CIVIL PROCEDURE

Somerset Legal Journal headnotes from approximately 1991 through the present.

For earlier cases, please visit the Somerset County Law Library.

 

AFFIRMATIVE DEFENSES

 

The defense of Statute of Frauds is to be pleaded as an affirmative defense as new matter in the answer, rather than by preliminary objection.  Lamens v. Forman and Ferguson 59 Som L.J. 1 (2001) (P.J. Fike).

 

COLLATERAL ESTOPPEL

 

Under the doctrine of collateral estoppel, a prior judgment operates as an estoppel only as to matters in issue or points controverted in the first action.  Trent v. PBS Coals, Inc., et al., 50 Som. 303     

 

Collateral estoppel, or issue preclusion, is a doctrine which prevents re-litigation of an issue in a later action, despite the fact that it is based on a cause of action different from the one previously litigated.  Matesic v. County of Somerset, et al., 59 Som.L.J. 383. 

 

The identical issue must have been necessary to final judgment on the merits, and the party against whom the plea is asserted must have been a party, or in privity with a party, to the prior action and must have had a full and fair opportunity to litigate the issue in question.  Matesic v. County of Somerset, et al., 59 Som.L.J. 383. 

 

CONTEMPT

           

To prove contempt the complaining party must prove non-compliance by a preponderance of the evidence.  Ream v. Ream, 50 Som. 57 

 

Inability to comply is an affirmative defense to contempt and must be proven by the person who is allegedly in contempt of an order.  Ream v. Ream, 50 Som. 57 

 

Inability to pay cannot stand as an affirmative defense to a charge of contempt where the inability is a result of defendant's own wrongful act.  Ream v. Ream, 50 Som. 57

 

CORRECTION OF COURT ERRORS

 

A court has authority to correct formal errors even after the expiration of the 30-day period.  Trent v. Dramesi, et al., 60 Som.L.J. 108 (2000) (Fike, P.J.). 

 

COUNTERCLAIMS AND SET-OFFS

 

Set-offs and counterclaims are procedurally available only when there are mutual demands.  Diamond Reo v. Mid Pacific Industries, Inc. v. Osterlund, Inc., 59 Som.L.J. 282 (2001) (Gibson, J.). 

 

Set-offs and counterclaims imply reciprocal demands existing between the same persons at the same time, and it is a well settled general rule that if a demand or claim is to be set-off or counterclaimed in an action, the set-off or counterclaim and the action must be between the same parties, and between them in the same capacity.              Diamond Reo v. Mid Pacific Industries, Inc. v. Osterlund, Inc., 59 Som.L.J. 282 (2001)             (Gibson, J.).

 

DISCOVERY – DISCOVERABILITY

 

It is well understood that admissibility is not a test for whether or not discovery is valid so long as the discovery request is relevant.              Field v. Nationwide Mutual Insurance, 54 Som. L.J. 314 (March 18, 1997) (Cascio, J.) 

 

Because it would be difficult to show a practice or pattern of bad faith relying solely on one cause, the plaintiff's request for information concerning other bad faith actions against the defendant within the last five years in the state of Pennsylvania is a valid and worthwhile request, especially in light of the fact that the request is limited to a specific time frame, narrow in scope, and relevant to her claim.  Field v. Nationwide Mutual Insurance, 54 Som. L.J. 314 (March 18, 1997) (Cascio, J.) 

 

What will cause unreasonable annoyance, embarrassment, expense or oppression to a defendant or will require an unreasonable investigation by a defendant must be left to judicial discretion under all of the circumstances.  No discovery is possible without someone being annoyed, embarrassed, oppressed, caused expense or caused to make an investigation.              Field v. Nationwide Mutual Insurance, 54 Som. L.J. 314 (March 18, 1997) (Cascio, J.) 

 

Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1.  The discovery shall not include disclosure of the mental impression of a party's attorney or his conclusions, opinions, memoranda, notes or summaries, legal research or legal theory.  Pa. R.C.P. 4003.3.  Field v. Nationwide Mutual Insurance, 54 Som. L.J. 314 (March 18, 1997) (Cascio, J.) 

 

It is well settled that legal advice given by an attorney in his professional capacity in response to client inquiry is immune from discovery on the basis of the attorney/client privilege pursuant to Pa. R.C.P. 4003.1.  Field v. Nationwide Mutual Insurance, 54 Som. L.J. 314 (March 18, 1997) (Cascio, J.)

 

DISCOVERY – SANCTIONS

 

The Pennsylvania Supreme Court, in Schroeder v. Commonwealth, adopted the following three-prong test for determining the proper penalty to impose in spoliation cases: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party's rights and deter future similar conduct.  In doing so, the Schroeder Court observed that fashioning a sanction for the spoliation of evidence based upon fault, prejudice, and other available sanctions will discourage intentional destruction.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

Fault is comprised of two components: responsibility, and the presence or absence of bad faith.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

The plaintiff's power to control the scene and to exercise authority over the preservation or destruction of evidence is a relevant factor in determining responsibility.  At a minimum, a plaintiff is obliged to inform a potentially responsible party of his or her right to inspect relevant evidence.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

Where the plaintiff was aware that the evidence was in the possession of an expert retained by the plaintiff's family's homeowners insurance company, and could have exerted control over the evidence by calling, faxing or writing to the expert to ensure its continued preservation, but failed.  The plaintiff should bear some of the blame for spoliation, especially given the importance of the propane tanks in proving her case.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.) 

 

Prejudice resulting from spoliation of evidence is much less severe in design defect cases, since, although a faulty product is destroyed, an entire line of products bearing the same defect is often accessible.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

Prejudice is often much greater when the plaintiff's entire claim hinges on a specific defect of a particular product, since spoliation cannot be remedied by examining another similarly flawed product.  Because the plaintiff in the instant matter alleges that the defendant acted negligently in regard to a particular product, the spare propane tank, and because the defense does not have the luxury of examining and testing a similar tank, prejudice to the defendant is severe.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

The types of sanctions that may be imposed for spoliation of evidence range from those that are less onerous, such as jury instructions (i.e., the jury should infer that the missing or destroyed evidence would have been unfavorable to the party responsible for its loss or destruction), to those that are more severe, such as preclusion of expert testimony, to summary judgment.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

Attributing some fault to the plaintiff for failing to exert control over and preserve the subject tanks, and finding the decedent to be severely prejudiced by the unavailability of the evidence, the proper remedy is to preclude the testimony or the plaintiff's expert.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

The decision whether to sanction a party for a discovery violation and the severity of such a sanction are matters vested in the sound discretion of the trial court.  Geiger Development Corp. v. Eastern Development & Design, Inc., 63 Som.L.J. 110 (2005) (Fike, P.J.). 

 

A trial court is authorized to enter a default judgment against a defendant who fails to comply with the trial court’s discovery orders.  The following factors are to be considered in determining an appropriate sanction: (1) the nature and severity of the discovery violation; (2) the defaulting party’s willfulness or bad faith; (3) prejudice to the opposing party; (4) the ability to cure the prejudice; and (5) the importance of the precluded evidence in light of the failure to comply.  Geiger Development Corp. v. Eastern Development & Design, Inc., 63 Som.L.J. 110 (2005) (Fike, P.J.). 

 

Where a Defendant and counsel merely notified Plaintiff’s counsel that the Defendant would not attend a scheduled deposition without discussion with opposing counsel or request for protective order, the Defendant and counsel disregarded a court order entered by consent, and the Defendant’s counsel failed to appear for scheduled argument, entry of partial default judgment in favor of the Plaintiff was justified upon the court’s finding of intent to delay and bad faith on the part of the Defendant and prejudice to the Plaintiff. Geiger Development Corp. v. Eastern Development & Design, Inc., 63 Som.L.J. 110 (2005) (Fike, P.J.). 

 

A party is required, upon appropriate interrogatory, to provide the identity of experts a party expects to call at trial, with supporting information, but a party is prohibited from discovering facts known or opinions held by an expert retained or employed in anticipation of litigation or preparation for trial but who is not expected to be called as a witness, except under exceptional circumstances.  Black v. Platt, 63 Som.L.J. 86, (2005) (Fike, P.J.). 

 

The provisions of Pa.R.C.P. 4009.12 require an answer to a request for production with an accompanying log; this rule must be read in conjunction with Pa.R.C.P. 4011, imposing limitations upon the scope of discovery.  If an objection is appropriate under Rule 4011 then duties imposed under Rule 4009.12 are not required until disposition of objections under Rule 4011.  Black v. Platt, 63 Som.L.J. 86, (2005) (Fike, P.J.). 

 

The burden to limit the inquiry is imposed on the requesting party.  It would be unfair, burdensome and oppressive to require a party to attempt to comply with a listing of all documents referring or relating to the suit, without limit, or regardless of location, source or subject.  Black v. Platt, 63 Som.L.J. 86, (2005) (Fike, P.J.). 

 

EXCESSIVE VERDICTS

 

The determination of whether a verdict is excessive is within the discretion of the trial court, and exercise of that discretion is not subject to reversal except in cases of clear abuse.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

GENERALLY

 

The general law in the Commonwealth is that the Rules of Civil Procedure do not apply in statutory appeal cases.  Commonwealth, Dept. of Transp. v. Salvatore, 54 Som. L.J. 368 (January. 22, 1998) (Cascio, J.) 

 

The Rules of Civil Procedure are applicable to all actions which were formally asserted in assumpsit or trespass and other forms of action where we incorporate the rules by reference.  Pa. R.C.P. 1001.  Commonwealth, Dept. of Transp. v. Salvatore, 54 Som. L.J. 368 (January. 22, 1998) (Cascio, J.) 

 

In addition to assumpsit and trespass, the rules have been made applicable to actions in Ejectment (Rule 1051), actions to Quiet Title (Rule 1061), actions in Replevin (Rule 1071), actions in Mandamus (Rule 1091), actions in Quo Warranto (Rule 1111), actions in Mortgage Foreclosure (Rule 1141), actions upon Ground Rent (Rule 1161), actions in Foreign Attachment (Rule 1251), actions in Fraudulent Debtor's Attachment (Rule 1285), actions in Compulsory Arbitration (Rule 1301), actions in Equity (Rule 1501), actions in Partition of Real Property (Rule 1551), actions to Prevent Waste (Rule 1577), actions for Declaratory Relief (Rule 1601), actions upon a Mechanic's Lien (Rule 1651), Class Actions (Rule 1701), and actions for Support (Rule 1910.1).  Commonwealth, Dept. of Transp. v. Salvatore, 54 Som. L.J. 368 (January. 22, 1998) (Cascio, J.) 

 

The rules have also been incorporated by reference in Appeals from Decisions of Health Care Service Malpractice Arbitration Panels (rule 1801), actions pursuant to the Protection from Abuse Act (Rule 1905), actions for Custody, Partial Custody and Visitation of minor Children (Rule 1915.1), actions in Divorce or Annulment (Rule 1920.1), actions to Confess Money Judgment (Rule 2951), actions to Confess Judgment for Possession of Real Property (Rule 2970), Statutory Actions to Conform Confessed Judgment (Rule 2981), and Writs in Execution (Rule 3102).  Commonwealth, Dept. of Transp. v. Salvatore, 54 Som. L.J. 368 (January. 22, 1998) (Cascio, J.) 

 

In each of these areas, the Pennsylvania Supreme Court has specifically designated what rules of procedure apply, and to what extent the civil action" or special rules govern.  In those special actions where the Court has not incorporated the rules by reference, they cannot be mandatorily imposed upon the trial courts or parties who litigate such matters.  Commonwealth, Dept. of Transp. v. Salvatore, 54 Som. L.J. 368 (January. 22, 1998) (Cascio, J.) 

 

Since the rules of civil procedure are inapplicable to statutory appeals, rules of practice and procedure did not have to be enacted in strict compliance with the provisions of Rule 239.  Rather, the trial courts have had the right to enact rules and publish them to cover practice in this area of the law.  Where they have not created and published such local rules, then each trial court has been vested with the full authority of the court to make rules of practice for the proper disposition of cases before them and that the Pennsylvania Supreme Court has enforced those rules unless they violated the Constitution or laws of the Commonwealth or United States, or our statewide rules.  This general, inherent power of all courts to regulate their own practice, without control, or on the ground of expediency, has been recognized for almost one hundred and eighty years.  Commonwealth, Dept. of Transp. v. Salvatore, 54 Som. L.J. 368 (January. 22, 1998) (Cascio, J.) 

 

In order for a local rule to apply to statutory appeals, it must so specifically state.  Former Som. R.C.P. 207, and its successor, contain no specific references.  Commonwealth, Dept. of Transp. v. Salvatore, 54 Som. L.J. 368 (January. 22, 1998) (Cascio, J.) 

 

Requests for production of documents are not properly presented by way of interrogatory.  Black v. Platt and Keystone Vacuum, Inc., 61 Som.L.J. 396 (2005) (Fike, II, P.J.) 

 

Despite the liberalization of the Rules and expansion of the scope of allowable discovery, the Rules still contain restrictions with respect to both procedure and substance.  Black v. Platt and Keystone Vacuum, Inc., 61 Som.L.J. 396 (2005) (Fike, II, P.J.) 

 

Because it would be unfair, burdensome and oppressive to require a target party to attempt to comply with a listing of all documents referring or relating to the suit, without limit, or regardless of location, source or subject, the burden is best placed upon the requesting party to limit the inquiry.  Black v. Platt and Keystone Vacuum, Inc., 61 Som.L.J. 396 (2005) (Fike, II, P.J.)

 

Although designated a motion, because the document at issue has been verified, and because of practical considerations and efficiency, the subject motion [for reinstatement] is construed as a petition [for reinstatement].  Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (July 25, 1996) (Fike, P.J.) 

 

Petitions are required to contain a notice to plead which provide that any averment not denied by a responsive pleading will be deemed admitted.  (Former) Som. R.C.P. 207(B).  Commonwealth, Dept. of Transp. v. Salvatore, 54 Som. L.J. 368 (January. 22, 1998) (Cascio, J.) 

 

There is no right to a jury trial in an action to quiet title.  King v. Buck, 60 Som.L.J. 456 (J. Gibson) 

 

The Rules of Civil Procedure are applicable to all actions which were formerly asserted in assumpsit or trespass and other forms of action where courts incorporate the rules by reference.  In Re: Tax Sale of Real Property Situated in Jefferson Twp., Ruffner v. Beeghly, 61 Som. L.J. 244 (J. Cascio) 

 

INTERPLEADER

 

Interpleader is the procedural mechanism through which adverse claimants against the money; property or debt held by another may be required to litigate their claims in one proceeding.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

An interpleader's purpose is the avoidance of the expense and inconvenience which result from the defense of multiple actions arising out of identical claims of entitlement to a 'stake' of money, property or debt.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

The object of an interpleader proceeding is to determine to which of several claimants the plaintiff shall pay a certain debt or duty, about which there is no dispute except as to the person entitled to receive it, so that when their respective rights are settled nothing further remains in controversy.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

The grant or refusal of a petition for interpleader is an equitable consideration resting within the sound discretion of the trial court and will not be disturbed absent an abuse of such discretion.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

In addition to the authority granted under the Pennsylvania Rules of Civil Procedure, the trial court possesses the inherent power to direct an interpleader in equity when the interests of justice require it.  42 Pa.C.S.A. 1931.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

Although the trial court's power to direct an interpleader in equity is largely discretionary, its power is equitable, and therefore governed by equitable principles.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

Where a claimant to a fund who is named as defendant in an equitable interpleader action subsequently files a complaint in assumpsit naming the party seeking equitable interpleader as defendant, the emergence of a legal remedy in the subsequent action at law will not divest the equity jurisdiction of the court presiding over the original action.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

In order to properly plead equitable interpleader, the complaint must contain allegations which demonstrate that the plaintiff is a mere stakeholder (a) without an interest in the fund, and (b) without any controversy of its own to be determined in the case.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

Where the plaintiff to an equitable interpleader action enters into agreements with two claimants to a fund which does not preclude the possibility of liability to both, interpleader is not proper.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

Where the plaintiff to an equitable interpleader action offers to pay into court a lesser amount than that claimed by either of the parties, interpleader is inappropriate.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

The proper amount of a fund offered to be deposited into court by a party seeking equitable interpleader consists only of those amounts in dispute between one or more claimants.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

Where the party seeking equitable interpleader offers to pay into court those amounts in dispute between several claimants, but does not offer to pay additional amounts which that party may owe one of the claimants, the amount offered to be deposited into court is sufficient for purposes of interpleader where the additional amount is not in dispute between the claimants.  A.J. Demor & Sons, Inc. v. Mincon Enterprises, Inc., et al, 53 Som. 272 

 

JOINDER OF CAUSE OF ACTION

 

It is improper to join an action at law with an action in equity.  Burnworth v. Slagle, 53 Som. 329

 

Three alternatives exist where two or more causes of action are improperly joined: 1) sustain the preliminary objections and leave plaintiffs to file an amended complaint deleting one of the causes of action, at plaintiff's choice; 2) sustain the preliminary objections, choose ourselves which of the offending causes of action to strike, leaving plaintiffs free to file a separate suit on the cause of action so stricken; or 3) sustain the preliminary objections and then sever the secondary causes of action subject to stay, however, pending completing of litigation of the primary suit.  Burnworth v. Slagle, 53 Som. 329

 

JOINDER OF NECESSARY / INDISPENSABLE PARTIES

 

In Pennsylvania, an indispensable party is one whose rights are so directly connected with and affected by litigation that he must be a party of record to protect such rights, and his absence renders any order or decree null and void for want of jurisdiction.  Farkosh v. Bell 58 Som. L.J. 273 (2001) (J. Gibson) 

 

In determining whether parties' rights are so directly connected and affected by litigation that they must be made parties of record, a court should be guided by the following factors:  a. Do absent parties have a right or interest related to the claim?  b. If so, what is the nature of the right or interest? c. Is that right or interest essential to the merits of the issue? d. Can justice be afforded without violating due process rights of absent parties? Farkosh v. Bell 58 Som. L.J. 273 (2001) (J. Gibson) 

 

Property owners are indispensable parties in lawsuits concerning the owners' property rights.  Farkosh v. Bell 58 Som. L.J. 273 (2001) (J. Gibson) 

 

If an indispensable party is not joined, a court is without jurisdiction to decide the matter.  Farkosh v. Bell 58 Som. L.J. 273 (2001) (J. Gibson) 

 

When there is dispute as to the existence of an easement, all owners of servient tenements have a material interest in the controversy and should be joined as defendants.  The owner of a servient tenement should be a party even though that owner may not have interfered with the easement.  Farkosh v. Bell 58 Som. L.J. 273 (2001) (J. Gibson) 

 

When an issue is confined to a specific landowner, then adjacent landowners are not indispensable parties.  Farkosh v. Bell 58 Som. L.J. 273 (2001) (J. Gibson) 

 

Since the defendants are asserting that the right-of-way is located on the adjacent landowner's property, then the defendant can join the adjacent landowner pursuant to Pa.R.C.P. 2252.  Farkosh v. Bell 58 Som. L.J. 273 (2001) (J. Gibson) 

 

A plaintiff is required to join parties who are indispensable to an action.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

An indispensable party is one whose rights are so connected with the claims of the litigants that no decree can be made with impairing those rights.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

The determination as to whether a party is a necessary party is made by applying a four-part test.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

JURISDICTION – PERSONAL JURISDICTION

 

A tribunal of this State exercising personal jurisdiction over a nonresident obligor under §7201 shall apply the procedural and substantive law of this State, including the rules on choice of law, as opposed to applying the law of the state in which the obligor resides.  Beam v. Reed, 54 Som. 31 (1996) (Cascio, J.) 

 

Under Pennsylvania's choice of law rules, the challenge to the exercise of personal jurisdiction is based upon the necessity of a defendant's maintenance of minimum contact with a forum state before a court of that state may subject that defendant to its jurisdiction.  There must be a sufficient connection between the defendant and the forum state as to make it fair to require defense of all the action in the forum; an essential criterion in all cases is whether the quality and nature of the defendant's activity is such that it is reasonable and fair to require him to conduct his defense in the forum state.  Beam v. Reed, 54 Som. 31 (1996) (Cascio, J.) 

 

Section 7205 provides that the state issuing the order has continuing, exclusive jurisdiction over that order, so long as (1) that state remains the state of residence of the obligor, the obligee, or the child for whose benefit the support order is issued or (2) until each party consents, in writing, to the assumption of jurisdiction by another state.  Beam v. Reed, 54 Som. 31 (1996) (Cascio, J.) 

 

“Pennsylvania courts recognize two statutory bases for exercising personal jurisdiction over a  non-resident corporation” : one addresses general jurisdiction, the other specific jurisdiction. Sjolander, Administratrix of the Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som.L.J. 393 (2010) (Klementik, J.).

 

“[N]either the similarity of names between the parent and the subsidiary . . .  nor the total ownership of the stock of the subsidiary by the parent . . . nor the fact that a single individual is the active chief executive of both corporations . . .  will justify a court in piercing the corporate veil if each corporation maintains a bona fide separate and distinct corporate existence.” Sjolander, Administratrix of the Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som.L.J. 393 (2010) (Klementik, J.).

 

“There is a well recognized exception to these general rules if the record demonstrates that the subsidiary is the ‘alter ego’ of the parent to the extent that domination and control by the parent corporation renders the subsidiary a mere instrumentality of the parent; under such extreme circumstances the parent corporation may be held to be doing business within the state under the façade of the subsidiary.” Sjolander, Administratrix of the Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som.L.J. 393 (2010) (Klementik, J.).

 

Vestas Parent, a Danish corporation, wholly owns Vestas Denmark, the Danish corporation that employed Decedent and sent him to the Meyersdale site. However, “the total ownership of the stock of the subsidiary by the parent . . .  will [not] justify a court in piercing the corporate veil if each corporation maintains a bona fide separate and distinct corporate existence.” Sjolander, Administratrix of the Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som.L.J. 393 (2010) (Klementik, J.).

 

The Court does not have personal jurisdiction over Vestas Parent because Plaintiff has not shown that Vestas Denmark is “the ‘alter ego’ of the parent.” Sjolander, Administratrix of the Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som.L.J. 393 (2010) (Klementik, J.).

 

JUDGMENTS – DECLARATORY JUDGMENT

 

Declaratory judgment is an appropriate remedy where a dispute is likely to result in imminent and inevitable litigation.  In Re: Shultz, 61 Som.L.J. 41 (2003) (Cascio, J.)

 

Section 7535 permits the Court "(1) to ascertain any class of creditors, devisees, legatee, heirs, next of kin, or others", "(2) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity" and further, "(3) to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.  In re: Estate of Harvey R. Ohler, 62 Som.L.J. 97 (2005) (Upor, J).

 

JUDGMENTS – DEFAULT JUDGMENTS (SNAP JUDGMENTS)

 

A judgment must be opened when evidence of a meritorious defense is produced.  Frick v. Sorsaia, 54 Som. L.J. 202 (1995) (Fike, P.J.).

 

A petition to reinstate a case terminated for inactivity of record may be granted only upon good cause shown, regardless of whether a local rule expressly requires a showing of good cause.  Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (1996) (Fike, P.J.). 

 

Reinstatement for "good cause shown" will be permitted only after the court determines that the standards applied in opening a judgment have been met: (1) the petition for reactivation is timely filed; (2) there is a reasonable excuse for inactivity of the case, and (3) there exists a meritorious cause of action.  Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (1996) (Fike, P.J.). 

 

Local rules enacted pursuant to Pa.R.J.A. 1901 are intended to reach cases inactive for an unreasonable length of time, and may only be dismissed after reasonable notice.  It would follow that reinstatement may be permitted only after meeting an open judgment standard of promptness and merit, otherwise the policy of terminating stale claims as enunciated by Rule 1901 and implemented by local rules would be but an empty fulmination against stale matters pending in the judicial system.  Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (1996) (Fike, P.J.). 

 

Authority does not indicate that a "petition for reinstatement" rather than a "motion for reinstatement" is the only acceptable method for seeking reinstatement of an action dismissed due to inactivate pursuant to the rules of judicial administration.  Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (1996) (Fike, P.J.). 

 

The practice of filing praecipes for default judgments or non-pros, immediately upon expiration of the applicable time period, and without notice to opposing counsel is disapproved. Pa. R.C.P.237.1 - 237.6 were adopted to require notice to opposing counsel and unrepresented parties of the intent to enter a praecipe for default judgment or for non-pros.  Lloyd K. St. Clair v. Dwight St. Clair, 59 Som.L.J. 112 (2000) (Fike, P.J.). 

 

Rule 237.1 does not apply to a praecipe to strike a claimant's appeal from a District Justice's decision under Pa.R.C.P.D.J. 1004.A and 1006.  Lloyd K. St. Clair v. Dwight St. Clair, 59 Som.L.J. 112 (2000) (Fike, P.J.). 

 

The failure to give notice and the entry of a "snap judgment" are important factors in determining whether a default judgment should be opened.  Lloyd K. St. Clair v. Dwight St. Clair, 59 Som.L.J. 112 (2000) (Fike, P.J.). 

 

Although, "snap" judgment was taken, nevertheless, the plaintiff did not show sufficient reasons for delay in filing the complaint and therefore the plaintiff failed to present equitable considerations justifying the failure to comply with the Pa.R.C.D.J. 1004 time limit.  Lloyd K. St. Clair v. Dwight St. Clair, 59 Som.L.J. 112 (2000) (Fike, P.J.). 

 

It is well settled that a petition to open a default judgment is an appeal to the equitable powers of the court and is a matter of judicial discretion.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

In general, a default judgment may be opened when three elements are established: the moving party must (1) promptly file a petition to open the default judgment, (2) show a meritorious defense, and (3) provide a reasonable excuse or explanation for its failure to file a responsive pleading.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

Petitions to open default judgments are governed by Pennsylvania Rule of Civil Procedure 237.3.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

Rule 237.3 supplies two of the three requisites for opening judgments entered by default by presupposing that a petition filed as provided by the rule is timely and with reasonable explanation or legitimate excuse for the inactivity or delay resulting in the entry of judgment.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

When rule 237.3 is complied with, it is unnecessary for the petitioner to explain its reason for failing to file its answer earlier.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

Pursuant to Rule 237.3, as long as the petition to open is filed within ten days after the entry of the judgment on the docket, the judgment may be opened if a meritorious defense is stated, because compliance with Rule 237.3 relieves the moving party of the requirement to demonstrate that the petition to open was filed promptly and that a reasonable excuse exists for failing to file an answer in a timely manner.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

The requirement of a meritorious defense is only that a defense must be pleaded that if proved at trial would justify relief.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

The Defendant does not have to prove every element of a meritorious defense, however, it must set forth the defense in precise, specific and clear terms.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

Where the defendant raises more than one defense, if any one of the defenses would justify relief at trial, the meritorious defense element is met.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

A default judgment may be opened as a matter of judicial discretion when three elements are established; the moving party must (1) promptly file a petition to open the default judgment, (2) show a meritorious defense, and (3) provide a reasonable excuse or explanation for its failure to file a responsive pleading.  Chase Manhattan Bank v. Petrunak, 61 Som.L.J. 166 (2003) (Cascio, J.) 

 

According to Pa.R.C.P. 237.3, a default judgment may be opened upon a showing of a meritorious defense so long as the petition to open is filed within 10 days of the judgment being entered.  Chase Manhattan Bank v. Petrunak, 61 Som.L.J. 166 (2003) (Cascio, J.)

 

A petition to open a default judgment is an appeal to the equitable powers of the court through which the defendant must show that: (1) a petition to open or strike was timely filed; (2) the default can be reasonably explained or excused; and (3) there is a meritorious defense to the underlying claim. Watson v. Salameh, 64 Som.L.J. 326 (2009) (Klementik, J.).

 

A petition to open filed within 24 hours of the judgment entry was timely. Watson v. Salameh, 64 Som.L.J. 326 (2009) (Klementik, J.).

 

JUDGMENTS – ENTRY OF JUDGMENT

 

An appeal from a final judgment of the court of common pleas does not disturb the finality of that judgment while it remains unreversed, nor will a non-pros of an appeal have the effect of continuing the finality of the judgment to the date of the non-pros.  The status of the parties as it existed at the precise time the final judgment was entered will be their status when the non pros is later entered in Superior Court.           Moore v. Moore, 54 Som. L.J. 229 (1997) (Cascio, J.).

 

JUDGMENTS – JUDGMENT BY CONFESSION

 

A judgment entered by confession must be self-sustaining and may not be entered when the court must consider matters outside the instrument in order to support the judgment.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.). 

 

When a proceeding to confess judgment is instituted by complaint, the complaint and confession of judgment clause must be read together to determine whether there are defects on the face of the record.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.). 

 

If a warrant of attorney clause authorizes entry of judgment by confession only after default, a judgment entered prior to default or lacking an averment of default is invalid.  However, absent some restriction as to when a judgment may be entered, a judgment may be entered for a full amount prior to the time it is due and payable.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.). 

 

The debtor need only know that if he does not comply with the terms he has agreed to for payment of the debt, the creditor may confess judgment against him and forthwith seize his property to satisfy the debt it says is owed.           Beitzel v. Leberfinger, 61 Som. L.J. 326, 337 (2005) (Cascio, J.).

 

JUDGMENTS – JUDGMENT OF NON PROS

 

A court has discretionary authority to enter a judgment of non pros when the moving party demonstrates (1) the opposing party has failed to diligently proceed on the matter with reasonable promptitude; (2) there was no compelling reason for the delay; and (3) the delay has caused some prejudice to the moving party, with prejudice being presumed in all cases in which the delay is two years or longer.  Mishler v. Adamec, 54 Som. L.J. 244 (1996) (Fike, P.J.); Menhorn v. Township of Conemaugh, 54 Som. L.J. 254 (1996) (Fike, P.J.). 

 

It is the duty of the plaintiff to prosecute his or her case without delay.          Mishler v. Adamec, 54 Som. L.J. 244 (1996) (Fike, P.J.); Menhorn v. Township of Conemaugh, 54 Som. L.J. 254 (1996) (Fike, P.J.).

 

The applicable statute-of-limitations period is utilized as guidance in gauging the existence of diligence regarding a judgment of non-pros.  A delay as long or longer than the applicable period of limitations is generally considered sufficient to warrant a judgment of non-pros, if the other tests are met.  Mishler v. Adamec, 54 Som. L.J. 244 (1996) (Fike, P.J.). 

 

Although the applicable statute-of-limitations period is utilized as guidance in gauging the existence of due diligence, it is not controlling since a judgment of non-pros is premised upon the equitable principle of laches.        Menhorn v. Township of Conemaugh, 54 Som. L.J. 254 (1996) (Fike, P.J.). 

 

While there may be similarity between the statute-of-limitations and the non-pros procedure, the method of application is quite different.  The statute-of-limitations is applied or denied on the basis of simple arithmetic, while non pros procedure contemplates a review of all of the circumstances to determine whether a party is chargeable with want of due diligence in failing to proceed with reasonable promptness.  The statutory period may be a circumstance, but it is not the controlling circumstance.  The granting of non-pros is based on the equitable principle of laches.        Menhorn v. Township of Conemaugh, 54 Som. L.J. 254 (1996) (Fike, P.J.). 

 

Similar to a Praecipe to Remove Case from Termination List, defense counsel's entry of appearance does not constitute docket activity for purposes of precluding the granting of a judgment of non pros because neither are substantive in nature nor exemplary of the type of docket activity to preclude granting of judgment of non pros.  Mishler v. Adamec, 54 Som. L.J. 244 (1996) (Fike, P.J.). 

 

Examples of situations in which there will be a per se determination that there is a compelling reason for delay are cases where the delaying party establishes that the delay was caused by bankruptcy, liquidation, or other operation of law, or in cases awaiting significant developments in the law.  Other compelling reasons may be determined on a case-by-case basis.  Mishler v. Adamec, 54 Som. L.J. 244 (1996) (Fike, P.J.); Menhorn v. Township of Conemaugh, 54 Som. L.J. 254 (1996) (Fike, P.J.).

 

The measure of delay is not docket inactivity alone, but rather the period of unexplained docket inactivity. Mishler v. Adamec, 54 Som. L.J. 244 (1996) (Fike, P.J.); Menhorn v. Township of Conemaugh, 54 Som. L.J. 254 (1996) (Fike, P.J.). 

 

Plaintiff's medical condition may be considered a compelling reason for delay in a non-pros proceeding. Mishler v. Adamec, 54 Som. L.J. 244 (1996) (Fike, P.J.). 

 

A lack of due diligence will be found where the period of docket inactivity fell three weeks short of the Heart and Lung Act's three year statute of limitations, when four years elapsed from the time the complaint was filed until the defendant's motion for non pros was presented, and when six years passed from the time of plaintiff's injury. Menhorn v. Township of Conemaugh, 54 Som. L.J. 254 (1996) (Fike, P.J.). 

 

Generally, a claim of ongoing settlement negotiations will not excuse delay in prosecuting an action.       Menhorn v. Township of Conemaugh, 54 Som. L.J. 254 (1996) (Fike, P.J.).

 

Pa.R.J.A. 1901(a) requires the termination of cases which have been "inactive for an unreasonable period of time...." Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (1996) (Fike, P.J.). 

 

Pa. R.J.A. 1901(b)(1) directs the formulation of rules by each court of common pleas for the implementing of a policy of providing for the prompt resolution of proceedings pending in the judicial system.  Rule 1901 et seq. of the Somerset County rules of Judicial Administration were promulgated pursuant to Pa. R.J.A. 1901.         Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (1996) (Fike, P.J.). 

 

In cases dismissed for inactivity under the Rules of Judicial Administration, the permission of the court must be obtained before a second action may be maintained.  Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (1996) (Fike, P.J.). 

 

A petition to reinstate a case terminated for inactivity of record may be granted only upon good cause shown, regardless of whether a local rule expressly requires a showing of good cause.  Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (1996) (Fike, P.J.). 

 

Reinstatement for "good cause shown" will be permitted only after the court determines that the standards applied in opening a judgment have been met: (1) the petition for reactivation is timely filed; (2) there is a reasonable excuse for inactivity of the case, and (3) there exists a meritorious cause of action.         Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (1996) (Fike, P.J.). 

 

Local rules enacted pursuant to Pa. R.J.A. 1901 are intended to reach cases inactive for an unreasonable length of time, and may only be dismissed after reasonable notice.  It would follow that reinstatement may be permitted only after meeting an open judgment standard of promptness and merit, otherwise the policy of terminating stale claims as enunciated by Rule 1901 and implemented by local rules would be but an empty fulmination against stale matters pending in the judicial system.         Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (1996) (Fike, P.J.).

 

Authority does not indicate that a "petition for reinstatement" rather than a "motion for reinstatement" is the only acceptable method for seeking reinstatement of an action dismissed due to inactivate pursuant to the rules of judicial administration.  Colflesh v. Gerzsenyi, 54 Som. L.J. 273 (1996) (Fike, P.J.).

 

JUDGMENTS – JUDGMENT ON THE PLEADINGS

 

When deciding a motion for judgment on the pleadings, a court must limit its consideration to the facts set forth in the pleadings, such as the complaint, answer, reply to new matter and relevant documents, and accept as true all of the well-pleaded allegations of the party against whom judgment is granted.  Sullivan v. State Farm Insurance Co., 54 Som. L.J. 116 (1997) (Fike, P.J.). 

 

Judgment on the pleadings is proper only when no material facts are in dispute and the moving party's right to succeed is certain and the case is so free from doubt that trial would clearly be a fruitless exercise.  Sullivan v. State Farm Insurance Co., 54 Som. L.J. 116 (1997) (Fike, P.J.); First Philson Bank, N.A. v. Long, 54 Som. L.J. 353 (1997) (Cascio, J.).

 

Judgment on the pleadings may be appropriate in cases which turn upon the interpretation of a written agreement.  Sullivan v. State Farm Insurance Co., 54 Som. L.J. 116 (1997) (Fike, P.J.). 

 

No responsive pleading is required if no notice to plead is attached to New Matter.  Where defendant's New Matter lacked endorsement, no time limit was imposed upon plaintiff's response to the New Matter.  Since plaintiff had no duty to respond to New Matter, the pleadings were not in fact closed when defendant filed his motion for judgment on the pleadings.  Thereby entry of such judgment is precluded.  Sullivan v. State Farm Insurance Co., 54 Som. L.J. 116 (1997) (Fike, P.J.). 

 

A motion for judgment on the pleadings is in the nature of a demurrer in which the nonmovant's well-pleaded allegations are viewed as true, but only those facts specifically admitted by the nonmovant may be considered against him.  First Philson Bank, N.A. v. Long, 54 Som. L.J. 353 (1997) (Cascio, J.).

 

The motion for judgment on the pleadings is a pretrial mechanism designed to expedite justice by preventing a case from going to trial where the pleadings demonstrate that there is no genuine issue of material facts and that the moving party is entitled to judgment as a matter of law.  Citibank v. Shepley, 63 Som.L.J. 94 (2005) (Fike, P.J.).

 

Plaintiff may move for judgment on the pleadings where defendant's answer consists of merely a general denial and does not comport with the specificity requirements of Pa.R.C.P. 1029(b). Citibank v. Shepley, 63 Som.L.J. 94 (2005) (Fike, P.J.).

 

A general denial or a demand for proof shall have the effect of an admission.  Citibank v. Shepley, 63 Som.L.J. 94 (2005) (Fike, P.J.).

 

Case law has established that there really is no fixed rule for determining whether a denial is specific.  However, various courts have noted that for a denial to be specific, it must deny what is averred and then must affirmatively set forth what did occur in place of the facts that are denied.  Citibank v. Shepley, 63 Som.L.J. 94 (2005) (Fike, P.J.).

 

Defendant’s responses which stated “Denied.  The averments contained in Paragraph 4, 6, 7, and 9 of plaintiff’s complain are denied and strict proof thereof is demanded” are general denials, and therefore, are admissions.  Citibank v. Shepley, 63 Som.L.J. 94 (2005) (Fike, P.J.).

 

Defendant cannot choose to hide behind a veil of ignorance in order to fall within the safe harbor of Pa.R.C.P. 1029(c) when the factual circumstances clearly reveal that he would know the truth of falsity of the averment in plaintiff’s complaint.  Citibank v. Shepley, 63 Som.L.J. 94 (2005) (Fike, P.J.).

 

A pleader need not respond to an allegation in a complaint that is not an averment of fact.  Whether an allegation is one of fact or law is determined by the context disclosing the circumstances and purposes of the allegation.  Citibank v. Shepley, 63 Som.L.J. 94 (2005) (Fike, P.J.).

 

Amendments to pleadings should be liberally allowed at any stage of the proceeding unless doing so would violate the law or unfairly violate he rights of the other party. Citibank v. Shepley, 63 Som.L.J. 94 (2005) (Fike, P.J.).

 

Where the plaintiff contends that the defendant’s denials are too general, the trial court may permit the defendant to amend the answer to make the denials more specific instead of deeming the plaintiff’s averments admitted.   Citibank v. Shepley, 63 Som.L.J. 94 (2005) (Fike, P.J.)

 

It was not error for the court to rule on the Motion for Judgment on the Pleadings without having first decided on the merits of Plaintiff’s Preliminary Objections to the New Matter raised by defendant in his Answer and New Matter. Watson v. Salameh, 64 Som.L.J. 326 (2009) (Klementik, J.).

 

Where a party attempts to recover on a theory that is not recognized as a matter of law, a grant of judgment on the pleadings is proper since a trial would certainly be a fruitless exercise. Watson v. Salameh, 64 Som.L.J. 326 (2009) (Klementik, J.).

 

JUDGMENTS – MODIFY JUDGMENTS

 

42 Pa.C.S. § 5505 states that except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.  King v. King, 61 Som. L.J. 320, 322 (2005) (Cascio, J.) 

 

An allegation of mistake alone is not sufficient cause to modify an existing Qualified Domestic Relations Order.  King v. King, 61 Som. L.J. 320, 323 (2005) (Cascio, J.)

 

JUDGMENTS – OPENING (STRIKING) JUDGMENTS

 

In order to open a confessed judgment, a party must act promptly; allege a meritorious defense and present sufficient evidence of that defense to require submission of the issues to the jury.  The standard of sufficiency a court must employ is that of a directed verdict.  Piontek v. Fabry, 50 Som. 21 

 

The timeliness of a petition to open a judgment is measured from the date that notice of the judgment is received.  Piontek v. Fabry, 50 Som. 21 

 

Where not more than three months has elapsed between entry of a judgment and filing of defendants' petition to open judgment, defendant testifies to her delayed notice of the entry, and plaintiffs claim no prejudice from the delay, it is within the court's equitable powers to find defendants' petition timely filed.  Piontek v. Fabry, 50 Som. 21 

 

Where plaintiffs' representation of the purpose of the note, along with authorization to enter judgment and the terms of the note itself are disputed, sufficient evidence is presented to raise a jury question, and judgment should be opened to allow defendants the opportunity to interpose those defenses.  Piontek v. Fabry, 50 Som. 21 

 

Amending a petition to open judgment will be permitted unless prejudice will result; amendments should liberally be allowed.  Beckwith Machinery v. Five-R Excavating, Inc., 53 Som. 309 

 

To justify opening a judgment by confession, the evidence of a meritorious defense must be such as would create an issue requiring submission to a jury.  Beckwith Machinery v. Five-R Excavating, Inc., 53 Som. 309 

 

A motion to strike a judgment may be granted when a defect appears on the face of the record.  Shelley v. Harff, 60 Som.L.J. 20 (2001) (Fike, P.J.). 

 

In order to succeed on a petition to open judgment, the moving party must act promptly, and set forth a meritorious defense.  Shelley v. Harff, 60 Som.L.J. 20 (2001) (Fike, P.J.).

 

Where a defendant is able to assert a meritorious defense, but has failed to file a timely petition to open judgment, the petition must be dismissed.           Shelley v. Harff, 60 Som.L.J. 20 (2001) (Fike, P.J.). 

 

When a judgment is rendered after an adversarial proceeding, the court's authority to open judgment is extremely limited.  Shelley v. Harff, 60 Som.L.J. 20 (2001) (Fike, P.J.). 

 

               After adversarial proceedings and judgment has become final, a petition to open will not succeed unless the petitioner acts promptly and shows exceptional circumstances or extraordinary cause such as fraud, neglect of a court official, or other extraordinary cause which prevented a full and fair defense to the action or a full and fair presentation of the cause of action.  Shelley v. Harff, 60 Som.L.J. 20 (2001) (Fike, P.J.). 

 

       Where the judgment creditor delayed for five and a half years in requesting a petition to open a judgment and no reasonable explanation has been provided to justify the lengthy delay, a court must dismiss the petition as untimely.  Shelley v. Harff, 60 Som.L.J. 20 (2001) (Fike, P.J.).

 

Where fraud is the ground upon which relief is sought, the fraud must be extrinsic or collateral, caused by some act or conduct of the prevailing party which has prevented a fair submission of the controversy.  Shelley v. Harff, 60 Som.L.J. 20 (2001) (Fike, P.J.).

 

A petition to strike and a petition to open are two forms of relief with separate remedies; each is intended to relieve a different type of defect in the confession of judgment proceedings.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.). 

 

In determining whether to grant a motion to strike a judgment, a trial court is restricted to examining the record.     Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.). 

 

A motion to strike a judgment operates as a demurrer to the record and will only be granted if a fatal defect or irregularity appears on the face of the record or judgment.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.).

 

In order to strike a judgment, there must be some material defect appearing on the face of the record only; if the ground asserted depends upon facts beyond the record of the judgment it may not be stricken, although a petition to open judgment may be proper.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.). 

 

The defect which is a matter of record or which appears from the face of the judgment must be alleged in the application.            Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.).

 

The petition to open a confessed judgment is an appeal to a court's equitable powers.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.).

 

In attempting to open a confessed judgment, the petitioner must act promptly, allege a meritorious defense, and provide enough evidence to support the defense to the extent of creating a jury issue.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.).

 

In determining whether sufficient evidence has been presented, we employ the same standard as in a directed verdict: viewing all of the evidence in the light most favorable to the petitioner and accepting as true all evidence and proper inferences therefrom supporting the defense while rejecting adverse allegations of the party obtaining the judgment.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.).

 

When determining a petition to open the judgment the court may consider evidence outside of the record of the confessed judgment, including testimony, depositions and admissions.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.).

 

A petition to strike a judgment by confession will be granted where there is an apparent defect on the face of the record on which judgment was entered.  1st Summit Bank v. Gap Chevrolet, Inc., 60 Som.L.J. 322 (2002) (Fike, P.J.).

 

In order to sustain an entry of judgment by confession, the complaint must sufficiently aver the default.  1st Summit Bank v. Gap Chevrolet, Inc., 60 Som.L.J. 322 (2002) (Fike, P.J.).

 

A petition to strike a confessed judgment will be granted when a complaint does not sufficiently identify the default to apprise the defendant of the nature of the conduct about which the complaint is made.  1st Summit Bank v. Gap Chevrolet, Inc., 60 Som.L.J. 322 (2002) (Fike, P.J.).

 

If the averment of the default is defective only by reason of lack of specificity, amendment may be permitted, and especially so if the warrant of attorney contains a release of errors.  1st Summit Bank v. Gap Chevrolet, Inc., 60 Som.L.J. 322 (2002) (Fike, P.J.).

 

When ruling on a motion to strike off a judgment, the court's duty is to inquire whether the complaint in the case at bar contains averments of fact necessary to sustain the action.  Chase Manhattan Bank v. Petrunak, 61 Som.L.J. 166 (2003) (Cascio, J.)

 

A default judgment may be opened as a matter of judicial discretion when three elements are established; the moving party must (1) promptly file a petition to open the default judgment, (2) show a meritorious defense, and (3) provide a reasonable excuse or explanation for its failure to file a responsive pleading.  Chase Manhattan Bank v. Petrunak, 61 Som.L.J. 166 (2003) (Cascio, J.) 

 

A petition to strike off a judgment is directed only to defect appearing on the face of the record; if an asserted defect depends upon facts beyond the record of the judgment, it may not be stricken, although a petition to open may be proper.                Chase Manhattan Bank v. Petrunak, 61 Som.L.J. 166 (2003) (Cascio, J.)

 

According to Pa.R.C.P. 237.3, a default judgment may be opened upon a showing of a meritorious defense so long as the petition to open is filed within 10 days of the judgment being entered.  Chase Manhattan Bank v. Petrunak, 61 Som.L.J. 166 (2003) (Cascio, J.)

 

After 30 days of the entry of an order, it may be opened or vacated only upon a showing of extrinsic fraud, lack of jurisdiction over the subject matter, a fatal defect apparent on the face of the record or some other evidence of extraordinary cause justifying intervention by the court.  King v. King, 61 Som.L.J. 320 (2005) (Cascio, J.) 

 

Under Pa.R.C.P. 2973.3, a defendant's petition to strike the judgment is limited to the issue whether the defendant voluntarily, intelligently and knowingly waived the right to notice and hearing prior to the entry of judgment.           Beitzel v. Leberfinger, 61 Som. L.J. 326 (2005) (Cascio, J.) 

 

Pa.R.C.P. 2959(a)(2) provides that the ground that the waiver of due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3.           Beitzel v. Leberfinger, 61 Som. L.J. 326 (2005) (Cascio, J.)

 

Pa.R.C.P. 2959(a)(3) requires the petition to strike the judgment to be filed within thirty days after written notice is served pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c).  Beitzel v. Leberfinger, 61 Som. L.J. 326 (2005) (Cascio, J.)    

                     

JUDGMENTS – REVIVAL OF JUDGMENTS

 

When a plaintiff files a Writ of Revival, the writ acts as a civil complaint. Therefore, the case proceeds under the general rules governing civil actions.  Shelley v. Harff, 60 Som.L.J. 20 (2001) (Fike, P.J.).

 

Upon proceedings to revive a judgment, the defendant is not permitted to inquire into the merits of the original judgment.  Shelley v. Harff, 60 Som.L.J. 20 (2001) (Fike, P.J.).

 

In revival proceedings, defenses are limited to whether or not the judgment actually exists, or whether or not the judgment has been satisfied or otherwise discharged. The defendant may not defend on the basis that there were irregularities in the entry of the original judgment.  Shelley v. Harff, 60 Som.L.J. 20 (2001) (Fike, P.J.).                                       

 

LACHES

 

The defense of laches requires lack of due diligence and resulting prejudice to the Defendant.  Trent v. PBS Coals, Inc., et al., 50 Som. 303 

 

For purposes of showing that a claim is barred by laches, prejudice under Pennsylvania law may be shown if relevant records have disappeared, if a key witness is deceased or cannot be located, or if the defendant changed position based on the expectation that the plaintiff would not pursue the claim; the incurring of substantial expenses in defending the action is not sufficient prejudice to invoke the defense of laches.  Trent v. PBS Coals, Inc., et al., 50 Som. 303

 

Laches requires not only a passage of time, but also a resultant prejudice to the party asserting the doctrine.  Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). 

 

The test to be applied with regard to the doctrine of laches has been stated as follows: the party asserting laches must show, first, a delay arising from the other party's failure to exercise due diligence, and second, prejudice from the delay . . . It is not enough to show delay arising from failure to exercise due diligence; for "laches will not be imputed where no injury has resulted to the other party by reason of the delay."  Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.).

 

The party asserting laches has the burden of proof, and part of that burden is to demonstrate prejudice.  Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). 

 

The doctrine of laches is an equitable one whose purpose is the repose of title, claims and demands for the peace and order of society.              Bittner v. Forespring, 60 Som.L.J. 469 (2002) (Gibson, J).

 

Its application is not tied to a definite passage of time after accrual of a cause of action.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (Gibson, J). 

 

Rather it relates to whether, under the circumstances of a particular case, a party can be charged with lack of due diligence in failing to institute a claim.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (Gibson, J). 

 

Laches will not be found where the adverse party has not been harmed by the delay.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (Gibson, J). 

 

Therefore, the mere passage of time is insufficient to warrant the application of the doctrine.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (Gibson, J). 

 

Instead it must further appear that the opposing party has been injured or has been materially prejudiced because of the delay.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (Gibson, J). 

 

Laches requires not only the passage of time, but also a resultant prejudice to the party asserting the doctrine.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (Gibson, J). 

 

The test to be applied with regard to the doctrine of Laches has been stated as follows:  the party asserting laches must show, first, a delay arising from the other party's failure to exercise due diligence, and second, prejudice from the delay.  It is not enough to show delay arising from failure to exercise due diligence; for "laches" will not be imputed where no injury has resulted to the other party by reason of the delay.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (Gibson, J). 

 

The party asserting laches has the burden of proof, and part of that burden is to demonstrate prejudice.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (Gibson, J). 

 

The question of laches is factual and to be determined by an examination of the circumstances.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (Gibson, J). 

 

In order to determine if laches is applicable, the status of each party must be understood by the court.  Bittner v. Forespring, 60 Som.L.J. 469 (2002) (Gibson, J). 

 

MATERIAL FACTS

 

Material facts are "ultimate facts," i.e. those facts essential to support the claim.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.).

 

MECHANICS LIENS

 

The Mechanics' Lien Law is a creature of statute in derogation of the common law, and any questions of interpretation should be resolved in favor of a strict, narrow construction.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

To effectuate a valid lien claim, the contractor or sub-contractor must be in strict compliance with the requirements of the Mechanics' Lien Law.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

Where the words of the statute are clear, the courts should not be requested to go beyond the requirements of the act to determine who was or who was not dilatory and responsible for the delay.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

Under existing law, the proceedings in mechanics' lien cases fall into two distinct, consecutive stages: (1) filing and perfecting the claim of a mechanics' lien; and (2) instituting and prosecuting an action sur claim of a mechanics' lien.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

The papers relating to each stage of mechanics' lien proceedings are entered in separate dockets, kept in separate files, and bear separate designations of court term and number.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

Procedure for the first stage is governed exclusively by statute: Sections 501 through 510 of the Mechanics' Lien Law of 1963, 49 P.S. Section 1501 through 1510.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

Procedure for the second stage is regulated pursuant to Sections 701(a) and 706(b) of the Law, 49 P.S. Sections 1701(a) and 1706(b) and is also governed by the Pennsylvania Rules of Civil Procedure.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

Under §1701(d), the filing of the mechanics' lien claim triggers the five-year period within which a verdict must be recovered or judgment entered.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

The Mechanics' Lien Law must be strictly complied with in enforcing the right to a lien in view of the express, limited purpose of the act, and any question of interpretation of the applicable rules of procedure should likewise be resolved in favor of a strict, narrow construction, so as to insure against mechanics' lien proceedings becoming unduly complicated and broadened beyond the degree intended by the legislature.  A motion to dismiss an action filed under the Mechanics' Lien Law is governed by that law rather than by Jacobs v. Halloran.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

The Jacobs v. Halloran requirements are not applicable to dismissal issues arising pursuant to a mechanics' lien action.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.).

 

NON PROS (MOTION FOR)

 

In order to dismiss a civil case for inactivity pursuant to a defendant's motion for non pros there must first be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude.  Second, the plaintiff must have no compelling reason for the delay.  Finally, the delay must cause actual prejudice to the defendant.  Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998).  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

Jacobs v. Halloran pertains to dismissals pursuant to a motion for non pros and dismissals pursuant to Rule 1901 of the Rules of Judicial Administration.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

The Jacobs v. Halloran requirements are not applicable to dismissal issues arising pursuant to a mechanics' lien action.  Somerset Door & Column Comp. v. Mowry, 59 Som.L.J. 269 (2001) (Gibson, J.). 

 

PLEADINGS – ATTACHMENT OF DOCUMENTS TO

 

When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.  Lamens v. Forman and Ferguson 59 Som L.J. 1 (2001) (Fike, P.J.). 

 

When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance of the writing.  Lamens v. Forman and Ferguson 59 Som L.J. 1 (2001) (Fike, P.J.). 

 

Where a plaintiff has not attached an original draft of a document and he has explained the reasons why the writing is not accessible, by attaching a duplicate, he has set forth what the plaintiff claims to be the substance of the writing.  Lamens v. Forman and Ferguson 59 Som L.J. 1 (2001) (Fike, P.J.).

 

PLEADINGS – COMPLAINT

 

Challenged averments cannot be viewed in isolation, and the complaint must be read as a whole, with each individual averment at issue read in connection with all other parts of the complaint.  Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.). 

 

A complaint must not only give notice to the defendant of the claim being asserted, but it must summarize facts essential to support the claim, and a plaintiff cannot escape this duty by a general averment that the facts are in the possession of defendant.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

A complaint if sufficiently specific if it provides the adverse party with enough facts to enable him to frame a proper answer and prepare a defense.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

When confronted with Connor-type objections and correlative claims that a complaint lacks specificity, the reasons for the rule must be considered.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, P.J.). 

 

A pleading must inform the adversary of the specific-basis of the claim so that a defense can be prepared.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, P.J.). 

 

The pleading must enable the adverse party to prepare his case and define the issues to be tried.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, P.J.). 

 

A general averment of negligence does little to advance the inquiry of the parties or the court.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, P.J.). 

 

In determining whether the averments are sufficiently specific the complaint must be read as a whole; discovery cannot be used as a substitute for specific pleading.              Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, P.J.) .

 

Plaintiff may be granted leave to file an amended complaint, if desired, under the circumstances.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, P.J.). 

 

At the pleading stage it is for the plaintiff to identify the acts of negligence of which the complaint is made; therefore, it is the plaintiff’s decision to include identical averments in each of the counts where the plaintiff contends the same acts were committed by the defendants.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, P.J.). 

 

Averments in a complaint that assert legal conclusions, lack specificity, or are redundant will be stricken.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, P.J.). 

 

A pleading must inform the adversary of the specific basis of the claim so that a defense can be prepared.  Wissinger, Executrix of the Estate of Gilbert C. Wissinger, deceased, and Kimberly Wissinger, in her own right vs. Furigay, M.D., and Windber Hospital, 61 Som.L.J. 158 (2002) (Fike, P.J.). 

 

The pleading must enable the adverse party to prepare his case and define the issues to be tried.  Wissinger, Executrix of the Estate of Gilbert C. Wissinger, deceased, and Kimberly Wissinger, in her own right vs. Furigay, M.D., and Windber Hospital, 61 Som.L.J. 158 (2002) (Fike, P.J.). 

 

A general averment of negligence does little to advance the inquiry of the parties or the court.  Wissinger, Executrix of the Estate of Gilbert C. Wissinger, deceased, and Kimberly Wissinger, in her own right vs. Furigay, M.D., and Windber Hospital, 61 Som.L.J. 158 (2002) (Fike, P.J.). 

 

A complaint need not specify legal theory, but merely allege the material facts forming the basis of the cause of action. Windridge Farm, LLC v. Delmont Hearn and Elizabeth Hearn t/a Delmont Grain & Feed, 61 Som.L.J. (2003) (Cascio, J.). 

 

The Pa.R.C.P. permit liberal amendment procedures where a better statement of the facts could establish a cause of action.  Windridge Farm, LLC v. Delmont Hearn and Elizabeth Hearn t/a Delmont Grain & Feed, 61 Som.L.J. (2003) (Cascio, J.). 

 

PLEADINGS – COUNTERCLAIMS

 

A counterclaim must satisfy the pleading requirement for any existing cause of action.  Windridge Farm, LLC v. Delmont Hearn and Elizabeth Hearn t/a Delmont Grain & Feed, 61 Som.L.J. (2003) (Cascio, J.).

 

PLEADINGS – MOTION FOR MORE SPECIFIC PLEADING

 

In Pennsylvania, the complaint must “contain all the ingredients of a complete cause of action averred in clear, express and unequivocal language. . . . “ Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

 

Where special damages are sought, it must “indicate the basis upon which the claim for damages is made; a mere averment of a lump sum is not sufficient.” Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

 

To assure the defendants, as well as the Court, that the case should not be arbitrated, the Court sustains the objections; Plaintiffs shall specifically account for the approximately $20,000 difference in damages between the general damages and the lump sum for which they ultimately seek to recover. Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

 

PLEADINGS - PRELIMINARY OBJECTIONS – BURDEN

 

The party who seeks relief by filing preliminary objections has the burden of proving the objections.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

The party who seeks relief by filing preliminary objections has the burden of proving the objections.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.).

 

PLEADINGS - PRELIMINARY OBJECTIONS – SCOPE OF COURT'S EXAMINATION/RECORD

 

In contrast to the procedure when summary judgment is requested, at the preliminary objection stage, the plaintiff is not required to present evidence by affidavit or otherwise to prove that a factual issue exists.  At the preliminary objection stage, the court is confined to an examination of the averments of the complaint to determine whether those averments state a claim upon which relief can be granted.  Lamens v. Forman and Ferguson 59 Som L.J. 1 (2001) (Fike, P.J.).

 

 

PLEADINGS - PRELIMINARY OBJECTIONS – AMENDMENT OF COMPLAINT

 

The Pennsylvania Rules of Civil Procedure permit liberal amendment procedures where a better statement of facts could establish a cause of action. Miele v. Tradewinds Group, Inc. & Paula Shaffer, 64 Som.L.J. 86 (2009) (Klementik, J.).

 

Courts will deny preliminary objections and will permit amendment where complaint is not inherently unsound but only incomplete. Miele v. Tradewinds Group, Inc. and Paula Shaffer, 64 Som.L.J. 86 (2009) (Klementik, J.).

 

PLEADINGS - PRELIMINARY OBJECTIONS – DEMURRER AND SPEAKING DEMURRER

 

A preliminary objection in the nature of a demurrer should be sustained only in cases that clearly without doubt fail to state a claim for which relief can be granted.  A complaint fails to state a claim for which relief can be granted when it is clear from all facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.).

 

When facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J. ). 

 

In determining whether to grant a demurrer, a court must consider as true all of the well pleaded material facts set forth in the complaint and all reasonable inferences that may be drawn from those facts.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.). 

 

While a demurrer is the proper method to challenge the sufficiency of the averments of the complaint, the demurring party cannot inject facts not appearing in the pleading to which it is filed.  When analyzing a demurrer, the court may consider only such matters which arise out of the complaint itself.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.) .

 

Injected facts that do not appear in the complaint are speaking demurrers and should be disregarded.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.). 

 

A party waives all defenses and objections which are not presented either by preliminary objection, answer or reply.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.). 

 

By definition, the analysis of a demurrer is limited to the facts averred in the complaint.  Despite the Plaintiff's failure to respond to the preliminary objections and resultant waiver and admissions, the analysis of a demurrer is confined to the four corners of the complaint.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J. ). 

 

The Defendant's allegation that complaint fails to contain material facts sufficient to support the Plaintiff's cause of action is essentially a demurrer.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.). 

 

The material facts on which a cause of action is based shall be stated in concise and summary form.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.). 

 

A complaint must not only give the defendant notice of what the plaintiff's claim is and grounds upon which it rest, but it must also summarize those facts essential to support the claim.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.). 

 

While it is impossible to establish precise standards as to the degree of particularity required in a given situation, the two following conditions must be met: (1) the pleading must be adequately clear so that the opposing party can prepare a defense and (2) the pleading must be sufficient to convince the court that the averments are not mere subterfuge.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.). 

 

A complaint's averments must be specific enough to eliminate the possibility of later introduction of new theories of negligence, to the prejudice of the defendant.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.) .

 

A more detailed explanation of the complained incompetence, lack of supervision and faulty construction should have been plead with specificity in the Plaintiff's complaint.  Incompetence and lack of supervision could encompass anything from choice of materials, to the use of equipment or method of construction.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.). 

 

General claims of faulty construction and violation of standard building practices set no limits to the types of defective workmanship or standards on which the Plaintiff bases her claim.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.). 

 

Generally, in a tort action, it is not necessary for the Plaintiff to identify specifically the agents or employees of the defendant who may have committed negligent acts.  Since tort actions frequently arise between two parties who are strangers, it is not reasonable to require the plaintiff to identify the employees when their identity should already be known by the defendant.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.). 

 

Since a claim of breach of warranty to perform construction work in a good and workmanlike manner is similar to the correlative negligence claim, the same reasoning excuses the Plaintiff from specifically identifying the agents or employees of the defendant who may have committed the acts in breach of the warranty.  Hetz v. Bennett 58 Som. L.J. 300 (1999) (Fike, P.J.). 

 

All well-pleaded material facts set forth in the complaint and all reasonable inferences that may be drawn from them must be considered as true when deciding a preliminary objection in the nature of a demurrer and such an objection should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief can be granted.  Unionvale Coal Company v. Charles E. Erickson, Jr., et al. 58 Som. L.J.69 (1998) (Fike, P.J.). 

 

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief.  Tunstall et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.). 

 

Preliminary objection in the nature of a demurrer admits as true all well-pleaded facts.  Tunstall et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.). 

 

Preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.  Tunstall et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.). 

 

If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.  Tunstall et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.). 

 

When considering preliminary objections in the nature of a demurrer, the Court generally should allow the plaintiff leave to amend where there is some reasonable possibility that amendment can be done successfully.  Tunstall et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.). 

 

When considering preliminary objections in the nature of a demurrer, the court generally should allow a plaintiff leave to amend where there is some reasonable possibility that the amendment can be done successfully.  Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.). 

 

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief.  Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.). 

 

For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material and relevant facts, and every inference fairly deducible from those facts.  Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.). 

 

The pleader's conclusions and averments of law are not to be considered to be admitted as true by a demurrer.  Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.). 

 

A preliminary objection in the nature of a demurrer should only be sustained in cases that clearly and without a doubt fail to state a claim for which relief may be granted.  Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.). 

 

If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.  Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.). 

 

When considering preliminary objections in the nature of a demurrer, the Court generally should allow the plaintiff leave to amend where there is some reasonable possibility that amendment can be done successfully.  Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.). 

 

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief.  Zerfoss, et al. v. Borriello, et al. 59 Som.L.J. 427 (2002) (Gibson, J.). 

 

For the purposes of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts and every inference fairly deducible from those facts.  Zerfoss, et al. v. Borriello, et al. 59 Som.L.J. 427 (2002) (Gibson, J.). 

 

The pleader's conclusions or averments of law are not to be considered to be admitted as true by a demurrer.  Zerfoss, et al. v. Borriello, et al. 59 Som.L.J. 427 (2002) (Gibson, J.). 

 

Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.  Zerfoss, et al. v. Borriello, et al. 59 Som.L.J. 427 (2002) (Gibson, J.). 

 

If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.  Zerfoss, et al. v. Borriello, et al. 59 Som.L.J. 427 (2002) (Gibson, J.). 

 

A demurrer is a claim that a complaint does not set forth the necessary requirements of a cause of action.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

A demurrer will only be granted where the complaint "shows with certainty that upon the facts averred therein, the law will not permit the plaintiff to recover."  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

For the purposes of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts and every inference fairly deducible from those facts.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

The pleader's conclusions or averments of law are not to be considered to be admitted as true by a demurrer.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

When considering preliminary objections in the nature of a demurrer, the Court should generally grant the plaintiff leave to amend where there is some reasonable possibility that the amendment can be done successfully.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

Demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts and every inference fairly deducible from those facts.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

The pleader's conclusions or averments of law are not to be considered to be admitted as true by a demurrer.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

Since sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

When considering preliminary objections in the nature of a demurrer, a court should generally allow a plaintiff leave to amend where there is some reasonable possibility that amendment can be done successfully.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

A demurrer is a claim that a complaint does not set forth the necessary requirements of a cause of action.  Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (2002) (Gibson, J.). 

 

A demurrer will only be granted where the complaint shows with certainty that upon the facts averred therein, the law will not permit the plaintiff to recover.  Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (2002) (Gibson, J.). 

 

A demurrer is a claim that a complaint does not set forth the necessary requirements of a cause of action.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

A demurrer will only be granted where the complaint shows with certainty that upon the facts averred therein, the law will not permit the plaintiff to recover.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290 (2002) (Gibson, J.). 

 

A demurrer can only be sustained where the complaint is clearly insufficient to establish a pleader's right to relief.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290 (2002) (Gibson, J.). 

 

For the purposes of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290 (2002) (Gibson, J.). 

 

The pleader’s conclusions or averments of law are not to be considered to be admitted as true by a demurrer.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290 (2002) (Gibson, J.). 

 

Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objections in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290 (2002) (Gibson, J.). 

 

If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290 (2002) (Gibson, J.). 

 

When considering preliminary objections in the nature of a demurrer, a court should generally grant the plaintiff leave to amend where there is some reasonable possibility that the amendment can be done successfully.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290 (2002) (Gibson, J.). 

 

In determining whether to grant a demurrer, a court must resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.  In order to sustain a demurrer, it is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit a recovery.  If there is any doubt, it should be resolved by the overruling of the demurrer.  Cugini v. Kearcher and Mardis Ford-Lincoln-Mercury, Inc., 60 Som. L.J. 402 (2002) (Cascio, J.).

 

It is well established in this Commonwealth that in ruling upon preliminary objections in the form of a demurrer, the Court must accept as true all well-pleaded allegations of material fact, as well as all inferences reasonably deducible therefrom.  However, [the Court] need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion.  The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief.  Where the pleadings demonstrate that factual or legal issues remain to be examined, the demurrer must be denied.  If any doubt exists as to whether to sustain the demurrer, that doubt should be resolved by refusing to do so.  Beamer v. Shockey, 63 Som.L.J. 137 (2005) (Fike, P.J.).

 

The test to be applied on demurrer to a [declaratory judgment] petition is whether the petition sets forth facts that make it clearly appear that an actual controversy exists between the parties and what the controversy is.  Thus, where the plaintiff's pleading sets forth an actual or justiciable controversy, or a bona fide justiciable controversy, it sets forth a cause of action and is not subject to demurrer.  Beamer v. Shockey, 63 Som.L.J. 137 (2005) (Fike, P.J.).

 

In ruling on a demurrer, the Court is required to resolve issues solely on the basis of the pleadings, and may not consider testimony or evidence outside of the record to dispose of the legal issues presented.  Additionally, the Court may not consider collateral matters, or facts appearing only in legal briefs.  Beamer v. Shockey, 63 Som.L.J. 137 (2005) (Fike, P.J.).

 

The standard of review for granting preliminary objections in the nature of a demurrer is as follows: All material facts set forth in the pleading at issue, as well as all inferences reasonably deductible therefrom are admitted as true. The question presented by the demurrer is whether, on the facts as averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Burke v. Camro Manufacturing Co & Kot, 63 Som.L.J. 192 (2006) (Geary, J.).

 

Preliminary objections should be sustained only when the law will not permit a remedy for the claim asserted, “and where any doubt exists, that doubt should be resolved by a refusal to sustain the preliminary objections.”  Elswick v. Lincoln, 63 Som.L.J. 449 (2007)(Geary, J.).

 

The question presented by a demurrer is whether, on the facts as averred, the law says with certainty that no recovery is possible.  Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Elswick v. Lincoln, 63 Som.L.J. 449 (2007)(Geary, J.).

 

The inclusion of factual allegations by a defendant, e.g. a waiver form, constitutes an inappropriate “speaking demurrer” in violation of the underlying approach to our court’s review, which requires that we accept as true all of plaintiff’s allegation of fact. Sloan v. Macintyre, et al., 65 Som. L.J. 216 (2013)(Klementik, J.)

 

PLEADINGS - PRELIMINARY OBJECTIONS – DEMURRER – ATTORNEYS’ FEES

 

Pennsylvania follows the “American Rule,” whereby “litigants are responsible for their own counsel fees unless otherwise permitted by statutory authority, agreement of the parties, or some other recognized exception[.]”  Because Plaintiffs have not pled that an exception exists in this case, the Court sustains the demurrer.  Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

The general rule in Pennsylvania is that there is no recovery of attorney’s fees from an adverse party in the absence of an express statutory authorization, clear agreement between the parties, or the application of a clear exception.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

The terms “costs” or “expenses” do not encompass attorney’s fees.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

PLEADINGS - PRELIMINARY OBJECTIONS – DEMURRER – BREACH OF CONTRACT

 

“To establish a cause of action for breach of contract in Pennsylvania, the plaintiff must plead: “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.”  Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

The Court sustains the demurrer:  although the Plaintiffs have pled the existence of a contract between themselves and the insurance company and attached a copy of it to the Second Amended Complaint, they have not pled “the existence of a contract, including its essential terms” between themselves and the insurance agent in his individual or business capacity. Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

To establish a cause of action for breach of contract in Pennsylvania, the material facts that must be alleged are simple: there was a contract, the defendant breached it, and plaintiff suffered damages from the breach.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

PLEADINGS - PRELIMINARY OBJECTIONS – DEMURRER – UNJUST ENRICHMENT

 

Unjust enrichment is an equitable doctrine where the law implies a contract and requires the defendant to pay to the plaintiff the value of the benefit conferred.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

The elements necessary to support an unjust enrichment claim are: (1) benefits conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

In order to avoid dismissal of an unjust enrichment claim, the plaintiff must allege facts showing that the defendant specifically requested the benefits or misled the plaintiff.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

Quantum meruit is an equitable remedy to provide restitution for unjust enrichment in the amount of the reasonable value of the services.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

PLEADINGS - PRELIMINARY OBJECTIONS – FAILURE OF A PLEADING TO CONFORM TO LAW

 

Rule 1028, “Preliminary Objections,” subsection(c)(1) provides that “[a] party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections.”  Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).


Where a party files the amended pleading beyond this 20-day period, the note to Rule 1028(a)(4), which requires a statute of limitations defense to be pled as new matter, does not apply; a motion to strike the claim is appropriate. Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).\

 

PLEADINGS - PRELIMINARY OBJECTIONS – FAILURE TO CONFORM TO A RULE OF COURT

 

Except as provided by subdivision (b), all affirmative defenses including . . . the defenses of . . . immunity from suit . . . shall be pleaded in a responsive pleading under the heading “New Matter.” Pa.R.Civ.P. 1030. Sloan v. Macintyre, et al., 65 Som. L.J. 216 (2013)(Klementik, J.)

 

Pennsylvania courts have considered the issue of immunity from suit on the merits when raised in a preliminary objection in the nature of a demurrer, so long as the opposing party does not object during the proceedings. Sloan v. Macintyre, et al., 65 Som. L.J. 216 (2013)(Klementik, J.)

 

Where the issue of immunity from suit is improperly raised in preliminary objections in the nature of a demurrer, rather than as affirmative defense pleaded as new matter, and the Plaintiff objects explicitly to the manner in which the issue of immunity was raised by Defendants, the court is not permitted to reach the merits of the immunity issue as raised in a preliminary objection. Sloan v. Macintyre, et al., 65 Som. L.J. 216 (2013)(Klementik, J.)

 

PLEADINGS - PRELIMIANRY OBJECTIONS – INCLUSION OF IMPERTINENT MATTER

 

Only the facts that are immaterial to an issue are impertinent. Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

Clearly, the damages regarding the mold infestation are special and “may not be proved unless[, first and foremost,] the special facts giving rise to them are averred” in the complaint.  Thus, the averments are not impertinent; they are requisite. Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

Where exhibits are attached to the complaint that are “purely evidentiary in character,” the “defendant should not be called upon to make answer thereto.”  Although such an exhibit may be used later as evidence, it does not “perform any function in the complaint” and should be struck off as impertinent matter. Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

“[A]n allegation of damages or a prayer for damages which are not legally recoverable in the cause of action pleaded is impertinent matter in the same sense that it is irrelevant to that cause of action.”  Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

“[A] motion to strike should be overruled unless a part can affirmatively show prejudice[, and] where the matter is impertinent but not injurious, it need not be stricken” because “the right to strike impertinent matter should be sparingly used.”  Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.). 

 

In this case, Plaintiffs have set forth a claim for, among other things, “such other and further relief as the Honorable Court deems necessary, equitable and appropriate.”  Although the Court cannot award Plaintiffs additional damages if a verdict were rendered in their favor, this language is not injurious.  As such, the objection is overruled.  Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

PLEADINGS - PRELIMINARY OBJECTIONS – LIMITATIONS

 

Preliminary objections shall be limited to and shall be the exclusive method of challenging (1) the power and right of the condemner to appropriate the condemned property unless the same has been previously adjudicated; (2) the sufficiency of the security; (3) any other procedure followed by the condemner; or (4) the declaration of taking.  Failure to raise these matters by preliminary objection shall constitute a waiver thereof.  26 P.S. § 1-406 (a) Re: Condemnation of Rights of Way Over and Across Property of Robert M. Reed and Kathy T. Reed by the Somerset Township Municipal Authority for Sanity Sewer Lines and Related Facilities. 62 Som.L.J. 85 (2005) (Upor, J.).

 

PLEADINGS - PRELIMINARY OBJECTION TO PRELIMINARY OBJECTIONS

 

If the plaintiff files preliminary objections to the defendant's preliminary objections, the trial court cannot address a Statute of Frauds issue at the preliminary objection stage even if deemed appropriate to expedite final resolution of the case.  Lamens v. Forman and Ferguson 59 Som.L.J. 1 (2001) (Fike, P.J.). 

 

The failure of the opposing party to file preliminary objections to a defendant's defective preliminary objections raising erroneous defense, waives the procedural defect, thus permitting the trial court to rule on the issue on the basis of the preliminary objection.  Lamens v. Forman and Ferguson 59 Som.L.J. 1 (2001) (Fike, P.J.). 

 

If a court were to consider a procedural defect waived, it would be appropriate to decide the issue only if proper resolution could be effected based upon the contents of the relevant pleading.  Lamens v. Forman and Ferguson 59 Som.L.J. 1 (2001) (Fike, P.J.). 

 

PLEADINGS – PRELIMINAY OBJECTIONS – ORIGINAL PROCESS – WRIT OF SUMMONS

 

The limitation period for a negligence action is two years.  Haman v. Krise, 65 Som.L.J. 17 (2010).

 

An action may be commenced by filing a precipe for a writ of summons.  Haman v. Krise, 65 Som.L.J. 17 (2010).

 

To give proper notice, the writ [must] be served within the Commonwealth within thirty days after its issuance. Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

If service is not made within the prescribed thirty-day period, the “Prothonotary upon praecipe and upon presentation of original process [may] continue its validity by reissuing the writ…”  The Rules permit a writ to be reissued at any time and any number of times, but the reissued writ must be served within the prescribed thirty-day time period. Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

In Lamp, our Supreme Court held that a writ of summons “remains effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” Haman v. Krise, 65 Som.L.J. 17 (2010).

 

A decade after Lamp, in Farinacci, the Supreme Court altered the Lamp test somewhat, holding that “Lamp requires of plaintiffs a good-faith effort to effectuate notice of commencement of the action.”  The determination of whether a plaintiff has demonstrated a good-faith effort to effectuate notice is left to the sound discretion of the trial court. Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

First, in Witherspoon, a majority of justices held that a good faith effort did not exist where a plaintiff made only one unsuccessful attempt at service in a nine month time period.  Then, in McCreesh, the Court held that strict compliance with the Rules of Civil Procedure is not required in order to satisfy the good faith requirement if the defendant received actual notice of the lawsuit and was not prejudiced by the noncompliance with the Rules. Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

Citing Teamann, the Commonwealth Court held that “a good faith attempt at prompt service requires that [the] attempt to comply with the Pennsylvania Rules of Civil Procedure” and, by serving the writ by certified mail, the plaintiff had failed to comply with Pa.R.C.P. 400.1.  Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

In deciding whether the Commonwealth Court erred or abused its discretion in overturning the trial court’s denial of the City’s preliminary objections, we must first determine whether to adopt the strict approach of cases such as the case sub judice and Teamann, which require rigid compliance with the Rules of Civil Procedure in order to satisfy the Lamp test, or the more flexible approach of the Leidich line of cases, which allows for the continued validity of the writ despite non-compliance with the rule so long as the defendant received actual notice and was not prejudiced. Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

[W]e conclude that the rigid compliance requirement of the Teamann line of cases is incompatible with the plain language of Rule 401, the spirit of Lamp, and the admonition of Rule 126 to construe liberally the rules of procedure so long as the deviation does not affect the substantive rights of the parties. . . . Neither our cases nor our rules contemplate punishing a plaintiff for technical missteps where he has satisfied the purpose of the statute of limitations by supplying a defendant with actual notice.  Therefore, we embrace the logic of the Leidich line of cases, which, applying Lamp, would dismiss only those claims where plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiffs’ failure to comply with the Rules of Civil Procedure has prejudiced defendant.  We now reverse the Commonwealth Court because [plaintiff] supplied the [defendant] with actual notice.  As the trial court did not speak to the issue of prejudice, we direct the Commonwealth Court to remand the case to the trial court to determine whether the [defendant] suffered prejudice as a result the delay of proper service. Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

Reading the Supreme Court’s pronouncement in Lamp, Farinacci and McCreesh together, we believe the Lamp test, in its present form, states that in order for a writ of summons to remain effective to commence an action, the plaintiff must demonstrate good faith effort to effectuate notice of commencement of the action.  Strict compliance with the Rules of Civil Procedure is not necessary to demonstrate good faith if the defendant receives actual notice of the pending action and is not prejudiced by the failure to comply with the Rules. Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

We certainly agree that there appears to be no evidence to suggest that the Plaintiffs were acting in bad faith by intentionally trying to “stall the judicial machinery”.  However, bad faith or actual intent to stall the judicial machinery need not exist in order to fail the Lamp test; mere negligence or simple inaction on the part of the plaintiff can be sufficient to preclude a finding of good faith. Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

The Superior Court has made it clear that communication with an insurance carrier may not serve as a substitute for service of process.  If communication with an insurance carrier may not serve as a substitute for service of process, then it stands to reason that such communication also may not be deemed a good faith effort to effectuate service or a basis for establishing actual notice. Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

The foregoing leads us to conclude that the Plaintiffs have failed to satisfy the Lamp test.  A five- justice majority of our Supreme Court found in Witherspoon, supra, that one unsuccessful attempt at service in nine months does not constitute a good faith effort.  Here, the Plaintiffs made on unsuccessful attempt at service in nearly twenty-four months.  Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

Moreover, this case is factually distinguishable from McCreesh, supra, in that the Defendant here did not receive actual notice of the lawsuit until approximately two years after the statute of limitations had expired.  Haman v. Krise, 65 Som.L.J. 17 (2010).

 

 

 

PLEADINGS - PRELIMINARY OBJECTIONS – STANDARD OF REVIEW

 

The Pennsylvania Rules of Civil Procedure provide that any party may file preliminary objections to any pleading, limited to the grounds enumerated in the Rule Pa.R.C.P. 1028 (a). Miele v. Tradewinds Group, Inc. and Paula Shaffer, 64 Som.L.J. 86 (2009) (Klementik, J.).

 

The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall consider evidence by depositions or otherwise. Miele v. Tradewinds Group, Inc. and Paula Shaffer, 64 Som.L.J. 86 (2009) (Klementik, J.).

 

Preliminary Objections should be sustained when the law will not permit a remedy, and where any doubt exists, that doubt should be resolved by a refusal to sustain the preliminary objections. Miele v. Tradewinds Group, Inc. and Paula Shaffer, 64 Som.L.J. 86 (2009) (Klementik, J.).

 

PLEADINGS - PRELIMINARY OBJECTIONS – SPECIFICITY

 

When the Court considers whether a pleading has been plead with sufficient specificity, it is incumbent upon the Court to determine whether the averments and language of the complaint are so vague or general, that they would permit Plaintiff to raise some theory or cause of action at a later stage of this litigation.  Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.).

 

A pleading alleging that a defendant was "otherwise negligent" permitted a plaintiff to pursue a different theory of recovery during the later stages of litigation because the language "otherwise negligent" placed Defendant on notice of unspecified acts of negligence.  Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.). 

 

If a defendant wishes to protect himself from the plaintiff pursuing different theories of recovery during later stages of litigation, the defendant must raise an objection to the lack of specificity of the pleading by filing preliminary objection requesting that the objectionable pleading be stricken or requesting a more specific pleading. Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.). 

 

Challenged averments cannot be viewed in isolation, and the complaint must be read as a whole, with each individual averment at issue read in connection with all other parts of the complaint.  Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.). 

 

A complaint if sufficiently specific if it provides the adverse party with enough facts to enable him to frame a proper answer and prepare a defense.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

The motion for a more specific pleading is not available as a tool to compel an opposing party to plead evidence, and will be denied where the details of the matters pleaded generally are readily obtainable by discovery.  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.).  

 

Where a prison inmate intends to prove a specific cause for the collapse of a prison infirmary's x-ray table, he must identify that cause specifically and state the condition of the x-ray table which the defendant's inspection and maintenance should have rectified, and the manufacturer's instructions which the prison inmate claims were ignored.              Cook v. Emergency Medical Services Assoc., et al., 60 Som.L.J. 154 (2001) (Fike, P.J.). 

 

Our primary task, therefore, is to determine whether the challenged averments are sufficiently specific to apprise the defense of the material and ultimate facts relief upon so that the proper defense may be prepared. Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (2002) (Gibson, J.). 

 

The function of the pleadings is to put the opponent on notice of what he will be called upon to meet at trial; and to define the issue which will be tried.  Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (2002) (Gibson, J.). 

 

In reviewing and analyzing whether averments are too general, those averments cannot be read in a vacuum, but must be read in connection with the entire contents of the complaint.  Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (2002) (Gibson, J.). 

 

The motion for a more specific pleading is not available as a tool to compel an opposing party to plead evidence, and will be denied where the details of matters pleaded generally, are readily obtainable by discovery.  Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (2002) (Gibson, J.). 

 

PLEADINGS - PRELIMINARY OBJECTIONS – VENUE

 

Improper venue must be raised by preliminary objection.  Rapp, by Lasure v. Boyle, 59 Som.L.J. 450 (2002) (Gibson, J.). 

 

PLEADINGS - PRELIMINARY OBJECTIONS – WAIVER OF OBJECTIONS

 

Preliminary Objections to an amended complaint cannot include matters which could have been raised in the objections to the original complaint.  Rather those matters must be raised in the objections to the original complaint.              Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

PROCESS – ORIGINAL PROCESS

 

Except for certain exceptions, original process must be served only by a sheriff. Nelson v. Ohler, 51 Som 304 

 

A writ of summons will remain effective to commence an action only if the plaintiff refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set into motion; a plaintiff should comply with local practice as to the delivery of the writ to the sheriff for service.  Nelson v. Ohler, 51 Som. 304 

 

It is the local practice in Somerset County for the prothonotary to deliver the writ or complaint to the sheriff for service.  Nelson v. Ohler, 51 Som. 304 

 

When a praecipe is filed but the writ is not served, the burden is on the plaintiff to show that he made a good faith attempt to have the writ served.  Nelson v. Ohler, 51 Som. 304 

 

Original process shall be served only by a sheriff. Pa. R.C.P. 400(a).  Fraska v. Bidelman, 53 Som. 25 

 

The rules regarding service of process must be strictly followed.  Fraska v. Bidelman, 53 Som. 25 

 

Service by a duly elected constable did not constitute effective service under the rule requiring writs to be served by a sheriff.  Fraska v. Bidelman, 53 Som. 25 

 

Although it is true that improper service fails to perfect a Court's jurisdiction over a defendant, the proper remedy for defective service is to set aside, or strike the service, and not to dismiss the action.  Fraska v. Bidelman, 53 Som. 25 

 

Defective initial service of a writ of summons was effective to toll the statute of limitations where the defective service had been corrected by proper service effected after the statute of limitation had run and the plaintiff had made a good faith effort to notify the defendant of the action.  Fraska v. Bidelman, 53 Som. 25 

 

The filing of the praecipe for issuance of a writ tolls the statute of limitations and in essence begins a new two-year statute of limitations during which Plaintiff must either effect service of the writ or file for reissuance of the writ.  Fraska v. Bidelman, 53 Som. 25 

 

Original process shall be served within thirty days after the issuance of the writ of summons.  Pa. R.C.P. 401(a).  Fraska v. Bidelman, 53 Som. 25 

 

A writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.  Fraska v. Bidelman, 53 Som. 25 

 

In Somerset County it is the local practice for the prothonotary to deliver the writ or complaint to the sheriff for service.  Fraska v. Bidelman, 53 Som. 25 

 

When a praecipe is filed but the writ is not served, the burden is on the plaintiff to show that he made a good faith attempt to have the writ served.  Fraska v. Bidelman, 53 Som. 25 

 

The return of service shall be filed with the Prothonotary forthwith.  Pa.R.C.P. 405(e).  Fraska v. Bidelman, 53 Som. 25 

 

POST TRIAL MOTIONS / MOTION FOR NEW TRIAL

 

A motion in arrest of judgment is a request to the court to withhold judgment on the verdict because of some error appearing on the face of the record which is alleged to show that the successful party is not entitled to the benefit of the jury's verdict.  Courtney v. Courtney, 52 Som 334 

 

A motion for judgment notwithstanding the verdict may be granted where there was no issue of fact which should have been submitted to the fact finder.  Courtney v. Courtney, 52 Som 334 

 

A motion for a new trial will be awarded on the ground that the verdict is against the weight of the evidence only when the verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.  Courtney v. Courtney, 52 Som 334 

 

The refusal of a motion for nonsuit is not a valid reason for a new trial in any case where the defendant offers testimony.  Courtney v. Courtney, 52 Som 334 

 

Any after-discovered evidence which would justify a new trial would also entitle a defendant to withdraw his guilty plea.  Commonwealth v. Chappell, 52 Som. 263 

 

In order to justify a new trial on the basis of after-discovered evidence, the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be such as would likely compel a different result.  Commonwealth v. Chappell, 52 Som. 263 

 

A grant of post-trial relief in the form of a new trial is proper in those instances where the outcome of the original trial was not fair or just because of taint, unfairness or error occurring during the proceedings.  The decision to order a new trial is within the sound discretion of the trial judge.  Wheeler Brothers, Inc. v. IPM Group, LTD., 53 Som. 240

 

Post-trial relief in the form of judgment notwithstanding the verdict may be granted in two instances:  the movant was entitled to a judgment as a matter of law and/or the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.  Wheeler Brothers, Inc. v. IPM Group, LTD., 53 Som. 240     

 

Inadequacy of a verdict will justify the granting of a new trial only when it is shown that the jury's verdict is based on passion, prejudice, partiality or corruption, or that the jury disregarded their instructions, or if it is clear that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or there has been an evident failure of justice to the plaintiff, or the award is so inadequate that it should not be permitted to stand.  Joll, et al. V. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike). 

 

Boilerplate language in post-trial motions is not sufficient, and absent specific averments will not be considered.  A motion for a new trial will be awarded on the ground that the verdict is against the weight of the evidence only when the verdict is so contrary to the evidence as to shock one's sense of justice or when the award of new trial appears imperative to give right another opportunity to prevail.  Joll, et al. V. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike). 

 

RES JUDICATA

 

To support a claim of res judicata, the party asserting this defense must show the concurrence of four conditions; (1) identity of the thing sued upon; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued.  Trent v. PBS Coals, Inc., et al., 50 Som. 303 

 

To be concluded by a prior decree or judgment one must be a party to the action, or what is equivalent thereto with a right to control the proceedings and take an appeal.  Trent v. PBS Coals, Inc., et al., 50 Som. 303

 

Res judicata, or claim preclusion, is a doctrine by which a former adjudication bars a later action on all or part of the claim which was the subject of the first action.  Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). 

 

Any final, valid judgment on the merits by a court of competent jurisdiction precludes any future suit between the parties or their privies on the same cause of action.  Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.).      

 

Res judicata applies not only to claims actually litigated, but also to claims which could have been litigated during the first proceeding if they were part of the same cause of action.  Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.).



RULE 126: LIBERAL CONSTRUCTION AND APPLICATION OF RULES

 

The Pennsylvania Rules of Civil Procedure shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

The trial court may disregard any error or defect of procedure which does not affect the substantial rights of the parties.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

RULE 201: AGREEMENTS OF ATTORNEYS

 

Pa.R.C.P. 201 provides that agreements of attorneys relating to the business of the court shall be in writing, except such agreements at bar as are noted by the prothonotary upon the minutes or by the stenographer on the stenographer’s notes.  Beitzel v. Leberfinger, 61 Som.L.J. 335 (2005) (Cascio, J.)

 

RULE 206.7: PROCEDURE AFTER ISSUANCE OF RULE TO SHOW CAUSE



According to Pa.R.C.P. 206.7, where the petitioner has elected to order the cause for argument on petition and answer and did not take depositions, the court must accept as true the factual averments pleaded in respondent’s answer, which effectively denied the truth of the facts recited in the petition.  Chase Manhattan Bank v. Petrunak, 61 Som.L.J. 166 (2003) (Cascio, J.)

 

RULE 207.1: MOTION TO EXCLUDE EXPERT TESTIMONY WHICH RELIES UPON NOVEL SCIENTIFIC EVIDENCE

 

Pa.R.C.P. 207.1 delineates the requirements and procedure for hearing a motion to exclude expert testimony which relies upon novel scientific evidence while granting the reviewing court discretion in the manner of determining the Rule 207.1 Motion.  Helmick v. Federal Pacific Electric Company, et al, 61 Som.L.J. 1 (Gibson, J.)

 

RULE 213: CONSOLIDATION

 

Somerset County authority teaches us that consolidation may be ordered, regardless of the fact that a consolidated case my be subject to arbitration.  Chappell v. Weyant, et al., 62 Som. L.J. 157 (2005) (Fike, P.J.) 

 

The arbitration procedure was established in the interest of judicial efficiency, not to create new mandatory rights in litigating parties, and where consolidation rather than      arbitration best serves that judicial interest it should and may be allowed under Civil Rule      213 (a).  The basic right of the litigant is to a jury trial.  Goncher v. Brant, 29 Somerset      Legal Journal 332, 340 (1974).  Chappell v. Weyant, et al., 62 Som. L.J. 157 (2005) (Fike, P.J.) 

 

Under Civil Rule 213 (a), the criteria for determining whether a consolidation should be      ordered are whether the actions involve “a common question of law or fact” and whether      consolidation will “avoid unnecessary costs or delay”.  29 Somerset Legal Journal 332, 338 (1974).  Chappell v. Weyant, et al., 62 Som. L.J. 157 (2005) (Fike, P.J.) 

 

In actions pending in a county which involve a common question of law or fact or which      arise from the same transaction or occurrence, the court on its own motion or on motion      of any party may order a joint hearing or trial of any matter in issue in the actions, may      order the actions consolidated, and may make orders that avoid unnecessary cost or delay.  Pa. R.C.P. 213(a).  Chappell v. Weyant, et al., 62 Som. L.J. 157 (2005) (Fike, P.J.) 

 

Recognizing that some complexity will be injected, we nevertheless are persuaded that a      joint trial will not unduly confuse a jury, and that the objective of avoiding inconsistent      verdicts militates consolidation.  Chappell v. Weyant, et al., 62 Som. L.J. 157 (2005) (Fike, P.J.) 

 

We have concluded that the goals of efficient use of the resources of both the Court and      the parties, the commonality of issues and facts to be presented to the jury, and the desire      to avoid inconsistent verdicts, tips the balance for consolidation, and, accordingly, we      will grant the petition.  Chappell v. Weyant, et al., 62 Som. L.J. 157 (2005) (Fike, P.J.)

 

RULE 237: NOTICE OF PRAECIPE FOR FINAL JUDGMENT

 

Petitions to open default judgments are governed by Pennsylvania Rule of Civil Procedure 237.3.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.).

 

Rule 237.3 supplies two of the three requisites for opening judgments entered by default      by presupposing that a petition filed as provided by the rule is timely and with reasonable      explanation or legitimate excuse for the inactivity or delay resulting in the entry of      judgment.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

When rule 237.3 is complied with, it is unnecessary for the petitioner to explain its reason      for failing to file its answer earlier.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002)  (Gibson, J.). 

 

Pursuant to Rule 237.3, as long as the petition to open is filed within ten days after the      entry of the judgment on the docket, the judgment may be opened if a meritorious defense is stated, because compliance with Rule 237.3 relieves the moving party of the      requirement to demonstrate that the petition to open was filed promptly and that a     reasonable excuse exists for failing to file an answer in a timely manner.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

The requirement of a meritorious defense is only that a defense must be pleaded that if      proved at trial would justify relief.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

The Defendant does not have to prove every element of a meritorious defense, however, it must set forth the defense in precise, specific and clear terms.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). 

 

Where the defendant raises more than one defense, if any one of the defenses would           justify relief at trial, the meritorious defense element is met.  Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.).

 

RULE 237.1: NOTICE OF PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS

 

According to Pa.R.C.P. 237.1, a party seeking to enter default judgment against an opposing party must mail that opposing party a notice of intention to seek default judgment after that party’s failure to plead and at least en days prior to the filing of a praecipe for default judgment. Chase Manhattan Bank v. Petrunak, 61 Som.L.J. 166 (2003) (Cascio, J.)

 

RULE 237.3: RELIEF FROM JUDGMENT OF NON PROS OR BY DEFAULT

 

According to Pa.R.C.P. 237.3, a default judgment may be opened upon a showing of a meritorious defense so long as the petition to open is filed within 10 days of the judgment being entered.  Chase Manhattan Bank v. Petrunak, 61 Som.L.J. 166 (2003) (Cascio, J.)

 

RULE 239: LOCAL RULES

 

Pa. R.C.P. 239 provides, (b) (1) local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly and 9b) (2) local rules which implement general rules to which the local rules correspond.  Haynes v. Haynes, 62 Som.L.J. 112 (2205) (J. Upor).



RULE 422: COMMONWEALTH AND POLITICAL SUBDIVISIONS



In a civil action against the Pennsylvania Department of Environmental Resources, service upon the Commonwealth must be made by handing copies of the complaint to the persons in charge of the Department of Environmental Resources and Office of Attorney General.  Service by mail is not sufficient.  Pa.R.C.P. 422.  Lear v. Pennsylvania, 53 Som. 293 

 

While failure to serve the Office of Attorney General pursuant to Pa.R.C.P 422 may be overlooked where service is properly made on the governmental agency, no prejudice results and actual notice of the proceedings has in fact been communicated to the Office of Attorney General, improper service on the governmental department coupled with complete lack of service of the Attorney General's Office cannot be condoned, especially where a default judgment has been entered.  Pa.R.C.P. 422.  Lear v. Pennsylvania, 53 Som. 293

           

RULE 1001: DEFINITION & SCOPE

 

Even though relationship between the parties is not a pure creditor-debtor relationship since plaintiff's claim is for a money judgment, the traditional subject of an action at law, defendant's preliminary objection that action must be heard on the equity side of the court will be overruled.  Mid-Continent Ins. Co. v. Clarksburg Coal Co., et al, 50 Som. 6 

 

The Rules of Civil Procedure are applicable to all actions which were formally asserted in assumpsit or trespass and other forms of action where we incorporate the rules by reference.  Pa. R.C.P. 1001.  Commonwealth, Dept. of Transp. v. Salvatore, 54 Som. L.J. 368 (January. 22, 1998) (Cascio, J.) 

 

The Rules of Civil Procedure are applicable to all actions which were formerly asserted in assumpsit or trespass and other forms of action where courts incorporate the rules by reference.  In Re: Tax Sale of Real Property Situated in Jefferson Twp., Ruffner v. Beeghly, 61 Som. L.J. 244 (J. Cascio)

 

RULE 1006: PETITION TO TRANSFER; FORUM NON-CONVENIENS

 

In ruling on a petition to transfer, the court is required to give weighty consideration to the plaintiff's choice of forum; the party seeking a change of venue bears a very heavy burden and must clearly present facts that either establish such oppressiveness and vexation to a party as to be out of all proportion to plaintiff's convenience or make trial in the chosen forum inappropriate because of considerations affecting the court's own private and public interest factors.  United Leasing, Inc. v. Burton, 52 Som. 165 

 

Factors used to determine whether transfer is proper discussed infra.  United Leasing, Inc. v. Burton, 52 Som. 165 

 

Before the court can transfer, it must find that transfer is more convenient for both parties to the action or for the witnesses.  United Leasing, Inc. v. Burton, 52 Som. 165 

 

Pennsylvania Rule of Civil Procedure §1006 addresses venue and change of venue.  Rapp, by Lasure v. Boyle, 59 Som.L.J. 450 (2002) (Gibson, J.).

 

Pennsylvania Rule of Civil Procedure 1006 (a) states, in pertinent part, that ‘except as      provided by subdivision (b), every pleading subsequent to the complaint shall be filed      within twenty days after the service of the preceding pleading’.  Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (Gibson, J.)

 

RULE 1018: CAPTION

 

Where the complaint states that the plaintiff is a sole proprietorship the individual owner must also be named in the caption.  Somerset Movers v. Button, Glenda, 61 Som.L.J. 276 (2004)(Fike, II, P.J.).

 

RULE 1019: CONTENTS OF PLEADINGS



Special damages must be plead specifically.  Pa.R.C.P. 1019(f).  Stevens v. Erie Ins. Exchange (No. 2), 50 Som. 40; Hardhat Mining, Inc. v. Toth, et al, 50 Som. 69 

 

In his pleadings, the plaintiff must disclose all material facts to give the defendant proper notice of all charges against him.  The specific acts or omissions which allegedly support the plaintiff's claim must be set out in the Complaint.  Pa.R.C.P. 1019(a).  Moore v. Mardayat, 50 Som. 177 

 

Material facts are the ultimate facts of the case, that is the elements which support the cause of action, and are more than mere conclusions about the case.  Moore v. Mardayat, 50 Som. 177 

 

Mere recitation of the standard of care owed by the defendant to the plaintiff is merely a conclusion, is not factual and cannot support an allegation of negligence.  Moore v. Mardayat, 50 Som. 177 

 

Where general averments of negligence are intermixed with averments of specific derelictions sufficient to sustain the action, the general averments will be stricken on preliminary objections, overruling prior case law that the pleas need not be stricken unless confusing, harmful or prolix.  Profera v. Seven Springs Mountain Resort, 50 Som 133 

 

Fundamental law requires the claimant to plead and prove, by direct or circumstantial evidence, the specific negligent act or failure to act, which was the legal cause of his harm, in order to recover damages.  Profera v. Seven Springs Mountain Resort, 50 Som 133 

 

Allegation of unsafe condition without stating the facts constituting lack of safety is insufficient pleading.  Profera v. Seven Springs Mountain Resort, 50 Som 133 

 

Where, in the paragraph averring acts of negligence, the introductory clause alleges generally that the injuries are the result of defendants' "negligence, willfulness, wantonness and recklessness" without further specification, a preliminary objection to the generality of the claims of willfulness and wantonness will be sustained; in amending the complaint, plaintiff must designate separately the factual averments which apply to each of the pleaded types of conduct.  Leasure v. Calderone, et al, 50 Som. 332 

 

General averments of failing to order proper testing, failing to properly administer testing, and failing to properly evaluate testing are impermissibly broad.  Duppstadt v. Somerset Hospital, et al., 51 Som. 6 

 

Each individual averment must be read in connection with all other parts of the complaint.  Duppstadt v. Somerset Hospital, et al., 51 Som. 6 

 

General averments as to patient care, when read in connection with averments describing the history of the case and prior surgeries performed by defendant, are sufficiently limited and specific to apprise defendant of the claims against which he must defend.  Duppstadt v. Somerset Hospital, et al., 51 Som. 6 

 

A claim for loss of consortium is deficient, unless marriage at the time of the accident is averred.  Lapp v. Farrell, 51 Som. 40 

 

The purpose of the complaint is to define the cause or causes of action, and to place defendant on notice of the claims against which she must defend; a plaintiff is not permitted to aver general conclusions as an umbrella for possible later averment of multiple factual scenarios based on unexpectedly developed new facts.  Lapp v. Farrell, 51 Som. 40 

 

The phrase "other appropriate actions" could encompass a limitless number of possibilities and does not provide a reasonable identification of alleged negligent conduct; defendant's objection to averment is sustained.  Lapp v. Farrell, 51 Som. 40 

 

In actions of assumpsit, the complaint should allege with certainty the parties by and between whom the contract is made, a meeting of the minds of the parties, the making of executing of the contract between the parties, and the mutuality of the obligations of the parties; and particularly if the contract is an oral one, the complaint should show with definiteness and certainty what the terms of the contract are and should not leave this to inference.  Kleiman v. Wahl, 52 Som. 19 

 

When alleging breach of an oral contract, in addition to averring the terms and substance of the alleged agreement with certainty and clarity, the plaintiff should aver the time and place the oral agreement was made.  Kleiman v. Wahl, 52 Som. 19 

 

In an action claiming payment under an oral contact for services rendered, the plaintiff must aver with reasonable particularity the exact nature and extent of the services which were rendered by him; and he must set forth in detail the terms of the agreement under which the services were performed, and from which the amount claimed is derived.  Kleiman v. Wahl, 52 Som. 19 

 

In accordance with the Pennsylvania Rules of Civil Procedure governing pleadings, this court has consistently held that a complaint alleging breach of contract must contain all the essential terms of the contract; included among the essential terms are the date it was made, the place it was made if relevant to the cause of action, and whether the claim is based on a writing.  Kleiman v. Wahl, 52 Som. 19 

 

Averments of agency and claim of negligent entrustment were held to be factual, and not merely conclusory, sufficient to withstand demurrer.  Siemon v. Herring, 52 Som. 119 

 

When confronted with Connor-type objections and correlative claims that a complaint lacks specificity, the court must keep in mind the reason for the rule; in a fact-pleading system, the pleading must inform the adversary of the specific basis of the claim so that the adversary may know upon what ground to make his defense.  Siemon v. Herring, 52 Som. 119 

 

The function of the pleadings is to put the opponent on notice of what he will be called upon to meet at the trial; and to define the issue which will be tried.  Siemon v. Herring, 52 Som. 119 

 

The test of whether a fact is an ultimate essential fact or merely evidentiary detail is incapable of precise measurement; therefore much depends on the nature of the transaction and the Court has broad discretion in determining the amount of details which must be averred.  Siemon v. Herring, 52 Som. 119 

 

A general averment of breach of statute, ordinance or rule lacks the required specificity under both Rule 1019(a) and the Connor case.  Siemon v. Herring, 52 Som. 119 

 

The challenged averments cannot be viewed in isolation; each individual averment must be read in connection with all other parts and averments of the complaint.  Boyd v. Somerset Hospital et al., 52 Som. 174 

 

Discovery is not a proper substitute for proper pleading of the material or ultimate facts, although if the facts have been properly pled, the parties may be relegated to discovery for evidentiary details.  Boyd v. Somerset Hospital et al., 52 Som. 174 

 

A physician charged with negligence and unskillfulness in the practice of his profession is entitled to be advised of the specific acts of commission or omission which constitutes the negligence and unskillfulness complained of, so that the plaintiff's proof may be confined to such acts, and so that he may reasonably prepare for his defense.  Boyd v. Somerset Hospital et al., 52 Som. 174 

 

In determining whether a demurrer should be sustained and a cause of action dismissed, the question presented is whether or not, on the facts averred in the entire complaint, the law says with certainty that no recovery is possible; any doubts in determination should be resolved by overruling the objections.  Boyd v. Somerset Hospital et al., 52 Som. 174 

 

Pa.R.C.P. 1019 provides that when a claim is based upon a writing the pleader is required     to attach a copy of the writing.  J.E. Herring Motor Company v. Telford Miller Construction, 53 Som. 153 

 

Where, in considering the sufficiency of a complaint for breach of contract, it appears that an allegation of fact therein is based upon the interpretation of a document which is attached as an exhibit and that the document itself does not warrant the allegation, the allegation may be disregarded as a mere legal conclusion.  Lear v. Pennsylvania DER 53 Som. 293 

 

Where, in considering the sufficiency of a complaint alleging conspiracy to violate civil rights, the complaint fails to identify any civil right, violation of which could form the basis of a constitutional claim if the conspiracy were proved, the complaint is not sufficient.   Lear v. Pennsylvania DER 53 Som. 293

 

Pennsylvania Rule of Civil Procedure §1019(a) provides that the material facts on which a cause of action is based shall be stated in a concise and summary form.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

Under Pa.R.C.P §1019(a), the complaint must apprize the defendant of the nature and extent of the plaintiff’s claim so that the defendant has notice of what the plaintiff intends to prove at trial, and may prepare to meet such proof with his own evidence.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.).  

 

Material facts are ultimate facts, i.e. those facts essential to support the claim.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

Allegations will withstand challenge under 1019(a) [requiring statement of material facts      to be in a concise and summary form] if (1) they contain averments of all of the facts the      plaintiff will eventually have to prove in order to recover and (2) they are sufficiently      specific so as to enable defendant to prepare his defense.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

Pa.R.C.P §1019(a) requires that when a claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

Additionally, Pa.R.C.P. §1019(a) provides that when any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to him, it is sufficient so to state, together with the reason, and to set forth the substance in writing.  Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

Pennsylvania Rule of Civil Procedure 1019(a) requires that the material facts on which a cause of action based shall be stated in a concise and summary form.  Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (Gibson, J.). 

 

A pleading must inform the adversary of the specific-basis of the claim so that a defense can be prepared.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, II, P.J.) 

 

The pleading must enable the adverse party to prepare his case and define the issues to be tried.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, II, P.J.) 

 

A general averment of negligence does little to advance the inquiry of the parties or the court.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, II, P.J.) 

 

In determining whether the averments are sufficiently specific the complaint must be read as a whole; discovery cannot be used as a substitute for specific pleading.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, II, P.J.) 

 

At the pleading stage it is for the plaintiff to identify the acts of negligence of which the        complaint is made; therefore, it is the plaintiff’s decision to include identical averments in each of the counts where the plaintiff contends the same acts were committed by the defendants.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, II, P.J.) 

 

Averments in a complaint that assert legal conclusions, lack specificity, or are redundant will be stricken.  Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, II, P.J.) 

 

In pleading a breach of contract claim, all of the essentials of the contract, its promises and terms, must be stated; the essentials include the date the contract was made, the place it was made if relevant to the cause of action, whether the claim is based on a writing, and the facts of the breach.  Somerset Movers v. Button, Glenda, 61 Som.L.J. 276 (2004)(Fike, II, P.J.). 

 

An assumpsit claim and unjust enrichment claim may be pleaded as alternative causes of action.  Somerset Movers v. Button, Glenda, 61 Som.L.J. 276 (2004)(Fike, II, P.J.).

 

RULE 1019(a): CONTENTS OF PLEADINGS – MATERIAL FACTS IN CONCISE FORM

 

In a tort action, agency is sufficiently pled if the agent is identified either by name or description and the Complaint sets forth the agent's authority.  Shaffer v. Miller & Miller, 50 Som. 116 

 

The requirement that a Complaint set forth how a defendant's actions fell within the scope of his authority or, if unauthorized, was ratified by the principal, is only applied in a minority of jurisdictions.  Shaffer v. Miller & Miller, 50 Som. 116 

 

To plead that negligence consisted "inter alia of the following [particular acts]" is too general.  The phrase "inter alia" must be stricken from the complaint to prevent unfair amendments at a later time.  Shaffer v. Miller & Miller, 50 Som. 116 

 

Allegations that the Defendant violated the Vehicle Code, laws of Pennsylvania and the rules of the road, failed to exercise due care or was otherwise being negligent are too broad and must be stricken from the Complaint.  Shaffer v. Miller & Miller, 50 Som. 116 

 

Use of the word "proper" to describe what the Plaintiff considers to be the non-negligent behavior is acceptable and may remain in the Complaint.  Shaffer v. Miller & Miller, 50 Som. 116 

 

The well-established rule of pleading in negligence cases is that plaintiff as the party having the burden of proof of defendant's wrongful conduct must, in order to comply with the mandate of Civil Rule 1019(a) to set forth the material facts on which the cause of action is based, allege the specific conduct which constitutes the breach of duty (negligence), and that general and conclusory averments such as those in this case may be stricken.  Profera v. Seven Springs Mountain Resort, 50 Som 133 

 

When confronted with Connor-type objections and correlative claims that a complaint lacks specificity, we must keep in mind the reason for the rule:  in a fact-pleading system, the pleading must inform the adversary of the specific basis of the claim so that the adversary may know upon what ground to make his defense.  Klink v. Go, et al, 50 Som. 169 

 

The determination of whether defendant has been sufficiently apprised of material and ultimate facts involves an assessment of whether the challenged averments impermissibly present the risk of later, unexpected amendment based on new facts after the statute of limitations has run.  Klink v. Go, et al, 50 Som. 169 

 

The determination of whether or not facts have been averred with sufficient specificity involves the sound exercise of discretion, based upon the circumstances and pleading in each particular case.  Klink v. Go, et al, 50 Som. 169 

 

Each individual averment at issue must be read in connection with all other parts and averments of the complaint.  Klink v. Go, et al, 50 Som. 169 

 

Discovery is not a substitute for proper pleading of the material or ultimate facts, although if the facts have been properly pled, the parties may be relegated to discovery for evidentiary details.  Klink v. Go, et al, 50 Som. 169 

 

In his pleadings, the plaintiff must disclose all material facts to give the defendant proper notice of all charges against him.  The specific acts or omissions which allegedly support the plaintiff's claim must be set out in the complaint.  Pa.R.C.P. 1019(a).  Moore v. Mardayat, et al., 50 Som. 177 

 

Material facts are the ultimate facts of the case, that is the elements which support the cause of action, and are more than mere conclusions about the case.  Moore v. Mardayat, et al., 50 Som. 177 

 

A defendant must challenge allegedly "boilerplate" or unreasonable general language in the complaint at the preliminary objection stage, in order to protect against later, expansive amendment after the statute of limitations has run.  Smith v. Chappell et al, 50 Som. 313 

 

The function of the pleadings is to put the opponent on notice of what he will be called upon to meet at the trial; and to define the issue which will be tried.  Smith v. Chappell et al, 50 Som. 313  

 

General averments will not be stricken if clearly connected to, and limited by, accompanying allegations which are pleaded with the required specificity.  Smith v. Chappell et al, 50 Som. 313 

 

A plaintiff is not permitted to aver general conclusions as an umbrella for possibly later averment of multiple factual scenarios based on unexpectedly developed new facts.  Smith v. Chappell et al, 50 Som. 313 

 

Plaintiff's allegations that defendant's conduct consisted of "violating the applicable ordinances and statutes of the Commonwealth of Pennsylvania regarding the operation of motor vehicles," fails to sufficiently identify the ordinances and statutes in question, and is thus, impermissibly general.  Smith v. Chappell et al, 50 Som. 313 

 

Plaintiff's blanket allegation that defendant failed to take proper cognizance of "roadway and traffic conditions" fails to adequately apprise defendant of the claims which he must meet.  Smith v. Chappell et al, 50 Som. 313 

 

Where, in the paragraph averring acts of negligence, the introductory clause alleges generally that the injuries are the result of defendants' "negligence, willfulness, wantonness and recklessness" without further specification, a preliminary objection to the generality of the claims of willfulness and wantonness will be sustained; in amending the complaint, plaintiff must designate separately the factual averments which apply to each of the pleaded types of conduct.  Leasure v. Calderone, et al, 50 Som. 332 

 

Boilerplate" amendments must be stricken.  Leasure v. Calderone, et al, 50 Som. 332 

 

Use of the word "generally" in the introductory paragraph of an averment renders it impermissibly general and open-ended.  Leasure v. Calderone, et al, 50 Som. 332 

 

Averments of failure to maintain adequate and proper control and operating at a high, dangerous and excessive rate of speed were sufficient, under the circumstances, to apprise defendant of the conduct on which the claim is based, the claims against which he must defend, and no not pose the danger of later amplification to create a new, unexpected cause of action.  Leasure v. Calderone, et al, 50 Som. 332 

 

Allegations are impermissibly broad unless clearly explained by, connected to, and limited by, accompanying specific averments of fact.  Leasure v. Calderone, et al, 50 Som. 332 

 

The well-established rule of pleading in negligence cases is that the plaintiff as the party having the burden of proof of defendant's wrongful conduct must, in order to comply with the mandate of Civil Rule 1019(a) to set forth the material facts on which the cause of action is based, allege the specific conduct which constitutes the breach of duty and that general and conclusory averments may be stricken.  Walker, et al., v. Peoples Natural Gas Co., 50 Som. 341 

 

Where general averments of negligence are intermixed with averments of specific derelictions sufficient to sustain the action, our prior cases have held that the former need not be stricken unless confusing, harmful or prolix.              Walker, et al., v. Peoples Natural Gas Co., 50 Som. 341 

 

The availability of discovery is not a substitute for pleading the material or ultimate facts in concise and summary form.  Since discovery is available as a means of aiding in the preparation of pleadings under Civil Rule 4007(a), the availability of discovery to compel disclosure of a material fact may merely insure the obligation to plead it.  Walker, et al., v. Peoples Natural Gas Co., 50 Som. 341 

 

When confronted with Connor-type objections and correlative claims that a complaint lacks specificity, we must keep in mind the reason for the rule: in fact-pleading system, the pleading must inform the adversary of the specific basis of the claim so that the adversary may know upon what ground to make his defense.  Albright v. Gadiparthi, et al, 50 Som. 355. 

 

The determination of whether the challenged averments are sufficiently specific to apprise the defense of the material and ultimate facts also involves an assessment of whether the challenged averments impermissibly present the risk of later, unexpected amendment based on new facts after the statute of limitations has run.  Albright v. Gadiparthi, et al, 50 Som. 355. 

 

Each individual averment at issue must be read in connection with all other parts and averments of the complaint.  Albright v. Gadiparthi, et al, 50 Som. 355. 

 

Discovery is not a substitute for proper pleading of the material or ultimate facts; although if the facts have been properly pled, the parties may be relegated to discovery for evidentiary details.  Albright v. Gadiparthi, et al, 50 Som. 355. 

 

Where "boilerplate" averments are not connected to, and limited by, specific averments contained in other parts of the complaint, the offending paragraphs must be stricken.  Albright v. Gadiparthi, et al, 50 Som. 355. 

 

Averments claiming that plaintiff's injuries were the proximate result of defendant's failure to take an x-ray, to properly order an x-ray, an to properly review or examine an x-ray, are impermissibly general and must be stricken unless repleaded with the required specificity.  Sesock v. Patterson, 51 Som. 1 

 

Plaintiff's averment that defendant acted negligently "in misdiagnosing Plaintiff’s injury", when read in connection with those averments describing Plaintiff's injury, is sufficiently limited to preclude plaintiff from attempting to inject new injuries, issues and theories of liability at later stages of the case.  Sesock v. Patterson, 51 Som. 1 

 

In a personal injury case, averments of defendant's failure to maintain the vehicle in proper mechanical condition can encompass a limitless number of potential defects and conditions and exemplify the broad, undefined claim against which the specificity requirement in pleadings is meant to protect.  Rodgers v. Coleman, 51 Som. 3 

 

Averments of lack of control and excessive speed of the vehicle are sufficiently specific.  Rodgers v. Coleman, 51 Som. 3 

 

Use of the word "generally" in the introductory clause of an averment is impermissibly broad and must be stricken.  Weaver v. Windber Hospital, et al, 51 Som. 20 

 

When confronted with Connor-type objections and correlative claims that a complaint lacks specificity, we must keep in mind the reason for the rule: in a fact-pleading system, the pleading must inform the adversary of the specific basis of the claim so that the adversary may know upon what ground to make his defense.  Weaver v. Windber Hospital, et al, 51 Som. 20 

 

The determination of whether averments are sufficiently specific to apprise the defense of material and ultimate facts also involves an assessment of whether the challenged averments impermissibly present a risk of later, unexpected amendment based on new facts after the statute of limitations has run.  Weaver v. Windber Hospital, et al, 51 Som. 20 

 

The determination of whether or not the facts have been averred with sufficient specificity involves the discretion of the trial judge, based upon the circumstances and pleading in each particular case.  Weaver v. Windber Hospital, et al, 51 Som. 20 

 

Each individual averment at issue must be read in connection with all other parts and averments of the complaint.  Weaver v. Windber Hospital, et al, 51 Som. 20 

 

Discovery is not a substitute for proper pleading of material or ultimate facts; however, if the facts have been properly pled, the parties may be relegated to discovery for evidentiary detail.  Weaver v. Windber Hospital, et al, 51 Som. 20 

 

The complaint must be read as a whole, and allegations otherwise impermissibly broad, may be sufficient, if clearly explained by, connected to, and limited by, accompanying specific averments of fact.  Lapp v. Farrell, 51 Som. 40 

 

Averment that defendant failed to operate the "vehicle within the applicable and safe limits in light of the circumstances... and in violation of 75 Pa.C.S.A. Section 3361" sufficiently meets specificity requirements.  Lapp v. Farrell, 51 Som. 40 

 

Averments of failure to control vehicle are sufficiently specific; however, reference to Motor Vehicle Code §3714 alone is not sufficient.  Lapp v. Farrell, 51 Som. 40 

 

Averment that defendant's failure to maintain vehicle in a proper mechanical condition in violation of "75 Pa.C.S.A. §4102 et seq.", does little to identify the condition which may be at issue, and consequently, is impermissibly general.  Lapp v. Farrell, 51 Som. 40 

 

In a motion for more specific pleading, use of the word "generally" in the introductory clause of an averment is impermissibly broad and must be stricken.  Bobick v. Go, 51 Som. 49 

 

In a medical malpractice action, a clause of an averment which reads "failing to properly and adequately treat the infection, including...", and similar clauses are essentially in the nature of "boilerplate" averments of negligence and consequently, must be stricken.  Bobick v. Go, 51 Som. 49 

 

Although parties may be relegated to discovery proceedings to obtain additional facts, discovery in the instant case might not eliminate the risk of surprise amendment which is posed by imprecise allegations of negligence.  Bobick v. Go, 51 Som. 49 

 

When confronted with Connor-type objections and correlative claims that a complaint lacks specificity, we must keep in mind the reason for the rule: in a fact-pleading system, the pleading must inform the adversary of the specific basis of the claim so that the adversary may know upon what ground to make his defense. Bobick v. Go, 51 Som. 49 

 

The determination of whether or not facts have been averred with sufficient specificity involves the second exercise of discretion, based upon the circumstances and pleading in each particular case.  Bobick v. Go, 51 Som. 49 

 

Each individual averment at issue must be read in connection with all other parties and averments of the complaint.  Bobick v. Go, 51 Som. 49 

 

Discovery is not a substitute for proper pleading of the material or ultimate facts, although if the facts have been properly pled, the parties may be relegated to discovery for evidentiary details.  Bobick v. Go, 51 Som. 49; Boyd v. Somerset Hospital, 52 Som. 174 

 

The challenged averments cannot be viewed in isolation; each individual averment must be read in connection with all other parts and averments of the complaint.  Boyd v. Somerset Hospital, 52 Som. 174 

 

A physician charged with negligence and unskillfulness in the practice of his profession is entitled to be advised of the specific acts of commission or omission which constitutes the negligence and unskillfulness complained of, so that the plaintiff's proof may be confined to such acts, and so that he may reasonably prepare for his defense.  Boyd v. Somerset Hospital, 52 Som. 174

 

RULE 1019(b): CONTENTS OF PLEADINGS – AVERMENTS OF FRAUD, MISTAKE, OR STATE OF MIND

 

Although conclusory pleading of mental state or condition is ordinarily permissible under Pa.R.C.P. 1019(b), a more stringent approach to pleading of punitive damages rejects Rule 1019(b); it requires supportive factual details which enable an objective reader to determine for himself whether the pleader's description can be drawn from the circumstances by reasonable persons.  Albright v. Gadiparthi, et al, 50 Som. 355. 

 

General averments that Hospital was negligent by failing to have properly trained and skilled physicians and nurses attending surgery and by failing to properly test, investigate, and conduct peer reviews relative to the lack of skill, negligence, carelessness, wantonness, and recklessness of people on its staff are impermissibly broad and lack required specificity.  Albright v. Gadiparthi, et al, 50 Som. 355.

 

RULE 1019(i): CONTENTS OF PLEADINGS – CLAIM OR DEFENSE BASED UPON A WRITING

 

Pursuant to Pennsylvania Rule of Civil Procedure 1019(i), when any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

The purpose of Pennsylvania Rule of Civil Procedure 1019(i) is to give a defendant adequate notice of the claims against which he must defend.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

Where writings were not attached to complaint, but were provided to defendant prior to filing of the complaint, defendant had adequate notice of the claims against which he must defend; therefore, complaint complied with Rule 1019(i).  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

RULE 1019(f): CONTENTS OF PLEADINGS – AVERMENTS OF TIME, PLACE, AND ITEMS OF SPECIAL DAMAGE

 

Pursuant to Pennsylvania Rule of Civil Procedure 1019(f), a defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

RULE 1020: PLEADING MORE THAN ONE CAUSE OF ACTION

 

The plaintiff may plead alternative facts and theories against alternative defendants, so long as they are presented under separate counts.  Pa.R.C.P. 1020(c), 2229(b).  Moore v. Mardayat, 50 Som. 177

 

Failure to obtain informed consent is a separate cause of action and averments relating to informed consent cannot be intermingled with averments of negligence; a claimed cause of action for failure to obtain informed consent should be set forth in a separate count, as required by Pa.R.C.P. 1020(a).  Albright v. Gadiparthi, et al, 50 Som. 355.

 

RULE 1024: VERIFICATION



If plaintiff intends to plead inconsistent causes of action or facts, it must specifically state the alternative averments in its complaint. Pa. C.S.A. 1024(b). Hardhat Mining, Inc. v. Toth, et al, 50 Som. 69

 

RULE 1026: TIME FOR FILING, NOTICE TO PLEAD

 

Pa.R.C.P. §1026(a) provides that every pleading subsequent top the complaint shall be filed within twenty days after service of the preceding pleading, provided that the preceding pleading contained a notice to defend.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

The word “shall” in Rule 1026 has always been interpreted flexibly, thus permitting exception to the rule where justice so requires.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

The twenty-day filing period is said to be permissive rather than mandatory.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

The decision of whether or not to grant an exception to the twenty-day filing rule is within the trial court’s discretion.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

The Pennsylvania Supreme Court has observed that a pleading may be filed after the      expiration of the twenty-day period if the opposing party is not prejudiced and justice requires.  Much must be left to the discretion of the lower court.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

Prejudice includes any substantial diminution in ability to present factual information in the event of trial.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.).

 

RULE 1028: PRELIMINARY OBJECTIONS



Defendant's argument that suit is premature because plaintiff has not yet been obligated to expend money can not support grant of a demurrer; plaintiff's suit against defendant for reimbursement of a reserve prior to any expenditure of moneys held not premature.  Mid-Continent Ins. Co. v. Clarksburg Coal Co., et al, 50 Som. 6 

 

Lack of specific information regarding time of the demands for payment and manner in which made, is not the proper subject for demurrer.  Mid-Continent Ins. Co. v. Clarksburg Coal Co., et al, 50 Som. 6 

 

When analyzing preliminary objections in the nature of a demurrer, all well pleaded facts and any inferences reasonably deducible therefrom are taken as true for purposes of the analysis.  United Leasing, Inc. v. Burton, 52 Som. 165 

 

A demurrer will be sustained only when the case is free from doubt; where the plaintiff has clearly failed to state a claim from relief.  United Leasing, Inc. v. Burton, 52 Som. 165 

 

When considering a preliminary objection in the nature of a demurrer, the court should not consider any pleadings not disclosed on the record.  United Leasing, Inc. v. Burton, 52 Som. 165 

 

Where, in the paragraph averring acts of negligence, the introductory clause alleges generally that the injuries are the result of defendants' "negligence, willfulness, wantonness and recklessness" without further specification, a preliminary objection to the generality of the claims of willfulness and wantonness will be sustained; in amending the complaint, plaintiff must designate separately the factual averments which apply to each of the pleaded types of conduct.  Leasure v. Calderone, 50 Som.L.J. 332.

 

Preliminary objections are governed by Pa. R.C.P. 1028.  Tunstall, et al. v. Boose, et al., 59 Som L.J. 157 (2000) (Gibson, J.).

 

In order to properly plead a claim for punitive damages, plaintiff must allege specific facts which would enable the objective reader to determine that the defendant acted or failed to act in disregard of a high degree of risk either known to him or so obvious that he must have been aware of it, and so great as to make it highly probable that harm would follow.  Malley v. Somerset Area School District, 54 Som. L.J. 1 (June 15, 1995) (Fike, P.J.) 

 

To properly plead a claim for punitive damages requires a higher degree of factual detail than that ordinarily required to state a negligence cause of action.  Malley v. Somerset Area School District, 54 Som. L.J. 1 (June 15, 1995) (Fike, P.J.) 

 

To sustain a claim for punitive damages, the complaint must include averments of the specific circumstances which would give rise to a reasonable inference that the high degree of risk was either known to defendant or so obvious to him that he must have been aware of it, and that defendant acted or failed to act in conscious disregard of, or indifference to, that risk.  Both "conscious disregard" and "indifference" require knowledge and choice.  Malley v. Somerset Area School District, 54 Som. L.J. 1 (June 15, 1995) (Fike, P.J.) 

 

Where the complaint alleges that plaintiff expended time, effort, and money for the improvement of a residence as a gift, upon condition that she and defendant would be married, and further alleges that defendant breached the marriage engagement entitling plaintiff to recover her property, plaintiff has stated a cause of action of conditional gift to withstand demurrer.  Stiles v. Hogue, 54 Som. L.J. 162 (Sep. 20, 1996) (Fike, P.J.)

 

Preliminary objections are governed by Pa.R.C.P. 1028 which, in pertinent part, provides that preliminary objections may be filed by any party to any pleading and are limited to certain grounds, including legal insufficiency of a pleading (demurrer).  Wiedenhoft v. Honeywell, et al., 59 Som.L.J. 310 (2001) (Gibson, J.); Zerfoss, et al. v. Borriello, et al. 59 Som.L.J. 427 (2002) (Gibson, J.). 

 

Preliminary objections are governed by Pennsylvania Rule of Civil Procedure §1028,      which provides in part that preliminary objections may be filed by any party to any pleading and include the following grounds:  insufficient specificity in a pleading; legal insufficiency of a pleading (demurrer). Baker v. Leasure, 59 Som.L.J. 456 (2002) (Gibson, J.). 

 

Preliminary objections are governed by Pa.R.C.P. 1028 which, in pertinent part, provides that preliminary objections may be filed by any party to any pleading and are limited to certain grounds, including legal insufficiency of a pleading (demurrer).  Dennison v. Doyle, 60 Som.L.J. 120 (2002) (Gibson, J.). 

 

Pennsylvania Rule of Civil Procedure 1028 (a) (3) provides that preliminary objections may be filed based upon the ground that there is insufficient specificity in a pleading. Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (Gibson, J.). 

 

Preliminary objections are governed by Pa.R.C.P. §1028.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.). 

 

When confronted with Connor-type objections and correlative claims that a complaint lacks specificity, the reasons for the rule must be considered. Chiurazzi vs. Go, M.D., Go-Bielec Surgical Assoc., Somerset Hospital, Moitra, M.D., Thomas, M.D., 61 Som.L.J. 142 (2002) (Fike, II, P.J.) 

 

When confronted with Connor-type objections and correlative claims that a complaint lacks specificity, the reasons for the rule must be considered. Wissinger, Executrix of the Estate of Gilbert C. Wissinger, deceased, and Kimberly Wissinger, in her own right vs. Furigay, M.D., and Windber Hospital, 61 Som.L.J. 158 (2002) (Fike, II, P.J.) 

 

In determining whether the averments are sufficiently specific the complaint must be read as a whole; discovery cannot be used as a substitute for specific pleading.  Wissinger, Executrix of the Estate of Gilbert C. Wissinger, deceased, and Kimberly Wissinger, in her own right vs. Furigay, M.D., and Windber Hospital, 61 Som.L.J. 158 (2002) (Fike, II, P.J.) 

 

Defendant’s motion for more specific pleadings will be granted, where the paragraphs are not so general as to warrant striking, but the paragraphs of the complaint are not sufficiently specific and do not place the Defendant on notice of what he will be called upon to meet at trial.  Wissinger, Executrix of the Estate of Gilbert C. Wissinger, deceased, and Kimberly Wissinger, in her own right vs. Furigay, M.D., and Windber Hospital, 61 Som.L.J. 158 (2002) (Fike, II, P.J.) 

 

A general averment of negligence does little to advance the inquiry of the parties or the court.  Wissinger, Executrix of the Estate of Gilbert C. Wissinger, deceased, and Kimberly Wissinger, in her own right vs. Furigay, M.D., and Windber Hospital, 61 Som.L.J. 158 (2002) (Fike, II, P.J.)

 

We note that whenever preliminary objections are overruled or dismissed, for whatever reason, the objecting party has an absolute right within twenty days, or such other period as the Court may direct, to file a responsive pleading.  Beamer v. Shockey, 63 Som.L.J. 137 (2005) (Fike, P.J)

 

“The pertinent question under Rule 1028(a)(3) is ‘whether the complaint is sufficiently clear to enable the defendant to prepare his defense,’ or ‘whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.’” Essentially, the objection requires a court to consider whether the plaintiff has complied with Rule 1019, “Contents of Pleadings, General and Specific Averments.” Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

Rule 1019(a) requires that “the complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim.” Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

Pennsylvania law clearly establishes that there is a difference between “matter[s] of evidence” and “essential facts to be pleaded in the complaint.” Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

Rule 2002, “Prosecutions of Actions by Real Parties in Interest,” which provides  “all actions shall be prosecuted by and in the name of the real party in interest,” is the rule that controls whether the assignment contracts need to be attached to the complaint, not Rule 1019. Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

Rule 2002 requires “[t]he derivation of the title to the cause of action [] be alleged affirmatively as a fact, so that the defendant may require proof of the assignment if he so desires.” Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

Even if Rule 2002 did not control, Rule 1019 does not require the agreements establishing that the plaintiff is the real party in interest to be attached to the complaint.  To the contrary, it requires the real party in interest (whether it be the initial credit card issuer or a subsequent assignee) to state specifically whether the agreement upon which the claim is based is oral or written.  The rule is not concerned with the agreement(s) upon which the “the derivation of the title to the [claim]” is based. Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

Our state does not utilize a proof-pleading scheme; it is well established that “Pennsylvania utilizes a fact-pleading scheme.”  Our rules of civil procedure make it clear that cases in which a plaintiff seeks to recover credit card debt are no different in terms of pleading. Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

Under Rule 1019(f), “the allegation of time when the cause of action accrued must be sufficiently specific to enable the defendant to plead the statute of limitations if applicable.” Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

A complainant seeking damages for the breach of a credit card agreement satisfies Rule 1019 in regards to subdivision (f)’s requirement that time be specifically averred so long as the “[d]efendant[] [has] some idea of whether a limitation of action defense [is] indeed available.”  The complaint must contain a specific date or dates from which it is made clear whether the plaintiff has complied with the statute of limitations.  Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

“Damages are either general, those which are the usual and ordinary consequences of the wrong done, or special, those which are not the usual and ordinary consequences of the wrong done, but which depend upon special circumstances.  General damages may be proved without being specially pleaded, the averment of the facts showing the wrong done being sufficient to entitle plaintiff to establish them.  Special damages, on the other hand, may not be proved unless the special facts giving rise to them are averred.” Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

Usually, a creditor that sues for breach of a credit card agreement seeks to recover general and special damages. Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

A 1028(a)(3) objection “is not available as a tool to compel an opposing party to plead evidence, and will be [overruled] where the details of items of special damages, pleaded generally, are readily obtainable by discovery.” Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

In cases involving credit card collection, the debtor has “enough facts to enable him to frame a proper answer and prepare a defense” even if the subsequent changes to the initial agreement are not pleaded in or attached to the complaint. Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

Under Rule 1019, a complaint in credit card collection does not need to “include [all of] the amounts of the charges that are part of the claim, the dates of the charges, credits for payments if any, dates and amounts of interest charges, and dates and amounts of other charges” because the alleged debtor can “answer intelligently and determine what items he can admit and what he must contest” regardless. Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

A creditor cannot recover damages (general or special) without proving them; however, proof is not required to overrule Defendant’s preliminary objection asserting that Plaintiff must now “specifically account for the purported sums outstanding and for the amounts in dispute.” Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

To establish a cause of action for breach of contract in Pennsylvania, the plaintiff must plead: “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

“It is settled law that the offeror is master of his offer, and his provision as to time, place and manner or mode of acceptance must be complied with[.]” Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

So long as the credit card user “had reasonable notice of and manifested assent” to the credit card agreement, he or she is bound by its terms because the credit card issuer’s “provision as to time, place and manner or mode of acceptance must be complied with[.]” Commonwealth Financial Systems, Inc. v. Reeping, 64 Som.L.J. 344 (2010) (Klementik, J.).

 

Rule 1028, “Preliminary Objections,” subsection(c)(1) provides that “[a] party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections.”  Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).


Where a party files the amended pleading beyond this 20-day period, the note to Rule 1028(a)(4), which requires a statute of limitations defense to be pled as new matter, does not apply; a motion to strike the claim is appropriate. Warrick v. Everett Cash Mutual Insurance Co., 64 Som. L.J. 415 (2010)(Klementik, J.).

 

The pertinent question under Pennsylvania Rule of Civil Procedure 1028(a)(3) is whether the complaint is sufficiently clear to enable the defendant to prepare his defense, or whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

A complaint need not cite evidence but only those facts necessary for the defendant to prepare a defense.  Carlis Mahon, t/d/b/a Mine Maintenance Solutions v. RoxCoal, Inc. and Severstal a/k/a Severstal Resources, Inc., 65 Som.L.J. 326 (2014) (Klementik, J.)

 

RULE 1029: DENIALS, EFFECT OF FAILURE TO DENY

 

Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication.  Pa. R.C.P. 1029(b).  Department of Transp. v. Salvatore, 54 Som. L.J. 368 (January 22, 1998) (Cascio, J.) 

 

Because the Pennsylvania Rules of Civil Procedure generally do not apply to statutory appeals, the failure of the Tax Claim Bureau to file a response to Plaintiff’s exceptions does not result in the admission of the averments raised in the exceptions pursuant to Pa.R.C.P. 1029.  In Re: Tax Sale of Real Property Situated in Jefferson Twp., Ruffner v. Beeghly, 61 Som.L.J. 24 (J. Cascio)

 

RULE 1030: NEW MATTER

 

Claim of disproportionate damages may not be raised in New Matter because averments are merely evidentiary in character and consist largely of an elaboration of the negative defenses.  Pa. R.C.P. 1030.  Trent v. PBS Coals, Inc., et al., 50 Som. 303

 

RULE 1031: COUNTERCLAIM

 

Pennsylvania Rule of Civil Procedure 1031(a) provides that a defendant may set forth in the answer under the heading “Counterclaim” any cause of action heretofore asserted in assumpsit or trespass which the defendant has against the plaintiff at the time of filing the answer.  Diamond Reo v. Mid Pacific Industries, Inc. v. Osterlund, Inc., 59 Som.L.J. 282 (2001) (Gibson, J.).

 

RULE 1032: WAIVER OF DEFENSES



Pa.R.C.P. §1032 specifically provides for certain objections which cannot be waived, including the failure to state a claim upon which relief can be granted (demurrer), and failure to join an indispensable party.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.).

 

 

RULE 1033: AMENDMENT OF PLEADINGS

 

Holding the hospital liable for its own direct negligence is a new form of direct liability known as "corporate negligence."  Davies v. Go, et al., 51 Som. 225 

 

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading.  The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense.  Pa.R.C.P. 1033.  Davies v. Go, et al., 51 Som. 225 

 

An amendment to a pleading may not introduce a new cause of action after the statute of limitations has run its course.  Davies v. Go, et al., 51 Som. 225 

 

An amendment which merely amplifies and clarifies a cause of action already stated may be amended after the expiration of the statute of limitations.  Davies v. Go, et al., 51 Som. 225 

 

A new cause of action is one which adds or changes the theory of recovery upon which relief is sought through the introduction of new factual allegations.  Davies v. Go, et al., 51 Som. 225 

 

Amendment of pleading is governed by Rule 1033 of the Pennsylvania Rules of Civil Procedure.  Feathers v. Reliance Ins. Co., 55 Som. L.J. 1 (October 3, 1997) (Fike, P.J.) 

 

Rule 1033 does not require the court to permit every proposed amendment.  It is well settled that the allowance of amendment, other than of first right, is within the discretion of the trial court.  Feathers v. Reliance Ins. Co., 55 Som. L.J. 1 (October 3, 1997) (Fike, P.J.) 

 

Pennsylvania courts have traditionally held that amendments should be liberally allowed to permit a determination of cases on their merits.  Feathers v. Reliance Ins. Co., 55 Som. L.J. 1 (October 3, 1997) (Fike, P.J.) 

 

No amendment will be permitted where it would be against a positive rule of law, or where it would surprise or prejudice the opposing party.  Feathers v. Reliance Ins. Co., 55 Som. L.J. 1 (October 3, 1997) (Fike, P.J.) 

 

It is not error for the court to refuse to permit a party to amend its pleading when such amendment would be immaterial, superfluous, or otherwise ineffectual.  Feathers v. Reliance Ins. Co., 55 Som. L.J. 1 (October 3, 1997) (Fike, P.J.) 

 

Where a proposed amendment would fail to state a cause of action and would require the     court to sustain preliminary objections to the amendment at a later date, the amendment    will be deemed immaterial and ineffectual and the court will deny the motion to amend.  Feathers v. Reliance Ins. Co., 55 Som. L.J. 1 (October 3, 1997) (Fike, P.J.) 

 

A party's request for amendment should be denied where it would result in prejudice to an adverse party.  Davies v. Go, et al., 51 Som. 225 

 

Pa.R.C.P. 1033 states that a party may amend a pleading to correct the name of a party.  J.E. Herring Motor Company v. Telford Miller Construction, 53 Som. 153 

 

Where the right party was sued under a wrong designation, the permission            to amend does not constitute the substitution of another and distinct party even after the statute of limitations has run.  J.E. Herring Motor Company v. Telford Miller Construction, 53 Som. 153 

 

Amendments to correct names are allowed even after an appeal has been taken from a judgment and award.  J.E. Herring Motor Company v. Telford Miller Construction, 53 Som. 153 

 

Absent prejudice to the opposing party, amendments to the pleadings to correct the names of the parties are to be liberally allowed; the goal of the judicial system is to secure a determination on the merits, not enforce technical rules of pleading.  J.E. Herring Motor Company v. Telford Miller Construction, 53 Som. 153

 

A petition to correct a party’s name is governed by Pa.R.C.P. No. 1033 which states that either party “by leave of court, may at any time . . . correct the name of a party.”  Wilke & Associates, LLP v. Marmaduke Enterprises, Inc., Ridge Runner Enterprises, Inc. and Michael Murray, III, 65 Som.L.J. 371 (2014)(Klementik, J.)

 

The “right party wrong designation rule” controls and where the right party was sued under an incorrect name, the court may grant a petition to amend the party’s name.  Wilke & Associates, LLP v. Marmaduke Enterprises, Inc., Ridge Runner Enterprises, Inc. and Michael Murray, III, 65 Som.L.J. 371 (2014)(Klementik, J.)

 

If the effect of the amendment is to correct a name of the party it is proper, if the effect is to substitute an entirely distinct and different party it is improper.  Wilke & Associates, LLP v. Marmaduke Enterprises, Inc., Ridge Runner Enterprises, Inc. and Michael Murray, III, 65 Som.L.J. 371 (2014)(Klementik, J.)

 

The plain language of Rule 1033 allows a court to amend party names where the case was transferred from the original court that entered judgment to the court making the amendment.  Wilke & Associates, LLP v. Marmaduke Enterprises, Inc., Ridge Runner Enterprises, Inc. and Michael Murray, III, 65 Som.L.J. 371 (2014)(Klementik, J.)

 

 

RULE 1034: MOTION FOR JUDGMENT ON THE PLEADINGS

 

On a motion for judgment on the pleadings, the trial court should confine itself to the pleadings themselves and any documents or exhibits properly included in the pleadings listed in Pa.R.C.P. 1017(a), and the courts have consistently held that papers not listed in this rule are not “pleadings" within the meaning of the Rules of Civil Procedure.  Thus, a motion for judgment on the pleadings is improper on a petition to disapprove a private tax sale.  In Re:  Private Tax Sales of 216.781 A B Minerals and 113/126 Int.180 A Minerals, 53 Som. 22 

 

Petition procedure is governed by Pa.R.C.P. 206 et seq. and Som.R.C.P. 206 et seq.  Nothing in these rules allows for a motion for judgment on the pleadings.  In Re:  Private Tax Sales of 216.781 A B Minerals and 113/126 Int. 180 A Minerals, 53 Som. 22 

 

The word "trial", as contained in Pa.R.C.P. 1034 governing judgment on the pleadings, implies that such a motion is proper only when a "trial" rather than a hearing is forthcoming.  As such, the motion is improper here.  In Re:  Private Tax Sales of 216.781 A B Minerals and 113/126 Int. 180 A Minerals, 53 Som. 22          

 

RULE 1035: SUMMARY JUDGMENT

 

The determination of whether a duty exists will depend on the facts of each case.  Consequently, until sufficient information exists to establish with certainty that a duty did not exist and that liability can be eliminated, summary judgment will be denied.  McClintock v. Works, 54 Som. L.J. 216 (Aug. 10, 1995) (Fike, P.J.)

 

A motion for summary judgment may be sustained if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  Clark v. Tiedt, et al, 51 Som. 26; Davies v. Go, et al., 51 Som. 225; Hartman v. Miller, et al., 51 Som. 202; Erie Indemnity Co. v. Hauger, 51 Som. 290; Somerset Motel Partners v. United States National Bank, 52 Som. 226; Scanlan v. Lasky, 55 Som. L.J. 49 (June 9, 1997) (Cascio, J.) 

 

A motion for summary judgment may be properly granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Stephens v. Celotex Corp., 52 Som. 107 

 

In analyzing summary judgment cases, the court must accept all well-pleaded facts as true and give the non-moving party the benefit of all reasonable inferences drawn therefrom; summary judgment should only be entered in those cases which are free and clear from doubt.  Lebda v. Flintkote, 51 Som. 106 

 

Summary judgment may be entered only in cases which are clear and free from doubt.  The motion must be considered in the light most favorable to the non-moving party, with all doubts resolved against the moving party, all reasonable inferences made in favor of the opposing party, and all well-pleaded facts of the opposing party accepted by the court.  Scanlan v. Lasky, 55 Som. L.J. 49 (June 9, 1997) (Cascio, J.) 

 

The burden rests with the moving party to persuade the court that no genuine issues exist as to the material facts.  Erie Indemnity Co. v. Hauger, 51 Som. 290; Scanlan v. Lasky, 55 Som. L.J. 49 (June 9, 1997) (Cascio, J.) 

 

The moving party has the burden of persuading the court that no genuine issue exists as to the material facts, and summary judgment may be entered only where the case is free from doubt.  Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (October 15, 1997) (Fike, P.J.) 

 

Once a motion for summary judgment is made, and properly supported, the non-moving party must present more than mere allegations and denials in the pleadings.  Lebda v. Flintkote, 51 Som. 106 

 

Once a motion for summary judgment is properly supported the burden shifts to the non-moving party to disclose evidence that is the basis for resisting summary judgment.  Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (October 15, 1997) (Fike, P.J.) 

 

The court's function is not to decide issues of fact, but solely to determine whether there are material issues of fact to be decided.  Erie Indemnity Co. v. Hauger, 51 Som. 290 Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (October 15, 1997) (Fike, P.J.) 

 

The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings; and must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.  Erie Indemnity Co. v. Hauger, 51 Som. 290 

 

In deciding a motion for summary judgment, the court must ignore controverted facts in the pleadings.  The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.  Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (October 15, 1997) (Fike, P.J.) 

 

When considering a motion for summary judgment, evidence not presented in the proper form by affidavit, deposition, etc., must be disregarded.  Stephens v. Celotex Corp., 52 Som. 107 

 

In asbestos litigation cases, the plaintiff must establish that plaintiff inhaled asbestos fibers shed by the specific manufacturer's product and must present evidence that he or she worked in the vicinity of the product's use.  Lebda v. Flintkote, 51 Som. 106 

 

Where Plaintiff presents evidence that he worked near asbestos-containing products for a specific period of time, is familiar with asbestos, observed Defendant's name on the product, and observed the word "asbestos" printed on the boxes containing the product, and where defendant has answered interrogatories in another case wherein defendant admitted to manufacturing asbestos, Plaintiff has put forth sufficient evidence to defeat defendant's Motion for Summary Judgment.  Lebda v. Flintkote, 51 Som. 106 

 

The court will not grant summary judgment where the moving party relies exclusively upon oral testimony, either through testimonial affidavits or deposition testimony, to establish the absence of a genuine issue of material fact.  Erie Indemnity Co. v. Hauger, 51 Som. 290 

 

Summary judgment may not be had where the moving party relies solely on his own oral testimony or that of his witnesses.  Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (October 15, 1997) (Fike, P.J.) 

 

When the moving party supports his motion for summary judgment on the admissions of the opposing party’s witnesses, summary judgment may be entered.  Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (October 15, 1997) (Fike, P.J.) 

 

A motion for summary judgment cannot be supported or defeated by inadmissible hearsay evidence; therefore, plaintiffs' witness' hearsay identification of an alleged asbestos product, as defendant's cannot be considered.  Stephens v. Celotex Corp., 52 Som. 107 

 

Statements by witnesses that they knew products at issue contained asbestos because they had been told so by others could not be used as evidence when considering a motion for summary judgment.  Stephens v. Celotex Corp., 52 Som. 107 

 

Even though only one job is involved and the exposure is not extensive, the possible impact as part of a cumulative effect cannot be eliminated; it cannot be stated conclusively that no genuine issue exists with respect to whether the exposure was a substantial causative factor for purposes of summary judgment in asbestos litigation.  Stephens v. Celotex Corp., 52 Som. 107 

 

The difference between a motion for judgment on the pleadings and a motion for summary judgment is that in the former the issue is decided based upon the pleadings alone, while in the latter the motion is decided based upon the pleadings and "any depositions, answers to interrogatories, admissions on file and supporting affidavits.  Rule 1035.  Reese v. Reese, 53 Som. 128 (1995). 

 

It is possible to pursue a motion for summary judgment in a divorce proceeding.  Reese v. Reese, 53 Som. 128 (1995). 

 

Pennsylvania Rule of Civil Procedure 1035.2 governs motions for summary judgment.  Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (October 15, 1997) (Fike, P.J.) 

 

In a Recreational Land Use Act case, where there are factual disputes regarding visibility, warning, and awareness of risks, summary judgment will be denied.  Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (October 15, 1997) (Fike, P.J.)

 

A motion for summary judgment may be granted only “if the pleadings, depositions, answer to interrogatories, and admissions on file, together with affidavits, if any show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035 (b).  The record must be viewed in the light most favorable to the non-moving party, and all doubt as to the existence of a genuine issue of material fact must be resolved against the moving party.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

A motion for summary judgment may be granted under Pa. R.C.P. 1035.2 when there is no genuine issue of material fact as to a necessary element of the cause of action and the party with the burden of proof at trial has failed to produce evidence of facts essential to the cause of action.  Larson v. Asperline Imagineering Service, Inc., 59 Som.L.J. 146 (2001) (Gibson, J.). 

 

Subsection (1) of Pa. R.C.P. 1035.2 is distinguished from Subsection (2) in the note to Rule 1035.2, which provides: Subsection (1) applies when the motion is supported by the record where there is an admission and where no genuine issue of material fact could be established by further discovery or expert testimony; Subsection (2) applies when the record contains insufficient evidence of facts to make out a prima facie cause of action or defense, and, therefore, there is no issue to be submitted to a jury.  Larson v. Asperline Imagineering Service, Inc., 59 Som.L.J. 146 (2001) (Gibson, J.). 

 

A motion for summary judgment may be granted under Pa.R.C.P. 1035.2 when there is no genuine issue of material fact as to a necessary element of the cause of action and the party with the burden of proof at trial has failed to produce evidence of facts essential to the cause of action.  Luther P. Miller, Inc., v. Cincinnati Ins. Co., 59 Som.L.J. 413 (2002) (Gibson, J.).  Motion for summary judgment is granted where “there is no genuine issue of any material fact as to a necessary element of the cause of action.”  Pa.R.C.P. 1035.2 (1).  Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.). 

 

The record for the purposes of a summary judgment motion includes any 1) pleadings, 2) depositions, answers to interrogatories, admissions and affidavits, and 3) reports signed by an expert witness that would, if filed, comply with Rule 4003.5 (a) (1), whether or not the reports have been produced in response to interrogatories.  Pa.R.C.P.  1035.1.  Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.). 

 

The attachment of exhibits to the motion for summary judgment permitted them to be relied upon by the trial court.  Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.).

 

A party may move for summary judgment after the relevant pleadings are closed (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.Civ.P. 1035.2. Hajoca Corp., v. Suter, 63 Som.L.J. 360 (2007)(Klementik, J.).

 

The moving party has the burden of proving that no genuine issues of material fact exist. Hajoca Corp., v. Suter, 63 Som.L.J. 360 (2007)(Klementik, J.).

 

In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Hajoca Corp., v. Suter, 63 Som.L.J. 360 (2007)(Klementik, J.).

 

Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Hajoca Corp., v. Suter, 63 Som.L.J. 360 (2007)(Klementik, J.).

 

The court is to ignore controverted facts contained in the pleadings and restrict its consideration to material filed in support of and in opposition to the motion for summary judgment and the uncontroverted allegations in the pleadings. Hajoca Corp., v. Suter, 63 Som.L.J. 360 (2007)(Klementik, J.).

 

Where the Defendant’s Answer denied assertions in the Complaint regarding price of goods, the Request for Admissions specifically called for answers to factual matters regarding price, and the Defendant failed to respond to the Request for Admissions, such matters of fact contained therein are conclusively established as true against the Defendant pursuant to Pa.R.Civ.P. 4014(b) and hereby deemed admitted for the purposes of the instant summary judgment motion. Hajoca Corp., v. Suter, 63 Som.L.J. 360 (2007)(Klementik, J.).

 

RULE 1054: SPECIFIC AVERMENTS

 

Plaintiff will not be required to attach an abstract of title from the Commonwealth to the Complaint, where defense counsel indicates that the defense will be by claim of adverse possession, and the case is at the preliminary objection stage.  Tannehill v. Conn, 52 Som. 137

 

According to Pa.R.C.P. 1054(b), an abstract of title must be attached to an action in ejectment.  Chase Manhattan Bank v. Petrunak, 61 Som.L.J. 166 (2003) (Cascio, J.)

 

RULE 1147: THE COMPLAINT

 

Pennsylvania Rule of Civil Procedure 1147 provides what a plaintiff shall set forth in a complaint in a mortgage foreclosure action.              Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (Gibson, J.).

 

RULE 1910.12: OFFICE CONFERENCE. HEARING. RECORD. EXCEPTIONS.

 

Each exception shall set forth a separate objection precisely and without discussion.  Pa.R.C.P. §1910.12(f).  Bambling v. Ankeny, 61 Som.L.J. 135 (2003) (Cascio, J.) 

 

RULE 1910.16-1: AMOUNT OF SUPPORT. SUPPORT GUIDELINES.

           

In order to justify a deviation from the support obligation guidelines, the Court is required to find that the application of the guidelines would amount to an award which is “unjust or inappropriate.”  Richard v. Richard, 54 Som. 96 

 

The purposes for the Internal Revenue Code is concerned with calculating taxable income; child support law of Pennsylvania is concerned with reaching the amount of income of both parents in order to determine the amount each parent can pay for the support of their child.  Pa.R.C.P. 1910.16-1.  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.).

                                       

RULE 1910.16-2: SUPPORT GUIDELINES. CALCULATION OF NET INCOME.

 

Pa.R.C.P. 1910.16-2 (d) (1) sets forth the support obligation requirements of a party who voluntarily assumes a lower paying job.  Miller v. Miller, 58 Som.L.J. 24 (2000) (J. Gibson). 

 

Pa.R.C.P. 1910-16-2 (d) (1) is applicable to a voluntary reduction of income whether or not a prior support order has been issued.  Miller v. Miller, 58 Som.L.J. 24 (2000) (J. Gibson). 

 

Pa.R.C.P. 1910.16-2 (d) (1) applies to the establishment and modification of support obligations.  Miller v. Miller, 58 Som.L.J. 24 (2000) (J. Gibson). 

 

Pa.R.C.P. 1910.16-2(a)(8) sets forth that income in support actions includes gains derived from dealings in property and entitlements to money without regard to source.  Strong v. Stapleton, 60 Som.L.J. 66 (2000) (Gibson, J.). 

 

The amount of support to be awarded is based in large part upon the parties’ monthly net income.  Pa.R.C.P. 1910.16-2.  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

The Master correctly applied the provisions of Pa.R.C.P. 1910.16-2(d) in determining that when a party is laid off and then called back to work, his earning capacity will be assigned according to this offer, regardless of whether the person accepts and returns to work.  Diest v. Keller, 61 Som.L.J. 126 (2003) (Cascio) 

 

Generally, when Social Security Disability (“SSDIB”) benefits paid on behalf of the child are derivative of benefits to which one of the parents are entitled by virtue of disability, then the child’s derivative benefits are added to the combined monthly income of both parents and the presumptive amount of support determined from the schedule contained in the Rules is then reduced by the amount of the benefits before the net support obligation is apportioned between the parents.  See Pa.R.C.P. 1910.16-2(b)(2).  Diest v. Keller, 61 Som.L.J. 126 (2003) (Cascio) 

 

When the child receives derivative SSDIB benefits, then the parental support obligation of each parent is reduced proportionally to reflect the benefits supplied by the government to aid the parents in supporting the child.  Ziest v. Keller, 61 Som.L.J. 126 (2003) (Cascio) 

 

Income or assets received by a child are typically not considered in determining parental support obligations.  Diest v. Keller, 61 Som.L.J. 126 (2003) (Cascio) 

 

Where the SSDIB benefits are paid as a result of the child’s disability, those benefits are assets of the child and not assets of the parent received in lieu of wages, and should therefore not be considered in determining parental support obligations.  Diest v. Keller, 61 Som.L.J. 126 (2003) (Cascio) 

 

Both 23 Pa.C.S.A. 4302 and Pa.R.C.P. 1910.16-2(a)(6) include “temporary and permanent disability benefits” in the definition of “income.”  23 Pa.C.S.A. 4302; Pa.R.C.P. 1910.16-2(a)(6), 42 Pa.C.S.A.  Croyle v. Croyle, 61 Som.L.J. 219 (2004) (Cascio, J.) 

 

For the purposes of determining eligibility for Supplemental Security Income (“SSI”) benefits, which are not counted as income for support purposes under Pa.R.C.P. 1910.16-2(b)(1), the Federal Regulations clearly exclude credit disability payments.  20C.F.R. §416.1103; See Ginley v. White, 1192 WL 17461, (E.D.Pa. 1992).  Croyle v. Croyle, 61 Som.L.J. 219 (2004) (Cascio, J.)

 

RULE 1910.16-3: SUPPORT GUIDELINES. BASIC CHILD SUPPORT SCHEDULE.

           

The formula to be applied when calculating spousal support or alimony pendente lite requires the application of a 40% adjustment to the difference between the monthly net incomes of the parties when there are no dependent children.  Pa.R.C.P. 1910.16-3(a).  Harbaugh v. Harbaugh, 53 Som. 345

 

RULE 1910.16-4: SUPPORT GUIDELINES. CALCULATION OF SUPPORT OBLIGATION, FORMULA.

 

Rule 1910.16-4 (c) (1) offers relief to a support obligor with whom the children spend 40% or more of their time during the year.  In this circumstance, the rule establishes a rebuttable presumption that the obligor is entitled to a reduction in the basic support obligation to reflect this additional time.  Addair v. Beggs, 58 Som.L.J. 1 (2001) (J. Cascio). 

 

Rule 1910.16-4 (c) (2) addresses a situation where the children spend equal time with both parents.  In that situation, the support obligation is to be adjusted so that the combined income of both parents is allocated equally between the two households.  Addair v. Beggs, 58 Som.L.J. 1 (2001) (J. Cascio).

 

RULE 1910.16-5: SUPPORT GUIDELINES. DEVIATION.

 

Pa.R.C.P. 1910.16-5(b)(8) which provides: (b) In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider... (8) in a spousal support or alimony pendente lite case, the period of time during which the parties lived together from the date of the marriage to the date of final separation.  Somma v. Somma, 60 Som.L.J. 164 (2002) (Cascio, J.).

 

Pa.R.C.P. 1910.16-5(b)(8) was designed to permit the court to consider the length of the marriage in a spousal support or alimony pendente lite case.  The provision’s primary purpose is to prevent the unfairness that arises when the obligor is required to pay support over a substantially longer period of time than the parties were married and there is little or no opportunity for credit for these payments at the time of equitable distribution.  Somma v. Somma, 60 Som.L.J. 164 (2002) (Cascio, J.). 

 

Pa.R.C.P. 1910.16-5(b)(8) is to be applied when deciding whether to deviate from the amount of support determined by the guidelines in a spousal support or alimony pendente case.  Somma v. Somma, 60 Som.L.J. 164 (2002) (Cascio, J.). 

 

The proposed revisions to Pa.R.C.P. 1910.16-5(b)(8) includes a subsection (c) which clearly is intended to apply when the issue of the duration of the spousal support order is raised.  Somma v. Somma, 60 Som.L.J. 164 (2002) (Cascio, J.). 

 

The proposed subsection (c) to Pa.R.C.P. 1910.16-5(b)(8) is intended to eliminate confusion over the application of subdivision (b)(8) when the issue of duration of the order is raised.  Somma v. Somma, 60 Som.L.J. 164 (2002) (Cascio, J.). 

 

The language of Pa.R.C.P. 1910.16-5(b)(8) implies that the subsection is triggered by a divorce decree and does not apply to spousal support orders.  Somma v. Somma, 60 Som.L.J. 164 (2002) (Cascio, J.).

 

RULE 1910.20: SUPPORT ORDER

 

The hearsay exception embodied in Pa. R.C.P. 1910.20 was enacted by the Legislature in 1997 as part of 23 Pa. C.S.A. § 4342 to provide for expedited procedures for the determination and enforcement of support. Thus, it was created substantively by statute and procedurally by Rule.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).

 

RULE 1920.43: SPECIAL RELIEF

 

Pa.R.C.P. 1920.43 is intended to provide relief in matters involving property issues raised by the parties in a divorce action.  Reese v Reese, 53 Som. 128 (1995). 

 

Pa.R.C.P. 1920.41 provides that in divorce proceedings “no judgment may be entered by default or on the pleadings.”  Reese v Reese, 53 Som. 128 (1995). 

 

Pa.R.C.P. 1920.14 states that the averments in the complaint as to the divorce or annulment and all other claims which may be joined under the Divorce Code shall be deemed denied unless admitted by an answer.  Reese v Reese, 53 Som. 128 (1995). 

 

Pennsylvania Rule of Civil Procedure 1920.43 permits a party in a divorce action to seek special relief.              Welker v. Welker 58 Som.L.J. 401 (2001) (J. Gibson).

 

The burden on the part seeking special relief is to set forth facts entitling the party to relief.  Welker v. Welker 58 Som.L.J. 401 (2001) (J. Gibson). 

 

The relief requested in this case can be considered, and if appropriate, can be granted pursuant to exceptions filed by Plaintiff subsequent to the filing of the Special Master’s Report and Recommendation, rather than pursuant to special relief.  Welker v. Welker 58 Som.L.J. 401 (2001) (J. Gibson). 

 

The special relief encompassed with in the purview of Rule 1920.43 is relief which, if not granted at the time requested, may result in harm which cannot be reasonably remedied at a later date.  Welker v. Welker 58 Som.L.J. 401 (2001) (J. Gibson). 

 

The situation for special relief of Rule 1920.43 is intended is analogous to a preliminary injunction situation.  Welker v. Welker 58 Som.L.J. 401 (2001) (J. Gibson). 

 

Pennsylvania Rule of Civil Procedure 1920.55-2 states (a) after the conclusion of the hearing the master shall (1) file the record and the report within (i) twenty days in uncontested actions (ii) thirty days after the receipt of the transcript by the master in contested actions (2) immediately serve upon counsel for each party, or if unrepresented, upon the party, a copy of the report and recommendation and written notice of the right to file exceptions.  (b) within ten days of the mailing of the master’s report and recommendation, any party may file exceptions to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing.  Haynes v. Haynes 62 Som.L.J. 112 (2005) (J. Upor) 

 

Rule 1920.42 provides (a) If a complaint has been filed requesting a decree on the grounds of irretrievable breakdown and (1) both parties have filed an affidavit under § 3301 (c) of the Divorce Code substantially in the form prescribed by Rule 1920.72 (b), or (2) either party has filed a 3301 (d) affidavit under 3301 (d) of the Divorce Code substantially in the form prescribed by Rule 1920.72 (d) the averments of which the other party has admitted or failed to deny, the prothonotary on praecipe in the form prescribed by Rule 1920.73 (b) shall transmit the record to the court which shall review the record and enter the appropriate decree.  No master shall be appointed.  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005).  

 

We note that although Pa.R.C.P. 1920.53 does not specifically reference private agreements, case law exists whereby a Divorce Master placed the parties’ divorce agreement on record after permitting several hours for negotiation, but without conducting any sort of formal hearing.  See Luber v. Luber, 614 A.2d 771 (1992).  Klink v. Klink, 62 Som.L.J. 140 (2005) (Fike, P.J.).

 

RULE 2039: MINORS & COMPROMISE, SETTLEMENTS, DISCONTINUANCE

           

No action to which a minor is a party shall be compromised, settled, or discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor.  Pa. R.C.P. 2039.  Malley v. Somerset Area School District, 54 Som. L.J. 1 (May 9, 1996) (Cascio, J.) 

 

A settlement agreement entered into by an insurer and a minor guardian is binding on the insurer, but is voidable as to the minor until the court approves the settlement.  Malley v. Somerset Area School District, 54 Som. L.J. 1 (May 9, 1996) (Cascio, J.) 

 

In all actions involving a minor, the best interests of the child are of paramount and controlling importance to the court; the minor litigant's interest must be protected above all other conflicting interest.  Malley v. Somerset Area School District, 54 Som. L.J. 1 (May 9, 1996) (Cascio, J.) 

 

Pa. R.C.P. § 2039 mandates that the minor's rights be protected by requiring court approval at which time the settlement becomes binding on the minor as well.  Malley v. Somerset Area School District, 54 Som. L.J. 1 (May 9, 1996) (Cascio, J.)

 

No action in which a minor is a party shall be compromised, settled, or discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor.  Pa. R.C.P. 2039(a).  Malley v. Somerset School District & Berkebile Brothers, 54 Som. 10 

 

At the outset, it must be pointed out in all actions involving a minor, the best interests of the child are of paramount and controlling interest to the court; the minor litigant’s interest must be protected above all other conflicting interest.  Malley v. Somerset School District & Berkebile Brothers, 54 Som. 10 

 

A settlement agreement entered into by an insurer and a minor guardian is binding on the insurer, but is voidable as to the minor until the court approves the settlement.  Malley v. Somerset School District & Berkebile Brothers, 54 Som. 10 

 

This course of action allows the guardians of a minor to effectively negotiate a settlement while at the same time protecting the minor’s interest by requiring court approval before the settlement can have a binding effect on the minor.   Malley v. Somerset School District & Berkebile Brothers, 54 Som. 10 

 

Normally, where a party enters into a settlement agreement, the agreement is binding and enforceable without court approval.  Malley v. Somerset School District & Berkebile Brothers, 54 Som. 10 

 

Pa.R.C.P. 2039 mandates that the minor’s right’s be protected by requiring court approval at which time the settlement becomes binding on the minor as well.  Malley v. Somerset School District & Berkebile Brothers, 54 Som. 10

 

RULE 2152: STANDING

 

An action prosecuted by an association shall be prosecuted in the name of a member or members thereof as trustees ad litem for such association.  Pa.R.C.P. 2152.  Roaring Run Development Committee v. Penn's Woods Council, Inc., Boy Scouts of America, 52 Som. 372 (1994). 

 

If an action by an unincorporated association is incorrectly designated, the error may usually be corrected by amendment.  Roaring Run Development Committee v. Penn's Woods Council, Inc., Boy Scouts of America, 52 Som. 372 (1994).



RULE 2179: VENUE

 

Where suit is brought for nonpayment under a contract, venue is proper in the county where payment is due, either as where cause of action arose or where occurrence took place out of which it arose under Pa.R.C.P. 2179(a)(3) and (4).  Mid-Continent Ins. Co. v. Clarksburg Coal Co., et al, 50 Som. 6

 

RULE 2228: JOINDER OF RELATED PLAINTIFFS



Pa R.C.P. 2228(b) must be read in conjunction with Pa R.C.P. 2223(a).  Therefore, if both parents do not join in an action on behalf of their child, a defendant’s remedy is limited to a bar against a subsequent suit by the non-joining parent.  Miller et al. v. Sybert et al., 54 Som. 82 

 

In lawsuits where one parent has not joined in the other parent’s action on a minor’s behalf, a defendant cannot compel a non-joined parent to become a party plaintiff against his will.  Therefore, if both parents do not join in an action on behalf of their child, a defendant’s remedy is limited to a bar against a subsequent suit by the non-joining parent.  Miller et al. v. Sybert et al., 54 Som. 82 

 

One cannot be forced to become a party plaintiff against their will.             Miller et al. v. Sybert et al., 54 Som. 82

 

RULE 2253: TIME FOR FILING PRAECIPE (against additional defendant)

 

Except as provided by Rule 1041.1(e), neither a praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by complaint, shall be filed by the original defendant or an additional defendant later than sixty days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by order of the court or by the written consent of all parties approved by and filed with the court.  Pa. R.C.P. 2253(a); Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

Any party may object to a motion to join an additional defendant after the sixty-day period prescribed by subdivision (a) on the ground that the party will be prejudiced by the late joinder.  The plaintiff may also object to the late joinder on the ground that the joining party has not shown a reasonable justification for its delay in commencing joinder proceedings.  Pa. R.C.P. 2253(b); Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

Where the original defendant was aware of the proposed additional defendant's involvement in the case, and no sufficient justification for the late joinder is provided, the requested leave to join additional defendant will be denied.  Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)

 

RULE 2303: INTERPLEADER



An interpleader is the procedural mechanism through which adverse claimants against the money, property or debt held by another may be required to litigate their claims in one proceeding.  Drobnak v. McKool, 52 Som. 195 

 

An interpleader's purpose is the avoidance of the expense and inconvenience which results from the defense of multiple actions arising out of identical claims of entitlement to a stake of money, property or debt.  Drobnak v. McKool, 52 Som. 195 

 

Interpleader should be denied where the petitioner has incurred independent liability to either of the claimants.  Drobnak v. McKool, 52 Som. 195 

 

Interpleader is allowed because a defendant is besieged by several claims, only one of which can be meritorious.  Drobnak v. McKool, 52 Som. 195 

 

The reason for the existence of this remedy is to prevent a stakeholder from being required to pay more than once, and to let the real contestants, the competing claimants, assert their claims to the fund against each other rather than against the stakeholder.  Drobnak v. McKool, 52 Som. 195

 

RULE 2327: WHO MAY INTERVENE

 

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules, if the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.  Pa.R.C.P. 2327(4).  First Philson Bank, N.A. v. Bergman, 53 Som. 362

 

Pennsylvania Rules of Civil Procedure 2326 to 2350 govern intervention.  More specifically, Rule 2327 sets forth the various grounds justifying intervention.  U.S. Bank National Association v. Maldet, 63 Som.L.J. 277 (2007) (Klementik).

 

The term “legally enforceable interest” as used in Pa.R.Civ.P. 2327(4) regarding intervention does not have a clear and exact definition; rather we must exercise discretion in determining whether such an interest exists.   U.S. Bank National Association v. Maldet, 63 Som.L.J. 277 (2007) (Klementik).

 

RULE 2951: METHODS OF PROCEEDING

 

Pennsylvania Rule of Civil Procedure 2951 guides the entry of a judgment by confession.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.). 

 

Under Pa.R.C.P. 2951 (a) the prothonotary shall enter judgment by confession on an instrument which authorizes confession of judgment against a defendant in favor of a plaintiff in the event of a default for the amount which may appear to be due from the instrument.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.). 

 

If judgment by confession is authorized by the instrument, but cannot be entered by the prothonotary under Pa.R.C.P. 2951(a) because an amount due does not appear on the instrument, a plaintiff shall commence an action by filing with the prothonotary a complaint in the form provided by Pa.R.C.P. 2952.  Stahl Oil Comp. v. Helsel, et al., 60 Som.L.J. 272 (2002) (Gibson, J.).

 

RULE 2959: STRIKING OFF OR OPENING JUDGMENT

 

Requirements for opening a confessed judgment discussed.  Piotek v. Fabry, 50 Som. 21 

 

Upon the entry of a judgment by confession under a warrant of attorney, the warrant is exhausted and may not serve as authorization to enter a subsequent judgment on the same debt even when the first is stricken from the record.  Toth v. Quemahoning Collieries, Inc., 52 Som 285 

 

Where an instrument authorizes judgments to be confessed from time to time for separate sums as or after they becomes due, successive actions may be commenced and judgments entered for such sums.  Toth v. Quemahoning Collieries, Inc., 52 Som 285

 

Pa.R.C.P. 2959(a)(2) provides that the ground that the waiver of due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3.  Beitzel v. Leberfinger, 61 Som. L.J. 326, 333-334 (2005) (Cascio, J.) 

 

Pa.R.C.P. 2959(a)(3) requires the petition to strike the judgment to be filed within thirty days after written notice is served pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c).  Beitzel v. Leberfinger, 61 Som. L.J. 326, 334 (2005) (Cascio, J.)

 

RULE 2973.3: NOTICE SERVED WITH WRIT OF POSSESSION

 

Under Pa.R.C.P. 2973.3, a defendant’s petition to strike the judgment is limited to the issue whether the defendant voluntarily, intelligently and knowingly waived the right to notice and hearing prior to the entry of judgment.  Beitzel v. Leberfinger, 61 Som. L.J. 326, 332 (2005) (Cascio, J.)

                              

RULE 4003.1: SCOPE OF DISCOVERY, INTERROGATORIES, SPECIFICITY OF RESPONSE



Review and application of Pa.R.C.P. 4003.1, 4003.2, 4003.5 and 4011 to specific interrogatories: interrogatories found to be unduly broad in scope; interrogatories restricted by assertion of attorney-client privilege; interrogatories which are improperly argumentative in nature; adequacy of responses which merely refer back to earlier responses within a set of interrogatories; specificity of responses which refer back to earlier responses; and interrogatory found to be oppressive and burdensome.  Gales v. Mitsubishi Int'l Corp., et al., 50 Som 207 

 

Interrogatories which call for an essay-type answer are to be discouraged.              Gales v. Mitsubishi Int'l Corp., et al., 50 Som 207.

 

Interrogatories are not objectionable if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Pa.R.C.P. 4003.1(b).  Gales v. Mitsubishi Int'l Corp., et al., 50 Som 207 

 

The information is discoverable even if involving opinion. Pa.R.C.P. 4003.1(c). Gales v. Mitsubishi Int'l Corp., et al., 50 Som 207 

 

It is the burden of the party objecting to discovery to identify the specific provision of the discovery rules alleged to have been violated, and to state the basis of the objection with particularity.  Gales v. Mitsubishi Int'l Corp., et al, 50 Som 207; Esherich v. The Flintkote Company, 52 Som. 253 

 

A party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.  Esherich v. The Flintkote Company, 52 Som. 253 

 

A party may obtain discovery of any matter relevant to the pending action that is not privileged, even if prepared in anticipation of litigation or trial.  Pa.R.C.P. Nos. 4003.1 and 4003.3, 42 Pa.C.S.A.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

The rules permit discovery of the “identity and location of persons having knowledge of any discoverable matter,” but protect the mental impressions of a party’s attorney or his conclusions, opinions, memoranda, notes or summaries, legal research, or legal theories from discovery.  Pa.R.C.P. No. 4003.1, 42 Pa.C.S.A.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

A party is entitled to discover any information known to another party which may support or refute any allegation within a pleading, however, this does not require a party to match information to particular allegations in the complaint.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

Court should not grant a motion to compel more specific answers when, in the early stages of discovery, the plaintiff states that it has no information other than contained in the pleadings, that which was produced through discovery, and that which was given via answers to interrogatories.  However, the plaintiff should immediately make available any relevant information as it is discovered. Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.)

 

Where life expectancy and earning capacity are at issue, the plaintiffs’ decedent’s mental health may be relevant, and plaintiff should be required to answer interrogatories regarding these matters.   Black v. Platt and Keystone Vacuum, Inc., 61 Som.L.J. 396 (2005) (Fike, II, P.J.)

 

RULE 4003.3: SCOPE OF DISCOVERY. TRIAL PREPARATION GENERALLY

 

According to Rule 4003.3, defendant, upon written request to plaintiff, is entitled to immediate receipt of a Photostatic copy or like production of a statement concerning the action or its subject matter previously made by that party, any other party or a witness.  Pa.R.C.P. No. 4003.3, 42 Pa.C.S.A.   Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

Under Rule 4003.3, a lawyer’s notes or memoranda of an oral interview of a witness, who signs no written statement, are protected, but the same notes or memoranda made by an insurance investigator will not be protected.  Pa.R.C.P. No. 4003.3, 42 Pa.C.S.A., Explanatory Note – 1978.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

If an attorney hires a selected agent to do preparatory and/or investigative work, the product of that work becomes a part of the hiring attorney’s work product, just as if the attorney or an employee of his office had done the work.  Such statements, if unsigned, and reports are protected by the work product privilege.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

If the investigators, representatives or employees who have investigated the accident have not been specially retained or employed by the attorney, the reports fall within the realm of discoverable material.  See commentary: Pa.R.C.P. No. 4003.3, 42 Pa.C.S.A.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

Under Rule 4003.3, a lawyer’s notes or memoranda of an oral interview of a witness, who signs no written statement, are protected, but a signed statement of the witness is always discoverable, no matter who took it or where it is filed.”  Pa.R.C.P. No. 4003.3, 42 Pa.C.S.A., Explanatory Note – 1978.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.)

 

A party is required, upon appropriate interrogatory, to provide the identity of experts a party expects to call at trial, with supporting information, but a party is prohibited from discovering facts known or opinions held by an expert retained or employed in anticipation of litigation or preparation for trial but who is not expected to be called as a witness, except under exceptional circumstances.  Black, et al v. Platt, et al 63 SomL.J. 86 (2006) (Fike, P.J.)

 

The burden to limit the inquiry is imposed on the requesting party.  It would be unfair, burdensome and oppressive to require a party to attempt to comply with a listing of all documents referring or relating to the suit, without limit, or regardless of location, source or subject. Black, et al v. Platt, et al 63 SomL.J. 86 (2006) (Fike, P.J.)

 

RULE 4003.4: SCOPE OF DISCOVERY. TRIAL PREPARATION STATEMENTS.

 

According to Rule 4003.4, defendant, upon written request to plaintiff, is entitled to immediate receipt of a Photostatic copy or like production of a statement concerning the action or its subject matter previously made by that party, any other party or a witness. Pa.R.C.P. No. 4003.3, 42 Pa.C.S.A. Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

If a party, in his interrogatories, states that he has not yet retained his experts, he is under a duty to supplement his answer as provided by Rule 4007.4(1) if and when the decision is made to call an expert at trial.  Pa.R.C.P. No. 4003.4, 42 Pa.C.S.A. Explanatory Comment – 1978.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.)

 

RULE 4003.5: DISCOVERY OF EXPERT TESTIMONY; TRIAL PREPARATION MATERIAL.

 

An expert witness' testimony at trial may not go beyond the fair scope of his testimony in the discovery proceedings.  Davies v. Go, et al., 51 Som. 225 

 

Pa.R.C.P. 4003.5 comprehensively governs the discovery of experts, and is a significant departure from prior practice.  Esherich v. The Flintkote Company, 52 Som. 253 

 

An analysis of Pa.R.C.P. 4003.5 reveals three directives governing discovery of experts. First, section (a)(1) prescribes the method of discovery to be utilized (i.e. interrogatories). Second, section (a)(1) specifically lists the information (i.e. "facts known and opinions held") which may be obtained through discovery. Third, section (a)(3) exempts that information from discovery where an expert has been retained in anticipation of litigation but is not expected to be called as an expert witness at trial.  Esherich v. The Flintkote Company, 52 Som. 253 

 

Pa.R.C.P. 4003.5(a)(3), prohibiting discovery of an expert who has been retained in anticipation of litigation but who is not expected to be called as an expert witness at trial, makes no distinction between the "records" and "reports" of an expert.  Esherich v. The Flintkote Company, 52 Som. 253 

 

Where x-rays and breathing tests are performed as part of the consultation procedure with an expert not expected to testify, Pa.R.C.P. 4003.5 prohibits discovery.  Esherich v. The Flintkote Company, 52 Som. 253 

 

The discovery provided for in Pa.R.C.P. 4003.5 is the only discovery of a specially retained expert that is permitted.  Esherich v. The Flintkote Company, 52 Som. 253 

 

Pa.R.C.P. 4003.6 governing discovery of "treating physicians" cannot be interpreted as an exception to the provisions of Pa.R.C.P. 4003.5 governing experts.  Esherich v. The Flintkote Company, 52 Som. 253 

 

In order to negate the prohibition of Pa.R.C.P. 4003.5(a)(3) on discovery of an expert who has been retained in anticipation of litigation but who is not expected to be called as an expert witness at trial, the burden shifts to the party seeking discovery to demonstrate "exceptional circumstances" under which it is impracticable to obtain facts or opinions on the same subject by other means.  Esherich v. The Flintkote Company, 52 Som. 253 

 

Failure of a party to object during a deposition to questions concerning information which may be protected from discovery under Pa.R.C.P. 4003.5 (a)(3) does not waive that party's rights to later object to production of such information on a motion to compel. Pa.R.C.P. 4016.  Esherich v. The Flintkote Company, 52 Som. 253 

 

Pa.R.C.P. 4003.5 (a) (1) requires an expert who is expected to testify at trial, to state the substance of the facts and opinions to which the expert will testify and a summary of the grounds for each opinion.  Greeley v. Saadat, 58 Som.L.J. 378 (2000) (P.J. Fike). 

 

When a court is faced with the task of determining the scope of discovery when an expert who will testify at trial reviews, and refers in his report to the notes or reports of other experts who are not expected to testify, a court must weigh the disclosure requirements of Rule 4003.5 (a) (1), against the opposing protective features of Rule 4003.5 (a) (3).  Greeley v. Saadat, 58 Som.L.J. 378 (2000) (P.J. Fike). 

 

The objectives of liberal pretrial discovery and elimination of trial by surprise, together with the defendant’s legitimate interest in trial preparation, weigh strongly in favor of disclosure.  Greeley v. Saadat, 58 Som.L.J. 378 (2000) (P.J. Fike). 

 

The purpose of Rule 4003.5 (a) (3) is to preclude a lazy litigant from taking advantage of the diligent party’s efforts in preparing for trial.  Greeley v. Saadat, 58 Som.L.J. 378 (2000) (P.J. Fike). 

 

Because the plaintiff’s expert used some or all of other expert’s reports in reaching his conclusion, some discovery should be permitted.  Greeley v. Saadat, 58 Som.L.J. 378 (2000) (P.J. Fike). 

 

Exceptional circumstances exist under Rule 4003.5 (a)(3), since the defense cannot ascertain the “notes” or “history” on which the plaintiff’s expert relies in any other manner.  Greeley v. Saadat, 58 Som.L.J. 378 (2000) (P.J. Fike). 

 

In attempting to reconcile the opposing goals of Rule 4003.5(a)(3) in the instant case, the following alternatives may be utilized.  (1) The Plaintiff’s counsel may furnish to the defense copies of the histories contained in the other expert’s reports, and provide a supplemental report from the plaintiff’s expert identifying other parts of the other expert’s reports which the plaintiff’s expert relied upon in making his conclusions, and if desired, the defense may also be permitted to depose the plaintiff’s expert.  OR (2) The Plaintiff’s counsel may furnish copies of the other expert’s reports, subject to the restriction that, unless otherwise agreed to by the plaintiff, or unless otherwise authorized by the trial judge, the defense shall be prohibited from using opinions expressed in the other expert’s reports for any purpose at trial, provided however, that the defense shall be permitted, in preliminary questioning or other procedure by which the information may be obtained without revealing the substance to the jury, to ask the plaintiff’s expert to state the parts of the other expert’s report which he used in reaching his conclusion.  Greeley v. Saadat, 58 Som.L.J. 378 (2000) (P.J. Fike). 

 

The defense shall have the right to cross-examine the plaintiff’s expert with respect to those parts of the other expert’s reports which he used in formulating his opinions.  Greeley v. Saadat, 58 Som.L.J. 378 (2000) (P.J. Fike). 

 

Rule 4003.5(a)(1) provides that a party, through interrogatories, may require any other party to “identify” the expert witnesses expected to be called to testify at trial, and to state the subject matter on which the expert is expected to testify.  Pa.R.C.P. No. 4003.5(a)(1), 42 Pa.C.S.A.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

For identification purposes, the “name, address, telephone number, occupation, specialization and qualifications” of each expert expected to be called as a witness at trial are discoverable matters within [Rule 4003.5(a)(1)].”  Pa.R.C.P. No. 4003.5(a)(1), 42 Pa.C.S.A.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

If an expert is retained or specially employed by another party in anticipation of litigation or preparation for trial but is not expected to be called as a witness at trial, no discovery of such a witness is permitted unless there is an order of court.  Pa.R.C.P. No. 4003.5, 42 Pa.C.S.A.  Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

Pa.R.C.P. 4003.5 requires a party, upon appropriate interrogatory, to provide identity of experts a party expects to call at trial, with supporting information, but prohibits a party from discovering facts known or opinions held by an expert retained or employed in anticipation of litigation or preparation for trial but who is not expected to be called as a witness, except under exceptional circumstances. Black v. Platt and Keystone Vacuum, Inc., 61 Som.L.J. 396 (2005) (Fike, II, P.J.) 

 

Balancing the plaintiffs’ need to confirm the identity of experts intended to be called at trial against the defendants’ legitimate expectation that prosecution of the action will proceed without undue delay mandates a denial of the defendant’s Motion to Compel Supplementary Discovery.  Black v. Platt and Keystone Vacuum, Inc., 61 Som.L.J. 396 (2005) (Fike, II, P.J.)

 

RULE 4003.6: DISCOVERY OF TREATING PHYSICIAN

 

Pa.R.C.P. 4003.6 governing discovery of "treating physicians" cannot be interpreted as an exception to the provisions of Pa.R.C.P. 4003.5 governing experts generally.  Esherich v. The Flintkote Company, 52 Som. 253 

 

RULE 4009.12: ANSWER TO REQUEST FOR PRODUCTION OF DOCUMENTS

 

When answering a written request the party shall “identify all documents or things not produced or made available because of the objection that that are not within the scope of permissible discovery under Rule 4003.2 through Rule 4003.6 inclusive and Rule 4011(c),” together with the basis for non-production. Pa.R.C.P. No. 4009.12(b)(2), 42 Pa.C.S.A. Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

The privilege log requirement of Rule 4009.12(b)(2) must be met in order for the opposing party to adequately object to the withholding of information under the auspices of the attorney client privilege and for this court to determine whether a document is within its scope.  Pa.R.C.P. No. 4009.12(b)(2), 42 Pa.C.S.A. Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

Trial preparation material, including statements of witnesses whether taken by a lawyer or investigator, is fully discoverable with the exception of the mental impressions of a party’s attorney or his or her conclusions, opinion, memoranda, notes or summaries, legal research, or legal theories.  A signed statement of a witness is discoverable. Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.) 

 

Logic dictates that if objection is appropriate under Pa.R.C.P. 4011, which imposes limitations upon the scope of discovery, duties set forth in Pa.R.C.P. 4009.12, such as requiring an answer to a request for production with accompanying log, are not required until disposition of objections under Rule 4011.  Black v. Platt and Keystone Vacuum, Inc., 61 Som.L.J. 396 (2005) (Fike, II, P.J.)

 

The provisions of Pa.R.C.P. 4009.12 require an answer to a request for production with an accompanying log; this rule must be read in conjunction with Pa.R.C.P. 4011, imposing limitations upon the scope of discovery.  If an objection is appropriate under Rule 4011 then duties imposed under Rule 4009.12 are not required until disposition of objections under Rule 4011. Black, et al v. Platt, et al 63 Som.L.J. 86 (2006) (Fike, P.J.)

 

RULE 4011: LIMITATION OF SCOPE OF DISCOVERY AND DEPOSITION

 

Review and application of Pa.R.C.P. 4003.1, 4003.2, 4003.5 and 4011 to specific interrogatories: interrogatories found to be unduly broad in scope; interrogatories restricted by assertion of attorney-client privilege; interrogatories which are improperly argumentative in nature; adequacy of responses which merely refer back to earlier responses within a set of interrogatories; specificity of responses which refer back to earlier responses; and interrogatory found to be oppressive and burdensome.  Gales v. Mitsubishi Int'l Corp., et al., 50 Som 207 

 

When a pre-complaint deposition is requested, and the issue is appropriately raised by the proposed deponent, the requesting party must show that the deposition is needed in order to prepare the pleading.  Reisinger, et al. v. Tomlinson, et al., 51 Som. 159 

 

Logic dictates that if objection is appropriate under Pa.R.C.P. 4011, which imposes limitations upon the scope of discovery, duties set forth in Pa.R.C.P. 4009.12, such as requiring an answer to a request for production with accompanying log, are not required until disposition of objections under Rule 4011.  Black v. Platt and Keystone Vacuum, Inc., 61 Som.L.J. 396 (2005) (Fike, II, P.J.) 

 

RULE 4014: REQUESTS FOR ADMISSIONS

 

Each matter of which an admission is requested shall be separately set forth.  The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission an answer verified by the party or an objection, signed by the party or the party’s attorney. Pa.R.Civ.P. 4014(b). Hajoca Corp., v. Suter, 63 Som. L.J. 360 (2007)(Klementik, J.). 

 

By not filing an answer to or objecting to a request for admissions, a party risks that the facts as set forth in the request will be held conclusive. Hajoca Corp., v. Suter, 63 Som. L.J. 360 (2007)(Klementik, J.). 

 

The Defendant, in failing to respond to the Request for Admissions up to and including the date of hearing, has advanced no compelling reason–and, moreover, no reason at all–justifying the non- response; therefore, all matters of fact included in the Plaintiff’s Request for Admissions are conclusively established as true against the Defendant. Hajoca Corp., v. Suter, 63 Som. L.J. 360 (2007)(Klementik, J.). 

 

 

SPECIFIC PLEADING – ATTACHMENT OF AN AGREEMENT TO PLEADINGS

 

When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.  Lamens v. Forman and Ferguson 59 Som L.J. 1 (2001) (P.J. Fike). 

 

When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance of the writing.  Lamens v. Forman and Ferguson 59 Som L.J. 1 (2001) (P.J. Fike). 

 

Where a plaintiff has not attached an original draft of a document and he has explained the reasons why the writing is not accessible, by attaching a duplicate, he has set forth what the plaintiff claims to be the substance of the writing.  Lamens v. Forman and Ferguson 59 Som L.J. 1 (2001) (P.J. Fike). 

 

SPECIFIC PLEADING – SPECIAL AND GENERAL DAMAGES

 

Rule 1019 (f) of the Pennsylvania Rules of Civil Procedure requires that items of special damages shall be specifically stated.  Farkosh v. Bell 58 Som. L.J. 273 (2001) (J. Gibson) 

 

Special damages are those which by their nature are such that a reasonable man committing the act complained of did not foresee that such damages would result from his act.  They are the natural, but not necessary, result of the injury.  Special damages must be pled specifically because they are not foreseeable.  Farkosh v. Bell 58 Som. L.J. 273 (2001) (J. Gibson) 

 

General damages are the ordinary, usual, or natural consequences of the averred wrongful conduct.  General damages are the necessary and proximate consequences of the alleged conduct.  Farkosh v. Bell 58 Som. L.J. 273 (2001) (J. Gibson) 

 

A defendant will not be surprised by the proof of general damages and therefore they need not be specifically stated.  Farkosh v. Bell 58 Som. L.J. 273 (2001) (J. Gibson)

 

SPECIFIC PLEADING – MOTION FOR A MORE SPECIFIC PLEADING

 

A preliminary objection in the nature of a motion for a more specific pleading will be sustained if (1) the pleading is not adequately clear to allow the opposing party to prepare a defense or (2) the pleading is not sufficiently detailed to convince the court that the averments are more than mere subterfuge.  Unionvale Coal Company v. Charles E. Erickson, Jr., et al. 58 Som. L.J.69 (1998) (P.J. Fike) 

 

A complaint based on an oral contract does not have to specify that it is so based unless the facts pleaded create an inference that the claims are based on a written contract.  Unionvale Coal Company v. Charles E. Erickson, Jr., et al. 58 Som. L.J.69 (1998) (P.J. Fike) 

 

If a complaint fails to specify whether an alleged contract is oral or written, an inference arises that it is oral.  Unionvale Coal Company v. Charles E. Erickson, Jr., et al. 58 Som. L.J.69 (1998) (P.J. Fike) 

 

To determine whether fraud has been pleaded with the requisite specificity, the court must look to the complaint as a whole to determine if the statements or actions alleged to constitute fraud and the elements of fraud are specified.  Unionvale Coal Company v. Charles E. Erickson, Jr., et al. 58 Som. L.J.69 (1998) (P.J. Fike) 

 

Mere allegations that the defendants engaged in a fraudulent scheme to obtain coal from the plaintiff without paying for it and that the defendants knew that a company which had contracted to purchase coal from the plaintiff was insolvent do not provide sufficient facts to support the plaintiff's claim that it was fraudulently induced to sell its coal or that it justifiably relied to its detriment on any fraudulent conduct or representations on the defendants' part.  Unionvale Coal Company v. Charles E. Erickson, Jr., et al. 58 Som. L.J.69 (1998) (P.J. Fike) 

 

SPECIFIC PLEADING – SCANDALOUS OR IMPERTINENT MATTER

 

An unnecessary allegation in a pleading which charges some person with a crime, the proof of which is not necessary to prevail in the action, and bears cruelly on the moral character of an individual, states anything which is contrary to good manner, or is unbecoming to the dignity of a court to hear constitutes scandalous matter.

 

STATUTE OF LIMITATIONS

 

Limitations periods are computed from the time the cause of action accrued.  Hampe v. Brown, et al. 59 Som.L.J. 228 (2001) (Gibson, J.). 

 

Under Pennsylvania law, a cause of action accrues at the time when the plaintiff could have first maintained the action to a successful conclusion.  Hampe v. Brown, et al. 59 Som.L.J. 228 (2001) (Gibson, J.). 

 

The statute of limitations will begin to run on a cause of action as soon as the right to institute and maintain a suit arises.  Hampe v. Brown, et al. 59 Som.L.J. 228 (2001) (Gibson, J.).

 

STAY OF CIVIL PROCEEDINGS

 

Where the same suit is filed in two jurisdictions, the principles of comity and freedom of litigants to choose their forum warrant a temporary delay in proceedings in the jurisdiction in which the suit was filed last in time while the first suit is pending in the foreign jurisdiction.  Pezzino v. Seven Springs, 50 Som. 188

 

SUMMARY JUDGMENT

 

Summary judgment may be appropriate when after the completion of discovery relevant to the motion...an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.  Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike). 

 

Summary judgment may only be granted in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.  Larson v. Asperline Imagineering Service, Inc., 59 Som.L.J. 146 (2001) (Gibson, J.). 

 

The moving party has the burden of proving the nonexistence of any genuine issue of material fact.  Larson v. Asperline Imagineering Service, Inc., 59 Som.L.J. 146 (2001) (Gibson, J.). 

 

The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.  Larson v. Asperline Imagineering Service, Inc., 59 Som.L.J. 146 (2001) (Gibson, J.). 

 

The entry of summary judgment is proper where the uncontraverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.  Larson v. Asperline Imagineering Service, Inc., 59 Som.L.J. 146 (2001) (Gibson, J.). 

 

A court should exercise caution when making a determination of whether to grant a motion for summary judgment.  Larson v. Asperline Imagineering Service, Inc., 59 Som.L.J. 146 (2001) (Gibson, J.). 

 

The moving party has the burden of proof to establish the absence of genuine issue of material fact.  Luther P. Miller, Inc., v. Cincinnati Ins. Co., 59 Som.L.J. 413 (2002) (Gibson, J.). 

 

In considering a motion for summary judgment, a court must examine the complete record, including any and all pleadings, depositions, answers to interrogatories, admissions of record, and affidavits filed by the parties.  Luther P. Miller, Inc., v. Cincinnati Ins. Co., 59 Som.L.J. 413 (2002) (Gibson, J.). 

 

From its view of the documents, the court must determine whether there is a genuine issue of any material fact as to a necessary element of the cause of action.              Luther P. Miller, Inc., v. Cincinnati Ins. Co., 59 Som.L.J. 413 (2002) (Gibson, J.). 

 

The party who brought the motion has the burden of proving that no genuine issue of material fact exists.  Luther P. Miller, Inc., v. Cincinnati Ins. Co., 59 Som.L.J. 413 (2002) (Gibson, J.). 

 

All doubts as to the existence of a genuine issue of material fact are to be resolved against the granting of summary judgment.  Luther P. Miller, Inc., v. Cincinnati Ins. Co., 59 Som.L.J. 413 (2002) (Gibson, J.). 

 

Summary judgment will only be granted in cases which are clear and free of doubt, and in making the summary judgment determination, the court must view all facts in a light most favorable to the nonmoving party.  Luther P. Miller, Inc., v. Cincinnati Ins. Co., 59 Som.L.J. 413 (2002) (Gibson, J.). 

 

Oral testimony alone, either through testimonial affidavits or depositions of the moving party of the moving party's witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of a material fact.  Luther P. Miller, Inc., v. Cincinnati Ins. Co., 59 Som.L.J. 413 (2002) (Gibson, J.). 

 

Summary Judgment is proper when pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  In determining whether to grant summary judgment a court must resolve all doubts against the moving party and examine the record in the light most favorable to the non-moving party.  Summary Judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law.  Thomas v. Seven Springs Mountain Resort, t/a/d/b/a Seven Springs Farm, Inc. 60 Som.L.J. 47 (2000) (Fike, P.J.). 

 

The moving party has the burden of proof to establish the absence of any genuine issue of material fact.   Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.). 

 

The burden of establishing the absence of any genuine issue of material fact does not shift until the moving party has satisfied his burden by making a prima facie showing that there is no genuine issue of material fact.   Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.). 

 

In considering a motion for summary judgment, the court must examine the complete record, including any and all pleadings, depositions, answers to interrogatories, admissions of record, and affidavits filed by the parties.  Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.). 

 

All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment.  Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.). 

 

In a motion for summary judgment, the court must view all facts in a light most favorable to the nonmoving party.  Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.). 

 

Oral testimony alone, either through testimonial affidavits or depositions of the moving party or the moving party's witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact.  Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A.2d 523 (1932).  Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.). 

 

There exists an exception to the Nanty-Glo rule "where the moving party supports the motion by using admissions of the opposing party or the opposing party's own witnesses.  Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.). 

 

When examining the record before it, the trial court must accept as true all well-pleaded facts in the non-moving party pleadings, and give him or her the benefit of all reasonable inferences to be drawn therefrom.  Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.). 

 

In evaluating a summary judgment motion, the court must resolve all issues of fact in the light most favorable to the non-moving party and resolve all doubts as to the existence of material facts against the moving party.  Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.). 

 

A witnesses' [sic] credibility is a determination for the jury and necessarily creates a genuine issue of material fact.  Johnson v. Dudenak, et al., 60 Som.L.J. 333 (2002) (Gibson, J.)

 

A motion for summary judgment is not ripe until all discovery relevant to its resolution has been completed; however, the motion will be deemed premature on the basis of outstanding discover, only if the outstanding discovery is germane to the issue presented by the movant.  Angle vs. Hidden Valley Resort, L.P., successor-in-interest to the Hidden Valley Ski, Inc., 61 Som. L.J. 66 (2002) (Fike, II, P.J.) 

 

Summary Judgment is proper when pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2. 

 

In determining whether to grant summary judgment a court must resolve all doubts against the moving party and examine the record in the light most favorable to the non-moving party. 

 

Summary Judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law.  Hamilton v. Hidden Valley Ski, INC., Hidden Valley Resort, L.P. and Hidden Valley Farm, Inc., 61 Som.L.J. 93 (2003) (Cascio, J.) 

 

A party opposing a motion for summary judgment may not withstand summary judgment merely by relying on the allegations of his complaint.  Kephart & Kephart v. Sherlock & Sherlock, 61 Som.L.J. 112 (2003) (Cascio, J.) 

 

VENUE

 

Improper venue must be raised by preliminary objection.              Rapp, by Lasure v. Boyle, 59 Som.L.J. 450 (2002) (Gibson, J.). 

 

The proper venue of a proceeding for change of name of the child lies in the child's county of residence.  Rapp, by Lasure v. Boyle, 59 Som.L.J. 450 (2002) (Gibson, J.). 

 

Such "floating" venue provisions weigh against enforcement of the contract. Global Incorporated v. IFC Credit Corporation, 62 Som. L.J. 75 (2005) (J. Upor). 

 

Rule Pa. R.C.P. 1006 reads in pertinent part: (a) Except as otherwise provided by subdivisions (b) and (c) of this Rule, an action against an individual may be brought in and only in a county in which (1) the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law...  Pa. R.C.P. 1006(a)(1).  Kitchens & Baths of Somerset, Inc. v. Robert Gardill and Julie Gardill 62 Som. L.J. 223 (2005) (Pike, P.J.) 

 

In accordance with the Court's opinion in Lucas Enterprises, and the opinions of this Court and our sister Courts of Common Pleas, venue is proper in the county of the plaintiff's place of business in breach of contract action alleging failure to make payment.  Kitchens & Baths of Somerset, Inc. v. Robert Gardill and Julie Gardill 62 Som. L.J. 223 (2005) (Pike, P.J.)