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DUBREE v. COMMONWEALTH (04/09/73)

decided: April 9, 1973.

DUBREE, JR., EXECUTOR,
v.
COMMONWEALTH, ET AL.



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Roland E. DuBree, Jr., Executor of the Estate of Roland E. DuBree, Sr. v. Commonwealth of Pennsylvania, Robert G. Bartlett, Paul L. Thomas, Joseph Wade, John Auerbach, Harry Snyder, Oscar Kulp, Eugene Schad and Protection Service, Inc., No. 3211, May Term, 1970. Appeal transferred June 12, 1972 from the Superior Court of Pennsylvania to the Commonwealth Court of Pennsylvania.

COUNSEL

Harry R. Nixon, with him Schneider & Nixon, for appellant.

Edward V. A. Kussy, Assistant Attorney General, with him Stuart M. Bliwas, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellee, Commonwealth.

Richard P. McBride, with him Power, Bowen & Valimont, for individual appellees.

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

Author: Blatt

[ 8 Pa. Commw. Page 568]

At about 11:30 p.m., on August 6, 1969, Roland DuBree (decedent) was operating his motor vehicle on

[ 8 Pa. Commw. Page 569]

Street Road in Warrington Township, Bucks County. Two days previously a bridge had been removed, and an opening had been left in Street Road approximately twenty feet across, eighteen feet wide and ten feet deep. The decedent, apparently unaware of this excavation, crashed into it and suffered injuries which subsequently caused his death.

The appellant, as executor of the decedent's estate, brought an action in the Court of Common Pleas of Bucks County seeking to recover damages for the decedent's injuries and death. He named as defendants the Commonwealth of Pennsylvania, seven individuals employed by the Commonwealth, all in the Department of Highways (DH), and a corporation which leased equipment to the Commonwealth. The individual state employee defendants and their positions at that time were: Robert G. Bartlett, Secretary of Highways; Paul L. Thomas, District Engineer; Joseph Wade, Assistant District Engineer; John Auerbach, Superintendent, Maintenance Department; Oscar Kulp, Assistant Superintendent, Maintenance Department; Harry F. Snyder, Foreman; and Eugene C. Schad, Foreman. The appellant alleged that the bridge had been removed at or by the direction of the individual defendants and that no adequate warning of the excavation was provided for motorists.

The Commonwealth and the individual defendants filed preliminary objections to the complaint alleging that they were immune from tort liability. The corporate defendant, Protective Service, Inc., filed an answer to the complaint, but its status is not here at question. The lower court sustained the preliminary objections of the individual defendants and of the Commonwealth and dismissed the complaint against them. The appellant then filed appeals with this Court and with the Superior Court, and, by order of President Judge J. Colvin Wright dated June 12, 1972, the appeal filed

[ 8 Pa. Commw. Page 570]

    in the Superior Court was transferred to this Court for disposition.

This Court has consistently refused to overturn the doctrine of sovereign immunity as applied to the Commonwealth. See Hall v. Powers and Commonwealth, 6 Pa. Commonwealth Ct. 544, 296 A.2d 535 (1972); Duquesne Light Company v. Department of Transportation, 6 Pa. Commonwealth Ct. 364, 295 A.2d 351 (1972); Lovrinoff v. Pennsylvania Turnpike Commission, 3 Pa. Commonwealth Ct. 161, 281 A.2d 176 (1971). Inasmuch as we can see no issue presented here which has not been adequately dealt with by these cases and the cases cited therein, we must hold that the lower court acted ...


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