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BETTY MCDONOUGH v. COMMONWEALTH PENNSYLVANIA (10/15/76)

decided: October 15, 1976.

BETTY MCDONOUGH, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA, GULF INSURANCE COMPANY AND RESERVE INSURANCE COMPANY ET AL., DEFENDANTS



Original jurisdiction in the Commonwealth Court of Pennsylvania in case of Betty McDonough v. Commonwealth of Pennsylvania, Gulf Insurance Company and Reserve Insurance Company.

COUNSEL

Harry R. Nixon, with him Schneider, Nixon & John, for plaintiff.

John J. Walash, Jr., with him Joseph G. Manta, and LaBrum & Doak, for defendant, Gulf Insurance Co.

F. Murray Bryan, with him Clyde W. McIntyre, and McNees, Wallace & Nurick, for defendant, Reserve Insurance Company.

Joseph W. McGuire, Deputy Attorney General, with him J. Justin Blewitt, Jr., Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant, Commonwealth.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 26 Pa. Commw. Page 564]

Plaintiff filed a taxpayers' suit against the Commonwealth of Pennsylvania (Commonwealth) and two named insurance carriers. The complaint alleges that the Commonwealth has paid substantial sums to the defendant carriers to insure state employes against liability for injuries and damages caused by them in the course of their employment. Plaintiff argues that because Commonwealth employes are immune from liability for ordinary negligence the risk of liability insured against is nonexistent. Consequently, it is alleged that the defendant carriers are unjustly enriched by the receipt of premiums without consideration. An accounting of the premiums is sought together with the refund of the premiums to the Commonwealth. No relief is sought against the Commonwealth. Preliminary objections challenging the jurisdiction of this Court have been raised by the defendant insurance carriers.

[ 26 Pa. Commw. Page 565]

The Court's jurisdiction in this case is dependent on the Commonwealth remaining a party to the action. Section 401 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.401, has been interpreted as conferring exclusive original jurisdiction to the Commonwealth Court "where the Commonwealth is an original party defendant or is determined to be an indispensable party defendant." Keitt v. Ross, 17 Pa. Commonwealth Ct. 183, 189, 331 A.2d 582, 584 (1975). Since no relief is sought against the Commonwealth, this Court's jurisdiction depends upon whether or not the Commonwealth is an indispensable party to the plaintiff's equity action. See Comerford v. Factoryville Borough Council, 16 Pa. Commonwealth Ct. 261, 263, 328 A.2d 221, 222 (1974).

Whether the Commonwealth is an indispensable party to this action cannot be determined by "simply considering rules of civil procedure and decisional law as adopted and developed within traditional concepts of parties at law." Ross v. Keitt, 10 Pa. Commonwealth Ct. 375, 380, 308 A.2d 906, 908 (1973). Difficult constitutional issues enter into the determination, such as sovereign immunity. See Pa. Const. art. I, § 11; Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973). This immunity has been extended to cases in equity. Philadelphia Life Insurance Co. v. Commonwealth, 410 Pa. 571, 190 A.2d 111 (1963).

Plaintiff argues that the Commonwealth is an indispensable party because the Commonwealth would be the beneficiary if the action is successful. President Judge Bowman discarded that position by stating:

"[T]he Commonwealth of Pennsylvania -- as a sovereign state -- should not be declared to be an indispensable party to an action or proceeding . . . unless such ...


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