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SALIX STATE BANK v. COMMONWEALTH PENNSYLVANIA (06/16/78)

decided: June 16, 1978.

SALIX STATE BANK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF BANKING, RESPONDENT



Original jurisdiction in case of Salix State Bank v. Commonwealth of Pennsylvania, Department of Banking.

COUNSEL

Edward F. Peduzzi, with him Myers, Taylor & Peduzzi, for petitioner.

John E. Nanorta, Assistant Attorney General, with him Melvin R. Shuster, Deputy Attorney General, and Robert P. Kane, Attorney General, for respondent.

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

Author: Bowman

[ 36 Pa. Commw. Page 121]

Respondent, Department of Banking (Department), has filed preliminary objections to a petition

[ 36 Pa. Commw. Page 122]

    for review in which petitioner, Salix State Bank (Salix), seeks an order of this Court (1) reversing a Department "order," and (2) enjoining the Department from requiring Salix to rebate to borrowers alleged unlawful interest charges.

As filed, the petition for review invoked this Court's original jurisdiction pursuant to Section 401, Appellate Court Jurisdiction Act of 1970 (ACJA), Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.401, and our appellate jurisdiction pursuant to Section 403, ACJA, 17 P.S. § 211.403. To the extent that the petition for review asserted our appellate jurisdiction with respect to appeals from state administrative adjudications, the Department filed a motion to quash because it was untimely taken. The motion was granted and the matter proceeded as one within our original jurisdiction in the nature of a complaint in equity questioning a governmental determination. See Pa. R.A.P. 1512(c), 1513.*fn1 Thereafter, the Department filed its preliminary objections now before us, which raise three issues: (1) immunity from suit; (2) failure to plead a justiciable issue as the Department to date has not sought judicial enforcement of its "order"; and (3) in the nature of a demurrer for failure to state a cause of action.

The Department's assertion of immunity from suit is without merit. Though it has been held that this

[ 36 Pa. Commw. Page 123]

    immunity extends to actions in equity, Ross v. Keitt, 10 Pa. Commonwealth Ct. 375, 308 A.2d 906 (1973), aff'd, 466 Pa. 576, 353 A.2d 841 (1976), this has been done in the context of prospective civil damages. See Schroeck v. Pennsylvania State Police, 26 Pa. Commonwealth Ct. 41, 362 A.2d 486 (1976).

The distinction is clear between suits against the Commonwealth which are within the rule of its immunity and suits to restrain officers of the Commonwealth from enforcing the provisions of a statute claimed to be unconstitutional. Suits which seek to compel affirmative action on the part of state officials or to obtain money damages or to recover property from the Commonwealth are within the rule of immunity; suits which simply seek to ...


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