failure of *264 plaintiff to file preliminary objection to defendant’s filing of preliminary objection asserting absolute privilege as a defense precluded, on basis of waiver, plaintiff from contending on appeal that defendant improperly raised the affirmative defense of privilege by preliminary objection instead of new matter
How later courts described this case
- failure of *264 plaintiff to file preliminary objection to defendant’s filing of preliminary objection asserting absolute privilege as a defense precluded, on basis of waiver, plaintiff from contending on appeal that defendant improperly raised the affirmative defense of privilege by preliminary objection instead of new matter
- when a plaintiff objects to the matters contained in a defendant's preliminary objection, and assets that such matter should have been raised via an answer and new matter, the plaintiff is required to file a preliminary objection to defendant’s preliminary objection and raise the procedural defect
- “It is black-letter law that issues not raised in the trial court are waived and cannot be raised for the first time on appeal. Where a party erroneously asserts substantive defenses in preliminary objections rather than to raise these defenses by answer or in new matter, the failure of the opposing party to file preliminary objections to the defective preliminary objections, raising the erroneous defenses, waives the procedural defect and allows the trial court to rule on the preliminary objections.”
- “[w]here a party erroneously asserts substantive defenses in preliminary objections rather than [] raise these defenses by answer or in new matter, the failure of the opposing party to file preliminary objections to the defective preliminary objections, raising the erroneous defenses, waives the procedural defect and allows the trial court to rule on the preliminary objections”
Written by the judges who cited it.
The opinion
DEL SOLE, Judge,
dissenting:
The majority, based upon the conclusion that the judicial privilege does not extend to proceedings such as the instant fee determination dispute, has remanded the case for further proceedings in the trial court. I disagree.
Remand is required initially because it is not apparent from the record whether Appellant participated in the proceedings before the Special Fee Determination Committee of the Allegheny County Bar Association. The rules governing proceedings before the Committee require the agreement of both parties to participate in the proceedings and to have their dispute resolved by the Committee in order for the determination to be binding upon both of them. Therefore, the trial court must first determine whether Appellant agreed to participate. If he did not, the determination is not binding upon him and judicial immunity is inapplicable.
However, if it is determined that he did participate, judicial immunity should extend to protect the interests served by alternative dispute resolution proceedings such as the one in the instant case. Because such proceedings are designed to provide a forum for timely and conclusive resolution of disputes, the same privilege of judicial immunity should be extended to them, thus insuring the same efficiency inherent in the judicial process. Pennsylvania has no case law which prohibits the extension of immunity to alternative dispute resolution proceedings, and its public policy of facilitating efficient and effective resolution of disputes would be served by extending this privilege. Therefore, if both parties participated in the proceedings so as to be bound by the determina *351 tion, the privilege would extend to protect statements made concerning Appellant in the complaint, and Appellant’s claim of defamation would be dismissed.
I respectfully dissent.