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DONNA BROWN KOVACH v. TOENSMEIER ADJUSTMENT SERVICE (06/21/74)

decided: June 21, 1974.

DONNA BROWN KOVACH, PLAINTIFF,
v.
TOENSMEIER ADJUSTMENT SERVICE, INC., VICTOR MARKS, LEONARD PACKEL, BURTON D. MORRIS, ISRAEL PACKEL, ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, AND J. SHANE CREAMER AND HERBERT DENENBERG, INSURANCE COMMISSIONER OF THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS



Original jurisdiction in case of Donna Brown Kovach v. Toensmeier Adjustment Service, Inc., Victor Marks, Leonard Packel, Burton D. Morris, Israel Packel, J. Shane Creamer and Herbert Denenberg.

COUNSEL

Joel M. Lieberman, with him Gekoski & Bogdanoff, P.C., for plaintiff.

J. Justin Blewitt, Jr., Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, for defendant public officials.

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

Author: Crumlish

[ 14 Pa. Commw. Page 215]

Before us for determination are preliminary objections by five of the seven defendants*fn1 to a Complaint in Trespass essentially alleging that the defendants conspired to withhold from plaintiff the name of the operator

[ 14 Pa. Commw. Page 216]

    of a National Guard jeep in which plaintiff was injured while riding as a passenger. In doing so, the plaintiff alleges that she was unable to recover damages from the operator. The preliminary objections are in the nature of a demurrer to the complaint as failing to state a recognized cause of action, and raise the defense of sovereign immunity vested in the defendants as public officials of the Commonwealth while acting officially within the scope of their authority. For the purpose of disposing of the defendants' preliminary objections, we must accept as true all well and clearly pleaded facts, but not conclusions or averments of law. Powell v. Aytch, 10 Pa. Commonwealth Ct. 218, 309 A.2d 734 (1973). Although many of the pleadings lack specificity of fact and constitute conclusions of law, the pleadings facially reveal a fatal flaw in plaintiff's cause of action -- the doctrine of sovereign immunity -- which necessitates that we sustain the preliminary objections and dismiss the complaint.

The jeep accident in which plaintiff was involved occurred in August of 1969. Plaintiff, by her guardians, brought a trespass action against the Commonwealth in 1971, seeking damages for her injuries. This Court sustained the Commonwealth's preliminary objections to this action finding Plaintiff's cause of action to be barred by sovereign immunity in Brown v. National Guard, 3 Pa. Commonwealth Ct. 457 (1971). This holding was affirmed by our Supreme Court in Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973). During the course of this litigation, defendants Leonard Packel and Burton Morris, attorneys representing the Commonwealth before this Court and the Supreme Court, failed to comply with an informal request by plaintiff's counsel that they reveal the name and whereabouts of the operator of the jeep.*fn2 Plaintiff

[ 14 Pa. Commw. Page 217]

    further alleges that this omission was undertaken with the "expressed or implied authority" of defendants J. Shane Creamer and Israel Packel. The record before us reveals, however, that plaintiff failed to engage any means of legal discovery available to her until December 1973, when interrogatories were served on the defendants. They were answered promptly by defendants.

The gravamen of plaintiff's action against defendant, Herbert Denenberg, is that, as part of his "duty to supervise insurance companies in the Commonwealth of Pennsylvania," he should have ordered defendant, Toensmeier Adjustment Service, Inc. and Victor Marks, to disclose the identity of the jeep driver.

We have painfully read plaintiff's complaint, and we are convinced that it contains no allegations of actions by the defendants in their individual capacities which would constitute a valid cause of action. This Court is at a loss to understand what legal duty defendants as private individuals had to inform plaintiff of the identity of the jeep driver. Although plaintiff inartfully refers to defendants as private individuals, it is patently clear, from the pleadings, that the actions or omissions of defendants were undertaken by them in the course of their duties as public officials representing the Commonwealth in the litigation arising from the accident. ...


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