Action in assumpsit against the Commonwealth to recover claimant's funds held by the Commonwealth as custodian under order of court.
James Francis Lawler, with him Ostroff & Lawler, for plaintiff.
Vincent X. Yakowicz, Deputy Attorney General, with him Francis J. Gafford, Deputy Attorney General, and Fred Speaker, Attorney General, for defendants.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Rogers. Opinion by Judge Kramer. Dissenting Opinion by Judge Manderino.
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This case was filed within the original jurisdiction provisions of the Appellate Court Jurisdiction Act (Act of July 31, 1970, P.L. , Act No. 223) as it applies to the Commonwealth Court. The action was based on the filing of a Complaint in Assumpsit signed by counsel and attested to by a partner of counsel of record on the basis of a power of attorney from the claimant. The Plaintiff is Sofia Vaslievna Kremin, a citizen and resident of Soviet Russia. The Plaintiff is alleged to be the widow of Ivan Kreminy, who died a resident of Allegheny County, Pennsylvania. Mr. Kreminy's estate was administered in the Orphans' Court Division of the Court of Common Pleas of Allegheny County at No. 1128 of 1961.
The Orphans' Court there determined that the widow of Mr. Kreminy is the sole heir to his estate. However, because of Section 737 of the Fiduciaries Act of 1949 (Act of April 18, 1949, P.L. 512, Section 737, as amended by the Act of February 23, 1956, P.L. (1955) 1084, Section 6, 20 P.S. 320.737), the fiduciary of the estate petitioned the Orphans' Court to direct the payment of the balance of the estate in the amount of $5,275.55 to the Commonwealth without escheat, to be held in the State Treasury until further order of the Orphans' Court. Under an order of that Court on May 20, 1965, that sum was paid to the Commonwealth, to be held for the widow of the decedent.
The Commonwealth filed preliminary objections (1) that the Court lacks jurisdiction because of the Commonwealth's sovereign immunity from suit without its consent, and (2) that the Court is without jurisdiction because under the statute only the Orphans' Court Division
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of the Court of Common Pleas of Allegheny County is empowered to enter a decree directing the Board of Finance and Review to make payment of these funds from the State Treasury to the person entitled.
Counsel for Mrs. Kremin argues that Section 737 of the Fiduciaries Act of 1949 and the Act of July 28, 1953, P.L. 674, have been held to be unconstitutional, and relying upon Section 8 of the Commonwealth Court Act (Act of January 6, 1970, Act No. 185, P.L. ), the Court has jurisdiction to direct payment to Mrs. Kremin.
The Pennsylvania Constitution at Article I, Section 11, states: ". . . Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." At this stage in the development of the law in this State, there can be no doubt that without legislative permission the Commonwealth cannot be sued because of the doctrine of sovereign immunity. Meagher v. Commonwealth, 439 Pa. 532, 266 A.2d 684 (1970). The Plaintiff offered no proof of any such authorization or permission to sue the Commonwealth.
In connection with the second point in the Preliminary Objections of the Commonwealth, even though the two statutes relied upon by the Plaintiff are unconstitutional,*fn* all of those provisions pertaining to the methods and procedures for the administration of decedents' estates including the claiming of money which was paid into the State Treasury are still fully applicable. The Legislature under the Act of August 10, 1951, ...