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GEORGE W. GARRETTSON v. COMMONWEALTH PENNSYLVANIA AND PENNSYLVANIA LIQUOR CONTROL BOARD ET AL. (09/20/79)

decided: September 20, 1979.

GEORGE W. GARRETTSON, JR., PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA AND PENNSYLVANIA LIQUOR CONTROL BOARD ET AL., DEFENDANTS



Original jurisdiction in case of George W. Garrettson, Jr. v. Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board, The Graphic Hand, Inc. and Delaware County Chamber of Commerce.

COUNSEL

Donald M. Bowman, with him Gold, Bowman & Korman, for plaintiff.

J. Leonard Langan, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, and Edward 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 MacPhail. Dissenting Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge DiSalle.

Author: Macphail

[ 46 Pa. Commw. Page 137]

George W. Garrettson, Jr. (Plaintiff) filed a complaint in equity against the Commonwealth of Pennsylvania (Commonwealth), the Pennsylvania Liquor Control Board (Board), The Graphic Hand, Inc., and the Delaware County Chamber of Commerce in the Court of Common Pleas of Philadelphia County. Plaintiff sought an injunction to prevent the Defendants from distributing a State Liquor Store price list with Plaintiff's picture on the cover and compensatory and punitive damages for injury caused Plaintiff by distribution of the list. The Court of Common Pleas of Philadelphia County issued an injunction against Defendants The Graphic Hand, Inc. and the Delaware County Chamber of Commerce. The remainder of the suit was transferred to this Court by order of the Court of Common Pleas of Philadelphia County on March 19, 1974.

By the time of transfer, Plaintiff's request for an injunction was moot because on January 8, 1974, the Chairman of the Pennsylvania Liquor Control Board ordered the front and back covers containing Plaintiff's

[ 46 Pa. Commw. Page 138]

    picture removed from all the State Store price lists and sent to Harrisburg for disposal. From the time this case appeared in this Court in 1974, then, Plaintiff's plea for relief has been limited to damages caused by an alleged invasion of privacy.

When this case was before us initially in 1974, Defendants Commonwealth and Board filed preliminary objections to the complaint on the basis of sovereign immunity. This Court, per Judge Mencer, sustained the preliminary objections and dismissed the complaint against Defendants Commonwealth and Board.*fn1 Garrettson v. Pennsylvania Liquor Control Board, 22 Pa. Commonwealth Ct. 331, 348 A.2d 453 (1975). Plaintiff appealed this Court's decision to the Pennsylvania Supreme Court which reversed our prior decision on the basis of Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978) and remanded the case to us "for further proceedings." Garrettson v. Pennsylvania Liquor Control Board, 479 Pa. 416, 388 A.2d 724 (1978).

On remand, Plaintiff raises three issues for our consideration: (1) whether the Board is an independent Commonwealth agency, and, therefore, not provided with a sovereign immunity defense, (2) whether, if the Board is provided with a sovereign immunity defense, said defense should apply to the facts of this case*fn2 and (3) whether sovereign immunity is available as a defense to a Commonwealth agency where that

[ 46 Pa. Commw. Page 139]

    agency allegedly is engaged in proprietary activity beyond its ...


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