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JOSEPH M. TARANTINO v. ALLENTOWN STATE HOSPITAL AND COMMONWEALTH PENNSYLVANIA (12/19/74)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 19, 1974.

JOSEPH M. TARANTINO, ADMINISTRATOR OF THE ESTATE OF JANICE A. TARANTINO, DECEASED, PLAINTIFF,
v.
ALLENTOWN STATE HOSPITAL AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, DEFENDANTS

Original jurisdiction in case of Joseph M. Tarantino, Administrator of the Estate of Janice A. Tarantino, deceased, v. Allentown State Hospital, Department of Public Welfare, Commonwealth of Pennsylvania.

COUNSEL

Rodney D. Henry, for plaintiff.

Allen C. Warshaw, Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Israel Packel, Attorney General, for defendants.

Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 16 Pa. Commw. Page 134]

Plaintiff Joseph M. Tarantino, administrator of the estate of Janice A. Tarantino, deceased, has filed wrongful death and survival actions against the Commonwealth of Pennsylvania, the Department of Public Welfare and the Allentown State Hospital charging the defendants with negligent and improper treatment of his decedent at Allentown State Hospital. At issue are the defendants' preliminary objections grounded on sovereign immunity.

The complaint must be dismissed. We may not entertain suits against the Commonwealth and its agencies without the consent of the Commonwealth. Pa. Const. Art. I, ยง 11 (1968); Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973). The Department of Public Welfare and the Allentown State

[ 16 Pa. Commw. Page 135]

Hospital, as defendants, are clearly within the scope of constitutional interdiction. McCoy v. Commonwealth, 9 Pa. Commonwealth Ct. 107, 305 A.2d 746 (1973), aff'd per curiam, 457 Pa. 513, 326 A.2d 396 (1974). As we have repeatedly written,*fn1 most recently in Hart v. Spectrum Arena, Inc., 15 Pa. Commonwealth Ct. 584, 329 A.2d 311 (1974), this court is without power to set aside the Constitution and superior appellate authority.

The defendants' preliminary objections are sustained and the complaint dismissed.

Disposition

Preliminary objections sustained. Complaint dismissed.


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