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Administrative Order No. 31 Asbestos Litigation Pleadings

All cases which contain asbestos-related personal injury claims shall be filed in conformity with the requirements of this order, and all pleadings shall be in accordance with the provisions of this order. However, these procedures set forth below are permissive only and do not preclude the filing by any party in an asbestos case of traditional pleading which conform with the Pennsylvania Rules of Civil Procedure. This order does not preclude the commencement of an action by writ of summons in accordance with the Pennsylvania Rules of Civil Procedure. All pleadings subsequent to the writ shall, however, conform to this order.

1. Master Asbestos File

The prothonotary shall set up a master asbestos file at No. 89-90000-11-2. This docket number will establish as a depository for the filing of pleadings, motions, orders and other documents common to multiple asbestos personal injury cases. Once a pleading, motion, order or other document is filed in this docket and copies are produced to all other interested counsel involved in the asbestos litigation the pleading, motion, order or other document may be incorporated by reference either orally before the Court or within another properly filed pleading, motion, order or other documents. Any pleading filed under this order shall state on its face that it is part of an asbestos case.

2. Master Long Form Complaint

(a) Within 15 days of the entry of this order each plaintiff counsel shall designate or develop and file a master long form complaint. The master long form complaint shall set forth all theories of recovery and all liability allegations that the particular plaintiff counsel filing or designating the Complaint expects to advance in any asbestos case. To the greatest extent possible, plaintiff counsel should attempt to agree on a single master long form complaint subscribed to by each of them.

(b) The master long form complaint shall sufficiently identify each specific defendant against whom each plaintiff counsel expects to pursue claims for asbestos-related personal injuries, and to include the capacity in which each defendant will be sued.

(c) Upon approval of a master long form complaint by the Court, it shall be deemed the master complaint for all cases subsequently filed by that plaintiff counsel. Plaintiff counsel may subsequently file an amended master long form complaint which shall then become the designated master long form complaint for that plaintiff counsel, without leave of Court, provided that no objection is made by any party to the amendment within 30 days of its filing with the Court.

(d) Pursuant to this order all theories of recovery and all liability allegations, including allegations of successor or predecessor liability contained in any master long form complaint, shall be automatically deemed denied and at issue as to any and all defendants.

3. Short Form Complaint

A short form complaint containing the following information shall be filed and served in every asbestos case in accordance with Rules of this Court.

(a) The plaintiff(s) names, addresses, dates of birth, and dates of death (if applicable). As to the injured plaintiff(s), this information shall also include social security numbers, employer(s), occupation(s), date(s) of first exposure, date(s) of diagnosis, diagnosing physician(s), smoking history of plaintiff(s), asbestos-related condition(s) alleged, the identity of all plaintiff(s') dependents, a certification as to whether or not there has been or is any related asbestos litigation involving plaintiff (s), a statement as to whether or not a claim for lost wages is being asserted, and if so, wages for plaintiff(s') last full year of employment; and if appropriate, any unusual allegations or jurisdictional statements specific to the particular case, which are not included in the master long form complaint. If this is a death case, the statutory authority of the named plaintiff to bring suit and persons entitled to recover under the relevant statutes must be identified.

(b) To the extent possible, the name of each asbestos-containing product to which exposure is alleged by the plaintiff. Plaintiff may incorporate by reference the detailed description contained in the master long form complaint.

(c) With respect to each product identified in 3(b) above, the inclusive dates of exposure and each job site at which the exposure occurred.

(d) The caption shall contain a list of the specific defendants against whom the claim is being made. Any defendant not previously identified in the master long form complaint must be sufficiently identified in the short form complaint, to include the capacity in which the defendant is being sued. Counsel are reminded of the provisions of Pa.R.C.P. 1023(b) regarding certification of the content of pleadings, and are cautioned that no defendant may be included in a short form complaint unless, after reasonable inquiry, it is believed in good faith that there exists a valid cause of action against that defendant.

(e) Plaintiff(s) shall indicate in their short form complaint which counts of the master long form complaint they are incorporating by reference.

4. Responsive Pleadings by Defendants

(a) In response to each master long form complaint, the defendants shall collectively assert all affirmative defenses on behalf of all defendants. This shall be accomplished by the filing of a pleading known as "defendants' master new matter" to each master long form complaint. The defendants' new matter to each long form complaint shall be filed with the Court within 30 days of the filing of the master long form complaint to which it responds. The master new matter shall be deemed incorporated as a response to all short form complaints filed under each master long form complaint. Defendants need not file responses to the liability allegations of the master long form complaint, including allegations of citizenship, place of doing business, and predecessor or successor or amended at subsequent times by the filing of a supplemental defendants' master new matter to the master long form complaint.

(b) In response to any complaint, each defendant may file an "entry of appearance and answer to complaint" designating counsel representing each defendant and containing the name, address and telephone number of counsel, together with a statement incorporating the master new matter and the provisions of this order, whereby all allegations in the complaint are deemed denied. Without waiver of the right to file preliminary objections or contest questions of jurisdiction or service, the filing of any entry of appearance by a defendant shall be deemed to constitute a denial of all theories of recovery and all liability and damage allegations contained in the master long form complaint and/or the particular complaint and also an assertion of all defenses contained in the defendants' master new matter.

(c) In response to each short form complaint, a defendant may file preliminary objections if deemed appropriate in accordance with the Pennsylvania Rules of Civil Procedure. Any preliminary objections which raise the issues of personal jurisdiction, venue or service of the summons or complaint not filed within 90 days of service of the complaint upon each defendant is waived by the defendant.

(d) If a defendant does not file preliminary objections or if preliminary objections are ruled upon, a defendant may file a short form answer in response to the short form complaint or amended short form complaint, if applicable. The short form answer may specifically respond to the allegation of the identity of the particular defendant and may assert any additional affirmative defenses to the short form complaint. All other allegations of the short form complaint shall be automatically deemed denied and at issue by the filing of an "entry of appearance and answer to complaint" without the necessity of any specific averments in a short form answer.

(e) The filing of a short form answer is permissive in nature and there is no necessity or requirement that a short form answer be filed, as the entry of appearance and master affirmative defenses constitute a complete response to the short form and master long form complaint.

(f) Crossclaims for contribution and/or indemnity by and among defendants shall be implied. There is no need to assert crossclaims in a short form answer. All such crossclaims for contribution and/or indemnity, whether implied or pleaded, shall be automatically deemed denied without the necessity of filing a reply to crossclaims.

(g) All new matter, whether incorporated by the master new matter or specifically pleaded, shall be automatically deemed denied without the necessity of filing an answer or reply by plaintiff.

5. Joinder of Additional Defendants

(a) Original defendants in an action may join additional defendants without leave of Court within 90 days of service of the short form complaint. Once an additional defendant is joined by one original defendant in an action, that additional defendant shall be deemed joined by all original defendants in the action without the necessity of any further pleadings.

(b) Joinder of additional defendants shall be by means of a short form joinder complaint which shall consist of the following information:

(i) Identification, to include capacity of each additional defendant joined in the action.

(ii) A statement in the following form:

You are hereby joined as an additional defendant in the within action and it is asserted that you are alone liable to the plaintiff, jointly and severally liable to the plaintiff and/or liable to the original defendants for contribution and/or indemnity.

(iii) The legal theory upon which an additional defendant is being joined if other than alleged common law right to contribution or indemnity.

(c) A copy of the plaintiff's short form complaint shall be attached to the short form joinder complaint.

(d) The short form joinder complaint must be filed and served in accordance with the Pennsylvania Rules of Civil Procedure.

(e) A party joined as an additional defendant shall file an "entry of appearance and answer to complaint," in accordance with the provisions of paragraph 4(b) of this order, which shall constitute a denial of all liability and damage allegations of the joinder complaint and the plaintiff's complaint and shall also serve to assert all defenses set forth in the defendants' master new matter.

(f) In response to a short form joinder complaint, an additional defendant may file preliminary objections in accordance with the procedures set forth in paragraph 4(c) of this order.

(g) An additional defendant may file a short form answer to the joinder in accordance with the provisions of paragraph 4(d) of this order, which shall respond only to the allegations dealing with identification of the additional defendant, and may contain any affirmative defenses asserted by the additional defendant to the joinder complaint and the plaintiff's complaint.

(h) Crossclaims as to all other parties shall be implied and deemed denied without the necessity of asserting them in a short form answer.

(i) The filing of a short form answer to the joinder complaint is permissive in nature and not required.

(j) Additional defendants in an action may join other parties under the same procedures heretofore set out for the joinder of parties by original defendants.

6. Transitional Period

With respect to actions commenced prior to the implementation of this order wherein the pleadings are not closed, a defendant may respond to the complaint with a short form answer which shall respond only to the identity allegation and set forth affirmative defenses by way of new matter. All remaining allegations shall be deemed denied and at issue pursuant to this order. The response shall be identified as a short form answer and it may incorporate by reference the defendant's master new matter. In accordance with paragraph 4(g) of this order, all new matter, whether incorporated by the master new matter or specifically plead in a short form answer filed during the transition period, shall be automatically deemed denied without the necessity of filing an answer or reply by plaintiff. This order and the procedures stated therein shall have no effect on the rights of parties in prior pending actions wherein the pleadings are closed at the time this order is entered.