused by another's conduct.
    • BUT: SoL for a tort claim never more than 2 YRS after date of death.
  2. Statute of Repose
    • GEN: For civil actions against persons performing or furnishing the design, planning, supervision or construction of any improvement to real property --
    • >> Such actions must be commenced w/in 12 years after completion of construction in personal injury, wrongful death or property damage arising from a deficiency in the design, planning, supervision, ect. of the improvement.
    • >> RESULT: Usually have to comply w/ two SoLs, focusing on the earlier one -- date of injury & S/R.
  3. Product v. Fixture?
    Product becomes a fixture when it is permanently attached to real property.
  4. Personal Jdx
    • ANALYSIS:
    • (1) Constitutional under DPC of 14A -- min. contacts and purposeful availment?
    • (2) Permitted by PA statute?
    • >> Domicile/Presence/Consent: domicile, presence in the state and both actual/implied consent suff.; OR
    • >> Long-Arm Statute: Jdx over out of state defendants -- extends to fullest extent allowed under the US Constitution and may be based on the most minimum contact allowed.

    • NOTE: ID type of jdx --
    • (1) General: focuses on the quantity of contacts -- relationships.
    • (2) Specific: focuses on the quality of the contacts -- cause of action arising from specific T/O?
  5. SMJ
    GEN: Court of Common Pleas will have jdx over any bar exam issue IF put in a PA court.

    NOTE: If no federal SMJ jdx -- go for state court.
  6. Venue
    • GEN: Waivable defense.
    • RULES:
    • (1) Gen: Venue proper where D served, where CoA arose, or where T/O took place out of which CoA arose.
    • >> Multiple Ds: venue proper where any one of the Ds is subject to venue.
    • (2) Non-medical malpractice action against individual: venue proper in any county where you can obtain service on D (usually where he lives/works).
    • (3) When D is a Corp/Biz: venue okay where registered office or principle place of business is located, or where biz regularly conducts business.
    • (4) Med Malpractice: suit against a health care provider -- only where the cause of the action arose.
    • (5) Political Subdivision: county where subdivision located.

    • RAISING IMPROPER VENUE: must be raised by preliminary objection or WAIVED.
    • IF RAISED AND GRANTED: action transferred IF proper venue exists w/in the state.
  7. Forum Non Conveniens
    • GEN: Transfer to another county in PA.
    • >> Can transfer to another county even if the current venue is proper for the convenience of the parties and witnesses. Transfer valid anywhere where action could originally have been brought.
    • >> Can dismiss where the matter should be heard in another state, but P's choice should not be disturbed except for weighty reasons AND an alternative forum must be available.

    • TWO PRINCIPLES:
    • (1) P's choice of forum given great weight.
    • (2) D, to change forum under FNC, must demonstrate specific hardships to parties and witnesses (oppressive and vexations) and that the hardships are out of proportion to P's convenience.
  8. Civil Action
    • GEN:
    • (1) Action at Law: action used for causes arising out of tortuous conduct or breach of contract.
    • (2) Action in Equity
    • (3) Action for Declaratory Relief
  9. Starting a Suit
    • File either:
    • (1) Complaint; or
    • (2) Praecipe for a writ of summons.

    • PWS
    • Writ of Summons: writ by which a party can commence civil litigation against another.
    • Praecipe for WS: instructs clerk to notify D that he's been sued.
    • Tolling: PWS tolls the statute of limitations for a period equivalent to the applicable SoL for commencement of the action -- but P must make GF effort to serve D with the writ.
    • NOTE: After filing a PWS, must still file a Complaint.
  10. Pre-Complaint Discovery
    • GEN: P may obtain pre-complaint discovery if --
    • (1) info sought is material/necessary to gain info needed for the filing of the complaint; AND
    • (2) Discovery ≠ cause unreasonable annoymance, burden ect. to any person.
  11. Starting an Action w/ PWS (Steps)
    • (1) File a Praecipe for a Writ of Summons
    • (2) Serve defendants.
    • (3) Conduct pre-complaint discovery.
    • (4) File a complaint.
    • (5) Serve defendants.
  12. Service of Process (Who and How)
    • IN-STATE RULES:
    • (1) Individuals -- personal service by a sheriff to the defendant OR handing a copy to
    • >> (i) adult family member or person in charge at D's residence;
    • >> (ii) manager of a hotel, apartment house, or place of lodging where D resides; OR
    • >> (iii) defendant's agent or person in charge at D's office or usualy place of business.
    • (2) Companies -- personal service on an officer or registered agent, or personal service on the manager or person in charge of any regular course of business.
    • NOTE: Service need not be by a sheriff for actions in equity. Any competent adult who is not a party/employee or relative of a party suffices.

    • OUT OF STATE RULES:
    • GEN: Service of process by USPS certified mail.
    • >> ALways make sure there is PJ over D.

    • SPECIAL CIRCUM
    • P can move court for a special order allowing for alternative service if GF and good reason why D could not be located.
  13. Service of Process (Timing)
    • GEN: P has 30 days to serve D after filing suit. But if lapses, can reinstate Complaint or reissue writ and serve again for he length of time equal to the original statute of limitations.
    • >> BUT: P must make a GF effort (no evidence of intending to stall judicial machinery or prejude D).
  14. Pleadings (GEN)
    • GEN: Include --
    • (1) Complaint
    • (2) Answer to the Complaint
    • (3) Reply if the answer contains new matter / counterclaim.
    • (4) Prelim objections / answers to any of the listed pleadings.
  15. Pleadings (Signature Req)
    • Signature: certification that to best of info/belief, formed after a reasonable inquiry under the circums --
    • (1) no improper purpose;
    • (2) claims warranted by existing law OR args for extension/modif/reversal of law ≠ frivilous;
    • (3) factual allegations have evidentiary support; AND
    • (4) denials of factual allegations warranted by the evidence -- or reasonable based on a lack of info.

    REASONABLE INQUIRY -- fact based analysis. If short period of time, PWOS might be best.

    VIOLATION: following reas. opp to be heard, court can impose sanctions for violations -- non-monetary, penalities paid to court, reasonable atty fees to opposing counsel. Firms jointly responsible for the violations of their lawyers.
  16. Pleadings (Verifications)
    • GEN: Factual statements (averments/denials) must be verified by the party.
    • >> Verification: sworn statement that the info set forth is trut to that person's knowledge, info, or belief.
    • >>>> Party must normally verify the pleading. If not available in jdx, lawyer can verify (w/ explanation).
  17. Pleadings (Complaint)
    • GEN: Complaint must include a "fact pleading" that sets forth ALL material facts.
    • INCL:
    • (1) Times, date and places of the T/O.
    • (2) Averments of fraud/mistake.
    • (3) Special damages.

    • FORMAT: Allegations must be in separately numbered paragraphs.
    • CONTRACT CLAIMS: Complaint must state if the contract is oral or written, and if the latter, the writing must be attached or the substantce of it must be explained (plus a reason why it's not attached).
  18. Pleadings: Preliminary Objections
    (Pre-Answer Motions or Motions Objecting to Pleading)
    • PRELIM OBJECTIONS
    • GEN: Motions objecting to pleadings.
    • WAIVER: Must be raised at the same time or WAIVED. Can be raised in alternative counts.
    • FILING: Prelim objections must be filed w/in 20 days from service of prior pleading. If no POs filed, D must file answer w.in 20 days of service of the complaint.
    • TYPES: May be filed by any party to any pleading for (important ones) --
    • (1) Lack of PJ
    • (2) Improper venue and/or service (usually raised together).
    • (3) Falure of pleading to conform to the rules
    • (4) Insuff. specificity in pleading
    • (5) Legal insuff. of pleading (demurer)
    • >> Popular b/c tests multiple subjects -- must explain why certain legal elements ≠ satisfied.
    • (6) Agreement for ADR
  19. Pleadings (Answer to Complaint)
    • GEN: D must admit/deny each statement or averment of fact. If not specifically denied or denied by implication, presumed admitted.
    • >> Statements that you're w/o sufficient information to admit/deny are treated as denials. Such statements cannot be used, however, if in response to matters of public knowledge or w/in D's control.

    NOTE: General denials deemed admissions except in the case of actions seeking monetary relief for bodily injury, death or property damage.

    TIMING: Every pleading subsequent to the complaint must be filed w/in 20 days after servie of the preceding pleading, if it contained a notice to defend/plead.
  20. Pleading (Affirmative Defenses)
    • GEN: Must be set forth in the responsive pleading under the heading "NEW MATTER."
    • INCLUDE: SoF, SoL and many others.
    • BUT: Compatative Negligence and Assumption of the Risk -- neither need to be plead. AUtomatically assumed to be part of D's answer.
  21. Pleading (Counterclaims)
    GEN: D may file CC for any CoA that he has against P at the time of filing an answer under the NEW MATTER, then COUNTERCLAIM heading.

    NOTE: All counterclaims in PA are permissive. Can be raised in subsequent actions.
  22. Pleading (Crossclaims)
    • GEN: Use "CROSSCLAIM" header, either party can assert CC.
    • NOTE: Can concern sole liability on the underlying COA; OR liable to/with the cross claimant on any CoA arising out of the T/O.
  23. Pleadings (Default Judgment)
    • GEN: If D fails to file an answer or POs to the Complaint w/in 20 days, a judgment of default can be taken by P against the D.
    • >> P must first mail a notice of intent to take default judgment to D, giving D an add'l 10 days to file an answer.
    • >> If no response, a default judgment is entered and the prothonotary's office assesses damages.
  24. HOT TOPIC: Certificates of Merit
    • GEN: Apply in professional liability claims.
    • >> In prof liability claim, P must file -- w/in 60 days after filing complaint, a COM signed by atty or P stating:
    • (1) Expert has indicated in writing that there exists a reasonable probability that the care, skill or knowledge exercised by D fell outside an acceptable prof standard and that the conduct harmed P; OR
    • (2) The claim that D deviated from an acceptable prof standard is based solely on allegations that other licensed profs for whom D is responsible deviated from an acceptable prof standard; OR
    • (3) Expert testimony is unnecessary to prosecute the claim.

    RESPONSE TIME: In a professional misconduct case, the time for responding to a complaint is typically extended -- D can respond either 20 days after the complaint is served, OR 20 days after service of the certificate of merit -- whichever is later.

    20 days.
  25. Professional Liability Actions (Dismissal Upon Affidavit of Non-Involvement)
    • NARROW: Applies only to a negligence action against a construction design professional OR a medical professional liability action naming a health care provider as D.
    • >> D may file a motion to dismiss w/ attached affidavit of non-involvement.
    • >> If P opposes the motion and court finds a prima facie case for dismissal exists, court must permit discovery directed at the issue of non-involvement for the moving D.
  26. Professional Liability Actions (Judgment of Non-Pros)
    • GEN: Judgment of Non-Pros if Certificate of Merit not timely filed by P.
    • >> If failure w/in 60 days after filing of complaint to COM not filed, D can file praecipe and court will enter nonpros judgment.
    • >> NOTICE & SERVICE: 30 days before filing the praecipe.
    • >> COM: Must be filed w/ court and a copy mailed to Ds.
  27. Pleadings (Amendments)
    • GEN: Party can amend pleadings (1) w/in 20 days after service of preliminary objections; OR (2) with consent of the other party or with leave of court.
    • >> Amendments liberally allowed.

    • EXCEPTION: Amendments NOT PERMITTED after SoL expires where amendment seeks to --
    • (1) raise a new CoA; OR
    • (2) add new Ds to the suit.
  28. Joinder (Compulsory)
    • GEN: Persons having a joint interest in the subject matter of an action MUSGT be joined with the appropriate party.
    • >> Failure to join results in a waiver of that CoA.

    NOTE: In PI cases, CoA of all family members must be brought in the same action.
  29. Joinder (Permissive)
    • GEN: Claims of multipe Ps or claims against multipe Ds may be brought in a single action IF:
    • (1) they arise out of the same T/O or the same series of T/Os; AND
    • (2) there are common Qs of liability/fault affecting the parties.

    • NOTE: Inconsistent allegation okay -- partiesmay join or be joined in the alternative even though COAs are inconsistent.
    • IE. Count A for accident against X, Count B for accident against Y.
  30. Joinder (Consolidation/Coordination)
    CONSOLIDATION: Actions pending in the same county involving common Qs of law/fact, OR which arise out of the same T/O, may be consolidated.

    • COORDINATED: Actions pending in different counties involving common Qs of law/fact, OR which arise out of the same T/O, may be coordinated.
    • >> Must file motion to stay in at least one of the counties.
  31. Joinder (Add'l defendants)
    GEN: D can join additional Ds, or P can join an additional party when counterclaimed by D. There's a right to join additional D's w/in 60 days after service upon the original D.

    • RULES: Others may join as additional D if may be:
    • (1) Solely liable on the underlying CoA against the joining party; OR
    • (2) Liable to (over) or with (J+S) the joining party on any CoA arising out of the T/O upon which the underlying CoA is based.

    KEY: Joining party either liable over (ie. contract on top of a tort) or J+S liable with the current D.

    PROCESS: Current D files a praecipe for a writ or a complaint -- served by sheriff, same rules -- within 60 days after service of the initial process on D.

    • RECOVERY: SoL Issue --
    • (1) If joinder of add'l Ds occurs before the SoL expires: P can recover from either the original D or the joined D.
    • (2) If joinder of add'l Ds occurs after the SoL has expired: P may not be able to recover IF jury finds that the sole party responsible was the joined party. Otherwise, can recover total amount from either the original D or the joined D.
  32. PA = Partial Comparative Negligence
    GEN: If P is 50% or less negligent, then P can recover.
  33. Contribution
    GEN: Any D paying more than his percentage share of damages may seek contribution from other defendants.
  34. Class Actions
    • PREREQS:
    • Commonality -- same Qs law/fact.
    • Adequacy of Representative -- fair/adeq. representation.
    • Numerosity -- so numerous a class that ordinary joinder wouldn't work.
    • Typicality -- claims/defenses of represented parties typical of those of the class.

    • KEY: No superiority requirement -- under fed rules, court must find that common qs dominate over individual qs and that the class action is the superior method.
    • >> Under PA rules, class action need only be a fair and efficient method of adjudication.
    • >>>> Damages, as a reslt, can be determined separately.

    NOTE: Class action can only be initiated through a complaint. PFWOS does not suffice.
  35. Discovery (Gen)
    MBE: Tell examiners, "[X] is an appropriate discovery tool."

    TOOLS: Interrogatories, depositions of parties/non-parties, requests for production, requestws to inspect, requests for physical examination of P, requests for admission.

    NOTE: Unless unreasonable burden, no limit on the number of depositions or interrogatories.
  36. Discovery (Scope)
    • GEN: Includes any info that is --
    • (1) not privileged,
    • (2) relevant to the SM in the action; AND
    • (3) appears reasonably calculated to lead to the discovery of admissible evidence.

    NOT ALLOWED: Bad faith, unreasonable burden/expense, unreasonable investigation.
  37. Discovery (Atty Work Product)
    • GEN: Material developed by an attorney in anticipation of litigation is privileged.
    • >> Witness statements and investigator reports are discoverable, att'y notes are not.
    • >> Mental impressions, conclusions or opinions of the att'y or any representative of the party are not discoverable.
    • >> Trial strategy notes not discoverable.
  38. Discovery (Experts)
    GEN: Any party may require identification of experts expected to testify at trial, and to state the substantce of the facts and opinions to which the expert is expected to testify, and a summary of the grounds of each opinion.

    • DEPOSITIONS: Can only depose another's expert witnesses with Good Cause. Court can impose restrictions on scope and order payment of the expert's fees.
    • NOTE: Does NOT apply to a corporate defendant that has an employee that investigated in the ordinary courtse of business.
  39. Discovery (Personal Injury Claims)
    If physical condition of plaintiff is in controversy and D rep has P examined by a doctor selected by D:

    >> If P can demonstrate a significant pattern of compensation received by an expert that would support a reasonable inference that the doc might color/slant his testimony in light of substantial financial incentives, THEN P can direct financial discovery to D's doctor to find out the compensation received, income from litigation, percentatve of witness' litigation-related activities, ect.
  40. Discovery (Insurance)
    GEN: Discoverable, but not admissible.
  41. Discovery (Assets, Wealth)
    • GEN: P may only discover info re: D's wealth or worth if P's claims include punitive damages, but such discovery is only allowed by court order.
    • STANDARD: Viable claim for punitive damages.
  42. Discovery (Supplementation)
    • GEN: No general duty to supplement, except --
    • (1) Party must supplement a response WRT any question directly addressed to the identity/location of persons w/ knowledge of discoverable info.
    • (2) Party/expert must amend a prior response on obtaining info that (a) priror response incorrect; OR (b) prior response, though once correct, is no longer true.
  43. Discovery (Protection and Enforcement)
    GEN: If discovery request objectionable, can file a motion for a protective order.

    • ENFORCEMENT:
    • (1) File a motion to compel discovery.
    • (2) If discovery responses still not received, then file a motion for sanctions.
    • >> Sanctions: whatever is reasonable under the circums.
  44. Discovery (Use of Depositions at Trial)
    • Parties and Agents of a Party (Depositions): may be used at trial by an adverse party for any purpose.
    • Any Witness (Depos): may be used by any party for any purpose at trial if the party offering the deposition has been unable to procure the witness' attendance (ie. dead, outswide PA, 100 miles from place of trial, sickness).
    • Non-Party Medical Witness: may be used at trial for any purpose whether or not the witness is avail.
  45. *MEMORIZE*
    Pretrial Adjudication: Prelim Objections (Demurrer)
    DEMURRER (P.O.s): Files in response to a complaint -- but before the filing of an answer. On the basis of the compalint, if presumed true, there is no legal right to relief because P's allegations do not make out the elements of any CoA.
  46. *MEMORIZE*
    Pretrial Adjudication: Motion for Judgment on the Pleadings
    KEY: Filed BEFORE discovery. This motion, if filed DURING/AFTER discovery, is a motion for summary judgment.

    • GEN: Filed AFTER pleadings are closed b/wn the parties to the motion BUT not so late as to unreasonably delay trial.
    • >> Based on pleadings and NOT discovery/affidavits.

    RULE: Even where opposing party's pleadings are presumed true, moving party is entitled to judgement as a matter of law.

    • KEY: Where there's a problem with a complaint, as the defendant, you should --
    • (1) File an Answer with New Matter -- raising the affirmative defense (ie. SoL has run); AND THEN
    • (2) File a Motion for Judgement on the Pleadings based on the affirmative defenses (ie. SoL).
    • >> Don't file prelim. objections.

    • ALTERNATIVE:
    • (1) File an Answer with New Matter -- raising the affirmative defense (ie. SoL has run);
    • (2) Conduct discovery; AND
    • (3) Possibly file a Motion for Summary Judgment if P reveals that affirmative defense is viable.
    • NOTE: It may very likely be a jury question.

    (2a) Possibly conduct discovery to see what, if any, defenses are available.
  47. Summary Judgment (General)
    • GEN: MSJ can be filed at any time on any issue -- so long as early enough not to delay trial.
    • >> Can file a motion for partial summary judgment, too.
    • SUPPORT: Pleadings, discovery responses, depositions and affidavits.
    • >> Affidavits must set forth admissible evidence; cannot contain hearsay.

    • RESPONSE: Opposing party CANNOT rest on the mere allegations/denials in his pleadings.
    • >> Rather, in 30 days after service, must file a response identifying estab. specif. facts for trial:
    • (1) issues of fact arising from the evidentiary record or a challege to the credibility of a witness testifying in support of the motion; OR
    • (2) Evidence in record establishing the essential facts that the movant alleged were not suff. estab.
  48. Summary Judgment (Standard of Review)
    • STANDARD: SJ appropriate if --
    • (1) There is no genuine issue of material fact; AND
    • (2) The moving party is entitled to judgment as a matter of law.
    • NOTES: Any doubts -- resolved against the granting of a MSH. Reasonable inferences drawn in favor of party opposing the motion.

    • NANTY-GLO RULE
    • KEY: To get SJ, moving party must have something in addition to affidavits of oral testim. (ie. a photo).
    • >> Motion cannot merely be supported by un-contradicted affidavits / deposition testimony that requires the acceptable of the credibility of the moving party's witnesses.
    • BUT: If opposing party has at least one affidavit calling into question a matter of material fact, NO SJ.
  49. Judgment of Non-Pros from P's Failure to Move Case to Trial
    JNP may be entered where -- (1) P shows a lack of due diligence in proceeding w/ the case; (2) no compelling reason for delay; or (3) delay has caused actual prejudice (economic harm, defense prejudice).
  50. Voluntary Dismissal by Plaintiff
    • (1) Before trial: voluntary dismissal oky but court approval need when P is a minor or incompetent, in wrongful death actuions where minor/incomp is a beneficiary, and class actions.
    • (2) During trial: voluntary nonsuit permitted -- but if attempted after P rests his case, leave of court req.
    • (3) Note: P may commence a subsequrnt action after discontinuance subject to original SoL.
  51. Juries
    • GEN: Consitutional right to a 12-juror trial, but waived if not demanded w/in 20 days after the last pleading is filed.
    • VERDICT: 5/6 and 10/12 okay.
    • CHALENGES: 4 peremptory.
  52. Trial Motions: Motion for Compulsory Non-Suit
    • GEN: Filed by D at end of P's presentation of evidence, arguing that even if everything is accepted as true, P has failed to establish a right to relief.
    • STANDARD: Granted if P failed to establish a right to relief. Court assumes all of P's evidence is true.
  53. Trial Motions: Motion for Directed Verdict
    • GEN: Usually an oral motion made at the conclusion of evidence but B/F judge charges the jury. C
    • >> Can only be granted after ALL evidence has been introduced.
    • STANDARD: Can be granted where evidence is such that, WITHOUT weighing the credibility of the witnesses, there can be but one reasonable conclusion as to the verdit.
  54. Post-Trial Motions: Motion for Post-Trial Relief
    • Motion for Post-Trial Relief: exclusive post-trial motion in PA to remove a nonsuit and in arrest of judgment.
    • >> Must be filed w/in 10 days after verdict or non-suit.

    STANDARD: Even though jury found for the other party, as a matter of law the court should grant a new trial or enter judgment for the moving party.
  55. Death Claims
    Dead people can't sue or be sued.

    No action for wrongful death in which a minor / incapacitated person has an interest shall be compromised/settled w/o court approval.

    SUBSTITUTION: If a person dies during the pendency of an action, the personal representative may be substituted after the estate is opened for the deceased.
  56. Compulsory Arbitration
    GEN: Civil actions where amount in controversy is less than $50K ($25K in small counties) must first be submitted to arbitration.
  57. Wrongful Use of Civil Proceedings
    • GEN: Attorney or party who initiate -- or continues -- civil proceedigns that are terminated in favor of the defendant may be subject to liability to D IF they acted in gross negligent manner AND for an improper purpose.
    • >> PROBABLE CAUSE: Attys should have probable cause to bring a suit. PC exists where they reasonably believe:
    • (1) the facts on which their claim is based; AND
    • (2) the theory under which it is brought.

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