immunity defense in Pennsylvania

2025However, there are instances where this Court has declined to adhere to this rule “where no purpose would be served by a delay in ruling on the matter and it would expedite the disposition of the case.” Feldman v. Hoffman, 107 A.3d 821, 832, 836 (Pa. Cmwlth. 2014) (finding no reversible error in sustaining a preliminary objection raising immunity despite a procedural objection, because the immunity defense was apparent on the face of the complaint and further proceedings would serve no purpose).

2023Feldman v. Hoffman, 107 A.3d 821, 832 (Pa. Cmwlth. 2014). “[W]here it is transparently clear on the face of the complaint that immunity applies, the trial court may consider the immunity defense[.]” Id. at 833 .

2013The Lings cite McCarthy v. Ference, 358 Pa. 485, 498 , 58 A.2d 49, 56 (1948), for the proposition that the Commonwealth and landowners both share a duty under the Restatement of Torts not to impair the safety of a highway and that the failure to fulfill this duty results in liability that is "dual and co-existent.” Although McCarthy can be read broadly to support this proposition, our Supreme Court has clarified that such an action can only be maintained “against one not having the immunity defense.” Mascaro v. Youth Study Center, 514 Pa. 351, 361 , 523 A.2d 1118, 1125 (1987).

2013The Lings cite McCarthy v. Ference, 358 Pa. 485, 498 , 58 A.2d 49, 56 (1948), for the proposition that the Commonwealth and landowners both share a duty under the Restatement of Torts not to impair the safety of a highway and that the failure to fulfill this duty results in liability that is "dual and co-existent.” Although McCarthy can be read broadly to support this proposition, our Supreme Court has clarified that such an action can only be maintained “against one not having the immunity defense.” Mascaro v. Youth Study Center, 514 Pa. 351, 361 , 523 A.2d 1118, 1125 (1987).

2025“In Pennsylvania, an immunity defense does not, in and of itself, entitle a litigant to appellate review of an interlocutory order.” Gwiszcz v. City of Philadelphia, 550 A.2d 880, 881 (Pa. Cmwlth. 1988).

2023It is well settled that “an immunity defense does not, in and of itself, entitle a litigant to appellate review of an interlocutory order.” Gwiszcz v. City of Philadelphia, 550 A.2d 880, 881 (Pa. Cmwlth. 1988).

2021Second, “where a party erroneously asserts an immunity defense in a preliminary objection, the failure of the opposing party to file a preliminary objection to the defective preliminary objection in the nature of a motion to strike for lack of conformity to law waives the procedural defect and allows the trial court to rule on the immunity defense.” Id.

2021Second, “where a party erroneously asserts an immunity defense in a preliminary objection, the failure of the opposing party to file a preliminary objection to the defective preliminary objection in the nature of a motion to strike for lack of conformity to law waives the procedural defect and allows the trial court to rule on the immunity defense.” Id.

2020Id.; see Gallagher v. City of Philadelphia, . . . 597 A.2d 747, 750 (Pa. Cmwlth. 1991).

2020Id.; see Gallagher v. City of Philadelphia, . . . 597 A.2d 747, 750 (Pa. Cmwlth. 1991).

2016Sovereign immunity may be overcome where the plaintiff can establish: (1) a common law or statutory cause of action under which damages could be recoverable if not for the immunity defense, and; (2) the alleged negligent act falls within one of the nine specific exceptions provided in section 8522(b) of the Judicial Code (Code), commonly referred to as the Political Subdivision Tort Claims Act. 8 Kull v. Guisse, 81 A.3d 148, 157 (Pa.Cmwlth.2013).

2016The law is well settled that under Section 8521 of the Judicial Code, commonly known as the Sovereign Immunity Act, 13 42 Pa.C.S. § 8521, “sovereign immunity protects Commonwealth officials and employees acting within the scope of their duties from civil liability. 1 Pa.C.S. § 2310.” Kull v. Guisse, 81 A.3d 148, 154 (Pa.Cmwlth.2013). [Sovereign immunity may be overcome where the party can establish: (1) a common law or statutory cause of action under which damages could be recoverable if not for the immunity defense, and (2) the alleged negligent act falls within one of the nine specific excep

2023Thus, to determine whether a Commonwealth employee is protected from liability under sovereign immunity, we must consider “whether the Commonwealth employee was acting within the scope of [their] employment; whether the alleged act which causes injury was negligent and damages would be recoverable but for the availability of 7 the immunity defense; and whether the act fits within one of the nine exceptions to sovereign immunity.” La Frankie, 618 A.2d at 1149 .

2021However, “sovereign immunity is not waived for intentional acts committed by a Commonwealth employee acting within the scope of his or her employment.” Paluch, 175 A.3d at 438 (emphasis added) (citing La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992)).

2014See Freach v. Com., 471 Pa. 558 , 370 A.2d 1163 (1977) (“because 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.”); Beaver v. Coatesville Area School Dist., 845 A.2d 955, 960 (Pa.Cmwlth.2004) ("we have not allowed the immunity defense to be considered by way of preliminary objection where the opposing party has objected.”); Mayo v. Lichtenwalner, 125 Pa.Cmwlth. 137 , 557 A.2d 798 (1989) (if

2014See Freach v. Com., 471 Pa. 558 , 370 A.2d 1163 (1977) (“because 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.”); Beaver v. Coatesville Area School Dist., 845 A.2d 955, 960 (Pa.Cmwlth.2004) ("we have not allowed the immunity defense to be considered by way of preliminary objection where the opposing party has objected.”); Mayo v. Lichtenwalner, 125 Pa.Cmwlth. 137 , 557 A.2d 798 (1989) (if

2021However, “sovereign immunity is not waived for intentional acts committed by a Commonwealth employee acting within the scope of his or her employment.” Paluch, 175 A.3d at 438 (emphasis added) (citing La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992)).

2020However, “sovereign immunity is not waived for intentional acts committed by a Commonwealth employee acting within the scope of his or her employment.” Paluch, 175 A.3d at 438 (emphasis added) (citing La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992)).

2021Thus, “sovereign immunity may be overcome where the party can establish: (1) a common law or statutory cause of action under which damages could be recoverable if not for the immunity defense, and (2) the alleged negligent act falls within one of the nine specific exceptions provided in 42 Pa. C.S. §8522(b).” Department of Corrections v. Tate, 133 A.3d 350, 359 (Pa. Cmwlth. 2016).

2020Thus, “sovereign immunity may be overcome where the party can establish: (1) a common law or statutory cause of action under which damages could be recoverable if not for the immunity defense, and (2) the alleged negligent act falls within one of the nine specific exceptions provided in 42 Pa.C.S. §8522(b).” Department of Corrections v. Tate, 133 A.3d 350, 359 (Pa. Cmwlth. 2016).

2017See Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1022 (Pa. Cmwlth. 2014) (“[A]lthough [the plaintiff] objected to the immunity defense in its response to the preliminary objections, [plaintiff] did not properly object by filing its own preliminary objection to strike Defendants’ preliminary objection and the immunity defense.”) (emphasis in original); see also Philadelphia Fraternal Order of Correctional Officers v. Rendell, 701 A.2d 600, 607 (Pa. Cmwlth. 1997).

2017See Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1022 (Pa. Cmwlth. 2014) (“[A]lthough [the plaintiff] objected to the immunity defense in its response to the preliminary objections, [plaintiff] did not properly object by filing its own preliminary objection to strike Defendants’ preliminary objection and the immunity defense.”) (emphasis in original); see also Philadelphia Fraternal Order of Correctional Officers v. Rendell, 701 A.2d 600, 607 (Pa. Cmwlth. 1997).

2014In Morris v. Mount Lebanon Township School District, 393 Pa. 633, 636 , 144 A.2d 737, 738 (1958), the Court refused to completely abrogate the immunity doctrine, but held that school districts, like municipal corporations, “are not immune from liability in tort for the negligent acts of their servants committed in the course of the (school district’s) proprietary functions.” Id. at 880-81 (quoting from Ford, supra, citations and footnote omitted).

2014In Morris v. Mount Lebanon Township School District, 393 Pa. 633, 636 , 144 A.2d 737, 738 (1958), the Court refused to completely abrogate the immunity doctrine, but held that school districts, like municipal corporations, “are not immune from liability in tort for the negligent acts of their servants committed in the course of the (school district’s) proprietary functions.” Id. at 880-81 (quoting from Ford, supra, citations and footnote omitted).

2001While this distinction might be relevant if the issue were duty of care, we do not find it dispositive of our construction of the immunity exception, which specifically requires ownership. [5] The cases upon which Jackson relies, primarily Primiano v. City of Philadelphia, 739 A.2d 1172 (Pa.Cmwlth.1999) and County of Allegheny v. Dominijanni, 109 Pa.Cmwlth. 484 , 531 A.2d 562 (1987), are readily distinguishable.

2001While this distinction might be relevant if the issue were duty of care, we do not find it dispositive of our construction of the immunity exception, which specifically requires ownership. [5] The cases upon which Jackson relies, primarily Primiano v. City of Philadelphia, 739 A.2d 1172 (Pa.Cmwlth.1999) and County of Allegheny v. Dominijanni, 109 Pa.Cmwlth. 484 , 531 A.2d 562 (1987), are readily distinguishable.

2026Bollinger, 552 A.2d at 363 .

2020This Court has noted previously that “an immunity defense does not, in and of itself, entitle a litigant to appellate review of an interlocutory order.” Gwiszcz, 550 A.2d at 881 ; see also Bollinger, 552 A.2d at 363 n.5 (noting that even if a governmental entity is immune from suit under the Sovereign Immunity Act, “the mere possibility of an irreparable loss of [the] right [to avoid suit] does not in itself satisfy the collateral order doctrine”).

2024“The rationale for this exception is to avoid unnecessary delay if the complaint is clearly barred by the doctrine of immunity.” Id.

2022Logan v. Lillie, 728 A.2d 995, 998 (Pa. Cmwlth. 1999) (holding that “it was proper for the trial court to consider the doctrine of immunity on preliminary objections” where defendants’ status as judicial officers rendered the applicability of the defense of sovereign immunity “clear from the face of the complaint”); see also Faust v. Dep’t of Revenue, 592 A.2d 835 , 838 n.3 (Pa. Cmwlth. 1991) (explaining that “sovereign immunity is an affirmative defense which ordinarily should be raised as new matter, but may be raised in preliminary objections when to delay a ruling thereon would serve no pu

2013The Lings cite McCarthy v. Ference, 358 Pa. 485, 498 , 58 A.2d 49, 56 (1948), for the proposition that the Commonwealth and landowners both share a duty under the Restatement of Torts not to impair the safety of a highway and that the failure to fulfill this duty results in liability that is "dual and co-existent.” Although McCarthy can be read broadly to support this proposition, our Supreme Court has clarified that such an action can only be maintained “against one not having the immunity defense.” Mascaro v. Youth Study Center, 514 Pa. 351, 361 , 523 A.2d 1118, 1125 (1987).

2013The Lings cite McCarthy v. Ference, 358 Pa. 485, 498 , 58 A.2d 49, 56 (1948), for the proposition that the Commonwealth and landowners both share a duty under the Restatement of Torts not to impair the safety of a highway and that the failure to fulfill this duty results in liability that is "dual and co-existent.” Although McCarthy can be read broadly to support this proposition, our Supreme Court has clarified that such an action can only be maintained “against one not having the immunity defense.” Mascaro v. Youth Study Center, 514 Pa. 351, 361 , 523 A.2d 1118, 1125 (1987).

2001Further in the absence of this circumstance, preliminary objections raising the immunity defense may be considered if the opposing party waives the procedural defect.” Id. at 638 , 584 A.2d at 407 .

2001Further in the absence of this circumstance, preliminary objections raising the immunity defense may be considered if the opposing party waives the procedural defect.” Id. at 638 , 584 A.2d at 407 .

2000In holding that the immunity defense of RULWA was not applicable to the Seminary, the Supreme Court reasoned that the premises of the Seminary did not fall within the legislature’s intended meaning of “land.” See Walsh v. City of Philadelphia, 526 Pa. 227, 236 , 585 A.2d 445, 449 (1991)(“The Rivera case turned on the determination of the intent of the Legislature as to the meaning of the word ‘land’, and the ancillary structures attached thereto.”).

2000In holding that the immunity defense of RULWA was not applicable to the Seminary, the Supreme Court reasoned that the premises of the Seminary did not fall within the legislature’s intended meaning of “land.” See Walsh v. City of Philadelphia, 526 Pa. 227, 236 , 585 A.2d 445, 449 (1991)(“The Rivera case turned on the determination of the intent of the Legislature as to the meaning of the word ‘land’, and the ancillary structures attached thereto.”).

1989In response to the Department’s arguments, this court held in Gwiszcz that an immunity defense does not entitle a litigant to appellate review of an interlocutory order, citing Urbano v. Meneses, 288 Pa. Superior Ct. 103 , 431 A.2d 308 (1981).

1989In response to the Department’s arguments, this court held in Gwiszcz that an immunity defense does not entitle a litigant to appellate review of an interlocutory order, citing Urbano v. Meneses, 288 Pa. Superior Ct. 103 , 431 A.2d 308 (1981).