Rule 3.9. Preliminary Objections.
(a) General. Preliminary objections may be filed to any petition by any interested party or the interested party’s representative.
(b) Grounds for Preliminary Objections. Preliminary objections filed to any petition under the Rules of Chapter III are limited to the following grounds:
(1) lack of jurisdiction over the subject matter of the action or lack of jurisdiction over the person, improper venue, or improper form of service;
(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 standing or 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.
(c) Form. All preliminary objections shall be raised at one time in one pleading, shall state specifically the grounds relied upon, and may be inconsistent.
(d) Disposition of Preliminary Objections.
(1) A party may file an amended pleading, without consent of any other party and without leave of court, within 20 days after service of the preliminary objections. If a party files an amended pleading, the preliminary objections to the original pleading shall be deemed moot.
(2) In all other instances, the court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall consider evidence by deposition or otherwise.
(e) Pleadings Allowed Subsequent to the Disposition of Preliminary Objections.
(1) If the preliminary objections are overruled, the party who filed the preliminary objections shall have the right to file an answer within 20 days after entry of the order overruling the preliminary objections or within such other time as the court shall direct.
(2) If the filing of an amended petition or a new petition is allowed or required, it shall be filed within 20 days after entry of the order concerning such amended or new petition or within such other time as the court shall direct.
(3) New preliminary objections may be filed to any amended or new petition in accordance with this Rule.
Note
Rule 3.9 has no counterpart in former Orphans’ Court Rules, but is derived from Pa.R.C.P. No. 1028.
The filings required by this rule are subject to the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania. See Rule 1.99.
Explanatory Comment
Preliminary objections raising an issue under subparagraphs (b)(2), (b)(3), (b)(4), and in some instances (b)(1), may be determined from the facts of record so that further evidence is not required. In such situations, the court may summarily decide preliminary objections prior to the filing of an answer.
Preliminary objections raising an issue under subparagraphs (b)(5) and (b)(6), and in some instances (b)(1), cannot be determined from the facts of record. In such situations, if the preliminary objections are not endorsed with a notice to plead in the form required by Rule 3.5(b)(1), no reply will be required under Rule 3.10, and the preliminary objections will be overruled.
Pleadings may be amended only in accordance with subparagraphs (d)(1), (e)(2) or Rule 3.14.
For preliminary objections to Objections to an Account, petition for adjudication/statement of proposed distribution or a notice, cf. Rule 2.8(b) for a more limited scope of permitted preliminary objections.
Source The provisions of this Rule 3.9 amended January 5, 2018, effective January 6, 2018, 48 Pa.B. 483; amended June 1, 2018, effective July 1, 2018, 48 Pa.B. 3573. Immediately preceding text appears at serial pages (390198) to (390199).
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