Summary
noting it is “improper for court to act as advocate and sua sponte raise defense on behalf of party”
Summary of this case from In re Petition to Submit Ballot Question to Concord Twp. VotersOpinion
Decided: September 25, 2002.
No. 53 MAL 2002, Petition for Allowance of Appeal from the Order of the Superior Court.
ORDER
AND NOW, this 25th day of September, 2002, the Petition for Allowance of Appeal is GRANTED. Defendants, Larry Dentler, Joseph A. Detrick, Warren M. Eshbach, Janice Custer, Joseph Kochansky, Donald Myers, Carol Van Horn, Cindy Leiphart, Leonard Stoner and Barbara Rotz, in their individual capacities, were required to assert their affirmative defense of privilege in responsive pleadings. See Pa.R.C.P. 1030(a). Defendants filed preliminary objections but did not raise ecclesiastical privilege before the trial court. Accordingly, defendants' failure to raise the issue precluded the Superior Court from doing so sua sponte. See MacGregor v. Mediq Inc., 576 A.2d 1123, 1127-28 (Pa.Super. 1990) (improper for court to act as advocate and sua sponte raise defense on behalf of party). The Superior Court's conclusion regarding ecclesiastical privilege is vacated. This matter is remanded to the Superior Court to determine whether the trial court erred in sustaining the aforementioned defendants' demurrers. Jurisdiction relinquished.