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LOVRINOFF v. PENNSYLVANIA TURNPIKE COMMISSION. MADACSI V. PENNSYLVANIA TURNPIKE COMMISSION. KUNZE (08/30/71)

decided: August 30, 1971.

LOVRINOFF, ET AL.
v.
PENNSYLVANIA TURNPIKE COMMISSION. MADACSI V. PENNSYLVANIA TURNPIKE COMMISSION. KUNZE, JR., ET AL. V. PENNSYLVANIA TURNPIKE COMMISSION



Appeals from the judgment of the Court of Common Pleas of Westmoreland County, at Nos. 73, 75 and 433 April Term, 1969 in cases of Hope Ann Lovrinoff, a minor, by Michael P. Lovrinoff and Irene Lovrinoff, her guardians, parents and natural guardians, and Michael P. Lovrinoff and Irene Lovrinoff, in their own right, and Michael P. Lovrinoff, as an individual, and Irene Lovrinoff, as an individual, and Michael P. Lovrinoff, as the husband of Irene Lovrinoff, v. The Pennsylvania Turnpike Commission, a Pennsylvania Corporation; Mary Madacsi v. The Pennsylvania Turnpike Commission, a Pennsylvania Corporation; and Wilfred L. Kunze, Jr., Administrator of the Estate of Lillie Rose Kunze, Deceased, and Wilfred L. Kunze, Jr., Administrator of the Estate of Patricia Kunze, Deceased, and Wilfred L. Kunze, Jr., Administrator of the Estate of Michelle Denise Kunze, Deceased, and Wilfred L. Kunze, Jr., Administrator of the Estate of Diane Cheryl Kunze, Deceased, v. The Pennsylvania Turnpike Commission, a Pennsylvania Corporation. Appeals transferred March 10, 1971, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Dom A. Meffe, with him William J. Ober, Meffe & Ober, for appellants.

Rabe F. March, III, with him H. Reginald Belden, Stewart, Belden, Sensenich and Herrington, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by President Judge Bowman. Dissenting Opinion by Judge Crumlish, Jr. Judge Manderino joins in this dissent.

Author: Bowman

[ 3 Pa. Commw. Page 163]

As recently as April 1969, the Supreme Court of Pennsylvania in Thomas v. Baird, 433 Pa. 482, 252 A.2d 653 (1969) reaffirmed its decision (Justice Roberts dissenting) in Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199 (1962) which held that The Pennsylvania Turnpike Commission, as an instrumentality of the Commonwealth engaged in a governmental function, is immune from liability for the negligence of its officers and employees under the doctrine of sovereign immunity.

In these consolidated appeals, the appellants readily acknowledge that these opinions control the instant cases but urge that we either overturn them or ignore them and reverse the lower court which in turn considered itself bound by the Supreme Court pronouncements in dismissing plaintiffs' complaints.

In urging us to do so, appellants forcefully argue that the doctrine of sovereign immunity as applied to The Pennsylvania Turnpike Commission is outdated, outmoded and not representative of the modern trend in the law to more narrowly restrict its application, particularly as to instrumentalities such as this Commission. Appellants do not, however, suggest by what

[ 3 Pa. Commw. Page 164]

    authority we are to ignore or overturn the law as pronounced by the Supreme Court.

Perhaps the explanation for this failure may be found in the fact that these appeals were originally taken to the Supreme Court and transferred to this Court by its order dated March 5, 1971, pursuant to Section 507(b) of the Appellate Court Jurisdiction Act of July 31, 1970, P.L. , Act No. 223, 17 P.S. 211.507.

Had the Supreme Court heard these appeals it would have been entirely proper for it, as the supreme judicial body of the Commonwealth, to reconsider its prior decisions on this subject and overrule them if it saw fit to do so. The transfer of these appeals, however, lends to this Court no such power or authority nor does the genesis of this Court afford it any such power or authority.

Section 4 of Article V of the 1968 Constitution of Pennsylvania created the Commonwealth Court as a constitutional court of State-wide jurisdiction with its subject matter jurisdiction to be as provided by law. Section 2 of this same Article, however, recognizes the historical posture of the Supreme Court as the "highest court of this ...


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