J-A27010-17

NON-PRECEDENTIAL DECISION-SEE SUPERIOR COURT I.O.P. 65.37

KURT D. MITCHELL

Appellant

v.

FRANCIS J. FORNELLI

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1842 WDA 2016

Appeal from the Order Entered November 10, 2016

In the Court of Common Pleas of Mercer County Civil Division at No(s):

No. 2016-1647

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

DISSENTING MEMORANDUM BY SHOGAN, J.: FILED MARCH 05, 2018

The Majority concludes that Judge Fornelli is not entitled to judicial

immunity because he raised the defense through preliminary objections, and

Appellant objected. In my opinion, such a hyper-technical interpretation of

our procedural rules is neither compelled nor supported by current law and

the facts of this case. The underlying record establishes that Judge Fornelli is

an active senior judge on the Mercer County Court of Commons Pleas who

was appointed by the appropriate judicial authorities to mediate this case as

part of his judicial duties, and our rules allowed the trial court to take notice

of those facts in deciding the preliminary objections. Accordingly, I

respectfully dissent.

The Majority commences its analysis by acknowledging that, in

Greenberg v. Aetna Ins. Co., 235 A.2d 576 (Pa. 1967), “our Supreme Court
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permitted the defendant insurers to raise the affirmative defense of absolute

privilege in preliminary objections where the plaintiff’s complaint clearly

showed that the plaintiff had no right to relief.” Majority Memorandum at 9

(citing Greenberg, 235 A.2d at 579).1 The Majority further notes that our

sister court, the Commonwealth Court, has moved away from a strict

interpretation of Pa.R.C.P. 1030 and has long recognized that immunity may

be raised by preliminary objections when to delay a ruling would serve no

purpose. Id. at 7 (citing Judge Fornelli’s Brief at 21, which references Faust

v. Com., Dept. of Revenue, 592 A.2d 835, 838 n.3 (Pa. Cmwlth. 1991), and

Wurth by Wurth v. City of Philadelphia, 584 A.2d 403 (Pa. Cmwlth.

1990)). However, construing the subsequent Supreme Court case of Freach

v. Commonwealth of Pennsylvania, 370 A.2d 1163 (Pa. 1977), as taking

a contrary position to Greenberg and noting that our Court is not bound by

Commonwealth Court decisions, the Majority declines to follow our sister

court’s practical approach. Majority Memorandum at 8–11.

Instead, citing to cases from our Court that have declined to recognize

this exception where objections to such procedure are lodged, Majority

Memorandum at 13–15, the Majority vacates the trial court’s order and

____________________________________________

1

Indeed, the Greenberg Court considered its position to be “wise, because

if the law or the rule were otherwise, it would mean long and unnecessary

delays in the law—delays which Courts are strenuously trying to eliminate or

reduce—and it could not aid plaintiff at the trial or affect the result.”

Greenberg, 235 A.2d at 579.
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remands for the inevitable dismissal of this case.2In contrast, I find that the

general proposition announced in Greenberg is still good law and that our

procedural rules allow a trial court to sustain preliminary objections based not

only on the complaint, but also on facts of record. I further find that the

subsequent cases in both the Supreme Court and our Court cited by the

Majority, which do not involve judicial immunity, are distinguishable from the

case at bar. Therefore, I am compelled to disagree with the Majority’s result.

In fact, I believe such a result wastes judicial resources and imposes an

unnecessary burden of prolonged litigation and expense on all parties

involved.3

Preliminary objections in the nature of a demurrer test the legal

sufficiency of a complaint. Vulcan v. United of Omaha Life Ins. Co., 715

A.2d 1169, 1172 (Pa. Super. 1998). “[P]reliminary objections raising an issue

____________________________________________

2

I characterize dismissal as inevitable, because I find Appellant’s additional

issues as lacking in merit.

3

I am relieved that the Majority declined to base its decision “on the face of

the complaint” because Appellant clearly misstated Judge Fornelli’s status

therein. According to Appellant’s complaint, Judge Fornelli is a former judge

with the Mercer County Court of Common Pleas. Complaint, 6/23/16, at ¶ 2.

As discussed infra, the record shows that Judge Fornelli is an active senior

judge. We must not permit a plaintiff to circumvent application of judicial

immunity by omitting or misstating essential facts of record. Furthermore, to

the extent that Appellant argues that the trial court erred in not restricting its

decision to the facts within the four corners of the complaint, we agree with

Judge Fornelli that “[t]his issue has been waived. It was not raised initially

and it was not raised in Mitchell’s Statement of Matters...as ordered by the

trial court after his appeal under [Pa.R.A.P.] 1925(b).” Judge Fornelli’s Brief

at 22.
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under subdivision...(a)(4) may be determined from facts of record... .”

Pa.R.C.P. 1028 at (c)(2) Note; see also Solomon v. U.S. Healthcare Sys.

of Pennsylvania, Inc., 797 A.2d 346, 352 (Pa. Super. 2002) (recognizing

that trial court may take judicial notice of public documents in ruling on

demurrer). Moreover, a trial court “may rely on documents forming in part

the foundation of the suit even where a plaintiff does not attach such

documents to its complaint.” Feldman v. Hoffman, 107 A.3d 821, 829 (Pa.

Cmwlth. 2014); see also St. Peter’s Roman Catholic Parish v. Urban

Redev. Auth. of Pgh., 146 A.2d 724 (Pa. 1958) (permitting trial court to

consider documents attached to defendant’s preliminary objections).

Here, Judge Fornelli filed his preliminary objections in the nature of a

demurrer pursuant to Pa.R.C.P. 1028(a)(4), arguing that Appellant’s

complaint was legally insufficient. Judge Fornelli attached to his preliminary

objections the order appointing him as mediator in the underlying lawsuit.

Preliminary Objections, 7/13/16, at Exhibit B. The trial court properly took

judicial notice of the public documents and facts of record underlying

Appellant’s complaint, including some of the documents filed in

Commonwealth v. Null, 2054 WDA 2014, which are included in the certified

record at hand. Those sources revealed that Judge Fornelli is a senior judge

of the Mercer County Court of Common Pleas, who the president judge of the

Jefferson County Court of Common Pleas duly appointed to assist with a

backlog of cases, including the mediation at the heart of this matter. Chief
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Justice of Pennsylvania Thomas Saylor approved the president judge’s

appointment of Judge Fornelli. Moreover, the alleged slander occurred while

Judge Fornelli was serving in his official capacity as a senior judge appointed

to mediate a Jefferson County case. Complaint, 6/23/16, at ¶¶ 7–9.

Therefore, the record reflects that Judge Fornelli was entitled to judicial

immunity.

Furthermore, the cases relied upon by the Majority are clearly

distinguishable. The Freach case involved official immunity, a type of

immunity pertaining to government officials and employees. Freach, 370

A.2d at 1168. It did not involve judicial immunity or a challenge to the

sufficiency of the complaint based on such immunity. Moreover, the Freach

Court noted in a footnote that immunity from suit should be pleaded under

“New Matter,” but it did not absolutely prohibit it from being raised by

preliminary objections. Freach, 370 A.2d at 1172, n.6. In fact, our Supreme

Court reviewed the immunity issue on its merits, as had the Commonwealth

Court, and did not mention the Greenberg case. Similarly, the case of

Barber v. Lynch, 418 A.2d 749 (Pa. Super. 1980), involved a demurrer based

on immunity pertaining to public officials, not judicial immunity. In Heifetz

v. Philadelphia State Hospital, 393 A.2d 1160 (Pa. 1978), our Supreme

Court reversed an order sustaining preliminary objections based on official

immunity—not judicial immunity—because of a change in the law, not because

the defense was improperly raised in preliminary objections. Finally, Kyle v.
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McNamara & Criste, 487 A.2d 814 (Pa. 1985), was not a judicial immunity

case and did not involve a complaint or record that clearly established

immunity from suit. Rather, the Supreme Court first reversed the lower court

rulings on a substantive demurrer and, secondarily, reversed the lower court

rulings on affirmative defenses raised by demurrer. Moreover, “it has

appeared that the Supreme Court has moved away from its strict

interpretation of Rule 1030 in Kyle.” Wurth, 584 A.2d at 407 n.4 (citing

Farinacci v. Beaver County Industrial Development Authority, 511 A.2d

757 (Pa. 1986), and Gardner v. Consolidated Rail Corp., 573 A.2d 1016

(Pa. 1990)). Again, Judge Fornelli filed preliminary objections in the nature of a

demurrer, challenging the sufficiency of the complaint as stating a cause of

action against him, a senior judge of the Mercer County Court of Common

Pleas. I agree with the trial court’s order sustaining the preliminary objections

because “[Judge Fornelli] has the protection of immunity from suit in the

exercise of his Court appointed duties to hear the backlog of Jefferson County

cases.” Trial Court Opinion, 2/27/17, at 5. I find no basis for penalizing a

jurist who demurs, in lieu of raising an affirmative defense, where the

complaint or facts of record establish that no cause of action against him

exists. Rather, I favor the approach of our sister court and would hold that

judicial immunity may be raised by preliminary objections in such

circumstances. See Wurth, 584 A.2d at 407 (“[I]t is needless to prolong
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proceedings when the matter can be correctly and quickly decided on

preliminary objections in the nature of a demurrer pursuant to [Pa.R.C.P.

1028(a)(4)]. This was the rationale and holding of Greenberg, which has

never been overruled.”). Hence, I dissent.