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HERNANDEZ v. WHITESELL

October 6, 1978

M. Rosario HERNANDEZ, Administratrix of the estate of Elena H. Gonzalez, Deceased, Plaintiff,
v.
Clark WHITESELL et al., Defendants



The opinion of the court was delivered by: FULLAM

Plaintiff's decedent was killed when her car skidded on an icy roadway. Plaintiff initially filed suit against the Pennsylvania Department of Transportation ("PennDOT") and various of its employees. PennDOT was dismissed as a defendant in 1977, on grounds of sovereign immunity. At that time, the Supreme Court of Pennsylvania had pending before it several cases in which abrogation of the defense of sovereign immunity was being sought; accordingly, the Order of dismissal in this case was expressly made without prejudice to plaintiff's right to refile her action against PennDOT in the event an intervening change in the law of Pennsylvania justified such action.

 On July 14, 1978, the Supreme Court of Pennsylvania decided the case of Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978) abolishing the defense of sovereign immunity. Plaintiff thereafter brought a separate action against PennDOT, Civil Action No. 78-2424, but that action has been withdrawn by mutual consent (presumably because of the pendency of actions instituted by plaintiff in the Commonwealth Court and in the Court of Common Pleas of Chester County).

 Meanwhile, plaintiff filed an Amended Complaint in this action naming as defendants various individual employees of PennDOT, and also West Goshen Township and certain employees of that Township. West Goshen Township filed a third-party complaint against PennDOT, and also against the remaining individual defendants. *fn1" The various defendants have filed motions to dismiss plaintiff's Amended Complaint, and the third-party defendants have filed motions to dismiss West Goshen Township's third-party complaint. In addition, plaintiff is pressing various discovery motions.

 I.

 Defendants' Motions to Dismiss Plaintiff's Amended Complaint

 To the extent that the motions to dismiss the Amended Complaint are based upon the assertion of sovereign immunity, they now lack merit, in view of Mayle v. PennDOT, supra. I agree with the defendants, however, that the abolition of the doctrine of sovereign immunity does not impair the continued vitality in Pennsylvania of the doctrine of official immunity.

 Under Pennsylvania law, a "high public official" acting within the scope of his authority, is absolutely immune from civil liability; a "low public official" is conditionally immune. U. S. ex rel. Fear v. Rundle, 506 F.2d 331 (3d Cir. 1974); Fischer v. Kassab, 25 Pa.Cmwlth. 593, 360 A.2d 809 (1976); Freach v. Commonwealth, 471 Pa. 558, 370 A.2d 1163 (1977). It does not appear that any of the individual defendants occupied a policy-making position at a level which would qualify the incumbent as a "high public official." At best, therefore, they must be regarded as perhaps entitled to a qualified immunity: If the actions or omissions giving rise to liability were matters committed to their discretion, they would be immune so long as that conduct was not malicious, wanton or reckless. If they were not vested with discretion in the premises, then it would seem they would be liable for mere negligence. U. S. ex rel. Fear v. Rundle, supra, at p. 335. It seems virtually self-evident that the issues of qualified privilege cannot properly be determined on the pending motions to dismiss; a fuller development of the factual background is required. The motions to dismiss plaintiff's Amended Complaint will therefore be denied.

 II.

 Individual Third-Party Defendants' Motions to Dismiss the Third-Party Complaint of West Goshen Township

 Just as plaintiff's Complaint cannot be dismissed, on this record, on grounds of sovereign immunity or official immunity, the cross-claims of West Goshen Township against the individual defendants are not vulnerable on those grounds, to the extent that the Township seeks indemnity or contribution. Of course, under federal third-party practice, it is impermissible for West Goshen Township to seek to impose "sole liability" upon the third-party defendants for plaintiff's damages. Language in the cross-claims asserting sole liability will therefore be disregarded as surplusage.

 III.

 Plaintiff's Discovery Motions

 Plaintiff is clearly entitled to the discovery sought. The defendants will be required to comply with all outstanding discovery requests within thirty days from this date. ...


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