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Pennsylvania Motion to Dismiss

In Pennsylvania you file preliminary objections under Pa.R.C.P. 1028, including the demurrer, within 20 days.

Introduction

In Pennsylvania, there is no "motion to dismiss" under the Rules of Civil Procedure. The pre-answer vehicle for challenging a complaint is a set of preliminary objections under Pa.R.C.P. No. 1028, an allowed pleading filed in lieu of an answer under Rule 1017(a)(4). Rule 1028(a) lists eight grounds, and the one that maps to the federal "failure to state a claim" is the demurrer at 1028(a)(4), which tests the legal insufficiency of a pleading. The other grounds reach lack of jurisdiction over the subject matter or person, improper venue or improper form or service, failure to conform to law or rule of court, insufficient specificity, lack of capacity or misjoinder, the pendency of a prior action, and failure to exhaust a statutory remedy. Preliminary objections are filed within the same 20-day window the answer would be due under Rule 1026(a), measured from service of a complaint that carries a notice to defend or is endorsed with a notice to plead. Filing them replaces the answer for that window rather than tolling it; if the objections are overruled, the responsive pleading then becomes due. All preliminary objections must be raised at one time under Rule 1028(b). They are filed in the Court of Common Pleas. Procedure for briefing, argument, and scheduling is set county by county through each court's mandatory Local Rule 1028(c), so check your county's local rules. Missing the window risks a default. DocDraft drafts a Pennsylvania-formatted set of preliminary objections from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    Pennsylvania calls the pre-answer challenge a preliminary objection, not a motion to dismiss. It is governed by Pa.R.C.P. No. 1028 and is an allowed pleading under Rule 1017(a)(4), filed in lieu of an answer.

  2. 2

    Rule 1028(a) enumerates eight grounds: (1) lack of jurisdiction over the subject matter or person, improper venue, or improper form or service; (2) failure to conform to law or rule of court, or scandalous or impertinent matter; (3) insufficient specificity; (4) legal insufficiency, the demurrer; (5) lack of capacity, nonjoinder, or misjoinder; (6) pendency of a prior action or an agreement for ADR; (7) failure to exercise or exhaust a statutory remedy; (8) a full, complete and adequate non-statutory remedy at law.

  3. 3

    Preliminary objections are due within 20 days after service, the same window an answer would be due under Rule 1026(a), when the complaint contains a notice to defend or is endorsed with a notice to plead.

  4. 4

    Filing preliminary objections replaces the answer for that window rather than tolling it. If the objections are overruled, the responsive pleading is then due.

  5. 5

    There is no statewide meet-and-confer or supporting-brief requirement in the Rules of Civil Procedure, but Rule 239.5 directs every court to adopt a Local Rule 1028(c) that may require briefs and that sets argument and scheduling. Check your county's Local Rule 1028(c).

  6. 6

    The "failure to state a claim" analog is the demurrer under Rule 1028(a)(4), which tests the legal insufficiency of a pleading.

  7. 7

    Preliminary objections are filed in the Court of Common Pleas, with the Prothonotary or Department of Court Records of the county. All preliminary objections must be raised at one time under Rule 1028(b).

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

IN THE COURT OF COMMON PLEAS OF ______________ COUNTY, PENNSYLVANIA

[CIVIL ACTION]

____________________________, Plaintiff,

  v.                                    No. ____________________

____________________________, Defendant.

PRELIMINARY OBJECTIONS

Defendant, ____________________, by and through the undersigned, files these Preliminary Objections to Plaintiff's Complaint pursuant to Pa.R.C.P. No. 1028, and in support states as follows:

These Preliminary Objections are filed in lieu of an answer as an allowed pleading under Pa.R.C.P. No. 1017(a)(4) and are raised at one time as required by Pa.R.C.P. No. 1028(b). They are timely under Pa.R.C.P. No. 1026(a), having been filed within twenty days after service of the Complaint.

GROUNDS FOR PRELIMINARY OBJECTIONS (Pa.R.C.P. No. 1028(a))

FIRST PRELIMINARY OBJECTION (Demurrer; Legal Insufficiency, Pa.R.C.P. 1028(a)(4))

  1. The Complaint is legally insufficient and fails to set forth a cause of action upon which relief can be granted, in that ____________________________.

[SELECT AND PLEAD ALL APPLICABLE ADDITIONAL GROUNDS, RAISED AT ONE TIME PER RULE 1028(b):] ( ) Lack of jurisdiction over the subject matter or the person, improper venue, or improper form or service of a writ of summons or complaint (1028(a)(1)). ( ) Failure of a pleading to conform to law or rule of court, or inclusion of scandalous or impertinent matter (1028(a)(2)). ( ) Insufficient specificity in a pleading (1028(a)(3)). ( ) Lack of capacity to sue, nonjoinder of a necessary party, or misjoinder of a cause of action (1028(a)(5)). ( ) Pendency of a prior action or an agreement for alternative dispute resolution (1028(a)(6)). ( ) Failure to exercise or exhaust a statutory remedy (1028(a)(7)). ( ) A full, complete and adequate non-statutory remedy at law (1028(a)(8)).

WHEREFORE, Defendant respectfully requests that the Court sustain these Preliminary Objections and dismiss the Complaint, and grant such other relief as the Court deems just.

[A supporting brief and any required proposed order are county-specific. Confirm and attach per your county's Local Rule 1028(c) (Pa.R.C.P. No. 239.5). TODO(local-rule: proposed-order requirement varies by county).]

MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS [Where required by the county's Local Rule 1028(c). Set forth the standard for the demurrer under Pa.R.C.P. 1028(a)(4) and argument on each ground asserted. Where preliminary objections raise an issue of fact, the court shall consider evidence by depositions or otherwise under Pa.R.C.P. 1028(c)(2).]

Respectfully submitted,

[Name] [Address] [Telephone] [Attorney for Defendant, if represented / Defendant, pro se]

Date: ________________

CERTIFICATE OF SERVICE

I certify that on the ____ day of _________, 20, a true and correct copy of the foregoing Preliminary Objections was served upon all parties of record in the manner provided by the Pennsylvania Rules of Civil Procedure.

[Name]

Pennsylvania Requirements for Motion to Dismiss

File preliminary objections within 20 days of service

Under Pa.R.C.P. No. 1026(a), preliminary objections are filed within twenty days after service of the complaint, the same window an answer would be due, when the complaint contains a notice to defend or is endorsed with a notice to plead.

Filing replaces the answer for that window

Filing preliminary objections takes the place of the answer for the 20-day window rather than tolling it. If the objections are overruled, the responsive pleading then becomes due.

Use preliminary objections, not a motion to dismiss

Pennsylvania has no motion to dismiss under the Rules of Civil Procedure. The pre-answer vehicle is a preliminary objection under Pa.R.C.P. No. 1028, an allowed pleading under Rule 1017(a)(4).

Select grounds from the eight in Rule 1028(a)

Rule 1028(a) provides eight grounds: jurisdiction or venue or form or service (a)(1); failure to conform to law or scandalous matter (a)(2); insufficient specificity (a)(3); legal insufficiency, the demurrer (a)(4); capacity, nonjoinder or misjoinder (a)(5); prior action or ADR agreement (a)(6); failure to exhaust a statutory remedy (a)(7); adequate non-statutory remedy (a)(8).

Raise the demurrer for legal insufficiency

The federal "failure to state a claim" analog is the demurrer under Pa.R.C.P. No. 1028(a)(4), which tests the legal insufficiency of a pleading.

Raise all preliminary objections at one time

Under Pa.R.C.P. No. 1028(b), all preliminary objections shall be raised at one time, shall state specifically the grounds relied upon, and may be inconsistent.

Confirm supporting brief and proposed order per county Local Rule 1028(c)

No statewide rule mandates a supporting brief or proposed order with preliminary objections, but most counties require a brief. Rule 239.5 directs every court to adopt a Local Rule 1028(c) that may require briefs and sets argument and scheduling. Check your county's Local Rule 1028(c). Where objections raise an issue of fact, Rule 1028(c)(2) provides the court shall consider evidence by depositions or otherwise.

File in the Court of Common Pleas and serve all parties

Preliminary objections are filed in the Court of Common Pleas with the county's Prothonotary or Department of Court Records, the general civil trial court for claims over $12,000 and matters outside Magisterial District Judge jurisdiction. Serve all parties of record under the Pennsylvania Rules of Civil Procedure.

Frequently Asked Questions

Pennsylvania does not use a motion to dismiss. You file preliminary objections under Pa.R.C.P. No. 1028, an allowed pleading under Rule 1017(a)(4) filed in lieu of an answer. State your grounds specifically, raise all preliminary objections at one time under Rule 1028(b), and file them with the Court of Common Pleas. Your county's Local Rule 1028(c) sets briefing and argument procedure.

Preliminary objections are due within 20 days after service of the complaint, the same window an answer would be due under Rule 1026(a), provided the complaint contains a notice to defend or is endorsed with a notice to plead. Filing preliminary objections takes the place of the answer for that window. If they are overruled, the responsive pleading then becomes due.

Pennsylvania does not use a Rule 12 motion at all. These challenges are raised as preliminary objections under Pa.R.C.P. 1028(a), and legal insufficiency is pleaded as the demurrer, the state's equivalent of failure to state a claim. The rule lists eight grounds, reaching jurisdiction, venue, and form or service of process, insufficient specificity, lack of capacity or improper joinder, a prior pending action or ADR agreement, and failure to exhaust a statutory remedy.

No statewide rule mandates a supporting brief with preliminary objections, but most counties require one. Under Rule 239.5, every court adopts a Local Rule 1028(c) describing how preliminary objections are briefed, argued, and decided, and that rule may require briefs. Check your county's Local Rule 1028(c) before filing, because the requirement and scheduling are county-specific.

If preliminary objections are overruled, the responsive pleading becomes due. Filing preliminary objections replaced the answer for the original window rather than tolling it, so once the court rules against the objections you must then file your answer to the complaint. The court's order or your county's Local Rule 1028(c) governs the time allowed for that responsive pleading.

Preliminary objections are filed in the Court of Common Pleas, with the county's Prothonotary or Department of Court Records. The Court of Common Pleas is the general civil trial court for claims over $12,000, equitable relief, and matters outside Magisterial District Judge jurisdiction. Your county's Local Rule 1028(c) sets local filing and argument procedure.