             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Frederick Roehrig, Krista Roehrig,     :
and Big Diamond Speedway, LLC,         :
                   Appellants          :
                                       :   No. 1144 C.D. 2014
            v.                         :
                                       :   Submitted: December 12, 2014
Township of Cass; James D. Thomas,     :
individually and in his official       :
capacity as Supervisor of Township     :
of Cass; Michael Kulpcavage,           :
individually and in his official       :
capacity as Supervisor of Township     :
of Cass; and John W. Walaitis,         :
individually and in his official       :
capacity as Supervisor of the          :
Township of Cass                       :



BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                    FILED: August 18, 2015


            Frederick Roehrig, Krista Roehrig, and Big Diamond Speedway, LLC
(together, Big Diamond Speedway), appeal from the April 17, 2014 order of the
Court of Common Pleas of Schuylkill County (trial court) dismissing their complaint
against the Township of Cass (Township), and James D. Thomas, Michael
Kulpcavage, and John W. Walaitis in their individual capacities and official
capacities as Supervisors of the Township (together, Supervisors). We affirm in part
and vacate and remand in part.
                                       Background
             Big Diamond Speedway, LLC, is an automobile race track located in
Cass Township, Schuylkill County, and is owned by Frederick Roehrig and Krista
Roehrig. The Township is a township of the second class, and the Supervisors
constitute the governing body of the Township. (Reproduced Record (R.R.) at 7a.)
The genesis of this case concerns the Township’s levy of an amusement tax on Big
Diamond Speedway, LLC; the presence of local police at the race track at the
Supervisors’ direction; and allegedly defamatory statements made by Supervisor
Thomas. (R.R. at 8a-14a.)
             On July 8, 2013, Big Diamond Speedway filed a complaint against the
Township and the Supervisors, alleging violations of 42 U.S.C. §1983, trespass, civil
conspiracy, tortious interference with contractual and prospective relations, and
defamation. The Township and the Supervisors removed the case to the United
States District Court for the Middle District of Pennsylvania on the basis of federal
question jurisdiction. Following the parties’ stipulated dismissal of Big Diamond
Speedway’s Section 1983 claim, the federal district court remanded the remaining
state law claims to the trial court.
             In a succinct and accurate manner, the trial court summarized the basic
averments in Big Diamond Speedway’s complaint as follows:

             The complaint alleges that since 1983, [the Township]
             imposed a 10% tax on the race track’s admission fees, but
             orally agreed to only collect 5%. On March 29, 2012, [the
             Township] adopted a new ordinance and, escorted by
             police, served it upon [Big Diamond Speedway] on April
             20, 2012, during a race. [Big Diamond Speedway] alleges
             that this act was designed to oppress [them], embarrass
             them in front of hundreds of spectators, and violate their

                                           2
              constitutional rights to equal protection and due process.
              [Big Diamond Speedway] complains that the new ordinance
              imposed a 10% tax and also gave [the Township’s] officials
              the right to come onto [Big Diamond Speedway’s] property
              to count spectators and audit the admission. [Big Diamond
              Speedway further] complains that the tax not only applies to
              spectators, but now also to participants and their pit crew.
              [Big Diamond Speedway] alleges that [the Township]
              commenced an aggressive law enforcement program
              specifically directed at the race track and track participants
              by having the police stop race track haulers for safety
              inspections, weighing vehicles and generally making the
              presence of the police known to participants and spectators,
              causing a traffic lane back-up onto a public roadway.[1]
              [Big Diamond Speedway] also alleges that [the Township]
              threatened to adopt a noise ordinance to further coerce [it]
              into accepting the new tax rate and Ordinance.

              The complaint specifically alleges that . . . [Supervisor]
              Thomas made fraudulent and negligent misrepresentations
              in an [email] regarding the Township’s ability to impose
              and collect the tax. . . . [Big Diamond Speedway] alleges
              that [the Township and the Supervisors] are trying to force
              the closure of [its] business and conspired against [it] in
              enacting a new ordinance, imposing a higher tax, making
              the police presence known, and intimidating race car
              participants and spectators from attending.

(Trial court op. at 3-4.)
              In count I, Big Diamond Speedway asserted a defamation claim against
Supervisor Thomas, alleging that he made a false and libelous statement in an email
to a citizen of the Township. In this email dated May 7, 2012, Supervisor Thomas
allegedly stated:

              The people need to understand that [Big Diamond
              Speedway] forced our hand to count the numbers when they
              blatantly ripped the Township off in the 2011 Amusement

       1
        We note that the Township’s police department or its individual officers were not named in
the complaint as party defendants.


                                                3
             tax revenue. When brought to their attention we were told
             they know they owe it but they spent it elsewhere. I
             recommend you get the facts before firing off an email.
             Call the Township for me or make an appointment then you
             may hear the facts. The truth never sounds as good as the
             rumors. Get over the gossip!

(R.R. at 15a.) Big Diamond Speedway also averred that Supervisor Thomas sent a
second email to the same citizen on the same date, and an email to a different citizen
on May 10, 2012. In these emails, Supervisor Thomas allegedly described Big
Diamond Speedway as “some dishonest racetrack owners feeding the public
untruthful statements” and stated that: the Township’s tax ordinance was necessary
“to monitor the counts since there was a gross shortfall;” Big Diamond Speedway
“forced [the Township’s] hand to hire a company to monitor the gates to compile an
accurate count;” and Big Diamond Speedway “spent the money [it owed for taxes]
elsewhere.” (R.R. at 16a-18a.)
             In count II, Big Diamond Speedway pled a trespass claim against the
Township and the Supervisors, alleging that the Supervisors directed the police to the
race track without legal privilege to do so. (R.R. at 21a.)
             In count III, Big Diamond Speedway set forth a claim for tortious
interference with contractual and prospective relations against the Township and the
Supervisors, averring that their actions in “instituting an aggressive law enforcement
program” at the track “intentionally intimidated spectators and race car drivers which
resulted in reduced attendance and participation at events at the track.” (R.R. at 22a.)
             In count IV, Big Diamond Speedway alleged that the Township and the
Supervisors engaged in civil conspiracy for the reasons set forth in counts I through
III. Big Diamond Speedway further averred that the Township and the Supervisors
conspired together to discriminate against Frederick Roehrig on the basis of his



                                           4
physical disability in violation of the Americans with Disabilities Act, 42 U.S.C.
§§12131-12300. (R.R. at 23a-25a.)2
              The Township and the Supervisors filed preliminary objections to the
complaint, contending, among other things, that Big Diamond Speedway’s claims are
barred by governmental immunity and the common law doctrine of absolute privilege
for high public officials. The Township and the Supervisors also demurred on the
ground that Big Diamond Speedway failed to state a claim for which relief can be
granted. (R.R. at 33a-38a.)
              In turn, Big Diamond Speedway filed preliminary objections to the
Township’s and the Supervisors’ preliminary objections, contending that the
Township and the Supervisors improperly raised the defenses of immunity by way of
preliminary objections. Big Diamond Speedway further asserted that the Township’s
and the Supervisors’ preliminary objections impermissibly relied on facts not of
record to support their defense of high public official immunity. (R.R. at 39a-41a.)
Big Diamond Speedway requested that the Township’s and the Supervisors’
preliminary objections be dismissed or, alternatively, that they “may amend their
[c]omplaint.” (Supplemental R.R. at 11b.)
              By order dated April 17, 2014, the trial court granted the Township’s
and the Supervisors’ preliminary objections and dismissed Big Diamond Speedway’s
complaint on grounds of immunity and failure to state a claim. (Trial court op. at 2,
4-5.)


        2
        Big Diamond Speedway also asserted an independent claim for punitive damages. (Count
V of the complaint, R.R. at 25a.) However, a request for punitive damages does not constitute a
cause of action in and of itself but is merely incidental to a cause of action. Feingold v.
Southeastern Pennsylvania Transportation Authority, 517 A.2d 1270, 1275-76 (Pa. 1986). Big
Diamond Speedway subsequently agreed to remove the request as a separate count in the complaint.



                                               5
                                            Discussion
               On appeal to this Court,3 Big Diamond Speedway presents seven issues
in its statement of questions involved.4 Nevertheless, the argument portion of Big
Diamond Speedway’s brief has only four sections, in which various issues are raised
and intermingled in a somewhat disjointed and sometimes cursory manner. For the
sake of clarity, we address the arguments Big Diamond Speedway raises in its brief in
their most logical order.

A. Whether Big Diamond Speedway’s Claims against the Township are barred
                      by Governmental Immunity
               Big Diamond Speedway contends that the trial court erred in granting
the Township’s preliminary objections because it is not clear from the face of the
complaint that governmental immunity applies. Big Diamond Speedway asserts,
without elaborating, that factual issues exist as to whether the Township is entitled to
       3
          Appellate review of a trial court’s order sustaining preliminary objections and dismissing a
complaint is limited to determining whether the trial court abused its discretion or committed an
error of law. Petty v. Hospital Service Association of Northeastern Pennsylvania, 967 A.2d 439,
443 n.7 (Pa. Cmwlth. 2009). In reviewing preliminary objections, all well pleaded relevant and
material facts are to be considered as true, and preliminary objections shall only be sustained when
they are free and clear from doubt. Id.

       4
         These issues may be summarized as follows: 1) whether the trial court erred in not
allowing Big Diamond Speedway to amend its complaint; 2) whether the trial court erred in ruling
on the Township’s and the Supervisors’ preliminary objections when the matters should have been
raised as affirmative defenses in new matter; 3) whether the trial court erred in ignoring Big
Diamond Speedway’s preliminary objections which asserted that the Township’s and the
Supervisors’ preliminary objections were procedurally defective; 4) whether the trial court erred in
considering facts not of record contained within the Township’s and the Supervisors’ preliminary
objections; 5) whether the trial court erred in failing to find that Big Diamond Speedway had pled
adequate facts supporting the elements of tortious interference with a contractual relationship; 6)
whether the trial court erred in failing to find that Big Diamond Speedway had pled adequate facts
supporting the elements of civil conspiracy; and 7) whether the trial court erred in ruling on
preliminary objections without extending the opportunity for oral argument. (Big Diamond
Speedway’s brief at 4-5.)


                                                  6
governmental immunity. The Township responds that Big Diamond Speedway’s
claims against it are barred by governmental immunity because the Township can
only be liable for negligent acts that fall within an enumerated exception to
governmental immunity and it is obvious that such is not the case here. We agree.
               Under sections 8541-8542 of the Judicial Code, commonly known as the
Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S. §§8541-8542, a
local governmental agency is generally immune from liability in tort for damages
caused by its acts or the acts of its officials and employees. 42 Pa.C.S. §8541. The
Legislature has waived this grant of immunity when two distinct conditions are
satisfied: (1) the damages would be recoverable under statutory or common law
against a person unprotected by governmental immunity; and (2) the negligent act of
the local agency or its employees which caused the injury falls within one of
enumerated exceptions to immunity. 42 Pa.C.S. §8542(a).5 See generally White v.
School District of Philadelphia, 718 A.2d 778, 779 (Pa. 1998). For purposes of
governmental immunity, the term “negligent acts” does not include “acts or conduct
which constitutes a crime, actual fraud, actual malice or willful misconduct.” 42
Pa.C.S. §8542(a)(2).
               Section 8550 of the Judicial Code governs actions based on the willful
misconduct of a local agency’s employee:

               In any action against a local agency or employee thereof for
               damages on account of an injury caused by the act of the
               employee in which it is judicially determined that the act of
               the employee caused the injury and that such act constituted

       5
           The exceptions are for negligent acts related to the following: (1) vehicle liability; (2) the
care, custody, or control of personal property; (3) the care, custody, or control of real property in the
possession of the local agency; (4) trees, traffic controls and street lighting; (5) utility service
facilities; (6) streets; (7) sidewalks; and (8) the care, custody, or control of animals. 42 Pa.C.S.
§8542(b)(1)-(8).


                                                   7
             a crime, actual fraud, actual malice or willful misconduct,
             the provisions of sections 8545 (relating to official liability
             generally), 8546 (relating to defense of official immunity),
             8548 (relating to indemnity) and 8549 (relating to limitation
             on damages) shall not apply.

42 Pa.C.S. §8550. For purposes of section 8550 of the Judicial Code, “willful
misconduct” is construed to mean “willful misconduct aforethought” and is
synonymous with “intentional tort.” Orange Stones Co. v. City of Reading, 87 A.3d
1014, 1023 (Pa. Cmwlth. 2014) (citations omitted).
             It is well-settled that where a plaintiff has averred willful
             misconduct on the part of local agency employees, section
             8542(a)(2) of the Tort Claims Act, 42 Pa.C.S. §8542(a)(2),
             bars recovery from the local agency because liability may
             be imposed on a local agency only for negligent acts. In
             addition, section 8550 of the [Judicial Code], 42 Pa.C.S.
             §8550, does not create an exception to section 8542(a)(2),
             and, as a result, a local agency may not be held liable for
             the willful misconduct of its employees. In order to
             overcome the defense of governmental immunity, a
             plaintiff's claims against a local agency must sound in
             negligence and must fall within one of the eight enumerated
             exceptions to local agency immunity set forth in section
             8542(b) of the Tort Claims Act, 42 Pa.C.S. §8542(b).
Orange Stones, 87 A.3d at 1022 (emphasis added) (citations omitted).
             Here, Big Diamond Speedway’s claims for tortious interference, civil
conspiracy, defamation, and trespass (to the extent deliberate conduct is averred) are
all intentional torts.   See, id. at 1025 (interference with contractual relations);
DeBlasio v. Pignoli, 918 A.2d 822, 827 (Pa. Cmwlth. 2007) (civil conspiracy);
Wilson v. Marrow, 917 A.2d 357, 365 (Pa. Cmwlth. 2007) (defamation); Gilbert v.
Synagro Cent., LLC, 90 A.3d 37, 52 (Pa. Super. 2014) (trespass). To the extent that
Big Diamond Speedway’s trespass claim avers mistaken conduct, neither this nor any
of the other claims falls within an exception to governmental immunity. See Falor v.
Southwestern Pennsylvania Water Authority, 102 A.3d 584, 590 (Pa. Cmwlth. 2014)

                                           8
(trespass); Petula v. Mellody, 631 A.2d 762, 765 (Pa. Cmwlth. 1993) (defamation);
Purdy v. Romeo, 613 A.2d 91, 93 (Pa. Cmwlth. 1992) (interference with contractual
relations and civil conspiracy).
             Accordingly, we conclude that the trial court properly granted the
Township’s preliminary objection to Counts II, III, and IV of the complaint on the
basis of governmental immunity and did not err in dismissing all of Big Diamond
Speedway’s claims against the Township.

   B. Whether Big Diamond Speedway’s Claims against the Supervisors are
                     barred by High Official Immunity
             Big Diamond Speedway asserts that the defamation claim against
Supervisor Thomas and the trespass, tortious interference, and civil conspiracy claims
against the Supervisors are not barred by high official immunity because questions of
fact remain as to whether the Supervisors were acting within the scope of their
authority. The Supervisors argue that the only conclusion to be drawn from the facts
alleged in the complaint is that they were acting as high public officials and their
alleged misconduct occurred within the course and scope of their authority and
power.
             The common law doctrine of “high official immunity” insulates “high-
ranking public officials” from liability for all conduct taken in the course and scope
of their official duties. Matson v. Margiotti, 88 A.2d 892, 895 (Pa. 1952); Holt v.
Northwest Pennsylvania Training Partnership Consortium, Inc., 694 A.2d 1134,
1140 (Pa. Cmwlth. 1997). As our Supreme Court has explained:

             [T]he doctrine of absolute privilege for high public
             officials, as its name implies, is unlimited and exempts a
             high public official from all civil suits for damages arising
             out of false defamatory statements and even from
             statements or actions motivated by malice, provided the
             statements are made or the actions are taken in the course of

                                          9
             the official’s duties or powers and within the scope of his
             authority, or as it is sometimes expressed, within his
             jurisdiction. . . .

             [It is] designed to protect the official from the suit itself,
             from the expense, publicity, and danger of defending the
             good faith of his public actions before the jury. And yet,
             beyond this lies a deeper purpose, the protection of
             society’s interest in the unfettered discussion of public
             business and in full public knowledge of the facts and
             conduct of such business.
Lindner v. Mollan, 677 A.2d 1194, 1195-96 (Pa. 1996). The doctrine of absolute
privilege for high public officials “rests upon the . . . idea that conduct which
otherwise would be actionable is to escape liability because the defendant is acting in
furtherance of some interest of social importance, which is entitled to protection even
at the expense of uncompensated harm to the plaintiff’s reputation.” Montgomery v.
City of Philadelphia, 140 A.2d 100, 102 (Pa. 1958) (emphasis added).
             Significantly, “the doctrine of high public official immunity is applicable
to actions by public officials, not just defamatory statements.” Osiris Enterprises v.
Borough of Whitehall, 877 A.2d 560, 566-67 (Pa. Cmwlth. 2005) (emphasis in
original).   Further, section 8550 of the Judicial Code, which states that official
immunity shall not apply to acts of a local agency employee that constitute actual
malice and willful misconduct, “does not abrogate the privilege of high public official
immunity from suit.” Osiris Enterprises, 877 A.2d at 566. Consequently, high
official immunity will apply even where an official acts with malicious intent or the
intent to harm. Holt, 694 A.2d at 1140 (concluding that high public officials, acting
within the scope of their authority and duties, “enjoy absolute immunity even when
willful misconduct is alleged.”).
             It is well established that township supervisors are “high public
officials.” Jonnet v. Bodick, 244 A.2d 751, 753 (Pa. 1968); Appel v. Township of


                                          10
Warwick, 828 A.2d 469, 472 (Pa. Cmwlth. 2003).                     Our Supreme Court has
determined that “[t]here are no more important officers in second class townships
than the supervisors. They exercise the entire legislative and executive powers of the
municipality and there can be no doubt of the fact that they do indeed exercise policy-
making functions.” Jonnet, 244 A.2d at 753. Accordingly, the Supervisors are
immune from Big Diamond Speedway’s claims so long as the alleged actions
underlying Big Diamond Speedway’s defamation, trespass, tortious interference, and
civil conspiracy claims were taken in the course of their duties or powers and within
the scope of their authority. Id.
               Pursuant to section 607(1) of the Second Class Township Code (Code),6
the Supervisors are “charged with the general governance of the township and the
execution of legislative, executive and administrative powers in order to ensure sound
fiscal management and to secure the health, safety and welfare of the citizens of the
township.” Id. Without question, the Supervisors, in exercising their legislative
duties, have the authority to enact ordinances. Section 1601 of the Code, 53 P.S.
§66601 (“The board of supervisors may adopt ordinances . . . .”). Moreover, the
Supervisors, in exercising their executive power, have the authority to direct the
police to enforce local legislation and the laws of this Commonwealth. See generally
sections 1901—1913 of the Code, 53 P.S. §§66901—66913. See also Soergel v.
Board of Supervisors of Middlesex Township, 316 A.2d 89, 91-92 (Pa. Cmwlth.
1974) (concluding that a police officer in a second-class township has a duty to obey
the orders of the board of supervisors, including the supervisors’ orders that the
officer “make certain traffic checks” and “direct traffic at the roller rink”).



      6
          Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §65607(1).


                                                11
             The factual allegations underlying Big Diamond Speedway’s claims of
interference with contractual relations, civil conspiracy, and trespass relate to the
Supervisors’ conduct in enacting the tax ordinance and directing the local police.
Contrary to Big Diamond Speedway’s assertions, the conduct alleged in the
complaint, i.e., enacting the ordinance and directing the local police to the racetrack,
indisputably falls within the course and scope of the Supervisors’ official duties and
authority. Therefore, we conclude that these claims are barred by high public official
immunity.
             With respect to whether Big Diamond Speedway’s defamation claim
against Supervisor Thomas is barred by high public official immunity, we must
determine whether the statements at issue were made within the scope of his
authority. Pickering v. Sacavage, 642 A.2d 555, 558 (Pa. Cmwlth. 1994). In this
regard, we consider several factors, such as the formality of the forum in which the
allegedly defamatory comments were spoken or published and the relationship of the
legitimate subject of governmental concern to the person seeking damages for the
defamatory utterance. Hall v. Kiger, 795 A.2d 497, 501 (Pa. Cmwlth. 2002). “[T]he
privilege must be limited to those statements and actions which are ‘closely related’
to the performance of those official duties.” Mosley v. Observer Publishing Co., 619
A.2d 343, 346 (Pa. Super. 1993) (quoting McCormick v. Specter, 275 A.2 688, 689
(Pa. Super. 1971). Thus, to determine whether statements are protected, we must
analyze the extent to which the Supervisor’s statements are related to his official
duties. Factor v. Goode, 612 A.2d 591, 593 (Pa. Cmwlth. 1992).
             The privilege has been found applicable to defamatory statements made
outside official meetings when made pursuant to the official’s duties; for example, to
reporters at a press conference. See Montgomery, 140 A.2d at 105; Factor, 612 A.2d
at 593; McCormick, 275 A.2 at 689. Conversely, comments made by a mayor


                                          12
concerning the acting chief of police were found to be outside the course of the
mayor’s duties and scope of authority in McKibben v. Schmotzer, 700 A.2d 484 (Pa.
Super. 1997); and comments by a city comptroller to the press after terminating a city
contractor were held to be outside of his official duties and not covered by official
immunity in Rok v. Flaherty, 527 A.2d 211 (Pa. Super. 1987).
             We conclude that the question of whether high official immunity applies
to Supervisor Thomas’ statements is a fact-specific determination that cannot be
made with certainty at this stage of the proceedings. Because questions remain as to
whether all or some of those statements were made within the scope of his authority,
we conclude that the trial court erred in dismissing Count I of the Complaint on the
basis of high public official immunity.
             Accordingly, we affirm the trial court’s dismissal of Big Diamond
Speedway’s interference with contractual relations, civil conspiracy, and trespass
claims against the Supervisors and we vacate that part of the trial court’s order
dismissing Big Diamond Speedway’s defamation claim against Supervisor Thomas
on grounds of high public official immunity.

  C. The Trial Court Properly Considered Immunity Defenses Asserted in the
          Township’s and the Supervisors’ Preliminary Objections
             Big Diamond Speedway argues that the trial court erred in ruling on the
Township’s and the Supervisors’ preliminary objections because Big Diamond
Speedway filed preliminary objections to the preliminary objections, contending that
immunity and governmental immunity are affirmative defenses that must be raised in
an answer and new matter. The Township and the Supervisors assert that the trial
court properly considered the immunity defenses because it is obvious from the face
of the complaint that these defenses apply. With respect to Counts II, III, and IV of
the Complaint, we agree.

                                          13
             Pa.R.C.P. No. 1030(3) provides that immunity from suit is an affirmative
defense that must be raised in a responsive pleading under the heading of “new
matter.” Id. However, this Court has created limited exceptions to this rule and
permitted immunity defenses to be raised by way of preliminary objections. See
Orange Stones, 87 A.3d at 1022. Following a line of case law, this Court recently
held that “the defense of immunity may be raised by preliminary objections even
when the opposing party objected to the procedure” in a preliminary objection to the
preliminary objection. Feldman v. Hoffman, 107 A.3d 821, 832 (Pa. Cmwlth. 2014)
(emphasis in original). In Feldman, we concluded that consideration of an immunity
defense in this procedural posture is appropriate where: (1) the plaintiff had an
opportunity to oppose the immunity defenses; (2) it is apparent from the face of the
complaint that immunity is applicable; and (3) the plaintiff failed on appeal to
identify additional facts that would support the inapplicability of an immunity
defense or otherwise prove prejudice. See id. at 831-35.
             With respect to Counts II, III, and IV of the complaint, Big Diamond
Speedway’s claims against the Township and its interference with contractual
relations, civil conspiracy, and trespass claims against the Supervisors, all the criteria
in Feldman are present here. Big Diamond Speedway had the opportunity to contest
the applicability of immunity before the trial court, and a plain reading of the
complaint readily supports the conclusion that immunity bars those claims. Also, Big
Diamond Speedway has not demonstrated in its appellate brief that it was prejudiced
in any way by the Township’s and the Supervisors’ assertion of immunity in
preliminary objections. Instead, Big Diamond Speedway alleges only that, with
respect to the immunity defenses, factual issues need to be explored through
additional discovery. In Feldman, this Court concluded that the plaintiff’s argument
that “a full record should have been developed” was insufficient to establish


                                           14
prejudice, especially where, as here, the law makes it clear that immunity bars the
claims. See id. at 835. In accord with Feldman, we conclude that the trial court did
not err in ruling on the immunity defenses raised by the Township and the
Supervisors in their preliminary objections to Counts II, III, and IV of the Complaint.


                         D. Leave to Amend the Complaint
             Big Diamond Speedway argues that the trial court abused its discretion
in not permitting it leave to amend its complaint because the Township and the
Supervisors would not suffer prejudice. The Township and the Supervisors maintain
that the trial court did not err in denying amendment because amendment would be
futile.
             Except where an amendment is allowed as of course under Pa.R.C.P.
No. 1028, or granted as of right under other provisions of the Rules of Civil
Procedure, the trial court has discretion concerning whether to allow amended
pleadings. Pa.R.C.P. No. 1033. A trial court may deny amendment where it appears
that the defects are so substantial that amendment is not likely to cure the defects and
amendment would therefore be futile. Weaver v. Franklin County, 918 A.2d 194, 203
(Pa. Cmwlth. 2007); Lutz v. Springettsbury Township, 667 A.2d 251, 254 (Pa.
Cmwlth. 1995).
             On appeal, Big Diamond Speedway seeks to amend its complaint,
asserting that its claims concerning the police’s presence at the racetrack could be
further developed to meet the real property exception to governmental immunity in
section 8542(b)(3) of the Tort Claims Act, concerning injuries resulting from “[t]he
care, custody or control of real property in the possession of the local agency. . . .”
42 Pa.C.S. §8542(b)(3) (emphasis added). We note that ‘“[p]ossession’ within the
real property exception is total control over the premises, and limited control or mere


                                          15
occupation of the premises for a limited period is insufficient to impose liability.”
City of Pittsburgh v. Estate of Stahlman, 677 A.2d 384, 387 (Pa. Cmwlth. 1996).
Consequently, we conclude that the trial court did not abuse its discretion in denying
Big Diamond Speedway permission to amend its complaint. See Weaver, 918 A.2d at
203 (“Plaintiff’s state claims fail on the basis of immunity. An amendment will not
cure this defect. . . . Thus, remand to the trial court for amendment of Plaintiff’s
complaint would only delay inevitable dismissal.”); Holt, 694 A.2d at 1138 (“[A] trial
court does not abuse its discretion by failing to grant leave to amend where further
amendment could not circumvent a defendant’s immunity.”).


                                     Conclusion
             We do not pass on the propriety of the parties’ conduct, the
constitutionality or validity of the ordinance, or any other issue not raised by Big
Speedway on appeal. Further, we recognize the potential for abuse inherent in the
common law doctrine of high official immunity, as interpreted by our Supreme Court,
where the doctrine applies notwithstanding malice or motive.         Significantly, we
discern no legitimate or rational basis for an ordinance to be “served,” on a private
party, by police.
             Nevertheless, for the above stated reasons, we conclude that the trial
court properly dismissed Big Diamond Speedway’s claims against the Township on
grounds of governmental immunity. We further conclude that the trial court did not
err in dismissing Big Diamond Speedway’s claims against the Supervisors, where the
facts alleged in the complaint set forth conduct to which the absolute privilege of high
official immunity applies, and the appeal asserts no basis for the grant of leave to
amend the complaint. However, we conclude that the trial court erred in dismissing



                                          16
Big Diamond Speedway’s defamation claim against Supervisor asserted in Count I of
the Complaint.
            Accordingly, we affirm the trial court’s dismissal of Counts II, III, and
IV of the Complaint; we vacate the trial court’s dismissal of Count I of the
Complaint; we remand this matter to the trial court for further proceedings, in
accordance with the foregoing opinion.




                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge




                                         17
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Frederick Roehrig, Krista Roehrig,        :
and Big Diamond Speedway, LLC,            :
                   Appellants             :
                                          :    No. 1144 C.D. 2014
             v.                           :
                                          :
Township of Cass; James D. Thomas,        :
individually and in his official          :
capacity as Supervisor of Township        :
of Cass; Michael Kulpcavage,              :
individually and in his official          :
capacity as Supervisor of Township        :
of Cass; and John W. Walaitis,            :
individually and in his official          :
capacity as Supervisor of the             :
Township of Cass                          :


                                      ORDER


             AND NOW, this 18th day of August, 2015, the April 17, 2014 order of
the Court of Common Pleas of Schuylkill County is affirmed in part and vacated in
part, and the matter is remanded to the trial court for further proceedings.


             Jurisdiction relinquished.



                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge
