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Category: Legal
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How do I answer a preliminary objection in regard to rule of

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How do I answer a preliminary objection in regard to rule of law?? Here's an excerpt of their objections:

A. Preliminary Objection: Motion To Strike The Complaint For Failure To Comply With P.A. R.C.P. 1024

8. Pa R.C.P. 1028(a)(2) permits a Defendant to move to strike a pleading because of lack of conformity to law or rule of court.

9. Pa R.C.P. 1024 requires that pleading containing averments of fact not appearing of record in the action shall state that the averment is true upon the signer's personal knowledge or information and belief and shall be verified.

10. The Complaint that was filed with the court does not contain a verification statement complying with Pa R.C.P. 1024, and as such, the complaint should be stricken.

B.  Preliminary Objection:  Motion to Strike Claim for Punitive and Consequential Damages

11.  Pa R.C.P 1028(a)(2) permits the Defendants to move to strike a pleading because of lack of conformity to law or rule of court.

12.  Pa R.C.P. 1019(a) requires material facts to be pleaded in support of a cause of action.  The facts are to be set forth concisely and in summary form.

13.  The Plaintiff's complaint does not include sufficient allegations of conduct sufficient to make a claim for punitive damages and as such, Plaintiff's claim in this regard should be stricken from the Complaint.

Wherefore, Defendants request to strike, etc.

Now as far as I knew, my complaint was in the proper format.  I started with the Factual Background explaining the events, and then I added the Counts...Assault, then referred to the particular sections of the complaint regarding that, then Battery, once again referred to the sections regarding that, and then Trespass to Land, and referred to the specific sections regarding that. After that I finalized the complaint with:

WHEREFORE, Plaintiff demands judgment against Defendant(s), as follows:

1. General damages including pain and suffering in the amount of $250,000 or an amount to be determined at trial;


2. Medical and related expenses in the amount of $75,000 or an amount to be determined at trial];


3. Punitive and Consequential Damages;


4. Costs of this Action, Including Attorney & Legal Fees;


6. Any other and further relief that the court considers proper.


 


Is there something wrong with that??  I looked up "punitive damages" online, and I now understand what they are.  In consideration of #13, I take it I am not allowed to ask for punitive and consequential damages, and that's why they're objecting? 



In regard to both of these Objections, I take it I am going to have to file a Motion for Leave to File an Amended Complaint, remove Line 3 regarding punitive and consequential damages, and be sure to add the verification statement this time around with the amended complaint.  Would that be the best course of action??

Now this is important:  If you believe I should file a Motion for Leave to File an Amended Complaint, should I then answer these particular objections as being "Admitted; however Plaintiff has filed a Motion for Leave to File an Amended Complaint in order to conform with rule of law." ??  It seems like if I "Admit" to all those lines, it might give them the opportunity to dismiss my complaint.  So what's the best way to answer those rules???

Last question:  Once I file the Motion, do I have to wait for an approval before I can file the amended complaint, or should I just file it immediately.  It's not a big deal removing one line and adding the verification statement, you know??

Thanks a WHOLE BUNCH for your help.  As of Tuesday I have 9 days to answer these, so I want to get them done and out of my hair.
Submitted: 2 years ago.
Category: Legal
Expert:  Law Pro replied 2 years ago.
When did you receive the Preliminary Objections?

What is the case about that you filed - medical malpractice?

What county in PA are you in and the suit going on in?
Customer: replied 2 years ago.
Good morning!

PO's were stamped March 16th, so I have 9 days left to answer. I've already been working on writing that up.

The case is assault and battery, with a smattering of Trespass to Land.

County is Bucks.

Expert:  Law Pro replied 2 years ago.
In response to POs you can either amend your complaint OR go in and argue to the court as to your complaint's compliance with law.

PA is a "fact pleading" state - you must plead the facts of what happened.

Given those facts of what happened - then you make your claims.

As to amending the complaint - you can ask opposing counsel to consent to your amending the complaint OR you can amend (pursuant to 1028(c)) as of right within 10 after service of a copy of the opposing party's POs.


So, if you were served the POs on the 17th - then you can file an Amended Complaint today.



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Customer: replied 2 years ago.
Well I think I'm going to have to amend because obviously I shouldn't have put in Line 3 - Punitive and Consequential damages. (See below)

I also did not file a verification statement, because I wasn't aware that I had to, so if I amend I have to do that as well.

And the PO's, as I said, were filed on the 16th, not the 17th. I think I am going to have to file the Motion to Amend, but I still need to know exactly how to answer the excerpts I gave above regarding the rules stated in their PO's.

Here's an excerpt of their objections - I need to know how to properly answer these if I file a Motion to Amend....

A. Preliminary Objection: Motion To Strike The Complaint For Failure To Comply With P.A. R.C.P. 1024

8. Pa R.C.P. 1028(a)(2) permits a Defendant to move to strike a pleading because of lack of conformity to law or rule of court.

9. Pa R.C.P. 1024 requires that pleading containing averments of fact not appearing of record in the action shall state that the averment is true upon the signer's personal knowledge or information and belief and shall be verified.

10. The Complaint that was filed with the court does not contain a verification statement complying with Pa R.C.P. 1024, and as such, the complaint should be stricken.

B. Preliminary Objection: Motion to Strike Claim for Punitive and Consequential Damages

11. Pa R.C.P 1028(a)(2) permits the Defendants to move to strike a pleading because of lack of conformity to law or rule of court.

12. Pa R.C.P. 1019(a) requires material facts to be pleaded in support of a cause of action. The facts are to be set forth concisely and in summary form.

13. The Plaintiff's complaint does not include sufficient allegations of conduct sufficient to make a claim for punitive damages and as such, Plaintiff's claim in this regard should be stricken from the Complaint.

Wherefore, Defendants request to strike, etc.

Now as far as I knew, my complaint was in the proper format. I started with the Factual Background explaining the events, and then I added the Counts...Assault, then referred to the particular sections of the complaint regarding that, then Battery, once again referred to the sections regarding that, and then Trespass to Land, and referred to the specific sections regarding that. After that I finalized the complaint with:

WHEREFORE, Plaintiff demands judgment against Defendant(s), as follows:

1. General damages including pain and suffering in the amount of $250,000 or an amount to be determined at trial;


2. Medical and related expenses in the amount of $75,000 or an amount to be determined at trial];


3. Punitive and Consequential Damages;


4. Costs of this Action, Including Attorney & Legal Fees;


6. Any other and further relief that the court considers proper.



Expert:  Law Pro replied 2 years ago.
If you amend (if you are within time OR you can just ask the judge to be allowed to amend at the time of the hearing on the POs) - then you don't have to respond to the POs.

But I can't answer each one of those issues -that's way beyond the scope of JustAnswer and this venue.

Please know that the Terms of Service of JustAnswer specify that each customer ask ONE Question in each question thread. I would respectfully XXXXX XXXXX you open a new question thread if you have a new question to ask of me. You may ask for me personally by referring to me by name (Law Pro) in the question and I will be able to answer your continuing questions.






Please ask for "Law Pro" if you have any further future questions!

Just Answer is a "PAY FOR SERVICE" Website. Please press the GREEN ACCEPT BUTTON so I will receive credit for assisting you (even if you placed a deposit or have a subscription program). You may continue to ask follow-up questions after accepting. If the information is helpful, I would very much appreciate positive feedback. Bonuses are also appreciated. If you do have a follow-up question, press REPLY, NOT relist, or else I won’t receive the question.
Customer: replied 2 years ago.
Well none of my questions have actually been answered yet. I'm in the midst of writing up this answer to their PO's, and I still don't know how to answer them if I file a Motion for Leave to File Amended Complaint. The purpose of my filing the amended complaint is to remove their objections. That's why I asked, "Now this is important: If you believe I should file a Motion for Leave to File an Amended Complaint, should I then answer these particular objections as being "Admitted; however Plaintiff has filed a Motion for Leave to File an Amended Complaint in order to conform with rule of law." ?? It seems like if I "Admit" to all those lines, it might give them the opportunity to dismiss my complaint. So what's the best way to answer those rules???"

And there is no scheduled hearing on the PO's. I never said there was, and I never requested oral argument. Are you inferring that I should file my own objections to their objections, and ask for oral argument???

Lastly, I filed the Complaint in January 2012, but the two-year statute of limitations ended March 17th or 18th. That's why I'm talking about filing the Motion For Leave To File Amended Complaint.
Expert:  Law Pro replied 2 years ago.
I'm going to opt out. Maybe another expert will assist you.

As you know, I cannot answer them for you but give you a sample response.

Here is a sample response to the POs but you will have to address their specific POs.


Rule 1017. Plaintiff's answer to defendant's preliminary objections

IN THE COURT OF COMMON PLEAS OF -------- COUNTY, PENNSYLVANIA
CIVIL DIVISION

AB CONSTRUCTION, INC.,
Plaintiff
vs. No. --------
CD, INC.,
Defendant

PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS

1. Paragraph 1 is admitted.
2. Paragraph 2 is admitted in part and denied in part. Plaintiff admits that the work that defendant performed under the contract occurred in New Castle, Pennsylvania, and denies that the contract was signed in New Castle, Pennsylvania. Defendant met with plaintiff's personnel at plaintiff's place of business in Allegheny County, Pennsylvania to request a subcontract for the excavation and backfilling work for the Roosevelt Avenue Project and the contract between the parties was entered into in Allegheny County.
3. Paragraph 3 is denied. Defendant regularly conducts excavation and backfilling work in Allegheny County, Pennsylvania.
4. Paragraph 4 is denied. Plaintiff's cause of action arose in Allegheny County, Pennsylvania, because defendant's work was to be approved by an Allegheny County architect and payments were to be made in Allegheny County.
5. Paragraph 5 is denied. The averments of paragraphs 3 and 4 of this answer are incorporated.
6. Paragraph 6 is denied. There is venue in Allegheny County because plaintiff's cause of action arose in this county, a transaction or occurrence out of which this cause of action arose occurred in Allegheny County and defendant regularly conducts business in Allegheny County.
WHEREFORE, plaintiff requests this court to overrule defendant's preliminary objections.
--------
Attorney for Plaintiff

[verification]

--------------------
ORDER OF COURT

On this -------- day of --------, 20--, it is hereby ordered that defendant's preliminary objections are overruled.
BY THE COURT:
--------
J.


Customer: replied 2 years ago.
Thanks, XXXXX XXXXX don't help because they're not answering rules of law.

Opting out - okay, well then how do I get someone else to answer my question?



Expert:  Law Pro replied 2 years ago.
It's going to be tough because you have so many questions in your one question.

Since your a JA expert - you know that the Terms of Service of JustAnswer specify that each customer ask ONE Question in each question thread.
Customer: replied 2 years ago.
I found this online. #2 and #3 would seem the appropriate response, altering each line to the rules stated in the PO's. Is this the answer I was looking for, in regard to how to answer those particular PO's???

A. FIRST OBJECTION

1. Admitted.

2. No response is required to the averment under the Pennsylvania Rules of Civil Procedure. Rule 1006 speaks for itself.

3. No response is required to the averment under the Pennsylvania Rules of Civil Procedure. Rule 402 speaks for itself.

4. Denied. This averment is a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure.

5. Admitted in part. It is admitted that certain events occurred in Lancaster County. It is specifically denied that the cause of action set forth in Plaintiff’s Complaint arose in Lancaster County. The remainder of this averment is denied.

Expert:  Law Pro replied 2 years ago.
Where does Rule 1006 come into the matter?

Where does Rule 402 come into the matter?

The defendant objected pursuant to rules P.A. R.C.P. 1019, 1024, and 102.

You are NOT responding the defendant's POs.

You must address each PO filed by the defendant.
Customer: replied 2 years ago.
Ugh! I said I found that online....and I said I would alter each line to the rules stated in the PO's.

ie:

8. No response is required to the averment under the Pennsylvania Rules of Civil Procedure. Rule 1028 speaks for itself.

9.
No response is required to the averment under the Pennsylvania Rules of Civil Procedure. Rule 1024 speaks for itself.

10. ??? Not sure how to answer this one!!

11.
No response is required to the averment under the Pennsylvania Rules of Civil Procedure. Rule 1028 speaks for itself.

12.
No response is required to the averment under the Pennsylvania Rules of Civil Procedure. Rule 1019 speaks for itself.

13. ??? Not sure how to answer this one either!!


Expert:  Law Pro replied 2 years ago.
No, those are irrelevant or bad responses and don't address the rules nor your compliance with them as to your averments within your complaint.
Customer: replied 2 years ago.
In that case then, it's impossible for me to answer these damn things without admitting to 8 through 13, and admitting to 8-13 I may as well just burn my complaint.

Obviously I can't friggin' deny rules of civil procedure, so why those are not appropriate responses are beyond me.

I think the legal system sucks ass. It's all been deliberately complexified to ensure lawyers make money. This is bullshit.

Expert:  Law Pro replied 2 years ago.
I take offense to your language and comments.

There are rules of civil procedure. We attorneys go to law school to understand and learn the law.

Clearly, it's not easy for a lay person to understand the law which you finding out.

Why those aren't appropriate responses you made?

A document "speaks for itself".

A pleading has to conform to a rule of civil procedure - which your pleadings obviously don't.

Re-read the rules and make your pleadings conform to such.
Customer: replied 2 years ago.
Found the rules:

Rule 1028 (c)(1) A party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections. If a party has filed an amended pleading as of course, the preliminary objections to the original pleading shall be deemed moot.

(f) Objections to any amended pleading shall be made by filing new preliminary objections.

Well, it appears if I file the amended complaint, correcting for their PO's, their objections will be rendered moot. BUT, what about the fact that the statute of limitations is up? Do I have to file the Motion for Leave to File Amended Complaint, with the amended complaint, if so do I also have to wait for the Motion to be approved, or should I just file the Amended Complaint all by itself??


Expert:  Law Pro replied 2 years ago.
The amending of the complaint renders those POs moot - that is correct.

That because you filed within the SoL the original complaint - you are still fine amending your complaint as it reverts back to the original date of filing as to your cause of action.


If you haven't amended the complaint within the 10 days - then you need the consent of the court regardless if the opposing party consents.

So you should file a motion to amend the complaint and get a court order allowing you to amend.

Then, they can still file POs to your amended complaint.
Customer: replied 2 years ago.

The rule says 20 days, and I'm well within that timeframe.

Did you just make a mistake there, saying 10??
Expert:  Law Pro replied 2 years ago.
You are correct - sorry - 20 days from date of service of the POs.
Law Pro, Attorney
Category: Legal
Satisfied Customers: 23964
Experience: 20 years legal practitioner: real estate, collections, estate, civil, business, and criminal law
Law Pro and 16 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
Okay, well that's what I'll do. I'll simply file the amended complaint without the punitive and consequential damages Line 3, and include the verification statement.

Sure is a helluva lot better than answering all that crap.

I swear, when you look at the legal system from the outside you see how over-complexified it's been made. It's clear that the system was designed that way so that lawyers would have life-long careers and make a shitload of money. It all comes down to money, just like everything else in this sad little world. Back in the 1800's you walked into court, voiced your complaint, a judge heard both sides and then made his decision. You then either adhered to the judge's decision and paid up, or you went to jail until you did comply.

Oh but things just couldn't be kept simplistic like that. Oh no, because then there'd BE no lawyers.

Customer: replied 2 years ago.

You didn't have to submit my question to all experts. Though I wound up finding the rule and information myself, I intended to pay you for your final answer because it was still helpful and I did appreciate your time.

Thank you. Likely I'll be posing more questions in this case in the future, so look for me!!


Expert:  Law Pro replied 2 years ago.
Punitive damages are recoverable for the tort of intentional assault and trespass.

So I wouldn't remove the request for such.


No, the rules are there to protect the parties in litigation - not at all for the benefit of attorneys.

I hate to say it but you certainly have a misguided concept of the legal system which is based upon naivety thereof.
Customer: replied 2 years ago.
Hmm?? If punitive and consequential damages are recoverable, then why did they object to them in their PO's??

That's weird.
Expert:  Law Pro replied 2 years ago.
They try to PO such so that their client is not subject to an award for such.

No, that's not weird - but good legal strategy and attorney diligence.
Customer: replied 2 years ago.
Okay, so if I put Line 3 back in and add those once again, the complaint is exactly the same as it was before and their attorney is likely to file more PO's as a result....except this time he won't be able to object to the verification statement because this time one will be added.

But once he objects to the punitive and consequential damages again, how should I answer them at that time?
Expert:  Law Pro replied 2 years ago.
You have to find PA law that allows for the awarding of punitive damages for assault and trespass.

Although I'm not sure if punitive damages are possible for trespass - I'm sure of it for assault.

For both you need to research case law for your response.
Customer: replied 2 years ago.
I see online that it's good for assault, and battery.

Still trying to find out what to do in regard with that....if I have to add something else to the complaint.

Customer: replied 2 years ago.
Okay I'm lost. I'd rather cut him off at the pass by amending the complaint to avoid yet another objection in regard to punitive and consequential damages, but I have no idea what this below means.

Rule 1019. Contents of Pleadings. General and Specific Averments.

(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.

 

 

Objection #13 - The Plaintiff's complaint does not include sufficient allegations of conduct sufficient to make a claim for punitive damages and as such, Plaintiff's claim in this regard should be stricken from the Complaint.

I don't get that either. I explained the story in detailed events, line by line. Maybe I should object to his future objection regarding this, when I get it, or just deny it and state "Denied, the Plaintiff's complaint speaks for itself."

What do you think?

Expert:  Law Pro replied 2 years ago.
I would respectfully XXXXX XXXXX you open another thread and ask your question therein.
Customer: replied 2 years ago.

Ugh. It will be way too complex for me to do that, because then I'd have to re-explain all this to someone else.

Expert:  Law Pro replied 2 years ago.
Again, please know that the Terms of Service of JustAnswer specify that each customer ask ONE Question in each question thread. I would respectfully XXXXX XXXXX you open a new question thread if you have a new question to ask of me. You may ask for me personally by referring to me by name (Law Pro) in the question and I will be able to answer your continuing questions.
Customer: replied 2 years ago.
I think I figured it out. I basically just have to add another Count for Punitive and Consequential Damages, then refer to the paragraphs in the Factual Background section. That way it will be "in summary form."

Like:

COUNT 1 - ASSAULT

Then refer to the paragraphs relating to that.

COUNT 2 - BATTERY

Then refer to the paragraphs relating to that.

COUNT 3 - PUNITIVE & CONSEQUENTIAL DAMAGES

Then refer to the sections in which this was a deliberate act.

I believe that'll do the trick.

Expert:  Law Pro replied 2 years ago.
I have opted out of the question.
Customer: replied 2 years ago.
Okay, since all I really needed to do was file an Amended Complaint when I asked this question of you and somehow it got all over-complexified, I have a new question about the wiretapping case you already helped me with.

I already filed an Execution Order, they went to his bank and there was less than $50 in it. They went to his house after that, he of course wouldn't let him in, so all they could do was attach a bunch of useless junk outside the house that won't pay the judgment.

I just heard from the Sheriff today, and she told me to send them a fax stating that I was not going to have the sale this Monday, and then she told me I could get a "Break and Enter" order.

Now, online I found a Motion For Order To Break And Enter, and then I found your response to someone else's question with all these petitions listed here:

http://www.justanswer.com/question/tp/qa-guest-content.aspx?TID=8881835

Should I file a Motion For Order To Break And Enter in Motions Court, or should I file these petitions of yours? If the petitions, WHICH ONES, or do I have to file ALL of them??

I basically just want the Sheriff to go in and be able to either open this guy's door with a locksmith, or go in peaceably and tag his valuables that I know he has in his house.

Once that happens, he'll friggin' pay the hell up. Tired of this legal mambo ja hambo.

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