Appeal from the Order of the Court of Common Pleas of Bucks County in case of George Hoffner and Gladys Hoffner, his wife, individually and as parents and guardians of George Hoffner, Jr., a minor v. James D. Morrissey, Inc., and Middletown Township and Commonwealth of Pennsylvania and Norbet Lange and Joanne Lange, No. 679 December Term, 1970-04.
Jerome M. Dubyn, with him Dubyn & Smith, for appellants.
John T. Kalita, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, Samuel G. Moyer, Frederick E. Smith, and Allen A. Pechter, for appellees.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 36 Pa. Commw. Page 514]
George and Gladys Hoffner (Appellants) appeal the decision of the Court of Common Pleas sustaining the motion by the Commonwealth of Pennsylvania (Commonwealth) for judgment on the pleadings based on the Commonwealth's assertion of its sovereign immunity.*fn1
[ 36 Pa. Commw. Page 515]
Appellants cannot and do not challenge the applicability of the sovereign immunity doctrine to this case but assert that the Commonwealth has waived its immunity due to its failure to set forth that defense by way of preliminary objection or new matter, or that the delay in asserting the defense of sovereign immunity constituted laches which barred the assertion of that defense. Appellants also argue that the court below should not have dismissed this action but should rather have transferred it to this Court in our original jurisdiction. We cannot agree with any of these assertions and affirm the court below.
The sovereign immunity of the Commonwealth cannot be waived by an act of its agent. It can only be waived by a specific enactment of the legislature. See, e.g., Freach v. Commonwealth, 471 Pa. 558, 370 A.2d 1163 (1977); Finkelstein v. Shippensburg State College, 29 Pa. Commonwealth Ct. 373, 370 A.2d 1259 (1977).*fn2 Moreover, the assertion of this defense by way of a motion for judgment on the pleadings was entirely proper. "Pa. R.C.P. No. 1032(1) provides in essence that the defense of failure to state a claim upon which relief can be granted can never be waived." The case of Meagher v. Commonwealth, 439 Pa. 532, 266 A.2d 684 (1970), specifically held that in a situation where the Commonwealth has not waived its immunity from suit, the complaint fails to state a claim upon which relief can be granted. Therefore, the assertion of such a defense is allowable at any time in the proceedings pursuant to Pa. R.C.P. No. 1032. The assertion of laches in this action is irrelevant as laches is an equitable defense and this action was commenced in trespass. Graybill v. Juniata County School District,
[ 36 Pa. Commw. Page 51621]
Pa. Commonwealth Ct. 630, 633, 347 A.2d 524, 525 (1975).
Appellants are correct that, pursuant to Section 401 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.401, exclusive original jurisdiction of a case where the Commonwealth is named as a defendant is before this Court. However, in view of our above holding, no useful purpose can be served by transferring ...