Lack of Standing in Preliminary Objections
Green
Objections to Plaintiff's Motion for Declaratory Judgment citing
Plaintiff's alleged Lack of Standing.
The Pa. Rules of Civil Procedure (Pa. R.C.P.) outline specifically the
grounds which may be brought as Preliminary Objections. I'll post the
relevant text of the Pa. R.C.P. below. To my untrained legal eye, I
don't see where Lack of Standing fits into any of the permitted
grounds.
So my questions are:
1) Can Lack of Standing be brought up in Preliminary Objections?
2) If the answer is yes, then under which of the Pa. R.C.P.
categories does it fall? And why does it fall under that grounds?
3) If Lack of Standing cannot be brought up in Preliminary
Objections, then where is the proper place to bring a Lack of Standing
question? Would it be in Defendant's Answer to Plaintiff's Motion for
Declaratory Judgment?
Thanks for you help--and here is the relevant Pa. R.C.P.
- - - - - - - - -
Rule 1028. Preliminary Objections.
(a) Preliminary objections may be filed by any party to any pleading
and are limited to the following grounds:
(1) lack of jurisdiction over the subject matter of the action or
the person of the defendant, improper venue or improper form or
service of a writ of summons or a complaint:
Official Note
Of the three grounds available to challenge venue, only improper
venue may be raised by preliminary objection as provided by Rule
1006(e). Forum non conveniens and inability to hold a fair and
impartial trial are raised by petition as provided by Rule 1006(d)(1)
and (2).
See Rule of Appellate Procedure 311(b) for interlocutory appeals as
of right from orders sustaining jurisdiction and venue.
(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);
Official Note
The defense of the bar of a statute of frauds or statute of
limitations can be asserted only in a responsive pleading as new
matter under Rule 1030.
(5) lack of capacity to sue, nonjoinder of a necessary party or
misjoinder of a cause of action;
(6) pendency of a prior action or agreement for alternative
dispute resolution;
Official Note
An agreement to arbitrate may be asserted by preliminary objection
or by petition to compel arbitration pursuant to the Uniform
Arbitration Act, 42 Pa.C.S. ง 7304, or the common law, 42 Pa.C.S. ง
7342(a).
(7) failure to exercise or exhaust a statutory remedy, and
(8) full, complete and adequate non-statutory remedy at law.
(b) All preliminary objections shall be raised at one time. They
shall state specifically the grounds relied upon and may be
inconsistent. Two or more preliminary objections may be raised in one
pleading.
(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.
(2) The court shall determine promptly all preliminary objections.
If an issue of fact is raised, the court shall consider evidence by
depositions or otherwise.
Official Note
Preliminary objections raising an issue under subdivision (a)(1),
(5), (6), (7) or (8) cannot be determined from facts of record. In
such a case, the preliminary objections must be endorsed with a notice
to plead or no response will be required under Rule 1029(d).
However, preliminary objections raising an issue under subdivision
(a)(2), (3) or (4) may be determined from facts of record so that
further evidence is not required.
Rule 239.5 requires every court to promulgate Local Rule 1028(c)
describing the local court procedure governing preliminary objections.
Local Rule 1028(c) shall be published on the web site of the
Administrative Office of Pennsylvania Courts (www.aopc.org).
(d) If the preliminary objections are overruled, the objecting party
shall have the right to plead over within twenty days after notice of
the order or within such other time as the court shall fix.
(e) If the filing of an amendment, an amended pleading or a new
pleading is allowed or required, it shall be filed within twenty days
after notice of the order or within such other time as the court shall
fix.
(f) Objections to any amended pleading shall be made by filing new
preliminary objections.
Source
The provisions of this Rule 1028 adopted June 25, 1946, effective
January 1, 1947; amended March 28, 1973, effective July 1, 1973;
amended July 18, 1991, effective January 1, 1992, 21 Pa.B. 3400;
amended October 24, 2003, effective 9 months after the date of the
Order, 33 Pa.B. 5506; amended December 16, 2003, effective July 1,
2004, 34 Pa.B. 9. Immediately preceding text appears at serial pages
(296886), (301337) and (301339).
Mike Jacobs
> In a Pennsylvania Commonwealth Court, Defendant filed Preliminary
> Objections to Plaintiff's Motion for Declaratory Judgment citing
> Plaintiff's alleged Lack of Standing.
And you, I presume, are a pro se Plaintiff, representing yourself?
If you could describe at least a bit of what your Complaint is about
(it's no secret already, since you filed it in Court) then perhaps you
might be able to get more pertinent and useful comments here.
> The Pa. Rules of Civil Procedure (Pa. R.C.P.) outline specifically the
> grounds which may be brought as Preliminary Objections. I'll post the
> relevant text of the Pa. R.C.P. below. To my untrained legal eye, I
> don't see where Lack of Standing fits into any of the permitted
> grounds.
I snipped your long quote of the statutory text, but I suggest you
look at the recent (still ongoing) thread on the standing issue on MLM
under the thread subject heading "Can I sue on behalf of an entity in
which I have a very minor interest?" and my comments there.
Standing is, strictly speaking, a preliminary question going to the
issue of "subject-matter jurisdiction," in a court of limited
jurisdiction. That could be one way your defendant is using the term,
and would be the proper way.
It is also possible that what your defendant really meant was that you
lack "capacity to sue." That is strictly speaking a separate issue,
going more to your personal characteristics than to the nature of the
relationship between your person and the claims you are making (which
is what the concept of "standing" looks at).
Both subject-matter jurisdiction and capacity to sue are listed in the
statute you quote, as proper grounds for preliminary objections. The
court is likely to look at the substance of the grounds raised, not at
the label defendant puts on those grounds, in deciding whether he
should be allowed to raise those grounds at the preliminary-objection
stage. So, act accordingly.
> So my questions are:
> 1) Can Lack of Standing be brought up in Preliminary Objections?
The answer to that is a resounding "maybe." Depends on what he
really meant by that. But I'm going to say "yes" because, hey, he
_did_ in fact bring it, so that means (in one sense) it _can_
physically be done, right? Whether it is _permitted_ to be done is a
separate question; but the court is likely to look at the merits of
what he is saying in any event, as they must do in order to decide
whether the preliminary motion to dismiss was properly brought, and if
so, whether it ought to be granted or denied. So it really doesn't
make much difference if he "can" do this or not, since he _did_ do it,
and since the court is going to have to look into what he is saying
anyway.
> 2) If the answer is yes, then under which of the Pa. R.C.P.
> categories does it fall? And why does it fall under that grounds?
Standing to sue is a subject-matter jurisdiction issue -- if you lack
standing, then there is no actual controversy for the court to decide,
assuming they are not permitted to decide purely academic issues
(which, in a state court, may not be a limitataion, as it is for a
federal Article III court).
Capacity to sue is a related concept but analytically distinct. It
refers to _your_ personal characteristics that empower you as a
plaintiff to raise _any_ kind of claim, not at your relationship to
the particular subject matter of your suit, as standing does.
> 3) If Lack of Standing cannot be brought up in Preliminary
> Objections, then where is the proper place to bring a Lack of Standing
> question?
Per my answer to (1), I doubt the court will have to reach and answer
your question (3). However, my understanding is that any subject-
matter-jurisdiction-related issue can be brought up at _any_ time,
even after a verdict has been entered, so long as judgment has not yet
become final. That is, you could go all the way to trial, and win,
and then still lose on appeal because you lacked standing to sue in
the first place. That's how it works.
> Would it be in Defendant's Answer to Plaintiff's Motion for
> Declaratory Judgment?
In general, a challenge based on lack of standing can be raised at any
time. But I don't know how PA law specifically works.
> Thanks for you help--and here is the relevant Pa. R.C.P.
[snipped]
Good luck. Tell us a bit more about your claim, and the reason you
feel you have a right to bring it, if you want us to help you analyze
the "standing" issue here.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685
Green
> On Sep 9, 1:30 pm, Green <GreenR...@yahoo.com> wrote:
>
> > In a Pennsylvania Commonwealth Court, Defendant filed Preliminary
> > Objections to Plaintiff's Motion for Declaratory Judgment citing
> > Plaintiff's alleged Lack of Standing.
>
> And you, I presume, are a pro se Plaintiff, representing yourself?
>
> If you could describe at least a bit of what your Complaint is about
> (it's no secret already, since you filed it in Court) then perhaps you
> might be able to get more pertinent and useful comments here.
>
The city took over trash hauling (which I concede it has the right to
do)--thus displacing the private haulers, including me. The city
honored existing written contracts--which most haulers didn't have--
but prohibited the making of new contracts, and the renewing of
existing contracts.
The city, however, made several procedural errors in adoping the
ordinance. The law in Penna. requires strict compliance with adoption
procedures or ordinance will be declared void. Motion for Summary
Judgment was timely brought by Plaintiff. City filed PO's, one of
them being lack of standing. The others are PO's by way of demurrer,
but that's another thread.
Haulers not only have their business at risk, but some are also
property owners who must now pay trash collection fees to the city,
city residents, and city taxpayers
>
> > So my questions are:
> > 1) Can Lack of Standing be brought up in Preliminary Objections?
>
Finally I was able to get off work and get to the law library. The
raising of Lack of Standing in Preliminary Objections appears to be
based entirely on judicial decisions rather than statute.
>From Standard Pennsylvania Practice; SS 6:46; Standing-Relationship to
jurisdiction (citations omitted):
"The question of standing is generally not a jurisdictional issue and,
therefore, it may not be raised sua sponte. Thus, lack of standing is
nonjurisdictional and waivable. Accordingly, failure to properly raise
it in preliminary objections waives the issue in future proceedings."
"Juxtaposed against the federal standards, the test for standing in
Pennsylvania is a flexible rule of law, perhaps because the lack of
standing in Pennsylvania does not necessarily deprive the court of
jurisdiction, whereas a lack of standing in the federal arena is
direcctly correlated to the ability of the court to maintain
jurisdiction over the action."
>
> Good luck. Tell us a bit more about your claim, and the reason you
> feel you have a right to bring it, if you want us to help you analyze
> the "standing" issue here.
> --
The main thrust of the city's lack-of-standing objection is that
haulers have no legally protected right to contract for trash
removal. But here the city is trying to frame the argument in light
most favorable to it, rather than on what the law actually says.
I think there are several ways to show standing:
First we don't need to have a 'legally protected' right to contract
for trash removal service. Rather, all that need be demonstrated is a
substantial, direct, and immediate interest in the matter; or that the
conduct might cause harm to our interests. The prohibition on making
new contracts, or renewing existing contracts, means the eventual
displacement of all private haulers. Displacement of a business ought
to show substantial, direct and immediate interest.
Second, in the event that the court finds a lack of substantial,
direct, and immediate interest.on the part of haulers, we should be
able to show standing of haulers who are also owners who now have to
pay trash collection fees to the city instead of collecting their own
trash.
Third, in the event that the court finds hauler/owners who pays fees
also lack standing, we will argue that, under the Declaratory
Judgments Acts, "[a]ny person whose rights, status, or other legal
relations are affected by a statute or municipal ordinance, may have
determined any question of construction or validity arising under the
statue or ordinance and obtain a declaration of rights, status, or
other legal relations thereunder." It seems clear that plaintiffs
have standing under this standard. However . . .
Fourth, in the event that the court finds that hauler/feepayers lack
standing, we argue that "[a] taxpayer does have the right and standing
to sue to enjoin public officials from wrongfull or unlawfully
expending public money." Since, we argue, the adoption of the
ordinance failed to meet the procedural requirements, then we should
be able to infer that public money is being wrongfully or unlawfully
spent and a taxpayer has the right and standing to sue. However . .
Fifth, in the event that the court finds that hauler/taxpayers lack
standing, we can argue that we fall into one or more of the exceptions
to the general requirements of standing, such as:
-the governmental action would otherwise go unchallenged.
-judicial relief is appropriate
-there is no redress through other channels
-no other persons are better suited to assert the claim.
Is there any reason why the court might find, despite these arguments,
lack of standing?
How should I put all this together in the Response to Preliminary
Objections? Should I laundry-list ALL of these along with the
supporting statutory and case law? If yes, is the format above
correct, or how should I present this laundry list?
Or should I focus on only one, or, perhaps two of the strongest
arguments to demonstrate standing?
Should I point out that the defense has drawn the incorrect conclusion
of law (haulers have no legally protected right to contract for trash
collection service and so have no standing), or should I leave that
unsaid on the assumption that the judge will spot the defense's
incorrect conclusion and spot the correct conclusion of law based on
our analysis of statute and case law?
I want to answer the objection that plaintiff has no standing by
stating that "[l]ack of standing is a conclusion of law to which no
responsive pleading is required under the Rules of Civil Procedure."
But how can I determine that lack of standing is a conclusion of law
rather than a finding of fact? I looked through Standard
Pennsylvania Practice under the sections that discuss standing but
found nothing stating that standing is a conclusion of law. So how
should I support the argument that lack of standing is a conclusion of
law, not a finding of fact?
Finally, what is the best way to present the arguments to the court?
I plan on putting the full legal arguments into the Memorandum of Law
in Support. But should I also try to summarize, in the Answer to
PO's, the legal arguments presented in the Memo? For instance, should
I just say in the Answer that Objection No. 1 is denied as it is a
conclusion of law. Or should I try to summarize the argument
explaining why Objection No. 1 a conclusion of law?
Any suggestions on how else I ought to proceed in answering the lack
of standing objections?
Thanks,
Green
Green
> The city, however, made several procedural errors in adoping the
> ordinance. �The law in Penna. requires strict compliance with adoption
> procedures or ordinance will be declared void. �Motion for Summary
> Judgment was timely brought by Plaintiff. �City filed PO's, one of
> them being lack of standing. �The others are PO's by way of demurrer,
> but that's another thread.
>
OOPS, I did not mean to say Motion for Summary Judgment was timely
brought by Plaintiff. I meant to say Petition for Declaratory
Mike Jacobs
> On Sep 12, 11:21 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > On Sep 9, 1:30 pm, Green <GreenR...@yahoo.com> wrote:
>
> > > In a Pennsylvania Commonwealth Court, Defendant filed Preliminary
> > > Objections to Plaintiff's Motion for Declaratory Judgment citing
> > > Plaintiff's alleged Lack of Standing.
>
> > And you, I presume, are a pro se Plaintiff, representing yourself?
>
> > If you could describe at least a bit of what your Complaint is about
> > (it's no secret already, since you filed it in Court) then perhaps you
> > might be able to get more pertinent and useful comments here.
>
> The city took over trash hauling (which I concede it has the right to
> do)--thus displacing the private haulers, including me. The city
> honored existing written contracts--which most haulers didn't have--
> but prohibited the making of new contracts, and the renewing of
> existing contracts.
>
> The city, however, made several procedural errors in adoping the
> ordinance. The law in Penna. requires strict compliance with adoption
> procedures or ordinance will be declared void. Motion for Summary
> Judgment was timely brought by Plaintiff. City filed PO's, one of
> them being lack of standing.
Okay, that's enough to get the general idea. You do allege a
particularized harm to yourself as a result of this government action,
I presume, and that would usually be sufficient under the Federal
caselaw to grant you standing in Federal court. But, I have no idea
what PA statutes may say or how PA courts have interpreted the PA
standing requirement in cases like yours.
[detailed statement of what OP did and intends to do in answering the
defense motions, snipped]
> Any suggestions on how else I ought to proceed in answering the lack
> of standing objections?
Sir, I can't give you detailed and specific advice about what to do.
I don't know PA law, and the best advice anyone can give you would be
to hire a PA lawyer to take over the prosecution of this lawsuit for
you. My guess is that doing so will vastly increase your chances of
winning. At the very least, _consult_ a PA lawyer and if s/he
expresses no interest in taking on your case, ask him/her _why_. You
might get some useful pointers on what "warts" there are on your
claim, legally or factually, and/or what you are doing right/wrong in
your pro se suit.
Ask your friends who have used lawyers, whom they would recommend as
smart and trustworthy (at this point, regardless of what field of law
or what subject matter). Then call those lawyers and ask them who
you should go to, for your kind of issues. If your case is something
they can handle, great. If not, ask for _their_ recommendations of
colleagues who do this sort of law. When you get the same name from
several independent contacts, that's your go-to guru. Call him or
her and make an appointment. Ask about fees for the initial
consultation (some initial consults are free, as a marketing come-on,
other lawyers charge for their time regardless, which is also
reasonable). In any event, once you hire somebody you will probably
be paying by the hour for advice and other services, unless it is an
accident or collection case, in which most lawyers offer a contingent,
percentage fee arrangement where you do not have to pay until the
lawyer wins you some money from your opponent. The most crucial thing
is to set up that first interview, where your lawyer can explain all
of this to you in detail, and then, if you are happy with the
proffered game plan, he can sign you up as a client. Good luck.
ne...@google.com
On Oct 1, 11:59 pm, Green <GreenR...@yahoo.com> wrote:
> The city took over trash hauling (which I concede it has the right to
> do)--thus displacing the private haulers, including me. The city
> honored existing written contracts--which most haulers didn't have--
> but prohibited the making of new contracts, and the renewing of
> existing contracts.
>
> The city, however, made several procedural errors in adoping the
> ordinance. The law in Penna. requires strict compliance with adoption
> procedures or ordinance will be declared void. Motion for Summary
> Judgment was timely brought by Plaintiff. City filed PO's, one of
you have standing and eventually declares the ordinance void. What's
the logical outcome? The city re-enacts the ordinance (which you
concede that it could do), following proper procedure. Result = same
ordinance + city money expended in defense of case + your effort and
money expended in prosecution of case; net result to you = loss.
Now assume your worst case scenario. The court rules against you for
any of a number of reasons, and imposes sanctions against you because
it decides that your case was frivolous. The ordinance stands, and
you have to pay the city's hefty attorney fee bill. Result = same
ordinance + your effort and money expended in prosecution of case +
you pay city's costs; net result to you = loss.
Now assume one possible intermediate scenario. The court rules that
the city did not make technical errors in enacting the ordinance, or
that substantial compliance is the standard and the city substantially
complied with procedure (i.e., the court disagrees with you on one or
both of your arguments). However, no ruling that your case was
frivolous. Result = same ordinance + city money expended in defense
of case + your effort and money expended in prosecution of case; net
result to you = loss.
I won't try to anticipate other intermediate scenarios. You get the
idea. So what do you truly EXPECT (not hope) to gain from this case?