1942 Adoption of revised local rules of motions practice of civil procedure; civil division; no. 158 December term 1904

McKEAN COUNTY

Adoption of Revised Local Rules of Motions Practice of Civil Procedure; Civil Division; No. 158 December Term 1904

[42 Pa.B. 6282]
[Saturday, October 6, 2012]

Order

 And Now, this 18th day of September, 2012, it is hereby Ordered and Decreed, pursuant to Pennsylvania Rule of Civil Procedure 239.8, as follows:

 1. The Local Rules of Civil Procedure L205.2(a), L205.2(b), L206.4(c), L208.2(c), L208.2(d), L208.2(e), L208.3(a), L208.3(b), L210, L1028(c), L1034(a), and L1035.2(a) are hereby adopted, effective upon publication on the Pennsylvania Judiciary Web Application Portal at http://ujsportal.pacourts.us;

 2. The District Court Administrator, Joanne L. Bly, of the 48th Judicial District is hereby directed to:

 a. Transmit one (1) copy of this Order and the previously-mentioned Local Rules to the Pennsylvania Civil Procedural Rules Committee which shall then forward a copy to the Administrative Office of Pennsylvania Courts for publication on the Pennsylvania Judiciary Web Portal Application, transmission to the Committee may be made via the Note in Rule 239.8;

 b. File two (2) certified copies of this Order and the previously-mentioned Local Rules, along with a compact disc (CD) with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin;

 c. Provide one (1) copy of this Order and the previously-mentioned Local Rules to each member of the McKean County Bar Association, distribution may be made electronically; and

 d. Keep this Order and the previously-mentioned Local Rules continuously available for public inspection and copying in the Office of the McKean County Prothonotary and Clerk of Courts.

By the Court

JOHN H. PAVLOCK, 
President Judge

MCKEAN COUNTY RULES OF CIVIL PROCEDURE

MOTIONS PRACTICE

Rule L205.2(a). Filing of Legal Papers.

 In addition to the requirements forth in Pa.R.C.P. No. 204.1:

 (1) All papers filed with the prothonotary shall be without folds to facilitate scanning and flat filing.

 (2) All papers having multiple pages shall be numbered consecutively. The number shall appear at the bottom center position of each page.

 (3) All papers having multiple pages shall be bound at the top with a binding clip or single staple in the middle, not the side.

 (4) No tape, headers or backers shall be used without prior approval of the prothonotary.

 (5) Attachments to any paper filed with the prothonotary shall be clearly legible. Copies shall faithfully represent the original in every respect.

Rule L205.2(b). Cover Sheet.

 (1) Pursuant to Pa.R.C.P. No. 205.5 the initial pleading in any civil action including actions for custody and visitation of minor children, actions for divorce, actions in domestic relations generally and actions in the Orphan's Court except actions filed pursuant to the Protection from Abuse Act, 23 Pa.C.S.A. § 1601 et seq. and actions for support, shall be accompanied by the cover sheet published by the court administrator of Pennsylvania available on the website of the Administrative Office of Pennsylvania Courts and from the prothonotary. The party filing the initial pleading in any other type of case not listed on the cover sheet or for which there is not an applicable header (e.g. TORT) under which the case type can be added on the line ''Other:'' shall mark in the lower right hand corner of the cover sheet under the heading ''MISCELLANEOUS'' sub-heading ''Other:'' Family Law, Orphan's Court and attach the supplement set forth in subdivision (3) of this rule.

 The following are a list of case types that should be used when completing the Rule 205.5 Cover Sheet where not identified.

 TORT: Assault, Wrongful Death/Survival, Minor's or Incapacitated Person's Compromise

 CONTRACT: Mechanic's Lien, Insurance, Negotiable Instrument, Warranty

 CIVIL APPEALS: Award of Viewers, Local Agency, Board of Elections

 MISCELLANEOUS: Equitable Relief (Injunction), Labor Dispute, Confirm/Vacate Arbitration Award and any other case not specifically addressed in this rule.

 (2) All pleadings including the initial pleading and entries of appearance filed in any matter shall be accompanied by the local cover sheet set forth in subdivision (3) of this rule.

 (3) The court administrator shall design and publish the supplement referred to in subparagraph (1) of this rule and the local cover sheet referred to in subsection (2) of this rule. The latest version of these forms shall be available from the prothonotary and on the court's website at www.mckeancountypa.org/Departments/Court_Of_Common_Pleas/Index.aspx. The prothonotary shall assist a party appearing pro se in the completion of these forms.

Comment

 A ''complex case'' is an action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties, and counsel. The factors to be used in determining if a case is ''complex'' are among other things, whether the action is likely to involve numerous pretrial motions raising difficult or novel legal issues that will be time consuming to resolve, management of a large number of witnesses or a substantial amount of documentary evidence, management of a large number of separately represented parties, or the trial of the case will take more than 2 days. An action is presumptively a complex case if it involves one or more of the following types of claims: medical malpractice, construction defect claims involving many parties; claims for wrongful death; or, insurance coverage claims arising out of any of the claims listed above.

 Plaintiff/Defendant shall furnish the prothonotary with a copy of the cover sheet(s) and supplement, if any, for the court administrator.

Rule L206.4(c). Petition Procedure: Issuance of a Rule to Show Cause.

 (1) Filing:

 (a) All petitions shall be filed with the prothonotary in the form prescribed in Pa.R.C.P. Nos. 204.1, 206.1 and Rule L205.2(a).

 (b) Scope: As used in this rule, ''petition'' means any application to open a default judgment or a judgment of non pros.

 (c) The issuance of a Rule to Show Cause upon presentation of a petition shall be discretionary. A petitioner seeking the issuance of a Rule to Show Cause shall attach to the petition a proposed order in the form prescribed in Pa.R.C.P. No. 206.5(d). The court in its discretion may delete paragraphs (4) and (5) of the form order (regarding discovery and argument) and provide instead that the matter will proceed before the court on an evidentiary hearing to resolve disputed issues of fact. The court may also enter an order to require the filing of briefs or to authorize discovery to proceed other than by deposition.

 (d) Petitions should not be filed with the court administrator. All petitions shall be filed with the prothonotary. Courtesy copies for the court are not required. Petitions should not be filed in duplicate or by facsimile transmission, except in emergency circumstances.

 (e) The court will take no action until a petition has been filed of record, except in unusual circumstances.

 (f) In the event a Rule to Show Cause is not issued, the court shall issue an appropriate order directing the respondent to file an answer to the petition and the petition will be decided under Pa.R.C.P. No. 206.7.

 (2) The petition seeking the issuance of a Rule to Show Cause shall be supported with an appropriate statement of authority citing a statute, rule of court, or case law in support of the requested relief. The statement may be in the form of a brief or memorandum of law filed contemporaneously with the petition; or, in a routine petition that does not raise complex legal or factual issues, in the body of the petition itself.

 (3) Any request for stay of execution pending disposition of a petition to open judgment shall be filed by separate motion.

 (4) The petition and any motion seeking a stay of execution shall be scheduled for argument or hearing by the court administrator and it is not necessary for the moving party to request hearing or argument.

Comment

 See Pa.R.C.P. No. 210 and L210 for the form of a brief or memorandum of law. See also Rule L303.1 and the Explanatory Comment that follows.

 A petition for relief from a judgment by confession is governed by Pa.R.C.P. No. 2959.

 A petition to open or strike a judgment is governed by Rule L315.

 A petition to compromise, settle, or discontinue an action in which a minor has an interest under Pa.R.C.P. No. 2039 is governed by Rule L2039.1.

 A petition to compromise, settle, or discontinue an action in which an incapacitated person has an interest under Pa.R.C.P. No. 2064 is governed by Rule L2064.1.

 A petition to compromise, settle, or discontinue a wrongful death or survival action in which a minor or incapacitated person has an interest under Pa.R.C.P. No. 2206 is governed by Rule L2206.1.

 Except as otherwise provided by the Pennsylvania Rules of Civil Procedure or by statute, all other applications for relief shall be in the form of a motion and shall be governed by Rule L208.3(a).

Rule L208.2(c). Statement of Authority.

 All motions, except motions for continuances, shall be supported by a statement of authority citing a statute, rule of court or case law in support of the requested relief. The statement may be in the form of a brief or memorandum of law filed contemporaneously with the motion; or, in routine motions that do not raise complex legal or factual issues, in the body of the motion itself.

Comment

 See Pa.R.C.P. No. 210 and Rule L210 for the form of a brief or memorandum of law. See also Rule L303.1 and the Explanatory Comment that follows.

Rule L208.2(d). Certification of Position: Motions.

 Prior to submitting any motion, the movant or his/her counsel shall confer with all counsel of record and any unrepresented parties to determine their position with respect to the motion. The movant or his/her counsel shall include in or attach to his/her motion a certification that the movant or his/her counsel has conferred, or attempted to confer, with all interested parties to ascertain their position on the motion (contested, uncontested or no position). The ascertained position shall be indicated in the certification.

Rule L208.2(e). Discovery Motions.

 A motion relating to discovery shall contain a certification by counsel for the moving party that counsel has conferred with all interested parties in an attempt to resolve the matter without court action and has been unable to reach a satisfactory resolution of the issues presented.

Rule L208.3(a). Motion Procedure: Scheduling and Argument.

 (1) Filing and Scheduling:

 (a) All motions shall be filed with the prothonotary in the form prescribed in Pa.R.C.P. Nos. 204.1, 208.2 and Rule L205.2(a) and shall be accompanied by a proposed order.

 (b) Scope: As used in this rule, ''motion'' means any application to the court made in any civil action or proceeding except as provided by subdivision (b)(1) and (2) of Pa.R.C.P. No. 208.1.

 (c)(i) Motions should not be filed with the court administrator. All motions shall be filed with the prothonotary. Courtesy copies for the court are not required.

 (c)(ii) Motions should not be filed in duplicate or by facsimile transmission, except in emergency circumstances. The prothonotary shall immediately forward emergency and continuance motions to the court administrator. Continuances will be granted only in accordance with the court's continuance policy (See memorandum of November 16, 1993) available on the court's website at www.mckeancountypa.org/Departments/Court_Of_Common_Pleas/Index.aspx. See also Pa.R.C.P. No. 216. No such request will be granted unless good cause is shown.

 (c)(iii) Every motion shall contain the certification required by Rule L208.2(d).

 (d) The court will take no action until a motion has been filed of record, except in unusual circumstances.

 (e) Unless the motion is certified as uncontested, the court shall provide the opportunity for argument either by written briefs or orally in open court. If oral argument is held, the court, in its discretion, may decide the matter at argument or take the matter under advisement. The court may deny the moving party's request for relief, without argument, when the motion is procedurally defective, is untimely filed or fails to set forth adequate grounds for relief. If an order is entered without oral argument, the court shall hear oral argument on an application by any party for reconsideration of such order. The application for reconsideration shall be filed within 10 days after the filing of the decision.

 (f) No oral testimony shall be heard at the time of argument except by direction of the court.

 (2)(a) Appearance by Advanced Communication Technology: The court, in its discretion, may permit any party to appear by telephone or by a system providing two-way simultaneous audio-visual communication. Any party wanting to participate in any argument or hearing utilizing advanced communication technology shall file a written request with the judge presiding over the matter not later than the 5th day preceding the argument or hearing unless good cause can be shown for the request's late filing. Every request to appear by advanced communication technology shall contain the certification required by Rule L208.2(d). The party or parties appearing utilizing advanced communication technology shall bear the cost thereof, unless the court provides otherwise. Notwithstanding, any Judge of this court may adopt an alternate procedure governing appearances utilizing advanced communication technology.

 (b)  If a party choosing to appear utilizing advanced communication technology fails to call the court or is unavailable when called to participate in the call with the court, the court may pass the matter or may treat the failure to call or participate as a failure to appear.

 (3) Transcripts: The moving party in all post-trial or post-hearing motions or petitions shall, if the argument relates to the testimony presented, arrange for the transcription of so much of the testimony as may be required to resolve the issues presented.

Comment

 All motions, upon filing, except motions for continuances and to appear by advanced communication technology, must be supported by a statement of authority citing a statute, rule of court or case law in support of the requested relief. See Rules L208.2(c) and L303.1. A motion decided on the papers filed of record or on such briefs or memorandums of law as may be filed by the parties will normally be decided within 30 days of the date on which the response to the motion is filed. Motions certified as uncontested will normally be decided within a few days after the motion is filed. See Rule L208.2(d). A motion on which oral argument is held will normally not be decided for 90—120 days after the motion is filed. Notwithstanding, any party or a party's attorney has the right to appear before a Judge of this court and argue any motion. See Pa.R.C.P. No. 211.

 EXCEPT FOR THE ACTIONS OR PROCEEDINGS DESCRIBED IN PA.R.C.P. NO. 208.1(b)(1) AND THE MATTERS DESCRIBED IN PA.R.C.P. NO. 208.1(b)(2) EVERY APPLICATION REQUESTING A JUDGE TO ENTER AN ORDER OF COURT IS GOVERNED BY THE MOTION RULES PA.R.C.P. NOS. 208.1—208.4 AND L208.2(c)—208.3(a). IT DOES NOT MATTER WHETHER THE MOVING PARTY REFERS TO THE APPLICATION AS A ''PETITION,'' AS A ''MOTION,'' OR EVEN AS AN ''APPLICATION.'' THE MOTION RULES 208.1—208.4 APPLY.

 For example, Pa.R.C.P. No. 3279(a), governing deficiency judgments, provides that the proceeding shall be commenced ''by filing a petition'' and Pa.R.C.P. Nos. 2301 et seq., governing interpleader by defendants, permit the commencement of the proceeding upon ''petition'' of a defendant and sets forth what the ''petition for interpleader'' shall allege. These proceedings are not governed by the rules governing petitions (General and Rules 206.1 et seq.) because the term petition, as used in these rules, is defined to cover only an application to open a default judgment or judgment of non pros. Every other application, even if described as a petition in other rules comes within Rule 208.1(a)'s definition of motion.

Rule 208.3(b). Motion Procedure: When Response Required.

 A response along with a supporting brief or memorandum of law shall be filed by any party opposing a motion governed by Rule L208.3(a) within 20 days after service of the motion unless the time for filing the response is modified by court order or a Pennsylvania Rule of Court. If a response is not filed as provided above, the court may treat the motion as uncontested.

Comment

 A response shall be filed by any party opposing a motion governed by Rule 208.3(a) even if there are no disputed facts because the response is the opposing party's method of indicating opposition.

 Rules L210 and L303.1 govern the form of briefs and memorandums of law.

Rule L210. Form of Briefs and Memorandums of Law.

 (a) Briefs and Memorandums of Law shall be typewritten using a 12 pt font or greater, double spaced (except for quotations) on paper 8-1/2 inches by 11 inches in size, shall be bound at the top, not at the side, and shall contain:

 (1) A history of the case.

 (2) A statement of the question or questions involved.

 (3) A copy of, or reference to, the pertinent parts of any relevant document, report, recommendation, or order.

 (4) An argument with citation of the authority relied upon.

 (5) A short conclusion stating the precise relief sought.

 (b) The argument shall be divided into as many parts as there are questions involved

 (c) Memorandums of Law need not contain a history of the case.

 (d) The brief of the responding party need only contain the argument and conclusion, but the responding party may add a counter history of the case.

 (e) Briefs shall not exceed 20 pages in length without prior court approval. Memorandums of Law shall not exceed 10 pages.

 (f) All briefs and memorandums of law shall be filed with the prothonotary. A courtesy copy of the brief or memorandum of law is not required.

Comment

 Please see the Explanatory Comment following Rule L303.1 regarding the court's request that counsel provide copies of out of jurisdiction cases and other not readily available source material.

Rule L1028(c). Preliminary Objections.

 (1) Filing. All preliminary objections shall be filed with the prothonotary in the form prescribed in Pa.R.C.P. No. 204.1 and Rule L205.2(a). Preliminary Objections should not be filed with the court administrator. Courtesy copies for the court are not required. Preliminary Objections should not be filed in duplicate or by facsimile transmission, except in emergency circumstances. Preliminary Objections which assert facts not otherwise of record, including but not limited to an objection under Pa.R.C.P. No. 1028(a)(1), (5) or (6) shall be endorsed with a notice to plead pursuant to Pa.R.C.P. No. 1361.

 (2) The court will take no action until the preliminary objections have been filed of record, except in unusual circumstances.

 (3) Statement of applicable authority: All preliminary objections shall be supported by a statement of authority citing a statute, rule of court, or case law in support of the requested relief. The statement may be in the form of a brief or memorandum of law filed contemporaneously with the preliminary objections; or, if the preliminary objections do not raise complex legal or factual issues, in the body of the preliminary objections itself. If not so supported, then the preliminary objections shall be summarily disposed of unless counsel promptly requests permission for good cause to file the required brief or memorandum of law at a later date.

 (4) Amended Complaint, Answer or Reply brief: The opposing party shall file an amended complaint, answer or reply brief to the preliminary objections within 20 days after service of them unless the time for filing the response is modified by court order. If an amended complaint, answer or reply brief is not timely filed, then the preliminary objections shall be sustained unless counsel promptly requests permission for good cause to file the required amended complaint, answer or reply brief at a later date.

 (5) The court shall provide the opportunity for argument either by written briefs or orally in open court. If oral argument is held, the court, in its discretion, may decide the matter at argument or take the matter under advisement. If an order is entered without oral argument, the court shall hear oral argument on an application by any party for reconsideration of such order. The application for reconsideration shall be filed within 10 days after the filing of the decision.

 (6) No oral testimony shall be heard at the time of argument except by direction of the court.

 (7) In the event there are disputed issues of fact, the court will schedule the matter for hearing.

 (8)(a) Appearance by Advanced Communication Technology: The court, in its discretion, may permit any party to appear by telephone or by a system providing two-way simultaneous audio-visual communication. Any party wanting to participate in any argument or hearing utilizing advanced communication technology shall file a motion not later than the 5th day preceding the argument or hearing unless good cause can be shown for the late filing of the motion. Every request to appear by advanced communication technology shall contain the certification required by Rule L208.2(d). The party or parties appearing utilizing advanced communication technology shall bear the cost thereof, unless the court provides otherwise. Notwithstanding, any Judge of this court may adopt an alternate procedure governing appearances utilizing advanced communication technology.

 (b) If a party choosing to appear utilizing advanced communication technology fails to call the court or is unavailable when called to participate in the call with the court, the court may pass the matter or may treat the failure to call or participate as a failure to appear.

Comment

 All Preliminary Objections, upon filing, must be supported by a statement of authority citing a statute, rule of court, or case law in support of the requested relief. The statement may be in the form of a brief or memorandum of law filed contemporaneously with the preliminary objections; or, if the preliminary objections do not raise complex legal or factual issues, in the body of the preliminary objections itself. See Pa.R.C.P. No. 210, Rules L210 and L303.1 and the Explanatory Comment that follows. Preliminary Objections decided on the papers filed of record or on such briefs or memorandums of law as may be filed by the parties will normally be decided within 30 days of the date on which the answer or reply brief is filed. Preliminary Objections on which oral argument is held will normally not be decided for 90—120 days after the Preliminary Objections are filed. Notwithstanding, any party or a party's attorney has the right to appear before a Judge of this court and argue any motion. See Pa.R.C.P. No. 211.

 Failure to answer preliminary objections raising questions of fact and endorsed with a notice to plead constitutes an admission of the facts pleaded.

Rule L1034(a). Motion for Judgment on the Pleadings.

 (1) Filing. A motion for judgment on the pleadings shall be filed with the prothonotary in the form prescribed in Pa.R.C.P. No. 204.1 and Rule L205.2(a). It should not be filed with the court administrator. Courtesy copes for the court are not required. It should not be filed in duplicate or by facsimile transmission, except in emergency circumstances.

 (2) The court will take no action until the motion has been filed of record, except in unusual circumstances.

 (3) Statement of applicable authority. All Motions for Judgment on the Pleadings shall be supported by a brief or memorandum of law filed contemporaneously with the motion.

 (4) Reply brief: The opposing party shall file an answer or reply brief to the motion within 20 days after service of the motion unless the time for filing the response is modified by court order. If a response is not filed as provided above, the court may treat the motion as uncontested.

 (5) The court shall provide the opportunity for argument either by written briefs or orally in open court. If oral argument is held, the court, in its discretion, may decide the matter at argument or take the matter under advisement. If an order is entered without oral argument, the court shall hear oral argument on an application by any party for reconsideration of such order. The application for reconsideration shall be filed within 10 days after the filing of the decision.

 (6) No oral testimony shall be heard at the time of argument except by direction of the court.

 (7)(a) Appearance by Advanced Communication Technology: The court, in its discretion, may permit any party to appear by telephone or by a system providing two-way simultaneous audio-visual communication. Any party wanting to participate in any argument utilizing advanced communication technology shall file a motion not later than the 5th day preceding the argument unless good cause can be shown for the late filing of the motion. Every request to appear by advanced communication technology shall contain the certification required by Rule L208.2(d). The party or parties appearing utilizing advanced communication technology shall bear the cost thereof, unless the court provides otherwise. Notwithstanding, any Judge of this court may adopt an alternate procedure governing appearances utilizing advanced communication technology.

 (b) If a party choosing to appear utilizing advanced communication technology fails to call the court or is unavailable when called to participate in the call with the court, the court may pass the matter or may treat the failure to call or participate as a failure to appear.

Comment

 All Motions for Judgment on the Pleadings, upon filing, must be supported by a brief or memorandum of law filed contemporaneously with the motion. See Pa.R.C.P. No. 210, Rules L210 and L303.1 and the Explanatory Comment that follows. A Motion for Judgment on the Pleadings decided on the papers filed of record or on such briefs or memorandums of law as may be filed by the parties will normally be decided within 30 days of the date on which the reply brief is filed. A Motion for Judgment on the Pleadings on which oral argument is held will normally not be decided for 90—120 days after the motion is filed. Notwithstanding, any party or a party's attorney has the right to appear before a Judge of this court and argue any motion. See Pa.R.C.P. No. 211.

Rule L1035.2(a). Motion for Summary Judgment.

 The procedures for the disposition of a Motion for Summary Judgment are identical to the procedures for the disposition of a Motion for Judgment on the Pleadings described in Rule L1034(a) except that a Response in Opposition to the Motion for Summary Judgment shall be filed as provided in Pa.R.C.P. No. 1035.3.

[Pa.B. Doc. No. 12-1942. Filed for public inspection October 5, 2012, 9:00 a.m.]