What are Preliminary Objections?

David ManesLitigation

At this point, you have filed a Complaint in a Court of Law. Per Pennsylvania Rule of Civil Procedure 1018.1, your Complaint included a Notice to Defend giving the named Defendant 20 days to file a written Answer to your Complaint. However, prior to the filing of Answer (or sometimes after the Answer is filed), Defendant files Preliminary Objections. A Defendant can file Preliminary Objections prior to filing an Answer or after filing an Answer.

Preliminary Objections

Preliminary Objections are used to challenge the sufficiency of a pleading (i.e., the Complaint) on its face. The Defendant is trying to dismiss your Complaint and prevent you from recovering any damages.

What type of Preliminary Objections can be raised?

Pennsylvania Rule of Civil Procedure 1028(a) allows any party to preliminarily object to any pleading (i.e., the Complaint) on various express 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; and
6. Pendency of a prior action or agreement for alternative dispute resolution.

Therefore, the Defendant can only try to dismiss your Complaint if one of the above occurs.

How to respond to Preliminary Objections?

If Defendant does file Preliminary Objections, you have two options to respond.

First, you can file a response in opposition to the Defendant’s Preliminary Objections. Typically, you must file a Motion in Opposition of Defendant’s Preliminary Objections and a Brief in Opposition of Defendant’s Preliminary Objections. Then you will go before a Judge and argue why Defendant’s Preliminary Objections should not be granted.

The second option in responding to Defendant’s Preliminary Objections is to file an Amended Complaint that addresses all of the grounds raised in Defendant’s Preliminary Objections. For example, let’s say that Defendant filed Preliminary Objections for insufficient specificity in a pleading (i.e., your Complaint was not specific enough as to what your allegations/claims are against the Defendant). You can file an Amended Complaint and address the lack of specificity. You can provide more details, evidence or facts to support your claims against the Defendant. If you choose to file an Amended Complaint, the Defendant’s Preliminary Objections become moot. In other words, the Defendant’s Preliminary Objections are dismissed because the issues raised in their Preliminary Objections have been addressed and/or corrected in your Amended Complaint.

If you do choose to file an Amended Complaint, the Defendant has the opportunity to file Preliminary Objections again to try and dismiss your Amended Complaint. However, it is important to remember that Preliminary Objections are typically granted only where it appears with certainty that, upon the facts averred, the law will not allow the Plaintiff to recover.

Contact a KM&A attorney at (412) 626-5626 or email at lawyer@lawkm.com.