Mitchell, K. v. Fornelli, F.

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NON-PRECEDENTIAL DECISION-SEE SUPERIOR COURT I.O.P. 65.37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 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):
No. 2016-1647
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED MARCH 05, 2018
The Majority concludes that Judge Fornelli is not entitled to judicial
immunity because he raised the defense through preliminary objections, and
Appellant objected. In my opinion, such a hyper-technical interpretation of
our procedural rules is neither compelled nor supported by current law and
the facts of this case. The underlying record establishes that Judge Fornelli is
an active senior judge on the Mercer County Court of Commons Pleas who
was appointed by the appropriate judicial authorities to mediate this case as
part of his judicial duties, and our rules allowed the trial court to take notice
of those facts in deciding the preliminary objections. Accordingly, I
respectfully dissent.
The Majority commences its analysis by acknowledging that, in
Greenberg v. Aetna Ins. Co., 235 A.2d 576 (Pa. 1967), “our Supreme Court
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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.” Majority Memorandum at 9
(citing Greenberg, 235 A.2d at 579).1 The Majority further notes that our
sister court, the Commonwealth Court, has moved away from a strict
interpretation of Pa.R.C.P. 1030 and has long recognized that immunity may
be raised by preliminary objections when to delay a ruling would serve no
purpose. Id. at 7 (citing Judge Fornelli’s Brief at 21, which references Faust
v. Com., Dept. of Revenue, 592 A.2d 835, 838 n.3 (Pa. Cmwlth. 1991), and
Wurth by Wurth v. City of Philadelphia, 584 A.2d 403 (Pa. Cmwlth.
1990)). However, construing the subsequent Supreme Court case of Freach
v. Commonwealth of Pennsylvania, 370 A.2d 1163 (Pa. 1977), as taking
a contrary position to Greenberg and noting that our Court is not bound by
Commonwealth Court decisions, the Majority declines to follow our sister
court’s practical approach. Majority Memorandum at 8–11.
Instead, citing to cases from our Court that have declined to recognize
this exception where objections to such procedure are lodged, Majority
Memorandum at 13–15, the Majority vacates the trial court’s order and
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1 Indeed, the Greenberg Court considered its position to be “wise, because
if the law or the rule were otherwise, it would mean long and unnecessary
delays in the law—delays which Courts are strenuously trying to eliminate or
reduce—and it could not aid plaintiff at the trial or affect the result.”
Greenberg, 235 A.2d at 579.
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remands for the inevitable dismissal of this case.2 In contrast, I find that the
general proposition announced in Greenberg is still good law and that our
procedural rules allow a trial court to sustain preliminary objections based not
only on the complaint, but also on facts of record. I further find that the
subsequent cases in both the Supreme Court and our Court cited by the
Majority, which do not involve judicial immunity, are distinguishable from the
case at bar. Therefore, I am compelled to disagree with the Majority’s result.
In fact, I believe such a result wastes judicial resources and imposes an
unnecessary burden of prolonged litigation and expense on all parties
involved.3
Preliminary objections in the nature of a demurrer test the legal
sufficiency of a complaint. Vulcan v. United of Omaha Life Ins. Co., 715
A.2d 1169, 1172 (Pa. Super. 1998). “[P]reliminary objections raising an issue
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2 I characterize dismissal as inevitable, because I find Appellant’s additional
issues as lacking in merit.
3 I am relieved that the Majority declined to base its decision “on the face of
the complaint” because Appellant clearly misstated Judge Fornelli’s status
therein. According to Appellant’s complaint, Judge Fornelli is a former judge
with the Mercer County Court of Common Pleas. Complaint, 6/23/16, at ¶ 2.
As discussed infra, the record shows that Judge Fornelli is an active senior
judge. We must not permit a plaintiff to circumvent application of judicial
immunity by omitting or misstating essential facts of record. Furthermore, to
the extent that Appellant argues that the trial court erred in not restricting its
decision to the facts within the four corners of the complaint, we agree with
Judge Fornelli that “[t]his issue has been waived. It was not raised initially
and it was not raised in Mitchell’s Statement of Matters…as ordered by the
trial court after his appeal under [Pa.R.A.P.] 1925(b).” Judge Fornelli’s Brief
at 22.
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under subdivision…(a)(4) may be determined from facts of record… .”
Pa.R.C.P. 1028 at (c)(2) Note; see also Solomon v. U.S. Healthcare Sys.
of Pennsylvania, Inc., 797 A.2d 346, 352 (Pa. Super. 2002) (recognizing
that trial court may take judicial notice of public documents in ruling on
demurrer). Moreover, a trial court “may rely on documents forming in part
the foundation of the suit even where a plaintiff does not attach such
documents to its complaint.” Feldman v. Hoffman, 107 A.3d 821, 829 (Pa.
Cmwlth. 2014); see also St. Peter’s Roman Catholic Parish v. Urban
Redev. Auth. of Pgh., 146 A.2d 724 (Pa. 1958) (permitting trial court to
consider documents attached to defendant’s preliminary objections).
Here, Judge Fornelli filed his preliminary objections in the nature of a
demurrer pursuant to Pa.R.C.P. 1028(a)(4), arguing that Appellant’s
complaint was legally insufficient. Judge Fornelli attached to his preliminary
objections the order appointing him as mediator in the underlying lawsuit.
Preliminary Objections, 7/13/16, at Exhibit B. The trial court properly took
judicial notice of the public documents and facts of record underlying
Appellant’s complaint, including some of the documents filed in
Commonwealth v. Null, 2054 WDA 2014, which are included in the certified
record at hand. Those sources revealed that Judge Fornelli is a senior judge
of the Mercer County Court of Common Pleas, who the president judge of the
Jefferson County Court of Common Pleas duly appointed to assist with a
backlog of cases, including the mediation at the heart of this matter. Chief
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Justice of Pennsylvania Thomas Saylor approved the president judge’s
appointment of Judge Fornelli. Moreover, the alleged slander occurred while
Judge Fornelli was serving in his official capacity as a senior judge appointed
to mediate a Jefferson County case. Complaint, 6/23/16, at ¶¶ 7–9.
Therefore, the record reflects that Judge Fornelli was entitled to judicial
immunity.
Furthermore, the cases relied upon by the Majority are clearly
distinguishable. The Freach case involved official immunity, a type of
immunity pertaining to government officials and employees. Freach, 370
A.2d at 1168. It did not involve judicial immunity or a challenge to the
sufficiency of the complaint based on such immunity. Moreover, the Freach
Court noted in a footnote that immunity from suit should be pleaded under
“New Matter,” but it did not absolutely prohibit it from being raised by
preliminary objections. Freach, 370 A.2d at 1172, n.6. In fact, our Supreme
Court reviewed the immunity issue on its merits, as had the Commonwealth
Court, and did not mention the Greenberg case. Similarly, the case of
Barber v. Lynch, 418 A.2d 749 (Pa. Super. 1980), involved a demurrer based
on immunity pertaining to public officials, not judicial immunity. In Heifetz
v. Philadelphia State Hospital, 393 A.2d 1160 (Pa. 1978), our Supreme
Court reversed an order sustaining preliminary objections based on official
immunity—not judicial immunity—because of a change in the law, not because
the defense was improperly raised in preliminary objections. Finally, Kyle v.
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McNamara & Criste, 487 A.2d 814 (Pa. 1985), was not a judicial immunity
case and did not involve a complaint or record that clearly established
immunity from suit. Rather, the Supreme Court first reversed the lower court
rulings on a substantive demurrer and, secondarily, reversed the lower court
rulings on affirmative defenses raised by demurrer. Moreover, “it has
appeared that the Supreme Court has moved away from its strict
interpretation of Rule 1030 in Kyle.” Wurth, 584 A.2d at 407 n.4 (citing
Farinacci v. Beaver County Industrial Development Authority, 511 A.2d
757 (Pa. 1986), and Gardner v. Consolidated Rail Corp., 573 A.2d 1016(Pa. 1990)).
Again, Judge Fornelli filed preliminary objections in the nature of a
demurrer, challenging the sufficiency of the complaint as stating a cause of
action against him, a senior judge of the Mercer County Court of Common
Pleas. I agree with the trial court’s order sustaining the preliminary objections
because “[Judge Fornelli] has the protection of immunity from suit in the
exercise of his Court appointed duties to hear the backlog of Jefferson County
cases.” Trial Court Opinion, 2/27/17, at 5. I find no basis for penalizing a
jurist who demurs, in lieu of raising an affirmative defense, where the
complaint or facts of record establish that no cause of action against him
exists. Rather, I favor the approach of our sister court and would hold that
judicial immunity may be raised by preliminary objections in such
circumstances. See Wurth, 584 A.2d at 407 (“[I]t is needless to prolong
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proceedings when the matter can be correctly and quickly decided on
preliminary objections in the nature of a demurrer pursuant to [Pa.R.C.P.
1028(a)(4)]. This was the rationale and holding of Greenberg, which has
never been overruled.”). Hence, I dissent.
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