IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Pilchesky, :

Appellant :

:

v. : No. 1232 C.D. 2021

:

Lackawanna County, Office of the :

Sheriff of Lackawanna County, and :

Mark McAndrew, as the Sheriff of :

Lackawanna County : Submitted: February 3, 2023

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE CEISLER FILED: May 9, 2023

Joseph Pilchesky (Pilchesky) appeals pro se from the September 30, 2021

order of the Lackawanna County (County) Court of Common Pleas (trial court), 

which dismissed Pilchesky’s amended complaint (Complaint) with prejudice. On 

appeal, Pilchesky argues that the trial court erred in dismissing his complaint on the 

basis that the County, the Office of the County Sheriff (Sheriff’s Office), and Mark 

McAndrew (Sheriff McAndrew), in his capacity as the County Sheriff (collectively 

Defendants), were immune from suit under what is commonly referred to as the

Political Subdivision Tort Claims Act (PSTCA)1 and the common law doctrine of 

high public official immunity. Pilchesky also argues that pursuant to Rule 1030 of 

1

42 Pa.C.S. §§ 8541-8564.
2

the Pennsylvania Rules of Civil Procedure (Rule 1030)2 Defendants were required 

to raise their immunity defense in an answer to the Complaint, under the heading of 

new matter. After review, we affirm.

I. Background

Pilchesky filed the Complaint on December 9, 2020, asserting claims for 

fraud, conspiracy to commit fraud, negligent supervision, violation of Pilchesky’s 

rights under the Pennsylvania Constitution, intentional infliction of “emotional pain 

and suffering,” negligence, and political retaliation. Original Record (O.R.), Item 

No. 5, ¶¶ 17-88. Pilchesky based these claims on the disposition of real property 

owned by Pilchesky’s wife (the Property), which was sold at a sheriff’s sale on 

October 21, 2014 (Sale). Id., ¶¶ 2, 11. The Complaint alleged that Pilchesky held a 

$200,000 lien on the Property and that Defendants failed to provide Pilchesky notice 

of the Sale. Id., ¶¶ 4, 14. Count I of the Complaint averred that Sheriff McAndrew 

and the Sheriff’s Office willfully neglected to provide Pilchesky notice of the Sale 

in a fraudulent effort to deprive Pilchesky of his monetary interest in the Property. 

Id., ¶¶ 40-42. Count II of the Complaint asserted that the County failed to properly 

oversee Sheriff McAndrew and the Sheriff’s Office, resulting in Pilchesky’s loss of 

interest in the Property. Id., ¶ 51. Count III of the Complaint alleged that 

Defendants’ conduct resulted in the deprivation of Pilchesky’s property rights in 

contravention of article I, section 1 of the Pennsylvania Constitution.3 Id., ¶¶ 53-60. 

2 Rule 1030 establishes which affirmative defenses must be set forth in new matter. 

Pa.R.Civ.P. 1030. Rule 1030(a) relevantly provides that the affirmative defense of immunity from 

suit “shall be pleaded in a responsive pleading under the heading ‘New Matter[.]’” Pa.R.Civ.P. 

1030(a).

3 Article I, section 1 of the Pennsylvania Constitution provides that “[a]ll men are born 

equally free and independent, and have certain and indefeasible rights, among which are those of 

(Footnote continued on next page...)
3

Count IV of the Complaint alleged that Defendants “planned and schemed” to 

conduct the Sale during a period in which Pilchesky was “deathly ill” for the purpose 

of causing Pilchesky emotional pain and suffering through the loss of his property 

rights. Id., ¶¶ 65-73. Count V of the Complaint asserted that Defendants breached 

a duty of care they owed to notify Pilchesky of the Sale, resulting in the loss of 

Pilchesky’s interest in the Property. Id., ¶ 75-83. Finally, Count VI of the Complaint 

alleged that Defendants’ actions were taken in retaliation against Pilchesky’s 

political activity and “involvement in exposing corrupt elements in [County] 

government,” including a “vast scope of very corrupt conduct [by] the [Sheriff’s 

Office] and by the Sheriff.” Id., ¶¶ 85-88.

Defendants filed preliminary objections (POs) to the Complaint, arguing that 

Pilchesky’s claims were barred by the doctrine of res judicata, because Pilchesky 

had unsuccessfully litigated the same claims before the United States District Court 

for the Middle District of Pennsylvania (District Court).

4

 O.R., Item No. 8, ¶¶ 10-

11. Defendants also preliminarily objected to Pilchesky’s Complaint on the basis 

that his claims were time-barred, that Pennsylvania does not recognize a private right 

of action for constitutional violations, and that Defendants were immune from suit 

under the PSTCA and the common law doctrine of high public official immunity. 

Id., ¶¶ 12-18.

enjoying and defending life and liberty, of acquiring, possessing[,] and protecting property and 

reputation, and of pursuing their own happiness.” Pa. Const., art. I, § 1.

4 See Pilchesky v. Lackawanna County (D. Pa. M.D.Pa., No. 3:16-CV-2537, signed May 

16, 2018), 2018 WL 2230471. The District Court dismissed Pilchesky’s complaint on the basis 

that he failed to state a claim upon which relief could be granted. Pilchesky, 2018 WL 2230471 *

4. The District Court dismissed without prejudice any “state law claims” Pilchesky advanced in 

his complaint, noting that Pilchesky retained the right “to reassert such claims in the appropriate 

state court.” Id. n.1.
4

Pilchesky filed a Motion to Strike Defendants’ POs, asserting that Rule 1030 

required that Defendants raise any affirmative defenses in a responsive pleading 

under new matter. O.R., Item No. 13. Following oral argument, the trial court 

entered an order overruling Defendants’ POs in part and sustaining them in part. 

O.R., Item No. 20. The trial court overruled Defendants’ POs that Pilchesky’s 

claims were time-barred or barred by the doctrine of res judicata, and sustained their 

PO as to Pilchesky’s constitutional claim under article I, section 1 of the 

Pennsylvania Constitution.

5

 Id. The trial court agreed that immunity from suit is 

generally pleaded as an affirmative defense in new matter but noted that an immunity 

defense may be raised in POs when it is apparent from the face of a complaint that 

a cause of action will fail. O.R., Item No. 19, trial court op. at 8. 

Regarding Pilchesky’s claims against the County and the Sheriff’s Office, the 

trial court concluded that those entities were entitled to governmental immunity 

under the PSTCA, unless Pilchesky’s claims fell within one of the exceptions to 

immunity set forth in Section 8542(b) of the PSTCA.6 Id. at 9-10. Although one 

5 Defendants did not appeal the trial court’s order overruling a portion of their POs and 

Pilchesky did not appeal the dismissal of his constitutional claim; therefore, we will not further 

summarize the trial court’s decision in that regard, or its reasoning.

6 Section 8541 of the PSTCA generally establishes governmental immunity for local 

agencies. 42 Pa.C.S. § 8541. “Local agency” is defined in Section 8501 of the Judicial Code, 42 

Pa.C.S. § 8501, as “[a] government unit other than the Commonwealth government.” Thus, a 

county constitutes a local agency under Section 8541 of the PTSCA. A county sheriff’s office is 

likewise a local agency under Section 8541 of the PTSCA. Balletta v. Spadoni, 47 A.3d 183, 195 

(Pa. Cmwlth. 2012). 

Section 8542 of the PSTCA provides several exceptions to governmental immunity, 

provided damages would be recoverable from an individual or entity that is not immune from suit 

and the injury was caused by the negligent acts of the local agency, or an employee thereof, who 

was acting within the scope of his or her office or duties, and the negligent acts related to the 

operation of a vehicle, the loss of personal property within the possession or control of the local 

(Footnote continued on next page...)
5

such exception concerns a local agency’s “care, custody[,] or control of real 

property” within its possession,

7

the trial court held that the exception was 

inapplicable, as the Property was never in Defendants’ care, custody, or control. 

O.R., Item No. 19, trial court op. at 11. Moreover, Pilchesky premised his claims on 

fraud, malice, and willful misconduct, and a local agency may not be held liable for 

such conduct when perpetuated by an employee, pursuant to Section 8542(a)(2) of 

the PSTCA.8 As a result, the trial court sustained Defendants’ POs raising immunity 

under the PSTCA and dismissed Pilchesky’s claims against the County and the 

Sheriff’s Office. Id. at 12. The trial court also sustained Defendants’ POs raising 

the common law doctrine of high public official immunity, as Pilchesky’s claims all 

related to a sheriff’s sale conducted by Sheriff McAndrew as part of his official 

duties. Because the doctrine of high public official immunity shielded Sheriff 

McAndrew from liability for such actions, the trial court dismissed Pilchesky’s 

claims against him. Id. Therefore, the trial court dismissed the Complaint with 

prejudice. Id. This appeal followed.9

agency, damages caused by a dangerous condition of real property, trees, traffic controls, street 

lighting, utility services, streets, sidewalks, and animals either owned by or under the care, custody 

or control of a local agency, as well as conduct which constitutes sexual abuse, if the injuries were 

caused by the negligent acts or omissions of a local agency. 42 Pa.C.S. § 8542.

7

42 Pa.C.S. § 8542(b)(3). 

8 Section 8542(a)(2) provides that “negligent acts” imposing liability on a local agency 

shall not include those constituting a crime, actual fraud, actual malice, or willful misconduct. 42 

Pa.C.S. § 8542(a)(2).

9 This Court’s standard of review of an order sustaining preliminary objections is de novo 

and our scope of review is plenary. Keller v. Scranton City Treasurer, 29 A.3d 436, 443 n.12 (Pa. 

Cmwlth. 2011). We accept as true all well-pleaded facts in the complaint and all reasonable 

inferences that may be deduced therefrom. Id. 
6

II. Issues

Pilchesky argues that the trial court erred in holding that Defendants were 

entitled to immunity from suit under the PSTCA or the common law doctrine of high 

public official immunity, and that any affirmative defense raised by Defendants 

should have been set forth as new matter in an answer to the Complaint. 

III. Discussion

First, we address whether the trial court erred in concluding that Defendants 

were immune from suit under the PSTCA or the common law doctrine of high public 

official immunity. Although Pilchesky questions the trial court’s conclusion that the 

County and the Sheriff’s Office are immune from suit in his appellate brief, 

Pilchesky has not otherwise developed this issue. Where an appellate brief fails to 

develop an issue in a meaningful fashion capable of review, that claim is 

waived. Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014). Therefore, this 

Court will only address whether the trial court erred in concluding that Sheriff 

McAndrew is entitled to high public official immunity.

Pilchesky does not dispute that the Sheriff is a high public official, nor does 

he challenge whether a high public official is entitled to immunity for actions taken 

as part of his official duties. Nevertheless, Pilchesky argues that Sheriff McAndrew 

should not be permitted to “willfully, intentionally[,] and deliberately violate” the 

notice requirements for a sheriff’s sale “with impunity.” Pilchesky’s Br. at 11. 

Pilchesky asserts that Sheriff McAndrew “targeted” Pilchesky with the intention that 

Pilchesky would lose his lienholder rights to the Property, and he maintains that 

Sheriff McAndrew should not be protected from financial accountability for his 

allegedly fraudulent behavior. Id. at 13-14. In arguing that Sheriff McAndrew may 

be held liable for acts taken in his official capacity, Pilchesky relies on Section 8550 
7

of the PSTCA, which abrogates an official’s immunity following a judicial 

determination that the acts causing injury “constituted a crime, actual fraud, actual 

malice[,] or willful misconduct.” 42 Pa.C.S. § 8550. 

In Pennsylvania, high public official immunity “acts as an absolute bar to 

protect high public officials from lawsuits arising out of actions taken in the course

of their official duties and within the scope of their authority.” Doe v. Franklin 

Cnty., 174 A.3d 593, 603 (Pa. 2017) (internal citations omitted). The purpose of 

high public official immunity is to shield the high public official from liability for 

the benefit of the public he or she serves. Id. Absolute immunity from civil liability 

for high public officials is a means of removing any inhibition which might 

otherwise “deprive the public of the best service of its officers and agencies.” Id. 

As noted by our Supreme Court in Doe, the scope of high public official immunity 

is very broad 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 . . . actions are taken in the course of the 

official’s duties or powers and within the scope of his authority[.]” Id. (emphasis 

in original).

While Pilchesky argues that Sheriff McAndrew should not be entitled to 

absolute immunity, he fails to support his argument with any relevant legal authority. 

Pilchesky has not suggested that Sheriff McAndrew was not acting within the scope 

of his official duties when he conducted the Sale, or when he allegedly failed to 

provide Pilchesky with notice of the Sale. Pilchesky’s averments in the Complaint 

consist largely of hyperbolic statements, unsupported factual inferences, and 

conclusions that Sheriff McAndrew “fraudulently and secretly sold the Property” for 

the purpose of defrauding Pilchesky of his legal property and rights, that he “planned 
8

and schemed to deprive” Pilchesky of his property rights and “lied, cheated, 

deceived[,] and conducted [himself] in a threatening, corrupt[,] and evil manner as 

to cause Pilchesky emotional pain and suffering[,]” and that the Property was sold 

as a means of political retaliation against Pilchesky’s exposure of “corrupt elements” 

in the County government, including “a vast scope of corrupt conduct” committed 

by Sheriff McAndrew. O.R., Item No. 5, ¶¶ 30-31, 33, 65, 67, 76-81, 85-86. While 

this Court must accept as true all well-pleaded facts, and all reasonable inferences 

that may be deduced therefrom, when reviewing an order sustaining preliminary 

objections, we are not required to accept as true any legal conclusions, unwarranted 

factual inferences, allegations that constitute argument, or mere opinion. 

Commonwealth v. Percudani, 825 A.2d 743, 745 (Pa. Cmwlth. 2003). Ultimately, 

the well-pleaded facts alleged in the Complaint merely indicate that the Property was 

sold on October 21, 2014, and that Pilchesky did not receive notice of the Sale, which 

Sheriff McAndrew failed to provide. Based on these facts, the trial court did not err 

in concluding that Sheriff McAndrew was immune from civil liability under the 

common law doctrine of high public official immunity. 

We must also reject Pilchesky’s argument that Sheriff McAndrew is not 

immune from suit under Section 8550 of the PSTCA, as that provision concerns the 

abrogation of official, or employee, immunity, and not high public official 

immunity.10 

10 Official liability is governed by Section 8545 of the PSTCA, which provides that a local 

agency’s employee is liable for injuries caused by actions taken within the scope of employment 

“only to the same extent as [the] employing local agency and subject to the limitations imposed by 

the [PSTCA].” 42 Pa.C.S. § 8545. Section 8550 provides that the limitations in Section 8545 do 

not apply when it has been “judicially determined that the” actions of a local agency’s employee 

that caused the injury “constituted a crime, actual fraud, actual malice[,] or willful misconduct.”
9

Next, we address whether the trial court erred in permitting Defendants to 

raise their immunity defense by PO. Pilchesky relies exclusively on Rule 1030 to 

support his argument. 

Pennsylvania courts have long recognized a limited exception to the 

requirement in Rule 1030(a) that affirmative defenses must be raised in a responsive 

pleading under new matter. This exception applies, even where the plaintiff objects 

to the immunity defense, if no purpose would be served by a delay in ruling on the 

matter and it would expedite disposition of the case. Feldman v. Hoffman, 107 A.3d 

821, 832 (Pa. Cmwlth. 2014). “[W]here it is transparently clear on the face of the 

complaint that immunity applies, the trial court may consider the immunity 

defense[.]” Id. at 833. Instantly, the trial court expressly considered Defendants’ 

immunity defense, despite it having been raised by PO and in spite of Pilchesky’s 

objection, because such a tact was acceptable for matters in which “it is apparent 

from the face of the complaint that the plaintiff’s causes of action fail[.]” O.R., Item 

No. 19, trial court op. at 8. As discussed above, Pilchesky’s claims against Sheriff 

McAndrew were barred by the common law doctrine of high public official 

immunity, and his entitlement to immunity was clearly applicable on the face of the 

Complaint. Accordingly, we discern no error by the trial court in sustaining 

Defendants’ POs based on Sheriff McAndrew’s entitlement to high public official 

immunity. 

For the above reasons, we affirm the trial court.

____________________________

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Pilchesky, :

Appellant :

:

v. : No. 1232 C.D. 2021

:

Lackawanna County, Office of the :

Sheriff of Lackawanna County, and :

Mark McAndrew, as the Sheriff of :

Lackawanna County :

O R D E R

AND NOW, this 9

th day of May, 2023, the September 30, 2021 order of the 

Court of Common Pleas of Lackawanna County is hereby AFFIRMED. 

____________________________

ELLEN CEISLER, Judge