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THOMAS F. WALLACE v. COMMONWEALTH PENNSYLVANIA (12/08/77)

decided: December 8, 1977.

THOMAS F. WALLACE, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, ET AL., DEFENDANTS



Original jurisdiction in case of Thomas F. Wallace v. Department of Public Welfare, Commonwealth of Pennsylvania; Helene Wohlgemuth, Secretary of Public Welfare for the Commonwealth of Pennsylvania; the Director and Superintendent of Dixmont State Hospital; the Commissioner of Mental Health for the Commonwealth of Pennsylvania; and the Trustees of Dixmont State Hospital.

COUNSEL

David L. Gropp, for plaintiff.

Paul R. Marks, with him Egler & Reinstadtler; Robert S. Englesberg, Assistant Attorney General, and Robert P. Kane, Attorney General, for defendants.

Judges Wilkinson, Jr. and Rogers, sitting as a panel of two. Opinion by Judge Rogers.

Author: Rogers

[ 32 Pa. Commw. Page 616]

Thomas F. Wallace started suit in trespass in the Court of Common Pleas of Allegheny County seeking damages for injuries sustained in a fall from a second-story window at the Dixmont State Hospital where he was a patient. Wallace sued the Commonwealth of Pennsylvania, Department of Public Welfare; Helene Wohlgemuth, Secretary of Public Welfare; the Commissioner of Mental Health for the Commonwealth of Pennsylvania; the Superintendent of Dixmont State Hospital; and the trustees of the same institution. The Allegheny County Court of Common Pleas transferred the case to this Court pursuant to Pa. R.C.P. No. 213(f), on the ground that exclusive jurisdiction was in the Commonwealth Court by virtue of Section 401 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. ยง 211.401.

The Commonwealth, Department of Public Welfare, has filed preliminary objections in the nature of a demurrer asserting the suit against it is barred by the

[ 32 Pa. Commw. Page 617]

    sovereign immunity granted the Commonwealth by Article I, Section 11 of the Pennsylvania Constitution. These preliminary objections must be sustained. It has been consistently held that the Commonwealth and its agencies enjoy absolute immunity absent legislative assent to such suits. Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973).

The Secretary of Public Welfare, Commissioner of Mental Health, the Superintendent and the trustees of Dixmont State Hospital have also filed preliminary objections in the nature of demurrers, claiming, inter alia, that they are high public officials entitled to absolute immunity from suits arising out of performance of their duties. Before ruling on the preliminary objections of these defendants, we must examine our jurisdiction. In Fischer v. Kassab, 32 Pa. Commonwealth Ct. 581, A.2d (1977), President Judge Bowman thoroughly and definitively treated the matter of our original jurisdiction with respect to actions or proceedings against officers of the Commonwealth as that term is used in Section 401(a)(1) of the Appellate Court Jurisdiction Act and concluded that:

The question to be asked, therefore, is whether the defendant in question is charged with responsibility to independently initiate administrative policy on a state-wide basis with regard to a sovereign function of the Commonwealth. If the answer is no, this Court is without jurisdiction. If the answer is yes, we must then rule upon the issue of immunity.

Fischer v. Kassab, supra at , A.2d at .

Fischer v. Kassab, supra, did not disturb the settled decisional law that high public officials acting within the scope of their authority are entitled to absolute immunity while non-high public officials enjoy conditional immunity for acts of ...


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