Zeigler v. Church of the Brethren General Board

807 A.2d 872, 570 Pa. 2, 2002 Pa. LEXIS 2020

Opinion

ORDER

PER CURIAM.

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., 395 Pa.Super. 221, 576 A.2d 1123, 1127-28 (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.