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PETITION JOHN F. DWYER (10/19/79)

decided: October 19, 1979.

IN RE PETITION OF JOHN F. DWYER, CHARLES SLUDDEN, JR., THOMAS A. ORAVECZ, PETER P. PETRESKY, LINDA ZERBE, HOWARD GRABERT AND LOUIS GUZZI


Nos. 44, 45 and 46 Misc. Docket, 1979, Petition for Exercise of Extraordinary Jurisdiction and/or Writ of Prohibition.

COUNSEL

Arlen Specter, Philadelphia, Philadelphia County, for petitioners at No. 44 and for respondents at No. 45.

Edward C. German, Philip A. Ryan, Philadelphia, Philadelphia County, for petitioner at No. 45.

Robert Davis Gleason, Johnstown, for petitioner at No. 46 and for respondents at No. 45.

Nicholas A. Barna, Dist. Atty., for respondents in all three cases.

Richard A. Sprague, Philadelphia, Philadelphia County, for respondents at Nos. 44 and 45.

Stephen Jennings, Robert F. Jennings, Honesdale, Coroner, Wayne County, Stephen G. Bresset, Honesdale, Wayne County, for respondents at No. 46.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Roberts, J., filed a concurring opinion. Nix, J., filed a dissenting opinion.

Author: Larsen

[ 486 Pa. Page 587]

OPINION

This is a case of first impression in this jurisdiction. It presents the issue of whether "quasi-judicial immunity"

[ 486 Pa. Page 588]

    insulates officials of a state agency from criminal liability and prosecution for the consequences of official agency acts alleged to have been performed by said officials in a wanton, reckless and grossly negligent manner where there are no allegations of corruption or bad faith in their conduct.

On September 15, 1977, a safety inspector for the Pennsylvania Department of Labor and Industry conducted an inspection of the Allen Motor Inn, a three-story structure in Honesdale, Wayne County, which revealed numerous violations, of varying degrees of seriousness, of the Fire and Panic Act, Act of April 27, 1927, P.L. 465, § 2, as amended, 35 P.S. §§ 1221-1235 (1977).*fn1 On November 10, 1977, the supervisor of the Wilkes-Barre District Office of the Bureau of Occupational and Industrial Safety (of the Department of Labor and Industry) issued Order No. 155-8-1977 to Mr. George Petto, owner of the Allen Motor Inn, outlining the various violations found and directing Mr. Petto to correct these violations within certain time periods, and ordering the second and third floors closed off until the corrections were made.

Between November 10, 1977 and March 29, 1978, attorneys for Mr. Petto requested three extensions of time for compliance with the November 10th order. These requests were in writing and were directed to the Industrial Board. The Industrial Board is an arm of the Department of Labor and Industry, see 71 P.S. §§ 155 and 574 (1962) and is charged with the responsibility of overseeing numerous matters affecting labor and industry in the Commonwealth. The Industrial Board consists of five members -- the Secretary of Labor and Industry and four additional members, one of whom is an employer of labor, one a wage earner, and one a woman. Id. at § 155. The Industrial Board members are appointed by the Governor, with the advise and consent of the Senate, for a term of four years. Several Advisory

[ 486 Pa. Page 589]

Boards make recommendations to the Industrial Board concerning matters within their particular areas of expertise.*fn2 These Advisory Boards are generally composed of experts in the given area in which they are advising. In matters concerning administration of the Fire and Panic Act, the Industrial Board is advised by members of the Building Advisory Board.

Mr. Petto's first application for extension of time for compliance stated that several deficiencies had been corrected and that time was needed to retain an engineering firm to prepare necessary plans and specifications to correct the other deficiencies. Reasons stated in subsequent applications cited various problems including family illness, harsh winter weather and the dissatisfaction with and dismissal of the engineering firm first retained by Mr. Petto. In each instance, the Building Advisory Board recommended that the applications be granted and the Industrial Board accepted said recommendations and, without hearings, granted the extensions for either 30 or 60 days.

On May 30, 1978, a request for a variance on certain height and structural limitations was made by Mr. Petto which request was conditionally granted by the Industrial Board on June 28, 1978. At that time, the Industrial Board advised Petto that "all other requirements of the Fire and Panic Regulations shall be met." On January 12, 1978 and again on February 17, 1978, the safety inspector reinspected the Allen Motor Inn and found only minimal compliance with the November 10th order. Reports of these inspections apparently had been sent to either the Building Advisory Board or the Industrial Board but there is a dispute as to whether the reports actually were in the Industrial Board's files when it decided the applications for extension of time.

On November 5, 1978, tragedy struck at the Allen Motor Inn. A fire broke out there on that day which took the lives of twelve tenants of the Inn. While the immediate cause of

[ 486 Pa. Page 590]

    the first appears to be arson,*fn3 it is not in dispute that the condition of the building and the numerous uncorrected violations of the Fire and Panic Act contributed to the rapid spread of the fire and the ensuing loss of lives.

The Coroner of Wayne County, Robert F. Jennings, respondent herein, convened a Coroner's inquest into the circumstances leading up to and surrounding the fire. On April 24, 1979, a Coroner's jury made a recommendation that the members of the Industrial Board and the Building Advisory Board, petitioners herein, be charged with involuntary manslaughter, Pa.Crimes Code, 18 Pa.C.S. § 2504 (1978), reckless endangerment of life, id. at § 3303, and criminal conspiracy, id. at § 903. These charges were asserted as a result of petitioners' alleged wanton, reckless and grossly negligent conduct in their administration of their duties with respect to the Fire and Panic Act. At no time was it asserted, nor is it now in respondent's brief, that petitioners' actions (or non-actions) were for improper or corrupt motives.

Petitioners now request this Court to exercise our extraordinary jurisdiction pursuant to 42 Pa.C.S. § 726 (Supp.1978-79) and our King's Bench Powers to resolve, inter alia, the question of the scope of the so-called doctrine of "quasi-judicial" immunity and its applicability to the circumstances of this case. Also requested is a writ of prohibition prohibiting respondent from pursuing his criminal prosecution of petitioners.

The question of judicial immunity from criminal prosecution has been considered by this Court in McNair's Petition, 324 Pa. 48, 187 A. 498 (1936). In McNair's Petition, a judge on the Court of Common Pleas of Allegheny County convened a grand jury to determine whether certain magistrates were guilty of malfeasance or misconduct in office and to report to the court whether indictments against the ...


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