Opinion
No. 435 C.D. 2014
01-30-2015
Brian McDaniel, Appellant v. Department of Transportation
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Brian McDaniel (Licensee), appearing pro se, appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), sustaining the Department of Transportation's (PennDOT) preliminary objections and dismissing Licensee's complaint with prejudice. For the reasons discussed below, we affirm in part and reverse in part.
On October 10, 2011, Licensee received a default notice from the Traffic Court of Philadelphia County (Traffic Court) for failure to pay a ticket issued on June 1, 2010. Shortly thereafter, he received a notice from PennDOT informing him that his license would be suspended for his failure to pay. Licensee then notified the Traffic Court that he was currently appealing the June 1, 2010 ticket to the Superior Court. Licensee avers that the Traffic Court notified PennDOT of the pending appeal "and told [it] not to suspend Mr. McDaniel's license until the final outcome of the appeals process." (Supplemental Reproduced Record (S.R.R.) 10b.) Licensee asserts that on July 16, 2012, the Superior Court "affirmed in part ([i]mproper [d]isplay [p]late) and reversed in part (improper left turn)" the June 1, 2010 ticket. (S.R.R. 11b.)
See 75 Pa. C.S. § 1533.
According to Licensee, PennDOT suspended his license on May 9, 2012, for allegedly failing to pay the June 1, 2010 ticket, despite the ongoing appeal before the Superior Court. Licensee further alleges that PennDOT did not notify him of the suspension, and that he only learned of it during a traffic stop on July 21, 2012, when he was issued a citation for driving with a suspended license and his car was impounded. As a result of the July 21, 2012 traffic stop, Licensee asserts he was forced to expend time and money in order to recover his vehicle, suffering actual and potential loss of work opportunities.
PennDOT then informed Licensee that his license would be suspended through November 8, 2013, as a result of the July 21, 2012 traffic stop. On October 9, 2012, Licensee filed an appeal with the trial court, contesting this second suspension. Licensee also challenged the July 21, 2012 citation in the criminal division of the trial court, and on December 26, 2012, the trial court found him not guilty of driving without a valid license. Following his acquittal, Licensee filed a motion for summary judgment in his appeal of the second suspension. The motion was denied, and Licensee subsequently withdrew his appeal of the second suspension on February 26, 2013.
Licensee filed a complaint against PennDOT on December 16, 2013, alleging that PennDOT erroneously suspended his license on May 9, 2012. The complaint contained five counts, essentially requesting two types of relief, damages and an injunction. Counts I, II, III, and V sought damages. Counts I and II alleged that PennDOT was negligent in its record keeping and in suspending Licensee's driver's license. Count III, intentional infliction of emotional distress, alleged that PennDOT "acted with the intent to inflict emotional distress on [Licensee] by committing [the] negligent actions as described [in Counts I and II]," and that Licensee suffered "extreme emotional distress, . . . extreme anxiety, humiliation, and embarrassment" as a result of the July 21, 2012 traffic stop. (S.R.R. 16b-17b.) Licensee asked for judgment in the amount of $10,000 for compensatory damages in each of the three forgoing counts. Count V alleged that PennDOT and its employees acted "defiantly, irresponsibly and with malice" towards Licensee and requested punitive damages. (S.R.R. 18b.) Lastly, Count IV alleged that PennDOT unlawfully suspended Licensee's driving license and that Licensee's driving record reflects this unlawful suspension. Licensee requested injunctive relief ordering PennDOT to remove the suspension and update his driving record.
In response, PennDOT filed preliminary objections asserting: (1) the trial court lacked jurisdiction because Licensee's complaint was actually a mandamus action; (2) the allegations were insufficiently specific; (3) the complaint was legally insufficient and barred by sovereign immunity; (4) Licensee failed to exhaust his statutory remedies; and (5) Licensee failed to serve the Pennsylvania Office of Attorney General.
The trial court sustained PennDOT's preliminary objections and dismissed Licensee's complaint with prejudice for three reasons. First, the trial court concluded that Licensee sought, in part, an action in mandamus because "it is clear that [Licensee] wishes to compel [PennDOT] to perform specific ministerial duties, via the issuance of a court order." (Trial Ct. Op. at 4.) The trial court noted that the Commonwealth Court has exclusive original jurisdiction in mandamus actions and concluded that it, therefore, lacked jurisdiction to hear the case. Second, the trial court concluded that those causes of action not sounding in mandamus were barred under the Sovereign Immunity Act (Act). Third, the trial court found that Licensee did not effectuate proper service of the complaint as "there was no evidence showing that [Licensee] ever served the Attorney General with his [c]omplaint, nor was there proof that the [Attorney General] was even aware of this suit." (Trial Ct. Op. at 5.)
On appeal, Licensee argues that: (1) the trial court erred in addressing PennDOT's immunity claim on preliminary objections; (2) the trial court incorrectly concluded that Licensee's suit was barred by sovereign immunity; (3) the trial court incorrectly concluded his complaint was a mandamus action; (4) the trial court erred in dismissing the suit with prejudice rather than transferring it to this Court's original jurisdiction; and (5) the trial court improperly sustained PennDOT's preliminary objection based upon lack of service to the Attorney General.
"Our review of a trial court's grant of preliminary objections based on issues of law is plenary." Ballroom, LLC v. Commonwealth, 984 A.2d 582, 586 n.3 (Pa. Cmwlth. 2009).
Licensee also argues that the trial court improperly dismissed his entire complaint with prejudice, rather than without prejudice. Licensee, however, fails to develop this argument in his brief, and we, therefore, conclude that it has been waived. See City of Philadelphia v. Berman, 863 A.2d 156, 161 n.11 (Pa. Cmwlth. 2004).
Four of Licensee's claims were allegations of negligence and other torts for which he sought compensatory and punitive damages, which the trial court dismissed with prejudice after concluding they were barred by sovereign immunity. It is well-settled that the Commonwealth, its agencies, officials and employees acting within the scope of their duties are protected from civil suit under sovereign immunity, except where the General Assembly has specifically waived immunity. Mullin v. Dep't of Transp., 870 A.2d 773, 779 (Pa. 2005); Stackhouse v. Pa. State Police, 892 A.2d 54, 58 (Pa. Cmwlth.), appeal denied, 903 A.2d 539 (Pa. 2006). "The Act provides that sovereign immunity is only waived for damages arising out of a negligent act where the common law or a statute would permit recovery if the injury were caused by a person not protected by sovereign immunity." Mullin, 870 A.2d at 779 (citing Section 5822(a) of the Act, 42 Pa. C.S. § 5822(a)). To establish liability on the part of the Commonwealth, a party must also establish that the cause of action falls under one of the specifically enumerated exceptions to sovereign immunity created by the General Assembly. Id. The exceptions to sovereign immunity must be strictly construed because of the "clear intent to insulate the government from liability." Id. It is thus clear that Licensee's tort claims and his requests for damages will be barred by sovereign immunity unless one of the exceptions applies.
The General Assembly has created nine statutory exceptions in which it waived the Commonwealth's sovereign immunity. These exceptions are: (1) vehicle liability; (2) medical-professional liability; (3) care, custody, or control of personal property; (4) Commonwealth real estate, highways, and sidewalks; (5) potholes and other dangerous road conditions; (6) care, custody, or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. Section 8522(b) of the Act, 42 Pa. C.S. § 8522(b).
Licensee argues that PennDOT violated the Pennsylvania Rules of Civil Procedure by asserting immunity in preliminary objections, and that the trial court erred in addressing the issue on preliminary objections. Pennsylvania Rule of Civil Procedure No. 1030(a) provides that all affirmative defenses, including immunity from suit, "shall be pleaded in a responsive pleading under the heading 'New Matter.'" As an affirmative defense, sovereign immunity should normally be raised as new matter. Stackhouse, 892 A.2d at 60 n.7; Pa. R.C.P. No. 1030(a). This Court, however, has recognized limited exceptions to this rule:
First, a party may raise the affirmative defense of immunity as a preliminary objection where it is clearly applicable on the face of the complaint; that is, that a cause of action is made against a governmental body and it is apparent on the face of the pleading that the cause of action does not fall within any of the exceptions to governmental immunity. Second, where a party erroneously asserts an immunity defense in a preliminary objection, the failure of the opposing party to file a preliminary objection to the defective preliminary objection in the nature of a motion to strike for lack of conformity to law waives the procedural defect and allows the trial court to rule on the immunity defense.Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1022 (Pa. Cmwlth. 2014) (citation omitted); see also Stackhouse, 892 A.2d at 60 n.7 ("Sovereign immunity . . . may be raised in preliminary objections when to delay a ruling thereon would serve no purpose.").
In this case, we believe that the affirmative defense of sovereign immunity is clearly applicable from the face of the complaint. Licensee filed a complaint against PennDOT, a Commonwealth agency, and it is apparent, as discussed below, that none of the exceptions apply. Because this case falls into one of the limited exceptions addressed in Orange Stones allowing sovereign immunity to be raised and addressed on preliminary objections, the trial court did not err in addressing the issue of sovereign immunity at this time.
Licensee argues that under Bufford v. Pennsylvania Department of Transportation, 670 A.2d 751 (Pa. Cmwlth. 1996), the third exception to sovereign immunity-i.e., care, custody or control of personal property-applies. The Act provides:
This is the only exception Licensee identifies as applicable and is, in fact, the only possible exception applicable to the facts of this case.
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:
. . .
(3) Care, custody or control of personal property.--The care, custody or control of personal property in the possession or control of Commonwealth parties, including Commonwealth-owned personal property and property of persons held by a Commonwealth agency, except that the sovereign immunity of the Commonwealth is retained as a bar to actions on claims arising out of Commonwealth agency activities involving
the use of nuclear and other radioactive equipment, devices and materials.42 Pa. C.S. § 8522(b)(3). Licensee, however, misreads Bufford. In Bufford, a licensee filed suit against PennDOT alleging that PennDOT negligently suspended his license for failure to pay a traffic ticket, when he did, in fact, pay the ticket. PennDOT asserted the affirmative defense of sovereign immunity, and Bufford argued that the personal property exception applied. This Court held that PennDOT's negligent maintenance of Bufford's driving record did not fall under the personal property exception to sovereign immunity. Bufford, 670 A.2d at 755. The Court explained:
To hold otherwise would create a situation where, each time a Commonwealth agency makes a negligent decision and then records that decision in a public document, or overlooks something in an examination of its records, or further, negligently records and stores data which is in any way inaccurate, immunity would be waived under the personal property exception. That exception would thus become a mechanism for the recovery of damages inflicted by administrative decision making and the negligent recordation of any information first stored and then disgorged by any Commonwealth agency, and we hold that the General Assembly did not intend such a result.Id. Thus, as Bufford makes clear, the personal property exception to sovereign immunity does not apply to negligent management of driving records. Because none of the enumerated exceptions apply, Licensee's tort claims are barred by sovereign immunity. The trial court, therefore, properly dismissed Licensee's tort claims with prejudice.
The trial court concluded that Licensee's only remaining claim, a request for injunctive relief ordering PennDOT to update/correct his driving record, was an action in mandamus. Mandamus is an extraordinary remedy used to compel performance of a ministerial act or mandatory duty, and is only available "where there exists a clear legal right in the one seeking the writ, a corresponding duty in the respondent, and want of any other adequate and appropriate remedy." Gelnett v. Dep't of Transp., Bureau of Driver Licensing, 670 A.2d 217, 220 (Pa. Cmwlth. 1996). We agree with the trial court. PennDOT is the Commonwealth agency charged with maintenance of driving records, including updating driving records. See Section 1516 of the Vehicle Code, 75 Pa. C.S. § 1516. Licensee seeks a court order compelling PennDOT to update/correct his driving record. Licensee thus seeks to compel PennDOT to perform a ministerial act, and as such, his action is one of mandamus. See Campbell v. Rosenberger, 632 A.2d 1094, 1095 n.2 (Pa. Cmwlth. 1993) (concluding that petitioner's action seeking to compel PennDOT to restore his driving privileges and expunge all records of his suspension was a mandamus action, "irrespective of [petitioner's] argument as to nomenclature").
As Licensee's only remaining viable cause of action is one of mandamus, the trial court properly concluded that it lacked jurisdiction to hear Licensee's request for injunctive relief. Section 761 of the Judicial Code vests this Court with original jurisdiction of mandamus actions against Commonwealth agencies, including PennDOT. See 42 Pa. C.S. § 761(c) ("The Commonwealth Court shall have original jurisdiction in cases of mandamus and prohibition to courts of inferior jurisdiction and other government units where such relief is ancillary to matters within its appellate jurisdiction . . . ."); Saunders v. Dep't of Corr., 749 A.2d 553, 555 (Pa. Cmwlth. 2000) ("[O]nly the Commonwealth Court has authority to issue writs of mandamus or prohibition to . . . administrative agencies.").
The trial court erred, however, when it dismissed the claim with prejudice. Rather, the trial court was required to transfer Licensee's mandamus action to this Court. Section 5103(a) of the Judicial Code, 42 Pa. C.S. § 5103(a) ("If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or magisterial district judge shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth . . . ."); Ballroom, 984 A.2d at 586 n.4 ("Thus, if the trial court were correct in concluding that this Court has original and exclusive jurisdiction, the proper course of action for the trial court would have been to transfer the action to this Court pursuant to Section 5103(a) of the Judicial Code, rather than dismissing the action."). Accordingly, pursuant to Section 708(b) of the Judicial Code, 42 Pa. C.S. § 708(b), we will transfer this matter to our original jurisdiction. We will also direct Licensee to file an amended petition for review directed to this Court's original jurisdiction and asserting only his request for mandamus relief.
Section 708(b) of the Judicial Code provides:
If an appeal is improvidently taken to a court under any provision of law from the determination of a government unit where the proper mode of relief is an action in the nature of equity, mandamus, prohibition, quo warranto or otherwise, this alone shall not be a ground for dismissal, but the papers whereon the appeal was taken shall be regarded and acted on as a complaint or other proper process commenced against the government unit or the persons for the time being conducting its affairs and as if filed at the time the appeal was taken.
Because we have concluded that four of Licensee's counts are barred by sovereign immunity and that the remaining count must be transferred to our original jurisdiction, we need not address Licensee's argument that the trial court improperly sustained PennDOT's preliminary objection based upon improper service of the Attorney General. --------
For the reasons we discussed above, the order of the trial court is affirmed in part and reversed in part, and the mandamus portion of this action is transferred to this Court's original jurisdiction.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 30th day of January, 2015, the order of the Court of Common Pleas of Philadelphia County is hereby AFFIRMED as to its dismissal with prejudice of Counts I, II, III, and V; and is hereby REVERSED as to its dismissal with prejudice as to Count IV. The Chief Clerk is directed to file this matter in our original jurisdiction. Appellant shall file an amended petition for review directed to this Court's original jurisdiction and asserting only his request for mandamus relief within thirty (30) days of the date of this order.
/s/_________
P. KEVIN BROBSON, Judge