J-A27010-17

NON-PRECEDENTIAL DECISION-SEE SUPERIOR COURT I.O.P. 65.37



    KURT D. MITCHELL,                              IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellant

                        v.

    FRANCIS J. FORNELLI,

                             Appellee                 No. 1842 WDA 2016


               Appeal from the Order Entered November 10, 2016
                In the Court of Common Pleas of Mercer County
                       Civil Division at No(s): 2016-1647


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED MARCH 5, 2018

        Appellant, Kurt D. Mitchell, appeals from the trial court’s November 10,

2016 order, sustaining Appellee’s, The Honorable Francis J. Fornelli (“Judge

Fornelli”),1 preliminary objections and dismissing Appellant’s complaint with

prejudice.     We vacate the trial court’s order, and remand for further

proceedings.

        The trial court summarized the factual and procedural background of

this case as follows:


____________________________________________


1By way of background, according to Appellant’s complaint, Judge Fornelli “is
a former judge with the Mercer County Court of Common Pleas.” Compl. ¶ 2.
However, both Judge Fornelli and the trial court state that he is a senior judge,
not a former judge. See Trial Court Opinion (TCO), 2/27/17, at 5, 7, 10;
Judge Fornelli’s Preliminary Objections to the Complaint, ¶ 2.
J-A27010-17


        Appellant … has filed an [a]ppeal from this [c]ourt’s grant of a
        [d]emurrer in favor of [Judge Fornelli], thus denying Appellant’s
        [p]reliminary [o]bjections to [p]reliminary [o]bjections and
        dismissing Appellant’s civil case. Appellant’s lawsuit was in the
        nature of slander arising from alleged comments made by Judge
        Fornelli, regarding Appellant’s representation of one, Clifford
        Null.[2]

        [Appellant] is an attorney practicing in Pennsylvania and other
        jurisdictions, who alleged [Judge Fornelli] slandered him prior to
        a proceeding in the nature of a mediation[, which related to the
        fines imposed in Clifford Null’s criminal case.] Judge Fornelli was
        to preside over the mediation pursuant to an assignment to hear
        a backlog of Jefferson County cases. The assignment was ordered
        by the Honorable John H. Foradora, President Judge of the Court
        of Common Pleas of Jefferson County[,] Pennsylvania.
        [Pennsylvania Supreme Court Chief] Justice [Thomas G.] Saylor
        approved the [o]rder. The alleged slanderous remarks took
        place[] when it was discovered that [Appellant] had not
        accompanied his client to the mediation.

        [Appellant], having heard that Judge Fornelli had made
        derogatory comments to his client Clifford Null, filed his
        [c]omplaint in May of 2016. Judge Fornelli filed [p]reliminary
        [o]bjections in the nature of a demurrer, raising the defense of
        immunity from suit. Appellant raised [p]reliminary [o]bjections to
____________________________________________


2   The trial court further elaborated:

        Appellant had been representing Clifford Null in a criminal
        summary offense, which was appealed to the Superior Court at
        [Commonwealth v. Null, 2054 WDA 2014, unpublished
        memorandum (Pa. Super. filed Dec. 30, 2015)]. Null had been
        fined an aggregate of $267,258.00, for offenses under the
        Pennsylvania Construction Code Act, of which Null was found
        guilty after a hearing was conducted in the Court of Common Pleas
        of Jefferson County, Pennsylvania. After an appeal, the Superior
        Court remanded a single issue to the trial [c]ourt for consideration
        — whether the fines imposed by the Commonwealth were
        excessive, whether additional evidence was necessary, and to
        enter a new [o]rder. The trial [c]ourt decided to have the matter
        conducted through mediation….

TCO at 3-4.

                                           -2-
J-A27010-17


      [p]reliminary [o]bjections, claiming that the immunity defense
      may not be raised by [p]reliminary [o]bjections, that the
      [p]leading was not signed, and that mediation is not a judicial act
      entitling Judge Fornelli to immunity.

TCO at 2-3.

      As mentioned supra, the trial court sustained             Judge Fornelli’s

preliminary objections and dismissed Appellant’s complaint with prejudice. In

doing so, the trial court specifically explained, “Judge Fornelli[] is entitled to

judicial immunity for [Appellant’s] claim, which arose from alleged statements

made to [Appellant’s] client, Clifford Null, while performing his judicial duties,

while assigned to hear the Clifford Null proceeding.”       Trial Court Opinion,

11/16/16, at 6. Appellant subsequently filed a timely notice of appeal and a

timely,   court-ordered   Pa.R.A.P.   1925(b)    concise   statement   of   errors

complained of on appeal. Presently, Appellant raises the following issues for

our review:
          1. Did the trial court err by allowing [Judge] Fornelli to present
             his immunity defense through preliminary objection[s]?

          2. Did the trial court err by failing to apply the proper standard
             when ruling on [Judge] Fornelli’s preliminary objection[s]?

          3. Did the trial court err by failing to analyze whether the
             common pleas court has authority to order a summary
             criminal case to mediation?

          4. Did the court err by wrongly assuming [Appellant] was
             counsel of record for Clifford Null at the time of the illegal
             mediation?

Appellant’s Brief at 6.

      Initially, we acknowledge that,
      [o]ur standard of review of an order of the trial court overruling
      or granting preliminary objections is to determine whether the

                                       -3-
J-A27010-17


      trial court committed an error of law. When considering the
      appropriateness of a ruling on preliminary objections, the
      appellate court must apply the same standard as the trial court.

      Preliminary objections in the nature of a demurrer test the legal
      sufficiency of the complaint.       When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.       Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases in
      which it is clear and free from doubt that the pleader will be unable
      to prove facts legally sufficient to establish the right to relief. If
      any doubt exists as to whether a demurrer should be sustained, it
      should be resolved in favor of overruling the preliminary
      objections.

Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012) (citations and

original brackets omitted).

      In his first issue, Appellant contends that the trial court erred by allowing

Judge Fornelli to raise his immunity defense through preliminary objections.

Appellant’s Brief at 10 (unnecessary capitalization and emphasis omitted). In

support, Appellant points to Pa.R.C.P. 1030, which provides the following:
      (a) Except as provided by subdivision (b), all affirmative
      defenses including but not limited to the defenses of accord
      and satisfaction, arbitration and award, consent, discharge in
      bankruptcy, duress, estoppel, failure of consideration, fair
      comment, fraud, illegality, immunity from suit, impossibility of
      performance, justification, laches, license, payment, privilege,
      release, res judicata, statute of frauds, statute of limitations, truth
      and waiver shall be pleaded in a responsive pleading under
      the heading “New Matter”. A party may set forth as new
      matter any other material facts which are not merely denials of
      the averments of the preceding pleading.




                                       -4-
J-A27010-17



Pa.R.C.P. 1030(a) (emphasis added; internal notes omitted).3

       Appellant contends that Rule 1030 requires that litigants raise immunity

defenses in new matter and not through preliminary objections.              See

Appellant’s Brief at 8. He further argues that “[w]hile it is true that some

courts have recognized a limited exception to raise the defense through

____________________________________________


3 In comparison, Pa.R.C.P. 1028 — pertaining to preliminary objections —
provides the following:
       (a) Preliminary objections may be filed by any party to any
       pleading and are limited to the following grounds:

          (1) lack of jurisdiction over the subject matter of the action
          or the person of the defendant, improper venue or improper
          form or service of a writ of summons or a complaint;

          (2) failure of a pleading to conform to law or rule of court or
          inclusion of scandalous or impertinent matter;

          (3) insufficient specificity in a pleading;

          (4) legal insufficiency of a pleading (demurrer);

          (5) lack of capacity to sue, nonjoinder of a necessary party
          or misjoinder of a cause of action;

          (6) pendency of a prior action or agreement for alternative
          dispute resolution;

          (7) failure to exercise or exhaust a statutory remedy; and

          (8) full, complete and adequate non-statutory remedy at
          law.

       (b) All preliminary objections shall be raised at one time. They
       shall state specifically the grounds relied upon and may be
       inconsistent. Two or more preliminary objections may be raised
       in one pleading.

Pa.R.C.P. 1028(a), (b) (internal notes omitted).


                                           -5-
J-A27010-17



preliminary objection[s], this is limited to instances where the defense is clear

on the face of the complaint.” Id. Moreover, he claims that, “other courts

have refused to recognize the exception at all, or refused to recognize it where

an objection is made.” Id. Thus, he urges us to determine that raising the

defense of immunity from suit through preliminary objections is inappropriate

and, as a result, requests that we vacate the trial court’s order sustaining

Judge Fornelli’s preliminary objections on the basis of judicial immunity. See

id.

        Relying on the limited exception referenced by Appellant supra, the trial

court resolved that “it was proper procedure to file a demurrer where the

complaint fails to state a claim for which relief may be granted on its face by

virtue of the judicial immunity defense.” TCO at 3 (unnecessary capitalization

and emphasis omitted). In particular, the trial court explained,
        it has long been the rule that immunity from suit can be raised by
        preliminary objections when the defense is apparent from the face
        of the complaint. See Feldman v. Hoffman, 107 A.3d 821[,
        829] ([Pa. Cmwlth]. 2014), “Pennsylvania Courts have long
        recognized a limited exception to … Rule [1030] and have allowed
        parties to plead the affirmative defense of immunity as a
        preliminary objection where the defense is clearly applicable on
        the face of the complaint.”

        Appellant contends that [Judge Fornelli] followed improper
        procedure. However, the [c]ourt, at every stage of any action,
        may disregard any defect or error which does not affect the
        substantial rights of the parties. See[] Pa.R.C.P. 126.[4] Here,


____________________________________________


4   Rule 126 states:



                                           -6-
J-A27010-17


       Appellant fails to demonstrate how the timing of the immunity
       defense affects the ultimate conclusion that [Judge Fornelli] is
       immune from suit.       Appellant fails to suggest that further
       pleadings will add new relevant facts beyond the face of his
       pleading that will change the outcome.

TCO at 4.

       Similarly, Judge Fornelli claims:
       While it is true that immunity from suit is an affirmative defense[,]
       which pursuant to [Rule] 1030 must be properly raised under new
       matter, courts have been moving away from this strict
       interpretation and it is now currently accepted that immunity is a
       defense that may be raised by preliminary objection “when to
       delay a ruling thereon would serve no purpose.” Faust v. Com.,
       Dept. of Revenue, 592 A.2d 835, 838 n.3 (Pa. Cmwlth. 1991).
       See also[] Wurth by Wurth v. City of Philadelphia, 584 A.2d
       403 (Pa. Cmwlth. 1990).

Judge Fornelli’s Brief at 21.

       Significantly, both the trial court and Judge Fornelli cite cases from only

our sister appellate court in support of this limited exception to Rule 1030.

Yet, it is well established that Commonwealth Court decisions are not binding

on this Court. See Pollina v. Dishong, 98 A.3d 613, 621 n.8 (Pa. Super.

2014) (observing that decisions of the Commonwealth Court are not binding

on this Court, but may serve as persuasive authority) (citation omitted).

____________________________________________


       The rules shall be liberally construed to secure the just, speedy
       and inexpensive determination of every action or proceeding to
       which they are applicable. The court at every stage of any such
       action or proceeding may disregard any error or defect of
       procedure which does not affect the substantial rights of the
       parties.

Pa.R.C.P. 126.




                                           -7-
J-A27010-17



       Neither Judge Fornelli nor the trial court cite to a case from this Court

that explicitly allows a party to raise the affirmative defense of judicial

immunity in preliminary objections merely because such a defense is clear

from the face of the complaint.5 In fact, our own cursory research has not

yielded any such authority either. It has revealed, however, the inconsistency

and uncertainty surrounding when parties may raise an affirmative defense in

preliminary objections.6
____________________________________________


5 In Feldman — which is the case relied on by the trial court — the dissent
discerns that the Superior Court, unlike the Commonwealth Court, has upheld
that our Rules of Civil Procedure mandate that immunity be raised in an
Answer under New Matter, instead of as a preliminary objection. See
Feldman, 107 A.3d at 839 n.2 (“[T]he majority states that the dissent ignores
‘the reality that its hardline position has been outright rejected by countless
courts.’ ‘Countless courts’ have not followed Pa.R.C.P. 1030, just our court,
and not in ‘countless’ decisions, but just ‘some’ decisions which are
inconsistent with other decisions.”) (Pellegrini, J., dissenting).

6 Before delving into our discussion of the pertinent authorities, we underscore
that Judge Fornelli states that his preliminary objections and the trial court’s
disposition center on judicial immunity, not judicial privilege. In particular, he
states:
       It is important to note at this point that [Appellant’s] brief does
       not address judicial immunity but relies solely on judicial privilege
       case law. Although there are instances where the two doctrines
       overlap, it is critical to point out that the two kinds of immunity
       are not interchangeable. [J]udicial immunity broadly protects
       judicial officers in a variety of situations while judicial privilege
       provides immunity for communications made in the course of
       judicial proceedings that are material to the relief requested. This
       privilege applies not only to judges but also to parties, witnesses,
       and attorneys. Schanne v. Addis, 121 A.3d 942 (Pa. 2015).
       [Appellant] mistakenly argues in his brief that there is no judicial
       immunity based on case[s] dealing with judicial privilege.
       Although Judge Fornelli is also immune in this particular instance



                                           -8-
J-A27010-17



       Initially, we acknowledge that in Greenberg v. Aetna Insurance Co.,

235 A.2d 576 (Pa. 1967), our Supreme Court permitted the defendant insurers

to raise the affirmative defense of absolute privilege in preliminary objections

where the plaintiff’s complaint clearly showed that the plaintiff had no right to

relief. See id. at 579. In that case, the plaintiff filed libel suits against the

insurers, alleging that, in an answer filed in a prior lawsuit, they had falsely

and maliciously charged him with committing, inter alia, arson. Id. at 577.

The insurers filed preliminary objections in the nature of a demurrer to the

plaintiff’s complaint, contending that they had an absolute privilege to plead

incendiarism by the plaintiff as a defense in a suit by the plaintiff to recover

on his fire insurance policies. Id. The plaintiff subsequently filed preliminary

objections to the insurers’ preliminary objections, averring that “the defense

of absolute (or limited) privilege cannot be raised by preliminary objections

but must … be raised in [an] answer under ‘new matter.’” Id. On appeal, our

Supreme Court rejected the plaintiff’s argument, explaining,

       where [the] plaintiff’s complaint or pleading shows on its face that
       his claim cannot be sustained, preliminary objections are an
       appropriate remedy. The second and more important reason is
       that this Court has repeatedly and wisely sustained preliminary
       objections where [the] plaintiff’s complaint or pleading shows on
____________________________________________


       based on the judicial privilege doctrine, his preliminary objections
       and the trial court’s decision are clearly focused on the judge’s
       judicial immunity.
Judge Fornelli’s Brief at 19-20. In light of this statement, we will assume for
our purposes that judicial privilege and judicial immunity are distinguishable
on this basis, and only judicial immunity is at issue in this appeal.


                                           -9-
J-A27010-17


      its face that his claim is devoid of merit. This is wise, because if
      the law or the rule were otherwise, it would mean long and
      unnecessary delays in the law — delays which [c]ourts are
      strenuously trying to eliminate or reduce — and it could not aid
      [the] plaintiff at the trial or affect the result[.]

Id. at 579 (internal citations omitted).

      Despite this reasoning, in its subsequent decision in Freach v.

Commonwealth, 370 A.2d 1163 (Pa. 1977), our Supreme Court took a

contrary position. In that case, the parents and personal representatives of

two murdered teenagers brought survival and wrongful death actions against

various defendants, alleging, inter alia, that each of the defendants should

have known of the murderer’s mental instability and criminal tendencies, and

were responsible for the murderer’s having the opportunity to kill the

teenagers. Id. at 1165-66. In preliminary objections, the various defendants

claimed to enjoy, respectively, either sovereign immunity, absolute immunity

as high public officials, or conditional immunity from suit. Id. at 1166. In

response, our High Court noted,
      immunity from suit is an affirmative defense which should
      be pleaded under the heading ‘New Matter’ in a responsive
      pleading; it is not properly raised by preliminary
      objections. Since, however, the plaintiffs-appellants did not
      object at any point in the proceedings before the Commonwealth
      Court to the manner in which the issue of immunity was raised
      and the Commonwealth Court decided the immunity questions on
      their merits, we will do likewise. By so doing we do not
      condone the disregard of the Pennsylvania Rules of Civil
      Procedure by [the] appellees.




                                     - 10 -
J-A27010-17



Freach, 370 A.2d at 1166 n.6 (emphasis added; citation omitted).7

       Later, this Court attempted to reconcile the Greenberg and Freach

opinions. See Barber v. Lynch, 418 A.2d 749 (Pa. Super. 1980). In Barber,

the plaintiffs alleged that the defendants — who were the Controller and

Deputy Controller of Allegheny County — made defamatory statements about

them, which were then reported in two newspaper articles. Id. at 749. The

defendants filed preliminary objections, alleging, among other things, that

they were protected by absolute immunity from tort liability due to their

positions as high public officials. Id. at 749-50.8 In turn, the plaintiffs filed

preliminary objections stating that the defendants could not raise the defenses

of immunity and privilege by preliminary objections. Id. at 750. On appeal

to this Court, we determined that “the issue of official immunity was

improperly raised in preliminary objections in the nature of a demurrer, rather

than in new matter.”        Id.   In reaching this conclusion, we explained that

“[w]hile we find the reasoning of the Supreme Court in Greenberg to be

interesting, we cannot ignore the fact that its pronouncement in the Fre[a]ch
____________________________________________


7 See also Heifetz v. Philadelphia State Hospital, 393 A.2d 1160, 1162
n.5 (Pa. 1978) (“Again we must remind counsel and the courts that immunity
from suit is an affirmative defense which should be raised under the heading
of ‘New Matter’ in a responsive pleading and should not be raised by
preliminary objections.”) (citations omitted).

8 Specifically, in their preliminary objections, the defendants “maintained that
because of their public offices, they enjoyed an immunity from tort liability in
suits such as those initiated by [the plaintiffs]. [The defendants] concurrently
claimed what must be termed a qualified immunity or privilege in connection
with the allegedly defamatory statements [underlying the lawsuit].” Barber,
418 A.2d at 749-50 (footnote omitted).

                                          - 11 -
J-A27010-17



case was made some ten years later and involved the defenses of high official

immunity and qualified privilege or immunity.       In such circumstances we

believe the admonition in Freach controlling of our decision in the instant

appeals.” See id. at 752.

       Finally, in Kyle v. McNamara & Criste, 487 A.2d 814 (Pa. 1985), the

plaintiff sued an attorney and the attorney’s law firm, alleging that the

attorney had breached an agreement not to accept legal employment

inconsistent with the plaintiff’s having disclosed confidential information to

him and his firm. Id. at 815-16. In his preliminary objections, the attorney

claimed he was protected by, inter alia, quasi-judicial immunity. Our Supreme

Court observed that “[i]mmunity from suit … [is an] affirmative defense[]

which must be pleaded under new matter[,]” and it is “not properly raised as

[a] matter[] within the purview of preliminary objections.”         Id. at 816

(citations omitted). Accordingly, the Court allowed the action to proceed. Id.

       A review of the applicable case law indicates that this Court has not

embraced the practice of resolving immunity defenses through preliminary

objections solely because such a defense is obvious from the face of the

complaint.9     Instead, this Court has primarily relied on another limited
____________________________________________


9  But see Pelagatti v. Cohen, 536 A.2d 1337, 1346 (Pa. Super. 1987)
(“[W]hile the affirmative defense of truth is generally to be pled in new matter,
an affirmative defense may be raised by way of preliminary objections where
it is established on the face of the complaint, or where the plaintiff fails to
object to the procedural irregularity.”) (citing Iudicello v. Commonwealth
of Pennsylvania, Dept. of Transportation, 383 A.2d 1294 (Pa. Cmwlth.



                                          - 12 -
J-A27010-17



exception to Rule 1030, allowing litigants to raise immunity defenses in

preliminary objections where no objections to such procedure are lodged.

“Immunity from suit is an affirmative defense which must be pleaded in New

Matter, not in preliminary objections. However, where the defense is raised

by preliminary objections and this procedure is not objected to, the question

of immunity from suit may be decided.” Bloom v. Dubois Regional Medical

Center, 597 A.2d 671, 675 n.4 (Pa. Super. 1991) (citation omitted).10 We

____________________________________________


1978); Cooper v. Dowington School Dist., 357 A.2d 619, 621 (Pa. Super.
1976) (reaching the merits of a statute of limitations issue raised by
preliminary objections in the interest of judicial economy, where no objection
to such procedure was made)); DeSantis v. Swigart, 442 A.2d 770, 772 (Pa.
Super. 1982) (“Absolute privilege in a libel case may be raised by demurrer
where the defendant’s privilege appears on the face of the complaint.”) (citing
Greenberg, supra).        Again, we note that Judge Fornelli claimed his
preliminary objections focused on judicial immunity, not on whether his
communication enjoyed an absolute privilege.

10 See also Pollina, 98 A.3d at 617 n.3 (“We note that, pursuant to Pa.R.C.P.
1030(a), immunity from suit is an affirmative defense which must be pleaded
in a responsive pleading under the heading ‘New Matter.’ When a party
erroneously asserts this substantive defense in preliminary objections, rather
than raising the defense by answer or in new matter, the failure of the
opposing party to object to the defective preliminary objections waives the
procedural defect and allows the trial court to rule on the preliminary
objections.”) (citations omitted); Richmond, 35 A.3d at 782 (“Where a party
erroneously asserts substantive defenses in preliminary objections rather than
to raise these defenses by answer or in new matter, the failure of the opposing
party to file preliminary objections to the defective preliminary objections,
raising the erroneous defenses, waives the procedural defect and allows the
trial court to rule on the preliminary objections.”) (citation omitted); Soto v.
Nabisco, Inc., 32 A.3d 787, 788 n.2 (Pa. Super. 2011) (“If … a party raises
the defense of immunity from suit via preliminary objections and the opposing
party does not object, then the court can decide the issue of immunity from
suit.”); Heinrich v. Conemaugh Valley Memorial Hosp., 648 A.2d 53, 57



                                          - 13 -
J-A27010-17



observe that this “reasoning is consistent with the principle that when a party

does not object to a non-jurisidictional defect, the matter is waived.”

Feldman, 107 A.3d at 838 (Pellegrini, J., dissenting).

       Here,   Appellant     filed   preliminary   objections   to   Judge   Fornelli’s

preliminary objections, in which he objected to Judge Fornelli’s improperly

raising the affirmative defense of immunity from suit in preliminary objections.

Therefore, because Judge Fornelli raised immunity defenses through


____________________________________________


(Pa. Super. 1994) (“In general, preliminary objections are not available to
raise the defense of immunity from suit. Where a party erroneously asserts
substantive defenses in preliminary objections rather than raising same by
answer or in new matter, the failure of the opposing party to file preliminary
objections to defective preliminary objections, raising erroneous defenses,
waives the procedural defect and allows the trial court to rule on the
preliminary objections.”) (citations omitted); Mosley v. Observer Pub. Co.,
619 A.2d 343, 344 n.1 (Pa. Super. 1993) (“Pa.R.Civ.P. 1030 requires that all
affirmative defenses, including the affirmative defense imposed by [the]
appellee to the instant complaint, namely, immunity from suit, be pleaded in
a responsive pleading as ‘New Matter[.]’ [The a]ppellee, however, undertook
to present the defense in preliminary objections in the nature of a demurrer,
despite the quite clear restrictions of Pa.R.Civ.P. 1028 and requirement of
1030. [The a]ppellants failed to object to the form of pleading and have,
therefore, waived the right to raise the procedural defect that would require
appellee to proceed by answer with new matter.”) (citations omitted); Preiser
v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992) (“It is black-letter law
that issues not raised in the trial court are waived and cannot be raised for
the first time on appeal. Where a party erroneously asserts substantive
defenses in preliminary objections rather than to raise these defenses by
answer or in new matter, the failure of the opposing party to file preliminary
objections to the defective preliminary objections, raising the erroneous
defenses, waives the procedural defect and allows the trial court to rule on
the preliminary objections.”) (citations omitted); Barber, 418 A.2d at 751
(“[W]e do not feel free to reach the merits of the immunity issue, which was
raised on preliminary objections by the [a]ppellees.”).



                                          - 14 -
J-A27010-17



preliminary objections and Appellant specifically objected to that procedure,

the trial court could not decide the question of Judge Fornelli’s immunity from

suit on preliminary objections.

       Moreover, we do not agree with the trial court that Rule 126 would apply

in the case sub judice. To reiterate, Rule 126 states that “[t]he court at every

stage of any such action or proceeding may disregard any error or defect of

procedure which does not affect the substantial rights of the parties.” See

Pa.R.C.P. 126. Here, the trial court explained that — even if Judge Fornelli

had followed improper procedure — Rule 126 allows the court to disregard

such procedural missteps. See TCO at 4. It points out that Appellant failed

to demonstrate how the timing of the immunity defense would affect its

conclusion that Judge Fornelli is immune from suit, and claims that Appellant

did not “suggest that further pleadings will add new relevant facts beyond the

face of his pleading that will change the outcome.” Id.11
____________________________________________


11 In contrast, Appellant alleges that “[b]efore any decision on the merits can
be made[,] a complete factual record is necessary to determine the nature of
the ‘criminal mediation’ and the function of [Judge] Fornelli at the illegal
criminal mediation[.]”      Appellant’s Brief at 14.       See also Appellant’s
Preliminary Objections at ¶¶ 17(a), (b) (questioning whether criminal
mediations occur in the regular course of judicial proceedings, and stating that
“there is nothing in the complaint that establishes that [Judge Fornelli] was
acting within the scope of his duties as it is alleged the comment occurred
prior to the mediation commencing”) (footnote omitted); cf. Feldman, 107
A.3d at 835 (“[The plaintiff] failed to articulate before the trial court, and this
[c]ourt, what effect, other than prolonging the matter, requiring [the
defendant] to wait until New Matter to raise his objection would have on the
case. [The plaintiff] identified no additional facts which she would have raised
in response to New Matter had the defense been raised there. She does not



                                          - 15 -
J-A27010-17



       With respect to Rule 126, our Supreme Court has explained:
       It is self-evident that our Rules of Civil Procedure are essential to
       the orderly administration and efficient functioning of the courts.
       Accordingly, we expect that litigants will adhere to procedural
       rules as they are written, and take a dim view of litigants who
       flout them. That said, we have always understood that procedural
       rules are not ends in themselves, and that the rigid application of
       our rules does not always serve the interests of fairness and
       justice. It is for this reason that we adopted Rule 126, which
       provides in pertinent part that “[t]he court at every stage of any
       such action or proceeding may disregard any error or defect of
       procedure which does not affect the substantial rights of the
       parties.”      With this language, we incorporated equitable
       considerations in the form of a doctrine of substantial compliance
       into Rule 126, giving the trial courts the latitude to overlook any
       “procedural defect” that does not prejudice a party’s rights. Thus,
       while we look for full compliance with the terms of our rules, we
       provide a limited exception under Rule 126 to those who commit
       a misstep when attempting to do what any particular rule requires.
       Moreover, we made Rule 126 a rule of universal application, such
       that the trial court may disregard any such procedural defect or
       error at every stage of any action or proceeding to which the civil
       procedural rules apply.

Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006) (internal citations omitted;

emphasis in original).

       Furthermore,
       [t]he equitable doctrine we incorporated into Rule 126 is one of
       substantial compliance, not one of no compliance. We reiterate
       what our case law has taught: Rule 126 is available to a party who
       makes a substantial attempt to conform, and not to a party who
       disregards the terms of a rule in their entirety and determines for
       himself the steps he can take to satisfy the procedure that we
       have adopted to enhance the functioning of the trial courts.

Id. at 278 (emphasis in original).

____________________________________________


suggest the further pleadings will add new facts. She does not allege that she
was deprived of an opportunity to counter the immunity defense….”).

                                          - 16 -
J-A27010-17



       In the case at bar, we view Judge Fornelli’s raising an immunity defense

in preliminary objections to sound more in noncompliance, rather than

substantial compliance, with our Rules of Civil Procedure. See id. To be sure,

Rule   1030    explicitly requires that        affirmative   defenses   —   including,

specifically, immunity from suit — be pleaded in a responsive pleading under

the heading “New Matter.” See Pa.R.C.P. 1030(a). By raising immunity in

his preliminary objections, Judge Fornelli did not substantially comply with

Rule 1030, which renders Rule 126 inapplicable. See Feldman, 107 A.3d at

839 (Pellegrini, J., dissenting). Moreover, as discussed above, recent cases

from this Court indicate that immunity from suit cannot be determined by

preliminary objections where an objection is made to such procedure. See

footnote 10, supra.

       Finally, in response to Judge Fornelli’s argument that delaying a ruling

on Appellant’s immunity defense would serve no purpose,12 we share one final

point regarding Rule 1030:
       Just because it would be easier to decide it and “end the matter”
       when the immunity issue is “obvious on the face of the pleading,”
       then we are, in essence, converting an affirmative defense that
       must be pled under [Rule] 1030 into a preliminary objection under
       [Rule] 1028, something we cannot do. When the Supreme Court
       promulgated [Rule] 1030 and made immunity an affirmative
       defense, it made the determination that a court would be better
       served in deciding that after there is a better delineation of the
       facts that results when an Answer and New Matter is filed. The
____________________________________________


12 See Judge Fornelli’s Brief at 21 (“[I]t is now currently accepted that
immunity is a defense that may be raised by preliminary objection when to
delay a ruling thereon would serve no purpose.”) (internal quotations marks
and citations omitted).

                                          - 17 -
J-A27010-17


       immunity issue can then be determined either by a Motion for
       Judgment on the Pleadings or a Motion for Summary Judgment.

Id. See also Pa.R.C.P. 127(b) (“When the words of a rule are clear and free

from all ambiguity, the letter of it is not to be disregarded under the pretext

of pursuing its spirit.”).

       Thus, based on the foregoing, we conclude that the trial court erred by

sustaining Judge Fornelli’s preliminary objections raising immunity from suit,

where Appellant had objected to this improper procedure.          We therefore

vacate the trial court’s order sustaining Judge Fornelli’s preliminary objections

and dismissing Appellant’s complaint with prejudice, and remand for further

proceedings.13, 14

       Order vacated. Case remanded. Jurisdiction relinquished.

       Judge Musmanno files a concurring statement.

       Judge Shogan files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/5/2018


____________________________________________


13Because we dispose of Appellant’s appeal on this basis, we need not address
his remaining issues.

14 Without providing any supporting authority or elaboration, Appellant
requests that we award him the costs of this appeal. See Appellant’s Brief at
17, 28. We decline to do so.

                                          - 18 -
