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December 23, 1965

Stella McSPARRAN, Administratrix of the Estates of Frank J. Barlek, Deceased and Anna H. Barlek, Deceased,
H. J. WILLIAMS CO., Inc., Fred Wagner, C. Blaine Strickler, East Donegal Township and Lancaster County

The opinion of the court was delivered by: BODY

 On April 24, 1963 plaintiff's decedents, husband and wife, were fatally injured in a head-on collision between their automobile and a car driven by one Patsy A. Demmy on Route 441 in Lancaster County, Pennsylvania.

 Plaintiff alleges that the sole and proximate cause of the accident was a severe dip in the highway which Mr. Barlek's car struck, resulting in a loss of control, and causing his car to crash violently into the Demmy car killing all three persons instantly. This dip or sharp incline was apparently located in a twenty foot long patch put into the road by the State Highway crews when filing a large sinkhole that had opened in February 1963, about two months before the accident.

 Five defendants have been named in this wrongful death and survival action, jurisdiction of which is based on diversity of citizenship: (1) H. J. Williams Company, Inc. allegedly constructed the highway in a negligent manner; (2) East Donegal Township and (3) Lancaster County represent the respective township and county wherein the highway in question was located, and they allegedly neglected to keep the road in a reasonably safe condition; (4) C. Blaine Strickler was the Lancaster County Superintendent of Highways for the Pennsylvania Department of Highways at the time of the accident; and (5) Fred Wagner was Strickler's predecessor in that office.

 Defendants Wagner and Strickler have been sued as individual tort-feasors. Plaintiff has not named the Commonwealth of Pennsylvania as a party defendant. The theory upon which Wagner and Strickler have been sued is essentially that they owed both a statutory and common law duty toward plaintiff's decedents of generally maintaining the highway in a safe and proper condition, including their responsibility of supervising and directing the repair of the sinkhole which allegedly caused the fatal collision. These two individuals supposedly breached this duty, thereby causing the road to become an instrumentality of death.

 The matter presently before the Court is a timely Motion to Dismiss filed by defendants Wagner and Strickler who offer several grounds in support thereof.


 The main issue presented for our decision is whether the doctrine of sovereign immunity, as recognized in Pennsylvania, precludes an action against these County Superintendents of Highways for their individual torts. Thus the issue is one of substantive law.

 A federal district court sitting in a diversity action attempts, whenever possible, to resolve questions of substantive law by looking to the decisions of the highest court of the state in which it sits under the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). However, when the highest state court has not yet had the opportunity to pass upon the particular question involved, the federal court must make its own determination of how that appellate tribunal would rule. Gullborg v. Rizzo, 331 F.2d 557 (3rd Cir. 1964). In arriving at its conclusion the district court is aided by decisions of the state's inferior courts. That is the situation here.

 One lower court in Pennsylvania in particular was just recently confronted with the precise issue now before us. In Simonson v. Martin, 35 Pa.Dist. & Co.R.2d 1 (C.P. Pike County 1963), President Judge Fred W. Davis (Monroe County) held that a plaintiff has the right to maintain a trespass action to recover damages for negligent performance of official duties by state highway officials in their individual capacities, and such action is not barred by the doctrine of sovereign immunity.

 In their complaint plaintiffs alleged that the defendants had failed to erect barricades or warning devices which might have prevented the accident. The three defendants named were: (1) the Secretary of Highways of the Commonwealth of Pennsylvania at the time of the accident; (2) the Highway Superintendent for Pike County; and (3) the caretaker of roads for Lackawaxen Township.

 Counsel for defendants challenged the default judgments, in part, on the grounds that the Court of Common Pleas of Pike County had no jurisdiction to entertain the question in regard to the judgments because Pennsylvania Rule of Civil Procedure 1503(c), 12 P.S. Appendix vests exclusive jurisdiction of said action in the Common Pleas Court of Dauphin County. The court rejected this contention since the question of jurisdiction depended primarily on whether or not the action was one against the Commonwealth. Judge Davis concluded that the action was one against the defendants, as individuals, for their alleged negligence in the performance of official duty.

 In reaching its determination the Court cited with approval *fn1" the language of the Pennsylvania Superior Court in Meads v. Rutter, 122 Pa.Super. 64, 184 A. 560 (1936), wherein the appellate court affirmed a judgment for the wife plaintiff against an employee of the Pennsylvania Department of Highways whose negligence caused plaintiff's car to ...

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