Pleadings

Question 1

What is PA’s pleading regime?

Answer 1

Fact-pleading: material facts on which a cause of action or defense is based shall be stated in a concise and summary form

Question 2

Complaint

Answer 2

Filed by a plaintiff and by a defendant against an additional defendant

Must begin with a notice to defend

Must include material facts

Question 3

Notice to Defend

Answer 3

Must appear at the beginning of a complaint

Explains the consequences if the defendant fails to take action in response to the complaint, including possibility of judgment being entered against defendant

Provides address adn phone number of office to contact for those who can’t afford an attorney

Question 4

How to formatt a complaint

Answer 4

Must be divided into consecutively numbered paragraphse, each of which shall contain one material allegation

Question 5

General versus Specific Averments in a Complaint

Answer 5

Fraud or mistake must be averred with particularity

Conditions of the mind like knowledge, intent, and malice may be averred generally

Time, place, and items of specific damages shall be “specifically stated”

May plead “performance or occurrence of conditions precedent” generally–but denials of such shall be made specifically and with particularity

Question 6

Multiple Causes of Action/ Joinder of Claims

Answer 6

Plaintiffs may state several causes of action in one complaint

Plaintiffs MUST state all causes of action against the same defendnat arisig out of a common transaction or occurrance; if they do not it will be waived

Each COA must be stated in a separate count

Question 7

Damage Averments

Answer 7

Any pleading demanding relief must specify the relief sought, but if damages are not liquidated (susceptible to precise calculation), teh pleader shall not claim and specific sum

Question 8

Addressing Arbitration

Answer 8

If the county has a compulsory arbitration rule (most if not all do), the plaintiff shall state whether the amount does or does not exceed the jurisdictional amount requiring arbitration referral

Court may order discovery or hold a hearing to determine the amount in controversy and whether the matter is subject to compulsory arbitration

Question 9

Pleadings Based on Agreements (i.e. contract)

Answer 9

If a claim (or defense) is based on an agreement, the pleader must state whether the agreement is written or oral

If it is based on a writing then the pleader must either: (1) attach a copy of the writing, or (2) explain why a copy is not available and set forth the substance of the writing

Question 10

Verification

Answer 10

Every pleading containing an averment of fact that is not of record or containing a denail of a fact shall state that the averment or denial is true upon the signer’s personal knowledge or information and belief and shall be verified

Verified: supported by oath or affirmation or made subject to PA criminal penalties relating to unsword falsification to authorities

Question 11

Responsive Pleadings: Responding to Averments

Answer 11

A responsive pleading shall admit or deny each averment of fact

Conclusions of law need not be admitted or denied

If not specifically denied averments are deemed admited

Unlike FRCP cannot respond simply by stating “denied,” need to state your version of the fact as well

• Exception: general denails allowed in cases seeking monetary relief for bodily injury, death, or property damages
  
  • BUT this exception does not apply to averments related to: the identity of the person by whom a material act was committed; the agency or employment of such a person; or the ownership, possesssion, or control of the property to instrumentality involved–all of which must be denied specifically

Question 12

Pleading Affirmative Defenses

Answer 12

Affirmative defenses shall be pleaded under a heading entitled “New Matter,” which follows the defendatnt’s numbered responses to the averments in the complaint

If not pleaded in new matter (or raised by preliminary objection, if appropriate) most affirmative defenses are waived.

The following affirmative defenses are not waived is not pleaded in new matter:

• assumption of risk
• comparative negligence
• contributory negligence
• failure to state a claim
• failure to join an indispensable party
• failure to state a legal defense to a claim
• failure to exhaust a statutory remedy
• any other nonwaiveable defense or objection

Question 13

What goes in New Matter?

Answer 13

(1) Affirmative defenses
(2) Any material facts that are not merely denials of averments in the proceeding pleading

Then plaintiff must reply to the facts in New Matter, provided that the New Matter was properly endorsed with a notice to plead

Question 14

When do all pleadings after the complaint need to be filed?

Answer 14

Within 20 days of the preceding pleading

No pleading need be filed unless the preceding pleading contains a notice to defense and is endorsed with a notice to plead

Question 15

Reply to New Matter

Answer 15

If defendant’s New Matter is properly endorsed with a Notice to Please, and incldues averments of fact requiring a response, teh plaintiff will have to file a reply

Question 16

Counterclaims

Answer 16

In PA all counterclaims are permissive

Defendant may set forth in the answer under the heading “Counterclaim” any cause of action cognizable in a civil action the the defendant has against the plaintiff at the time the aciton was filed

Unlike FRCP defendnat cant elect to file a separate lawsuit rather than assert a counterclaim, even if the claim is related to the initial lawsuit

• In order to prevent piecemeal litigation, PA courts have wide power to consolidate, coordinate, sever, and stay actions in the interest of judicial economy

Question 17

PA Courts Power to Consolidate

Answer 17

In order to prevent piecemeal litigation, PA courts have wide power to consolidate, coordinate, sever, and stay actions in the interest of judicial economy

Question 18

Cross-Claims

Answer 18

In its answer or reply, a party may set forth the following cross-claims agasint any other party to the action:

• The other party is solely liable on the underlying cause of action; and/or
• The other party is liable with or to the cross-claimany on any cause of action arising out of the same transaction or occurrance or series of transactions or occurrances upon which the underlying cause of action is based

Question 19

PA Rule 11

Answer 19

Substantially the same as Federal Rule 11

Applies to every “pleading, written motion, and other paper directed to the court”

Does not apply to discovery responses

Violations can lead to sanction, some of which are different under PA law:

• Party against whom the motion was made has 28 days, as opposed to 21; and
• Sanctions may also include the striking of documents, in part or in their entirety

Question 20

Amendment

Answer 20

Leave to amend pleadings is liberally granted, and will be granted when it does not unduly prejudice or surprise the opposing party

A party may amend as a matter of right within 20 days of service of a preliminary objection

An amendment introducing a new cause of action will not be permitted after the statute of limitations has fun; nor will an amendmen to add an entirely new party

• But if the amendment is to correct the name of a party that was sued under the wrong designation, it will generally be allowed

Question 21

Motion for Judgment on the Pleadings

Answer 21

Standard is identical to the summary judgment standard

A motion for judgment on the pleadings should eb granted only where the pleadings demonstrate that there is (1) no genuine issue of material fact; and (2) the moving party is entiteled to judgment as a matter of law

Only well pleaded, admitted facts are considered; not legal conclusions; and may not consider inadmissible evidence

Question 22

Default Judgment

Answer 22

Defendant’s deadline to respond by answer or preliminary objection is 20 days after service of the complain

If the D fails to respond, to set the stage for a default judment, the plaintiff must serve a notice of intent to take default judgment, which gives 10 days notice

If D still does not response, the P can file a praecipe with the prothonotary for entering a default judgment (must include certification of service of the notice of intent to take the default judgment and copy of the notice

Question 23

Default Judgment: Amount of Damages

Answer 23

If the damages are a sum certain or can be calculated to become a sum certain, as with a set sum plus interest at a specified rate, the prothonotary will enter judgment in that amount

If not, the damages will be assessed at a trial devoted solely to that issue

Question 24

Default Judgment: Injunctions

Answer 24

If the plaintiff has requested an injunction or other equitable relief, the court will enter an appropriate order adn may take testimony to assist in its decision and framing the order

Question 25

Attacking Default Judgments

Answer 25

After a default judgment is entered, the defendant will sometimes seek relief from the judgment, through a petition to open or motion to strike the judgment

Motion to strike: a judgment can be striken, or simply wiped away as invalid, when a defect clearly appears of record; this motion considers only the record, not additional evidence

Petition to Open: if no obvious defect appears of record, the D would fire a petition to open the judment

Question 26

Petition to Open a Default Judgment

Answer 26

Petition must include a verified copy of the proposed answer

Must establish three elements:

(1) D promptly filed a petition to open the default judgment
(2) D pleaded a meritorious defense to the allegations in the complaint, which requires the defense to be set forth in precise, specific, and clear terms; the defense must be legally valid so that if proven at trial it would justify relief
(3) D must prove a reasonable excuse or explanation for failing to file a responsive pleading–this depends on the facts, but excusable negligence must establish an oversight rather than a deliverate decision not to defense

**If the petition is filed within 10 days of the entry of the judgment on the docket, the judgment shall be opened provided the proposed answer states a meritorious defense