J-S53003-16

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DONTIE L. BROOKS IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

THOMAS GOUKER, ANNE KLITSCH, 

BRIAN HUDSON & PENNSYLVANIA 

HOUSING FINANCE AGENCY

Appellee No. 35 MDA 2016

Appeal from the Order Entered December 10, 2015

In the Court of Common Pleas of Dauphin County

Civil Division at No(s): 2015 CV 05365 DJ

BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.

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

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

sustaining preliminary objections based upon sovereign immunity and 

dismissing Appellant’s negligence action against the Pennsylvania Housing 

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

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

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

court for disposition.1 

____________________________________________

1 We raised the issue of jurisdiction sua sponte in our March 1, 2016 order 

ruling Appellant to show cause as to why this appeal should not be 

transferred to the Commonwealth Court. Appellant filed a timely response, 

(Footnote Continued Next Page)
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Appellant commenced this action alleging that PHFA and its employees 

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

dismissed the complaint based on sovereign immunity, and Appellant 

challenges that ruling herein.2 

Generally, the Commonwealth and its agencies, officials and 

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

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

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

Pennsylvania Constitution).3 Statutory exceptions to sovereign immunity are 

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

(Footnote Continued) _______________________

the rule was discharged, and the matter was referred to the merits panel for 

disposition. The PHFA submits that its objection to jurisdiction is not waived 

pursuant to Pa.R.A.P. 741 as this Court raised the issue before the PHFA was 

required to object and the rule to show cause did not permit a response. On 

these facts, we find no waiver. 

2

Pennsylvania’s Sovereign Immunity Act is codified at 42 Pa.C.S. § 8501-

8528. Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 

8501, 8541-8546. 

3 1 Pa. C.S. § 2310 provides, in pertinent part: 

Pursuant to section 11 of Article I of the Constitution of 

Pennsylvania, it is hereby declared to be the intent of the 

General Assembly that the Commonwealth, and its officials and 

employees acting within the scope of their duties, shall continue 

to enjoy sovereign immunity and official immunity and remain 

immune from suit except as the General Assembly shall 

specifically waive the immunity. 
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agencies based on those exceptions are properly commenced in the courts of 

common pleas but appellate jurisdiction lies in the Commonwealth Court. 

Preliminarily, we must determine whether we should exercise 

jurisdiction over the instant appeal. Although appellate jurisdiction over tort 

actions involving a Commonwealth defendant resides in the Commonwealth 

Court, Appellant relies upon Braderman v. Pennsylvania Housing 

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

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

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

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

Pennsylvania, claiming inter alia that the Agency wrongfully discharged her 

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

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

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

Amendment divested the district court of its jurisdiction to adjudicate 

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

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4

The Eleventh Amendment to the United States Constitution provides:

The Judicial power of the United States shall not be construed to 

extend to any suit in law or equity, commenced or prosecuted 

against one of the United States by Citizens of another State, or 

by Citizens or Subjects of any Foreign State.

(Footnote Continued Next Page)
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the Commonwealth and not entitled to Eleventh Amendment immunity. 

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

appellate jurisdiction in this Court is proper. 

The PHFA maintains that Appellant fails to understand that Eleventh 

Amendment immunity under federal law is not the same as sovereign 

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

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

in which the General Assembly of this Commonwealth stated that the

Pennsylvania Housing Finance Agency is a Commonwealth agency “for all 

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

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

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

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

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

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

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

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

persons whose residences have been impacted by dangerous radon levels to 

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

(Footnote Continued) _______________________

USCS Const. Amend. 11.
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The PHFA urges us to read 35 P.S. § 7504 in conjunction with 42 

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

(a) General rule. — Except as provided in subsection (b), the 

Commonwealth Court shall have exclusive jurisdiction of appeals 

from final orders of the courts of common pleas in the following 

cases:

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

proceedings:

(i) Original jurisdiction of which is vested in 

another tribunal by virtue of any of the 

exceptions to section 761(a)(1) (relating to 

original jurisdiction), except actions or 

proceedings in the nature of applications for 

a writ of habeas corpus or post-conviction 

relief not ancillary to proceedings within the 

appellate jurisdiction of the court.

. . . . 

(7) Immunity waiver matters. — Matters conducted pursuant to 

Subchapter C of Chapter 85 (relating to actions against local 

parties).

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

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

vesting exclusive appellate jurisdiction of tort claims against Commonwealth 

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

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

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

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

(Pa.Super. 2000) (internal citations omitted), we held that when deciding 
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whether to retain an appeal or transfer it to Commonwealth Court, we must 

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

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

legislatively ordained division of labor between the intermediate appellate 

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

lines of authority on a particular subject."

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

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

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

exclusive appellate jurisdiction in the Commonwealth Court over matters 

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

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

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

agency, was entitled to sovereign immunity under Pennsylvania law although 

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

the instant appeal to the Commonwealth Court for disposition pursuant to 

Pa.R.A.P. 752.5 

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5

Pa.R.A.P. 752. “Transfers Between Superior and Commonwealth Courts,” 

provides in pertinent part:

(a) General rule. The Superior Court and the Commonwealth 

Court, on their own motion or on application of any party, may 

transfer any appeal to the other court for consideration and 

(Footnote Continued Next Page)
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Appeal transferred to Commonwealth Court. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/2016

(Footnote Continued) _______________________

decision with any matter pending in such other court involving 

the same or related questions of fact, law or discretion.