Rule 4001. Scope. Definitions.
(a) The rules of this chapter apply to any civil action or proceeding brought in or appealed to any court which is subject to these rules including any action pursuant to the Eminent Domain Code of 1964 or the Municipal Claims Act of 1923.
Rule 1701(b)(4) of the Pennsylvania Rules of Appellate Procedure permits a lower court to authorize the taking of depositions or the preservation of testimony in the interest of justice after an appeal is taken. The procedure under these rules is applicable to such depositions.
See Rule 1930.5 governing discovery in domestic relations matters and specifying when leave of court is and is not required. See also Rules 1910.9 and 1915.5(c) governing discovery in actions for support and custody, respectively.
(b) As used in this chapter, unless the context clearly indicates otherwise,
court means the court in which the action is pending;
deposition includes a deposition upon written
trial includes a hearing before arbitrators or viewers.
These rules apply to an action pending in the court of common pleas and referred to compulsory arbitration under Section 7361 of the Judicial Code, 42 Pa.C.S. § 7361.
(c) Subject to the provisions of this chapter, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery, or for preparation of pleadings, or for preparation or trial of a case, or for use at a hearing upon petition, motion or rule, or for any combination of the foregoing purposes.
See Rule 4003.8 governing pre-complaint discovery.
(d) Subject to the provisions of this chapter, any party may obtain discovery by one or more of the following methods: depositions upon oral examination (Rule 4007.1) or written interrogatories (Rule 4004); written interrogatories to a party (Rule 4005); production of documents and things and entry for inspection and other purposes (Rule 4009); physical and mental examinations (Rule 4010); and requests for admission (Rule 4014).
Under subdivision (d), for example, a party may discover documents and things in the possession of a person not a party by means of a subpoena duces tecum issued in connection with a deposition upon oral examination under Rule 4007.1, a subpoena for the production of documents and things under Rule 4009.21 et seq., and an independent action.
The amendments to Rule 4001 are designed to achieve three principal purposes. First, to designate specifically the actions and proceedings subject to the Rules. Second, to designate the purposes of a deposition and of discovery. Third, to provide at the outset as does amended Fed. R.Civ.P. 26(a), a catalogue of the armory of discovery procedures available. (Rule 4001(d))
Before the amendment, Rule 4001(a) stated a scope which included any civil action or proceeding at law or in equity brought in or appealed to any court which is subject to these rules. Taken literally, these words embrace every conceivable form of action. They are unchanged by these amendments. However, the application of the Rules to eminent domain and to divorce, custody and support proceedings was not uniform. The amendments clarify the application of the Rules to those proceedings.
Viewers proceedings to assess damages in eminent domain actions were historically brought in the Courts of Quarter Sessions, which were courts not originally subject to the Rules of Civil Procedure. Even after the enactment of the Eminent Domain Code of 1963, vesting jurisdiction over eminent domain proceedings in the unified Common Pleas Court, Sec. 703(2) of the Eminent Domain Code provided only for limited discovery of experts valuation reports on appeal to the Common Pleas, provided they had not already testified before the viewers. The Code made no provision whatsoever for discovery for use in the initial proceedings before viewers. The viewers proceedings were the discovery proceedings. This often left litigants at a disadvantage before the viewers, in some cases leading to needless appeals.
The amendment to Rule 4001(a) makes clear that the entire chapter of deposition and discovery proceedings applies at all stages of an eminent domain action.
Trial is defined in Rule 4001(b) specifically to include proceedings before viewers and also arbitrators.
Control of the deposition and discovery procedure at the viewers and arbitrators stage will remain in the court. The viewers and arbitrators are not empowered to grant protective orders, impose sanctions or to take other action authorized by the Rules. The court in its order appointing viewers might consider establishing a cut-off date for completion of discovery so that the viewers hearings will not be unduly delayed. Or the viewers could set a cut-off date for hearing to afford opportunity for discovery.
In the Orphans Court Division, Supreme Court Orphans Court Rule 3.6 provides that the local Orphans Courts by general rule or special order may prescribe the practice relating to depositions, discovery, production of documents, and perpetuation of testimony. To the extent not provided by general rule or special order, the Orphans Court Rule provides that the practice relating to such matters shall conform to the practice in the trial or civil division of the local Court of Common Pleas. As a result, some courts have adopted local rules which require leave of court in all Orphans Court Division cases. Others limit discovery in varying degrees. Others have adopted no local rules, thereby incorporating these Rules in toto. Under a unified court system and statewide practice, this lack of uniformity is undesirable. However, the Orphans Court Rules are independent and cannot be regulated by the Civil Procedural Rules.
Where leave of court is required, application for leave is required in each individual proceeding. A local rule authorizing discovery in all cases without an individual application and a hearing would be inconsistent with the Rule. Further, it would be inconsistent with statewide practice and would permit non-uniformity of practice in the important area of discovery and depositions.
Leave of court is further discussed in Rule 4007.2.
The Committee considered but rejected the radical suggestion that all depositions and discovery, except depositions of aged, infirm, or going witnesses, should require leave of court. While this suggestion would undoubtedly limit the possibility of abusive discovery, it would add enormously to the burden on court and counsel. Multiple petitions, answers, briefs and hearings would be required in practically every case. This is unjustifiable. The courts, through protective orders and sanctions, should be able to control abuse of the discovery process. The limited use of leave of court in specific actions strikes a more equitable balance.
Sub-divisions (c) and (d), which state the permissible purposes of depositions and discovery, and list the procedural devices available, effect no change. They consolidate stylistically the existing practice.
Rule of Civil Procedure 4001(a) was amended in 1997 to eliminate reference to discovery in the domestic relations actions of support, custody of minor children and divorce or annulment of marriage. Discovery in those actions is governed by Rule 1930.5.
The provisions of this Rule 4001 amended November 20, 1978, effective April 16, 1979, 8 Pa.B. 3551; amended June 27, 1980, effective July 1, 1980, 10 Pa.B. 2957; amended December 27, 1995, effective January 1, 1996, 26 Pa.B. 227; amended May 5, 1997, effective July 1, 1997, 27 Pa.B. 2732; amended March 19, 1999, effective July 1, 1999, 29 Pa.B. 1715; amended December 1, 1999, effective January 1, 2000, 29 Pa.B. 6327; amended December 16, 2003, effective July 1, 2004, 34 Pa.B. 9; amended September 20, 2007, effective November 1, 2007, 37 Pa.B. 5374. Immediately preceding text appears at serial pages (302589) to (302590) and (262135) to (262136).
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