A novel coronavirus (COVID-19) has taken the world by storm: an understatement.

So too, our courts have necessarily—due to the health and safety implications—reacted conscientiously.

While it appears we are on the verge of Pennsylvania's "reopening," the prospect of ongoing practice is uncertain and thus full of pitfalls.

Indeed, our new normalcy—both personally and professionally—remains to be seen.

During this pandemic, the nonuniform (i.e., county-by-county) nature of Pennsylvania's court systems and rules of practice were—and are—glaring.

Throughout our first 10 weeks in lockdown, we have all seen a slew of administrative orders from the Pennsylvania Supreme Court down to Magisterial District Courts concerning the tolling of deadlines, temporary stay of jury trials, Zoom or telehearings in place of in-person hearings, and the like. While the Supreme Court seemed to have initially taken charge, even that global administrative order left much ambiguity if not sub-authority for county court administrators. Now that the Supreme Court has ended its declaration of judicial emergency (e.g., global pandemic administrative orders), the counties stand alone.

But, what comes next?

Nothing but confusion and problems are anticipated. Confusion, problems, lack of clarity, disruption and the lack of uniformity will no doubt engender an increase in (already increasing) legal malpractice claims.

This, is coupled with firms'—both smallest and largest—uncertain financial future is a disaster in the future making for the attorney professional merely trying to do the best she can under the "new normal."

What to do?

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.

The court at every stage of any such action or proceeding may disregard any error or defect of procedure that does not affect the substantial rights of the parties.

A party's complete noncompliance with the rules is not excused, as in Deek Investment v. Murray, 157 A.3d 491 (Pa. Super. 2017).

The application of liberality is discretionary with the trial court, see  Anderson v. Centennial Homes, 594 A.2d 737 (Pa. Super. 1991).

In order to invoke liberal construction, there must be no showing of prejudice as a result of failure of strict compliance; and there must be a showing of good cause. See White v. Owens-Corning Fiberglass, 668 A.2d 136 (Pa. Super. 1995)

Notably, in every administrative order—from the Supreme Court's to the county courts'—the statute of limitations was not tolled.

Rules of Civil Procedure cannot abridge, enlarge or modify statutes. See Smaha v. Landy, 638 A.2d 932 (Pa. Cmwlth. 1994); Shapiro v. Magaziner, 210 A.2d 890 (Pa. Super. 1965). Likewise, the failure of the court's jurisdiction precludes Pa. R.C.P. 126 liberality. See Frycklund v. Way, 599 A.2d 1332 (Pa. Super. 1991).

… These rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

Over the last 10 weeks a vast majority of Pennsylvanians (attorneys included) have not left their homes to go to the office. While most were then soon able to practice virtually, this author—in combination with a consensus among other practitioners—can attest that the practice of law during this time period was equivalent to "swimming through molasses."

There have been few merits adjudications. There have been no jury trials. Sheriffs' offices and private process servers have refused. Response of emails first came to a grinding halt and then only trickled only now increasing (but still not fully). Notaries refused to notarize (as it would require in-person, pandemic exposure). Mail was left unanswered (and in a lot of cases, unopened). Scanning incoming disappeared. Collating discovery documentary responses became an impossibility (and even subsequently reviewing the largest document dumps were a "no go").

Further, partners were not paid. Employees were furloughed or terminated. Salaries were decreased.

Even ability to function virtually from home at an even pace resulted in papers being attempted to be filed "bouncing back" through the mail, or e-filings (in counties that allow) going on the "fritz." To wit, the Supreme Court had to create a Superior Court mechanism for filing writs of summons to toll the statute of limitations.

What to do now?

It is of no doubt that this pandemic was unprecedented in the modern era. And, it was grave— lest us not forget (in the "new normal") that over a 100,000 people have died.

But, in the spirit of Pa. R.C.P. 126 and FRCP 1, combined with what we have learned over the last 10 weeks, there must be change (and moreso than the calls for civility—which were vacant among the uncivil):

• There must be a uniform judicial system with the elimination of local rules and procedures;
• Every county must have fully functioning e-filing;
• All dockets and documents must be viewable online;
• Phone hearings must be ongoing;
• And, every rule, practice and procedure must be allowed bent (till almost broken) to allow the utmost liberality toward merits adjudication.

In our adversarial system, there will always be those who were uncivil, gamesman, obstructionists and the like. After all, as we learned in law school, we are type-A personalities (perhaps A+).

This virus is not going away. But, the Supreme Court down to the Magisterial District Courts must abide and make change: flu season is on the horizon (and who knows what that will mean, again).

Matthew B. Weisberg is the managing partner of Weisberg Law. He focuses his practice on consumer and individual rights throughout Pennsylvania and New Jersey. Weisberg Law represents victims of legal malpractice and other professional negligence resulting in financial injury, fraud, civil rights violations, consumer abuse and foreclosure actions. Contact him at [email protected].