PENNSYLVANIA’S WRIT OF SUMMONS:
A LAWSUIT WITHOUT ALLEGATIONS?
A Writ of Summons is a unique procedural instrument to commence a lawsuit in the Commonwealth of Pennsylvania that all claims professionals should be aware of, and fully understand to appreciate its impact on the defense of insurance claims. To start, we must dispel the oft-repeated misunderstanding that a Writ of Summons does not mean the insured has not been sued. To the contrary, a Writ of Summons is one of two different mechanisms in Pennsylvania by which a plaintiff can initiate a lawsuit. The failure to recognize that the insured has been sued and appreciate the nuances of a Writ of Summons, may, at best, compromise a full and complete defense of the insured, or, at worst, lead to default judgment against the insured. This article will provide a brief overview of Pennsylvania’s Writ of Summons and highlight some of the key issues regarding its impact to insurance claims defense, and serve as an informative guide to assist in making informed decisions when a writ of summons is filed against an insured.
DEFINITION
Pa. R. Civ. P. 1007 (Commencement of Action) provides that an action may be commenced by filing with the prothonotary (1) a praecipe for a writ of summons, or (2) a complaint. The writ of summons must be substantially in the form set forth in Pa. R. Civ. P. 1351 requiring only the name of the litigants and their addresses. There are no factual allegations or theories of liability set forth in the Writ of Summons.
WRIT OF SUMMONS V. COMPLAINT
Unlike a Complaint, a Writ of Summons does not require, among other things, Plaintiff to state the basis for proper subject matter jurisdiction or venue, or to include the allegations setting forth a prima facie cause of action against the Defendant(s). The latter is a particularly noteworthy distinction for claims in the Court of Common Pleas of Pennsylvania as it is a fact pleading jurisdiction requiring Plaintiff to state with specificity, the material facts upon which the case of action is based. Commencing a lawsuit by way of writ of summons in lieu of a Complaint also allows Plaintiff to avoid having to include the remainder of the required contents of a pleading as set forth in Pa R. Civ. P. 1019, including, among other things, the requirement to specifically state the time, place and items of special damages, and to attach to the pleading any written agreement upon which any claim is based. In sum, a Writ of Summons is a powerful mechanism to bring a lawsuit without having to state why the lawsuit is properly filed and provide the alleged basis for what the party being sued did wrong.
RESPONDING TO A WRIT OF SUMMONS
A Writ of Summons should never be ignored, and a proper response is paramount. However, when and how to respond to a Writ of Summons depends on the circumstances.
Before discussing how the claims professional should consider responding, it is important to touch on the implications of an insured not fully appreciating that a Writ of Summons, properly filed, has commenced a lawsuit against the insured. Although sometimes served by a Sheriff, the insured may be inclined to ignore the Writ of Summons because of its outward simplicity. With proper notice of the lawsuit, Plaintiff is now permitted to serve additional documents on the insured via regular mail, including a Complaint. The implication of an insured failing to timely notice a Complaint in the mail is serious. Failure to recognize that a Complaint has been served may narrow the window of time in which a responsive pleading is required, compromising the insurance defense team’s ability to collect the necessary information to answer the factual allegations set forth in the Complaint or determine whether preliminary objections are warranted. At worst, a responsive pleading to the Complaint is not filed and Plaintiff seeks default judgment against the insured. Should default judgment be entered, all allegations advanced in the Complaint will be deemed admitted. It is important that insureds fully understand the significance of a Writ of Summons and the importance of timely reporting it to their insurance broker, insurance carrier, or defense counsel.
Assuming the claims professional is timely notified that its insured has been served with a Writ of Summons, to determine when and how to respond to the Writ of Summons requires a brief understanding as to the primary reasons why Plaintiff would choose to commence a lawsuit in this manner. To start, a Writ of Summons will toll the statute of limitations applicable to whatever cause(s) of action Plaintiff may eventually set forth in a Complaint. Therefore, Plaintiff’s counsel may elect to file a Writ of Summons if s/he (1) received late notice of a potential lawsuit and wants to preserve the legal remedies available to Plaintiff, (2) does not have enough factual specificity to draft a Complaint, or (3) wants to take limited pre-complaint discovery to obtain the identity of the full spectrum of Defendants to properly sue without compromising her/his formal discovery window. Depending on which of these reasons Plaintiff’s counsel has for filing the Writ of Summons, it may be an opportune time to engage with Plaintiff’s counsel to gain an understanding as to what the basis is for the lawsuit and to determine whether there is a realistic opportunity to resolve the dispute without engaging in the entire litigation process, including formal discovery.
In a sense, the initial response to a Writ of Summons is to contact Plaintiff’s counsel in a good-faith effort to evaluate whether an informal and amicable resolution can be reached. If it becomes clear that Plaintiff’s counsel does not have a strong basis for filing a Complaint or has no interest in a pre-complaint early resolution, then the proper response may be to require Plaintiff to file a Complaint with the required contents of a pleading as set forth in Pa R. Civ. P. 1019. This can be accomplished by filing a praecipe with the prothonotary to issue a Rule to File a Complaint as set forth in Pa. R. Civ. P. 1037(a). Once a Rule to File a Complaint is issued, Plaintiff will have twenty (20) days to file a Complaint or run the risk of having the Writ of Summons dismissed. Any Complaint filed by Plaintiff will need to include the requisite factually specificity, which will allow the Defendant(s) to (1) prepare a proper defense, (2) evaluate the strength of the claim, and (3) analyze what the exposure is to liability, if any. Without these factual allegations, Defendants are left to defend a lawsuit in the dark and run the risk of severely limiting their ability to conduct proper discovery to develop a factual record for a dispositive motion or to prepare for trial.
CONCLUSION
This article is not intended to be an exhaustive discussion covering all issues and nuances in responding to a Writ of Summons, and should not be used as a substitute for consultation with legal counsel. The main takeaways from this article should be that a Writ of Summons (1) commences a lawsuit, (2) should not be ignored, and (3) requires a proper response which depends on the circumstances and context for why the Writ of Summons was filed. While a Writ of Summons may be beneficial to the litigants by allowing the parties to discuss an early and amicable resolution without Plaintiff running the risk of exhausting the statute of limitations, it can also be abused to the disadvantage of a Defendant. If you have a claim in Pennsylvania, it is important that you take note of this unique procedural mechanism for filing a lawsuit and respond accordingly.
By: Frederick Brehm, Esquire and Michael J. Zettlemoyer, Esquire
#1959888v1 9000-01