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December 1, 1994

EDNA FRAZIER, Plaintiff,

The opinion of the court was delivered by: J. CURTIS JOYNER

 Joyner, J.

 This civil matter has been brought before the Court by motion of the defendant, Southeastern Pennsylvania Transportation Authority (SEPTA). SEPTA is seeking an order dismissing Counts I-IV of the plaintiff's complaint, or in the alternative, an order awarding it summary judgment as to Counts I-IV of the complaint. Further, SEPTA has moved for a more definitive statement under Fed. R. Civ. P. 12(e) as to Count V of the plaintiff's complaint. For the reasons that follow, SEPTA's motion is granted in part and denied in part.


 On April 17, 1985, the plaintiff, Edna Frazier, was a passenger on a SEPTA bus that stopped suddenly in the middle of a city block. Ms. Frazier subsequently initiated a personal injury claim against SEPTA seeking damages for injuries allegedly sustained as a result of the incident. During the course of this litigation, according to the complaint, SEPTA utilized video and other surveillance equipment to monitor Ms. Frazier's actions. Ms. Frazier alleges that she suffered emotional distress as a result of defendant SEPTA's conduct. Accordingly, she filed a second complaint in the Court of Common Pleas raising causes of action in intentional and negligent infliction of emotional distress and fraud and deceit, as well as a count seeking punitive damages.

 SEPTA thereafter filed a preliminary objection seeking to dismiss Ms. Frazier's action on the theory that SEPTA, as an agency of the Commonwealth of Pennsylvania, was entitled to an immunity from suit under 42 Pa. Cons. Stat. Ann. §§ 8521-8522 (West 1982 & Supp. 1994). Ms. Frazier responded by asserting that under Pennsylvania pleading practice the defense of sovereign immunity can only be raised by answer and new matter and not by preliminary objection. In the alternative, Ms. Frazier argued that SEPTA was not entitled to immunity from suit. On July 13, 1994, the Court of Common Pleas issued an order granting Ms. Frazier's preliminary objections and overruling SEPTA's preliminary objections. *fn1"

 On July 25, 1994, Ms. Frazier filed an amended complaint seeking recovery from SEPTA for the alleged violations of her federal civil rights under 42 U.S.C. § 1983. SEPTA then removed the entire action to this Court premised on the original federal question jurisdiction over Ms. Frazier's civil rights claim and this court's supplemental and removal jurisdiction over the common law claims. Ms. Frazier contends that SEPTA maintains a policy, practice and custom of engaging in "intentionally unsettling and intrusive surveillance" of injured claimants in order to discourage claims and punish those who bring claims against SEPTA. Ms. Frazier further alleges that SEPTA continued this surveillance even after SEPTA knew of Ms. Frazier's fragile mental state and persisted in an effort to render Ms. Frazier incompetent to testify at her own trial. In so doing, SEPTA violated a number of rights guaranteed to Ms. Frazier by the constitution and federal law.

 SEPTA now brings this motion and asks this Court to dismiss Ms. Frazier's common law claims on the grounds that SEPTA is immune from suit under the Pennsylvania's sovereign immunity statute. Accordingly, SEPTA argues that Ms. Frazier's amended complaint fails to state a claim upon which relief can be granted. Additionally, SEPTA submits that Ms. Frazier should be required to file a more definite statement of her section 1983 claim. Because we conclude that SEPTA is not barred from raising the immunity defense, and that the immunity statute entitles SEPTA to an immunity from suit, we will dismiss the four counts law claims pleaded in Ms. Frazier's complaint. But since we also conclude that Ms. Frazier's civil rights claim has been pleaded in accordance with the Federal Rules of Civil Procedure, we will deny SEPTA's motion for a more definitive statement.


 A. Standards Applicable to a Rule 12(b)(6) Motion

 In considering a motion to dismiss pursuant to Rule 12 (b)(6), the complaint's allegations must be construed favorably to the pleader. The court must accept as true all of the plaintiff's factual allegations and draw from them all reasonable inferences. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991)(citations omitted). Thus, a court will grant a Rule 12(b)(6) motion only if there are no set of facts under which the non-moving party can prevail. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Further, a complaint may be dismissed pursuant to Rule 12(b)(6) where the defendant contends that under the facts alleged he is entitled to immunity, even though immunity is generally characterized as an affirmative defense. Jordan v. Fox, Rothschild, O'Brien & Frankel, 787 F. Supp. 471, 480 (E.D. Pa. 1992), vacated on other grounds, 20 F.3d 1250 (3d Cir. 1994). With these principles in mind, the Court turns to the substance of SEPTA's motion.

 B. Issue Preclusion

 Ms. Frazier argues that principles of issue preclusion bar SEPTA from raising the defense of sovereign immunity, since the Court of Common Pleas decided the issue when it overruled SEPTA's preliminary objections. Issue preclusion, or collateral estoppel, is a court-created rule that is intended to weed out issues previously litigated. Thus, issue preclusion serves to foreclose the "relitigation of all matters that were actually and necessarily determined in a prior suit." Purter v. Heckler, 771 F.2d 682, 689 n.5 (3d Cir. 1985) (citation omitted). In order for issue preclusion to apply, therefore, the issue raised in the prior proceeding must have been decided on the merits. Nelson v. Howard, 810 F. Supp. 161, 163 (E.D. Pa. 1992)("It is fundamental that in order for a claim to be barred by collateral estoppel there must have been a prior final judgment on the merits of the claim."). Accordingly, under Pennsylvania law, issue preclusion will bar the relitigation of an issue as long as (1) the issue was actually litigated; (2) the issue was determined by a valid and final judgment; and (3) the determination was essential to the judgment. O'Leary v. Liberty Mut. Ins. Co., 923 F.2d 1062, 1065-66 (3d Cir. 1991)(citing Restatement (Second) of Judgments § 27 (1982); Clark v. Troutman, 509 Pa. 336, 340, 502 A.2d 137, 139 (1985)).

 Applying these principles to the matter at hand, it is apparent that Ms. Frazier cannot prevent SEPTA from raising the defense of immunity by relying on the issue preclusion doctrine. At the outset, issue preclusion cannot apply because the matter was never "actually litigated" or determined in the prior proceeding. In order for an issue to be actually litigated for purposes of the doctrine, the issue must be raised, submitted for determination, and determined. Id. at 1066. While the issue of immunity was raised and briefed by SEPTA in the prior proceeding, and briefed as an alternative theory by Ms. Frazier, the order of the Court of Common Pleas contained neither a statement of the reasons for the decision nor a supplement providing an opinion explaining the rationale. Thus, it is unclear whether the Court of ...

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