PART IV Pretrial, Trial, and Posttrial

PART IV Pretrial, Trial, and Posttrial CHAPTER 14 Settlements, Dismissals, and Alternative Dispute Resolution SETTLEMENT OFFERS Pennsylvania prefers that the parties be able to reach a settlement of their civil actions without the need of the case going to trial. Obviously, this helps to alleviate some of the case load in the county courts that can cause a backlog of pending cases. This policy is reflected in the case law that prohibits offers of settlement or compromise to be admissible at a trial or hearing (Durant v. McKelvey, 187 Pa. Super. 461, 144 A.2d 527 (1987)). The reasoning behind the decision is simple: if offers of settlement or compromise would be admissible, it would lead to a lack of such offers being made by the parties. If you are representing a defendant it is also important to at least make an offer in order to preclude the imposition of delay damages. The plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, may also request that damages for delay be added to the amount of compensatory damages (Pa. R. Civ. P. 238(a)(1)). Damages for delay shall be awarded for the period of time from a date one year after the date that original process was served, up to the time of the award, verdict, or decision (Pa. R. Civ. P. 238(a)(2)). The period of time for which damages for delay is calculated shall exclude the period of time after which the defendant has made a written offer of settlement in a specified sum with prompt cash payment to the plaintiff or a structured settlement underwritten by a financially responsible entity, and continued that offer in effect for at least ninety (90) days or until commencement of trial, if the offer is not accepted and the plaintiff does not recover more than 125 percent of the amount offered, or during which period the plaintiff caused delay of the trial (Pa. R. Civ. P. 238(b)). The plaintiff must file a written motion for delay damages within ten (10) days after the verdict or notice of the decision (Pa. R. Civ. P. 238(c)). Any written notice must include the notice required pursuant to Pa. R. Civ. P. 238(c). The defendant may answer the motion within twenty (20) days of the filing of the motion (Pa. R. Civ. P. 238(c)(1)). The court may not rule on a motion for delay damages until all posttrial motions have been decided (Pa. R. Civ. P. 238(c)(3)(i)). In an action being heard by a board of arbitrators, the plaintiff must notify the defendant of the intention to request delay damages at least twenty (20) days prior to the hearing. The defendant who objects to the request must submit a statement within ten (10) days setting forth the objections and whether the defendant made an offer, including date and amount of offer, in writing. The parties must also state therein if any of the delay is attributable to the plaintiff. The board of arbitrators will then decide if the awarding of delay damages is appropriate (Pa. R. Civ. P. 238(d)(1)). 39 18429_PA_04_Part4_p039-046.indd 39 7/7/08 11:01:28 AM

40 PART IV Pretrial, Trial, and Posttrial DISMISSALS, CONSENT DECREES, AND DISTRIBUTION OF FUNDS A discontinuance is the exclusive method to voluntarily terminate an action, in whole or in part, by the plaintiff before commencement of the trial (Pa. R. Civ. P. 229(a)). A discontinuance may not be entered to less than all defendants, except upon written consent of all parties, without leave of court and after notice to all parties (Pa. R. Civ. P. 229(b)). The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice (Pa. R. Civ. P. 229(c)). Court approval of a discontinuance must be obtained in any action in which a minor is party (Pa. R. Civ. P. 2039(a)), an action for wrongful death in which a minor or incapacitated person has a beneficial interest (Pa. R. Civ. P. 2206(a)), an action in which an incapacitated person is a party (Pa. R. Civ. P. 2064), or in class actions (Pa. R. Civ. P. 1714(a)). A judgment of non pros is a judgment entered on motion of the defendant, involuntarily terminating an action on the ground of the plaintiff s delay in the prosecution of the action at any stage of the proceeding (Holliday v. Foster, 221 Pa. Super. 388, 292 A.2d 438 (1972)). Entry of non pros is proper when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptness, there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses. Prejudice, however, for purposes of entering non pros, is not limited to the death or absence of material witnesses, but may also attach where, because of delay, there is loss of documentary evidence or any substantial diminution in a party s ability to properly present its case (Neshaminy Constructors, Inc. v. Plymouth Township, 132 Cmwlth. Ct. 229, 572 A.2d 814 (1990)). The usual means of having a request of non pros brought to the attention of the court is through a petition and hearing thereon. Procedure for the entry of a judgment by non pros is governed by Pennsylvania Rule of Civil Procedure 237.1. No judgment of non pros for failure to file a complaint or by default for failure to plead can be entered by the prothonotary unless the praecipe for entry includes a written certification that written notice of the intent to file was mailed or delivered at least 10 days prior to the filing of the praecipe. (Pa. R. Civ. P. 237.1(2)(i)). However, where an action is not commenced by a complaint (either by writ of summons or an appeal from a decision of a district justice), the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros (Pa. R. Civ. P. 1037(a)). Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court s own motion (Pa. R. Civ. P. 218(a)). In addition, a voluntary nonsuit shall be the exclusive method of termination of an action, in whole or in part by the plaintiff during trial (Pa. R. Civ. P. 230(a)). A voluntary nonsuit can only be obtained by the plaintiff with court approval upon good cause shown and cannot be granted after the close of evidence. (Pa. R. Civ. P. 230(b)). A compulsory or involuntary nonsuit is ordered by the court upon the failure of the plaintiff to substantiate his or her claim by evidence. In an action involving only one plaintiff and one defendant, the court may enter nonsuit upon the defendant s motion if, at the close of plaintiff s case on liability, the plaintiff has failed to establish a right to relief. (Pa. R. Civ. P. 230.1(a)(1)). The court considers only the evidence presented by plaintiff and any evidence favorable to plaintiff presented by defendant prior to the close of plaintiff s case. (Pa. R. Civ. P. 230.1(a)(2)). A compulsory nonsuit can also be entered against any plaintiff in a suit involving multiple plaintiffs and defendants. Where there is more than one plaintiff, a nonsuit cannot be entered until the close of evidence for all the plaintiffs. (Pa. R. Civ. P. 230.1(b)). Nonsuit can be entered in favor of all defendants or any of the defendants if all defendants stipulate on the record that no evidence will be presented that would establish the liability of the moving defendant. (Pa. R. Civ. P. 230.1(c)). When a plaintiff has joined two or more defendants and the evidence does not justify a recovery against all of them, the court shall enter a nonsuit or direct a verdict in favor of any defendant not shown to be liable either jointly, severally or separately. Further, the action shall continue in order to determine which the remaining defendants are jointly, severally, or separately liable as though the defendants found to be liable were the only ones joined. As in other cases, the court may enter judgment, notwithstanding the verdict, in favor of or against any of such remaining defendants (Pa. R. Civ. P. 2232(d)). A discontinuance or nonsuit shall not affect the right of the defendant to proceed with a previously filed counterclaim (Pa. R. Civ. P. 232(a)). A counterclaim may not be terminated, in whole or in part, by the defendant, except by discontinuance or voluntary nonsuit; this is subject to conditions similar to those applicable the plaintiff (Pa. R. Civ. P. 232(b)). After a discontinuance or voluntary nonsuit, the plaintiff may commence a second action upon the same cause of action upon payment of the costs of the former action (Pa. R. Civ. P. 231(a)). A plaintiff may not commence a second action upon the same cause of action after the entry of a compulsory nonsuit (Pa. R. Civ. P. 231(b)). 18429_PA_04_Part4_p039-046.indd 40 7/7/08 11:01:29 AM

CHAPTER 15 Trial Techniques 41 CHAPTER 15 Trial Techniques PREPARATION OF WITNESSES A subpoena is an order of the court commanding a person to attend and testify at a particular time and place. It may also require the person to produce documents or things that are under the possession, custody, or control of that person (Pa. R. Civ. P. 234.1(a)). The subpoena may be used to command a person to attend and to produce documents or things only at a trial or hearing in an action or proceeding pending in the court or the taking of a deposition in an action or proceeding pending in the court (Pa. R. Civ. P. 234.1(b)). A court may compel the attendance of any person confined in jail or prison by issuing, upon motion, an order directed to the custodian of the person so confined to release the person to the custody of a sheriff or other appropriate agent (Pa. R. Civ. P. 234.2(d)). The subpoena is issued by the prothonotary at the request of a party (Pa. R. Civ. P. 234.2(a)). A copy of the subpoena may be served in the same manner as original service upon any adult in the commonwealth pursuant to Pa. R. Civ. P. 402(a), or by any form of mail requiring a return receipt, with postage prepaid and restricted delivery. Service is complete upon delivery of the mail to the defendant or any of the persons referred to in Pa. R. Civ. P. 402(a)(2) (Pa. R. Civ. P. 234.2(b)). Service of the subpoena may be made by ordinary mail and must contain two copies of the Notice and Acknowledgment prescribed by Pa. R. Civ. P. 234.9, and a self-addressed, stamped envelope (Pa. R. Civ. P. 234.2(c)). However, no bench warrant may be issued and no adjudication of contempt may be made for nonappearance of a witness served by ordinary mail, unless the witness has returned a signed acknowledgment (Pa. R. Civ. P. 234.5(a)). A party must also include with the subpoena, the fee for one day s attendance and round-trip mileage, which shall be tendered upon demand at the time the person is served with the subpoena. If a subpoena is served by mail, a check in the amount of one day s attendance and roundtrip mileage shall be enclosed with the subpoena (Pa. R. Civ. P. 234.2(c)). The manner of requiring a party to attend a hearing or trial is somewhat different from that of witnesses. A party may compel the attendance of another party or officer or managing agent thereof for trial or hearing by serving upon that party a notice to attend. The notice shall be served reasonably in advance of the date upon which attendance is required. The notice may also require the party to produce documents or things (Pa. R. Civ. P. 234.3(a)). If the attendance of another party is not required, a party may compel the production of documents or things by the other party by serving upon that party a notice to produce (Pa. R. Civ. P. 234.3(b)). Service of the notice to attend and a notice to produce is accomplished by leaving a copy, mailing or faxing a copy to the party at his or her address or to its attorney, of record (Pa. R. Civ. P. 440(a)). If there is no attorney of record, service is achieved within the county by leaving a copy for or mailing a copy to the party at the residence or place of business of that party (Pa. R. Civ. P. 440(a)). The party serving a subpoena or a notice to attend or a notice to produce may decide to excuse compliance with the same (Pa. R. Civ. P. 234.4(a)). In addition, a motion to quash a subpoena, notice to attend, or notice to produce may be filed by a party or by the person served. After a hearing, the court may make an order to protect a party or witness from unreasonable annoyance, embarrassment, oppression, burden, or expense (Pa. R. Civ. P. 234.4(b)) caused by the notices and subpoenas. If a witness fails to comply with a subpoena, the court may issue a bench warrant and, if the failure to comply is willful, may adjudge the witness to be in contempt, except when service of the subpoena is by mail (Pa. R. Civ. P. 234.5(a); If a party fails to comply with a subpoena, a notice to attend, or a notice to produce, the court may enter any order imposing sanctions authorized under Pa. R. Civ. P. 4019(c), which include issue preclusion. If the failure to comply is in bad faith, the court may impose on that party the reasonable expenses incurred by the opposing party by reason of such delay or bad faith, including attorney fees. If the failure is willful the court, after hearing, may adjudge the party to be in contempt (Pa. R. Civ. P. 234.5(b)). 18429_PA_04_Part4_p039-046.indd 41 7/7/08 11:01:29 AM

42 PART IV Pretrial, Trial, and Posttrial THE JURY PROCESS Parties to a civil action have a constitutional and a statutory right to a jury trial (Pa. Const. Art. I 6; 42 Pa. C. S. A. 5104(a)). The constitutional guarantee only applies in those cases where the matter of right to a jury trial was established at the time the constitution was enacted (William Goldman Theaters. Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 (1961)). There is no right to jury trial in those cases involving legislatively created causes of action, unless the legislation specifically gives that right (Zabka v. Allegheny County Health Dept., 130 Pitts. Leg. J. 309 (1982)). There is no right to a jury trial in equity cases (Rosenberg v. Rosenberg, 276 Pa. Super. 203, 419 A.2d 167 (1980)); however, the court on its own motion or upon the petition of any party, may submit to trial by jury any or all issues of fact, but the verdict of the jury is not binding upon the court (Pa. R. Civ. P. 1038.3). There is no right to trial by jury in divorce proceedings, but either party in a divorce or annulment may request a court to have a jury trial as to issues of fact, unless it would be prejudicial to public morals (23 Pa. C. S. A. 3322). In addition, support and custody proceedings are not subject to trial by jury, although in matters of determining paternity, the defendant does have a right to a jury trial (Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968)). In any action in which the right to jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than twenty (20) days after service of the last permissible pleading. The demand shall be made by endorsement on a pleading or by a separate writing (Pa. R. Civ. P. 1007.1(a)). Where an appeal is taken from an award in compulsory arbitration and a jury trial has not theretofore been demanded, the right to a jury trial shall be deemed waived unless the appellant endorses a demand for a jury trial on its appeal, or unless the appellee files and serves a written demand for a jury trial not later than ten (10) days after being served with the notice of appeal (Pa. R. Civ. P. 1007.1(b)). The request for jury trial is generally placed in the complaint; many times in the same paragraph as the request for relief. A demand for a trial by jury may not be withdrawn without the consent of all parties who have appeared in the action (Pa. R. Civ. P. 1007.1(c)(1)). A demand for a jury trial on behalf of a party shall be deemed withdrawn if, at the time a case is called for trial, that party without satisfactory excuse fails to appear, or appears but is not ready to proceed. Any other party appearing and ready who has not already demanded a trial a jury shall demand a trial by jury at that time or shall be deemed to have waived it (Pa. R. Civ. P. 1007.1(c)(2)). Even in cases where, historically, the parties would be entitled to a jury trial, the case may be referred to compulsory arbitration (42 Pa. C. S. A. 7361). Pennsylvania Rules of Civil Procedure 1301 et seq. govern compulsory arbitration. The deciding factor in determining whether a case is referred to compulsory arbitration depends upon the amount in controversy. The amount is determined by the county in which the action is pending. Every citizen of voting age is qualified to be a juror, unless unable to read, write, speak, and understand the English language or is incapable, by reason of mental or physical infirmity or has been convicted of a crime punishable by imprisonment for more than one year and has not been granted a pardon or amnesty therefrom (42 Pa. C. S. A. 4502). The jury selection list is composed of all voter registration lists in the county and may be supplemented by additional sources, such as telephone directories, tax assessment, or school census (42 Pa. C. S. A. 4521(a)). The civil jury will consist of twelve members. Each party shall be entitled to four peremptory challenges to prospective jurors, which are exercised in turn beginning with the plaintiff and following in the order in which the party was named or became a party to the action. In order to achieve a fair distribution of challenges, the court in any case may allow additional peremptory challenges and allocate them among the parties. Where there is more than one plaintiff or defendant or more than one additional defendant, the court may consider any one or more of such groups as a single party (Pa. R. Civ. P. 221). The peremptory challenge allows a party to strike off a juror without cause. In addition to peremptory challenges, a party has an unlimited number of challenges for cause. Grounds to challenge a juror for cause would include situations where a juror has expressed an opinion as to the case, has shown prejudice towards a party, or knows one of the parties. Subject to the requirements of due process of law and of the constitutional rights of the parties, the court may make and enforce rights and orders that (1) limit the number of witnesses whose testimony is similar or cumulative; (2) limit the number of attorneys representing the same party or group of parties who may actively participate in the trial; (3) regulate the length and number of addresses to the jury or to the court; and (4) regulate or exclude the public from the proceeding (Pa. R. Civ. P. 223). When a jury trial is expected to last more than two (2) days, the court, in its discretion, may permit jurors to take notes (Pa. R. Civ. P. 223.2). The Pennsylvania Rules of Evidence, adopted by the Supreme Court of Pennsylvania in 1998, apply to all trials, hearings and proceedings which began on or after October 1, 1998. Although the Pennsylvania rules closely follow the format of the Federal Rules, the guiding principle in creating state specific rules of evidence was to preserve the substance of Pennsylvania s common law of evidence. 18429_PA_04_Part4_p039-046.indd 42 7/7/08 11:01:30 AM

CHAPTER 16 Posttrial Practice 43 CHAPTER 16 Posttrial Practice POSTTRIAL MOTIONS Posttrial motions are not available in every action and may not be filed to orders directing partition (Pa. R. Civ. P. 1557); orders of support (Pa. R. Civ. P. 1910.11(k) and 1910.12(g)); orders of custody, partial custody, or visitation of children (Pa. R. Civ. P. 1915.10(b)); or a final decree of divorce based upon a master s report (Pa. R. Civ. P. 1920.55-2(e)). Posttrial relief may not be granted unless the grounds therefore, if then available, were raised in a pretrial proceeding or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof, or other appropriate method at trial. The motion shall state how the grounds were asserted in pretrial proceedings or at trial. Grounds not specified in the motion are deemed waived, unless leave is granted upon cause shown to specify additional grounds (Pa. R. Civ. P. 227.1(b)). The reasons for relief must be specified in the motion, along with the relief requested. A party may seek relief in the alternative (Pa. R. Civ. P. 227.1(d)). A party must file posttrial motions within ten (10) days after either the verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or notice of nonsuit or the filing of the decision or adjudication in the case of a trial without jury or an equity trial (Pa. R. Civ. P. 227.1(c)). If one party has filed a motion for posttrial relief, any other party may file a posttrial motion within ten (10) days after the filing of the first posttrial motion (Pa. R. Civ. P. 227.1(c)). A copy of the posttrial motion shall be promptly served upon every other party to the action as well as to the trial judge (Pa. R. Civ. P. 227.1(f)). THE PRELIMINARY STEPS IN THE APPEAL No order of a court may be appealed until it has been entered upon the appropriate docket in the lower court (Pa. R. App. P. 301(a)). With minor exceptions spelled out in the statute, any appeal must be taken within thirty (30) days (42 Pa. C. S. A. 557 1(b)). The time period applies to all appeals and is uniform throughout the state and the court system. Prior to appealing any order, it must first be determined what kind of order was entered by the court and to which court the appeal is to be made. As previously stated, appeals from the courts of common pleas can go to either commonwealth court or superior court, depending upon the case. Generally, those cases in which the commonwealth or a political subdivision is a party will go to the commonwealth court; criminal cases and civil cases involving only private parties will be appealed to the superior court. The Rules of Appellate Procedure set forth two types of appeals: interlocutory appeals and appeals from final orders. Interlocutory appeals are further divided into appeals as of right and by permission. Pursuant to Pa. R. App. P. 311, an interlocutory appeal in a civil case may be taken as of right from: 1. an order refusing to open, vacate, or strike off a judgment 2. an order confirming, modifying or dissolving, or refusing to confirm, modify or dissolve an attachment, custodianship, receivership, or similar matter affecting the possession or control of property except for attachments pursuant to the Pennsylvania Divorce Code 3. an order granting, continuing, modifying, refusing, or dissolving injunctions or refusing to dissolve or modify injunctions, except for those pursuant to the Pennsylvania Divorce Code 4. an order in a civil action or proceeding awarding a new trial 5. an order directing partition 6. an order that is made appealable by statute or general rule 7. an order in a civil action or proceeding sustaining the venue of the matter or jurisdiction over the person or over real or personal property if the plaintiff, petitioner, or other party benefitting from the order files of record within ten (10) days after the entry of the order an election that the order shall be deemed final or the court states in the order that a substantial issue of venue or jurisdiction is presented or 8. an order in a civil action or proceeding changing venue, transferring the matter to another court of 18429_PA_04_Part4_p039-046.indd 43 7/7/08 11:01:30 AM

44 PART IV Pretrial, Trial, and Posttrial coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles. Although a party may file an appeal to either the commonwealth court or the superior court and may do so as of right, unless the case falls within the Supreme Court s mandatory appellate jurisdiction, a party does not have a right to have its appeal heard by the Supreme Court. Not every case has an automatic right of appeal to the Supreme Court of Pennsylvania, and in those cases, the party files a Petition for Allowance of Appeal and a reproduced record (Pa. R. App. P. 1112). The Petition for Allowance of Appeal is governed by Pa. R. App. P. 1115 and shall contain the following: 1. A reference to the official and unofficial reports of the opinions delivered in the courts below, if any, and if reported, shall be attached to the petition. 2. The text of the order in question, or the portions sought to be reviewed, and the date of its entry in the appellate court below. 3. The questions presented for review, expressed in the terms and circumstances of the case, but without unnecessary detail. The statement of questions presented will be deemed to include every subsidiary question fairly comprised therein. Only the questions set forth in the petition, or fairly comprised therein, will ordinarily be considered by the court in the event an appeal is allowed. 4. A concise statement of the case containing the facts material to a consideration of the questions presented. 5. A concise statement of the reasons relied upon for allowance of an appeal. 6. There shall be appended to the petition a copy of any opinions delivered relating to the order sought to be reviewed, as well as all opinions of government units or lower courts in the case, and, if reference thereto is necessary to ascertain the grounds of the order, opinions in companion cases. 7. There shall be appended to the petition the verbatim texts of the pertinent provisions of constitutional provisions, statutes, ordinances, regulations or other similar enactments that the case involves. THE APPELLATE BRIEF The appellate brief and reproduced record are governed by Pennsylvania Rule of Appellate Procedure 2101 et seq. The appellant s brief consists of a statement of jurisdiction, a statement of the scope and standard of review, the order or other determination in question, a statement of the questions involved, the statement of the case, the summary of argument, the argument, a short conclusion stating the precise relief sought, and the opinions and pleadings that are relevant to the questions presented on appeal (Pa. R. App. P. 2111(a)). The brief of the appellee, except as otherwise prescribed by the appellate rules, need only contain a summary of the argument and the complete argument for the appellee. However, the appellee may add a counterstatement of the questions involved and a counterstatement of the case. Unless the appellee does so, or the brief of the appellee otherwise challenges the questions involved or the statement of the case as stated by appellant, it will be assumed the appellee is satisfied with them, or with such parts of them as remain unchallenged (Pa. R. App. P. 2112). The appellant may file a brief in reply to matters raised by the appellee s brief not previously raised in the appellant s brief, and if the appellee has cross-appealed, the appellee may file a similarly limited brief in reply to the response of the appellant to the issues presented by the cross-appeal (Pa. R. App. P. 2113(a)). A party also files a reproduced record of the pleadings and filings in the lower court along with the brief. The reproduced record, which can be either separate from or attached to the brief depending upon the size of the record, shall contain all relevant docket entries, any relevant related matter as well as any relevant portions of the pleadings, charge or findings, any other parts of the record to which the parties wish to direct the particular attention of the appellate court (Pa. R. App. P. 2152(a)). The schedule for filing briefs will be set by the prothonotary of the appellate court. It is based upon the time estimated when the case will be argued or submitted to the court (Pa. R. Civ. P. 2185(b)). If there is no date fixed by the prothonotary, the appellant s brief is to be filed within forty (40) days of the filing of the record of the lower court. The appellee must serve its brief within thirty (30) days after service of the appellant s brief. A reply brief must be filed within fourteen (14) days after service of the preceding brief (Pa. R. App. P. 2185(a)). Twenty-five (25) copies of the brief and reproduced record shall be filed with the prothonotary of the Supreme Court, fifteen (15) copies of the brief and eight (8) copies of the record to the prothonotary of the commonwealth court, and seven (7) copies to the prothonotary of the superior court. In addition, two (2) copies are to be served upon every party (Pa. R. App. P. 2187(a)). If an appellant fails to file the brief within the required time, the appellee may 18429_PA_04_Part4_p039-046.indd 44 7/7/08 11:01:31 AM

CHAPTER 16 Posttrial Practice 45 move for dismissal of the matter. If the appellee fails to file its brief in the required time, it will not be permitted to be heard at oral argument (Pa. R. App. P. No 2188). If the appeal is complicated or the reproduced record is large, it may be better to use one of the service companies that will produce the brief and/or reproduced record for use on appeal. Although the law office will have to prepare the substantive work, the service company will make sure that the brief conforms to the rules and will also file and serve the brief and/or reproduced record. FINAL PROCEDURES Once a judgment has been rendered in favor of a plaintiff, it is up to the plaintiff to collect on the judgment. Commonly, this will be accomplished by the defendant paying the amount of the judgment to the plaintiff. At that time, the plaintiff would file a praecipe with the prothonotary requesting that the docket be marked as satisfied and costs paid. However, it is not always that easy and further action may be necessary to enforce the judgment. The prothonotary is specifically authorized to enter judgment (42 Pa. C. S. A. 227.4), and must do so upon praecipe of a party upon a jury verdict, if no timely posttrial motions are filed (Pa. R. Civ. P. 227.4(1)), or when a court grants or denies relief, but does not itself enter judgment or orders the prothonotary to do so (Pa. R. Civ. P. 227.4(2)). It is also important to have the judgment placed on the judgment docket, which is also maintained at the prothonotary s office. This is to enable the prevailing party to maintain its rights to the loser s property against subsequent third parties who may also have a claim against the debtor s property. A judgment may be transferred to another county by filing of record a certified copy of all docket entries in the action and a certification of the amount of the judgment (Pa. R. Civ. P. 3002(a)). This would be necessary when the defendant has property located in a county that is different from that in which the judgment was initially rendered. A judgment is enforced by a writ of execution (Pa. R. Civ. P. 3102). The execution is commenced by filing a praecipe for writ of execution with the prothonotary of any county in which the judgment has been entered (Pa. R. Civ. P. 3103(a)). The writ of execution is served by the sheriff (Pa. R. Civ. P. 3108). In addition, the executing party may direct the sheriff to take manual possession or custody of any tangible personal property upon which he or she has made a levy. The sheriff may require a bond or security for the cost of retaining the property (Pa. R. Civ. P. 3109). All property, real or personal, of the judgment debtor, which is not exempt under Pa. R. Civ. P. 3123, is subject to execution (Mamlin v. Genoe, 340 Pa. 320, 17 A.2d 407 (1941)); even property owned by the judgment in the possession of a third party. If the judgment debtor still does not pay the amount of the judgment, the sheriff will hold a sale of the property under levy for the purposes of satisfying the judgment. There may be times when the party with the judgment does not know what property is owned by the debtor, and in those circumstances, the plaintiff, before or after the issuance of a writ of execution, may, for the purpose of discovery of assets of the defendant, take the testimony of any person, including a defendant or garnishee, upon oral examination or writ interrogatories. The rules governing such discovery are those governing pretrial discovery (Pa. R. Civ. P. 3117(a)). The plaintiff, may on petition of the plaintiff, after notice and hearing, seek the court to enter an order against any party or person to aid in the execution. The court may enter an order on any of following: 1. enjoining the negotiation, transfer, assignment, or other disposition of any security, document of title, pawn ticket, instrument, mortgage or document representing any property interest of the defendant subject to execution 2. enjoining the transfer, removal, conveyance, assignment, or other disposition of property of the defendant subject to execution 3. directing the defendant or any other party or person to take such action as the court may direct to preserve collateral security property of the defendant levied upon or attached, or any security interest levied upon or attached 4. directing the disclosure to the sheriff of the whereabouts of property of the defendant 5. directing that property of the defendant that has been removed from the county or concealed for the purpose of avoiding execution shall be delivered to the sheriff or made available for execution and 6. granting such other relief as may be deemed necessary and appropriate (Pa. R. Civ. P. 3118). The Petition and Notice is served pursuant to Pa. R. Civ. P. 3118(b). 18429_PA_04_Part4_p039-046.indd 45 7/7/08 11:01:31 AM

18429_PA_04_Part4_p039-046.indd 46 7/7/08 11:01:32 AM