Missed Questions Flashcards
Is SOL raised in POs or New Matter? Explain.
New Matter
SOL is an affirmative defense.
A defendant may assert a CC against the plaintiff when . . . .
The D has any claim against the P; OR . . .
When the CC arises out of the same T/O as the claim being asserted by the P.
The D has ANY claim against the P.
A defendant may set forth in the answer under the heading counterclaim any cause of action that the defendant has against the plaintiff at the time of filing the answer. A factual or legal relationship is not required to assert a counterclaim.
In a Wrongful Death/Survival Act action, the action may be brought by . . .
The plaintiff in a Wrongful Death/Survival Act claim should be the personal representative of the estate of the decedent, who brings the action on behalf of those entitled to recover.
The parents of the decedent or the decedent’s spouse may not bring the action unless he is named as the personal representative of the estate. The personal representative of the estate makes the claim on the spouse’s behalf, and on behalf of any children or survivors of the deceased. Although a minor does have to be represented by a guardian when a party to litigation, a minor is not a proper party to such a claim. The minor is a beneficiary of the estate, but should not be a named party in the lawsuit.
In a negligence action, the plaintiff must serve original process on the defendant within ____________________ after the complaint is filed.
Explain
2 years.
Under the “equivalent period doctrine” the plaintiff must serve the defendant with process within a time period equivalent to the statute of limitations for that cause of action. Since the statute of limitations for a negligence claim is 2 years, the plaintiff has 2 years after starting suit to serve process on the defendant. Although in-state process becomes stale after 30 days and can no longer be served on the defendant in Pennsylvania, the plaintiff can easily have the complaint reinstated by the clerk of the court in order to make it valid for another 30 days. This can continue up until the end of the equivalent period. Process is valid for 90 days against out of state defendants, but after that time period the complaint can be reinstated as above. Although the plaintiff must file a certificate of merit within 60 days after filing a medical malpractice complaint, the rule for service is as expressed under the equivalent period doctrine.
T or F? An atty’s summary of a witness’ statement, made in anticipation of litigation, is discoverable under the Pennsylvania Rules of Civil Procedure without a showing of substantial need or undue hardship.
False
T or F? A report prepared for a party, in anticipation of litigation, by an investigator of an insurance company, is discoverable under the Pennsylvania Rules of Civil Procedure without a showing of substantial need or undue hardship.
True
A report prepared for a party, in anticipation of litigation by an insurance company would be discoverable. Pennsylvania’s discovery rules are broader than the Federal rules. In a Pennsylvania court a party can obtain discovery of work done in anticipation of litigation, excluding an attorney’s mental impressions, conclusions, opinions, memoranda, notes, summaries, legal research, and legal theories. Under Pennsylvania rules, a party can also discover the work product of legal representatives other than attorneys, with the exception of mental impressions, conclusions, or opinions as to the merit of the claim, strategy, or tactics, without a showing of substantial need or undue hardship,
In litigation in which a plaintiff has asserted a professional liability claim against the defendant, and after discovery is completed, the defendant files a motion for summary judgment. Will a trial judge in the Court of Common Pleas enter summary judgment in favor of the defendant when the expert reports submitted by the defendant are substantially more credible than the expert reports submitted by the plaintiff? Explain
No.
A judge will not enter a summary judgment in favor of the defendant even when the expert reports submitted by the defendant are substantially more credible than the expert reports submitted by the plaintiff. The court is not allowed to make determinations of credibility when deciding whether or not to grant a summary judgment.
In civil litigation filed in the CCP, does the right to a jury trial include the right to a unanimous verdict?
No.
In any civil case, a verdict rendered by at least five-sixths of the jury will have the same effect as a unanimous verdict.
How long after filing the last permissive pleading must a party demand a jury trial?
20 days
How many jurors in PA?
12
