J-S53003-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DONTIE L. BROOKS IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
THOMAS GOUKER, ANNE KLITSCH,
BRIAN HUDSON & PENNSYLVANIA
HOUSING FINANCE AGENCY
Appellee No. 35 MDA 2016
Appeal from the Order Entered December 10, 2015
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2015 CV 05365 DJ
BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 28, 2016
Dontie L. Brooks appeals from the December 10, 2015 order
sustaining preliminary objections based upon sovereign immunity and
dismissing Appellant’s negligence action against the Pennsylvania Housing
Finance Agency (“PHFA”), its executive director, and employees. For the
reasons that follow, we conclude that appellate jurisdiction properly lies in
Commonwealth Court, and thus, we transfer the within appeal to our sister
court for disposition.1
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1
We raised the issue of jurisdiction sua sponte in our March 1, 2016 order
ruling Appellant to show cause as to why this appeal should not be
transferred to the Commonwealth Court. Appellant filed a timely response,
(Footnote Continued Next Page)
* Former Justice specially assigned to the Superior Court.
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Appellant commenced this action alleging that PHFA and its employees
were negligent in the servicing of his mortgage loan. The trial court
dismissed the complaint based on sovereign immunity, and Appellant
challenges that ruling herein.2
Generally, the Commonwealth and its agencies, officials and
employees acting within the scope of their duties are immune from suits for
damages. See 1 Pa.C.S. § 2310 (establishing immunity for officials and
employees of the Commonwealth under Article I, Section 11 of the
Pennsylvania Constitution).3 Statutory exceptions to sovereign immunity are
delineated in 42 Pa.C.S. § 8522. Tort actions against Commonwealth
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(Footnote Continued)
the rule was discharged, and the matter was referred to the merits panel for
disposition. The PHFA submits that its objection to jurisdiction is not waived
pursuant to Pa.R.A.P. 741 as this Court raised the issue before the PHFA was
required to object and the rule to show cause did not permit a response. On
these facts, we find no waiver.
2
Pennsylvania’s Sovereign Immunity Act is codified at 42 Pa.C.S. § 8501-
8528. Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S. §§
8501, 8541-8546.
3
1 Pa. C.S. § 2310 provides, in pertinent part:
Pursuant to section 11 of Article I of the Constitution of
Pennsylvania, it is hereby declared to be the intent of the
General Assembly 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.
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agencies based on those exceptions are properly commenced in the courts of
common pleas but appellate jurisdiction lies in the Commonwealth Court.
Preliminarily, we must determine whether we should exercise
jurisdiction over the instant appeal. Although appellate jurisdiction over tort
actions involving a Commonwealth defendant resides in the Commonwealth
Court, Appellant relies upon Braderman v. Pennsylvania Housing
Finance Agency, 598 F.Supp. 834 (M.D. Pa. 1984), in support of his
contention that the PHFA is not a Commonwealth agency, and thus, this
appeal should not be transferred. Therein, the plaintiff filed a complaint
against the PHFA in the Federal District Court for the Middle District of
Pennsylvania, claiming inter alia that the Agency wrongfully discharged her
in violation of her First Amendment right of freedom of association. The
Agency moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6),
claiming that it was part of the Commonwealth and that the Eleventh
Amendment divested the district court of its jurisdiction to adjudicate
plaintiff's claim. 4 The district court concluded that the PHFA was not part of
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4
The Eleventh Amendment to the United States Constitution provides:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.
(Footnote Continued Next Page)
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the Commonwealth and not entitled to Eleventh Amendment immunity.
Appellant suggests that since the PHFA is not a part of the Commonwealth,
appellate jurisdiction in this Court is proper.
The PHFA maintains that Appellant fails to understand that Eleventh
Amendment immunity under federal law is not the same as sovereign
immunity under state law. Furthermore, Braderman was decided prior to
the enactment of 35 P.S. § 7504(b), Act of May 16, 1986, P.L. 203, No. 62,
in which the General Assembly of this Commonwealth stated that the
Pennsylvania Housing Finance Agency is a Commonwealth agency “for all
purposes, including, but not limited to, the assertion of sovereign immunity
as provided by 1 Pa.C.S. § 2310 and, except as provided by subsection (a),
the limited waiver of sovereign immunity as provided by 42 Pa.C.S. Ch. 85.”
Finally, the PHFA maintains that Braderman is not applicable because it
held only that the PHFA was not entitled to immunity from suit in federal
court under the Eleventh Amendment, not state court under state law.
Appellant counters that 35 P.S. § 7504 is a health and safety law that
authorizes the PHFA to establish a low-interest loan program to assist
persons whose residences have been impacted by dangerous radon levels to
finance home improvements, and thus, it is inapplicable herein.
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(Footnote Continued)
USCS Const. Amend. 11.
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The PHFA urges us to read 35 P.S. § 7504 in conjunction with 42
Pa.C.S. § 762(a)(1)(i) and (7), which provide:
(a) General rule. — Except as provided in subsection (b), the
Commonwealth Court shall have exclusive jurisdiction of appeals
from final orders of the courts of common pleas in the following
cases:
(1) Commonwealth civil cases. — All civil actions or
proceedings:
(i) Original jurisdiction of which is vested in
another tribunal by virtue of any of the
exceptions to section 761(a)(1) (relating to
original jurisdiction), except actions or
proceedings in the nature of applications for
a writ of habeas corpus or post-conviction
relief not ancillary to proceedings within the
appellate jurisdiction of the court.
....
(7) Immunity waiver matters. — Matters conducted pursuant to
Subchapter C of Chapter 85 (relating to actions against local
parties).
42 Pa.C.S. §762(a)(1)(i). In Flaxman v. Burnett, 574 A.2d 1061, 1064
n.4 (Pa.Super. 1990), this Court relied upon these statutes as the basis for
vesting exclusive appellate jurisdiction of tort claims against Commonwealth
or local agencies in the Commonwealth Court. Herein, although we sua
sponte raised the jurisdictional issue, the PHFA advocates in favor of transfer
based on the PHFA’s status as a Commonwealth agency.
In Trumbull Corp. v. Boss Construction Inc., 747 A.2d 395, 399
(Pa.Super. 2000) (internal citations omitted), we held that when deciding
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whether to retain an appeal or transfer it to Commonwealth Court, we must
weigh judicial economy against the following factors: "(1) whether the case
has already been transferred; (2) whether our retention will disrupt the
legislatively ordained division of labor between the intermediate appellate
courts; and (3) whether there is a possibility of establishing two conflicting
lines of authority on a particular subject."
After consideration of these as well as other factors, we conclude that
it is appropriate to transfer this matter to the Commonwealth Court. Our
retention of this appeal would upset the legislature's decision to vest
exclusive appellate jurisdiction in the Commonwealth Court over matters
involving agencies and sovereign immunity, areas in which our sister Court
has particular expertise. See 42 Pa.C.S. § 762(a)(1); see also Knox v.
SEPTA, 81 A.3d 1016 (Pa.Cmwlth. 2013) (holding SEPTA, a Commonwealth
agency, was entitled to sovereign immunity under Pennsylvania law although
it was not immune under the Eleventh Amendment). Therefore, we transfer
the instant appeal to the Commonwealth Court for disposition pursuant to
Pa.R.A.P. 752.5
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5
Pa.R.A.P. 752. “Transfers Between Superior and Commonwealth Courts,”
provides in pertinent part:
(a) General rule. The Superior Court and the Commonwealth
Court, on their own motion or on application of any party, may
transfer any appeal to the other court for consideration and
(Footnote Continued Next Page)
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Appeal transferred to Commonwealth Court. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2016
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(Footnote Continued)
decision with any matter pending in such other court involving
the same or related questions of fact, law or discretion.
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Brooks, D. v. Gouker, T.
Combined Opinion