Feldman v. Hoffman

DISSENTING OPINION BY

President Judge PELLEGRINI.

I respectfully dissent because we have no authority to overrule the express provisions of the Rules of Civil Procedure.

There is no dispute that immunity is an affirmative defense. The question here is whether it can be raised in a preliminary objection or as New Matter. The Pennsylvania Rules of Civil Procedure are clear that as an affirmative defense, immunity must be raised in an Answer under New Matter, not as a preliminary objection. Pa. R.C.P. No. 1030 provides:

(a) Except as provided by subdivision
(b), all affirmative defenses including but not limited to the defenses of ... immunity from suit ... 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.

Not only does this Rule provide that the affirmative defense of immunity must be raised in New Matter, our Supreme Court’s last pronouncement on this issue in Callsen v. Temple University Hospital, 539 Pa. 377, 652 A.2d 824, 826 (1995), stated that “under Pa. R.C.P. No. 1030 immunity defenses must be raised as new matter and not as preliminary objections.”

We have considered the defense of immunity raised in preliminary objections when the opposing party does not object to it being raised in preliminary objections. In Higby Development, LLC v. Sartor, 954 A.2d 77, 84 (Pa.Cmwlth.2008), we stated that:

Pa. R.C.P. No. 1030(a) provides that immunity from suit is an affirmative defense that must be raised in a responsive pleading under the heading of “new matter.” However, a limited exception to this Rule has been created allowing the raising of the affirmative defense of governmental immunity as a preliminary objection when it is clearly applicable on the face of the complaint and where the plaintiff raises no objection. Sweeney v. Merrymead Farm, Inc., 799 A.2d 972 (Pa.Cmwlth.2002). Additionally, where a substantive defense is raised in preliminary objections, the failure of the opposing party to file preliminary objections to those preliminary objections waives any procedural defect and allows the trial court to rule on the preliminary objections. Heinrich v. Conemaugh Valley Memorial Hospital, [648 A.2d 53 (Pa.Super.1994) ]. Here, it was evident on the face of Developer’s complaint that governmental immunity was applicable, and while Developer had the opportunity to file preliminary objections to the preliminary objections filed by Sartor and Yerkes, it did not. Because Developer did not do so, Developer waived the issue regarding immunity, and the trial court properly ruled on their preliminary objections. (Footnotes omitted.)

See also Freach v. Com. 471 Pa. 558, 370 A.2d 1163 (1977);1 Richmond v. McHale, *83835 A.3d 779 (Pa.Super.2012). That reasoning is consistent with the principle that when a party does not object to a non-jurisdictional defect, that matter is waived. In this case, however, the plaintiff has objected by filing preliminary objections to Hoffman’s preliminary objections objecting to not raising the affirmative defense in new matter.

The question then becomes when a plaintiff follows our Supreme Court, the Superior Court as well as this court’s instruction to file a preliminary objection to a preliminary objection when the plaintiff improperly raised immunity by a preliminary objection, can we nonetheless still decide the immunity issue pled in a preliminary objection. The majority gives two reasons why it can do so even though it violates Pa. R.C.P. No. 1030.

The first reason the majority gives is judicial expediency stated in Iudicello v. Commonwealth, Department of Transportation, 383 A.2d 1294 (Pa.Cmwlth.1978) and Combs v. Borough of Ellsworth, 151 Pa.Cmwlth. 21, 615 A.2d 462 (1992), which both stand for the proposition expressed in Iudicello, 383 A.2d at 1295:

However, plaintiffs distinguish these cases saying that no objection was made by the plaintiffs in those cases and objection is being raised here. Recognizing considerable merit in plaintiffs’ position on this procedural point, we can see no possible benefit to anyone in dismissing these preliminary objections and requiring an answer to be filed and having this matter more appropriately raised as new matter. When it is transparently clear on the face of the complaint, as it is here from plaintiffs’ own allegations, that the Commonwealth is immune, we will consider the matter in its present posture and thus expedite the disposition of the case.

The other reason it advances is the one used in R.H.S. v. Allegheny County Department of Human Services, Office of Mental Health, 936 A.2d 1218 (Pa.Cmwlth.2007), that this defect can be ignored under Pa. R.C.P. No. 126 which allows a court to disregard a defect in procedure. In R.H.S., 936 A.2d at 1227-28, we stated:

Plaintiff is technically correct that Defendants followed an improper procedure. But to amount to reversible error, the procedural defect must also cause harm. See Pa. R.C.P. No. 126 (‘[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.’). However, Plaintiff fails to demonstrate how the timing of the immunity defense affects the ultimate conclusion that Defendants are immune from suit. So, for example, she does not suggest that further pleading will add new relevant facts. Absent a, showing of prejudice, we discern no reversible error. (Emphasis added.)

However, ignoring a Rule of Civil Procedure is not the type of defect that a court is allowed to disregard under Pa. R.C.P. No. 126. That Rule is only available to a party who has made an attempt to comply with the Rules of Civil Procedure and is not a blanket rule that allows us to ignore a Rule just because it is expeditious to do so. As our Supreme Court stated in Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269, 278 (2006):

The equitable doctrine we incorporated into Rule 126 is one of substantial compliance, not one of no compliance. *839We 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. (Emphasis added.)

In this case, Pa. R.C.P. No. 1080 requires that an affirmative defense be pleaded in a responsive pleading under the heading “New Matter.” By filing a preliminary objection raising the affirmative defense of immunity, the defendant disregards that Rule, making Pa. R.C.P. No. 126 unavailable. See footnote 1.

Just because it would be easier to decide it and “end the matter” when the immunity issue is “obvious on its face of the pleading,” then we are, in essence,. converting an affirmative defense that must be pled under Pa. R.C.P. No. 1030 into a preliminary objection under Pa. R.C.P. No. 1028, something we cannot do. When the Supreme Court promulgated Pa. R.C.P. No. 1080 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 immunity issue can then be determined either by a Motion for Judgment on the Pleadings or a Motion for Summary Judgment.

While I recognize that considering immunity in preliminary objections where -it is obvious “on its face” is expeditious, our Supreme Court has instructed us'that 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.” Womer, 908 A.2d at 276.2

Because we cannot rewrite the Rules of Civil Procedure, I respectfully dissent.

. “It is to be noted that 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. See Pa. R.C.P. No. 1030. 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 *838condone the disregard of the Pennsylvania Rules of Civil Procedure by appellees.” Freach, 370 A.2d at 1172. (Emphasis added.)

. In footnote 14, rather than address the points that the dissent makes, the 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. As the majority points out, there are two lines of cases and I chose to follow one line that is conformance with the Rules promulgated by the Supreme Court. Silly me. To answer its question of how can I justify reversing a trial court when the decision is supported by decades of what the majority calls binding, but I would call inconsistent case law, that answer is simple — -read the dissent.