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 
2

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 
3

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.
4

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 
5

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. 

 
6

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.)
7

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). 
8

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) 
9

(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 “highranking 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 
10

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 
11

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 policymaking 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).
12

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 
13

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.
14

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 
15

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 
16

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 
17

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
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