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decided: September 14, 1979.


Original jurisdiction in case of The Estate of Tanya Carlissa Armstrong, a/k/a Lisa Rodriguez, Deceased, a Minor, by her Parent and Natural Guardian and Personal Representative, Phyllis Rodriguez and Phyllis Rodriguez in her own right v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, William C. Boor, Chairman, and Board Members William F. Butler, Ernest R. Connelley and John Jefferson; and Irving Glazer, Parole Officer.


Robert E. Cherwony, with him Gary Green, and, of counsel, Sidkoff, Pincus, Greenberg & Green, P.C., for plaintiffs.

Robert A. Greevy, Assistant Attorney General, with him Edward G. Biester, Jr., Attorney General, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Mencer. Judge Wilkinson, Jr. joins in this concurring and dissenting opinion. Concurring and Dissenting Opinion by Judge DiSalle. Dissenting Opinion by Judge Wilkinson, Jr. Concurring and Dissenting Opinion by Judge MacPhail. Judge Wilkinson, Jr. joins. Concurring and Dissenting Opinion by Judge Crumlish, Jr.

Author: Rogers

[ 46 Pa. Commw. Page 35]

In April 1977, a 7-year-old girl was raped and murdered by Carlos Rodriguez, a convicted felon who had been released from prison on parole. The girl's mother has brought an action in trespass in this Court against the Commonwealth of Pennsylvania, the Pennsylvania Board of Probation and Parole (Board), and against the individual members of the Board. Briefly, the complaint alleges that the members of the Board voted to release Rodriguez on parole despite the fact that they knew, or should have known, that Rodriguez was likely to commit a violent crime. The plaintiff has alleged, in a general fashion, that the defendants were "grossly negligent" and acted "maliciously and/or wilfully and/or with reckless disregard." The case is now before us for disposition of the defendants' preliminary objections raising the issues of sovereign and official immunity.

I The Complaint against the Commonwealth.

With regard to the liability of the Commonwealth and its agency, the Board, this action was barred by the doctrine of sovereign immunity in April 1977, when the circumstances giving rise to the action occurred, and it was still barred when the action was instituted in April 1978. See Freach v. Commonwealth, 23 Pa. Commonwealth Ct. 546, 354 A.2d 908 (1976), aff'd in relevant part, 471 Pa. 558, 565-67, 370 A.2d 1163, 1167-68 (1977). This case does fall within one of the eight categories of claims as to which sovereign immunity was waived by 42 Pa. C.S. ยง 5110(a), added to the Judicial Code by Section 2 of the Act of September 28, 1978, P.L. 788 (Act 152), and the action

[ 46 Pa. Commw. Page 36]

    therefore continues to be barred by virtue of Section 5(b)(1) of Act 152. Finally, this Court today holds, in Brungard v. Hartman, 46 Pa. Commonwealth Ct. 10, A.2d (1979), that Section 5(b)(1) of Act 152 is not unconstitutional insofar as it acts retroactively to bar suits which would otherwise have been allowed by virtue of the judicial abolition of sovereign immunity in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). We must therefore hold that the Commonwealth and the Board continue to enjoy immunity from suit, and we must dismiss the action as to those defendants.

II The Complaint against the Members of the Pennsylvania Board of Probation and Parole.

Preliminary objections of the individual members of the Board of Probation and Parole seek dismissal of the Complaint against them on the ground of their absolute immunity as so-called high Commonwealth officials. In Reiff v. Commonwealth, 23 Pa. Commonwealth Ct. 537, 354 A.2d 918 (1976), we held that members of the Board were absolutely immune. The individual defendants thus invoke the traditional common law rules of official immunity. These rules were that high Commonwealth officials were absolutely immune from suit for conduct within the scope of their authority and that other Commonwealth officers and employees were liable only if their conduct was alleged and proved to be malicious, wanton or reckless. The Pennsylvania Supreme Court in DuBree v. Commonwealth of Pennsylvania, 481 Pa. 540, 393 A.2d 293 (1978), substituted for those rules the requirements that the extent of the immunity to be accorded public officials should be decided on a case by case basis by consideration of whether public policy would be promoted in shielding the defendant from liability; whether the defendant's actions complained of could be measured

[ 46 Pa. Commw. Page 37]

    against a predictable standard of care; whether, but for the defendant's status, a right of action would lie under analogous rules of law; and whether the plaintiff has improperly failed to avail himself of other available remedies.

The common law principles of official immunity were of pure judicial origin. As such, just as sovereign immunity, they were subject to modification to meet changing times and conditions by the Pennsylvania Supreme Court. Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965); Commonwealth v. Ladd, 402 Pa. 164, 166 A.2d 501 (1960). On the other hand, no court has the power to strike down a statute except for constitutional reasons, even where it believes the statute unwise or productive of socially undesirable results. Commonwealth v. Moon, 383 Pa. 18, 117 A.2d 96 (1955).

Act 152 was effective, as we have stated, on September 28, 1978. DuBree was decided October 5, 1978. No mention of Act 152 appears in the opinion of the Court in DuBree or in either of two dissenting opinions. However, the Commonwealth asked for reargument in DuBree relying, we understand, solely on Act 152. ...

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