decided: November 2, 1977.
COMMONWEALTH OF PENNSYLVANIA EX REL. MILK MARKETING BOARD AND ON BEHALF OF 25 PENNSYLVANIA MILK PRODUCERS, PLAINTIFF
SUNNYBROOK DAIRIES, INC., DAIRY FRESH FOOD CORP., JAMES W. O'MARA, JAMES E. O'MARA AND MARY K. O'MARA, DEFENDANTS
Original jurisdiction in case of Commonwealth of Pennsylvania ex rel. Milk Marketing Board and on behalf of 25 Pennsylvania milk producers v. Sunnybrook Dairies, Inc. and Dairy Fresh Food Corp. and James W. O'Mara and James E. O'Mara and Mary K. O'Mara.
Walter J. Sullivan, Chief Counsel, for plaintiff.
Charles E. Wasilefski, with him Hurwitz, Klein, Benjamin & Angino, for defendants.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate. Opinion by President Judge Bowman.
[ 32 Pa. Commw. Page 314]
We are here concerned with preliminary objections of plaintiff, Milk Marketing Board (Board), to a counterclaim
[ 32 Pa. Commw. Page 315]
by defendant, Sunnybrook Dairies, Inc. (Sunnybrook),*fn1 to the Board's complaint alleging violations by Sunnybrook of the Milk Marketing Law.*fn2
The facts giving rise to the instant dispute are set forth in detail in our opinion denying Sunnybrook's preliminary objections to the Board's complaint.*fn3 Briefly, the alleged violations center around asserted attempts by Sunnybrook to escape the minimum price and bonding provisions of the Milk Marketing Law by falsifying its 1975-76 license application and by failing to pay twenty-five individual milk producers the minimum prices established by the Milk Marketing Board. Sunnybrook responded to this complaint by filing preliminary objections. Upon denial of said objections, answers were filed. Included in Sunnybrook's answer is a counterclaim alleging a wrongful refusal by the Board to reissue a milk dealer's license, libel and slander by Board employees, and seeking, among other reliefs, damages in the amount of $365,000.00. The first claim is objected to by the Board as barred by a prior Order of this Court dismissing an appeal from the Board's determination not to reissue Sunnybrook's license, and the tort damage claim is asserted to be barred by the doctrine of sovereign immunity.
A threshold issue has been joined regarding the propriety of raising the defenses of res judicata and sovereign immunity by means of preliminary objections to a defendant's counterclaim. The plaintiff's attack on a counterclaim is fundamentally the same
[ 32 Pa. Commw. Page 316]
as the defendant's attack on the complaint, and ordinarily requires a responsive pleading. See Pa. R.C.P. Nos. 1030, 1031. We have, however, acknowledged preliminary objection to be a proper vehicle for raising sovereign immunity when that defense is apparent on the face of the pleadings. Harris v. Rundle, 27 Pa. Commonwealth Ct. 445, 366 A.2d 970 (1976); Schuman's Village Square Drugs, Inc. v. Stern, 14 Pa. Commonwealth Ct. 559, 322 A.2d 431 (1974). In addition, we note that at the same time Sunnybrook complains the Board has failed to abide by the Rules of Civil Procedure, it too has run afoul of the same Rules. The proper manner by which to raise the challenge here asserted would have been a preliminary objection in the nature of a motion to strike for lack of conformity to law or rule of court. See Pa. R.C.P. No. 1017(b)(2); Rufo v. Bastian-Blessing Co., 417 Pa. 107, 207 A.2d 823 (1965). Because of this disregard for the Rules of Civil Procedure, and because we feel the defense to be apparent on the face of the counterclaim, the interests of judicial economy require that we address the merits of the Board's objection. See Freach v. Commonwealth, 471 Pa. 558, n.6, 370 A.2d 1163, 1166-67 n. 6 (1977); Walter v. Commonwealth, 30 Pa. Commonwealth Ct. 248, 250 n. 3, 373 A.2d 771, 772 n. 3 (1977).
We have noted also an exception to the responsive pleading requirement arising in those circumstances wherein the complaint, or counterclaim, itself refers to a prior action rendering an assertion of res judicata apparent on its face. In such instances, a defense of res judicata may be raised and disposed of by way of preliminary objection.*fn4 Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 243 A.2d 385 (1968);
[ 32 Pa. Commw. Page 317]
[s]o far as Pennsylvania's courts are concerned, it is only as the legislature may by law direct that suits may be brought against the Commonwealth: Pennsylvania Constitution, Art. I, Sec. 11. Nor is the State's consent any less essential where it is sought to interpose a claim against the Commonwealth by way of a set-off or counterclaim to a suit by it: . . . .
Commonwealth v. Berks County, 364 Pa. 447, 449, 72 A.2d 129, 130 (1950) (citations omitted); cited with approval in Department of Public Welfare v. Ludlow Clinical Laboratories, Inc., supra note 7, at , 374 A.2d at 529.*fn8
As the Board is an agency of the Commonwealth, sovereign immunity applies. To date, there is no legislative pronouncement in Pennsylvania which waives immunity from suit in trespass, here defamation, when an agency of the Commonwealth sues to enforce a regulatory statute. Accordingly, we will sustain the preliminary objections of the Board.
Now, November 2, 1977, the preliminary objections of the plaintiff, Milk Marketing Board, in the nature of a demurrer, are hereby sustained, and the defendants' counterclaim is dismissed.
Preliminary objections sustained. Counterclaim dismissed.