affirmative defense in Pennsylvania

2026We are simply rarely or never going to be able to prove up [sic] an adequate purge amount without the [D]efendant’s cooperation.”) (emphasis in original). 30 Hall’s Brief at 16 (quoting Barrett, 368 A.2d at 621 )) (emphasis in original). 31 Id. at 10. [J-40-2025] - 11 As to Barrett’s reference to inability to pay as an affirmative defense, Hall contends that the statement related to the Court’s discussion of the initial finding of contempt and the obligor’s related burden to show that the failure to comply was not willful.

2026That is also consistent with the burden- shifting of the initial contempt finding: the petitioner has the burden to show, by a preponderance of the evidence, that the obligor violated a court order; then, the obligor 42 Barrett, 368 A.2d at 621 . 43 Id. 44 Id. 45 Id. [J-40-2025] - 16 has the burden to demonstrate an inability to comply such that the failure was not willful. 46 Once there is a determination that the failure to comply was willful, and that the obligor is in contempt, the “alleged contemnor” becomes the “contemnor.” Viewing the inability to pay as an affirmative defense is incons

2026To the extent that any of the claims could be interpreted to request declaratory relief, such claims are improper and will be dismissed for other reasons discussed infra. 10 Although the affirmative defense of immunity from suit typically must be asserted by way of new matter, see Pa.R.Civ.P. 1030(a), “Pennsylvania courts have long recognized a limited exception to this rule 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.” Chasan v. Platt, 244 A.3d 73 , 81 (Pa. Cmwlth. 2020) (

2024Further, “Pennsylvania courts have long recognized a limited exception to this rule 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.” Feldman, 107 A.3d at 829-30 (emphasis added) (citing string of cases); see also Logan v. Lillie, 728 A.2d 995 (Pa. Cmwlth. 1999) (involving suit against judicial defendants and successful assertion of judicial immunity).

2023Thereafter, this Court in Geisinger Health Plan v. Unemployment Compensation Board of Review, 964 A.2d 970 (Pa. Cmwlth. 2009), expounded: Disparate treatment is an affirmative defense by which a claimant who has engaged in willful misconduct may still receive [UC] benefits if [she] can make an initial showing that: (1) the employer discharged claimant, but did not discharge other employees who engaged in similar conduct; (2) the claimant was similarly situated to the other employees who were not discharged; and (3) the employer discharged the claimant based upon an improper criterion.

2020See Pa.R.A.P. 1551(a) (stating review of quasijudicial orders “shall be conducted by the court on the record made before the government unit” and that “[n]o question shall be heard or considered by the court which was not raised before the government unit”). 5 In Geisinger Health Plan v. Unemployment Compensation Board of Review, 964 A.2d 970, 976 (Pa. Cmwlth. 2009), this Court noted “[d]isparate treatment is an affirmative defense by which a claimant who has engaged in willful misconduct may still receive benefits if he can make an initial showing that: (1) the employer discharged claimant, b

2024“The affirmative defense of self- defense, if accepted, results in an acquittal because it constitutes a -6- J-A08041-24 justification for the conduct charged.” Commonwealth v. Mouzon, 53 A.3d 738 , 744 n.5 (Pa. 2012) (citation omitted).

2024This argument fails to address the fact that a defendant bears the burden to prove an affirmative defense by a preponderance of the evidence, see Commonwealth v. Mouzon, 53 A.3d 738, 743 (Pa. 2012), and Appellant never raised the defense at trial.

2024See Iorfida v. Mary Robert Realty Co., 539 A.2d 383, 387 (Pa. Super. 1988) (holding that an affirmative defense does not need to be pled by name as long as the answer is “susceptible of the inference” that the facts alleged, if true, establish the defense); Lachner v. Swanson, 380 A.2d 922, 925 (Pa. Super. 1977) (noting that a defendant loses the possibility of compelling the plaintiff to reply but does not waive an affirmative defense by pleading it within the answer instead of under new matter); see also Fox v. Andrews, 304 A.3d 779 (Pa. Super. 2023) (“[C]ourts may construe pro se filings li

2019While Rule 1030 does not enumerate incapacity as an affirmative defense, the list is not exhaustive – new matter has been described as “anything other than a denial, setoff, or counterclaim.” Iorfida, 539 A.2d at 386 .

2025The doctrine of laches is an affirmative defense in equity “whose purpose is the repose of title, claims[,] and demands for the peace and order of society.” Williamstown Borough Auth. v. Cooper, 591 A.2d 711, 714 (Pa. Super. 1991); see also Fulton v. Fulton, 106 A.3d 127, 131 (Pa. Super. 2014) (stating that, “[t]he doctrine of laches is an equitable bar to the prosecution of stale claims and is the practical application of the maxim that ‘those who sleep on their rights must awaken to the consequence that they have disappeared’” (citation and original quotation marks omitted)).

2022The doctrine of laches is an affirmative defense that bars the prosecution of stale claims and is the practical application of the maxim that “those who sleep on their rights must awaken to the consequence that they have disappeared.” Fulton v. Fulton, 106 A.3d 127, 131 (Pa.Super. 2014) (quoting Kern v. Kern, 892 A.2d 1, 9 (Pa.Super. 2005)).

2024However, with one limited exception for writings not applicable here, “an effort to supply facts missing from the objectionable pleading makes the preliminary objection in the nature of a demurrer an impermissible [s]peaking demurrer.” Stilp v. Commonwealth, 910 A.2d 775, 791 (Pa. Cmwlth. 2006), aff’d, 974 A.2d 491 (Pa. 2009) (citation and quotation marks omitted); see also Minor v. Kraynak, 155 A.3d 114, 124 (Pa. Cmwlth. 2017). “[Respondents] may assert facts showing that the allegations are not true . . . as an affirmative defense.

2020Further, even in the absence of Section 6602(e)(2), “courts have permitted [a] limited exception to [Rule of Civil Procedure 1030(a)] and have allowed parties to raise the affirmative defense of immunity as a preliminary objection if the defense is clearly applicable on the face of the [petition for review].” Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017) (internal quotation marks and citation omitted).

2026As discussed above, Appellant failed to respond to the Hanchicks’ new matter, and their “averments which set forth the factual basis in support of an affirmative defense.” Devine v. Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004) (citations omitted).

2026Notably, “[d]efenses to the statute of limitations, such as estoppel, agreement, agency, apparent authority, fraud, or concealment are waivable defenses and must be raised in a reply to new matter asserting the statute of limitations as an affirmative defense.” Id. at 1169 (citations omitted).

2021Further, DOC Defendants argued that 5 As is the case here, it is well settled that the affirmative defense of sovereign immunity may be raised by preliminary objections “where it is apparent on the face of the pleading that the cause of action does not fall within the statutory exceptions to sovereign immunity.” Kull v. Guisse, 81 A.3d 148, 160 (Pa. Cmwlth. 2013) (citing Wurth by Wurth v. City of Philadelphia, 584 A.2d 403 (Pa. Cmwlth. 1990)).

2020Wurth v. City of Philadelphia, . . . 584 A.2d 403, 407 (Pa. Cmwlth. 1990) (en banc).

2019Relatedly, within broad constitutional bounds, legislatures have flexibility "to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes." Patterson v. New York , 432 U.S. 197 , 210, 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977) ; see also Smith v. United States , 568 U.S. 106 , 110, 133 S.Ct. 714 , 184 L.Ed.2d 570 (2013) (where an affirmative defense "excuses conduct that would otherwise be punishable, but does not controvert any elements of the offense itself, the Government has no constitutional duty to overcome the defense

2019Relatedly, within broad constitutional bounds, legislatures have flexibility "to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes." Patterson v. New York , 432 U.S. 197 , 210, 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977) ; see also Smith v. United States , 568 U.S. 106 , 110, 133 S.Ct. 714 , 184 L.Ed.2d 570 (2013) (where an affirmative defense "excuses conduct that would otherwise be punishable, but does not controvert any elements of the offense itself, the Government has no constitutional duty to overcome the defense

2021Commonwealth v. Manera, 827 A.2d 482 , 485 n.7 (Pa. Super. 2003) (“Because justification is an affirmative defense, the defendant has the burden of asserting an appropriate offer of proof in order to be entitled to a jury instruction on justification.”).

2018See also Manera, 827 A.2d at 485 n.7 (“Because justification is an affirmative defense, the defendant has the burden of asserting an appropriate offer of proof in order to be entitled to a jury instruction on justification.”).

2017Moreover, “[w]here an insurer relies on a policy exclusion as the basis for its denial of coverage, the insurer has asserted an affirmative defense, and accordingly, bears the burden of proving such defense.” Id. (citations omitted).

2017“Where an insurer relies on a policy exclusion as the basis for its denial of coverage and refusal to defend, the insurer has asserted an affirmative defense and, accordingly, bears the burden of proving such defense.” Madison Const., 735 A.2d at 106 .

2023RR at 114a. 2 By an April 29, 2019 Interlocutory Order, the WCJ denied Claimant’s motion for relief under Yellow Freight System, Inc. v. Workmen’s Compensation Appeal Board (Madara), 423 A.2d 1125, 1127-28 (Pa. Cmwlth. 1981) (holding that an employer’s failure to file a timely answer under the Act precluded the employer from presenting evidence of an affirmative defense to a claim petition).

2023Based on Employer’s failure to file a timely answer to the claim petition, Claimant requested relief pursuant to Yellow Freight System, Inc. v. Workmen’s Compensation Appeal Board (Madara), 423 A.2d 1125, 1127-28 (Pa. Cmwlth. 1981), in which this Court held that an employer’s failure to file a timely answer under Section 416 of the Act3 precluded the employer from presenting evidence of an affirmative defense 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. 2 Added by the Act of February 8, 1972, P.L. 25.

2024Even so, this Court has held “that rescission is an affirmative defense, which must be raised by the defendant under the heading new matter in its responsive pleading.” Falcione v. Cornell School Dist., 557 A.2d 425 , 428 (Pa. Super. 1989).

2024Even so, this Court has held “that rescission is an affirmative defense, which must be raised by the defendant under the heading new matter in its responsive pleading.” Falcione v. Cornell School Dist., 557 A.2d 425, 428 (Pa. Super. 1989).

2025As this Court held in LeFlar, the Act “deprives the common pleas courts of jurisdiction of common law actions in tort for negligence against employers and is not an affirmative defense which may be waived if not timely plead[ed].” LeFlar, 515 A.2d at 879 .

2025Park No. 2, 515 A.2d 875, 879 (Pa. 1986) (holding the WCA “deprives the common pleas courts of jurisdiction of common law actions in tort for negligence against employers and is not an affirmative defense which may be waived if not timely plead[ed]”). -7- J-A14023-24 movant, the law nonetheless requires a verdict in his favor.

1990In Posternack v. American Casualty Co. of Reading, 421 Pa. 21 , 218 A.2d 350 (1966), the trial court issued an order refusing the appellant’s request to amend its answer to assert a new affirmative defense.

1990In Posternack v. American Casualty Co. of Reading, 421 Pa. 21 , 218 A.2d 350 (1966), the trial court issued an order refusing the appellant’s request to amend its answer to assert a new affirmative defense.

2018See Heifetz v. Philadelphia State Hospital , 482 Pa. 386 , 393 A.2d 1160 , 1162 n.5 (1978) (noting "immunity from suit is an affirmative defense").

2018In 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 ____________________________________________ 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

2023Assocs., 733 A.2d 677, 681 (Pa. Cmwlth. 1999) (stating that “[l]aches applies when a defendant is so prejudiced by the passage of time and inexcusable delay that it would be unjust to allow the plaintiff to assert a claim”) (emphasis added)); Weinberg v. Commonwealth, 501 A.2d 239, 242 (Pa. 1985) (explaining that “laches is an affirmative defense”).

1989The Court further stated that "the defense of laches is an affirmative defense and the burden of proving laches is, therefore, on the defendant/respondent." Id.

2016KCAS cites City of Philadelphia v. Spencer, 591 A.2d 5 , 7 n.1 (Pa.Cmwlth. 1991), Mineo v. Tancini, 536 A.2d 1323 (Pa. 1988), and Hull v. Tolentino, 536 A.2d 797 (Pa. 1988), for the proposition that an order foreclosing assertion of an affirmative defense involving issues of fact as well as law was immediately appealable.

1993The law is clear that a “pre-trial order precluding the assertion of an affirmative defense which ‘prevented factual proof of matters which the trier of fact could have determined in favor of the pleader so as to provide him with a complete factual defense,’ ” is “final” and thus, “appealable.” Mineo v. Tancini, 517 Pa. 335, 338 , 536 A.2d 1323, 1324 (1988), quoting Hull v. Tolentino, 517 Pa. 328, 330 , 536 A.2d 797, 798 (1988). 2 See also, Postemack v. American Cas.