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ESTATE TANYA CARLISA ARMSTRONG v. PENNSYLVANIA BOARD PROBATION AND PAROLE ET AL. (09/14/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 14, 1979.

THE ESTATE OF TANYA CARLISA ARMSTRONG, A/K/A LISA RODRIGUEZ, DECEASED, A MINOR, BY HER PARENT AND NATURAL GUARDIAN AND PERSONAL REPRESENTATIVE, PHYLLIS RODRIGUEZ ET AL., PLAINTIFFS
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE ET AL., DEFENDANTS

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.

COUNSEL

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. § 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. The application was denied on November 16, 1978. 481 Pa. at 640, 393 A.2d at 293.

We are convinced that Act 152 did not make the traditional court-made common law principles of official immunity the statutory law of the Commonwealth; and that it did not, therefore, remove the power of the Pennsylvania Supreme Court to supplant or modify them, as the Court did in DuBree. The principles of official immunity are not stated in Act 152. All that appears are expressions by the Legislature that it intends that its officials and employees should continue to enjoy official immunity (Section 1 of Act 152, adding 1 Pa. C.S. § 2310); that "existing common law defenses are retained" (42 Pa. C.S. § 5110(b)); and

[ 46 Pa. Commw. Page 38]

    that Commonwealth officials "may assert . . . defenses which have heretofore been available to such officials" (42 Pa. C.S. § 5110(b)(1)). Specific reference to "existing common law defenses" and "defenses heretofore available" plainly imply that the old defenses simply continue in all of their aspects as judicially created common law principles. Furthermore, the Report of the Joint State Government Commission on Sovereign Immunity delivered to the General Assembly on May 22, 1978, informs us that the proposed legislation which became Act 152 "retains defenses developed by case law." In describing those defenses, it cites decisions of the Superior and Supreme Courts including the recent and leading case of Freach v. Commonwealth, 471 Pa. 558, 370 A.2d 1163 (1977).

In short, we can construe Act 152 only as doing what it says; that is, retaining the common law rules of official immunity.

We therefore overrule the preliminary objections of the individual members of the Board of Probation and Parole.

Order

And Now, this 14th day of September, 1979, the preliminary objections of the Commonwealth and the Pennsylvania Board of Probation and Parole are sustained and the complaint as to it is dismissed. The preliminary objections of William C. Boor, William F. Butler, Ernest R. Conley and John Jefferson are overruled; without prejudice to their right in Answers filed within thirty days after notice hereof, to raise official immunity as an affirmative defense.

Disposition

Preliminary objections of Commonwealth and Board sustained. Complaint dismissed as to those defendants. Preliminary objections of remaining defendants overruled.

Concurring and Dissenting Opinion by Judge Mencer:

While I agree with the majority that the Commonwealth of Pennsylvania and the Pennsylvania Board of Probation and Parole (Board) are entitled to sovereign

[ 46 Pa. Commw. Page 39]

    immunity, I also believe that the individual members of the Board are entitled to assert the defense of absolute immunity.

The members of the Board are officials of a Commonwealth agency, and the Judicial Code, 42 Pa. C.S. § 5110(b)(1), added by Section 2 of the Act of September 28, 1978, P.L. 788 (Act 152), specifically provides that such officials "may assert . . . defenses which have heretofore been available to such officials." Prior to the effective date of Act 152, members of the Board were considered high public officials, and, as such, they were entitled to assert the defense of absolute immunity. This was the specific holding of this Court with regard to the same individual Board members in Reiff v. Commonwealth, 23 Pa. Commonwealth Ct. 537, 354 A.2d 918 (1976). See also Freach v. Commonwealth, 23 Pa. Commonwealth Ct. 546, 551-52, 354 A.2d 908, 911 (1976) (Superintendent of Parole Division is high public official entitled to absolute immunity), rev'd on other grounds, 471 Pa. 558, 567-69, 370 A.2d 1163, 1168-69 (1977). Since the defense of absolute immunity was available to the individual members of the Board prior to the effective date of Act 152, 42 Pa. C.S. § 5110(b)(1) clearly and unequivocally requires us to continue to recognize that defense. DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978), was decided after the effective date of Act 152, but the impact of that act upon the case was not raised by the Commonwealth until after the decision had been rendered. As a result, Act 152 was not a factor in the Supreme Court's decision. The Court's denial of the Commonwealth's petition for reargument in DuBree was not a determination of the issues raised by Act 152 but a refusal to consider those issues at that particular time. DuBree cannot, therefore, be considered dispositive of any of the issues raised by this case.

[ 46 Pa. Commw. Page 40]

I would, therefore, sustain the preliminary objections of the individual Board members and dismiss the action as to them.*fn1

Concurring and Dissenting Opinion by Judge DiSalle:

I concur in that part of the majority opinion overruling the preliminary objections of the individual defendants. For the reasons given in my dissenting opinion in Brungard, however, I must dissent from the majority's decision to sustain the preliminary objections of the Commonwealth of Pennsylvania and the Pennsylvania Board of Probation and Parole.

This action was filed on April 20, 1978. Consequently, it was pending at the time our Supreme Court and General Assembly were grappling with the problem of sovereign immunity. All plaintiffs who were diligently pursuing their claims during that time should be permitted to continue to do so. Consistent with the policy statements set forth in my Brungard dissent, I believe it is only fair and equitable to provide similar treatment for all similarly situated individuals by permitting all pending cases to proceed to trial. As indicated in that dissent, if sovereign immunity

[ 46 Pa. Commw. Page 41]

    does not bar Mr. Mayle's claim, it should not bar Ms. Brungard's. It follows, then, that a plaintiff who timely filed a claim should likewise recover. Such an approach flows logically from the stated intention of the Legislature in Section 5(B) of Act 152 to allow for the development of a uniform body of law, and is in accord with the fundamental notions of justice, equality and reason that should motivate all judicial and legislative decision making.

I would overrule the preliminary objections of the Commonwealth and the Board.

Dissenting Opinion by Judge Wilkinson, Jr.:

I join Judge MacPhail in his dissent. I would add that if the majority opinion prevails, then surely the legislature in passing Act 152 has done a vain thing. With all governmental officials liable for suit, certainly the Commonwealth will and most certainly should provide insurance to protect them. It must be obvious that it will cost exactly the same amount as if the Commonwealth were insured. While this may or may not be desirable I cannot bring myself to believe, as does the majority, that this is what the legislature intended.

Concurring and Dissenting Opinion by Judge MacPhail:

I concur with the majority's decision to dismiss the complaint against the Commonwealth. I respectfully dissent, however, from that part of the majority's opinion which overrules the preliminary objections of the individual members of the Pennsylvania Board of Probation and Parole (Board).

The crucial question which must be answered is whether the Act of September 28, 1978, P.L. 788, Act No. 152 (Act 152) or our Supreme Court's decision in DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d

[ 46 Pa. Commw. Page 42293]

(1978) represents the controlling law of the Commonwealth on the question of official immunity. It is clear to me that Act 152 is controlling.

The majority states:

All that appears [in Act 152] are [1] expressions by the Legislature that it intends that its officials and employees should continue to enjoy official immunity (Section 1 of Act 152, adding 1 Pa. C.S. § 2310); [2] that 'existing common law defenses are retained' (42 Pa. C.S. § 5110(b)); and [3] that Commonwealth officials 'may assert . . . defenses which have heretofore been available to such officials' (42 Pa. C.S. § 5110(b)(1)).

The majority interprets this language as merely retaining common law rules of official immunity. I would interpret Act 152 as codifying the common law rules concerning official immunity and making them a part of the statutory law of the Commonwealth.

It is true that our Supreme Court's decision in DuBree, supra, was announced one week subsequent to the effective date of Act 152, and that it made no mention of the Act. The majority opinion notes that it was represented to us in oral argument (but such fact does not appear as a part of the record) that the Supreme Court refused to hear reargument in DuBree even though the Commonwealth's petition for reargument rested solely on Act 152. I do not infer from the proceedings in DuBree any determination by the Supreme Court relating to the validity of Act 152. The Court simply did not address the issue either in the opinion or in the denial of the reargument petition.

Prior to today, then, no court has ruled on the validity of Act 152. We have held Act 152 to be constitutional as it relates to the Commonwealth's sovereign immunity defense. Brungard v. Hartman, 46 Pa. Commonwealth Ct. 10,

[ 46 Pa. Commw. Page 43405]

A.2d 1089 (1979). I would also hold Act 152 to be constitutional and controlling as it relates to the official immunity defense accorded Commonwealth officials and employees acting within the scope of their duties. Prior to the enactment of Act 152 individual members of the Board were entitled to absolute immunity. The legislature codified that immunity in Act 152. Therefore, I would sustain the preliminary objections of the individual defendants and dismiss the complaint against them.

Concurring and Dissenting Opinion by Judge Crumlish, Jr.:

I concur in the majority opinion with respect to the complaint against the members of the Pennsylvania Board of Probation and Parole.


*fn1 Here the majority overrules the preliminary objections filed by the members of the Pennsylvania Board of Probation and Parole on the authority of DuBree v. Commonwealth, supra, without applying to the individual defendants in the instant case the DuBree tests 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 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.


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