No. 141 January Term, 1977, Appeal from the Order of the Commonwealth Court at No. 137 C.D. 1975
Robert M. Ruzzi, Bernard J. Avellino, Philadelphia, for appellants.
Richard Herskovitz, Asst. Atty. Gen., Harrisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., concurs in the result.
Appellants' decedents, Audrey S. Reinert and Vicki L. Mitch, were killed in an automobile collision on February 3, 1974, on Legislative Route 100 in Chester County, Pennsylvania. Marian J. Reinert and Robert L. Mitch, the respective administrators of the decedents' estates, filed a joint complaint in Commonwealth Court against the Pennsylvania Department of Transportation, asserting survival and wrongful death causes of action arising out of the alleged
negligence of the defendant in failing to design or construct the state highway here involved with a guard rail separating opposing lanes of traffic. The Department of Transportation filed a preliminary objection "in the nature of a petition raising a question of jurisdiction" asserting the immunity from suit of the Commonwealth of Pennsylvania by virtue of Article I, Section 11 of the Constitution of Pennsylvania and praying for a dismissal of the complaint. The Commonwealth Court sustained the objection and dismissed the complaint.*fn1 This appeal followed.*fn2
Recent developments in this Commonwealth in the area of sovereign immunity which have occurred since the decision of the Commonwealth Court under review control the outcome of this appeal. Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). This requires that we reverse the order of the Commonwealth Court and remand the case to that court for further proceedings.