Superior Court transfers PHFA sovereign immunity issue action to Commonwealth Court

By Nicholas Malfitano | Nov 30, 2016

HARRISBURG – The Superior Court of Pennsylvania has relinquished jurisdiction over a matter involving the Pennsylvania Housing Finance Agency (PHFA) and sovereign immunity, and opted to transfer it to the Commonwealth Court of Pennsylvania.

On Nov. 28, Judge Mary Jane Bowes ordered the matter transferred from its present location to the Commonwealth Court of Pennsylvania, due to the latter court having expertise in matters of agencies and sovereign immunity.

The plaintiff initiated the instant action claiming PHFA and its employees were negligent in the servicing of a mortgage loan. The trial court dismissed the complaint based on the PHFA agency enjoying sovereign immunity, and the plaintiff challenged that ruling on appeal.

Bowes explained in most cases, the Commonwealth and its agencies, officials and employees “acting within the scope of their duties are immune from suits for damages.”

“Tort actions against Commonwealth agencies based on those exceptions are properly commenced in the Courts of Common Pleas but appellate jurisdiction lies in the Commonwealth Court,” Bowes said.

Bowes said first, the Superior Court must determine whether it in fact has jurisdiction over the instant appeal. Though Bowes cited the aforementioned pre-emption involving Commonwealth defendants, the plaintiff in this case cited Braderman v. Pennsylvania Housing Finance Agency as proof PHFA was not a Commonwealth agency and the appeal should not be transferred.

“The District Court [in that case] concluded that the PHFA was not part of the Commonwealth and not entitled to Eleventh Amendment immunity. Plaintiff suggests that since the PHFA is not a part of the Commonwealth, appellate jurisdiction in this Court is proper,” Bowes stated.

However, the PHFA maintains the plaintiff “fails to understand that Eleventh Amendment immunity under federal law is not the same as sovereign immunity under state law”, the Pennsylvania Legislature stating PHFA is a Commonwealth agency “for all purposes” and the PHFA maintaining Braderman is not applicable – because it held only PHFA was “not entitled to immunity from suit in federal court under the Eleventh Amendment, not state court under state law.”

“Plaintiff counters that 35 P.S. Section 7504 is a health and safety law that authorizes the PHFA to establish a low-interest loan program to assist persons whose residences have been impacted by dangerous radon levels to finance home improvements, and thus, it is inapplicable herein,” Bowes said.

Bowes consulted 35 P.S. Section 7504, which provided the Commonwealth Court “shall have exclusive jurisdiction of appeals from final orders of the Courts of Common Pleas” in all Commonwealth civil actions or proceedings.

Bowes said three factors that are weighed against judicial economy when deciding whether or not to transfer a case to the Commonwealth Court are “whether the case has already been transferred; whether retention will disrupt the legislatively ordained division of labor between the intermediate appellate courts; and whether there is a possibility of establishing two conflicting lines of authority on a particular subject.”

“After consideration of these as well as other factors, we conclude that it is appropriate to transfer this matter to the Commonwealth Court. Our retention of this appeal would upset the legislature's decision to vest exclusive appellate jurisdiction in the Commonwealth Court over matters involving agencies and sovereign immunity, areas in which our sister Court has particular expertise,” Bowes said.

The defendants are represented by Michael Steven O’Neill, plus Timothy P. Keating of the Office of the Attorney General, both in Harrisburg.

Superior Court of Pennsylvania case 35 MDA 2016

Dauphin County Court of Common Pleas case 2015-CV-05365

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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