Friends of Marconi Plaza v. J. Kenney

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Friends of Marconi Plaza, :

Appellant :

:

v. : No. 378 C.D. 2024

: Submitted: February 3, 2026

James Kenney, Robert Thomas, :

Kimberly Washington, Daniel :

McCoubrey, Emily Cooperman, :

Jonathan E. Farnham, Kenneth :

Woodson, Ralph S. Pinkus, and :

Stephen Petit :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WALLACE FILED: March 5, 2026

Friends of Marconi Plaza (Friends) appeals the March 19, 2024 order of the

Court of Common Pleas of Philadelphia County (trial court) sustaining the Mayor

of the City of Philadelphia, James Kenney’s (the Mayor), and members of the

Philadelphia Historical Commission (Historical Commission), Robert Thomas’s,

Kimberly Washington’s, Daniel McCoubrey’s, Emily Cooperman’s, Jonathan E.

Farnham’s, and members of the Philadelphia Board of License & Inspection Review

(Board), Kenneth Woodson’s, Ralph S. Pinkus’s, and Stephen Petit’s (collectively,

the City) preliminary objections and dismissing Friends’ complaint with prejudice.

After review, we affirm.

BACKGROUND

This lawsuit is relating to other litigation and administrative proceedings

stemming from the Mayor’s 2020 directive to his administration, particularly, the

Office of Arts, Culture, and the Creative Economy (Office of Arts), to request

permission from the Historical Commission to remove the Christopher Columbus

statue from Marconi Plaza in South Philadelphia. In re Friends of Marconi Plaza,

287 A.3d 965 (Pa. Cmwlth. 2022) (“Marconi I”). The statue became a focal point

for clashes between opposing groups following the death of George Floyd in

Minneapolis, Minnesota, during a time of “civil unrest.” Id. at 968.

In Marconi I, the Historical Commission approved the removal, and the Board

affirmed that decision. Trial Court Opinion (Trial Ct. Op.), 11/5/24, at 1-2. On

appeal, the trial court reversed, and this Court then affirmed that reversal, holding

the Office of Arts’ application to the Historical Commission to remove the

Columbus statue after an abbreviated 28-day public comment period violated the

required 90-day public comment period.1 Marconi I, 287 A.3d at 969-70, 981. As

such, we deemed the application a nullity; however, we noted the same could be

1

The City’s Office of Arts is governed by a 1998 “Policy on the Donation, Placement and Removal

of Public Art” entitled “Managing Director’s Directive 67” (Directive 67), which states the

following, in pertinent part, regarding the removal of public art:

In the case of a proposal to remove due to public protest, an opportunity to solicit and obtain

public input shall be provided by the [Office of Arts] or its successor agency prior to further

action on the proposal. A period of no less than ninety (90) days shall be provided for public

input on the matter.

Marconi I, 287 A.3d at 969, quoting Directive 67, § B.III.2 (emphasis omitted).

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remedied by “starting the public input period over and waiting until it is complete

before the Office of Arts takes any further action with respect to the removal of the

Columbus statue from Marconi Plaza, such as the submission of a new application

to the Historical Commission.” Id. at 981. Overall, we concluded that “[t]he

Historical Commission lacked jurisdiction to receive the application submitted prior

to completion of the 90-day period of public input, let alone to act upon that

application.” Id.

Friends commenced this litigation on May 25, 2023. Trial Ct. Op. at 2. The

complaint named the Mayor2 and certain members of the Historical Commission and

the Board as defendants, alleging they “civilly conspired to and did commit an abuse

of process and violation of [a]rticle I [s]ection 27 of the Pennsylvania Constitution

by illegally, intentionally, and maliciously conducting proceedings and voting to

remove the statue.” Id. The complaint also raised a claim pursuant to Section 512

of the Historic Preservation Act, 37 Pa.C.S. § 512. See Reproduced Record (R.R.)

at 31a-32a.

The City filed preliminary objections sounding in demurrer, raising quasi-

judicial immunity, high public official immunity, legal insufficiency, and statute of

limitations, as well as preliminary objections based upon lack of standing, failure to

exhaust a statutory remedy, and pendency of a prior action. R.R. at 459a. Friends

filed preliminary objections to the City’s preliminary objections, exclusively

challenging the City’s raising a statute of limitations defense in preliminary

objections instead of in a new matter. R.R. at 1025a. On March 19, 2024, the trial

court overruled Friends’ preliminary objections, sustained the City’s preliminary

objections and dismissed Friends’ complaint with prejudice. R.R. at 2768a, 2767a.

2

Mayor Kenney’s term ended on January 1, 2024. City’s Br. at 8, n.1.

3

Specifically, the trial court held quasi-judicial immunity protected the

Historical Commission and Board members from Friends’ claims. Trial Ct. Op. at

4. The trial court deemed their functions of “[p]roviding notice, admitting or

excluding evidence, and rendering a decision” akin to the discretionary “decision-

making authority” endowed to judges in the judicial process. Id. at 5. The trial court

found Friends’ allegations of illegal, intentional, and/or malicious conduct regarding

the hearing and decision-making process insufficient to waive quasi-judicial

immunity. Id. As to the Mayor, the trial court determined he qualified as a “high

public official,” entitled to absolute immunity from Friends’ claims under

Pennsylvania common law. Id. at 7. The trial court found the Mayor’s alleged acts

or omissions relative to requesting removal of the statue fell within the scope of his

mayoral authority and official duties. Id. The trial court held Friends’ allegations

of illegal, intentional, and/or malicious conduct insufficient to waive high public

immunity. Id. at 7-8. Finally, the trial court adjudicated all of Friends’ claims barred

by applicable statutes of limitations. Id. at 8-9.

Friends then filed this appeal.

On appeal, Friends raises three issues for this Court’s review.3 First, Friends

contends the trial court erred in applying quasi-judicial immunity where the City

3

Additionally, Friends purports to challenge the trial court’s premature consideration of immunity

during preliminary objections and failure to “accept as true all well-pleaded facts” of the

complaint. See Friends’ Br. at 9, ¶ 3, 19. However, to preserve the issue, Friends should have

raised an immunity objection in its preliminary objections to the City’s preliminary objections.

See N.W.M. Through J.M. v. Langenbach, 316 A.3d 7, 13, n.21 (Pa. 2024) (plaintiff must object

to an affirmative defense, such as immunity, raised in an improper manner by preliminary

objection or plaintiff waives the objection); Chasan v. Platt, 244 A.3d 73, 81 (Pa. Cmwlth. 2020)

(when plaintiff responds to preliminary objections instead of challenging the procedure by filing

its own preliminary objections, plaintiff waives any challenge to the form of pleading the defense).

Generally, when not objected to in preliminary objections, courts accept “that immunity is a

defense that may be raised by preliminary objection ‘when to delay a ruling thereon would serve

(Footnote continued on next page…)

4

acted willfully, in bad faith, and knowingly beyond its lawful authority. Second,

Friends asserts the trial court erred in sustaining the City’s preliminary objections

despite its well-pleaded allegations that the City knowingly violated the law and

intentionally denied Friends due process. Finally, Friends argues the trial court

should not have addressed the City’s statute of limitations defense at the preliminary

objections stage, and moreover, should not have applied the same to bar Friends’

claims.

In response, the City contends quasi-judicial immunity and high public

official immunity provide leaders and adjudicatory bodies entrusted with making

difficult decisions absolute immunity from suit. The City asserts Friends’

allegations of “bad faith” and acting contrary to the law cannot defeat absolute

immunity protections.

DISCUSSION

This Court’s 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. Chasan, 244 A.3d at 80, n.5.

“Preliminary objections in the nature of a demurrer admi[t] all well-pleaded, material

and relevant facts in the complaint.” Unger v. Hampton Twp., 263 A.2d 385, 387

(Pa. 1970). The trial court need not “accept as true legal conclusions, unwarranted

factual inferences, argumentative allegations, or expressions of opinion.” Chasan,

244 A.3d at 80 (citation omitted). The trial court should only sustain a demurrer

where the pleading is “facially devoid of merit.” Id. (quotation omitted).

no purpose,’” or “where the defense is clearly applicable on the face of the complaint.” Chasan,

244 A.3d at 81 (quotations and emphasis omitted). Because the complaint names the Mayor and

members of the Historical Commission and Board members as defendants, the judicial immunity

defense is evident on the face of the complaint. Thus, by not raising it in preliminary objections,

Friends waived this issue.

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First, we address Friends’ contention that the trial court erred by dismissing

its claims against the Historical Commission and Board members based on absolute

quasi-judicial immunity. Judicial immunity protects the public’s interest in having

judges “who [are] at liberty to exercise their independent judgment about the merits

of a case without fear of being mulcted for damages should an unsatisfied litigant be

able to convince another tribunal that the judge acted not only mistakenly but with

malice and corruption.” See Chasan, 244 A.3d at 82, n.7. Pennsylvania courts have

long acknowledged that quasi-judicial immunity protects administrative

adjudicatory officials from lawsuits by disgruntled parties to agency proceedings.

Petition of Dwyer, 406 A.2d 1355, 1360 (Pa. 1979). Like judicial immunity, quasi-

judicial immunity “is necessary to ensure that agency adjudicatory decisions will be

rendered independently, free from external pressures, harassment or intimidation.”

Id. at 1359.

Judicial and quasi-judicial officials “are absolutely immune from liability for

damages when performing judicial acts, even if their actions are in error or

performed with malice, provided there is not clear absence of all jurisdiction over

the subject matter and person.” Logan v. Lillie, 728 A.2d 995, 998 (Pa. Cmwlth.

1999) (citation omitted) (emphasis added). Judicial immunity extends not only to

immunity from damages, but also to “immunity from suit.” Chasan, 244 A.3d at 82

(quotation omitted).

Additionally, as observed by the trial court, under well-established common

law, “high public officials” have long enjoyed “absolute immunity from all civil

lawsuits for damages arising from actions they took within the scope of their

authority and in the course of their official duties even actions taken and motivated

by malice, personal or political reasons, or no reason at all.” Trial Ct. Op. at 5

6

(citing Doe v. Franklin Cnty., 174 A.3d 593, 596, 603-05, n.10 (Pa. 2017); Durham

v. McElynn, 772 A.2d 68, 69-70 (Pa. 2001); Feldman v. Hoffman, 107 A.3d 821,

826-27 (Pa. Cmwlth. 2014); Azar v. Ferrari, 898 A.2d 55, 59, 61 (Pa. Cmwlth.

2006); Schuman’s Vill. Square Drugs, Inc. v. Stern, 322 A.2d 431, 432 (Pa. Cmwlth.

1974)) (emphasis added). The Supreme Court has specifically deemed a mayor a

high public official entitled to absolute immunity. Lindner v. Mollan, 677 A.2d

1194, 1195 (Pa. 1996); see also Factor v. Goode, 612 A.2d 591 (Pa. Cmwlth. 1992)

(Mayor of the City of Philadelphia is a high public official).

Friends cites no authority for the assertion that bad faith vitiates judicial and

quasi-judicial immunity, or high public official immunity. Friends argues that quasi-

judicial immunity only protects public officials acting within their jurisdiction and

in good faith and does not shield knowingly illegal conduct. Friends asserts that

Section 8550 of the Political Subdivision Tort Claims Act (Tort Claims Act),

42 Pa.C.S. § 8550, specifically abrogates this immunity where a defendant engages

in “a crime, actual fraud, actual malice or willful misconduct[.]” Friends’ Br. at 17.

Friends relies upon official immunity in the Tort Claims Act, which has an

exception for willful misconduct. See 42 Pa.C.S. § 8550. However, official

immunity differs from quasi-judicial immunity as the former provides only

conditional, rather than absolute, immunity to protect public employees from suits

arising out of the performance of official duties. See DuBree v. Com., 393 A.2d 293,

296 (Pa. 1978) (emphasis added); see also N.W.M., 316 A.3d at 18, n.65 (noting

distinction between official immunity and quasi-judicial immunity). Additionally,

our Supreme Court has expressly rejected Friends’ argument, particularly in the

context of high public official immunity. Lindner, 677 A.2d at 1196-98 (holding

Section 8550 was not intended to impose a “willful misconduct” exception to high

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public official immunity). Thus, we discern no error in the trial court’s application

of these immunity doctrines.

Second, Friends asserts the trial court erred in sustaining preliminary

objections despite well-pleaded allegations the City knowingly violated the law and

intentionally denied Friends due process. Friends does not dispute the City

performed judicial acts; rather, Friends disputes whether the City acted within its

jurisdiction. Specifically, Friends relies upon the holding in Marconi I that the

deliberate violation of Directive 67 rendered the application a “nullity,” depriving

the Historical Commission of jurisdiction to act. Friends’ Br. at 17, 20. Friends

emphasizes the illegality of the City’s acting on the application, in knowing

contravention of the 90-day requirement. Id. at 17-18. Additionally, Friends

contends that immunity should not apply given the “procedurally flawed hearings”

conducted by the Historical Commission and the Board. Id. at 20-21.

“[J]udicial immunity requires a two-part analysis: first, whether the judge has

performed a judicial act; and second, whether the judge has some jurisdiction over

the subject matter before [him].” Chasan, 244 A.3d at 81 (quotation and emphasis

omitted). For an immunity analysis, the scope of a judge’s jurisdiction must be

broadly construed, so that liability attaches in the “clear absence of all jurisdiction.”

Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (quotation omitted).

Here, Friends’ jurisdictional contention exaggerates this Court’s holding in

Marconi I. At no time did this Court question the authority of the Historical

Commission or the Board to hear matters pertaining to the statue. To the contrary,

we expressly opined that the City could reapply to the Historical Commission upon

expiration of the 90-day period for public comment. Marconi I, 287 A.3d at 981.

Thus, because the Board and the Historical Commission had subject matter

8

jurisdiction to review the City’s application, the trial court correctly applied quasi-

judicial immunity. See Chasan, 244 A.3d at 81. Moreover, because the Mayor acted

within the scope of his authority and in the course of his official duties, the trial court

properly applied high public official immunity. See Factor, 612 A.2d at 592.

Overall, the trial court properly determined Friends’ allegations of illegality

insufficient to waive immunity.

Accordingly, we need not address Friends’ remaining issue on appeal.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s March 19, 2024

order.

______________________________

STACY WALLACE, Judge

Judge Dumas did not participate in the decision of this case.

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Friends of Marconi Plaza, :

Appellant :

:

v. : No. 378 C.D. 2024

:

James Kenney, Robert Thomas, :

Kimberly Washington, Daniel :

McCoubrey, Emily Cooperman, :

Jonathan E. Farnham, Kenneth :

Woodson, Ralph S. Pinkus, and :

Stephen Petit :

ORDER

AND NOW, this 5th day of March 2026, the March 19, 2024 order of the

Court of Common Pleas of Philadelphia County is AFFIRMED.

______________________________

STACY WALLACE, Judge