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DUQUESNE SLAG PRODUCTS COMPANY v. RONALD G. LENCH (07/23/79)

decided: July 23, 1979.

DUQUESNE SLAG PRODUCTS COMPANY, PLAINTIFF
v.
RONALD G. LENCH, SECRETARY OF GENERAL SERVICES OF THE COMMONWEALTH OF PENNSYLVANIA; GEORGE PULAKOS, SECRETARY OF TRANSPORTATION OF THE COMMONWEALTH OF PENNSYLVANIA; AND THEIR RESPECTIVE SUCCESSORS IN OFFICE, DEFENDANTS



Original jurisdiction in case of Duquesne Slag Products Company v. Ronald G. Lench, Secretary of General Services of the Commonwealth of Pennsylvania; George Pulakos, Secretary of Transportation of the Commonwealth of Pennsylvania; and their respective successors in office.

COUNSEL

Frank M. van Ameringen, Daniel R. Gigler, and van Ameringen & Knorr, for plaintiff.

Arthur H. Marateck, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Acting Attorney General, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Blatt. Dissenting Opinion by Judge MacPhail. Judges Wilkinson, Jr. and Craig join in this dissent.

Author: Blatt

[ 44 Pa. Commw. Page 387]

The petitioner, the Duquesne Slag Products Company, brought this action in equity seeking to restrain the Commonwealth defendants from requesting competitive bids for stone, gravel or slag on a per-ton basis and to compel bidding therefor on a volume basis instead. Preliminary objections have been filed, demurring to the action and raising a question of jurisdiction, and these are presently before us for disposition.

The defendants argue that because the petitioner seeks to compel affirmative action and because the alleged acts which the petitioner seeks to enjoin do not fall within one of the eight enumerated specific waivers of sovereign immunity as set forth in Act 152,*fn1 42 Pa. C.S. ยง 5110, the named defendants are immune from suit, and that this Court therefore lacks jurisdiction, which issue must be determined prior to any consideration of the immunity of the individual defendants. Opie v. Glascow, Inc., 30 Pa. Commonwealth Ct. 555, 375 A.2d 396 (1977); Schroeck v. Pennsylvania State Police, 26 Pa. Commonwealth Ct. 41, 362 A.2d 486 (1976).

It is clear that this Court has original jurisdiction of all civil actions against the Commonwealth or any officer thereof acting in his official capacity. It is equally clear that the named defendants here, Ronald

[ 44 Pa. Commw. Page 388]

G. Lench, Secretary of General Services and George Pulakos, Secretary of Transportation and their respective successors in office, are Commonwealth officers. They are persons performing state-wide policy-making functions who are charged with the responsibility for independent initiation of administrative policy regarding some sovereign functions of state government. Opie v. Glascow, Inc., supra; Tokar v. Department of Transportation, 29 Pa. Commonwealth Ct. 383, 371 A.2d 537 (1977). We believe, therefore, that we do have jurisdiction. Fischer v. Kassab, 32 Pa. Commonwealth Ct. 581, 380 A.2d 926 (1977).

As to the issue of sovereign immunity as a defense in an equity action such as this, however, we believe that the law is well-settled that the doctrine of sovereign immunity does not bar suits which seek to restrain state officials from performing affirmative acts which are alleged to be unlawful. Philadelphia Life Insurance Co. v. Commonwealth, 410 Pa. 571, 190 A.2d 111 (1963); Clearview Land Development Company, Inc. v. Kassab, 24 Pa. Commonwealth Ct. 532, 357 A.2d 732 (1976); Vance v. Kassab, 15 Pa. Commonwealth Ct. 328, 325 A.2d 924 (1974). The so-called sovereign immunity trilogy of Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1973); DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978), and Act 152, which involved the abrogation and re-enactment of the sovereign immunity doctrine in particular trespass actions, do not in any way affect the basic law regarding equity actions against the Commonwealth.

The Commonwealth's preliminary objection in the nature of a demurrer raises the defense of res judicata and additionally alleges that because the petitioner has failed to aver an abuse of discretion, no cause of action has been set forth. The petitioner ...


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