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RONALD C. WALTER v. COMMONWEALTH PENNSYLVANIA AND JEROME COLBERT (05/20/77)

decided: May 20, 1977.

RONALD C. WALTER, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA AND JEROME COLBERT, NICHOLAS KOHUT AND CLYDE J. MCCORMACK, DEFENDANTS. WILLIAM MIGNONA, JR. AND DAWN MIGNONA, HIS WIFE, PLAINTIFFS V. COMMONWEALTH OF PENNSYLVANIA AND JEROME COLBERT, NICHOLAS KOHUT AND CLYDE J. MCCORMACK, DEFENDANTS



Original jurisdiction in case of Ronald C. Walter v. Commonwealth of Pennsylvania, Jerome Colbert, Nicholas Kohut and Clyde J. McCormack; and William Mignona, Jr. and Dawn Mignona, his wife, v. Commonwealth of Pennsylvania, Jerome Colbert, Nicholas Kohut and Clyde J. McCormack.

COUNSEL

Josephine Stamm, with her Milton M. Borowsky, for plaintiffs.

Lawrence Barth, Assistant Attorney General, with him Michael von Moschzisker, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant, Commonwealth.

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

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

Author: Mencer

[ 30 Pa. Commw. Page 249]

Ronald C. Walter filed a complaint in trespass within our original jurisdiction, naming as defendants the Commonwealth of Pennsylvania and three individuals, Jerome Colbert, an inmate of Graterford State Correctional Institution (Graterford), together with Nicholas Kohut and Clyde J. McCormack, in their respective capacities as farm manager and automobile mechanic at Graterford. The same defendants were named in a companion complaint in trespass filed in this Court by William Mignona, Jr., and Dawn Mignona, his wife. The allegations of the complaints indicate that, on August 26, 1974, plaintiffs Walter and Mignona, Jr., were working on an International pickup truck owned by the Commonwealth and used at the

[ 30 Pa. Commw. Page 250]

Graterford prison and, while attempting to seat one of the front tires upon the tire rim on which it had been mounted, were seriously injured when the tire exploded.

This unhappy event led to a previous filing of trespass actions by the same plaintiffs, naming the Commonwealth of Pennsylvania and two individuals, Ronald J. Marks, Superintendent of Graterford, and Clyde McCormack, as defendants. In Walter v. Commonwealth, 23 Pa. Commonwealth Ct. 97, 350 A.2d 440 (1976), we sustained preliminary objections and dismissed the complaints. As we acknowledged in Schroeck v. Pennsylvania State Police, 26 Pa. Commonwealth Ct. 41, 362 A.2d 486 (1976), we now deem the dismissal of the complaint in this type of case to be in error and without our jurisdiction to so hold. In Walter, we held that the Commonwealth was immune from suit in tort by virtue of the doctrine of sovereign immunity*fn1 and that, in the absence of any allegations of intentionally malicious, wanton, or reckless conduct, the individual employes of Graterford were entitled to conditional immunity from tort liability.*fn2 The plaintiffs did not appeal from that decision but responded by filing the complaints referred to at the outset of this opinion. We are presently confronted with the preliminary objections filed to these new complaints by the Commonwealth and defendants Kohut and McCormack.

The Commonwealth's preliminary objections raise the defense of absolute sovereign immunity which is derived from Article I, Section 11 of the Pennsylvania Constitution.*fn3 Our Supreme Court has consistently

[ 30 Pa. Commw. Page 251]

    held that the Commonwealth enjoys absolute immunity absent legislative consent to suits against it. Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973). We must, therefore, sustain the Commonwealth's preliminary ...


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