A.J. Russo v. Allegheny County, and the Court of Common Pleas of Allegheny County, PA, Criminal Division , 2015 Pa. Commw. LEXIS 429 ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alfred J. Russo, :
Petitioner :
:
v. : No. 185 M.D. 2015
: Submitted: June 12, 2015
Allegheny County, :
and the Court of Common Pleas :
of Allegheny County, Pennsylvania, :
Criminal Division, :
Respondents :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: October 7, 2015
Before the Court are the preliminary objections filed by the Court of
Common Pleas of Allegheny County, Criminal Division (CCP) to the complaint
filed by Alfred J. Russo, following his termination from employment with CCP in
2009. This matter was initially filed in the Court of Common Pleas of Allegheny
County1 (Trial Court) against CCP and Allegheny County as dual employers. The
Trial Court transferred the action against CCP to this Court based on the Trial
Court’s lack of jurisdiction over claims asserted against Commonwealth parties,
1
In order to avoid confusion regarding the dual role of the Court of Common Pleas of Allegheny
County as both a Respondent and the trial court in this matter, we exclusively refer to the court
as “CCP” with respect to its role as the Respondent in this action and as the “Trial Court” with
respect to its role as the trial court.
but retained the case against Allegheny County. For the reasons stated below, we
sustain the preliminary objections filed by CCP and dismiss the complaint.
In his complaint, Russo alleges that he was hired by CCP as a minute
clerk in 1974 and he was eventually promoted to the position of Manager of the
Criminal Division of CCP in charge of all minute clerks, tip staff and arraignment
clerks. (Compl. ¶¶7, 8 & n.1.) Throughout his entire term as an employee of CCP
until his discharge in 2009, Russo alleges that he worked under an employment
contract and enjoyed tenure in his position as long as he did not commit a crime or
“bring[] disrespect upon the Court.” (Id. ¶¶8, 9.) Russo alleges that this
employment contract is evidenced through various oral representations,
memoranda, administrative orders, regulations and other documents. (Id. ¶9.)
Russo alleges that he continually received high marks on his performance
evaluations but he was forced to resign on February 20, 2009 after being
threatened with either a demotion to the lowest minute clerk position with a
substantial reduction in salary or termination without the possibility of an early
retirement. (Id. ¶¶7, 12, 16, 17.) Russo alleges that this constructive discharge
was in part a reprisal for his cooperation with federal and state authorities who
were investigating CCP and also allowed CCP to clear the way for a patronage hire
with no relevant work experience. (Id. ¶¶11, 15, 18.)
Russo filed his complaint against CCP and Allegheny County2 in the
Trial Court on February 9, 2011 asserting five causes of action: (i) wrongful
discharge based upon the violation of his employment contract; (ii) failure to pay
for accrued sick days in violation of his employment contract; (iii) a common-law
2
Russo named Allegheny County as a defendant on the basis that it was a joint employer with
CCP. (Compl. ¶6.)
2
wrongful discharge claim; (iv) a whistleblower claim based upon his employment
contract; and (v) a statutory whistleblower claim. (Compl. ¶¶23-34.) Russo seeks
reinstatement to his position and damages to compensate him for a loss of
earnings, his lost sick days, reimbursement for medical coverage and emotional
distress. (Compl. ¶¶19-22, Relief Requested.)
CCP and Allegheny County each filed preliminary objections to the
complaint. On February 12, 2015, the Trial Court issued an order transferring the
action against CCP to this Court on the basis that original jurisdiction over claims
relating to Commonwealth entities lies exclusively with this Court. See 42 Pa. C.S.
§ 761(a)(1) (“The Commonwealth Court shall have original jurisdiction of all civil
actions or proceedings...[a]gainst the Commonwealth government....”). On that
same date, the Trial Court issued an order granting Allegheny County’s
preliminary objections and dismissing the complaint against Allegheny County. 3
CCP argues in its preliminary objections that the common law claims
asserted by Russo are barred by sovereign immunity because the claims are not
encompassed in the General Assembly’s waivers of sovereign immunity for tort or
contract claims against Commonwealth parties. CCP further argues that the claim
under the Whistleblower Law4 must be dismissed because the Whistleblower Law
does not apply to CCP, Russo did not allege that he reported wrongdoing to an
appropriate authority and the claim was untimely filed outside the six-month
statute of limitations. Finally, CCP argues that his claims are precluded by the
3
Although the February 12, 2015 order was not included in the record transferred to this Court,
we take judicial notice of this development in a related proceeding. Grever v. Unemployment
Compensation Board of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010); C.J. v. Department of
Public Welfare, 960 A.2d 494, 497 n.8 (Pa. Cmwlth. 2008).
4
Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421–1428.
3
doctrine of res judicata because Russo had the opportunity to assert these claims in
a previous lawsuit in federal court, which involved the same parties, concerned the
same alleged wrongful discharge and was decided against Russo.5 See Russo v.
Allegheny County, (W.D. Pa., No. 10CV00711, filed Oct. 28, 2010), 2010 WL
4366288.
We first address counts I, II and IV of the complaint which are
premised on an alleged employment contract between Russo and CCP. CCP
argues that as a court of the unified judicial system it is a part of the
Commonwealth government and entitled to sovereign immunity as a
Commonwealth entity. The Pennsylvania Constitution provides that the
Commonwealth and its officers and employees may only be sued where the
General Assembly has authorized the suit. Pa. Const. art. 1 § 11. The General
Assembly has specified that “the Commonwealth, and its officials and employees
acting within the scope of their duties, shall continue to enjoy sovereign immunity
and official immunity and remain immune from suit except as the General
Assembly shall specifically waive the immunity.” 1 Pa. C.S. § 2310.
Under Article 5, Section 1 of the Pennsylvania Constitution, the
“judicial power of the Commonwealth shall be vested in a unified judicial system.”
Pa. Const. art. 5, § 1. The courts of common pleas are included in the unified
5
When reviewing preliminary objections to a complaint in our original jurisdiction, this Court
must treat as true all well-pleaded, material and relevant facts together with any reasonable
inference that can be drawn from those facts. Township of Derry v. Department of Labor and
Industry, 940 A.2d 1265, 1268 (Pa. Cmwlth. 2008); Diess v. Department of Transportation, 935
A.2d 895, 903 (Pa. Cmwlth. 2007). Where a preliminary objection presents a question of law,
such as objections related to issues of sovereign immunity and statutory interpretation, our
standard of review is de novo and our scope of review is plenary. Feldman v. Hoffman, 107 A.3d
821, 826 n.7 (Pa. Cmwlth. 2014); Bender v. Pennsylvania Insurance Department, 893 A.2d 161,
162 (Pa. Cmwlth. 2006).
4
judicial system. Id.; 42 Pa. C.S. § 301(4) (“The judicial power of the
Commonwealth shall be vested in a unified judicial system consisting of
the...[c]ourts of common pleas”). The Pennsylvania Constitution further provides
that the Supreme Court has the sole authority to administer, supervise and
prescribe rules of practice, procedure and conduct for the courts of the unified
judicial system. Pa. Const. art. 5, § 10(a), (c); see also 42 Pa. C.S. § 501.
Moreover, the General Assembly has defined the “Commonwealth government” in
the Judicial Code to include “the courts and other officers or agencies of the
unified judicial system,” 42 Pa. C.S. § 102, and our appellate courts have relied on
this definition in determining that original jurisdiction lies in this Court for civil
actions filed against judges and officers of the courts of common pleas pursuant to
Section 761(a)(1) of the Judicial Code.6 See, e.g., Richardson v. Peters, 19 A.3d
1047, 1047-48 (Pa. 2011) (per curiam) (Clerk of Courts of the Court of Common
Pleas of Chester County); In re Domestic Relations Hearing Room, 796 A.2d 407,
409-10 (Pa. Cmwlth. 2002) (en banc) (President Judge of the Court of Common
Pleas of Northumberland County).
While the precise issue of whether courts of common pleas retain
sovereign immunity has not been addressed, this Court has ruled that Magisterial
District Judges are officers of the Commonwealth, rather than the counties in
which they sit, and therefore enjoy sovereign immunity except where abrogated by
the state. Cimino v. DiPaolo, 786 A.2d 309, 311 (Pa. Cmwlth. 2001); Heicklen v.
Hoffman, 761 A.2d 207, 209 (Pa. Cmwlth. 2000). Our Supreme Court has also
held that judges of the courts of common pleas are officers of statewide
6
As noted above, the Trial Court here transferred Russo’s suit against CCP to this Court on this
basis.
5
jurisdiction, allowing the Supreme Court to hear a quo warranto action to remove
a court of common pleas judge in its original jurisdiction. Commonwealth ex rel.
Judicial Conduct Board v. Griffin, 918 A.2d 87, 92-93 (Pa. 2007). Furthermore,
the federal courts have consistently held that Pennsylvania courts, including the
courts of common pleas, are immune from suit in federal court under the Eleventh
Amendment of the U.S. Constitution. See, e.g., Benn v. First Judicial District of
Pennsylvania, 426 F.3d 233, 238-41 (3d Cir. 2005); Callahan v. City of
Philadelphia, 207 F.3d 668, 672-73 (3d Cir. 2000). Accordingly, we hold that
CCP, as a court of the unified judicial system, is entitled to the sovereign immunity
of the Commonwealth.
Having concluded that CCP is immune from suit except where
authorized by the General Assembly, we must determine whether immunity has
been waived with respect to the contract-based claims that Russo asserts in counts
I, II and IV of the complaint. In Section 1702 of the Procurement Code, the
General Assembly has waived sovereign immunity with respect to contract claims
against the Commonwealth and its employees and officials acting within the scope
of their duties in cases relating to protests of solicitations and awards, pre-litigation
resolution of procurement contract disputes and claims in the Board of Claims
related to certain classes of contracts. 62 Pa. C.S. § 1702(b); see also 62 Pa. C.S.
§§ 1711.1, 1712.1, 1721-1726. However, Section 1702 further provides that
Commonwealth parties retain sovereign immunity except for those limited
waivers. 62 Pa. C.S. § 1702(a); see also 1 Pa. C.S. § 2310. As our Supreme Court
explained in Scientific Games International v. Commonwealth, 66 A.3d 740 (Pa.
2013), by structuring the Procurement Code “to accord immunity, subject only to
specific and limited exceptions,” the General Assembly erected a jurisdictional bar
6
to any claim against a Commonwealth party arising from contracts that fall outside
one of the specific waivers of the Procurement Code. Id. at 753-56; see also
Dubaskas v. Department of Corrections, 81 A.3d 167, 175-76 (Pa. Cmwlth. 2013)
(en banc).
The waiver of sovereign immunity in Section 1702 applies only to
claims against “Commonwealth agencies.” 62 Pa. C.S. § 1702(b). A
“Commonwealth agency” is defined in the Procurement Code as “[a]n executive
agency, an independent agency or a State-affiliated entity,” and each of these in
turn is specifically defined to exclude “any court or other officer or agency of the
unified judicial system.” 62 Pa. C.S. § 103. The Procurement Code further directs
that to the extent the judiciary wishes to avail itself of the procedure and
protections outlined in the Procurement Code, it “may use the [Department of
General Services] as its purchasing agency for the purchase of supplies under this
part and may use the department to dispose of surplus supplies.” 62 Pa. C.S. §
102(c). Thus, in light of the limited waiver of sovereign immunity of Section 1702
as to actions brought pursuant to the Procurement Code and the exclusion of the
courts as a contracting party against which such remedies may be sought, we
conclude that the General Assembly has not waived sovereign immunity with
respect to contract claims against the courts of the unified judicial system.
Accordingly, CCP retains its sovereign immunity over counts I, II and IV of
Russo’s complaint.
Moreover, even if we were to determine that CCP could be a party to
a claim under the Procurement Code, we would conclude that Russo’s claims
would be barred because they are premised on an alleged employment agreement.
(See, e.g., Compl. ¶25 (“Plaintiff’s termination and constructive discharge, to make
7
room for a patronage hire, comprised a violation of the express terms and
conditions of his employment contract....”).) As we have explained, because the
Procurement Code “explicitly and unambiguously excludes ‘employment
agreements’ from what constitutes ‘services’ under the Code, it follows that
‘employment agreements’ are not ‘services’ that can be the subject of a ‘contract’
that falls within the...scope of the” Procurement Code. See Dubaskas, 81 A.3d at
176-77 (quoting 62 Pa. C.S. § 103) (emphasis in original); see also Armenti v.
Pennsylvania State System of Higher Education, 100 A.3d 772, 777 (Pa. Cmwlth.
2014).
Turning to count III of the complaint, which asserts a common law
claim for wrongful discharge, we conclude that CCP is also immune from that
claim. A tort claim for wrongful discharge may be brought only in the limited
circumstance where an employer terminates an at-will employee in violation of a
clear mandate of public policy. Weaver v. Harpster, 975 A.2d 555, 563 (Pa.
2009); Clay v. Advanced Computer Applications, Inc., 559 A.2d 917, 918 (Pa.
1989). The General Assembly has waived sovereign immunity with respect to tort
claims in the portion of the Judicial Code commonly known as the Sovereign
Immunity Act. 42 Pa. C.S. §§ 8521–8528. However, this waiver applies only to
actions for damages arising out of certain negligent acts committed by
“Commonwealth parties.” 42 Pa. C.S. § 8522(a), (b). A “Commonwealth party” is
defined in the Sovereign Immunity Act as a “Commonwealth agency and any
employee thereof, but only with respect to an act within the scope of his office or
employment.” 42 Pa. C.S. § 8501. To determine what is or is not a
Commonwealth agency, we must look to Section 102 of the Judicial Code, which
provides general definitions for the entirety of the Judicial Code, including the
8
Sovereign Immunity Act, and defines a Commonwealth agency as “[a]ny executive
agency or independent agency.” 42 Pa. C.S. § 102. The definitions of “executive
agency” and “independent agency” in turn specifically exclude “any court or other
officer or agency of the unified judicial system.” Id.
Accordingly, it is clear that the courts of the unified judicial system
are not “Commonwealth parties” within the meaning of the Sovereign Immunity
Act. Because sovereign immunity has not been waived with respect to the courts
of the unified judicial system, we must conclude that the courts of the unified
judicial system retain their sovereign immunity as related to tort claims. See 1 Pa.
C.S. § 2310; see also Tork-Hiis v. Commonwealth, 735 A.2d 1256, 1258 (Pa.
1999) (holding that the waiver of sovereign immunity for tort claims in the
Sovereign Immunity Act is not applicable to a complaint naming only the
Commonwealth as a party because the Commonwealth, as distinct from its
agencies, is not included within the definition of a “Commonwealth party”).
Furthermore, even if we were to conclude that the General Assembly
intended to waive sovereign immunity for the courts of the unified judicial system
for tort claims, the Sovereign Immunity Act provides for only nine categories of
claims as to which immunity is waived.7 42 Pa. C.S. § 8522(b). The wrongful
discharge claim asserted by Russo does not implicate any of the specifically
enumerated exceptions to sovereign immunity and therefore the claim would be
barred on that basis as well. Kull v. Guisse, 81 A.3d 148, 157 (Pa. Cmwlth. 2013);
LaChance v. Michael Baker Corp., 869 A.2d 1054, 1057 (Pa. Cmwlth. 2005).
7
The nine statutory exceptions to sovereign immunity are: (1) vehicle liability; (2) medical-
professional liability; (3) care, custody or control of personal property; (4) Commonwealth real
estate, highways and sidewalks; (5) potholes and other dangerous road conditions; (6) care,
custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9)
toxoids and vaccines. 42 Pa. C.S. § 8522(b).
9
Finally, we address count V of the complaint which asserts a claim
under the Whistleblower Law. The Whistleblower Law provides protection to
employees of public employers who report violations of state, local or federal law
or participate in investigations, legislative inquiries or court actions. Section 1 of
the Whistleblower Law, 43 P.S. § 1421 (historical note); Bailets v. Pennsylvania
Turnpike Commission, ___ A.3d ___ (Pa., No. 12 MAP 2014, filed Aug. 31, 2015),
slip op. at 12, 2015 WL 5104623 at *7. To make a claim under the Whistleblower
Law, the employee must show by a preponderance of the evidence that he made or
was about to make a good faith report of an instance of wrongdoing or waste to the
employer or an appropriate authority and that the employer took an adverse
employment action against him as a result of the report. Sections 3(a) and 4(b) of
the Whistleblower Law, 43 P.S. §§ 1423(a), 1424(b); Bailets, slip op. at 13, 2015
WL 5104623 at *7. An employee may seek either injunctive relief or damages
under the Whistleblower Law and if successfully proved, the court may order
reinstatement of the employee, payment of back wages, reinstatement of fringe
benefits and seniority rights and actual damages. Sections 4(a) and 5 of the
Whistleblower Law, 43 P.S. §§ 1424(a), 1425.
CCP argues that the General Assembly did not intend to include the
courts of the unified judicial system as an employer within the meaning of the
Whistleblower Law because doing so would violate separation of powers and
unconstitutionally infringe on the authority of the judiciary in employment matters
over its own employees. Under the principle of separation of powers inherent in
the Pennsylvania Constitution, the legislature, executive and judiciary are
independent, co-equal branches of government and no branch may exercise the
functions specifically committed to another branch. Pennsylvania State
10
Association of Jury Commissioners v. Commonwealth, 78 A.3d 1020, 1032 (Pa.
2013); Beckert v. Warren, 439 A.2d 638, 642 (Pa. 1981). Among the powers
granted to the judiciary is the responsibility of the Supreme Court to “exercise
general supervisory and administrative authority” and “prescribe general rules
governing practice, procedure and the conduct” for the courts of the unified
judicial system. Pa. Const. art. 5, § 10(a), (c); see also 42 Pa. C.S. § 1724(a)
(providing that the Supreme Court and delegated authority “shall exercise general
supervisory and administrative authority over the personnel of the system”). Our
Supreme Court has held that in order to carry out these powers, courts must have
exclusive authority to select, discharge and supervise court employees. First
Judicial District of Pennsylvania v. Pennsylvania Human Relations Commission,
727 A.2d 1110, 1112 (Pa. 1999); Court of Common Pleas of Erie County (6th
Judicial District), Juvenile Probation Department v. Pennsylvania Human
Relations Commission, 682 A.2d 1246, 1247 (Pa. 1996); Beckert, 439 A.2d at 649.
No appellate court of the Commonwealth has addressed whether the
Whistleblower Law may be constitutionally enforced against the judiciary.
However, in Jakomas v. McFalls, 229 F. Supp. 2d 412 (W.D. Pa. 2002), the U.S.
District Court for the Western District of Pennsylvania addressed this issue and
held that the General Assembly did not intend to apply the Whistleblower Law to
employment decisions by the courts, and that in any event applying the
Whistleblower Law to the judiciary would violate separation of powers principles
in the Pennsylvania Constitution. Id. at 422-24. In that case, several former staff
members of a judge of the court of common pleas brought an action under the
Whistleblower Law in which they alleged that they were fired after reporting
wrongdoing by the judge to other judges and court employees. Id. at 417-19. The
11
District Court observed that even if a court found that a judicial employer violated
the Whistleblower Law, there would be no means of enforcing the provision
because courts retain exclusive authority over hiring and firing decisions of their
employees. Id. at 423-24. The District Court concluded that the General
Assembly could not have intended the absurd result that the Whistleblower Law
would be enforceable against some, but not all, violators. Id. at 424.
A review of the text of the Whistleblower Law does not conclusively
resolve the issue of whether the legislature intended it to apply to judicial
employers.8 An “employer” under the Whistleblower Law is defined as a “public
body” or an individual, partnership, association or corporation that receives money
from a public body to perform work or provide services to a public body. Section
2 of the Whistleblower Law, 43 P.S. § 1422. A “public body” is defined as:
(1) A State officer, agency, department, division, bureau,
board, commission, council, authority or other body in
the executive branch of State government.
(1.1) The General Assembly and its agencies.
(2) A county, city, township, regional governing body,
council, school district, special district or municipal
corporation, or a board, department, commission, council
or agency.
8
In all matters involving statutory interpretation, we apply the Statutory Construction Act of
1972, 1 Pa. C.S. §§ 1501–1991, which provides that the “object of all interpretation and
construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1
Pa. C.S. § 1921(a); Department of Transportation, Bureau of Driver Licensing v. Weaver, 912
A.2d 259, 264 (Pa. 2006). The clearest indication of legislative intent is generally the plain
language of the statute. Walker v. Eleby, 842 A.2d 389, 400 (Pa. 2004). “When the words of a
statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b); Weaver, 912 A.2d at 264. It is only when
the text of a statutory provision is ambiguous that we will consider general principles of statutory
construction in order to determine legislative intent. 1 Pa. C.S. § 1921(c); Commonwealth v.
McCoy, 962 A.2d 1160, 1166 (Pa. 2009).
12
(3) Any other body which is created by Commonwealth
or political subdivision authority or which is funded in
any amount by or through Commonwealth or political
subdivision authority or a member or employee of that
body.
Id.
The statutory definition of a “public body” could be read broadly to
apply to the judiciary under part (3) of the definition as a “body which is created
by Commonwealth...authority...or funded in any amount by or through
Commonwealth or political subdivision authority.” 43 P.S. § 1422; cf. Denton v.
Silver Stream Nursing and Rehabilitation Center, 739 A.2d 571, 576 (Pa. Super.
1999) (holding that this provision applies to any agency or body that receives
public money under the administration of or appropriated by the Commonwealth).
However, we find it significant that, while parts (1), (1.1) and (2) of this definition
specifically reference the executive branch, the legislative branch and local
governments, respectively, the judicial branch was omitted from the definition of a
“public body.” Indeed, the General Assembly amended the Whistleblower Law in
2014 to make it applicable to the legislative employees by adding part (1.1) of the
definition of a “public body,” but did not also avail itself of the opportunity to also
make the Whistleblower Law applicable to the judiciary. Act of July 2, 2014, P.L.
826, § 1.
Furthermore, we agree with the analysis in Jakomas that the
enforcement mechanisms prescribed in the Whistleblower Law could not be
constitutionally enforced against a judicial employer. Our appellate courts have
been steadfast in safeguarding the judiciary’s right to hire, fire and supervise its
own employees and have struck down any legislation that interferes with that
authority. See First Judicial District, 727 A.2d at 1112 (holding that the
13
Pennsylvania Human Relations Commission does not have jurisdiction to
adjudicate complaints made by court employees against their employers); Kremer
v. State Ethics Commission, 469 A.2d 593, 595-96 (Pa. 1983) (holding that the
State Ethics Commission could not subject judges to a financial disclosure
requirement because it would infringe on the Supreme Court’s authority to
supervise judges); Eshelman v. Commissioners of the County of Berks, 436 A.2d
710, 713 (Pa. Cmwlth. 1981), aff’d 466 A.2d 1029 (Pa. 1983) (holding that an
arbitrator’s award pursuant to the Public Employe Relations Act concerning the
hiring, supervision and discharge of court-appointed employees usurped the
exclusive role of the courts over employment decisions). The remedies set forth in
the Whistleblower Law requiring the reinstatement of a fired employee or the
reinstatement of seniority rights would interfere with the exclusive right of courts
to supervise their employees and therefore would be unconstitutional as applied
against court employers. The rules of statutory construction require that we
presume that the General Assembly does not intend “a result that is absurd,
impossible of execution or unreasonable” or that would “violate the Constitution
of...this Commonwealth.” 1 Pa. C.S. § 1922(1), (3). Because the Whistleblower
Law would infringe on separation of powers and would only be partly enforceable
against judicial employers, we conclude that the General Assembly did not intend
the judiciary to be included within the definition of an employer subject to the
Whistleblower Law. Accordingly, we grant CCP’s preliminary objection seeking
dismissal of Russo’s claim under the Whistleblower Law.9
9
Because we determine that the General Assembly did not intend court employers to be subject
to the Whistleblower Law, we do not reach CCP’s arguments that the whistleblower claim was
not filed within the six-month statute of limitations and that Russo did not allege in the complaint
that he had reported wrongdoing to CCP or an appropriate authority. We also do not reach
CCP’s final preliminary objection in which it argues that the claims asserted in this litigation
14
The complaint is dismissed.
____________________________________
JAMES GARDNER COLINS, Senior Judge
Judge McCullough did not participate in the decision in this case.
were barred by res judicata as a result of the dismissal of an earlier federal action. Statute of
limitations and res judicata are affirmative defenses that must be pleaded in an answer as new
matter, and thus are not properly before us on preliminary objections. Pa. R.C.P. No. 1030(a).
This rule does not preclude our review of CCP’s preliminary objections on the basis of sovereign
immunity because this Court has recognized that the affirmative defense of sovereign immunity
may be decided on preliminary objections where the defense is clearly applicable from the face
of the complaint. See Feldman, 107 A.3d at 829, 835-36.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alfred J. Russo, :
Petitioner :
:
v. : No. 185 M.D. 2015
:
Allegheny County, :
and the Court of Common Pleas :
of Allegheny County, Pennsylvania, :
Criminal Division, :
Respondents :
ORDER
AND NOW, this 7th day of October, 2015, the preliminary objections
filed by the Court of Common Pleas of Allegheny County, Criminal Division in
the above matter are SUSTAINED and Petitioner’s complaint is hereby
DISMISSED.
____________________________________
JAMES GARDNER COLINS, Senior Judge