Appeal from Common Pleas Court, Philadelphia County, Honorable Samuel Lehrer, Judge.
Jay E. Plunk, Jr., Philadelphia, for appellants.
Harry S. Tischler, Philadelphia, for School Dist. of Philadelphia and Middle Years Alternative School.
Norman G. Prajzner, Miriam B. Brenaman, Barbara R. Axelrod, Seymour Kurland, Norma S. Weaver, Philadelphia, for City of Philadelphia.
Doyle and Palladino, JJ., and Narick, Senior Judge.
[ 128 Pa. Commw. Page 160]
Robert and Patricia Cotter (Appellants) appeal from orders of the Court of Common Pleas of Philadelphia County sustaining preliminary objections in the nature of a demurrer of the City of Philadelphia, the School District of Philadelphia, Middle Years Alternative School, Gilbert Belsky, Barry Goldstein, and Jane Doe,*fn1 (Appellees) and dismissing Appellants' amended complaint.
The facts, as alleged in the amended complaint, are as follows: Robert Cotter (Cotter) was a student in the School District of Philadelphia and attended Middle Years Alternative School. In April 1986, Cotter attended a workshop at Fellowship Farms in Pottstown, Pennsylvania which was sponsored by the City of Philadelphia and the School District
[ 128 Pa. Commw. Page 161]
of Philadelphia. While at the workshop, Cotter was sexually assaulted by another student.
Appellants filed a complaint and an amended complaint in which they alleged that Appellees negligently supervised the students and that Belsky, Goldstein, and Doe's attempts to coverup the incident and their failure to provide adequate counseling for Robert constituted willful misconduct. Appellees filed preliminary objections to the amended complaint asserting the defense of immunity. The trial court sustained the preliminary objections and dismissed the complaint.
On appeal, Appellants contend that this action falls under the real estate exception to Appellees' defense of immunity. Appellants also allege that Belsky, Goldstein, and Doe's actions are not protected by the immunity statute and that Belsky has waived his right to immunity. "Preliminary objections in the form of a demurrer will not be sustained unless it is clear on the face of the pleadings that the law will not permit the recovery sought." Hawkins v. City of Harrisburg, 120 Pa. Commw. 369, 371, 548 A.2d 399, 401 (1988).
Initially we note that immunity is an affirmative defense which is properly raised in new matter rather than in a preliminary objection. Rule 1030 of the Pennsylvania Rules of Civil Procedure provides in pertinent part: "All affirmative defenses including but not limited to the defense of . . . immunity from suit . . . shall be pleaded in a responsive pleading under the heading 'new matter.'" Although immunity should be raised in new matter, our Supreme Court in The Upset Sale of Properties Against Which Delinquent 1981 Taxes were Returned to the Tax Claim Unit on or about the first Monday of May, 1982 (Skibo Property), 522 Pa. 230, 560 A.2d 1388 (1989), ...