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BERNARD A. FISCHER v. JACOB G. KASSAB (07/22/76)

decided: July 22, 1976.

BERNARD A. FISCHER, EXECUTOR OF THE ESTATE OF SALLY WILSON, DECEASED, PLAINTIFF
v.
JACOB G. KASSAB, SECRETARY OF TRANSPORTATION, ET AL., DEFENDANTS



Original jurisdiction in case of Bernard A. Fischer, Executor of the Estate of Sally Wilson, deceased v. Jacob G. Kassab, David C. Simms, Harold C. Poulson, Phillip W. Amos, Anthony Daliessio, Thomas J. Duff, Joseph P. Synkonis, Jr., Harold A. Humbert, Joseph P. Wade, Haverford Township, Thomas Banner, John Doe, John Doe, John Doe and John Doe.

COUNSEL

Joseph D. Shein, with him Shein & Brookman, P.A., for plaintiff.

Joseph Goldberg, with him Edwin L. Scherlis, and Frank, Margolis, Edelstein and Scherlis, for defendants.

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

Author: Rogers

[ 25 Pa. Commw. Page 595]

Invoking the original jurisdiction of this Court, the personal representative of Sally Wilson, deceased, has filed a wrongful death and survival action against individuals, who, it is alleged, acted negligently in the performance of the duties of their employment with or by the Commonwealth's Department of Transportation (PennDOT) in the maintenance of a State highway. Also named as defendants are Haverford Township and an employe of that municipality. All of the defendants are alleged to have acted wilfully, wantonly, maliciously and with complete disregard of the decedent's safety.

The defendants who are employes of PennDOT have filed preliminary objections on the basis of absolute and conditional immunity, a demurrer and a motion to strike for failure to conform to the Pennsylvania Rules of Civil Procedure. Those defendants are: Jacob G. Kassab, Secretary of Transportation; David C. Simms, Deputy Secretary for Highway Administration; Harold C. Poulson, Deputy Chief Highway Engineer East; Phillip W. Amos, Assistant Deputy Chief Highway Engineer East; Anthony D. Daliessio, former Superintendent of Maintenance, Delaware County; Thomas J. Duff, present Superintendent of Maintenance, Delaware County; Joseph P. Synkonis, Jr., District Engineer of Engineering District 6-0, Delaware County; Harold A. Humbert, Deputy District Engineer, Engineering District 6-0; Joseph P. Wade, Assistant District Engineer (Operations), Delaware County.

Recent opinions of this Court have reviewed the state of the law concerning absolute and conditional

[ 25 Pa. Commw. Page 596]

    immunity. Absolute immunity attaches to the actions of "high public officials" when acting within the scope of their authority; conditional immunity attaches to actions of other public officials so long as they are acting within the scope of their authority and so long as the conduct was not malicious, wanton or reckless. Trulli v. City of Philadelphia, 23 Pa. Commonwealth Ct. 611, 353 A.2d 502 (1976); Kulik v. Stotelmyer, 23 Pa. Commonwealth Ct. 583, 354 A.2d 916 (1976); Freach v. Commonwealth of Pennsylvania, Department of Welfare, 23 Pa. Commonwealth Ct. 546, 354 A.2d 908 (1976); DuBree v. Commonwealth, 8 Pa. Commonwealth Ct. 567, 303 A.2d 530 (1973); See also Ammlung v. Platt, 224 Pa. Superior Ct. 47, 302 A.2d 491 (1973). Whether the actions of the public officials complained of are discretionary or non-discretionary is without significance. Walter v. Commonwealth of Pennsylvania, 23 Pa. Commonwealth Ct. 97, 350 A.2d 440 (1976).

Suits against officers of the Commonwealth are properly brought before this Court. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. ยง 211.401(a)(1). Hence, high public officials of the Commonwealth may be sued here; other officers and employes enjoying only conditional immunity must be sued in courts of common pleas.

[ 25 Pa. Commw. Page 597]

The determination of whether Commonwealth officers are high public officials depends on the nature of their duties, the importance of their offices and whether they have policy-making functions. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958); DuBree v. Commonwealth, supra. They will be held to be high public officials if sovereign functions of government are delegated to them to be exercised for the ...


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