§ Rule 1036 Dismissal upon Affidavit of Noninvolvement

Rule 1036. Dismissal upon Affidavit of Noninvolvement

(a) As used in this rule, “action” means an action subject to an Act of Assembly which provides for dismissal of the action as to a party based upon an affidavit of noninvolvement.

Note: Actions pursuant to the following Acts of Assembly are within the scope of this rule: Section 7502 of the Judicial Code, 42 Pa.C.S. 7502, an action for negligence against a construction design professional and Section 506 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. § 1303.506, a medical professional liability action naming a health care provider as a defendant.

(b) Any party seeking dismissal of the action shall file a motion to dismiss which shall have attached thereto the affidavit of noninvolvement.

(d) Upon reviewing the motion and any response thereto and determining the existence of a prima facie case for dismissal of the action as to a party, the court shall enter an order

(1) allowing any party opposing the motion

(i) to conduct limited discovery directed solely to the issue of involvement of any party seeking dismissal and

(ii) prior to the disposition of the motion, to file affidavits, depositions and such other evidentiary materials as would permit a jury to find that any party seeking dismissal was involved in any activities upon which the claim is based, and

(2) scheduling an argument to decide the motion.

(e) The argument shall be limited to the sole issue of whether any party opposing the motion has produced evidence which, when considered in a light most favorable to that party, would require the issue of the involvement of any party seeking dismissal to be submitted to a jury.