decided: November 3, 1976.
DONNA LYNN REIFF, A MINOR, BY HER PARENTS AND NATURAL GUARDIANS, DONALD A. REIFF AND DOVIE K. REIFF, AND DONALD A. REIFF AND DOVIE K. REIFF, IN THEIR OWN RIGHT, PLAINTIFFS
COMMONWEALTH OF PENNSYLVANIA, CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL., DEFENDANTS
Original jurisdiction in the Commonwealth Court of Pennsylvania in case of Donna Lynn Reiff, a minor, by her parents and natural guardians, Donald A. Reiff and Dovie K. Reiff, and Donald A. Reiff and Dovie K. Reiff, in their own right v. Commonwealth of Pennsylvania and Pennsylvania Board of Probation and Parole.
Melvin Alan Bank, with him Bank, Minehart & D'Angelo, for plaintiffs.
Robert A. Greevy, Assistant Attorney General, with him J. Andrew Smyser, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendants.
Judges Crumlish, Jr., Wilkinson, Jr., and Rogers, sitting as a panel of three. Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Crumlish.
[ 27 Pa. Commw. Page 505]
This is a trespass action in which plaintiffs, invoking the original jurisdiction of this Court,*fn1 seek to recover damages for injuries sustained by the minor plaintiff during the course of the robbery of a Philadelphia shop. The Reiffs assert that the present defendants, the Commonwealth of Pennsylvania and the Pennsylvania Board of Probation and Parole (Board), are liable because of the gross and wanton negligence, recklessness and carelessness of certain members and employees of the Board.*fn2 Specifically, it is alleged that the defendants, with knowledge of the serious criminal records of the alleged felons, did one or more of the following: allowed the robbers to be released on parole, failed to properly supervise them while on parole, and failed to apprehend them for criminal activity until after the plaintiff had been injured.
The Commonwealth and the Board have raised preliminary objections, alleging that the doctrine of sovereign immunity clothes both the Commonwealth and
[ 27 Pa. Commw. Page 506]
the Board with absolute tort immunity. The resolution of this matter is controlled by our recent decision in Freach v. Commonwealth, 24 Pa. Commonwealth Ct. 546, 354 A.2d 908 (1976), where we held that suits against the Commonwealth and the Board are expressly precluded by Article I, Section 11 of the Pennsylvania Constitution. However, plaintiffs suggest that in view of recent legislative expressions of concern for the innocent victims of crimes,*fn3 we should reconsider the doctrine of sovereign immunity, at least insofar as it prevents actions of this character.
The Commonwealth Court has often held that it has no power or authority to ignore or overturn prior pronouncements of the Supreme Court of Pennsylvania controlling this subject matter. And as the Supreme Court has repeatedly held, the Commonwealth's immunity can be waived only by express legislative enactment manifesting a consent to suit. Brown v. Commonwealth of Pennsylvania, 453 Pa. 566, 305 A.2d 868 (1973). Neither of the two recent acts cited to us by plaintiffs satisfied this constitutional requirement. Thus, we are left with no choice but to conclude that the doctrine of sovereign immunity insulates both of the present defendants from liability.
And Now, this 3rd day of November, 1976, it is hereby ordered that the preliminary objections of the Commonwealth are sustained and the complaint herein is dismissed.
Preliminary objections sustained. Complaint dismissed.
[ 27 Pa. Commw. Page 507]
Concurring and Dissenting Opinion by Judge Crumlish:
I must respectfully dissent. As I stated in my Concurring and Dissenting Opinion in Freach v. Commonwealth, 24 Pa. Commonwealth Ct. 546, 354 A.2d 908 (1976), my position is that the Pennsylvania Constitution neither requires nor prohibits sovereign immunity, but rather, is neutral on the subject and merely sets forth the procedure whereby the Commonwealth may waive the power to be immune. Therefore, it is within the power of the judiciary to examine the merits of the doctrine and, if necessary, excise the doctrine from our law. Finally, in all sovereign immunity cases, we must develop a discovery procedure designed to adduce all relevant information as to the duties of an individual defendant before cloaking him with absolute immunity.