Preliminary Objections, Joinder, and Class Actions

Question 1

When can you file a preliminary objection?

Answer 1

All at once, and they can be to any pleading (meaning a plaintiff can seek to strike an affirmative defense stated in a defendant’s answer).

Question 2

How will a court rule on preliminary objections?

Answer 2

Either sustain or overrule.

Question 3

What are the grounds for a preliminary objection?

Answer 3

1. Lack of personal or subject matter jurisdiction, improper venue, or improper service of the complaint or writ of summons.
2. Failure of a pleading to conform to law or rule of court or inclusion of a scandalous or impertinent matter.
3. Insufficient specificity in a pleading
   
   1. Lacks enough information to formulate a response or lacks the material facts required in Pennsylvania’s fact-pleadings system.
4. Pleading fails to state facts sufficient to constitute a cause of action (legal insufficiency)
5. Lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action
   
   1. Nonjoinder: party required for the action is not present
6. Pendency of a prior action or agreement for alternative dispute resolution
7. Failure to exercise or exhaust a statutory remedy
8. Full, complete, and adequate non-statutory remedy at law

Question 4

When will a preliminary objection for legal insufficiency be sustained?

Answer 4

When

1. assuming the truth of the facts stated in the complaint AND
2. making all reasonable inferences in favor of the plaintiff BUT
3. not assuming the truth of conclusions of law,
4. the court concludes with certainty that the law would not permit recovery.

Question 5

What will happen if you don’t raise (most) objections by a preliminary objection?

Answer 5

They will be waived, except for

• lack of subject-matter jurisdiction;
• failure to state facts sufficient to constitute a cause of action (legal insufficiency); and
• defect in joinder or misjoinder of parties

Question 6

How can you respond to a preliminary objection?

Answer 6

By amending your pleading (usually the complaint) within 20 days of the filing of the preliminary objection.

This “moots” the preliminary objection.

Question 7

When will an attempt to moot a preliminary objection fail?

Answer 7

When the issue raised by the preliminary objection can’t be cured by an amendment, such as improper venue/service or lack of capacity to sue.

Discovery will be required for those issues.

Question 8

In what ways can you add a party to a suit?

Answer 8

1. Compulsory joinder
2. Permissive joinder
3. Additional defendants
4. Intervention

Question 9

When will compulsory joinder occur?

Answer 9

When a party has only a joint interest in the subject matter, in which case they must be joined on the same side as the party with whom they share the interest.

Question 10

What if somebody subject to compulsory joinder refuses to join?

Answer 10

They will be made a defendant or involuntary plaintiff when allowed under PA law.

Question 11

Do a husband and wife have to bring a claim together?

Answer 11

Yes, if the injury not causing death occurs to one of them and they both have claims.

Question 12

Do a minor and their parent(s) have to bring a claim together?

Answer 12

Yes, if the injury does not cause death occurs to one of them and they both have resulting claims.

Question 13

When will permissive joinder be allowed?

Answer 13

When the claims by or against the joined party:

1. arise out of the same transaction, occurrence, or series of transactions or occurrences; AND
2. have a common question of fact or law.

Question 14

When will “additional defendants” be added?

Answer 14

When a party wants to add somebody who may be

• solely liable on the underlying cause of action against the joining party; OR
• liable to or with the joining party on any cause of action arising out of the transaction/occurrence/series upon which the underlying cause of action against the joining party is based.

N.B.: this is the equivalent of an impleader under the FRCP.

Question 15

How will a joining party join an additional defendant?

Answer 15

Either by filing a complaint or by filing a praecipe for a writ of summons.

If by writ, the joining party must file a complaint within 20 days of filing the praecipe for the writ.

Question 16

What is intervention?

Answer 16

When a non-party wants to join a pending action.

Question 17

When will intervention be allowed?

Answer 17

• The judgment in the action will impose any liability upon the intervening party to indemnify the original party against whom judgment may be entered.
• The intervening party will be adversely affected by a distribution or other disposition of property in court custody.
• The intervening party could have joined or been joined as a party. OR
• The action’s resolution may affect any legally enforceable interest of the intervening party.

Question 18

How do you apply for intervention?

Answer 18

By filing a petition in the form of a complaint, which must EITHER include a copy of the intervening party’s proposed pleadings OR adopt other parties’ pleadings by reference.

Question 19

When will a court order intervention?

Answer 19

If there is a hearing and the court finds that the intervention allegations have been established and satisfy one of the grounds for intervention, UNLESS

• the petitioner’s interest is already adequately represented;
• the petitioner unduly delayed in filing the petition OR the intervention will unduly delay or prejudice the trial or the rights of the parties; OR
• the petitioner’s claim or defense is not in subordination to and in recognition of the propriety of the action
  
  • AKA the petitioner has to take the case as they find it and cannot revisit prior rulings, raise issues that have been waived, or otherwise question the status of the case.

Question 20

What must a court find in order for a class action to be certified?

Answer 20

That the class action provides a fair and efficient method for adjudicating the controversy.

Question 21

What factors will a court consider in determining whether a class action is a fair and efficient method for adjudication?

Answer 21

Similar factors as the federal considerations, as well as a cost-benefit consideration.

If monetary relief alone is sought, the court can consider

• whether separate claims by individual class members would be insufficient to support separate action AND
• whether the amount of recovery for each individual class member will be so small in relation to the expense and effort of administering the class action as to not justify a class action?

Question 22

What factors will a court consider in determining whether representation is fair and adequate?

Answer 22

1. Whether attorneys will adequately represent the interests of the class.
2. Whether representative parties have a conflict of interest.
3. Whether the representative parties have adequate financial resources to protect the interests of the class.

Question 23

How can you commence a class action?

Answer 23

Only with a complaint (no writs of summons) that

1. includes the designation “Class Action” in its caption AND
2. includes a section entitled “Class Action Allegations” that states factual averments supporting the class action prerequisites under
   
   1. 1702: C.A.N.T. plus “fair and efficient”
   2. 1708: defines “fair and efficient”
   3. 1709: defines “fair and adequate representation”

Question 24

How can a defendant raise fact issues with respect to class action allegations?

Answer 24

Only by raising them in the answer and new matter (NOT by preliminary objection).