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A. SWARTZ v. SOPHIE MASLOFF (11/23/81)

decided: November 23, 1981.

A. SWARTZ, J. SWARTZ AND W. TEDDER, APPELLANTS
v.
SOPHIE MASLOFF, ROBERT RADE STONE AND RICHARD GIVENS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of A. Swartz, J. Swartz, W. Tedder v. Sophie Masloff, Robert Rade Stone, Richard Givens, No. G.D. 80-14685.

COUNSEL

Dennis R. Joyce, for appellants.

Marvin A. Fein, Associate City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellees.

Judges Mencer, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 62 Pa. Commw. Page 523]

Appellants*fn1 appeal to this Court*fn2 from an order of the Allegheny County Court of Common Pleas which

[ 62 Pa. Commw. Page 524]

    sustained a preliminary objection of the Appellees*fn3 to Appellants' complaint and dismissed the action.

From the complaint we have determined that two of the Appellants are owners of a tract of real estate leased to the third appellant which real estate was condemned for use as a parking lot by the Parking Authority of the City of Pittsburgh. Appellees are identified in the complaint as individual members of the City of Pittsburgh's City Council. Appellants contend that certain actions or inaction by Appellees with respect to the condemnation of Appellants' real estate constituted malicious, wanton, and reckless misconduct on the part of Appellees with intent to cause harm to Appellants.

Appellees' preliminary objections raise the issue of (1) the jurisdiction of the court on the ground that Appellants' exclusive remedy in this matter is under the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยงยง 1-101-1-903 and (2) the defense of the absolute immunity of Appellees as governmental officials. Our review of the trial judge's opinion in support of his order indicates to us that the trial judge sustained the preliminary objection raising the question of official immunity from suit and did not rule on the jurisdictional issue.

In the instant appeal, Appellants contend that the trial court's order is in error because the defense of immunity from suit was raised improperly by preliminary objection and, under recent decisions of our Pennsylvania Supreme Court, Appellees are not immune from suit.

[ 62 Pa. Commw. Page 525]

Pa. R.C.P. No. 1030 states that the defense of immunity from suit, being an affirmative defense, should be raised in a responsive pleading under the heading of "New Matter". In several cases, our Court has addressed the question of whether the defense of immunity from suit raised by preliminary objection should be stricken. In Iudicello v. Department of Transportation, 34 Pa. Commonwealth Ct. 361, 383 A.2d 1294 (1978), Harris v. Rundle, 27 Pa. Commonwealth Ct. 445, 366 A.2d 970 (1976) and Schuman's Village Square Drugs, Inc. v. Stern, 14 Pa. Commonwealth Ct. 559, 322 A.2d 431 (1974), we held that preliminary objection is a proper vehicle for raising sovereign immunity where the defense is apparent on the face of the pleading under attack. In Milk Marketing Board v. Sunnybrook Dairies, Inc., 32 Pa. Commonwealth Ct. 313, 379 A.2d 330 (1977) we noted also that the proper manner to raise the challenge here asserted would have been by a preliminary objection to the preliminary objection in the nature of a motion to strike for lack of conformity to law or rule of court. See Rufo v. Bastian-Blessing Co., 417 Pa. 107, 207 A.2d 823 (1965) and Pa. R.C.P. No. 1017(b)(2). Thus, it appears that although our Supreme Court does not condone the violation of the provisions of Pa. R.C.P. No. 1030, Freach v. Commonwealth, 471 Pa. 558, 564-65 n. 6, 370 A.2d 1163, ...


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