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A plaintiff’s procedural error in notifying the defendant of the documentary evidence to be offered at trial was not grounds for a nonsuit, the Commonwealth Court has ruled. In Leckey v. Commonwealth, an en banc panel voted 5-2 to vacate and remand a trial court’s granting of a nonsuit in a case in which the plaintiff filed a pretrial statement listing the documents he intended to offer as evidence and stipulating maximum damages to $25,000 as per Pa.R.C.P. 1311.1, but did not title the documents “notice” and “stipulation” as specified in the rule. Pa.R.C.P. 1311.1 is a procedural rule that allows, in a trial that is an appeal from an arbitration award, for the admission of reports from a plaintiff’s expert witnesses while waiving their testimony in exchange for the plaintiff’s agreement to limit damages to $25,000. The rule requires that the stipulation be filed and served to the other parties at least 30 days before the scheduled trial date and that notice, along with a copy of each document, be submitted at least 20 days before the trial. The Commonwealth Court gave appellant Edward C. Leckey leeway in accordance with Pa.R.C.P. 126, which states, “The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” “In reaching this result, we note that, under Rule 126, this court is required to liberally construe Rule 1311.1 to secure a just, speedy and inexpensive determination,” the majority said in a footnote. “There is no justice in throwing Leckey out of court for a procedural defect that did not prejudice [the appellee].” President Judge Bonnie Brigance Leadbetter dissented and Judge Renee Cohn Jubelirer joined. “Our procedural rules are not suggestions, and if the courts adopt the attitude that they do not matter, I do not understand how we can expect the Bar to respect them,” wrote Leadbetter. According to the majority opinion written by Judge Rochelle S. Friedman, appellant Leckey filed a negligence action against PennDOT seeking damages for the cost of repairing his vehicle after an accident. The board of arbitrators decided in favor of PennDOT, and Leckey appealed to the trial court in Allegheny County. PennDOT requested that Leckey produce all documents he intended to offer as evidence at trial. Leckey failed to do so in a timely manner, and the trial court eventually issued an order demanding that he produce his documentary evidence. According to the majority opinion, on the same day that the trial court issued the order, Leckey filed a copy of his pretrial statement, which listed the documentary evidence he intended to offer at trial, as well as the names of the witnesses whose testimony he would present. The majority opinion said that the next day, PennDOT filed its own pretrial statement, which listed among its exhibits “all documents referred to by [Leckey's] Pretrial Statement.” Subsequently, according to the majority opinion, PennDOT filed another motion for sanctions demanding that Leckey produce the documents, but was denied by the trial court after Leckey asserted that he had already provided PennDOT with the documents and had said so in his answer to PennDOT’s discovery request. At a hearing before the trial court, the majority opinion said, PennDOT objected to the admission of Leckey’s documentary evidence saying he failed to follow Rule 1311.1. PennDOT admitted to receiving the documents but said it did not receive notice that Leckey intended to present the documents as evidence. The trial court sustained the objection and PennDOT moved for and was granted a nonsuit. Leckey appealed, saying the trial court erred in throwing out his case on a technicality. In the majority opinion, the Commonwealth Court pointed to the 1978 case Pomerantz v. Goldstein, in which the losing party filed a motion for a new trial instead of filing exceptions. The trial court dismissed the case and the Superior Court affirmed the ruling, but the Supreme Court reversed it under Rule 126 because the motion for a new trial included exceptions and was filed in a timely manner. The majority drew a parallel between Pomerantz and Leckey and said Leckey “substantially complied with Rule 1311.1″ because he served his pretrial statement 30 days before the trial date and because the pretrial statement stipulated damages to $25,000, notified PennDOT of the documents to be offered as evidence at trial and stated that no witnesses would be present to authenticate the documents. The majority also said Leckey had satisfied his obligations of notification when he informed PennDOT, in his answer to its request for documents, that it had already received copies of the documents. “As in Pomerantz, Leckey did all that Rule 1311.1 required except to title his documents in accordance with the rule,” Friedman wrote. In her dissent, Leadbetter said Leckey’s procedural errors were inexcusable because he’s a lawyer representing himself. “Rule 1311.1 is simple, clear and explicit. It provides a form that anyone, even a pro se litigant, can easily follow, and there is no excuse for an attorney to fail to do so,” she said. “Indeed, Mr. Leckey has suggested no reason why he chose to ignore the rule and adopt his own idea of the appropriate notice to give opposing counsel. Presumably, he simply didn’t bother to check the rule, but that is a lawyer’s job.” In addition to Leckey’s improper titling of the documents, Leadbetter took issue with his failure to provide PennDOT with the documents prior to being forced to when the defendant moved for sanctions. Attorney for the commonwealth Henry J. Salvi, of the state Attorney General’s Office in Pittsburgh, could not be reached at press time, nor could Leckey, who has a solo practice in Pittsburgh.

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