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decided: December 9, 1976.


Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Willie Harris v. Alfred Rundle, George Petsock, Alfred Thomas, Edward Weinhoffer, Lawrence Mrofka, Edward Steele, Edwin Anderson, M.D., Elmer V. Place, M.D., Arthur T. Prasse, Bureau of Correction, and Commonwealth of Pennsylvania, No. 69-3195, March Term, 1969.


Norman Ashton Klinger, for appellant.

Lawrence Barth, Assistant Attorney General, with him Michael Von Moschzisker, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellees.

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

Author: Kramer

[ 27 Pa. Commw. Page 446]

This is an appeal by Willie Harris from an order of the Court of Common Pleas of Montgomery County, dated July 2, 1975, which sustained the preliminary objections of the defendants-appellees and dismissed Harris' trespass complaint. The preliminary objections were in the nature of a demurrer and may be generally characterized as raising the defense of immunity as to all defendants.

The tragic facts which underlie this suit may be briefly summarized. On March 10, 1967, Harris was

[ 27 Pa. Commw. Page 447]

    an inmate at the State Correctional Institution at Graterford. On that date, Harris, along with other inmates, was assigned to forestry duties on behalf of the Commonwealth. During the course of his work, Harris was pinned beneath two fallen trees and sustained a leg fracture and spinal injuries. Harris alleges that the appellees are liable to him because of his assignment to duties for which he was totally untrained, for negligence in reacting to his emergency situation, and for negligent treatment after he was removed from the scene of the injury. Harris remains paralyzed from the waist down.

Before turning to a consideration of the issues raised by Harris, an unusual problem posed by the procedural posture of this case must be resolved. The defendants-appellees consist of: (1) the Commonwealth; (2) the Bureau of Corrections of the Commonwealth; (3) the Commissioner of the Bureau; (4) the Superintendent of the State Correctional Institution at Philadelphia; (5 the Warden of the Graterford institution; (6) the Director of Treatment Services at the Philadelphia institution; (7) the Chief Medical Officers at the Philadelphia and Graterford institutions; (8) a physician at the Graterford institution; and (9) five guards at the Graterford institution.

Under Section 401(a)(1) of the Appellate Court Jurisdiction Act of 1970 (ACJA), Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.401(a)(1), the Commonwealth Court is granted original jurisdiction over civil actions or proceedings against the Commonwealth and any officer thereof, acting in his official capacity. Section 401(b) makes this jurisdiction exclusive. Schroeck v. Pennsylvania State Police, et al., 26 Pa. Commonwealth Ct. 41, 362 A.2d 486 (1976). This Court does not enjoy original jurisdiction, exclusive or otherwise, over employees of the Commonwealth. Schroeck, supra. Moreover, appellate jurisdiction over suits against employees of the Commonwealth is

[ 27 Pa. Commw. Page 448]

    vested in the Superior Court under Section 302 of the ACJA, 17 P.S. § 211.302.

It is apparent from the listing of defendants that this suit involves both officers and employees of the Commonwealth. See Schroeck, supra; Forney v. Harrisburg State Hospital, 18 Pa. Commonwealth Ct. 17, 336 A.2d 709 (1975). Thus, had proper procedure been followed, the court below would have: (1) determined which of the defendants are officers and which employees of the Commonwealth; (2) transferred the case, insofar as the Commonwealth and its officers are involved, to this Court; and (3) ruled on the preliminary objections of the employees, from which ruling an appeal to the Superior Court could have been taken by Harris.

This Court could, of course, remand this case to the court below for proceedings in conformance with the foregoing, but we are convinced that such a course of action is mandated neither by the law nor by prudence. Nearly 10 years have passed since Harris' tragic accident, and it has been eight years since the suit was commenced. After a careful review of the facts and the law, the discussion of which is to follow, we must conclude that there can be but a single answer to the preliminary objections of all of the defendants-appellees. Thus, for reasons of judicial economy and to spare the parties the burden of protracted litigation, this case should be resolved if it is within the power of this Court to do so. We conclude that it is within our power.

Under Section 503 of the ACJA, 17 P.S. § 211.503, the jurisdiction of an appellate court over an improperly filed appeal is perfected by the appellees' failure to object to that jurisdiction on or prior to the ...

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