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PALMER v. PENN-OHIO RD. MATERIALS

May 21, 1979

Loran D. PALMER and Brenda M. Palmer, husband and wife, and Arthur Stewart, Administrator of the Estate of Esther Stewart, Deceased, Plaintiffs,
v.
PENN-OHIO ROAD MATERIALS, INC., Defendant and Third-Party Plaintiff, v. SPECTOR FREIGHT SYSTEMS, INC., Defendant, v. Loran D. PALMER, Third-Party Defendant, and L. G. Kisseleff, W. C. Moffit, J. P. Iacino, Jack Bestwick, and G. L.Pellegrini, Third-Party Defendants. Loran D. PALMER and Brenda M. Palmer, husband, wife, and Arthur Stewart, Administrator of the Estate of Esther Stewart, Deceased, Plaintiffs, v. L. G. KISSELEFF, W. C. Moffit, J. P. Iacino, Jack Bestwick and G. L.Pellegrini, Defendants



The opinion of the court was delivered by: ZIEGLER

I. History of Case

This wrongful death, survival and personal injury action arises out of a vehicular collision which occurred on March 27, 1976, on Interstate 80, Mercer County, Pennsylvania. The roadway is a four-lane highway with two eastbound and two westbound lanes of travel separated by a medial strip.

 Plaintiff, Loran D. Palmer, was operating a motor vehicle with passengers in a westerly direction. At a point near a construction project, traffic was restricted to one lane in each direction in the westbound lane. Plaintiff was proceeding behind a tractor-trailer in the right lane. After clearing certain traffic barriers, he pulled into the left lane to pass the rig.

 An employee of defendant, Spector Freight Systems, Inc., was operating a tractor-trailer in the same lane but in an easterly direction. Palmer swung to the left to avoid a collision but without success. As a result of the impact, Loran and Brenda Palmer sustained serious personal injuries and Esther Stewart was killed.

  Plaintiffs instituted diversity actions for compensatory damages against a number of defendants. Claims were filed against Spector Freight Systems, Inc., the Commonwealth of Pennsylvania, *fn1" several employees of the Commonwealth of Pennsylvania Department of Transportation (hereinafter Commonwealth employees), and Penn-Ohio Road Materials, Inc., the contractor that erected the signs and barriers pursuant to a contract with the sovereign.

 Plaintiffs contend the Commonwealth employees were negligent in the following particulars: (1) failing to properly inspect the construction site to insure compliance with the contract between Penn-Ohio and the state; (2) failure to adequately protect motorists traveling west near the situs of the accident; and (3) failure to enforce the terms of the contract by requiring Penn-Ohio to erect markers or paint double yellow lines on the roadway to warn motorists of the unusual traffic patterns.

 Presently before the court are the motions for summary judgment of the Commonwealth employees. For the reasons set forth herein, the motions must be denied.

 II. Discussion

 The instant motions raise significant questions concerning the scope and effect of the recent decision of the Pennsylvania Supreme Court which substantially alters the doctrine of official immunity. DuBree v. Commonwealth, Pa., 393 A.2d 293 (1978). The doctrine of official immunity in Pennsylvania prior to DuBree, was ably summarized by Mr. Chief Justice Eagen in a dissenting opinion in that case:

 
Official immunity in Pennsylvania could be divided into two types, namely, absolute immunity and unlimited or conditional immunity. Absolute immunity could be invoked by "high ranking officials' acting within the scope of their authority and within the course of their duties or powers. (Citations omitted.) Limited immunity could be invoked by other officials acting within the scope of their authority and within the course of their duties or powers. (Citations omitted.)
 
Absolute immunity "foreclose(d) the possibility of suit,' Montgomery v. Philadelphia, 392 Pa. 178, 183, 140 A.2d 100, 103 (1958) so that the fullest "protection of society's interest in the unfettered discharge of public business,' Id., might be afforded "high ranking officials.' Limited immunity did not foreclose the possibility of suit against other officials because it could be overcome by an allegation in the plaintiff's complaint that the conduct complained of was malicious, wanton, or reckless. Burton v. Fulton, 49 Pa. 151 (1865); but; absent such an allegation and proof, the official was immune from the suit.

 393 A.2d at 296-97 (Eagen, C. J., dissenting).

 In DuBree, plaintiff's decedent was killed when his car plunged into an excavation on a public highway. Plaintiff instituted suit for wrongful death against the Commonwealth of Pennsylvania and seven named officials of Penn DOT. *fn2" The trial court dismissed the counts against the individual employees on the grounds of official immunity. The Commonwealth Court affirmed. 8 Pa.Cmwlth. 567, 303 A.2d 530 (1973). The Supreme Court of Pennsylvania vacated and remanded, holding that "the liability of the individual appellees should not have been analyzed solely on the basis of their status as employees of the Commonwealth." 393 A.2d at 294. Henceforth, when immunity is asserted, "an examination is required of whether the considerations underlying "OFFICIAL IMMUNITY' ARE EFFECTIVELY ADVANCED." id. at 295.

 A detailed assessment of the contours of DuBree will be attempted later in this opinion. One principle is clear however: the pre-DuBree distinction between absolute immunity and conditional or limited immunity has been abrogated in Pennsylvania. As a result, if this court determines that official immunity does not bar plaintiffs' claims ...


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