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SMELTZ v. HARRISBURG (10/09/70)

decided: October 9, 1970.

SMELTZ, APPELLANT,
v.
HARRISBURG



Appeal from judgment of Court of Common Pleas of Dauphin County, Jan. T., 1969, No. 957, in case of Naomi S. Smeltz, administratrix of the Estate of Gerald J. Smeltz, deceased, v. Robert H. Copeland and City of Harrisburg.

COUNSEL

Albert D. Stuart, for appellant.

John C. Dowling, with him Dowling and Dowling, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Pomeroy.

Author: Bell

[ 440 Pa. Page 225]

Naomi S. Livingston, formerly Naomi S. Smeltz, is the widow of Gerald J. Smeltz and the administratrix of his estate. Naomi Livingston instituted suit in trespass under the wrongful death and survival acts against Robert H. Copeland, a police officer in the City of Harrisburg, and against the City of Harrisburg itself. The complaint alleges that, while acting in the scope of his employment as a member of the Police Department, defendant Copeland negligently and carelessly shot and killed the decedent, Gerald J. Smeltz, during the course of a "stake-out."

The City of Harrisburg filed preliminary objections in the nature of a demurrer, in which the City asserts its immunity from liability for a tort committed by a police officer acting within the scope of his official duties. These duties were concededly performed as

[ 440 Pa. Page 226]

    part of the governmental functions of the City of Harrisburg. The lower Court sustained the preliminary objections and entered judgment in favor of the City of Harrisburg. From this judgment, plaintiff took this appeal.

In Graysneck v. Heard, 422 Pa. 111, 220 A.2d 893, the Court said (page 113): "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. [Footnote omitted.] 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. 103, 220 A.2d 896 (1966)." See also, Meagher v. Commonwealth, 439 Pa. 532, 266 A.2d 684; Flinchbaugh v. Cornwall-Lebanon Suburban Joint School Authority, 438 Pa. 407, 264 A.2d 708; Laughner v. Allegheny ...


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