Preliminary objections before the Court of Common Pleas of Dauphin County, Commonwealth Docket, in case of Joseph S. Biello, administrator of the estate of Joseph D. Biello, deceased, v. Pennsylvania Liquor Control Board, et al. Case transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.
William J. Brickley, with him Yale B. Bernstein, Brickley, Torpey & Bernstein, Thomas D. Nabors, Jr., and Nabors & Ressler, for plaintiff.
J. Leonard Langan, Assistant Attorney General, with him Thomas J. Shannon, Assistant Attorney General, and Fred Speaker, Attorney General, for defendants.
President Judge Bowman, and Judges Kramer, Wilkinson, Jr., Manderino, Mencer, and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). Opinion by Judge Wilkinson. Dissenting Opinion by Judge Kramer. Judge Manderino joins in this dissenting opinion.
[1 Pa. Commw. 179 Page 181]
The complaint to which preliminary objections have been filed alleges a cause of action for wrongful death and survival. Defendants are Pennsylvania State Liquor Control Board, William Z. Scott, Edwin Winner, and George R. Bortz, individually and as members of the Pennsylvania Liquor Control Board, and Frank E. Rutter, individually and as director of state liquor stores.
[1 Pa. Commw. 179 Page 182]
The issues presented by briefs and argued before this Court involve two questions. First, may an action in trespass for damages be brought against the Pennsylvania Liquor Control Board if a sale is made in a state store to a minor in violation of the Act of April 12, 1951, P.L. 90, Art. IV, § 493, as amended? Second, are the members of the Board and the director of state stores civilly liable as individuals when there is no allegation that the illegal sale was made by them personally or at their personal direction? Both questions must be answered by this Court in the negative.
The attorneys for the plaintiff in their brief and in oral argument recognized the well established, albeit much criticized, principle that governmental bodies are immune from suit in Pennsylvania. Indeed, this particular suit against the Commonwealth is barred by Article I, Section 11 of the Pennsylvania Constitution which provides, inter alia, "suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." See Meagher v. Commonwealth, 439 Pa. 532, 266 A.2d 684 (1970). See also Conrad, et ux. v. Commonwealth, 93 Dauph. 65 (1970). Plaintiff attempted to overcome this barrier by asserting that in making it a criminal act for the Board or its agents to sell liquor to a minor, the Legislature has waived the Commonwealth's immunity and consented to be sued. We do not agree with this proposition. A constitutional duty to designate the manner of bringing suit, the court which is to have jurisdiction, and the nature of the case to be heard, cannot be fulfilled by drawing any implications from the fact that the Legislature made liquor sales to minors a crime. Indeed, in the Act of July 31, 1970, No. 223, commonly known as Appellate Court Jurisdiction Act of 1970, the Legislature stated specifically that by conferring jurisdiction
[1 Pa. Commw. 179 Page 183]
on this Court over cases in which the Commonwealth is a party, it did not, by implication, waive the Commonwealth's immunity from suit.
Plaintiff attempts to apply the doctrine of governmental liability when acting in a proprietary capacity, asserting that the operation of a state retail store was a proprietary function. Suffice it to say that neither the Constitution nor the cases apply such a doctrine in Pennsylvania when dealing with suits against the Commonwealth.
The second question argued to this Court is whether there is individual liability on the Board members or the director of state stores. It is well established in Pennsylvania that one who holds a public office is not personally liable for the acts of negligence of his subordinates unless he directed the negligent act to be done. Commonwealth to the use of Orris v. Roberts et al., 392 Pa. 572, 575-6, 141 A.2d 393 (1958).
Accordingly we make the following
And Now, January 29, 1971, the preliminary objections in the nature of a motion to dismiss the complaint for lack ...