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Pa. Supreme Ct. promulgates Fed. Rule 11 equivalent |
by Robert T. Szostak, Esq.
The Pennsylvania Supreme Court, on April 22, 2002, rescinded Pa.R.C.P. 1023 and replaced it with Rule 1023.1 - 4 effective July 1, 2002. The new rule, which is the state equivalent of Federal Rule 11, regu1ates the �Scope. Signing of Documents.
Representations to the Court. Violation�. Rule 1023.1 mandates that �[by] signing, filing, submitting, or later advocating� any non-discovery �pleading, written motion and other paper directed to the Court,� an attorney or pro se party is certifying:
(1) Such document is not being presented for any improper purpose such as harassment, delay or needless increase in the cost of litigation;
(2) Any claims, defenses and other legal contentions in such document 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 factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after reasonable opportunity for further investigation or discovery; and
(4) Denials of factual allegations are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
Thus, every pleading, written motion and other paper directed to the court must have a proper purpose, be nonfrivolous, bear evidentiary support and contain only good faith denials. A court may impose appropriate sanctions on any attorneys, law firms, and parties for violation of the rule after notice and a reasonable opportunity to respond. ��[A]n appropriate sanction� is designed to prevent the abuse of litigation.�1 The attorneys or unrepresented parties must assure there is a basis in fact and in law for any claim or defense set forth in any document to which the rule applies. In short, attorneys and pro se litigants have the affirmative, nondelegable duty to make some prefiling inquiry into both the facts and the law when pursuing factual or legal theories. Such inquiry is to be judged by an objective standard of reasonableness under the circumstances on a case-by-case basis.
Rule 1023.2 mandates that any application for sanctions under the rule be made by a separate motion filed before the entry of final judgment describing the specific improper purpose, frivolous argument, lack of evidentiary support and/or unwarranted denials. The rule also contains a �safe harbor� requirement that obligates the moving party to provide written notice and demand to the signing attorney or pro se party that the challenged document is believed to violate the provisions of the rule and that, therefore, an application for sanctions may be filed if the challenged paper, claim, defense, contention, allegation or denial is not withdrawn or appropriately corrected within twenty-eight (28) days after service of such written demand. A court, sua sponte, may enter an order to show cause directing the signing attorney, law firm or party to show cause why the rule has not been violated.
Sanctions pursuant to Rule 1023.4 must not exceed that which is necessary to deter repetition of violative conduct or comparable conduct by others similarly situated. Sanctions may include nonmonetary directives (i.e., striking of offensive litigation document or portion thereof), a penalty paid into court or reasonable attorneys� fees, and other expenses incurred as a direct result of violation of the rule. Conversely, attorneys� fees and costs may be awarded if the non-moving party prevails in opposing the motion. Absent exceptional circumstances, a law firm must be held jointly responsible for violations committed by any of its partners, associates, and employees. Monetary sanctions may not be awarded against a represented party for violation of the rule; nor may such sanctions be awarded on the court�s initiative unless there is the appropriate order to show cause. Whenever a court imposes sanctions, it must describe the conduct determined to be in violation of the rule and explain the basis for any sanction imposed. The court, when imposing sanctions, may consider factors including scienter of the signing party or pro se litigant, whether there is a pattern or frequency of offensive conduct, the severity of the violation, other similar conduct in related litigation, intent to injure, the effect in time or expense on the litigation process, the extent of legal training of the responsible person and the amount of sanction needed to deter any person from repetition in the same case and to deter similar activity by other litigants.
Whenever a court reviews a motion for sanctions under the rule, the reviewing court should �avoid using the wisdom of hindsight.� The court should evaluate the signor�s conduct by �what was reasonable to believe at the time the pleading, motion or other paper was submitted.� Elements for determining whether the signor�s conduct was based on a reasonable inquiry include the time available for investigation, the degree of reliance on a client for information, the extent to which the challenged document is based on a plausible view of the law, or whether the signer depended on other counsel. Although a litigant may have a good faith basis to assert that a claim or defense is valid, the rule recognizes that discovery, formal or informal, may be necessary to gather and confirm the evidentiary support necessary for the claim or defense. In the absence thereof, the party advocating such claim or defense does so at his or her own peril.
1. Because the rule is intended to prevent �frivolous litigation,� it is anticipated that controversial Senate Bill 406 will not be endorsed by the Legislature.