In Pennsylvania, what would typically be referred to as motions to dismiss under Rule 12 of the Federal Rules of Civil Procedure and similar rules in many states are referred to as “Preliminary Objections” under Rule 1028 of the Pennsylvania Rules of Civil Procedure. Rule 1028 provides that preliminary objections may be filed by any party, limited to the following grounds:
(1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint;
(2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;
(3) insufficient specificity in a pleading;
(4) legal insufficiency of a pleading (demurrer);
(5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action;
(6) pendency of a prior action or agreement for alternative dispute resolution;
(7) failure to exercise or exhaust a statutory remedy; and
(8) full, complete and adequate non-statutory remedy at law.
Preliminary objections may be filed to any pleading. You can even file preliminary objections to preliminary objections. And, although generally utilized to address deficiencies in a complaint, preliminary objections also may be filed in response to an objectionable answer or affirmative defense, known in Pennsylvania as “New Matter.” Increasingly, it seems, plaintiffs have used preliminary objections to knock out certain “boilerplate” defenses for which no factual support has been pleaded.
The Rules of Civil Procedure govern whether and when you can file preliminary objections, but litigators earn their pay by strategically determining whether preliminary objections should be filed. That depends on what you intend to accomplish and the overall impact it will have on your case.
If all you want to accomplish is delay, chances are you will be disappointed. When preliminary objections are filed, the responding party has twenty days to file an amended pleading to cure any alleged deficiency. All you may accomplish is to give the other side an opportunity to cure a deficiency early on, that, left alone, might have come back to bite them.
Lack of specificity in a complaint is a prime example. If the complaint identifies one or two ways in which a defendant may have acted negligently, demand for more specifics might just result in the plaintiff adding five or six more reasons – – reasons that the plaintiff might not have been permitted to add after the statute of limitations expired. On the other hand, if the complaint is so lacking in specificity that you don’t know what you’re answering, or includes an “otherwise negligent under the circumstances” allegation, you may have no choice but to preliminarily object. So-called “Connor” objections, after the infamous case of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (Pa. 1983), serve to prevent these open ended allegations from later being used as a springboard to a subsequent amendment raising a completely new negligence claim.
Vague allegations of gross negligence, recklessness or willfulness, where the complaint at best supports nothing more than ordinary negligence, may be another basis for preliminary objections. On the other hand, you might want to wait to address these on a motion for summary judgment in your particular case.
One thing you can’t raise in preliminary objections is an affirmative defense, like the statute of limitations. This holds true even when the applicability of the defense is clear on the face of the complaint.
Often, the best way to resolve a preliminary objection is to pick up the phone and talk to the opposing party. Chances are he or she does not want to spend time briefing and arguing preliminary objections any more than you do, and may agree to amend. Even if you can’t agree, doing so will enhance your reputation as one who reserves the adversarial approach for the important issues.
For a confidential analysis of your litigation issues, or questions about TRC’s litigation and trial practice area, please contact W. James Rogers, Esquire at (412) 316-8647 or [email protected].
Important Notice: This information is intended for general guidance only, and should not be used as a substitute for specific legal advice. For specific legal advice applicable to your situation, you should consult an attorney of your choice. Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied. Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.