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BERNARD A. FISCHER v. JACOB G. KASSAB (12/05/77)

decided: December 5, 1977.

BERNARD A. FISCHER, EXECUTOR OF THE ESTATE OF SALLY WILSON, DECEASED, PLAINTIFF
v.
JACOB G. KASSAB, SECRETARY OF TRANSPORTATION ET AL., DEFENDANTS



Original jurisdiction in case of Bernard A. Fischer, Executor of the Estate of Sally Wilson, Deceased, v. Jacob G. Kassab, David C. Simms, Harold C. Poulson, Phillip W. Amos, Anthony Daliessio, Thomas J. Duff, Joseph P. Synkonis, Jr., Harold A. Humbert, Joseph P. Wade, Haverford Township and Thomas Banner.

COUNSEL

Barry S. Yaches, with him Joseph D. Shein, and Shein & Brookman, P.A., for plaintiff.

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

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 32 Pa. Commw. Page 582]

The personal representative of Sally Wilson, deceased, has brought this wrongful death and survival

[ 32 Pa. Commw. Page 583]

    action invoking our original jurisdiction under Section 401(a)(1) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, (ACJA), 17 P.S. ยง 211.401(a)(1). It is alleged by plaintiff that those defendants who are employees of the Pennsylvania Department of Transportation (PennDOT) acted negligently, maliciously, wilfully, wantonly and with complete disregard to the safety of plaintiff's decedent in the construction, maintenance and operation of a highway and that such conduct caused the death of plaintiff's decedent. Similar averments are directed to Haverford Township and the Township Manager who are also named as defendants.

Preliminary objections filed by the PennDOT employees claim absolute immunity as "high" public officials and conditional immunity as "low" public officials.

In Fischer v. Kassab (I), 25 Pa. Commonwealth Ct. 593, 360 A.2d 809 (1976), the first time these proceedings came before this Court, we sustained the preliminary objections of Jacob G. Kassab, Secretary of Transportation, on the ground that he was a "high" public official entitled to absolute immunity from suit. DuBree v. Commonwealth, 8 Pa. Commonwealth Ct. 567, 303 A.2d 530 (1973) (allocatur denied). We also ordered plaintiff to take depositions of the remaining PennDOT employees with regard to their job functions so as to enable us to make an informed judgment regarding their claims to immunity.

Before ruling on the outstanding preliminary objections, however, we must examine our jurisdiction, for without such jurisdiction we may not rule on the preliminary objections. Opie v. Glascow, Inc., 30 Pa. Commonwealth Ct. 555, 375 A.2d 396 (1977).

Section 401(a)(1) of the ACJA vests in this Court exclusive original jurisdiction ...


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