Appeal from order of Court of Common Pleas of Allegheny County, April T., 1965, No. 754, in case of Raymond Graysneck, administrator of estate of Charles F. Mushinsky, deceased v. Robert Heard, City of Pittsburgh, Gregory Pappas et al.
Thomas A. Lazaroff and Franklyn E. Conflenti, with them Cauley, Birsic & Clarke, for appellant.
Robert Engel, Assistant City Solicitor, with him David Stahl, City Solicitor, for City of Pittsburgh, appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts dissents for the reasons stated in his dissenting opinion in Dillon v. York City School District,
In the early morning of April 12, 1964, Charles F. Mushinsky was shot as he was leaving the Blue Belle Coffee Shop in Pittsburgh by one Robert Heard, a police officer for the City of Pittsburgh. Mushinsky died within an hour. Complaint in trespass was brought by Raymond Graysneck, administrator of decedent's estate, under the Pennsylvania wrongful death*fn1 and survival acts*fn2 against Robert Heard, the City of Pittsburgh and the owners of the Blue Belle Coffee Shop -- Gregory Pappas, Steve Kavalis, Chris Pappas, and Andy Pappas.
The City of Pittsburgh [City] filed preliminary objections in the nature of a demurrer to the complaint based mainly on its assertion of immunity from liability for a tort committed by its police officer acting within the scope of his governmental authority. By an order filed on August 17, 1965, the Court of Common Pleas of Allegheny County sustained the City's position and dismissed the complaint as to the City of Pittsburgh. Plaintiff then appealed to this Court.
Since the court below sustained appellee's preliminary objections in the nature of a demurrer, we must accept for purposes of this appeal the truth of all well-pleaded
facts but not conclusions of law in appellant's complaint: Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964). These relevant facts are that at approximately 5:00 a.m., April 12, 1964, the deceased, Charles F. Mushinsky was sitting in the rear of the Blue Belle Coffee Shop when a series of fights broke out among the patrons. Mushinsky decided to leave the premises to escape the fracas. As Mushinksy was exiting, Robert Heard, an off-duty City of Pittsburgh police officer who was nevertheless participating in the fights, attempted to quell the disturbances by drawing a revolver which discharged, striking accidentally Mushinsky fatally in the chest.
We held in 1960 that a municipality is immune from liability with respect to torts committed by its police officers in the course of the performance of a governmental function unless a right of recovery is expressly granted by statute.*fn3 Stouffer v. Morrison, 400 Pa. 497, 162 A.2d 378 (1960). The Stouffer decision disposes of this appeal because Heard was acting within the scope of a governmental function as a policeman when he produced his revolver in order to restore order.
Appellant now asks this Court to overrule the Stouffer decision thereby subjecting the City to the possibility of liability in this case.
We are unwilling so to do. Cf. Dillon v. York City School District, 422 Pa. ...