Rule 40 Scheduling Cases for Trial

Scheduling Cases for Trial. The court must give priority to actions entitled to priority by a Commonwealth statute or by court rules governing time standards.

Continuances. For good cause, the court may continue an action at any stage of the proceedings on just terms. When a continuance is granted due to the absence of evidence, it is to be at the cost of the party requesting the continuance, unless the court orders otherwise.

Memorandum.

(1) When a Case is at Issue. When a case is at issue, a party may serve and file an at-issue memorandum stating:

(A) the title and number of the case;

(B) the nature of the case;

(C) that all necessary parties have been served with process or appeared;

(D) whether the case is entitled to a legal preference and, if so, a citation to the section of the code or statute granting the preference;

(E) whether a jury is demanded;

(F) the time estimated for the trial;

(G) the time estimated for discovery;

(H) whether a pre-trial conference is requested; and

(I) the names, addresses and telephone numbers of each party, or, if the party is represented by an attorney, their attorney.

(2) Requirement for Case to Become at Issue.

(A) A case is at issue if it has been on file for 6 months or more, notwithstanding any counterclaim, cross-claim, or third party complaint that is not at issue.

(B) The court’s power to order a severance of a counterclaim, cross-claim, or third-party complaint is not affected by Rule 40.

(3) Filing of Memorandum. The memorandum must be filed and served in accordance with the requirements of Rule 7. A party not in agreement with the information or estimates given in an at-issue memorandum must, within 10 days after the service thereof, serve and file a memorandum on the party’s behalf. Motion for Continuance Based on Absence of Material Witness, Document, Thing, or Other Evidence; Affidavit or Declaration. The court may entertain a motion for a continuance based on the absence of a material witness, document, thing or other evidence if it is supported by an affidavit or a declaration which states the following:

(1) the name of the witness, or the document thing, or other evidence, and, if known, the witness’ residence; and

(2) the substance of the witness’ expected testimony and the basis for the expectation or the substance of the other document, thing, or other evidence; and

(3) that the affiant or declarant believes the statements in the affidavit or declaration to be true; and

(4) that a subpoena has been served upon the witness under Rule 45; and

(5) if on the date of trial in open court, how and why the continuance will enable the party to secure the presence of the witness; and

(6) all other efforts that have been made to procure the witness’s attendance or deposition, or the document, thing or other evidence.

Objections. A party objecting to a continuance may not contradict the statement of the substance of the absent witness’s expected testimony or the substance of the absent document, thing, or other evidence, but may contradict any other statement in the affidavit or declaration.

Granting or Denying a Motion for Continuance. The court may deny the motion if the adverse party admits that the absent witness would, if present, testify as stated in the affidavit or declaration, and agrees that the affidavit or declaration be received as evidence at the trial and considered as though the witness were present and so testified. The grant or denial of a continuance is discretionary in all cases, regardless of compliance with Rule 40.

Stipulations. Stipulations affecting the scheduling of trials, except stipulations recorded in open court must be in writing, signed by all parties, and filed with the court, unless good cause exists for the court to decide otherwise.

Settlement. The parties must promptly notify the court of any settlement or other agreed-upon disposition of a matter which has been set for trial.