Mitchell, K. v. Fornelli, F. ( 2018 )

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NON-PRECEDENTIAL DECISION-SEE SUPERIOR COURT I.O.P. 65.37
KURT D. MITCHELL, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
FRANCIS J. FORNELLI,
Appellee No. 1842 WDA 2016
Appeal from the Order Entered November 10, 2016
In the Court of Common Pleas of Mercer County
Civil Division at No(s): 2016-1647
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 5, 2018
Appellant, Kurt D. Mitchell, appeals from the trial court’s November 10,
2016 order, sustaining Appellee’s, The Honorable Francis J. Fornelli (“Judge
Fornelli”),1 preliminary objections and dismissing Appellant’s complaint with
prejudice. We vacate the trial court’s order, and remand for further
proceedings.
The trial court summarized the factual and procedural background of
this case as follows:
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1By way of background, according to Appellant’s complaint, Judge Fornelli “is
a former judge with the Mercer County Court of Common Pleas.” Compl. ¶ 2.
However, both Judge Fornelli and the trial court state that he is a senior judge,
not a former judge. See Trial Court Opinion (TCO), 2/27/17, at 5, 7, 10;
Judge Fornelli’s Preliminary Objections to the Complaint, ¶ 2.
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Appellant … has filed an [a]ppeal from this [c]ourt’s grant of a
[d]emurrer in favor of [Judge Fornelli], thus denying Appellant’s
[p]reliminary [o]bjections to [p]reliminary [o]bjections and
dismissing Appellant’s civil case. Appellant’s lawsuit was in the
nature of slander arising from alleged comments made by Judge
Fornelli, regarding Appellant’s representation of one, Clifford
Null.[2]
[Appellant] is an attorney practicing in Pennsylvania and other
jurisdictions, who alleged [Judge Fornelli] slandered him prior to
a proceeding in the nature of a mediation[, which related to the
fines imposed in Clifford Null’s criminal case.] Judge Fornelli was
to preside over the mediation pursuant to an assignment to hear
a backlog of Jefferson County cases. The assignment was ordered
by the Honorable John H. Foradora, President Judge of the Court
of Common Pleas of Jefferson County[,] Pennsylvania.
[Pennsylvania Supreme Court Chief] Justice [Thomas G.] Saylor
approved the [o]rder. The alleged slanderous remarks took
place[] when it was discovered that [Appellant] had not
accompanied his client to the mediation.
[Appellant], having heard that Judge Fornelli had made
derogatory comments to his client Clifford Null, filed his
[c]omplaint in May of 2016. Judge Fornelli filed [p]reliminary
[o]bjections in the nature of a demurrer, raising the defense of
immunity from suit. Appellant raised [p]reliminary [o]bjections to
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2 The trial court further elaborated:
Appellant had been representing Clifford Null in a criminal
summary offense, which was appealed to the Superior Court at
[Commonwealth v. Null, 2054 WDA 2014, unpublished
memorandum (Pa. Super. filed Dec. 30, 2015)]. Null had been
fined an aggregate of $267,258.00, for offenses under the
Pennsylvania Construction Code Act, of which Null was found
guilty after a hearing was conducted in the Court of Common Pleas
of Jefferson County, Pennsylvania. After an appeal, the Superior
Court remanded a single issue to the trial [c]ourt for consideration
— whether the fines imposed by the Commonwealth were
excessive, whether additional evidence was necessary, and to
enter a new [o]rder. The trial [c]ourt decided to have the matter
conducted through mediation….
TCO at 3-4.
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[p]reliminary [o]bjections, claiming that the immunity defense
may not be raised by [p]reliminary [o]bjections, that the
[p]leading was not signed, and that mediation is not a judicial act
entitling Judge Fornelli to immunity.
TCO at 2-3.
As mentioned supra, the trial court sustained Judge Fornelli’s
preliminary objections and dismissed Appellant’s complaint with prejudice. In
doing so, the trial court specifically explained, “Judge Fornelli[] is entitled to
judicial immunity for [Appellant’s] claim, which arose from alleged statements
made to [Appellant’s] client, Clifford Null, while performing his judicial duties,
while assigned to hear the Clifford Null proceeding.” Trial Court Opinion,
11/16/16, at 6. Appellant subsequently filed a timely notice of appeal and a
timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Presently, Appellant raises the following issues for
our review:
1. Did the trial court err by allowing [Judge] Fornelli to present
his immunity defense through preliminary objection[s]?
2. Did the trial court err by failing to apply the proper standard
when ruling on [Judge] Fornelli’s preliminary objection[s]?
3. Did the trial court err by failing to analyze whether the
common pleas court has authority to order a summary
criminal case to mediation?
4. Did the court err by wrongly assuming [Appellant] was
counsel of record for Clifford Null at the time of the illegal
mediation?
Appellant’s Brief at 6.
Initially, we acknowledge that,
[o]ur standard of review of an order of the trial court overruling
or granting preliminary objections is to determine whether the
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trial court committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.
Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012) (citations and
original brackets omitted).
In his first issue, Appellant contends that the trial court erred by allowing
Judge Fornelli to raise his immunity defense through preliminary objections.
Appellant’s Brief at 10 (unnecessary capitalization and emphasis omitted). In
support, Appellant points to Pa.R.C.P. 1030, which provides the following:
(a) Except as provided by subdivision (b), all affirmative
defenses including but not limited to the defenses of accord
and satisfaction, arbitration and award, consent, discharge in
bankruptcy, duress, estoppel, failure of consideration, fair
comment, fraud, illegality, immunity from suit, impossibility of
performance, justification, laches, license, payment, privilege,
release, res judicata, statute of frauds, statute of limitations, truth
and waiver shall be pleaded in a responsive pleading under
the heading “New Matter”. A party may set forth as new
matter any other material facts which are not merely denials of
the averments of the preceding pleading.
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Pa.R.C.P. 1030(a) (emphasis added; internal notes omitted).3
Appellant contends that Rule 1030 requires that litigants raise immunity
defenses in new matter and not through preliminary objections. See
Appellant’s Brief at 8. He further argues that “[w]hile it is true that some
courts have recognized a limited exception to raise the defense through
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3 In comparison, Pa.R.C.P. 1028 — pertaining to preliminary objections —
provides the following:
(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;
(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);
(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;
(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.
Pa.R.C.P. 1028(a), (b) (internal notes omitted).
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preliminary objection[s], this is limited to instances where the defense is clear
on the face of the complaint.” Id. Moreover, he claims that, “other courts
have refused to recognize the exception at all, or refused to recognize it where
an objection is made.” Id. Thus, he urges us to determine that raising the
defense of immunity from suit through preliminary objections is inappropriate
and, as a result, requests that we vacate the trial court’s order sustaining
Judge Fornelli’s preliminary objections on the basis of judicial immunity. See
id.Relying on the limited exception referenced by Appellant supra, the trial
court resolved that “it was proper procedure to file a demurrer where the
complaint fails to state a claim for which relief may be granted on its face by
virtue of the judicial immunity defense.” TCO at 3 (unnecessary capitalization
and emphasis omitted). In particular, the trial court explained,
it has long been the rule that immunity from suit can be raised by
preliminary objections when the defense is apparent from the face
of the complaint. See Feldman v. Hoffman, 107 A.3d 821[,
829] ([Pa. Cmwlth]. 2014), “Pennsylvania Courts have long
recognized a limited exception to … Rule [1030] and have allowed
parties to plead the affirmative defense of immunity as a
preliminary objection where the defense is clearly applicable on
the face of the complaint.”
Appellant contends that [Judge Fornelli] followed improper
procedure. However, the [c]ourt, at every stage of any action,
may disregard any defect or error which does not affect the
substantial rights of the parties. See[] Pa.R.C.P. 126.[4] Here,
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4 Rule 126 states:
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Appellant fails to demonstrate how the timing of the immunity
defense affects the ultimate conclusion that [Judge Fornelli] is
immune from suit. Appellant fails to suggest that further
pleadings will add new relevant facts beyond the face of his
pleading that will change the outcome.
TCO at 4.
Similarly, Judge Fornelli claims:
While it is true that immunity from suit is an affirmative defense[,]
which pursuant to [Rule] 1030 must be properly raised under new
matter, courts have been moving away from this strict
interpretation and it is now currently accepted that immunity is a
defense that may be raised by preliminary objection “when to
delay a ruling thereon would serve no purpose.” Faust v. Com.,
Dept. of Revenue, 592 A.2d 835, 838 n.3 (Pa. Cmwlth. 1991).
See also[] Wurth by Wurth v. City of Philadelphia, 584 A.2d
403 (Pa. Cmwlth. 1990).
Judge Fornelli’s Brief at 21.
Significantly, both the trial court and Judge Fornelli cite cases from only
our sister appellate court in support of this limited exception to Rule 1030.
Yet, it is well established that Commonwealth Court decisions are not binding
on this Court. See Pollina v. Dishong, 98 A.3d 613, 621 n.8 (Pa. Super.
2014) (observing that decisions of the Commonwealth Court are not binding
on this Court, but may serve as persuasive authority) (citation omitted).
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The rules shall be liberally construed to secure the just, speedy
and inexpensive determination of every action or proceeding to
which they are applicable. The court at every stage of any such
action or proceeding may disregard any error or defect of
procedure which does not affect the substantial rights of the
parties.
Pa.R.C.P. 126.
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Neither Judge Fornelli nor the trial court cite to a case from this Court
that explicitly allows a party to raise the affirmative defense of judicial
immunity in preliminary objections merely because such a defense is clear
from the face of the complaint.5 In fact, our own cursory research has not
yielded any such authority either. It has revealed, however, the inconsistency
and uncertainty surrounding when parties may raise an affirmative defense in
preliminary objections.6
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5 In Feldman — which is the case relied on by the trial court — the dissent
discerns that the Superior Court, unlike the Commonwealth Court, has upheld
that our Rules of Civil Procedure mandate that immunity be raised in an
Answer under New Matter, instead of as a preliminary objection. See
Feldman, 107 A.3d at 839 n.2 (“[T]he majority states that the dissent ignores
‘the reality that its hardline position has been outright rejected by countless
courts.’ ‘Countless courts’ have not followed Pa.R.C.P. 1030, just our court,
and not in ‘countless’ decisions, but just ‘some’ decisions which are
inconsistent with other decisions.”) (Pellegrini, J., dissenting).
6 Before delving into our discussion of the pertinent authorities, we underscore
that Judge Fornelli states that his preliminary objections and the trial court’s
disposition center on judicial immunity, not judicial privilege. In particular, he
states:
It is important to note at this point that [Appellant’s] brief does
not address judicial immunity but relies solely on judicial privilege
case law. Although there are instances where the two doctrines
overlap, it is critical to point out that the two kinds of immunity
are not interchangeable. [J]udicial immunity broadly protects
judicial officers in a variety of situations while judicial privilege
provides immunity for communications made in the course of
judicial proceedings that are material to the relief requested. This
privilege applies not only to judges but also to parties, witnesses,
and attorneys. Schanne v. Addis, 121 A.3d 942 (Pa. 2015).
[Appellant] mistakenly argues in his brief that there is no judicial
immunity based on case[s] dealing with judicial privilege.
Although Judge Fornelli is also immune in this particular instance
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Initially, we acknowledge that in Greenberg v. Aetna Insurance Co.,
235 A.2d 576 (Pa. 1967), our Supreme Court permitted the defendant insurers
to raise the affirmative defense of absolute privilege in preliminary objections
where the plaintiff’s complaint clearly showed that the plaintiff had no right to
relief. See id. at 579. In that case, the plaintiff filed libel suits against the
insurers, alleging that, in an answer filed in a prior lawsuit, they had falsely
and maliciously charged him with committing, inter alia, arson. Id. at 577.
The insurers filed preliminary objections in the nature of a demurrer to the
plaintiff’s complaint, contending that they had an absolute privilege to plead
incendiarism by the plaintiff as a defense in a suit by the plaintiff to recover
on his fire insurance policies. Id. The plaintiff subsequently filed preliminary
objections to the insurers’ preliminary objections, averring that “the defense
of absolute (or limited) privilege cannot be raised by preliminary objections
but must … be raised in [an] answer under ‘new matter.’” Id. On appeal, our
Supreme Court rejected the plaintiff’s argument, explaining,
where [the] plaintiff’s complaint or pleading shows on its face that
his claim cannot be sustained, preliminary objections are an
appropriate remedy. The second and more important reason is
that this Court has repeatedly and wisely sustained preliminary
objections where [the] plaintiff’s complaint or pleading shows on
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based on the judicial privilege doctrine, his preliminary objections
and the trial court’s decision are clearly focused on the judge’s
judicial immunity.
Judge Fornelli’s Brief at 19-20. In light of this statement, we will assume for
our purposes that judicial privilege and judicial immunity are distinguishable
on this basis, and only judicial immunity is at issue in this appeal.
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its face that his claim is devoid of merit. This is wise, because if
the law or the rule were otherwise, it would mean long and
unnecessary delays in the law — delays which [c]ourts are
strenuously trying to eliminate or reduce — and it could not aid
[the] plaintiff at the trial or affect the result[.]
Id. at 579 (internal citations omitted).
Despite this reasoning, in its subsequent decision in Freach v.
Commonwealth, 370 A.2d 1163 (Pa. 1977), our Supreme Court took a
contrary position. In that case, the parents and personal representatives of
two murdered teenagers brought survival and wrongful death actions against
various defendants, alleging, inter alia, that each of the defendants should
have known of the murderer’s mental instability and criminal tendencies, and
were responsible for the murderer’s having the opportunity to kill the
teenagers. Id. at 1165-66. In preliminary objections, the various defendants
claimed to enjoy, respectively, either sovereign immunity, absolute immunity
as high public officials, or conditional immunity from suit. Id. at 1166. In
response, our High Court noted,
immunity from suit is an affirmative defense which should
be pleaded under the heading ‘New Matter’ in a responsive
pleading; it is not properly raised by preliminary
objections. Since, however, the plaintiffs-appellants did not
object at any point in the proceedings before the Commonwealth
Court to the manner in which the issue of immunity was raised
and the Commonwealth Court decided the immunity questions on
their merits, we will do likewise. By so doing we do not
condone the disregard of the Pennsylvania Rules of Civil
Procedure by [the] appellees.
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Freach, 370 A.2d at 1166 n.6 (emphasis added; citation omitted).7
Later, this Court attempted to reconcile the Greenberg and Freach
opinions. See Barber v. Lynch, 418 A.2d 749 (Pa. Super. 1980). In Barber,
the plaintiffs alleged that the defendants — who were the Controller and
Deputy Controller of Allegheny County — made defamatory statements about
them, which were then reported in two newspaper articles. Id. at 749. The
defendants filed preliminary objections, alleging, among other things, that
they were protected by absolute immunity from tort liability due to their
positions as high public officials. Id. at 749-50.8 In turn, the plaintiffs filed
preliminary objections stating that the defendants could not raise the defenses
of immunity and privilege by preliminary objections. Id. at 750. On appeal
to this Court, we determined that “the issue of official immunity was
improperly raised in preliminary objections in the nature of a demurrer, rather
than in new matter.” Id. In reaching this conclusion, we explained that
“[w]hile we find the reasoning of the Supreme Court in Greenberg to be
interesting, we cannot ignore the fact that its pronouncement in the Fre[a]ch
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7 See also Heifetz v. Philadelphia State Hospital, 393 A.2d 1160, 1162
n.5 (Pa. 1978) (“Again we must remind counsel and the courts that immunity
from suit is an affirmative defense which should be raised under the heading
of ‘New Matter’ in a responsive pleading and should not be raised by
preliminary objections.”) (citations omitted).
8 Specifically, in their preliminary objections, the defendants “maintained that
because of their public offices, they enjoyed an immunity from tort liability in
suits such as those initiated by [the plaintiffs]. [The defendants] concurrently
claimed what must be termed a qualified immunity or privilege in connection
with the allegedly defamatory statements [underlying the lawsuit].” Barber,
418 A.2d at 749-50 (footnote omitted).
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case was made some ten years later and involved the defenses of high official
immunity and qualified privilege or immunity. In such circumstances we
believe the admonition in Freach controlling of our decision in the instant
appeals.” See id. at 752.
Finally, in Kyle v. McNamara & Criste, 487 A.2d 814 (Pa. 1985), the
plaintiff sued an attorney and the attorney’s law firm, alleging that the
attorney had breached an agreement not to accept legal employment
inconsistent with the plaintiff’s having disclosed confidential information to
him and his firm. Id. at 815-16. In his preliminary objections, the attorney
claimed he was protected by, inter alia, quasi-judicial immunity. Our Supreme
Court observed that “[i]mmunity from suit … [is an] affirmative defense[]
which must be pleaded under new matter[,]” and it is “not properly raised as
[a] matter[] within the purview of preliminary objections.” Id. at 816
(citations omitted). Accordingly, the Court allowed the action to proceed. Id.
A review of the applicable case law indicates that this Court has not
embraced the practice of resolving immunity defenses through preliminary
objections solely because such a defense is obvious from the face of the
complaint.9 Instead, this Court has primarily relied on another limited
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9 But see Pelagatti v. Cohen, 536 A.2d 1337, 1346 (Pa. Super. 1987)
(“[W]hile the affirmative defense of truth is generally to be pled in new matter,
an affirmative defense may be raised by way of preliminary objections where
it is established on the face of the complaint, or where the plaintiff fails to
object to the procedural irregularity.”) (citing Iudicello v. Commonwealth
of Pennsylvania, Dept. of Transportation, 383 A.2d 1294 (Pa. Cmwlth.
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exception to Rule 1030, allowing litigants to raise immunity defenses in
preliminary objections where no objections to such procedure are lodged.
“Immunity from suit is an affirmative defense which must be pleaded in New
Matter, not in preliminary objections. However, where the defense is raised
by preliminary objections and this procedure is not objected to, the question
of immunity from suit may be decided.” Bloom v. Dubois Regional Medical
Center, 597 A.2d 671, 675 n.4 (Pa. Super. 1991) (citation omitted).10 We
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1978); Cooper v. Dowington School Dist., 357 A.2d 619, 621 (Pa. Super.
1976) (reaching the merits of a statute of limitations issue raised by
preliminary objections in the interest of judicial economy, where no objection
to such procedure was made)); DeSantis v. Swigart, 442 A.2d 770, 772 (Pa.
Super. 1982) (“Absolute privilege in a libel case may be raised by demurrer
where the defendant’s privilege appears on the face of the complaint.”) (citing
Greenberg, supra). Again, we note that Judge Fornelli claimed his
preliminary objections focused on judicial immunity, not on whether his
communication enjoyed an absolute privilege.
10 See also Pollina, 98 A.3d at 617 n.3 (“We note that, pursuant to Pa.R.C.P.
1030(a), immunity from suit is an affirmative defense which must be pleaded
in a responsive pleading under the heading ‘New Matter.’ When a party
erroneously asserts this substantive defense in preliminary objections, rather
than raising the defense by answer or in new matter, the failure of the
opposing party to object to the defective preliminary objections waives the
procedural defect and allows the trial court to rule on the preliminary
objections.”) (citations omitted); Richmond, 35 A.3d at 782 (“Where a party
erroneously asserts substantive defenses in preliminary objections rather than
to raise these defenses by answer or in new matter, the failure of the opposing
party to file preliminary objections to the defective preliminary objections,
raising the erroneous defenses, waives the procedural defect and allows the
trial court to rule on the preliminary objections.”) (citation omitted); Soto v.
Nabisco, Inc., 32 A.3d 787, 788 n.2 (Pa. Super. 2011) (“If … a party raises
the defense of immunity from suit via preliminary objections and the opposing
party does not object, then the court can decide the issue of immunity from
suit.”); Heinrich v. Conemaugh Valley Memorial Hosp., 648 A.2d 53, 57
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observe that this “reasoning is consistent with the principle that when a party
does not object to a non-jurisidictional defect, the matter is waived.”
Feldman, 107 A.3d at 838 (Pellegrini, J., dissenting).
Here, Appellant filed preliminary objections to Judge Fornelli’s
preliminary objections, in which he objected to Judge Fornelli’s improperly
raising the affirmative defense of immunity from suit in preliminary objections.
Therefore, because Judge Fornelli raised immunity defenses through
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(Pa. Super. 1994) (“In general, preliminary objections are not available to
raise the defense of immunity from suit. Where a party erroneously asserts
substantive defenses in preliminary objections rather than raising same by
answer or in new matter, the failure of the opposing party to file preliminary
objections to defective preliminary objections, raising erroneous defenses,
waives the procedural defect and allows the trial court to rule on the
preliminary objections.”) (citations omitted); Mosley v. Observer Pub. Co.,
619 A.2d 343, 344 n.1 (Pa. Super. 1993) (“Pa.R.Civ.P. 1030 requires that all
affirmative defenses, including the affirmative defense imposed by [the]
appellee to the instant complaint, namely, immunity from suit, be pleaded in
a responsive pleading as ‘New Matter[.]’ [The a]ppellee, however, undertook
to present the defense in preliminary objections in the nature of a demurrer,
despite the quite clear restrictions of Pa.R.Civ.P. 1028 and requirement of
1030. [The a]ppellants failed to object to the form of pleading and have,
therefore, waived the right to raise the procedural defect that would require
appellee to proceed by answer with new matter.”) (citations omitted); Preiser
v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992) (“It is black-letter law
that issues not raised in the trial court are waived and cannot be raised for
the first time on appeal. Where a party erroneously asserts substantive
defenses in preliminary objections rather than to raise these defenses by
answer or in new matter, the failure of the opposing party to file preliminary
objections to the defective preliminary objections, raising the erroneous
defenses, waives the procedural defect and allows the trial court to rule on
the preliminary objections.”) (citations omitted); Barber, 418 A.2d at 751(“[W]e do not feel free to reach the merits of the immunity issue, which was
raised on preliminary objections by the [a]ppellees.”).
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preliminary objections and Appellant specifically objected to that procedure,
the trial court could not decide the question of Judge Fornelli’s immunity from
suit on preliminary objections.
Moreover, we do not agree with the trial court that Rule 126 would apply
in the case sub judice. To reiterate, Rule 126 states that “[t]he court at every
stage of any such action or proceeding may disregard any error or defect of
procedure which does not affect the substantial rights of the parties.” See
Pa.R.C.P. 126. Here, the trial court explained that — even if Judge Fornelli
had followed improper procedure — Rule 126 allows the court to disregard
such procedural missteps. See TCO at 4. It points out that Appellant failed
to demonstrate how the timing of the immunity defense would affect its
conclusion that Judge Fornelli is immune from suit, and claims that Appellant
did not “suggest that further pleadings will add new relevant facts beyond the
face of his pleading that will change the outcome.” Id.11
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11 In contrast, Appellant alleges that “[b]efore any decision on the merits can
be made[,] a complete factual record is necessary to determine the nature of
the ‘criminal mediation’ and the function of [Judge] Fornelli at the illegal
criminal mediation[.]” Appellant’s Brief at 14. See also Appellant’s
Preliminary Objections at ¶¶ 17(a), (b) (questioning whether criminal
mediations occur in the regular course of judicial proceedings, and stating that
“there is nothing in the complaint that establishes that [Judge Fornelli] was
acting within the scope of his duties as it is alleged the comment occurred
prior to the mediation commencing”) (footnote omitted); cf. Feldman, 107
A.3d at 835 (“[The plaintiff] failed to articulate before the trial court, and this
[c]ourt, what effect, other than prolonging the matter, requiring [the
defendant] to wait until New Matter to raise his objection would have on the
case. [The plaintiff] identified no additional facts which she would have raised
in response to New Matter had the defense been raised there. She does not
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With respect to Rule 126, our Supreme Court has explained:
It is self-evident that our Rules of Civil Procedure are essential to
the orderly administration and efficient functioning of the courts.
Accordingly, we expect that litigants will adhere to procedural
rules as they are written, and take a dim view of litigants who
flout them. That said, we have always understood that procedural
rules are not ends in themselves, and that the rigid application of
our rules does not always serve the interests of fairness and
justice. It is for this reason that we adopted Rule 126, which
provides in pertinent part that “[t]he court at every stage of any
such action or proceeding may disregard any error or defect of
procedure which does not affect the substantial rights of the
parties.” With this language, we incorporated equitable
considerations in the form of a doctrine of substantial compliance
into Rule 126, giving the trial courts the latitude to overlook any
“procedural defect” that does not prejudice a party’s rights. Thus,
while we look for full compliance with the terms of our rules, we
provide a limited exception under Rule 126 to those who commit
a misstep when attempting to do what any particular rule requires.
Moreover, we made Rule 126 a rule of universal application, such
that the trial court may disregard any such procedural defect or
error at every stage of any action or proceeding to which the civil
procedural rules apply.
Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006) (internal citations omitted;
emphasis in original).
Furthermore,
[t]he equitable doctrine we incorporated into Rule 126 is one of
substantial compliance, not one of no compliance. We reiterate
what our case law has taught: Rule 126 is available to a party who
makes a substantial attempt to conform, and not to a party who
disregards the terms of a rule in their entirety and determines for
himself the steps he can take to satisfy the procedure that we
have adopted to enhance the functioning of the trial courts.
Id. at 278 (emphasis in original).
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suggest the further pleadings will add new facts. She does not allege that she
was deprived of an opportunity to counter the immunity defense….”).
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In the case at bar, we view Judge Fornelli’s raising an immunity defense
in preliminary objections to sound more in noncompliance, rather than
substantial compliance, with our Rules of Civil Procedure. See id. To be sure,
Rule 1030 explicitly requires that affirmative defenses — including,
specifically, immunity from suit — be pleaded in a responsive pleading under
the heading “New Matter.” See Pa.R.C.P. 1030(a). By raising immunity in
his preliminary objections, Judge Fornelli did not substantially comply with
Rule 1030, which renders Rule 126 inapplicable. See Feldman, 107 A.3d at
839 (Pellegrini, J., dissenting). Moreover, as discussed above, recent cases
from this Court indicate that immunity from suit cannot be determined by
preliminary objections where an objection is made to such procedure. See
footnote 10, supra.
Finally, in response to Judge Fornelli’s argument that delaying a ruling
on Appellant’s immunity defense would serve no purpose,12 we share one final
point regarding Rule 1030:
Just because it would be easier to decide it and “end the matter”
when the immunity issue is “obvious on the face of the pleading,”
then we are, in essence, converting an affirmative defense that
must be pled under [Rule] 1030 into a preliminary objection under
[Rule] 1028, something we cannot do. When the Supreme Court
promulgated [Rule] 1030 and made immunity an affirmative
defense, it made the determination that a court would be better
served in deciding that after there is a better delineation of the
facts that results when an Answer and New Matter is filed. The
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12 See Judge Fornelli’s Brief at 21 (“[I]t is now currently accepted that
immunity is a defense that may be raised by preliminary objection when to
delay a ruling thereon would serve no purpose.”) (internal quotations marks
and citations omitted).
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immunity issue can then be determined either by a Motion for
Judgment on the Pleadings or a Motion for Summary Judgment.
Id. See also Pa.R.C.P. 127(b) (“When the words of a rule are clear and free
from all ambiguity, the letter of it is not to be disregarded under the pretext
of pursuing its spirit.”).
Thus, based on the foregoing, we conclude that the trial court erred by
sustaining Judge Fornelli’s preliminary objections raising immunity from suit,
where Appellant had objected to this improper procedure. We therefore
vacate the trial court’s order sustaining Judge Fornelli’s preliminary objections
and dismissing Appellant’s complaint with prejudice, and remand for further
proceedings.13, 14
Order vacated. Case remanded. Jurisdiction relinquished.
Judge Musmanno files a concurring statement.
Judge Shogan files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2018
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13Because we dispose of Appellant’s appeal on this basis, we need not address
his remaining issues.
14 Without providing any supporting authority or elaboration, Appellant
requests that we award him the costs of this appeal. See Appellant’s Brief at
17, 28. We decline to do so.
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