Rule 1028(c) - Preliminary Objections(a) A party filing preliminary objections which are not endorsed with a notice to plead, as they involve issues raised under Pa.R.C.P. No.s 1028(a)(2), (3) or (4), shall file simultaneously with the Prothonotary an original and one copy of the preliminary objections, a praecipe for argument, an argument brief and a proposed order granting the relief requested, accompanied by a proof of service of copies of those documents upon counsel for all other parties and any unrepresented parties by first class mail. The praecipe shall order that the preliminary objections be listed for argument on the next argument court date that is at least twenty-four (24) days from the date of filing, or any later date that the party filing the praecipe certifies is agreeable to all parties and the assigned judge. Said argument court date must be in accordance with the Civil Argument Court calendar, which can be found online at www.co.berks.pa.us.(b) A party filing preliminary objections which are endorsed with a notice to plead, as they involve issues raised under Pa.R.C.P. No.s 1028(a)(1), (5), (6), (7) or (8), shall file with the Prothonotary an original and one copy of the preliminary objections, accompanied by a proof of service of copies of the preliminary objections and the completed form of order upon counsel for all other parties and any unrepresented parties by first class mail.(1) The form of order referred to in paragraph (2) above shall be substantially in the following form, PROVIDED that the bracketed, italicized language is explanatory only and should not appear in the completed form of order served with the preliminary objections: ORDER
AND NOW, this _____ day of ______, ____, preliminary objections endorsed
with a notice to plead having been filed in this matter and served on ______, [date which appears on the proof of service] it is hereby ordered that:
(1) Any party wishing to oppose the preliminary objections shall file with the Prothonotary an original and one copy of the answer to the preliminary objections and proof that the answer to the preliminary objections has been served by first class mail upon counsel for all other parties and any unrepresented parties no later than _________ . [In accordance with Pa.R.C.P. 239.5 and 1026(a), which require any party opposing preliminary objections endorsed with a notice to plead to respond thereto within twenty (20) days of service of the preliminary objections, the party filing the preliminary objections must here insert a date twenty (20) days after the date listed on the proof of service filed with the preliminary objections, unless counsel and any unrepresented parties stipulate to a different time.](2) Depositions and/or any other discovery required for determination of the preliminary objections shall be completed by __________ . [The date inserted shall be no longer than sixty (60) days after the date listed on the proof of service accompanying the preliminary objections.](3) An original and one copy of a brief of argument and proposed order granting the relief requested, along with proof that such documents were served by first class mail upon counsel for all other parties and any unrepresented parties, shall be filed with the Prothonotary by ________ [the party which filed the preliminary objections] on or before ____________ [the date inserted shall be no longer than twenty (20) days after the date on which discovery ends].(4) Any party opposing the preliminary objections shall file with the Prothonotary an original and one copy of a brief of argument, proposed order and proof that such documents were served by first class mail upon counsel for all other parties and any unrepresented parties, no later than twenty (20) days after the date listed on the proof of service accompanying the brief of the party which filed the preliminary objections.(5) Argument on the preliminary objections shall be held in the assigned courtroom of the Berks County Courthouse/Services Center on the next argument court date that is at least twenty-four (24) days from the date of filing, or any later date that the party filing the praecipe certifies is agreeable to all parties and the assigned judge.(6) The party which filed the preliminary objections shall serve notice of the entry of this order, along with copies of the signed order bearing the entry date, upon all counsel and any unrepresented parties no later than two (2) business days after receiving a copy of the order.BY THE COURT:
_________________ J.
(2) Following service of copies of the preliminary objections and the above form of order, all counsel and any unrepresented parties should confer and agree upon the dates to be included in the order prior to its submission to the Court for consideration and entry.(3) The party filing the preliminary objections shall file the original of the completed form of order with the Prothonotary no later than twenty (20) days following service of copies of the preliminary objections and accompanying documents upon counsel for all other parties and any unrepresented parties, whereupon the Prothonotary shall deliver the file of the case to the Court. Nothing in this rule shall preclude the Court from changing the dates set forth in the above-referenced form of order, whether or not such dates were set by agreement of the parties. (c) If the party filing the preliminary objections fails to simultaneously file any of the additional documents required by paragraphs (1) and (2) above, the Prothonotary shall notify the Court, whereupon the Court may, unless all defects are corrected within five (5) business days of receipt of the file, overrule the preliminary objections.(d) If an amended pleading is filed in response to preliminary objections, the preliminary objections shall be deemed moot, along with all requirements of this rule relating to discovery and responding to such preliminary objections. Where an argument date has been set, the Prothonotary and Court Administration, Court Information Management Division, shall strike the preliminary objections from the argument list, if any of the following conditions are met: (1) The amended pleading is filed within twenty (20) days following the date of service of copies of the preliminary objections and accompanying documents as set forth in Pa.R.C.P. No. 1028(c)(1);(2) The amended pleading is accompanied by or follows the filing of a written stipulation of counsel waiving the time limitation set forth in Pa.R.C.P. No. 1028(c)(1) for the filing of the amended pleading; or(3) The amended pleading is accompanied by or follows the filing of a court order permitting the amended pleading to be filed notwithstanding the time limitation set forth in Pa.R.C.P. No. 1028(c)(1).(e) If no amended pleading is filed in accordance with paragraph (4) above, any party opposing preliminary objections which are not endorsed with a notice to plead, as they involve issues raised under Pa.R.C.P. No.s 1028(a)(2), (3) or (4), shall, on or before the Tuesday (or Monday, if Tuesday is a holiday) before the argument court date, file an argument brief in response to the preliminary objections, accompanied by a proposed order and proof of service of copies of the argument brief and proposed order upon counsel for all other parties and any unrepresented parties by first class mail. When the argument date is by agreement of the parties and the assigned judge, unless the assigned judge orders otherwise, the non-moving party shall file its argument brief no later than seven (7) days prior to the agreed upon argument date.(f) If any party to whose pleading preliminary objections have been filed fails to file either an amended pleading or a response to the preliminary objections, the Prothonotary shall deliver the file of the case to the Court, whereupon the Court may deem the preliminary objections to have been admitted and, without further notice, either sustain the preliminary objections; hear oral argument and rule upon the preliminary objections; rule upon the preliminary objections without oral argument; or, if an issue of fact is raised, direct that the matter be continued for no more than sixty (60) days for the parties to produce sufficient evidence for the Court to consider in making its ruling.(g) If preliminary objections are filed which involve issues raised under Pa.R.C.P. No.s 1028(a)(1), (5), (6), (7), or (8) but are not endorsed with a notice to plead and no response thereto is filed, the Court shall deem the preliminary objections to be denied in accordance with Pa.R.C.P. No. 1029(d), and may, without further notice, overrule the preliminary objections, although it may permit the preliminary objections to be re-filed, endorsed with the required notice to plead, no later than twenty (20) days after the order is entered. In the alternative, the Court may hear oral argument from the party that filed the preliminary objections and any other party wishing to be heard, or, if an issue of fact is raised, may direct that the matter be continued for no more than sixty (60) days in order to permit the party that filed the preliminary objections, and any other party wishing to participate, the opportunity to produce sufficient evidence for the Court to consider in ruling upon the preliminary objections.(h) If preliminary objections are in the nature of preliminary objections to preliminary objections, the filing, argument and disposition of the second set of preliminary objections shall proceed in accordance with paragraphs (1) through (7) above and oral argument on the first set of preliminary objections shall be continued to the date set for argument on the second set of preliminary objections. If the Court overrules the second set of preliminary objections or does not make a decision on the second set of preliminary objections, the Court may proceed with the consideration and disposition of the first set of preliminary objections in accordance with paragraphs (5) through (7) above immediately after the conclusion of argument on the second set of preliminary objections, or may schedule oral argument on the first set of preliminary objections for a date and time after it has ruled on the second set of preliminary objections.(i) The Court shall promptly determine all preliminary objections after the argument date, or, if the matter was continued in accordance with paragraphs (6) or (7) above, may re-list the matter for oral argument, request or permit additional argument briefs from the parties or, if an issue of fact is raised, shall consider the evidence produced by the parties.(j) At the Court's discretion, the preliminary objections may be determined upon the pleadings, any evidence produced and the argument briefs submitted by the parties, without oral argument. Notice thereof shall be provided by the Court to the parties and/or their counsel by letter or telephone at least three (3) business days prior to the scheduled argument date.Amended effective 2/12/2018 ; amended effective 7/9/2019; amended effective 3/14/2020.