J-S53003-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DONTIE L. BROOKS                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

THOMAS GOUKER, ANNE KLITSCH,
BRIAN HUDSON & PENNSYLVANIA
HOUSING FINANCE AGENCY

                            Appellee                No. 35 MDA 2016


               Appeal from the Order Entered December 10, 2015
                In the Court of Common Pleas of Dauphin County
                    Civil Division at No(s): 2015 CV 05365 DJ


BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 28, 2016

       Dontie L. Brooks appeals from the December 10, 2015 order

sustaining preliminary objections based upon sovereign immunity and

dismissing Appellant’s negligence action against the Pennsylvania Housing

Finance Agency (“PHFA”), its executive director, and employees.      For the

reasons that follow, we conclude that appellate jurisdiction properly lies in

Commonwealth Court, and thus, we transfer the within appeal to our sister

court for disposition.1

____________________________________________


1
  We raised the issue of jurisdiction sua sponte in our March 1, 2016 order
ruling Appellant to show cause as to why this appeal should not be
transferred to the Commonwealth Court. Appellant filed a timely response,
(Footnote Continued Next Page)


* Former Justice specially assigned to the Superior Court.
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        Appellant commenced this action alleging that PHFA and its employees

were negligent in the servicing of his mortgage loan.                      The trial court

dismissed the complaint based on sovereign immunity, and Appellant

challenges that ruling herein.2

        Generally,     the   Commonwealth          and   its   agencies,     officials   and

employees acting within the scope of their duties are immune from suits for

damages.      See 1 Pa.C.S. § 2310 (establishing immunity for officials and

employees of the Commonwealth under Article I, Section 11 of the

Pennsylvania Constitution).3 Statutory exceptions to sovereign immunity are

delineated in 42 Pa.C.S. § 8522.                 Tort actions against Commonwealth


                       _______________________
(Footnote Continued)

the rule was discharged, and the matter was referred to the merits panel for
disposition. The PHFA submits that its objection to jurisdiction is not waived
pursuant to Pa.R.A.P. 741 as this Court raised the issue before the PHFA was
required to object and the rule to show cause did not permit a response. On
these facts, we find no waiver.
2
 Pennsylvania’s Sovereign Immunity Act is codified at 42 Pa.C.S. § 8501-
8528. Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S. §§
8501, 8541-8546.
3
    1 Pa. C.S. § 2310 provides, in pertinent part:

        Pursuant to section 11 of Article I of the Constitution of
        Pennsylvania, it is hereby declared to be the intent of the
        General Assembly that the Commonwealth, and its officials and
        employees acting within the scope of their duties, shall continue
        to enjoy sovereign immunity and official immunity and remain
        immune from suit except as the General Assembly shall
        specifically waive the immunity.



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agencies based on those exceptions are properly commenced in the courts of

common pleas but appellate jurisdiction lies in the Commonwealth Court.

        Preliminarily,   we   must     determine      whether    we   should   exercise

jurisdiction over the instant appeal. Although appellate jurisdiction over tort

actions involving a Commonwealth defendant resides in the Commonwealth

Court, Appellant relies upon Braderman v. Pennsylvania Housing

Finance Agency, 598 F.Supp. 834 (M.D. Pa. 1984), in support of his

contention that the PHFA is not a Commonwealth agency, and thus, this

appeal should not be transferred.              Therein, the plaintiff filed a complaint

against the PHFA in the Federal District Court for the Middle District of

Pennsylvania, claiming inter alia that the Agency wrongfully discharged her

in violation of her First Amendment right of freedom of association.               The

Agency moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6),

claiming that it was part of the Commonwealth and that the Eleventh

Amendment divested the district court of its jurisdiction to adjudicate

plaintiff's claim. 4 The district court concluded that the PHFA was not part of

____________________________________________



4
    The Eleventh Amendment to the United States Constitution provides:

        The Judicial power of the United States shall not be construed to
        extend to any suit in law or equity, commenced or prosecuted
        against one of the United States by Citizens of another State, or
        by Citizens or Subjects of any Foreign State.

(Footnote Continued Next Page)


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the Commonwealth and not entitled to Eleventh Amendment immunity.

Appellant suggests that since the PHFA is not a part of the Commonwealth,

appellate jurisdiction in this Court is proper.

      The PHFA maintains that Appellant fails to understand that Eleventh

Amendment immunity under federal law is not the same as sovereign

immunity under state law. Furthermore, Braderman was decided prior to

the enactment of 35 P.S. § 7504(b), Act of May 16, 1986, P.L. 203, No. 62,

in which the General Assembly of this Commonwealth stated that the

Pennsylvania Housing Finance Agency is a Commonwealth agency “for all

purposes, including, but not limited to, the assertion of sovereign immunity

as provided by 1 Pa.C.S. § 2310 and, except as provided by subsection (a),

the limited waiver of sovereign immunity as provided by 42 Pa.C.S. Ch. 85.”

Finally, the PHFA maintains that Braderman is not applicable because it

held only that the PHFA was not entitled to immunity from suit in federal

court under the Eleventh Amendment, not state court under state law.

Appellant counters that 35 P.S. § 7504 is a health and safety law that

authorizes the PHFA to establish a low-interest loan program to assist

persons whose residences have been impacted by dangerous radon levels to

finance home improvements, and thus, it is inapplicable herein.


                       _______________________
(Footnote Continued)

USCS Const. Amend. 11.



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      The PHFA urges us to read 35 P.S. § 7504 in conjunction with 42

Pa.C.S. § 762(a)(1)(i) and (7), which provide:

      (a) General rule. — Except as provided in subsection (b), the
      Commonwealth Court shall have exclusive jurisdiction of appeals
      from final orders of the courts of common pleas in the following
      cases:

      (1)     Commonwealth     civil   cases.   —   All   civil   actions   or
              proceedings:

            (i)      Original jurisdiction of which is vested in
                     another tribunal by virtue of any of the
                     exceptions to section 761(a)(1) (relating to
                     original jurisdiction), except actions or
                     proceedings in the nature of applications for
                     a writ of habeas corpus or post-conviction
                     relief not ancillary to proceedings within the
                     appellate jurisdiction of the court.

            ....

      (7) Immunity waiver matters. — Matters conducted pursuant to
      Subchapter C of Chapter 85 (relating to actions against local
      parties).

42 Pa.C.S. §762(a)(1)(i).   In Flaxman v. Burnett, 574 A.2d 1061, 1064

n.4 (Pa.Super. 1990), this Court relied upon these statutes as the basis for

vesting exclusive appellate jurisdiction of tort claims against Commonwealth

or local agencies in the Commonwealth Court.          Herein, although we sua

sponte raised the jurisdictional issue, the PHFA advocates in favor of transfer

based on the PHFA’s status as a Commonwealth agency.

      In Trumbull Corp. v. Boss Construction Inc., 747 A.2d 395, 399

(Pa.Super. 2000) (internal citations omitted), we held that when deciding



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whether to retain an appeal or transfer it to Commonwealth Court, we must

weigh judicial economy against the following factors: "(1) whether the case

has already been transferred; (2) whether our retention will disrupt the

legislatively ordained division of labor between the intermediate appellate

courts; and (3) whether there is a possibility of establishing two conflicting

lines of authority on a particular subject."

       After consideration of these as well as other factors, we conclude that

it is appropriate to transfer this matter to the Commonwealth Court.      Our

retention of this appeal would upset the legislature's decision to vest

exclusive appellate jurisdiction in the Commonwealth Court over matters

involving agencies and sovereign immunity, areas in which our sister Court

has particular expertise.        See 42 Pa.C.S. § 762(a)(1); see also Knox v.

SEPTA, 81 A.3d 1016 (Pa.Cmwlth. 2013) (holding SEPTA, a Commonwealth

agency, was entitled to sovereign immunity under Pennsylvania law although

it was not immune under the Eleventh Amendment). Therefore, we transfer

the instant appeal to the Commonwealth Court for disposition pursuant to

Pa.R.A.P. 752.5

____________________________________________


5
  Pa.R.A.P. 752. “Transfers Between Superior and Commonwealth Courts,”
provides in pertinent part:

       (a) General rule. The Superior Court and the Commonwealth
       Court, on their own motion or on application of any party, may
       transfer any appeal to the other court for consideration and
(Footnote Continued Next Page)


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      Appeal transferred to Commonwealth Court. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2016




                       _______________________
(Footnote Continued)

      decision with any matter pending in such other court involving
      the same or related questions of fact, law or discretion.



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