On April 15, the Montgomery Bar Association Bench Bar Committee had a productive video conference with Montgomery County Court of Common Pleas’ President Judge Thomas Delricci, Court Administrator Michael Kehs and several other members of the bench. The Court’s declaration of a judicial emergency has been extended through May 31, 2020.

The Court extended its emergency declaration in an effort to provide certainty to litigants due to concerns over public health and welfare and the county’s and, by extension, the Court’s technological limitations. The Court also expressed significant concerns that all litigants continue to receive full, fair access to Court resources and are able to participate fully in the litigation process, which is not easy due to the technological limitations faced by pro se litigants, court staff and many attorneys, who do not have access to the latest technology.

While many have expressed frustration over how slow courts across the country have been to re-open or allow civil litigants to push cases forward during the coronavirus crisis, the Court stressed that its primary concerns centered on reducing the county’s juvenile and adult prisoner populations, the latter of which has dropped by more than 30% over the last month and is lower than it has been since 1987. The Court’s attention has also been focused on addressing and responding to complaints of abuse, handling true emergency matters and coordinating efforts to reopen portions of the court system without exposing either litigants or staff to the virus. The Court noted that many civil matters ripe for determination cannot be resolved because doing so would require the Court to issue orders in cases that conflicted with its existing emergency orders. By way of example, the Court cannot grant a summary judgment motion that would lead to the entry of and execution upon a judgment, or permit a landlord to evict a tenant during the present judicial emergency.

Court Operations

In accordance with the Court’s March 16, 2020 Order, all Court facilities remain closed for all non-essential functions, but remain open to a limited extent for the consideration of emergency matters, a complete list of which are detailed on the Court’s website. The Court is operating with a rotating skeleton staff to minimize contact with the public and among staff members and access to much of the courthouse has been restricted. The Court’s facilities staff deep-clean those portions of the courthouse accessed by staff and the public each weekend, a step that has become all the more necessary following a known exposure that occurred in one of the Court’s offices that required the Court to close that office temporarily, though it has since reopened. In addition, all individuals who enter the courthouse are subject to mandatory temperature checks and must answer a short set of questions before being admitted for any reason.

The Court does not yet have the technology necessary to conduct arguments, hearings or other court appearances via video conference because the county lacks the technology to do so, as do most of the Court’s staff members, who cannot work remotely because they do not have computers, scanners, printers or most of the other technological resources that they utilize while working in the courthouse. The courthouse lacks the bandwidth necessary to support even a few people utilizing a videoconference service simultaneously. The Court and the county are presently exploring their options to improve their capabilities and to identify and procure the technology necessary to conduct at least some court proceedings remotely, but it is unclear how soon that will happen.

Although the Court will begin to consider and rule upon some matters, the Court will not issue substantive rulings in matters that require the parties to participate until it has the technological ability to do so. The Court also stressed that if and when it does begin to expand the Court’s remote capabilities, unless orders are agreed to by all parties, the Court will not consider any substantive rulings in civil matters unless all parties are represented and all counsel are registered for e-filing and have the technological resources necessary for them to participate fully in any court proceedings.

Emergency Matters

The Court’s emergency judge, typically a rotating Senior Judge, will determine which emergency equity filings constitute an actual emergency that require the Court’s prompt intervention. The Court has adopted new procedures regarding the filing of emergency petitions and motions, which are posted on its website, and it is important to adhere to these guidelines if clients have an emergent matter. If a matter is not deemed to be an emergency, it will be handled in due course, which means that if the Court must hold a hearing before making a determination, it will be some time before it issues a ruling.

If the emergency judge determines that the matter constitutes an emergency, he or she will then do one of two things:

• hold a pre-hearing conference with counsel, as is typical, though that conference will be conducted via either video or teleconference
  AND/OR
• issue a decision based upon the parties’ paper submissions to the Court.

For attorneys with cases that merit the filing of, or response to, a motion for an emergency or preliminary injunction, it is more imperative than ever that filings meet high standards of quality, and are supported by as much filed, persuasive documentary evidence as possible to support their arguments.

Conference Protocol

In the interest of resolving matters by agreement, the Court has adopted specific procedures for requesting conferences in civil, orphans’ court and domestic matters, which are also posted on the Court’s website. While the Court typically follows distinct procedure regarding the establishment of case management orders, resolving discovery disputes, preliminary objections and other motions, and holding settlement conferences, all parties are encouraged to utilize the Court’s new conference protocols and utilize the Court as a resource to amicably resolve their disputes at this time. Note, the Court will only consider and grant conference request if all parties are represented by counsel, all of whom must be registered e-filers, and only if all counsel agree in advance to the request.

To request a conference, counsel must complete the Court’s Case Conference Request Form and submit it to the Court via email at [caseconferences@montcopa.org ]. Among other things, the form requires counsel to provide detailed contact information for all attorneys involved and certify that counsel of record are all e-filers and have agreed to the conference. Counsel are expected to work amicably with the Court to schedule the conference and are responsible for providing connection information to the Court. The Court is willing to hold these conferences via either videoconference or teleconference, but, as noted above, does not have access to videoconference software, meaning that if counsel wish to have the conference via video, they must provide the Court with access to videoconference software such as WebEx or Zoom, though the Court disfavors the latter due to security concerns. Like all court conferences in Montgomery County, these conferences are off the record and will not lead to the issuance of a substantive order regarding a disputed matter, though the Court will consider and may enter agreed-upon orders.

Discovery

Discovery deadlines and case management deadlines remain tolled at this time. The Court will not compel video depositions during the judicial emergency, given many parties’ lack of access to necessary technology, but strongly encourages counsel to continue to push written discovery forward. The President Judge specifically noted that the parties have received time that they usually do not receive to respond to document requests, interrogatories and requests for admission and that they should use that time productively. The clear implication is that parties that do not fulfill their discovery obligations and force opposing counsel to file motions to compel following the end of the judicial emergency will not be looked upon kindly or receive much additional time to respond before the Court enters potentially onerous sanctions.

Written Motions

The Court has started to assign civil motions that were ripe for adjudication after being fully briefed to available judges for determination. The Court anticipates that motions that completed briefing during the course of the crisis will be assigned next and parties can expect to receive orders sooner than they might expect. The Court anticipates that going forward, it will decide far more civil motions on the papers than it has in the past, breaking from long-standing tradition of permitting oral argument on most civil motions.

Attire During Emergency Court Appearances and Videoconferences

Finally, the Court noted that there are no hard and fast rules for attorney attire during videoconferences, but asked that attorneys use their best judgment. The Court specifically noted that it did not believe it necessary to direct attorneys to wear ties or jackets while working at home and simply wishes that counsel be reasonable enough not to attend videoconferences while only partially clothed or while lying in bed, as those in other jurisdictions have reportedly done. The Court will not issue an order on this issue, as the Chester County Court of Common Pleas recently did, when it specifically allowed counsel to appear in business casual clothes. As Judge Delricci quite aptly stated, at the moment, the Court has much bigger fish to fry.

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