30 Amendment of rule 212.3 and adoption of rules 212.5 and 212.6 of the rules of civil procedure; no. 538 civil procedural rules doc.?

Title 231—RULES OF
CIVIL PROCEDURE

PART I. GENERAL

[ 231 PA. CODE CH. 200 ]

Amendment of Rule 212.3 and Adoption of Rules 212.5 and 212.6 of the Rules of Civil Procedure; No. 538 Civil Procedural Rules Doc.

[41 Pa.B. 214]
[Saturday, January 8, 2011]

Order

Per Curiam

 And Now, this 15th day of December, 2010, upon the recommendation of the Civil Procedural Rules Committee; the proposal having been published for public comment at 39 Pa.B. 4739 (August 8, 2009) and in the Atlantic Reporter (Second Series Advance Sheets, Vols. 973 No. 4, 974 No. 1):

 It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 212.3 is amended, and Rules 212.5 and 212.6 are adopted, in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective January 15, 2011.

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 200. BUSINESS OF COURTS

Rule 212.3. [Pre-trial conference] Pre-Trial Conference.

 (a) In any action at any time the court, [of its own motion] sua sponte or on motion of any party, may direct the attorneys for the parties or any unrepresented party to appear for a conference to consider:

 (1) The simplification of the issues;

 (2) The [necessity or desirability of amendments to the pleadings] entry of a scheduling order;

 (3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

 (4) The limitation of the number of expert witnesses;

 (5) [The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury] Settlement and/or mediation of the case;

 Official Note: See Rule 212.5 for procedures governing a settlement conference.

 (6) Such other matters as may aid in the disposition of the action.

 (b) A court may require, pursuant to a court order, various parties to attend a pre-trial conference, including an insurance or similar representative, who has authority to negotiate and settle the case.

 (c) In the absence of a court order, at any pre-trial conference held after the filing of the pre-trial statements and that will involve settlement discussions:

 (1) prior to the conference date, the attorneys for the parties, or the parties if unrepresented, shall engage in good faith efforts to resolve the case;

 (2) an attorney who will be trying the case, or another attorney who has sufficient knowledge of the claims asserted, defenses presented, relief sought and legal issues raised, and has the authority to act on behalf of the client shall attend the pre-trial conference; and

 (3) an insurance or similar representative, who has authority to negotiate and settle the case, must either attend the pre-trial conference or be promptly available by telephone.

 (d) The court may make an order reciting the action taken at the conference[, the amendments allowed to the pleadings,] and the agreements made by the parties as to any of the matters considered, and limiting the issues for trial to those not disposed of by admissions or agreements of the attorneys. Such order when entered shall control the subsequent course of the action unless modified at the trial to prevent manifest injustice.

 [(c)] (e) The court may establish by rule a pre-trial list on which actions may be placed for consideration as above provided, and may either confine the list to jury actions or to non-jury actions, or extend it to all actions.

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

Rule 212.5. Settlement Conference.

 (a) At any time, the court, sua sponte or on motion of any party, may enter an order in the form provided in Rule 212.6 scheduling a settlement conference, the purpose of which is to resolve the litigation. Prior to the conference date, the attorneys for the parties, or the parties if unrepresented, shall engage in good faith efforts to resolve the case.

 (b) At a settlement conference scheduled pursuant to this rule,

 (1) an attorney who will be trying the case, or another attorney who has sufficient knowledge of the claims asserted, defenses presented, relief sought and legal issues raised, and has the authority to act on behalf of the client shall attend the settlement conference;

 (2) an insurance or similar representative, who has authority to negotiate and settle the case must be present at the conference, unless the court permits the representative to ensure that he or she will be available by telephone; and

 (3) the court shall have discretion to order the attendance of other individuals as reasonably necessary to accomplish resolution of the case.

 Official Note: Rule 212.3 governs a pre-trial conference which includes consideration of matters relating to the trial of a case. A settlement conference pursuant to this rule considers only the settlement of litigation.

Rule 212.6. Settlement Conference. Form of Order.

 An order scheduling a settlement conference pursuant to Rule 212.5 shall be substantially in the following form:

(Caption)

Scheduling Order for Rule 212.5
Settlement Conference

 For the above-captioned case, a settlement confer- ence pursuant to Rule 212.5 has been scheduled before ______ at ______ Courthouse      (name of judge)
at ____ o'clock. All parties shall be in compliance with the requirements of Rule 212.5(b).

 ______
J.

Explanatory Comment

 The success, or the lack thereof, of settlement negotiations often hinges on the preparation of the parties for such negotiations. To facilitate the settlement of cases, Rule 212.3 governing pre-trial conferences has been amended to provide guidance to the parties when a court schedules a pre-trial conference for the purpose of settlement negotiations. New Rule 212.5 is intended to provide guidance to the parties for a conference scheduled specifically to settle litigation.

 The proposed rule when published for comment required an insurance representative with ''complete authority'' to attend the pre-trial or settlement conference. Persons responding to the publication of the proposed rule pointed out that insurers have different claim resolution procedures. With most insurance companies, there is no one person who has complete authority to negotiate and settle a case, unless it is the president of the company or the vice president of claims. Every insurance representative has limits on his or her authority. In some companies, decisions are made by committees in large cases. The Committee removed the word ''complete'' so that the rule now requires ''an insurance or similar representative who has authority to negotiate and settle the case'' to attend the pre-trial or settlement conference.

By the Civil Procedural Rules Committee

HONORABLE ROBERT C. DANIELS, 
Chair

[Pa.B. Doc. No. 11-30. Filed for public inspection January 7, 2011, 9:00 a.m.]