Duquesne Law Review


Dale Forsythe


Since the enactment of the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. § 8541 et seq (Purdon 1981), a great deal of debate has arisen as to whether the defense of local agency immunity in Pennsylvania can be asserted as a preliminary objection pursuant to Pennsylvania Rule of Civil Procedure 1017(b), or whether it must be pleaded solely as an affirmative defense as suggested by Pennsylvania Rule of Civil Procedure 1030. The said debate has been fueled by the various decisions by the state appellate courts, which appear to be blatantly at odds with each other or, at the very least, require a painstaking analysis to reconcile. The above article examines the procedural rules involved and explores in detail the complex array of opinions supporting the two legal positions, attempting along the way to describe the consistency among the cases or, perhaps more accurately, the lack of inconsistency. Finally, the article suggests a practical solution to the problem, one which hopefully the appellate courts will adopt as their own and finally offer some clarification to Pennsylvania litigators. Pennsylvania practitioners will be able to use this article to find a detailed review of the arguments used to support each position and the counter-arguments usually asserted, with the end result that their clients can be advised accurately as to the desirability of a particular course of conduct.

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