Appeal from the Order of the Court of Common Pleas of Lehigh County, in the case of William R. Mayo v. William Lichtenwalner, Charles Crawford, Commonwealth of Pennsylvania, Department of Agriculture, No. 87-C-0787.
Richard W. Kolosky, Worth Law Offices, P.C., for appellant.
William A. Slotter, Deputy Attorney General, with him, LeRoy S. Zimmerman, for appellees.
Judges Barry and Colins, and Senior Judge McGinley, sitting as a panel of three. Opinion by Judge Barry.
[ 125 Pa. Commw. Page 138]
William R. Mayo (Plaintiff) appeals an order of the Court of Common Pleas of Lehigh County sustaining the preliminary objections in the nature of a demurrer of two defendants; Charles Crawford and the Department of Agriculture (Defendants). We affirm in part on grounds different from the trial court's; vacate in part and remand.
The Plaintiff was the owner of two Rottweiler dogs. His amended complaint alleges that on October 21, 1985, his dogs were lured by Defendant Lichtenwalner's cats onto the defendant's property and from there into the Defendant's barn. The complaint then alleges that Lichtenwalner closed the barn door trapping the dogs inside and proceeded to call Defendant Crawford, the Dog Law Enforcement Officer of Lehigh County. When Defendant Crawford arrived he entered the barn, shot and killed the two dogs. The Plaintiff's complaint seeks damages for emotional distress and mental anguish, loss
[ 125 Pa. Commw. Page 139]
of society and companionship and economic losses associated with the value of the dogs.
The Defendants filed preliminary objections to the complaint in the nature of a demurrer. The trial court sustained the demurrer on the basis that the Defendants were immune from liability pursuant to 42 Pa. C.S. § 8522(b)(6).
As Judge Palladino noted in County of Allegheny v. Dominijanni, 109 Pa. Commonwealth Ct. 484, 531 A.2d 562 (1987), we must note that the Defendants have not properly raised the affirmative defense of sovereign immunity. Pa. R.C.P. No. 1030 requires that the defense of immunity must be raised as new matter. However, in McCreary v. City of Philadelphia, 95 Pa. Commonwealth Ct. 285, 505 A.2d 385 (1986), we held that where the defense of immunity is apparent on the face of the challenged pleading it will be considered on preliminary objections unless the opposing party challenges the procedure by filing preliminary objections to the preliminary objections. The Plaintiff has not so challenged the Defendants' preliminary objections in the case before us. Accordingly, we will address the demurrer on the basis of sovereign immunity.
In determining whether to sustain a preliminary objection in the nature of a demurrer, all well-pleaded facts and all inferences that may be deduced therefrom, but not conclusions of law, must be accepted as true. Bahian v. Department of Public Welfare, 89 Pa. Commonwealth Ct. 644, 493 A.2d 803 (1985). Further, a demurrer will not be sustained unless the face of the complaint shows that the law will not permit recovery, and any doubts should be resolved against sustaining the demurrer. Id.
The trial court determined that the Defendants were immune from liability for the Plaintiff's failure to plead facts which would permit ...