Brooks v. Cole; Apl of: Family Court

[J-32-2021]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

WANDA BROOKS : No. 4 EAP 2021

:

: Appeal from the Order of

v. : Commonwealth Court entered on

: July 9, 2020 at No. 912 CD 2018,

: quashing the Order entered on July

EWING COLE, INC., D/B/A EWING COLE : 3, 2018 in the Court of Common

AND CITY OF PHILADELPHIA AND : Pleas, Philadelphia County, Civil

FAMILY COURT OF THE COURT OF : Division at No. 00680 December

COMMON PLEAS OF THE FIRST : Term 2016.

JUDICIAL DISTRICT COURT :

: ARGUED: May 18, 2021

:

APPEAL OF: FAMILY COURT OF THE :

COURT OF COMMON PLEAS OF THE :

FIRST JUDICIAL DISTRICT :

OPINION

JUSTICE MUNDY DECIDED: September 22, 2021

We granted allowance of appeal to consider whether the Commonwealth Court

erred in quashing the notice of appeal filed by the Family Court of the Court of Common

Pleas of the First Judicial District (the Family Court) on the basis that the trial court’s order

was not an appealable collateral order under Pennsylvania Rule of Appellate Procedure

313. Because we conclude the trial court’s order denying summary judgment on

sovereign immunity grounds is a collateral order, appealable as of right under Rule 313,

we reverse the Commonwealth Court and remand to the Commonwealth Court for further

proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

This case arises out of personal injuries Appellee Wanda Brooks allegedly

sustained when she walked into an unmarked glass wall while she was attempting to exit

the Family Court building in Philadelphia on January 8, 2015. Second Am. Compl.,

2/8/17, at 2, ¶ 7. On December 8, 2016, Brooks commenced this action with claims for

negligence against Ewing Cole, Inc., the architectural firm that designed and constructed

the building; the City of Philadelphia (City), as a lessor of the building; and the Family

Court, as a leasee of the building. Id. at 1-4, ¶¶ 2-6, 8, 10. Brooks also asserted a claim

of professional liability against Ewing Cole. Id. at 4-5, ¶¶ 12-13. After the Family Court

filed preliminary objections to the complaint, Brooks filed an amended complaint. The

Family Court again raised preliminary objections to the amended complaint, arguing it is

a Commonwealth entity, not a municipal entity, and it did not design or construct the

building. Family Court’s Prelim. Objections to Plaintiff’s Am. Compl., 2/6/17, at 2, ¶ 5-7

(citing 42 Pa.C.S. §§ 102, 301(4); Russo v. Allegheny Cty., 125 A.3d 113 (Pa. Cmwlth.

2015), aff’d per curiam, 150 A.3d 16 (Pa. 2016)). Brooks then filed a second amended

complaint on February 8, 2017, rendering moot the Family Court’s preliminary objections.

See Pa.R.C.P. 1028(c)(1).

Relevant to this appeal, the second amended complaint averred that the Family

Court “is an entity of the Commonwealth of Pennsylvania . . . and is subject to liability

under the real estate exception to sovereign immunity, [42] Pa.C.S.A. § 8522(b).” Second

Am. Compl., 2/8/17, at 2, ¶ 4. In its answer to the second amended complaint, the Family

Court admitted that it was “a Commonwealth entity.” Family Court’s Answer to Second

Am. Compl. with New Matter and Cross-Claim, 3/10/17, at 2, ¶ 4. The Family Court

further asserted in its new matter that the Sovereign Immunity Act, 42 Pa.C.S. §§ 8521-

8527, barred Brooks’s negligence action against it. Id. at 4, ¶ 14.

[J-32-2021] - 2

Following the completion of discovery, the Family Court moved for summary

judgment. Relying on Russo, the Family Court contended it “is subject to sovereign

immunity and is immune from tort claims.” Mot. for Summ. J., 4/5/18, at ¶ 17. The Family

Court explained that Section 8522 of the Sovereign Immunity Act provides that “‘acts by

a Commonwealth party may result in the imposition of liability on the Commonwealth and

the defense of sovereign immunity shall not be raised to claims for damages’” in

enumerated circumstances. Id. at ¶ 10 (quoting 42 Pa.C.S. § 8522(b)). The Family

Court, however, argued that Section 8522 was inapplicable as it was not a

“Commonwealth party” based on Russo, in which the Commonwealth Court determined

that “‘the courts of the unified judicial system are not ‘Commonwealth parties’ within the

meaning of the Sovereign Immunity Act.’” Id. at ¶ 13 (quoting Russo, 125 A.3d at 118

(holding “the courts of the unified judicial system retain their sovereign immunity as

related to tort claims”)). Accordingly, the Family Court argued it was entitled to judgment

as a matter of law. Id. at ¶ 18. In response, Brooks contended that summary judgment

was improper because courts are Commonwealth entities, entitled to sovereign immunity

and also subject to the waivers of sovereign immunity listed in Section 8522(b). Answer

to Mot. for Summ. J., 4/25/18, at ¶ 11. Brooks asserted that the real estate exception to

sovereign immunity in Section 8522(b)(4) applied in this case. Id. at ¶¶ 21-23. The real

estate exception, in context of Section 8522, provides:

§ 8522. Exceptions to sovereign immunity

(a) Liability imposed.—The General Assembly, pursuant to

section 11 of Article I of the Constitution of Pennsylvania, does

hereby waive, in the instances set forth in subsection (b) only

and only to the extent set forth in this subchapter and within

the limits set forth in section 8528 (relating to limitations on

damages), sovereign immunity as a bar to an action against

Commonwealth parties, for damages arising out of a negligent

act where the damages would be recoverable under the

common law or a statute creating a cause of action if the injury

[J-32-2021] - 3

were caused by a person not having available the defense of

sovereign immunity.

(b) Acts which may impose liability.—The following acts by

a Commonwealth party may result in the imposition of liability

on the Commonwealth and the defense of sovereign immunity

shall not be raised to claims for damages caused by:

...

(4) Commonwealth real estate, highways and

sidewalks.—A dangerous condition of

Commonwealth agency real estate and sidewalks,

including Commonwealth-owned real property,

leaseholds in the possession of a Commonwealth

agency and Commonwealth-owned real property

leased by a Commonwealth agency to private persons,

and highways under the jurisdiction of a

Commonwealth agency, except conditions described

in paragraph (5)[, relating to potholes and other

dangerous conditions of highways].

42 Pa.C.S. § 8522(a), (b)(4).

On June 4, 2018, the trial court denied the Family Court’s motion for summary

judgment. Trial Ct. Order, 6/4/18. On June 28, 2018, the Family Court filed a motion for

reconsideration, requesting that the trial court amend its June 4, 2018 order to include a

statement specified in 42 Pa.C.S. § 702(b), which would permit the Family Court to take

an interlocutory appeal. Mot. for Recons., 6/28/18, at 3. That same day, the Family Court

filed a notice of appeal to the Commonwealth Court pursuant to Pa.R.A.P. 313, which

provides that collateral orders are appealable as of right. Notice of Appeal, 6/28/18. On

July 2, 2018, the trial court vacated its June 4, 2018 order pending reconsideration. Trial

Ct. Order, 7/2/18. On July 3, 2018, the trial court entered an order denying summary

judgment and further denying the Family Court’s request to certify the case for an

interlocutory appeal. Trial Ct. Order, 7/3/18.

On July 5, 2018, the Family Court filed a second notice of appeal to the

Commonwealth Court pursuant to Rule 313. Notice of Appeal, 7/5/18. On July 9, 2018,

[J-32-2021] - 4

the Commonwealth Court issued an order staying the trial court proceedings pending

appeal and directing the trial court to issue an opinion in support of its June 4, 2018 and

July 3, 2018 orders denying summary judgment and reconsideration. Cmwlth. Ct. Order,

7/9/18. Thereafter, on August 28, 2018, Brooks discontinued her case against Ewing

Cole, and the parties agreed that the cross-claims against Ewing Cole, asserted by the

City and the Family Court, were outstanding and unaffected by the partial discontinuance.

Consent & Stipulation to Discontinue per Rule 229(b)(1), 8/28/18.

Revising its position on appealability, the trial court stated in its November 5, 2018

Pa.R.A.P. 1925(a) opinion that it now considered its July 3, 2018 order denying summary

judgment immediately appealable pursuant to Pa.R.A.P. 1312(a)(2). Trial Ct. Op.,

11/5/18, at 2 n.2. The trial court explained that it had previously denied the Family Court’s

request to certify the matter for an interlocutory appeal because at that time Brooks had

outstanding claims against Ewing Cole and the City. Id. However, because Brooks had

subsequently discontinued her claims against Ewing Cole, and because the City’s

defense was that it was immune as a landlord out of possession, the trial court opined

that the Family Court’s sovereign immunity defense “‘involves a controlling question of

law as to which there is a substantial ground for difference of opinion and that an

immediate appeal from the Order may materially advance the ultimate termination of the

matter.’” Id. (quoting Pa.R.A.P. 1312(a)(2)). Based on this analysis, the trial court

concluded “review now is legally appropriate, [and] it is no longer necessary at this stage

to address the appealability of this [c]ourt’s [o]rder denying summary judgment.” Id. The

trial court did not opine on the issue of whether its order denying summary judgment was

a collateral order pursuant to Pa.R.A.P. 313.

On the merits of the Family Court’s sovereign immunity defense, the trial court

stated it denied summary judgment because it concluded the General Assembly intended

[J-32-2021] - 5

to include Commonwealth courts in the definition of “Commonwealth party” for purposes

of the Sovereign Immunity Act. Id. at 8-9. The trial court explained that the Act waived

governmental immunity in nine specific areas in actions against “Commonwealth parties,”

and the Act defined a “Commonwealth party” as “‘[a] Commonwealth agency and any

employee thereof, but only with respect to an act within the scope of his office or

employment.’” Id. at 3 (quoting 42 Pa.C.S. § 8501). The trial court noted that the Act

does not specify that immunity is waived for certain branches of government but not

others. Id. The trial court disagreed with the Russo Court’s holding that Commonwealth

courts are excluded from the Act because the Judicial Code’s definition of

“Commonwealth agency” does not include courts. Id. at 6 (citing 42 Pa.C.S. § 102;

Russo, 125 A.3d at 118-19). Instead, the trial court reasoned that “[i]t would be surprising

for the General Assembly to create a special exemption allowing for the judicial branch of

government to enjoy a higher level of immunity than the General Assembly provided to

itself and the executive branch without any explicit language or legislative history of such

intention.” Id. at 8. Accordingly, the trial court concluded a trial was necessary on the

issue of whether the glass wall was a dangerous condition under the real estate exception

to sovereign immunity. Id. at 9.

The Commonwealth Court consolidated the Family Court’s notice of appeal of the

June 4, 2018 trial court order and its notice of appeal of the July 3, 2018 order. In a

unanimous unpublished memorandum decision, a panel of the Commonwealth Court

struck the Family Court’s first notice of appeal, explaining it was inoperative following the

trial court’s reconsideration of its June 4, 2018 order, and further quashed the Family

Court’s appeal of the July 3, 2018 order because it was not a collateral order. Brooks v.

Ewing Cole, Nos. 911 & 912 C.D. 2018, 2020 WL 3866647, at *1, n.1 (Pa. Cmwlth. Jul.

9, 2020). The Commonwealth Court observed that generally orders denying summary

[J-32-2021] - 6

judgment are not appealable as of right because they are not final orders. Id. at *4.

Further, the court noted that although the trial court’s opinion contained the operative

language from Pa.R.A.P. 1312(a)(2), it had not amended its July 3, 2018 order to allow

the Family Court to file a petition for permission to file an interlocutory appeal pursuant to

Rule 1311. Id. at *2, n.5. Therefore, the Commonwealth Court proceeded to analyze

whether the Family Court properly asserted a right to appeal under the collateral order

doctrine set forth in Pa.R.A.P. 313, which gives appellate courts jurisdiction to consider

collateral orders prior to final judgment. See Pa.R.A.P. 313; Commonwealth v. Kennedy,

876 A.2d 939, 943 (Pa. 2005). Rule 313 provides:

Rule 313. Collateral Orders

(a) General rule. An appeal may be taken as of right from a

collateral order of a trial court or other government unit.

(b) Definition. A collateral order is an order separable from

and collateral to the main cause of action where the right

involved is too important to be denied review and the question

presented is such that if review is postponed until final

judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313.

The Commonwealth Court recognized that Rule 313 contains three criteria that an

order must satisfy to meet the definition of a collateral order: separability, importance, and

irreparable loss. Brooks, 2020 WL 3866647, at *4. The court found the July 3, 2018

order met the first two of those requirements. Id. at *5-7. To decide whether an order is

separable and collateral to the main cause of action, the Commonwealth Court observed

the question is whether review of the order involves the merits of the underlying cause of

action. Id. at *5. Further, it recognized that this Court “‘has adopted a practical analysis

recognizing that some potential interrelationship between merits issues and the question

sought to be raised in the interlocutory appeal is tolerable.’” Id. (quoting Pridgen v. Parker

[J-32-2021] - 7

Hannifin Corp., 905 A.2d 422, 433 (Pa. 2006)). Here, the order was separable from the

underlying negligence action, according to the Commonwealth Court, because the issue

of whether the Family Court was a “Commonwealth party” under the Sovereign Immunity

Act is able to be resolved independent of a consideration of the negligence claim. Id.

Thus, the sovereign immunity issue was “separable and distinct” from the negligence

action, in the Commonwealth Court’s view, because it “centers on the terms of the

Sovereign Immunity Act and does not necessitate a factual inquiry into the extent of the

Family Court’s liability.” Id. at *6.

Next, the Commonwealth Court noted the inquiry into the importance of the right

involves weighing the interests that immediate appellate review protects against the

interest of efficiency in avoiding piecemeal litigation represented by the final judgment

rule. Id. An important interest under Rule 313 will typically “‘involve rights deeply rooted

in public policy going beyond the particular litigation at hand.’” Id. (quoting Geniviva v.

Frisk, 725 A.2d 1209, 1214 (Pa. 1999)). Applying this standard, the Commonwealth Court

concluded the right involved, sovereign immunity, “implicates public policy concerns that

extend beyond the parties to the instant litigation, as its resolution will dictate whether a

member of the general public may maintain a negligence action against the courts.” Id.

at *7.

Although it found the order satisfied the first two prongs of the collateral order

doctrine, the Commonwealth Court concluded the order did not meet the third prong

because the Family Court’s claim to sovereign immunity would not be irreparably lost if

appellate review was postponed until final judgment. Id. To define irreparable loss, the

Commonwealth Court explained its precedent dictates “‘a claim will be ‘irreparably lost’ if

review is postponed only if it can be shown the issue involved will not be able to be raised

on appeal, if appeal is delayed.’” Id. (quoting Brophy v. Phila. Gas Works & Phila.

[J-32-2021] - 8

Facilities Mgmt. Corp., 921 A.2d 80, 87 (Pa. Cmwlth. 2007)). Because the Family Court

retained the ability to seek appellate review of its claim after final judgment, the

Commonwealth Court held its sovereign immunity defense would not be irreparably lost.

Id. The Commonwealth Court bolstered its conclusion by observing that this Court’s

precedent requires it to narrowly construe the collateral order doctrine to yield to the final

order doctrine. Id. at *8 (relying on Shearer v. Hafer, 177 A.3d 850, 858 (Pa. 2018)).

Accordingly, the Commonwealth Court concluded it lacked jurisdiction to address the

Family Court’s appeal because the July 3, 2018 order was not a collateral order

appealable as of right under Rule 313, and it consequently quashed the appeal. Id.

II. ISSUE AND STANDARD OF REVIEW

This Court granted the Family Court’s petition for allowance of appeal to address

the following issue:

Should this Court review the Commonwealth Court's

conclusion that an order denying a summary judgment motion

based on sovereign immunity does not satisfy the collateral

order doctrine of Pennsylvania Rules of Appellate Procedure

313, which conflicts with statutory law and case law that this

immunity is “immunity from suit” and presents a matter of first

impression for this Court on a substantial legal and policy

issue involving absolute immunities?

Brooks v. Ewing Cole, Inc., 243 A.3d 970 (Pa. 2021) (per curiam).

The appealability of an order under the Pa.R.A.P. 313 collateral order doctrine

presents a question of law, over which our standard of review is de novo and our scope

of review is plenary. Shearer, 177 A.3d at 855; see also Pa. Mfrs. Ass’n Ins. Co. v.

Johnson Matthey, Inc., 188 A.3d 396, 398 (Pa. 2018) (recognizing de novo standard of

review and plenary scope of review over jurisdictional issue).

[J-32-2021] - 9

III. SOVEREIGN IMMUNITY AND THE COLLATERAL ORDER DOCTRINE

A. PARTIES’ ARGUMENTS

The Family Court argues that this Court should reverse the Commonwealth Court

because an order denying summary judgment on the issue of sovereign immunity is a

collateral order. The Family Court highlights that sovereign immunity is an absolute

immunity, in that it is a complete defense to a cause of action even if a plaintiff can

otherwise prove the elements of the underlying cause of action. Family Court’s Brief at

10, 13 (citing Stackhouse v. Pa. State Police, 892 A.2d 54, 62 (Pa. Cmwlth. 2006)

(recognizing sovereign immunity is absolute)). Further, the Family Court emphasizes the

statutory scope of sovereign immunity protects government officials and entities “‘from

suit,’” not merely from judgment or damages. Id. at 9-10 (quoting 1 Pa.C.S. § 2310).

Due to the nature of the sovereign immunity defense, the Family Court contends

that a decision denying the defense to a governmental entity qualifies as a collateral order

under Rule 313’s three criteria. First, the Family Court agrees with the Commonwealth

Court that the immunity issue is separable from and collateral to the main cause of action

because the defense applies regardless of whether the plaintiff establishes the elements

of negligence. Id. at 12-13. Second, the Family Court also concurs with the

Commonwealth Court that the sovereign immunity issue is too important to be denied

review because it applies to all branches of government and dictates the circumstances

in which government entities must defend their actions, which also implicates the

expenditure of the public fisc. Id. at 13-14.

Turning to the third prong, which is at the core of this appeal, the Family Court

criticizes the Commonwealth Court for construing the irreparable loss requirement too

narrowly. Id. at 14. The protection from suit that sovereign immunity confers, according

to the Family Court, “is irreparably lost if public officials and entities have to engage in

[J-32-2021] - 10

litigation, including discovery and trial” before they can obtain appellate review of an

adverse decision on the question of sovereign immunity. Id. at 11. Because the scope

of the immunity is from all aspects of a lawsuit, the Family Court argues the

Commonwealth Court erred in concluding the issue of sovereign immunity is not

irreparably lost because it can be raised on appeal following final judgment. Id. at 15. In

contrast to the Commonwealth Court’s framing of the issue, the Family Court asserts

“[t]he proper question is not whether the defense can be raised after trial, however. It is

whether absolute sovereign immunity’s protections – the protection of immunity from

suit – are irreparably lost if the Commonwealth and its officials are forced to go through

discovery, trial, and judgment.” Id. Explaining that the purpose of sovereign immunity is

to protect “‘government policymaking prerogatives’” and “‘the public fisc,’” the Family

Court contends the Commonwealth Court’s holding forces governmental entities and

officials to engage in discovery, prepare for trial, and try a case, which requires the

government to expend the public fisc even though it may ultimately be immune. Id. at 15-

16 (quoting Sci. Games Int’l, Inc. v. Commonwealth, 66 A.3d 740, 755 (Pa. 2013)). Thus,

the Family Court’s position is that the protections of sovereign immunity are irreparably

lost when a governmental entity is precluded from invoking the defense and cannot obtain

appellate review until after final judgment. Id. at 15.

In support of its position, the Family Court analogizes this case to Pridgen, in which

this Court permitted an interlocutory appeal as of right under Rule 313 because the

defendant would suffer an irreparable loss if it had to incur a “‘substantial cost’” in

defending complex litigation when it asserted an immunity defense under the federal

General Aviation Revitalization Act of 1994. Id. at 16 (quoting Pridgen, 905 A.2d at 433).

The Family Court argues the rationale in Pridgen applies to its appeal because forcing it

to defend this lawsuit without immediate appellate review of the denial of its sovereign

[J-32-2021] - 11

immunity defense would both irreparably injure the public fisc and additionally expose

governmental entities to defending their actions in litigation and undermine the public

interest in the unfettered discharge of governmental obligations.1 Id. at 17. Similarly, the

Family Court notes that in Yorty v. PJM Interconnection, L.L.C., 79 A.3d 655 (Pa. Super.

2013), the Superior Court, relying on Pridgen, held that an immunity defense under the

Federal Energy Regulatory Commission met Rule 313 because the defendant would

undergo an irreparable loss in defending the negligence action. Id. (discussing Yorty, 79

A.3d at 662). Further, the Family Court points out that the Superior Court has held that a

statute of repose defense represents “‘immunity from suit, not just immunity from liability,’”

and the costs in defending the litigation would be irreparably lost if appellate review was

not permitted before final judgment.2 Id. at 17-18 (quoting Osborne v. Lewis, 59 A.3d

1109, 1111 (Pa. Super. 2012)). Based on this precedent, the Family Court maintains a

sovereign immunity defense “is vitiated once an official or entity has to defend their

actions in a suit.” Id. at 17.

The Family Court questions the Commonwealth Court’s omission of Pridgen and

Yorty from its discussion of the irreparable loss requirement, despite the court’s reliance

1 Amici Curiae, County Commissioners Association of Pennsylvania, the Pennsylvania

State Association of Township Supervisors, and the Pennsylvania Municipal League,

agree that Pridgen controls the outcome of this case because it concluded that the cost

of defending a lawsuit at trial constitutes an irreparable loss. Amici Brief at 11 (discussing

Pridgen, 905 A.3d at 433).

2 Amicus Curiae, the General Assembly of the Commonwealth of Pennsylvania, faults the

Commonwealth Court for failing to recognize that absolute immunity is a protection from

suit, not only from liability. Amicus Brief at 26. The General Assembly points out that this

Court, in the context of the absolute immunity of legislative speech or debate, has

explained that immunity from suit is the protection from defending a case at trial, which

would be irreparably lost if review is postponed until final judgment. Id. (relying on

Consumer Party of Pa. v. Commonwealth, 507 A.2d 323, 331 (Pa. 1986), abrogated on

other grounds, Pennsylvanians Against Gambling Expansion Fund, Inc. v.

Commonwealth, 877 A.2d 383 (Pa. 2005)).

[J-32-2021] - 12

on those cases in discussing the first two prongs of Rule 313. Id. at 18. The Family Court

also notes the Commonwealth Court did not discuss its previous cases holding that the

“‘purpose of absolute immunity is to foreclose the possibility of suit.’” Id. at 19 (quoting

Osiris Enters. v. Borough of Whitehall, 877 A.2d 560, 566 (Pa. Cmwlth. 2005) (discussing

high public official immunity)); see also id. (citing Guarrasi v. Scott, 25 A.3d 394, 405 n.11

(Pa. Cmwlth. 2011) (stating “judicial immunity is not only immunity from damages, but

also immunity from suit”); Stackhouse, 892 A.2d at 62 (explaining “[t]he purpose of

absolute sovereign immunity [is] to insulate state agencies and employees not only from

judgments but also from being required to expend the time and funds necessary to defend

suits”)). Further, the Family Court criticizes the cases the Commonwealth Court included

in its analysis of irreparable loss as distinguishable. Id. at 19. For instance, the Family

Court contends that in Sylvan Heights Realty Partners, L.L.C. v. LaGrotta, 940 A.2d 585

(Pa. Cmwlth. 2008), the court addressed the irreparable loss requirement in dicta only,

after holding the issue of legislative immunity was not separate and collateral based on

the facts of the case. Family Court’s Brief at 19-20 (citing Sylvan Heights, 940 A.2d at

588-89, and noting this Court has held that legislative immunity includes immunity from

defending litigation, see Consumer Party of Pa. v. Commonwealth, 507 A.2d 323, 331

(Pa. 1986), abrogated on other grounds, Pennsylvanians Against Gambling Expansion

Fund, Inc. v. Commonwealth, 877 A.2d 383 (Pa. 2005)). The Family Court distinguishes

the other cases upon which the Commonwealth Court relied because those cases did not

involve Rule 313’s irreparable loss requirement. Id. at 20-21 (citing Aubrey v. Precision

Airmotive LLC, 7 A.3d 256, 262 (Pa. Super. 2010) (omitting discussion of irreparable

loss); Bollinger v. Obrecht, 552 A.2d 359, 363 n.5 (Pa. Cmwlth. 1989) (declining to

address irreparable loss); Gwiszcz v. City of Phila., 550 A.2d 880, 882 (Pa. Cmwlth. 1988)

(holding the issue was not separable and not discussing irreparable loss)).

[J-32-2021] - 13

In additional support of its position, the Family Court discusses a number of United

States Supreme Court cases stating the federal rule is to permit immediate appeal of an

adverse decision on immunity from suit. Id. at 21-24. As the Family Court notes, the rule

in federal court is that “‘the denial of a substantial claim of absolute immunity is an order

appealable before final judgment, for the essence of absolute immunity is its possessor’s

entitlement not to have to answer for his conduct in a civil damages action.’” Id. at 22

(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (holding the denial of a claim of

qualified immunity is immediately appealable)); see also id. at 21 (citing Pearson v.

Callahan, 555 U.S. 223, 231-32 (2009) (stating a qualified immunity defense is “effectively

lost if a case is erroneously permitted to go to trial”)); id. at 22 (citing Plumhoff v. Rickard,

572 U.S. 765, 772 (2014) (holding that qualified immunity “cannot be effectively reviewed

on appeal from a final judgment because by that time the immunity from standing trial will

have been irreparably lost”)). The Family Court indicates that the Supreme Court has

stated the purpose of absolute immunity is to alleviate public officials’ “‘fear of

consequences,’” in the form of not only monetary damages but also “‘the general costs of

subjecting officials to the risks of trial – distraction of officials from their governmental

duties, inhibition of discretionary action, and deterrence of able people from public

service.’” Id. at 21 (quoting Mitchell, 472 U.S. at 526). The Family Court finds the federal

court model persuasive because the note to Rule 313 indicates that it is a “codification of

existing case law” and cites to Pugar v. Greco, 394 A.2d 542 (Pa. 1978), in which this

Court relied on federal case law concerning appealable interlocutory orders. 3 Id. at 23-

3 The Governor and Attorney General of Pennsylvania, in a joint amicus curiae brief,

agree that Rule 313 was a codification of the United States Supreme Court’s collateral

order rule, and they contend we should follow the Supreme Court’s jurisprudence holding

that a government defendant claiming immunity is entitled to an immediate appeal of a

pretrial decision denying its immunity defense. Joint Amicus Brief at 8 (citing Ashcroft v.

Iqbal, 556 U.S. 662, 672 (2009)). They further argue that sovereign immunity’s protection

[J-32-2021] - 14

24 (noting the Pugar Court cited Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,

546 (1949)). Lastly, the Family Court notes that many other states have concluded that

immunity from suit is irreparably lost if the issue is not immediately appealable. Id. at 24

n.11 (collecting cases).

In contrast, Brooks argues that this Court should affirm the Commonwealth

Court’s decision that the order denying summary judgment was not a collateral order.

Brooks’s Brief at 17. Brooks contends that the Family Court’s delay in seeking resolution

of its sovereign immunity defense until summary judgment, when it could have filed

preliminary objections or a motion for judgment on the pleadings, shows that the immunity

defense is not a “‘substantial legal and policy issue’” warranting a departure from the final

judgment rule. Id. at 6-7 (quoting Brooks, 243 A.3d at 970 (granting allocatur), and citing

Renner v. Court of Common Pleas, 234 A.3d 411, 417 (Pa. 2020) (reviewing an order

sustaining preliminary objections on the basis of sovereign immunity and separation of

powers but resolving the case based on separation of powers); Sutton v. Bickell, 220 A.3d

1027, 1035 (affirming order sustaining preliminary objections on sovereign immunity

grounds); Cagey v. Commonwealth, 179 A.3d 458, 468 (Pa. 2018) (reversing order

granting motion for judgment on the pleadings on sovereign immunity grounds)).

Additionally, in assessing the importance of the right the Family Court asserts,

Brooks contends that her interest in having her case resolved expeditiously instead of

through piecemeal litigation surpasses the Family Court’s interests. Id. at 9. She argues

that the Family Court will not lose anything because the issue of sovereign immunity can

be reexamined after the jury renders its verdict, and if the jury returns a defense verdict,

the issue is moot. Id. Recognizing that sovereign immunity is absolute immunity, Brooks

from litigation is lost if the government cannot immediately appeal an adverse decision

on its sovereign immunity defense. Id. at 10.

[J-32-2021] - 15

asserts that the Commonwealth Court’s decision to deny the Family Court’s interlocutory

appeal is not fatal to its claim of sovereign immunity. Id. at 12. Brooks maintains that this

Court has narrowly construed the collateral order doctrine and posits that we “can expect

the floodgate of sovereign immunity appeals to open wide” if we deem that sovereign

immunity satisfies Rule 313. Id. at 9-10 (discussing Rae v. Pa. Funeral Dirs. Ass’n, 977

A.2d 1121, 1126 (Pa. 2009) (explaining that we narrowly construe the collateral order

doctrine because “[p]arties may seek allowance of appeal from an interlocutory order by

permission, and we have concluded that discretionary process would be undermined by

an overly permissive interpretation of Rule 313’s limited grant to collateral appeals as of

right.”)).

Brooks claims the Family Court’s interest in obtaining an immediate appeal is

solely pecuniary but notes that the Family Court did not incur any expenses defending

this lawsuit because its trial attorney acted as counsel for both the Family Court and the

Co-defendant City. Id. at 13. Further, Brooks dismisses the concerns that sovereign

immunity protects public officials because she did not sue any public officials in this case.

Id. For these reasons, Brooks contends that this case is an inappropriate vehicle to hold

that sovereign immunity satisfies the collateral order doctrine. Id. at 15. Because

sovereign immunity is an absolute defense that is not waivable, Brooks argues “[a]n

immunity defense does not, in and of itself, entitle a litigant to appellate review of an

interlocutory order.” Id. at 15-16 (citing In re Upset Sale of Props., 560 A.2d 1388, 1389

(Pa. 1989)).

[J-32-2021] - 16

B. ANALYSIS

We granted review to determine whether an order denying summary judgment

based on a sovereign immunity defense is a collateral order, appealable as of right under

Rule 313, which, as previously noted, provides:

Rule 313. Collateral Orders

(a) General rule. An appeal may be taken as of right from a

collateral order of a trial court or other government unit.

(b) Definition. A collateral order is an order separable from

and collateral to the main cause of action where the right

involved is too important to be denied review and the question

presented is such that if review is postponed until final

judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313.

Rule 313 codified the three-part collateral order doctrine first formulated by the

United States Supreme Court in Cohen, as an exception to the final order rule in cases

where lower courts’ decisions do not terminate the case, yet “finally determine claims of

right separable from, and collateral to, rights asserted in the action, too important to be

denied review and too independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated.” Cohen, 337 U.S. at 546;

see also Shearer, 177 A.3d at 855-58 (tracing the evolution of the collateral order doctrine

in Pennsylvania). Pennsylvania followed the reasoning of Cohen in Bell v. Beneficial

Consumer Discount Co., 348 A.2d 734 (Pa. 1975), which recognized that “a finding of

finality must be the result of a practical rather than a technical construction” and concluded

that “orders denying class action status possess sufficiently practical aspects of finality to

make them appealable.” Bell, 348 A.2d 735-36. This Court followed its decision in Bell

by expressly adopting the three-part Cohen formulation of the collateral order doctrine:

an order is considered final and appealable if (1) it is

separable from and collateral to the main cause of action; (2)

[J-32-2021] - 17

the right involved is too important to be denied review; and (3)

the question presented is such that if review is postponed until

final judgment in the case, the claimed right will be irreparably

lost.

Pugar, 394 A.2d at 545. In 1992, the Pugar Court’s articulation of the collateral order

doctrine was codified in Rule 313. Compare id., with Pa.R.A.P. 313. “[W]here an order

satisfies Rule 313's three-pronged test, an appellate court may exercise jurisdiction even

though the order is not final. If the test is not met, however, and in the absence of another

exception to the final order rule, there is no jurisdiction to consider an appeal of such an

order.” Shearer, 177 A.3d at 857. Due to the jurisdictional nature of the collateral order

doctrine, this Court has concluded it may raise it sua sponte. Dougherty v. Heller, 138

A.3d 611, 627 n.9 (Pa. 2016) (per curiam).

Because Pennsylvania adopted the collateral order doctrine from the United States

Supreme Court, we continue to look to that Court’s decisions for guidance in defining the

contours of Rule 313. Rae, 977 A.2d at 1128. However, this Court has not remained in

lockstep with the United States Supreme Court’s recently imposed limitations on the

collateral order doctrine in attorney-client privilege cases grounded in the High Court’s

determination that privilege claims are not irreparably lost as they are reviewable after a

final judgment. Shearer, 177 A.3d at 857 (describing this Court’s departure from Mohawk

Indus., Inc. v. Carpenter, 558 U.S. 100, 108-09 (2009)). Instead, we have explained that

our jurisprudence recognizes a privilege would be irreparably lost upon the disclosure of

allegedly privileged material, and thus, a privilege claim is an immediately appealable

collateral order. Id. (discussing Commonwealth v. Harris, 32 A.3d 243, 249 (Pa. 2011)

(“[o]nce putatively privileged material is in the open, the bell has been rung, and cannot

be unrung by a later appeal.”). “In sum, then, while our Court has diverged from the

federal approach in some regards, we nonetheless construe the collateral order doctrine

narrowly, and insist that each one of its three prongs be ‘clearly present’ before collateral

[J-32-2021] - 18

appellate review is allowed.” Id. at 858 (recognizing a narrow construction of the collateral

order rule reinforces the final order doctrine and preserves interlocutory appeals by

permission under Pa.R.A.P. 312).

Additionally, as this appeal requires us to determine whether a decision denying

the government’s sovereign immunity defense meets the collateral order doctrine, we

next examine the general principles of sovereign immunity. Sovereign immunity is

enshrined in Article 1, section 11 of the Pennsylvania Constitution, which provides, in

relevant part, that “[s]uits may be brought against the Commonwealth in such manner, in

such courts and in such cases as the Legislature may by law direct.” PA. CONST. art. 1,

§ 11. The General Assembly has declared its intent “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.” 1 Pa.C.S. § 2310. The

Sovereign Immunity Act, 42 Pa.C.S. §§ 8501-8564, contains the legislative waiver of the

sovereign immunity of the Commonwealth, local governments, and public officials in

certain enumerated circumstances. 42 Pa.C.S. § 8522 (listing ten exceptions to

Commonwealth parties’ sovereign immunity); 42 Pa.C.S. § 8542 (specifying nine

exceptions to local agencies’ immunity); 42 Pa.C.S. § 8545-46 (defining the scope of

official immunity).

This Court has characterized the constitutional protection of sovereign immunity

as “fundamental.”4 Frazier v. Workers’ Comp. Appeal Bd. (Bayada Nurses, Inc.), 52 A.3d

241, 247 (Pa. 2012); see also Bell Tel. Co. of Pa. v. Lewis, 169 A. 571, 571 (stating “[t]hat

4 In Mayle v. Pennsylvania Department of Highways, 388 A.2d 709 (Pa. 1978), this Court

abolished sovereign immunity. However, the General Assembly promptly enacted 1

Pa.C.S. § 2310, which “unequivocally reaffirmed the absoluteness of sovereign and

official immunity under Article 1, Section 11, except as provided by statute.” Bayada

Nurses, 52 A.3d at 247 n.9.

[J-32-2021] - 19

the state may not be sued without its consent is fundamental.”). Sovereign immunity is

an absolute defense that is not waivable. Upset Sale of Props., 560 A.2d at 1389;

McShea v. City of Phila., 995 A.2d 334, 341 (Pa. 2010) (“Tort immunity is a non-waivable,

absolute defense.”). Further, this Court has held that courts must strictly construe the

legislatively specified exceptions to sovereign immunity. Snyder v. Harmon, 562 A.2d

307, 311 (Pa. 1989); see also Kiley v. City of Phila., 645 A.2d 184, 185-86 (Pa. 1994).

“The constitutionally-grounded, statutory doctrine of sovereign immunity obviously serves

to protect government policymaking prerogatives and the public fisc.” Sci. Games Int’l,

66 A.3d at 755; see also McShea, 995 A.2d at 341 (stating the “clear intent” is “to insulate

the government from exposure to tort liability”).

Against this background, we must decide whether an adverse decision on the

government’s assertion of sovereign immunity constitutes a collateral order, immediately

appealable as of right under Rule 313. To do so, we must determine whether the order

denying the Family Court’s motion for summary judgment on its sovereign immunity

defense satisfies each prong of Rule 313. See Shearer, 177 A.3d at 855 (explaining that

this Court independently evaluates the collateral order doctrine due to its jurisdictional

nature). As set forth above, an order is collateral under Rule 313 if: (1) the order is

separable from the underlying cause of action; (2) it involves a right too important to be

denied review; and (3) it presents an issue that will be irreparably lost if appellate review

is postponed until after final judgment. Pa.R.A.P. 313(b).

Regarding the first prong, “an order is separable from the main cause of action if

‘it can be resolved without an analysis of the merits of the underlying dispute’ and if it is

‘entirely distinct from the underlying issue in the case.’” Shearer, 177 A.3d at 858 (quoting

Commonwealth v. Blystone, 119 A.3d 306, 312 (Pa. 2015)). “[T]his Court has adopted a

practical [separability] analysis recognizing that some potential interrelationship between

[J-32-2021] - 20

merits issues and the question sought to be raised in the interlocutory appeal is tolerable.”

Pridgen, 905 A.2d at 433. We agree with the Commonwealth Court that in this case, the

trial court order denying summary judgment is separable from Brooks’s underlying

negligence action. The issue that the Family Court sought to raise on appeal was whether

it was a “Commonwealth party” subject to the Sovereign Immunity Act’s waiver of

immunity. Brooks, 2020 WL 386647, at *6. This issue is a purely legal question that can

be resolved by focusing on the Act and does not necessitate an examination of the merits

of Brooks’s negligence claim. Accord id.; Trial Ct. Op. at 8 (stating “[t]he only dispute is

a question of law”). It does not require a court to find any facts regarding the Family

Court’s alleged negligence nor does it require a court to determine the scope of the Family

Court’s potential liability. In fact, sovereign immunity would provide the Family Court with

an absolute defense to Brooks’s claims, regardless of whether Brooks is able to prove

negligence. Further, neither Brooks nor the Family Court presently dispute this aspect of

the Commonwealth Court’s decision. Accordingly, we conclude the order meets Rule

313’s separability requirement.

Turning to the second prong, this Court has examined the importance of the right

involved by weighing the interests that immediate appellate review would protect against

the final judgment rule’s interests in efficiency through avoiding piecemeal litigation. Ben

v. Schwartz, 729 A.2d 547, 552 (Pa. 1999); see also Shearer, 177 A.3d at 858-59;

Blystone, 119 A.3d at 312. Further, we require that “the order involves rights deeply

rooted in public policy going beyond the particular litigation at hand” because “it is not

sufficient that the issue is important to the particular parties involved.” Commonwealth v.

Williams, 86 A.3d 771, 782 (Pa. 2014). We agree with the Commonwealth Court that the

right to a sovereign immunity defense is too important to evade review before final

judgment. As noted above, the protection of sovereign immunity is deeply rooted in public

[J-32-2021] - 21

policy, as it is both secured by the Constitution and has been preserved by the legislature.

See PA. CONST. art. 1, § 11; 1 Pa.C.S. § 2310. Additionally, the implications of the Family

Court’s ability to invoke sovereign immunity are wide-ranging, extending beyond this

particular case. The protection of sovereign immunity extends to each of our three

branches of government. See General Assembly’s Amicus Brief at 9 (explaining that the

issue in this case impacts all types of absolute immunity). Moreover, the resolution of the

scope of sovereign immunity also has implications for other individuals’ ability to sue the

Commonwealth’s courts by invoking an exception to immunity in Section 8522(b) of the

Sovereign Immunity Act. These deeply rooted and far-reaching implications outweigh the

final judgment rule’s efficiency interests. Therefore, we conclude the right involved meets

Rule 313’s importance requirement.

Regarding Rule 313’s third prong, we must inquire into whether the Family Court’s

claim of sovereign immunity will be irreparably lost if appellate review is postponed until

final judgment. Pa.R.A.P. 313; see also Ben, 729 A.2d at 552. As provided by both the

Constitution and statute, sovereign immunity is the protection from suit. PA. CONST. art.

1, § 11 (declaring “suits” against the Commonwealth must be legislatively authorized); 1

Pa.C.S. § 2310 (stating that the Commonwealth and its officials “remain immune from

suit” unless waived). Thus, the protection is from a lawsuit itself not simply a mere shield

from judgment or liability, as Pennsylvania courts have recognized. See McShea, 995

A.2d at 341 (stating sovereign immunity “insulate[s] the government from exposure to tort

liability”); Montgomery v. City of Phila., 140 A.2d 100, 103 (Pa. 1958) (“absolute immunity

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 a jury.”); Commonwealth

v. Berks Cty., 72 A.2d 129, 130 (Pa. 1950) (recognizing “a State may not be sued without

its consent”); Stackhouse, 892 A.2d at 62 (explaining sovereign immunity’s purpose is to

[J-32-2021] - 22

protect state agencies and employees “not only from judgments but also from being

required to expend the time and funds necessary to defend suits”); accord Mitchell, 472

U.S. at 526 (stating qualified public official immunity “is an immunity from suit rather than

a mere defense to liability”) (emphasis in original).

Because sovereign immunity protects government entities from a lawsuit itself, we

conclude that a sovereign immunity defense is irreparably lost if appellate review of an

adverse decision on sovereign immunity is postponed until after final judgment.

Subjecting a governmental entity, which claims it is immune, to the legal process

undermines the purposes of sovereign immunity. See Sci. Games Int’l, 66 A.3d at 755;

Mullin v. Commonwealth, Dep’t of Transp., 870 A.2d 773, 779 (Pa. 2005) (stating the

purpose of immunity is to protect government revenues from “unnecessary depletion”);

Montgomery, 140 A.2d at 104 (“the purpose of absolute immunity is to foreclose the

possibility of suit”). Engaging in litigation requires a governmental entity to expend

taxpayer dollars on its defense and to divert employees’ time from conducting government

business. Further, forcing governmental entities to litigate claims from which they may

be immune has a chilling effect on government policymaking. See Sci. Games Int’l, 66

A.3d at 755; see also Dorsey v. Redman, 96 A.3d 332, 343, 345 (Pa. 2014) (stating “[t]he

underlying purpose [of official immunity] is to allow those in governmental policy making

positions to have the ability to act without fear of litigation and unlimited damages” and

concluding official immunity is immunity from suit not merely liability). These protections

of sovereign immunity are irreparably lost if a governmental entity must litigate a case to

final judgment before it can obtain appellate review of an adverse ruling on its invocation

of sovereign immunity.

The conclusion that the protections of immunity are irreparably lost when a party

goes to trial is supported by this Court’s decision in Pridgen. In Pridgen, this Court

[J-32-2021] - 23

concluded that an order denying summary judgment based on the defendant’s statute of

repose defense pursuant to the federal General Aviation Revitalization Act of 1994 was

a collateral order appealable as of right under Rule 313. Pridgen, 905 A.2d at 424, 434.

After finding the order met the first two prongs of Rule 313, the Pridgen Court concluded

it also satisfied the irreparable loss requirement because “the substantial cost that

Appellants will incur in defending this complex litigation at a trial on the merits comprises

a sufficient loss to support allowing interlocutory appellate review as of right, in light of the

clear federal policy to contain such costs in the public interest.” Id. at 433. This is

consistent with our conclusion in this case that the depletion of the public fisc and

employee resources represent an irreparable loss, particularly when the policies

underlying sovereign immunity are intended to preserve the government’s revenue, time,

and policymaking prerogatives.

Further, our decision is consistent with United States Supreme Court jurisprudence

holding that orders denying immunity defenses are immediately appealable collateral

orders. The Supreme Court has concluded that orders denying immunity are reviewable

collateral orders because “[t]he entitlement is an immunity from suit rather than a mere

defense to liability; and like an absolute immunity, it is effectively lost if a case is

erroneously permitted to go to trial.” Mitchell, 472 U.S. at 526 (emphasis in original)

(discussing qualified public official immunity). The Court has explained that “such orders

conclusively determine whether the defendant is entitled to immunity from suit; this

immunity issue is both important and completely separate from the merits of the action,

and this question could not be effectively reviewed on appeal from a final judgment

because by that time the immunity from standing trial will have been irretrievably lost.”

Plumhoff, 572 U.S. at 772 (concluding qualified immunity generally falls within the

collateral order doctrine). It has been the Supreme Court’s consistent view that “immunity

[J-32-2021] - 24

ordinarily should be decided by the court long before trial.” Hunter v. Bryant, 502 U.S.

224, 228 (1991) (discussing qualified immunity); see also, e.g., Pearson, 555 U.S. at 231-

32 (declaring that a qualified immunity defense is “effectively lost if a case is erroneously

permitted to go to trial.”); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139, 144 (1993) (holding “[s]tates and state entities that claim to be ‘arms of the

State’ may take advantage of the collateral order doctrine to appeal a district court order

denying a claim of Eleventh Amendment immunity.”); Nixon v. Fitzgerald, 457 U.S. 731,

742 (1982) (stating “orders denying claims of absolute immunity are appealable under the

Cohen criteria” in analyzing absolute presidential immunity). The Third Circuit Court of

Appeals has followed this precedent and held that “the denial of a defense of sovereign

immunity is immediately appealable under the collateral order doctrine.” Bell Atl.-Pa., Inc.

v. Pa. Pub. Util. Comm’n, 273 F.3d 337, 343 (3d Cir. 2001); see also Fowler-Nash v.

Democratic Caucus of Pa. House of Representatives, 469 F.3d 328, 330 n.1 (3d Cir.

2006) (asserting its jurisdiction to review an order denying absolute immunity pursuant to

the collateral order doctrine); In re Montgomery Cty., 215 F.3d 367, 373 (3d Cir. 2000)

(holding it had interlocutory jurisdiction to review an implied denial of qualified immunity

claims).

Further, we are not persuaded by Brooks’s arguments that the order denying

summary judgment does not satisfy the collateral order doctrine. Regarding Brooks’s

attacks on the Family Court’s litigation strategy of waiting until summary judgment to seek

to have the suit dismissed, we note that the case-specific litigation strategy does not alter

the legal issue of whether an adverse decision on sovereign immunity, at any stage of

litigation, is immediately appealable under Rule 313.5 Likewise, we reject Brooks’s

5 Pennsylvania Rule of Civil Procedure 1030 dictates that “immunity from suit” must be

raised as an affirmative defense and pled in a new matter. Pa.R.C.P. 1030(a).

Nonetheless, some intermediate appellate court decisions have concluded that immunity

[J-32-2021] - 25

suggestion that this case is not an appropriate vehicle to decide this issue because the

Family Court did not incur any expenses in defending this case, as the interests sovereign

immunity protects are not entirely pecuniary and this case presents an adequate

opportunity to decide the question of law presented. We acknowledge Brooks’s concern

that our decision may open “the floodgate of sovereign immunity appeals,” and we

recognize the potential applicability of our decision here to other forms of absolute

immunity. Brooks’s Brief at 10; see also General Assembly’s Amicus Brief at 9 (asserting

this case affects all types of immunity). Notwithstanding, we have concluded that the

claim involved in this case meets Rule 313’s collateral order doctrine, and we note that

our courts are well-suited to address purely legal issues such as this one.

We also disagree with the Commonwealth Court’s reasoning that an appeal

following final judgment will adequately protect the Family Court’s claim of sovereign

immunity. The Commonwealth Court’s decision undermines the purposes of sovereign

immunity and transforms it from a protection from suit into a mere shield against damages.

This is against the express intention of the legislature as stated in 1 Pa.C.S. § 2310.

While it is accurate that the issue of immunity may be reviewed after final judgment, by

that time the government’s monetary resources and employees’ time will have been

subject to unnecessary depletion. Further, subjecting the government to unnecessary

litigation has potentially deleterious effects on its policymaking decisions. Once the

government litigates a case to final judgment, “the bell has been rung, and cannot be

unrung by a later appeal.” Harris, 32 A.3d at 249. Immediate appellate review of the

may be raised in preliminary objections. See, e.g., R.H.S. v. Allegheny Cty. Dep’t of

Human Servs., 936 A.2d 1218, 1228 (Pa. Cmwlth. 2007); Wurth by Wurth v. City of Phila.,

584 A.2d 403, 407 (Pa. Cmwlth. 1990). However, “[t]his Court has not expressly stated

whether sovereign immunity may be raised in a demurrer,” and that issue is not before us

in this case. Sutton, 220 A.3d at 1035 n.4 (Pa. 2019) (affirming a Commonwealth Court

order sustaining preliminary objections based on sovereign immunity).

[J-32-2021] - 26

adverse decision on sovereign immunity under Rule 313 is the only means by which the

Family Court may vindicate its rights in this case. Accordingly, we reverse the order of

the Commonwealth Court and remand to the Commonwealth Court for further

proceedings consistent with this opinion.

Commonwealth Court decision reversed. Case remanded. Jurisdiction

relinquished.

Chief Justice Baer and Justices Saylor, Todd, Donohue and Wecht join the

opinion.

Justice Dougherty did not participate in the consideration or decision of this matter.

[J-32-2021] - 27