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MCCOY v. LIQUOR CONTROL BOARD (06/07/73)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 7, 1973.

MCCOY, EXECUTOR,
v.
LIQUOR CONTROL BOARD, ET AL.

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.

COUNSEL

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.

Author: Mencer

[ 9 Pa. Commw. Page 108]

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

[ 9 Pa. Commw. Page 109]

    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

[ 9 Pa. Commw. Page 110]

    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 has policy-making functions.'" 8 Pa. Commonwealth Ct. at 571, 303 A.2d at 532.

Applying such a test to the defendants here, we experience no difficulty in concluding that all the individual defendants named are "high public officials" and entitled to absolute immunity from civil liability with respect to their official acts.

We have carefully examined plaintiff's complaint and have satisfied ourselves that it fails to allege any facts in support of any claim against the individual defendants as individuals other than as representatives of the Commonwealth of Pennsylvania.

Accordingly, we make the following

Order

And now, June 7, 1973, the preliminary objections in the nature of a demurrer are hereby sustained and the complaint in trespass is hereby dismissed, with costs to the plaintiff.

Disposition

Preliminary objections sustained. Complaint dismissed.


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