WHEREAS, on December 30, 2023, the Pennsylvania Civil Procedural Rules Committee (the “Rules Committee”) announced in the Pennsylvania Bulletin that it is considering proposing to the Supreme Court of Pennsylvania amendments to Pa.R.C.P. 1023.1 (regarding scope, signing of documents, representations to the Court and violation) and Pa.R.C.P. 1023.4 (regarding sanctions) (collectively the “Proposed Amendments”);¹ and

WHEREAS the Rules Committee invited interested persons to submit comments, suggestions, or objections in writing to the Rules Committee by February 29, 2024; and WHEREAS the Proposed Amendments would eliminate sound judicial discretion and require that attorney's fees “shall” be awarded for any violation of Rule 1023.1; and

WHEREAS, the Rules Committee apparently is advancing the Proposed Amendments in order to prevent the “abuse of litigation;” however, the Proposed Amendments do not include any data, statistics, or even anecdotal evidence as to the incidence of Rule 1023.1 violations, the prevalence of “repeat offenders,” or that Pennsylvania Judges too often fail to impose adequate or sufficient sanctions for violations; and

WHEREAS, the Philadelphia Bar Association (“Association”) believes that sound judicial discretion to impose sanctions should not be replaced with mandatory sanctions in the absence of a strong showing through data or statistics of a compelling need to eliminate a Court's discretion to imposed sanctions, when appropriate; and

WHEREAS, the Association opposes and condemns any abuse of litigation; however, the Association is concerned that implementation of the Proposed Amendments' requirement for the mandatory imposition of attorney's fees as a sanction would serve as a financial incentive to pursue sanctions motions as a tactical device to gain an unfair advantage in a litigation proceeding, which would lead to an increase in such litigation; and

WHEREAS, Rule 1023.1's counterpart in the federal system, Rule 11, was amended in 1993 to remove the financial incentive to file Rule 11 motions; which amendment addressed the financial incentive to litigants to pursue sanctions motions as a tactical device that was the undesirable byproduct of the mandatory imposition of attorney's fees; and

WHEREAS, the Association's position in opposition to the Proposed Amendments is consistent with a prior resolution adopted by the Board of Governors on December 20, 2001 opposing pending legislation that had the stated purpose of reducing frivolous litigation, but that would have enacted draconian amendments to the Dragonetti Act, 42 Pa.C.S. § 8351, et seq., including mandating the imposition of sanctions for engaging in frivolous litigation; and

WHEREAS, the involvement of various Bar Associations in opposing the legislation was a factor that was considered in the adoption of the current Rule 1023.1, a Rule that mirrors Federal Rule 11, and grants the trial court discretion to award attorney's fees and costs and/or other appropriate sanctions consistent with the circumstances presented; and

WHEREAS, there are significant and important advantages that favor retaining sound judicial discretion in the imposition of attorney's fees for Rule 1023.1 violations:

1. The trial court should assess whether the most appropriate sanction is the imposition of attorney's fees, payment of a sum into court and/or a non-monetary sanction, such as mandatory attendance at continuing legal education programs focusing on the nature of the violation; and
2. In some cases, a stern rebuke from the court will serve “to deter repetition of the violative conduct by the offending person or comparable conduct by others similarly situated.” Pa.R.C.P. 1023.4(e)(1); and
3. Law students are routinely taught on the basis of the Federal Rules of Civil Procedure, including Rule 11, and since Rule 1023.1 is drawn directly from the text of Rule 11, it will reduce practitioner confusion to maintain the same sanctions regime as in the federal rule, as well as the ability to draw on the authority developed under that rule; and
4. If trial courts become obliged to impose attorney's fees as a sanction for every Rule 1023.1 violation, some courts may opt against finding any rule violation where an award of all reasonable attorney's fees exceeds what the court views as adequate to deter repetition of the misconduct at issue, particularly where the violation is minor or inconsequential or readily rectified; and
5. There may be instances where some combination of an award of a portion of the opposing party's attorney's fees, education, and/or payment of a penalty into the court may be deemed the most appropriate sanction; and
6. There may be instances where the most appropriate sanction for a Rule 1023.1 violation consists of the striking of the offensive litigation document or portions thereof, and therefore any award of attorney's fees and costs would be unnecessary; and
7. The imposition of attorney's fees and costs in smaller cases involving clients with limited resources and/or solo or small law firm lawyers with limited resources may effectively serve as a death knell for the litigation itself, a factor the trial court should be able to consider in fashioning the appropriate sanction; and
8. The imposition of such penalties may have the unintended consequence of “chilling” the development of legitimate, novel and/or creative legal theories; and

WHEREAS, while the Association does not believe that a need for the proposed changes to Rules 1023.1 and 1023.4 has been shown, if the Rules Committee perceives a need to encourage trial courts to impose more frequently sanctions for violations of Rule 1023.1, the Association believes that a change in the Comment to Rule 1023.4 should be tried first before judicial discretion is removed and a mandatory requirement is imposed.

NOW THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association urges the Pennsylvania Civil Procedural Rules Committee not to submit to the Supreme Court of Pennsylvania the amendments to Pa.R.C.P. 1023.1 and 1023.4, proposed on December 30, 2023, which proposed amendments would eliminate sound judicial discretion and require that attorneys fees “shall” be awarded for any violation of Rule 1023.1; and

BE IT FURTHER RESOLVED, that, if the Rules Committee perceives a need to encourage trial courts to impose more frequently sanctions for violations of Rule 1023.1, the Association urges the Civil Procedural Rules Committee to first recommend a change in the Comment to Rule 1023.4 before the Civil Procedural Rules Committee recommends imposing a mandatory sanctions requirement; and

BE IT FURTHER RESOLVED, that the Chancellor and/or the Chancellor's designee(s) shall communicate the Philadelphia Bar Association's position on the proposed changes to Rules 1023.1 and 1023.4 to the Pennsylvania Civil Procedural Rules Committee prior to the February 29, 2024 deadline and take such other action as necessary to effectuate these resolutions.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
Adopted: February 15, 2024

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¹ 53 Pa.B. 8211.