decided: September 29, 1977.
PAMELA PORR, AN INCOMPETENT, BY FRED W. PORR AND GLADYS PORR, HER PARENTS AND NATURAL GUARDIANS; TAMRA PORR, BY FRED W. PORR AND GLADYS PORR, HER PARENTS AND NATURAL GUARDIANS; AND FRED W. PORR AND GLADYS PORR, PLAINTIFFS
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE POLICE, JAMES A. BARGER, COMMISSIONER, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES, RONALD G. LENCH, SECRETARY, DEFENDANTS
Original jurisdiction in case of Pamela Porr, an incompetent, by Fred W. Porr and Gladys Porr, her parents and natural guardians; Tamra Porr, by Fred W. Porr and Gladys Porr, her parents and natural guardians; and Fred W. Porr and Gladys Porr v. Commonwealth of Pennsylvania, Department of State Police, James A. Barger, Commissioner; Commonwealth of Pennsylvania, Department of General Services, Ronald G. Lench, Secretary.
P. Nelson Alexander, with him Alexander, Alexander & Tucker, for plaintiffs.
David Max Baer, Deputy Attorney General, with him J. Justin Blewitt, Jr., 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 Wilkinson, Jr.
[ 32 Pa. Commw. Page 69]
This case is another in which the Department of State Police, its then Commissioner (Commissioner), and the Department of General Services and its Secretary (Secretary) have entered preliminary objections raising, inter alia, the defenses of sovereign immunity (as to the departments) and absolute immunity (as to the Commissioner and Secretary) to a complaint alleging defendants' liability for an automobile accident involving a vehicle driven by one of the plaintiffs and another driven by a state police trooper.
This case arises out of the same facts as Kenno v. Department of State Police, 31 Pa. Commonwealth Ct. 207, 375 A.2d 1358 (1977), in which this Court, in an opinion by Judge Mencer, upheld defendants' preliminary objections. That opinion is controlling here. We need only note further that plaintiffs' argument that absolute immunity should not attach to the Commissioner
[ 32 Pa. Commw. Page 70]
and Secretary here because the basis of their liability is allegedly not predicated on a discretionary act has been expressly refuted in Fischer v. Kassab, 25 Pa. Commonwealth Ct. 593, 360 A.2d 809 (1976).
Accordingly, we will enter the following
Now, September 29, 1977, the preliminary objections of defendants Commonwealth of Pennsylvania, Department of State Police, and James A. Barger, Commissioner, and Commonwealth of Pennsylvania, Department of General Services and Ronald Lench, Secretary, dated August 25, 1976, to the complaint transferred to the Commonwealth Court of Pennsylvania at No. 10 T.D. 1977, are hereby sustained and the complaint dismissed.
Preliminary objections sustained. Complaint dismissed.
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