Pennsylvania Preliminary Objections (Motion to Dismiss)

PENNSYLVANIA PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER / MOTION TO DISMISS

Pa.R.C.P. No. 1028(a) — All Eight Grounds

TABLE OF CONTENTS

1. Caption
2. Notice to Plead

3. Preliminary Objections
   3.1 Preliminary Statement
   3.2 Grounds for Preliminary Objections
   3.3 Procedural History
   3.4 Statement of Material Allegations
   3.5 Standard of Review
   3.6 Argument

4. Request for Oral Argument

5. Reservation of Rights
6. Prayer for Relief
7. Certification Pursuant to Pa.R.C.P. 208.2(d)
8. Verification
9. Certificate of Service
10. Exhibit "A" — Proposed Order

1. CAPTION

IN THE COURT OF COMMON PLEAS OF [________________] COUNTY, PENNSYLVANIA
CIVIL DIVISION

[PLAINTIFF NAME], Plaintiff,

v. — No. [________________]

[DEFENDANT NAME], Defendant.

PRELIMINARY OBJECTIONS OF DEFENDANT [DEFENDANT NAME]
TO PLAINTIFF'S [COMPLAINT / AMENDED COMPLAINT]
PURSUANT TO Pa.R.C.P. No. 1028(a)

2. NOTICE TO PLEAD

TO: [PLAINTIFF NAME] AND/OR PLAINTIFF'S COUNSEL

YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS AFTER SERVICE HEREOF OR THE COURT MAY GRANT THE REQUESTED RELIEF WITHOUT FURTHER NOTICE.

IF YOU WISH TO DEFEND AGAINST THESE PRELIMINARY OBJECTIONS, YOU MUST FILE A WRITTEN RESPONSE IN ACCORDANCE WITH THE PENNSYLVANIA RULES OF CIVIL PROCEDURE AND THE LOCAL RULES OF THIS COURT. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.

[________________] County Bar Association Lawyer Referral Service
[________________] [Address]
[________________] [Telephone]

3. PRELIMINARY OBJECTIONS

3.1 Preliminary Statement

Defendant [Defendant Name] ("Defendant"), by and through undersigned counsel, respectfully files these Preliminary Objections to the [Complaint / Amended Complaint] (the "Complaint") filed by Plaintiff [Plaintiff Name] ("Plaintiff") pursuant to Pennsylvania Rule of Civil Procedure 1028(a). In support thereof, Defendant states the following:

3.2 Grounds for Preliminary Objections — Pa.R.C.P. 1028(a)

Select all applicable grounds:

☐ (a)(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
☐ (a)(2) — Failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter
☐ (a)(3) — Insufficient specificity in a pleading
☐ (a)(4) — Legal insufficiency of a pleading (demurrer)
☐ (a)(5) — Lack of capacity to sue, nonjoinder of a necessary party, or misjoinder of a cause of action
☐ (a)(6) — Pendency of a prior action or agreement for alternative dispute resolution
☐ (a)(7) — Failure to exercise or exhaust a statutory remedy
☐ (a)(8) — Full, complete, and adequate non-statutory remedy at law

3.3 Procedural History

1. On [Date], Plaintiff commenced this action by filing a [Complaint / Writ of Summons], alleging [brief synopsis of claims].

2. Service was effectuated on Defendant on [Date] via [method of service].

3. Pursuant to Pa.R.C.P. 1026, Defendant's responsive pleading is due on [Date].

4. These Preliminary Objections are timely filed within twenty (20) days of service.

3.4 Statement of Material Allegations (Accepted as True)

Solely for purposes of these Preliminary Objections, Defendant accepts as true the well-pleaded factual allegations of the Complaint and summarizes them as follows:

a. [________________]

b. [________________]

c. [________________]

d. [________________]

3.5 Standard of Review

Pa.R.C.P. 1028(a)(4) — Demurrer

A preliminary objection in the nature of a demurrer tests the legal sufficiency of the challenged pleading. The Court must accept as true all well-pleaded material facts set forth in the Complaint and all reasonable inferences that may be drawn from those facts. The Court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. A demurrer will be sustained and the complaint dismissed only where it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief.

Pa.R.C.P. 1028(a)(1) — Lack of Jurisdiction / Improper Venue

When preliminary objections raise a question of personal jurisdiction under 42 Pa.C.S. § 5322 (Pennsylvania's long-arm statute), the plaintiff bears the burden of establishing jurisdictional facts by a preponderance of the evidence. The Court may consider evidence by depositions or otherwise. Pa.R.C.P. 1028(c)(2).

Pa.R.C.P. 1028(a)(6) — Prior Pending Action

Preliminary objections based on pendency of a prior action between the same parties for the same cause require demonstration that (1) the prior action is pending; (2) the prior action involves the same parties; and (3) the prior action involves the same cause of action.

3.6 Argument

A. [First Ground — e.g., Legal Insufficiency (Demurrer) — Pa.R.C.P. 1028(a)(4)]

1. To state a claim for [cause of action], Plaintiff must plead: (i) [________________]; (ii) [________________]; (iii) [________________]; and (iv) [________________].

2. The Complaint is devoid of factual averments establishing [element] because [explanation].

3. Without a legally cognizable [element], Count [____] fails as a matter of law and must be dismissed with prejudice.

B. [Second Ground — e.g., Statute of Limitations — Pa.R.C.P. 1028(a)(4) / 1030(a)]

1. Plaintiff alleges that the subject incident occurred on [Date].

2. Under 42 Pa.C.S. § [________________], a [____]-year limitations period applies to [claim type].

Common Pennsylvania Limitation Periods:

3. Because the Complaint was filed on [Filing Date], more than [____] years after accrual, the claim is time-barred and should be dismissed with prejudice.

C. [Third Ground — e.g., Lack of Personal Jurisdiction — Pa.R.C.P. 1028(a)(1)]

1. Defendant is a [individual / corporation / LLC] domiciled in [State] with its principal place of business at [Address]. Defendant has no offices, employees, or agents in Pennsylvania.

2. None of the jurisdictional bases enumerated in 42 Pa.C.S. § 5322(a) are satisfied because [________________].

3. The exercise of jurisdiction over Defendant would offend due process because [________________].

D. [Additional Grounds]

4. REQUEST FOR ORAL ARGUMENT

Pursuant to Pa.R.C.P. No. 211 and Local Rule [________________], Defendant respectfully requests oral argument on these Preliminary Objections and asks that the Court schedule argument in accordance with the Court's civil motion calendar.

5. RESERVATION OF RIGHTS

Defendant expressly reserves the right to assert all remaining defenses, counterclaims, cross-claims, or additional objections that may become available, including but not limited to affirmative defenses under Pa.R.C.P. Nos. 1030 and 1032. By filing these Preliminary Objections, Defendant does not waive any defense not raised herein.

6. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Honorable Court:

1. Sustain Defendant's Preliminary Objections;
2. Dismiss Plaintiff's Complaint in its entirety, with prejudice;
3. Deny Plaintiff leave to amend, as amendment would be futile; and
4. Award such other and further relief as the Court deems just and proper.

7. CERTIFICATION PURSUANT TO Pa.R.C.P. 208.2(d)

I, the undersigned counsel, certify that I have communicated with opposing counsel concerning the subject of these Preliminary Objections and, after reasonable efforts, we are unable to resolve the matter.

☐ Conferral occurred on [Date] via [telephone / email / in person].
☐ Conferral was attempted but opposing counsel was unavailable despite the following efforts: [________________].
☐ Conferral is not required because [________________].

DATED: [________________]

Respectfully submitted,

[FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
PA ID No. [________________]
[FIRM ADDRESS]
[CITY, STATE ZIP]
[TELEPHONE] | [EMAIL]
Counsel for Defendant [Defendant Name]

8. VERIFICATION

I, [Client Name], verify that the statements made in the foregoing Preliminary Objections are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.

DATED: [________________]

______________________________
[Client Name]

9. CERTIFICATE OF SERVICE

I hereby certify that on [Date], a true and correct copy of the foregoing Preliminary Objections, Proposed Order, and Notice to Plead was served upon all counsel and/or unrepresented parties of record via [first-class mail / hand delivery / e-service] addressed as follows:

[Opposing Counsel Name]
[Firm Name]
[Address]
[City, State ZIP]
[Email]

______________________________
[Attorney Name]
PA ID No. [________________]

EXHIBIT "A" — PROPOSED ORDER

IN THE COURT OF COMMON PLEAS OF [________________] COUNTY, PENNSYLVANIA
CIVIL DIVISION

[PLAINTIFF NAME], Plaintiff,

v. — No. [________________]

[DEFENDANT NAME], Defendant.

ORDER

AND NOW, this ______ day of ________________, 20____, upon consideration of Defendant's Preliminary Objections pursuant to Pa.R.C.P. No. 1028(a) and any response thereto, it is hereby ORDERED and DECREED that:

1. Defendant's Preliminary Objections are SUSTAINED.
2. Plaintiff's Complaint is DISMISSED [with / without] prejudice.
3. ☐ Plaintiff is granted leave to file an Amended Complaint within twenty (20) days of the date of this Order.

BY THE COURT:

______________________________
J.

PENNSYLVANIA PRACTICE NOTES

These notes are for practitioner reference only. Remove before filing.

Filing and Procedural Requirements

1. Timing. Preliminary Objections must be filed within 20 days of service of the pleading being challenged. Pa.R.C.P. 1026. All preliminary objections must be raised at one time. Pa.R.C.P. 1028(b).

2. Amendment as of Right. Plaintiff may file an amended complaint as of course within 20 days after service of preliminary objections. Pa.R.C.P. 1028(c)(1). If Plaintiff amends, the preliminary objections are deemed moot. Monitor the docket and calendar accordingly.

3. Briefing Schedule. Under Pa.R.C.P. 208.3(b), the responding party has 20 days to file an answer and brief unless the Court's scheduling order or local rules provide otherwise. Check county-specific briefing deadlines:
   - Philadelphia: Local Rule 205.2(b) — electronic filing required; motion cover sheets required
   - Allegheny: Local Rule 1028(c) — opposing brief due 20 days after service; reply 10 days
   - Montgomery:* Local Rule 1028(c) — opposing brief due 20 days; dispositive motions argued on court's schedule

4. Evidence on Jurisdictional Objections. If an issue of fact is raised by preliminary objections (e.g., personal jurisdiction under (a)(1)), the Court shall consider evidence by depositions or otherwise. Pa.R.C.P. 1028(c)(2).

5. Oral Argument. Many counties require a separate praecipe for argument once briefing is complete. Others schedule argument automatically. Check Local Rule 211.

6. Electronic Filing. Confirm whether the county mandates electronic filing and follow formatting conventions (PDF, word-count certification, proposed orders uploaded separately).

Waiver Rules

7. Pa.R.C.P. 1032(a). A party waives all defenses and objections which are not presented either by preliminary objection, answer, or reply, except: (1) lack of subject matter jurisdiction; (2) failure to state a claim upon which relief can be granted (which may be raised at trial); and (3) failure to join an indispensable party (which may be raised at trial).

Key Distinctions from Federal Practice

8. No "Motion to Dismiss." Pennsylvania does not use motions to dismiss under Fed. R. Civ. P. 12(b). The equivalent is Preliminary Objections under Pa.R.C.P. 1028. Do not title the document "Motion to Dismiss."

9. Pleading Standard. Pennsylvania applies a notice-pleading standard, but Rule 1019(a) requires material facts to be stated in a concise and summary form. Pennsylvania does not apply the federal Twombly/Iqbal plausibility standard.

10. Amendment. Pennsylvania courts liberally grant leave to amend. The right to amend as of course within 20 days of preliminary objections (Rule 1028(c)(1)) is automatic and cannot be defeated by the defendant.

Sources and References

• Pa.R.C.P. No. 1028 (Preliminary Objections): https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/231/chapter1000/s1028.html
• Pa.R.C.P. No. 1026 (Time for Filing): https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/231/chapter1000/s1026.html
• 42 Pa.C.S. § 5322 (Long-Arm Statute): https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=42&div=0&chpt=53&sctn=22&subsctn=0
• 42 Pa.C.S. §§ 5524-5534 (Statutes of Limitation): https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=42&div=0&chpt=55
• Pennsylvania Judiciary Unified Judicial System: https://www.pacourts.us
• Philadelphia Court of Common Pleas Local Rules: https://www.courts.phila.gov/rules/