292 Proposed recommendation no. 178; request for comment upon proposal of the Pennsylvania Bar Association for amendment of Rule 1023

Title 231--RULES OF
CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CH. 1000]

Proposed Recommendation No. 178; Request for Comment upon Proposal of the Pennsylvania Bar Association for Amendment of Rule 1023

[32 Pa.B. 1038]

   The Civil Procedural Rules Committee is requesting comment upon a proposal of the Pennsylvania Bar Association for the amendment of Rule of Civil Procedure 1023 as set forth herein. The Committee will consider the proposed amendment and any comments to the proposal at its March 2002 meeting prior to making any recommendation to the Supreme Court of Pennsylvania.

   All communications in reference to the proposal of the Pennsylvania Bar Association should be sent not later than March 8, 2002 to:

   Harold K. Don, Jr., Esquire
Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
or E-Mail to
[e-mail]

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 1000.  ACTIONS AT LAW

Subchapter A.  CIVIL ACTION

PLEADINGS

   (Editor's Note:  As part of this proposed rulemaking, Rule 1023 is proposed to be replaced. It currently appears in 231 Pa. Code pages 1000-11--1000-12, serial pages (255203)--(255204).)

Rule 1023.  Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions.

   (a)  Signature. Every pleading, written motion, and other paper directed to the court shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. This rule shall not be construed to suspend or modify the provisions of Rule 1024 or Rule 1029(e).

   (b)  Representations to Court. The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, motion, or other paper. By signing, filing, submitting, or later advocating such a document, the attorney or pro se party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances,--

   (1)  it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,

   (2)  the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law,

   (3)  the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

   (4)  the denials of factual allegations are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

   (c)  Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

   (1)  How Initiated.

   (A)  By Motion. An application for sanctions under this subdivision shall be made by motion, shall be made separately from other applications and shall describe the specific conduct alleged to violate subdivision (b). No such motion shall be filed unless it includes a certification that the applicant served written notice and demand to the attorney or pro se party who signed or filed the challenged pleading, motion or other paper. The certification shall have annexed a copy of that notice and demand, which shall identify with specificity each portion of the document which is believed to violate the provisions of this rule, set forth the basis for that belief with specificity, include a demand that the document or portion of the document, be withdrawn or appropriately corrected. An application for sanctions may be filed if the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected within 28 days after service of the written demand. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. A motion requesting sanctions under this rule shall be filed in the trial court before the entry of final judgment.

   (B)  On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm or party to show cause why it has not violated subdivision (b) with respect thereto.

   (2)  Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to that which is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, (i) directives of a nonmonetary nature, including the striking of the offensive litigation document or portion of the litigation document, (ii) an order to pay a penalty into court, or, (iii) if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation. Except in exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates and employees.

   (A)  Monetary sanctions may not be awarded against a represented party for violation of subdivision (b)(2).

   (B)  Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

   (3)  Order. When imposing sanctions, the court shall describe the conduct determined to be a violation of this subdivision and explain the basis for the sanction imposed.

   (d)  Inapplicability to Discovery. Subdivisions (a) through (c) do not apply to disclosures and discovery requests, responses, objections and discovery motions that are subject to the provisions of general rules.

   Official Note:  The court in its discretion at any stage of the proceedings may deny a motion for sanctions without hearing or argument.

   The grant or denial of relief (e.g., grant or denial of preliminary objections, motion for summary judgment or discovery application) does not, of itself, ordinarily warrant the imposition of sanctions against the party opposing or seeking the relief.

   The inclusion in the rule of a provision for ''an appropriate sanction'' is designed to prevent the abuse of litigation. The rule is not a fee shifting rule per se although the award of reasonable attorney's fees may be an appropriate sanction in a particular case.

   The provision requiring that a motion under this rule be filed before the entry of final judgment in the trial court is intended to carry out the objective of expeditious disposition and to eliminate piecemeal appeals. Where appropriate, such motions should be filed as soon as practicable after discovery of the violation.

   The following provisions of the Judicial Code, 42 Pa.C.S., provide additional relief from dilatory or frivolous proceedings: (1) Section 2503 relating to the right of participants to receive counsel fees and (2) Section 8351 et seq. relating to wrongful use of civil proceedings.

   (d)  Section 8355 of the Judicial Code, 42 Pa.C.S. § 8355, is suspended absolutely, in accordance with the provisions of the Constitution of 1968, Article V, Section 10(c).

   Section 8355 of the Judicial Code provides for the certification of pleadings, motions and other papers.

   See also Order of January 17, 1997, Civil Procedural Rules Docket No. 5, No. 269, suspending the following sections of the Health Care Services Malpractice Act, added by Act No. 1996-135; Section 813-A, 40 P. S. § 1301.813-A, providing for the signing and certification of pleadings, motions and other papers and Section 821-A, 40 P. S. § 1301.821-A, providing for the signing and certification of a complaint.

Source

   The provisions of this Rule 1023 adopted June 25, 1946, effective January 1, 1947; amended March 11, 1991, effective July 1, 1991, 21 Pa.B. 1274; amended August 11, 1997, effective December 1, 1997, 27 Pa.B. 4426. Immediately preceding text appears at serial page (212298).

[Pa.B. Doc. No. 02-292. Filed for public inspection February 22, 2002, 9:00 a.m.]