Original jurisdiction in case of Edwin F. McCoy, Executor of the Estate of Edwin V. McCoy, deceased v. Commonwealth of Pennsylvania, Liquor Control Board and William Z. Scott, Edwin Winner, George R. Bortz and Abraham D. Cohn, individually and as members of the Liquor Control Board, I. K. Blough, individually and as Superintendent of the Pennsylvania Liquor Control Board, Frank E. Rutter, individually and as Director of the Pennsylvania Liquor Control Board, Retail Stores, Commonwealth of Pennsylvania, Department of Public Welfare, Helene Wohlgemuth, individually and as Secretary of the Department of Public Welfare, Sylvia B. Green, individually and as Acting Deputy Commissioner of Mental Health, Commonwealth of Pennsylvania, Department of Health, J. Finton Speller, M.D., individually and as Secretary of Department of Health, Norristown State Hospital, Michael D. McGuire, individually and as Director of Norristown State Hospital, Philadelphia State Hospital at Byberry, and Franklyn R. Clarke, individually and as Superintendent of the Philadelphia State Hospital at Byberry.
Edwin F. McCoy, for plaintiff.
David L. Kurtz, Deputy Attorney General, with him Israel Packel, Attorney General, for defendants.
Robert Lazorchick, with him Scott & Lazorchick, for defendant, Scott.
David E. Eaton, with him W. E. Shissler and Nauman, Smith, Shissler & Hall, for defendants Wohlgemuth, Green, Speller, McGuire and Clarke, in their official capacities.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
We here have for determination preliminary objections to a complaint alleging a cause of action for the wrongful death*fn1 of Edwin V. McCoy and a survival action*fn2 for loss to his estate. Plaintiff is Edwin F. McCoy, executor of the estate of Edwin V. McCoy, deceased. The defendants are numerous boards, departments, and hospitals of the Commonwealth of Pennsylvania
and various individuals who were or are members of or in charge of the boards, departments and hospitals enumerated as defendants.*fn3
This somewhat complicated and involved lawsuit, when reduced to controlling issues, brings again before this Court two questions: (1) Is plaintiff's suit against the Commonwealth, and the boards, departments and hospitals named as defendants, barred by Article I, Section 11 of the Pennsylvania Constitution which prohibits suits against the Commonwealth without its consent? The answer to this question is clearly in the affirmative. The immunity of an agency of the State from actions in tort was very recently restated in Biello v. Pennsylvania Liquor Control Board, Pa. , A.2d (1973). We believe that no useful purpose would be served by repeating what our Supreme Court stated in Biello, but we do consider that case as dispositive of the first question raised here. (2) Are the individual defendants immune from liability as officers and employees of the Commonwealth? We believe that our recent decision in DuBree, Jr., Executor v. Commonwealth, et al., 8 Pa. Commonwealth Ct. 567, 303 A.2d 530 (1973), answers this question in the affirmative. In DuBree, we concluded that the immunity of the Commonwealth is attributed absolutely to high public officials and conditionally to other public officials. We there stated that "[t]he Supreme Court, however, has yet to define clearly who is a 'high
public official.' In Montgomery v. Philadelphia [392 Pa. 178, 186, 140 A.2d 100, 105 (1958)], it suggests that the test of whether or not a public officer is in that category 'should depend upon the nature of his duties, the importance of his office, and particularly whether or not he ...