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BIELLO v. PENNSYLVANIA LIQUOR CONTROL BOARD (03/16/73)

decided: March 16, 1973.

BIELLO, APPELLANT,
v.
PENNSYLVANIA LIQUOR CONTROL BOARD



Appeal from judgment of Commonwealth Court of Pennsylvania, No. 728 T.D. 1970, in re Joseph S. Biello, Administrator of the estate of Joseph D. Biello, deceased v. Pennsylvania Liquor Control Board et al.

COUNSEL

William J. Brickley, with him Yale B. Bernstein, and Bric kley, Torpey & Bernstein, for appellant.

Alexander J. Jaffurs, Assistant Attorney General, with him J. Leonard Langan, and Thomas J. Shannon, Assistant Attorney Generals, and J. Shane Creamer, Attorney General, for Pennsylvania Liquor Control Board, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Manderino took no part in the consideration or decision of this case. Mr. Justice Eagen and Mr. Justice Pomeroy concur in the result. Dissenting Opinion by Mr. Justice Nix. Mr. Justice Roberts joins in this dissenting opinion.

Author: O'brien

[ 454 Pa. Page 181]

Appellant instituted this action for wrongful death and survival in the Court of Common Pleas, Dauphin County, and named as defendants: The Pennsylvania Liquor Control Board, the individual members of the Board, the Director of State Stores, and the manager of a specific State Store.

Appellant alleged that the decedent, a sixteen-year-old boy, purchased a bottle of Scotch whiskey from a State Store. The boy consumed part of the bottle, became drunk, and, as a result of his intoxicated condition, fell eleven floors from a fire escape to his death.

The Attorney General filed preliminary objections, averring that the Pennsylvania Liquor Control Board is an instrumentality and agency of the Commonwealth; that an action against the Board is an action against the Commonwealth; that the Commonwealth cannot be sued without its consent; and that there has been no such consent in this case. Appellant answered these preliminary objections.

The proceeding was transferred subsequently to the Commonwealth Court of Pennsylvania, where the Attorney

[ 454 Pa. Page 182]

General's preliminary objections were sustained, with two judges dissenting, Biello v. Pa. Liquor Control Bd., 1 Pa. Commonwealth Ct. 179 (1971), and the complaint was dismissed; this appeal followed.

This case raises the question of the immunity of an agency of the state from actions in tort.

The doctrine of sovereign immunity arrived in Pennsylvania in Respublica v. Sparhawk, 1 Dallas 357 (1788). That case was a suit to recover the value of flour relocated by the Pennsylvania War Board pursuant to a legislative directive to prevent British capture of supplies should they occupy Philadelphia.

The plaintiff in Sparhawk did not contend "that, generally speaking, citizens may sue the State; but only that every Government, which is not absolutely despotic, has provided some means (in England, for instance, by petition in Chancery) to obtain a redress of injuries from the sovereign." 1 Dallas at 361.

Chief Justice M'Kean responded by affirming the legislature's right to order relocation of private belongings when the necessity of war demands. He was not impressed with the plaintiff's plea that the loss be spread. "It is a rule, however, that it is better to suffer a private mischief, than a public inconvenience; and the rights of necessity form a part of our law." 1 Dallas at 362.

Sparhawk was extended in John Black v. Rempublicam, 1 Yeates 140 (1792), a case in which Pennsylvania galley captains had seized private provisions while fleeing from the British across the Delaware River. The captains used the provisions to feed their own troops and promised the landowner compensation. The court held that since the captains had no authority to contract, there could be no recovery in contract, and, further that Sparhawk precluded recovery in tort.

Were sovereign immunity a creature of pure common law, we might be disposed to ...


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