“Again we must remind counsel and the courts that immunity from suit is an affirmative defense which should be raised under the heading of ‘New Matter’ in a responsive pleading and should not be raised by preliminary objections.”
How later courts described this case
- “Again we must remind counsel and the courts that immunity from suit is an affirmative defense which should be raised under the heading of ‘New Matter’ in a responsive pleading and should not be raised by preliminary objections.”
- noting "immunity from suit is an affirmative defense"
- on the ground that Mayle v. Pa. Dept. of Highways, 479 Pa. 384, 388 A. 2d 709 (1978) abolished the doctrine of sovereign immunity
Written by the judges who cited it.
The opinion
*391 POMEROY, Justice,
concurring and dissenting.
Although I join in the majority’s reversal of the order of the Commonwealth Court as to the individual defendants in this case, see Freach v. Commonwealth, 471 Pa. 558, 567-69 , 370 A.2d 1163 (1977), I remain of the view that this Court does not have the power to abolish sovereign immunity, see Freach, supra, 471 Pa. at 565-67 , 370 A.2d 1167 -68; Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 409 , 388 A.2d 709, 721 (1978) (Pomeroy, J., dissenting), and would therefore affirm the order of the Commonwealth Court as to the appellee Philadelphia State Hospital.
EAGEN, C. J., and O’BRIEN, J., join in this opinion.