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DONNA LYNN REIFF v. COMMONWEALTH PENNSYLVANIA (10/04/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 4, 1979.

DONNA LYNN REIFF, A MINOR, BY HER PARENTS AND NATURAL GUARDIANS, DONALD A. REIFF AND DOVIE K. REIFF ET AL., PLAINTIFFS
v.
COMMONWEALTH OF PENNSYLVANIA, CITY OF PHILADELPHIA ET AL., DEFENDANTS

Original jurisdiction in case of Donna Lynn Reiff, a minor, by her parents and natural guardians, Donald A. Reiff and Dovie K. Reiff, and Donald A. Reiff and Dovie K. Reiff, in their own right v. Commonwealth of Pennsylvania and Pennsylvania Board of Probation and Parole.

COUNSEL

Melvin Alan Bank, with him Bank, Minehart & D'Angelo, for petitioners.

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

Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 46 Pa. Commw. Page 336]

This trespass case is before us on remand by the Pennsylvania Supreme Court for reconsideration of the issue of whether the action against the Commonwealth of Pennsylvania and the Pennsylvania Board of Probation and Parole is barred by sovereign immunity in light of Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), and the Act of September 28, 1978, P.L. 788, dealing with sovereign and official immunity and commonly called Act 152. We again sustain the Commonwealth's and the Board's preliminary objections based on sovereign immunity. Reiff v. Commonwealth, 27 Pa. Commonwealth Ct. 504, 365 A.2d 1357 (1976).

The plaintiff, Donna Lynn Reiff was shot during a robbery in Philadelphia. The complaint alleges that the robbers were on parole at the time of the robbery,

[ 46 Pa. Commw. Page 337]

    and that the Commonwealth and the Board were reckless, careless, and grossly and wantonly negligent in releasing the robbers on parole and in failing adequately to supervise them.

Section 5110 of the Judicial Code, 42 Pa. C.S. ยง 5110, supplied by Act 152, is a direct legislative response to the decision of Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), where the Pennsylvania Supreme Court abolished the doctrine of sovereign immunity. It reinstated sovereign immunity, except in eight categories of cases. Unfortunately for the plaintiff, her claim does not fall within any of the enumerated exceptions.

All other questions raised in this appeal are answered by our decision in Brungard v. Hartman, 46 Pa. Commonwealth Ct. 10, 405 A.2d 1089 (1979).

Accordingly, we enter the following

Order

And Now, this 4th day of October, 1979, it is hereby ordered that the preliminary objections of the Commonwealth are sustained and the complaint herein is dismissed.

Disposition

Preliminary objections sustained. Complaint dismissed.

19791004

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