So far, I’ve discussed the complaint and answer that are filed in the typical Pennsylvania civil action. Recall that answering the complaint is one of two ways a defendant may generally respond to a complaint. This time, I’m going to focus on the second way a defendant may respond: by filing preliminary objections.
Objecting to the Complaint
Preliminary objections provide vehicles through which a defendant may attack various aspects of a complaint prior to filing a formal answer. The issues that may be raised as preliminary objections are set forth in Rule 1028 of Pennsylvania’s Rules of Civil Procedure. Although Rule 1028’s eight-item list purports to be exhaustive, the variety of preliminary objections is, in practice, largely constrained only by the craft and creativity of defense counsel.
For our purposes, the preliminary objections available to a defendant can be lumped into three rough categories: (1) objections based on the power of the court; (2) objections based on the power of the plaintiff; and (3) objections to the legal sufficiency of the complaint. Preliminary objections may also be based on a plaintiff’s failure to comply with one or another of the many laws and rules of court applicable to pleading. An objection on that basis, however, almost always results in the filing of a complaint that has been amended so as to correct the violation at issue. In addition to—indeed, worse than—being wasteful and, from a tactical perspective, generally useless, compliance-based objections are uninteresting. I don’t recommend raising them unless they are coupled with more substantial objections and we won’t consider them further here.
A. Objections to the Power of the Court
For a court to resolve a case before it, the court must satisfy three criteria. First, the court must have subject matter jurisdiction, i.e., the legal power to decide the case. Being courts of general jurisdiction, few disputes lie beyond the power of a state court to decide. The best examples of cases over which Pennsylvania courts would lack subject matter jurisdiction are federal claims that, by law, may be prosecuted only in federal courts, such as patent disputes.
Second, a court must have personal jurisdiction, i.e., the power to affect the legal rights of the parties before it. To illustrate with a clear example, a lawsuit filed in Pennsylvania against a Utah citizen would, absent legally sufficient contacts, be dismissed for lack of personal jurisdiction.
Third, the court must be a proper venue. For example, a York County citizen may not sue a Chester County citizen in, say, Lackawanna County, simply because it would render the defense more costly and difficult. Suit may be initiated only in a court that qualifies as an appropriate venue under the governing Rule, which generally includes only counties in which the defendant can be served, in which the claim arose, or in which facts pertinent to the claim transpired.
Because issues of personal jurisdiction and venue are fact-dependant, their resolution can involve limited fact discovery and an evidentiary hearing, both of which will have the twin effects of increasing the parties’ costs and delaying litigation of the plaintiff’s underlying claims. Nevertheless, a defendant must either present the issues by means of a preliminary objection or forever waive the ability to object. In contrast, because it concerns the power of the court to decide the case, the issue of subject matter jurisdiction is non-waivable and may be raised at any stage of the proceedings.
B. Objections to the Power of the Plaintiff
In order to pursue a claim, a plaintiff must have the capacity to sue. In most cases, this simply means the plaintiff must be of legal age and not adjudicated incompetent.
Beyond fundamental capacity, the plaintiff must also be suing on a claim the plaintiff is entitled to resolve in court. The most common preliminary objection in this category is one based on the existence of an enforceable agreement to resolve the dispute by alternate means, such as arbitration, mediation, or even a coin-flip. Additionally, for certain claims involving administrative agencies, the plaintiff must have first fruitlessly pursued all remedies available at the administrative level.
Finally, a plaintiff’s ability to sue may also be constrained by reference to a prior pending action involving the same dispute and is always conditional upon the plaintiff joining all necessary parties to the action.
C. Objections to the Legal Sufficiency of the Complaint
In Pennsylvania, a preliminary objection based on legal sufficiency is known as a demurrer. The contention on such an objection is that, even if the court accepts as true everything the plaintiff asserts in the complaint, the law provides no remedy. One can think of a demurrer as the legal equivalent of saying “Yeah? So What?” In considering a demurrer, the court will review legal briefs and hear argument on the legal issues as they apply to the facts alleged in the complaint. The court will then apply the law to the allegations and either sustain or overrule the objection.
In the event a demurrer is sustained, the claim at issue is dismissed. Even so, as with violations of court rules governing pleading, the plaintiff is usually granted an opportunity to try and amend around the legal deficiencies. For defective claims, however, it is not always possible to fix the problems.
Importantly, filing a preliminary objection in the nature of a demurrer does not waive the defendant’s right subsequently to challenge the truthfulness of the facts alleged in the complaint. Instead, a demurrer merely assumes truth for purposes of argument.
A demurrer is far and away the most common preliminary objection and rare is the action that does not present at least one arguable basis for dismissal. That said, demurrers are sparingly granted; it is much easier—and far less risky from an appellate perspective—for a court to permit a dubious claim to go forward into discovery. After all, a defendant may revisit the legal issues in the context of a summary judgment motion, which we will discuss in due course.
D. Next Time
Having dealt with complaints, answers, and preliminary objections, we are about ready to move to a discussion of discovery issues. Before we close the pleadings, however, I’ll use the next installment to tie up some loose ends and mention some other issues that often arise outside the context of the formal pleadings.
