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RICHARD KASTNER v. COMMONWEALTH PENNSYLVANIA (10/26/77)

decided: October 26, 1977.

RICHARD KASTNER, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, DEFENDANT



Original jurisdiction in case of Richard Kastner v. Commonwealth of Pennsylvania, Department of Transportation.

COUNSEL

Michael S. Silberman, with him Wilbur Greenberg, and Sidkoff, Pincus & Greenburg, P.C., for plaintiff.

Stuart J. Moskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant.

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by President Judge Bowman.

Author: Bowman

[ 32 Pa. Commw. Page 268]

Richard Kastner filed a complaint in trespass within our original jurisdiction, naming as the sole defendant, the Pennsylvania Department of Transportation (PennDOT). The complaint alleges that defendant built a new highway which caused access to plaintiff's property to be more circuitous and difficult. Plaintiff alleges that the value of his tract of ground has diminished substantially because of PennDOT's action.

PennDOT filed preliminary objections to plaintiff's complaint raising the defense of sovereign immunity from suit derived from Article I, Section 11 of the Constitution of Pennsylvania. The propriety of raising this defense by way of preliminary objections has not been challenged by plaintiff by an appropriate pleading, but at argument plaintiff would now have us dismiss the preliminary objections and require defendant to raise this defense by way of new matter in its answer.

We again note that immunity from suit is an affirmative defense which should be pleaded under the heading of 'New Matter' in a responsive pleading; it is not properly raised by preliminary objections. See Pa. R.C.P. 1030. Since plaintiffs did not object to the manner in which the issue of immunity was raised, we will, in the interest of judicial economy, decide the issue on its merits.

Walter v. Commonwealth, 30 Pa. Commonwealth Ct. 248, 250 n.3, 373 A.2d 771, 772 n.3 (1977).

To the same effect see Freach v. Commonwealth, Pa. , n.6, 370 A.2d 1163, 1166-67 n.6 (1977).

While we do not condone a disregard of the Pennsylvania Rules of Civil Procedure, we, nonetheless, in the interest of judicial economy, will again consider

[ 32 Pa. Commw. Page 269]

    this defense as here raised inasmuch as plaintiff is equally at fault in failing to file a pleading ...


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