Gray v. Buonopane , 53 A.3d 829 ( 2012 )

CONCURRING STATEMENT BY

STRASSBURGER, J.:

I join the opinion of the Majority in its entirety. I write separately to address a collateral, procedural issue raised by the pro se plaintiffs/appellants, Patricia and T. Barry Gray (the Grays).

Instantly, the trial court dismissed the Grays’ second and third amended complaints pursuant to interim motions to dismiss filed by various defendants under Pa. R.C.P. 233.1. By the time the trial court granted these defendants’ motions to dismiss, the Grays’ again amended their complaint, and their fourth amended complaint was the complaint of record. The Grays maintain that their fourth amended complaint was filed as of right and by virtue of Pa.R.C.P. 1028(c)(1), the complaint mooted the defendants’ preliminary objections as well as their motions to dismiss.

While the Grays are correct that as a general proposition, an amended complaint filed as of right moots preliminary objections and replaces all prior complaints, these legal precepts are inapplicable to Pa.R.C.P. 233.1.

A motion to dismiss pursuant to Pa. R.C.P. 233.1 is not within the class of preliminary objections listed in Pa.R.C.P. 1028. Rather, it is a separate and distinct procedural device that permits, in its own right, a defendant to move for dismissal “[ujpon commencement of any action filed by a pro se plaintiff!.]” Pa.R.C.P. 233.1(a). Given the fact that a Pa.R.C.P. 233.1 motion to dismiss is different from a Pa. R.C.P. 1028 preliminary objection, the mere filing of an amended complaint does not moot a Pa.R.C.P. 233.1 motion to dismiss. Therefore, the trial court in the instant case was not prohibited from considering the defendants’ motions to dismiss despite the fact that the Grays subsequently filed amended complaints.