In a decision that found a three-judge panel of the Pennsylvania Superior Court in an internal debate over how far is too far when it comes to enforcing procedural rules, a slander suit by a Florida attorney against a Mercer County senior judge remains in play because the judge raised an immunity defense in the wrong filing.

The appeals court, ruling 2-1 to reverse a trial court decision tossing the case, said defendant Francis J. Fornelli, a senior judge on the Mercer County Court of Common Pleas, improperly raised his judicial immunity defense in preliminary objections, rather than in a new matter as required by Pennsylvania Rule of Civil Procedure 1030.

“Neither Judge Fornelli nor the trial court cite to a case from this court that explicitly allows a party to raise the affirmative defense of judicial immunity in preliminary objections merely because such a defense is clear from the face of the complaint,” Judge John T. Bender wrote for the majority. “In fact, our own cursory research has not yielded any such authority either. It has revealed, however, the inconsistency and uncertainty surrounding when parties may raise an affirmative defense in preliminary objections.”

Senior Judge John L. Musmanno joined in the result, but penned a separate, two-sentence concurring statement to note that he did so “reluctantly.”

“While the majority is procedurally correct, a remand in this case simply delays the inevitable, i.e., dismissal of the action based upon judicial immunity,” Musmanno said.

Judge Jacqueline O. Shogan, meanwhile, wrote a dissenting opinion, arguing that “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,” Shogan said.

According to the majority opinion, Tampa-based attorney Kurt Mitchell filed suit against Fornelli in Mercer County alleging the judge, just before presiding over a mediation proceeding, made slanderous comments about Mitchell to one of Mitchell's clients.

Fornelli filed preliminary objections in which he claimed judicial immunity and a Mercer County trial judge sustained those objections. Mitchell objected, arguing that it was procedurally improper to raise an affirmative defense in preliminary objections.

On appeal, Bender said the state Supreme Court ruled in the 1967 case Greenberg v. Aetna Insurance that the defendants could raise the affirmative defense of absolute privilege in preliminary objections where the complaint clearly showed the plaintiff had no right to relief.

But the high court contradicted itself in subsequent rulings, Bender added, leading the Superior Court to seek a middle ground.

“A review of the applicable case law indicates that this court has not embraced the practice of resolving immunity defenses through preliminary objections solely because such a defense is obvious from the face of the complaint,” Bender said. “Instead, this court has primarily relied on another limited exception to Rule 1030, allowing litigants to raise immunity defenses in preliminary objections where no objections to such procedure are lodged.”

Bender said that because Mitchell “specifically objected” to Fornelli raising an immunity defense in preliminary objections, the trial court was precluded from deciding the immunity question at that stage.

In response to Fornelli's argument that delaying a ruling on his immunity defense “'would serve no purpose,'” Bender cited language from the dissenting opinion in the 2014 Commonwealth Court case Feldman v. Hoffman, in which Senior Judge Dan Pellegrini wrote: “Just because it would be easier to decide it and 'end the matter' when the immunity issue is 'obvious on the face of the pleading,' then we are, in essence, converting an affirmative defense that
must be pled under [Rule] 1030 into a preliminary objection under [Rule] 1028, something we cannot do. When the Supreme Court promulgated [Rule] 1030 and made immunity an affirmative defense, it made the determination that a court would be better served in deciding that after there is a better delineation of the facts that results when an answer and new matter is filed.”

Bender also acknowledged in a footnote Mitchell's argument that a complete factual record needed to be developed before a trial court could determine whether Fornelli was acting within the scope of his duties when he made the allegedly slanderous comments, since the remarks came before the mediation proceeding actually commenced.

According to the footnote, Mitchell also raised the argument that the mediation proceeding itself was illegal, and therefore not a judicial act for which Fornelli would be entitled to immunity, because it pertained to fines imposed on Mitchell's client in a criminal matter arising from violations of the Pennsylvania Construction Code Act.

Mitchell, who represented himself in the case, said he was happy with the ruling.

“It was the correct decision and we'll go back down and continue litigating the case forward,” he said.

Fornelli is represented by Caroline P. Liebenguth of the Administrative Office of Pennsylvania Courts. An AOPC spokesman also could not be reached for comment.