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 Common Pleas ruled in Ms. Frazier's favor on the merits of the issue or on procedural grounds. In view of this ambiguity, this Court cannot conclude that the matter was "determined" by the Court of Common Pleas.
Further militating against the invocation of the issue preclusion doctrine in the instant matter are the Pennsylvania decisions recognizing the broad applicability of the immunity shield. These decisions draw their power from the Supreme Court of Pennsylvania's pronouncement regarding governmental immunity in In Re Upset Sale of Properties (Skibo), 522 Pa. 230, 560 A.2d 1388 (1989). In that case, the court stated that the "defense of governmental immunity is an absolute defense . . . and is not waivable, nor is it subject to any procedural device that could render a governmental agency liable beyond the exceptions granted by the legislature." Id. at 1389 (citation omitted). Courts interpreting Skibo have recognized that governmental immunity constitutes "'a substantive right designed to protect [a local agency's] very existence' by preventing the agency from being 'engulfed in a tidal wave of liability' and unnecessary, costly and time-consuming litigation." City of Philadelphia v. Glim, 149 Pa. Commw. 491, 613 A.2d 613, 618 (1992)(quoting Skibo, 560 A.2d at 1389).
Accordingly, under Pennsylvania law, a bare order overruling a defendant's preliminary objections in which the immunity defense had been raised does not preclude the defendant from raising the defense again at a later stage. Indeed, the Glim court held that "the defense of governmental immunity was not waived where it had been raised in preliminary objections rather than in a responsive pleading under the heading 'New Matter.'" Id. at 619 (citation omitted). The court concluded that although the trial court had overruled the City's preliminary objections asserting the governmental immunity defense, the same court, through a different trial judge, had the authority to grant City's subsequent motion for judgment on the pleadings on the governmental immunity grounds. Id. ; see Williams v. City of Philadelphia, 131 Pa. Commw. 71, 569 A.2d 419, 421 (1990)("Where a trial judge overrules a preliminary objection without issuing an opinion, a second trial judge of the same court may grant a motion on the pleadings even if the basis of the motion is identical to the preliminary objections."). These cases clearly set forth the rule that the immunity defense is not waivable and may be raised even after a preliminary objection raising the defense has been overruled. As a result, this Court holds that SEPTA is not estopped from asserting the sovereign immunity defense.
B. Sovereign Immunity
SEPTA asserts that it is immune from liability on Ms. Frazier's counts regarding intentional infliction of emotional distress, negligent infliction of emotional distress, fraud and punitive damages pursuant to Pennsylvania's immunity scheme. It is well established that SEPTA is an agency of the Commonwealth and as such is afforded all of the sovereign immunity protections enumerated in sections 8521 through 8526. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270, 1276 (1986); Williamson v. SEPTA, 154 Pa. Commw. 448, 624 A.2d 218, 222 (1993); Evans v. SEPTA, 149 Pa. Commw. 376, 613 A.2d 137, 138 (1992); Martz v. SEPTA, 143 Pa. Commw. 25, 598 A.2d 580 (1991); Chambers v. SEPTA, 128 Pa. Commw. 368, 563 A.2d 603 (1989).
Thus, pursuant to the immunity scheme, "the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity." 1 Pa. Cons. Stat. Ann. § 2310 (West 1982 & Supp. 1994). The Pennsylvania General Assembly has elected to waive sovereign immunity only in a limited number of cases. Accordingly, Pennsylvania's immunity statute provides that "except as otherwise provided in this subchapter, no provision of this title shall constitute a waiver of sovereign immunity." Pa. Cons. Stat. Ann. § 8521(a) (West 1992). The immunity statute does, however, provide for exceptions to the general rule of immunity. Accordingly, a Commonwealth party will not be immune if two conditions are met and the alleged harm arises from one of the acts set forth in the section. The conditions are: (1) the cause of action arose out of acts which would, under normal circumstances, expose the actor to liability pursuant to either statutory or common law; and (2) the damages arise "out of a negligent act." § 8522(a). Thus, a Commonwealth party cannot be held liable for damages arising out of intentional torts. See Faust v. Commonwealth, Dep't of Revenue, 140 Pa. Commw. 389, 592 A.2d 835, 839 (1991)(holding Commonwealth defendants immune from claims arising from intentional torts), appeal denied, 530 Pa. 647, 607 A.2d 257 (1992). In addition to these conditions, the injury must arise out of one of nine enumerated acts before liability may be imposed upon a Commonwealth party. These include: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. § 8522(b)(1)-(9) (West 1982 & Supp. 1994).
Ms. Frazier's claims of intentional infliction of emotional distress and fraud are both intentional torts. Since a plaintiff cannot recover against a Commonwealth party for claims based upon intentional torts, no liability can attach to these causes of action. In addition, her claim of negligent infliction of emotional distress also must fail because the facts giving rise to this claim, video and regular surveillance, are not among the nine exceptions to the government immunity defense.
With respect to Ms. Frazier's punitive damages claim, it has traditionally been held that government agencies are exempt from the imposition of punitive damages. See Feingold, 517 A.2d at 1276-77 & n.8 ("The only damages which are permitted against the Commonwealth, either by order of this Court or by statute, are those that are compensatory in nature."). Specifically, the court in Feingold held that SEPTA was immune from the imposition of punitive damages given its status as an agent of the Commonwealth and the absence of any waiver of immunity for punitive damages. Id. Accordingly, it would be inappropriate to assess punitive damages against defendant SEPTA. Additionally, punitive damages are unavailable under Ms. Frazier's section 1983 claim. Bolden v. SEPTA, 953 F.2d 807, 830-31 (3d Cir. 1991)(holding SEPTA immune from punitive damages under § 1983), cert. denied, __U.S.__, 112 S. Ct. 2581, 119 L. Ed. 2d 206 (1992). As a result, Ms. Frazier's claim for punitive damages must also be dismissed.
C. Section 1983 Claim
SEPTA argues that Ms. Frazier should be required to file a more definite statement of her section 1983 claim. Specifically, SEPTA contends that the complaint should have contained the dates, places, and names of persons involved in the alleged surveillance. Section 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C.A. § 1983 (West 1994). Thus, to properly state a section 1983 claim, a plaintiff must allege a deprivation of a right guaranteed by the Constitution or the laws of the United States by a defendant acting under color of law. Tunstall v. Office of Judicial Support, 820 F.2d 631, 633 (3d Cir. 1987) (citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978)). Further, there is no requirement that the facts supporting a section 1983 claim be pleaded with a heightened degree of particularity. A section 1983 claim is sufficiently set forth as long as the facts supporting the claim are pleaded in accordance with the Federal Rules of Civil Procedure. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, __U.S.__, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993). Accordingly, SEPTA's request for a more definitive statement must be denied if the complaint sets forth "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. (citations and internal quotations omitted).
A motion for a more definitive statement will be granted only "if a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Fed. R. Civ. P. 12(e); Arthur A. Aranson, Inc. v. Ing-Rich Metal Products Co., 12 F.R.D. 528, 530 (W.D. Pa. 1952). Thus, a motion for a more definitive statement is generally disfavored, and is used to provide a remedy for an unintelligible pleading rather than as a correction for a lack of detail. Resolution Trust Corp. v. Gershman, 829 F. Supp. 1095, 1103 (E.D. Mo. 1993)(citations omitted). Turning to Ms. Frazier's complaint, this Court concludes that the pleading meets the liberal standard set forth in the Federal Rules of Civil Procedure. The complaint provides, in pertinent part, as follows:
56. At all relevant times SEPTA established and maintained, with deliberate indifference to the consequences, a policy, practice or custom of engaging in intentionally unsettling and intrusive surveillance of injury claimants and more specifically of Plaintiff in order to discourage claims and to punish those who bring claims.