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JOHN NAGLE AND YONISH TRUCKING v. PENNSYLVANIA INSURANCE DEPARTMENT ET AL. (10/26/79)

decided: October 26, 1979.

JOHN NAGLE AND YONISH TRUCKING, INC., PETITIONERS
v.
PENNSYLVANIA INSURANCE DEPARTMENT ET AL., RESPONDENTS



Original jurisdiction in the Commonwealth Court of Pennsylvania, in case of John Nagle and Yonish Trucking, Inc. v. Pennsylvania Insurance Department et al.

COUNSEL

Judith B. Reap, with her Leonard Schaeffer, and Pechner, Dorfman, Wolffe & Rounick, for petitioners.

Robert J. Demer and Bruce A. Krain, Deputy Attorney General, with them Thomas R. Balaban, William R. Balaban, Shaffer, Calkins & Balaban, David T. Kluz, Assistant Attorney General, John H. Isom, Assistant Attorney General and Robert P. Kane, Attorney General, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by President Judge Bowman. Concurring and Dissenting Opinion by Judge Crumlish, Jr. Concurring and Dissenting Opinion by Judge DiSalle.

Author: Bowman

[ 46 Pa. Commw. Page 623]

Substantial changes in the law brought about by the Federal Black Lung Benefits Act of 1972, 30 U.S.C. § 901 et seq., and amendments to The Pennsylvania Workmen's Compensation Act by the Act of December 6, 1972, P.L. 1627, 77 P.S. 27.1(q), and rate filings for insurance coverage thereunder have spawned an incredible volume of litigation in this Court involving, in one or more cases, employers required to effect black lung coverage, insurers offering such coverage and their rating bureaus, the Insurance Department and its officials charged with approving rates for such coverages and the State Workmen's Insurance Fund in the performance of its responsibilities as prescribed by law.

[ 46 Pa. Commw. Page 624]

In this particular case an individual and a corporation, asserting a class action, have filed a petition for review containing six counts, each against one or more respondents, which by reason of the factual averments and the reliefs sought, appear to be in the nature of an action in equity as to some counts, and in the nature of trespass as to other counts. Our present concern is a battery of preliminary objections filed by all of the respondents raising sovereign immunity, absolute immunity, objections in the nature of a demurrer and pleading deficiencies. Also raised is the named petitioners' standing to assert a class action.

Whether the named petitioners have standing to assert a class action, which they do as to all counts, bears directly upon the issue raised by demurrer as to particular counts against particular respondents, for if petitioners, apart from their class, have not stated a cause of action in some counts as against some respondents even if otherwise qualified, they cannot maintain the class action. Pa. R.C.P. No. 1702. Similarly, as to the issue of the jurisdiction of a court of equity to entertain a cause of action given the existence of an adequate remedy at law, pursued or unpursued, other litigation involving petitioners must be considered as well as statutory avenues of redress which are available but unpursued or are being pursued.

As has been correctly pointed out by respondents, the petition for review is markedly deficient in conforming to the niceties of pleading, particularly with regard to pleading alternative counts and particularity of damages. See Pa. R.C.P. Nos. 1020, 1021. We must, however, ascertain the nature of the cause of action asserted as to the various counts because, as above noted, our jurisdiction, jurisdiction of a court of equity and the availability of Chapter 15, Rules of Appellate Procedure, Petition for Review, are dependent, at least in part, upon such an analysis. We will for the

[ 46 Pa. Commw. Page 625]

    moment, therefore, disregard these pleading imperfections and rely upon the nature of reliefs sought to uncover the nature of the causes of action and thereby relate the sundry preliminary objections by subject matter to the count or counts of the petition targeted by each count.

Actions in Trespass:

Sovereign and Absolute Immunity

Counts IV and VI and proposed amendments thereto aver that because petitioners were either intentionally or negligently induced to enter into insurance agreements dating back to 1973, they are entitled to rescind these contracts by virtue of their mistaken belief of a material fact, i.e., proper classification, and are entitled to tort damages emanating from the conspired willful or negligent actions of respondents.

Respondents, Pennsylvania Insurance Department (Department), the Insurance Commissioner (Commissioner), and the State Workmen's Insurance Fund and its Board have all raised sovereign immunity and absolute immunity as a bar to the causes of action asserted in the sundry counts against the Department, the Board and respondent State Officers*fn1 to the petition for review as asserted. Other respondents have also raised immunity as the vehicle by which they assert this Court lacks jurisdiction over them for if the cause of action cannot be maintained against the

[ 46 Pa. Commw. Page 626]

"Commonwealth government including any officer thereof . . ." we lack jurisdiction over the cause of action asserted against the other respondents. The Judicial Code, 42 Pa. C.S. § 761.

When it is alleged that the Commonwealth or its officers share joint and several liability with others not the Commonwealth or its officers, then Section 761(a)(1) and (d) of the Judicial Code, 42 Pa. C.S. § 761(a)(1), (d), may be construed to "[t]o the extent prescribed by general rule," to give the Commonwealth Court jurisdiction as to all the defendants in a case. Freach v. Commonwealth, 471 Pa. 558, 370 A.2d 1163 (1977). See Pa. R.C.P. No. 2229(b); See also Witt v. Department of Banking, 36 Pa. Commonwealth Ct. 298, 387 A.2d 1310 (1978); Township of Pleasant v. Erie Insurance Exchange, 22 Pa. Commonwealth Ct. 307, 348 A.2d 477 (1975).

A precondition to our consideration of the respondents' outstanding preliminary objections, however, is our continued jurisdiction over these proceedings. Opie v. Glascow, Inc., 30 Pa. Commonwealth Ct. 555, 375 A.2d 396 (1977); Schroeck v. Pennsylvania State Police, 26 Pa. Commonwealth Ct. 41, 362 A.2d 486 (1976).

The Department of Insurance, the Board and the Fund, as an administrative department or agency of the government's executive branch, and the Insurance Commissioner, as an "officer" of the Commonwealth "charged with the responsibility for independent initiation of administrative policy regarding some sovereign function of state government . . .," Opie, supra at 559, 375 A.2d at 398, all fall within our original jurisdiction under Section 761(a)(1) of the Judicial Code, allowing us to rule on the issue of immunity, Fischer v. Kassab, 32 Pa. Commonwealth Ct. 581, 585, 380 A.2d 926, 928 (1977).

[ 46 Pa. Commw. Page 627]

In the past, when faced with a situation where our jurisdiction over non-Commonwealth respondents was ancillary to our continuing jurisdiction over the Commonwealth or an officer thereof, the doctrines of sovereign immunity and absolute immunity of "high public officials" have compelled us to dismiss the cause of action as to the Commonwealth or its officers, and transfer the remaining cause(s) of action to the appropriate court of common pleas for lack of jurisdiction. See Witt v. Department of Banking, supra; Fischer v. Kassab, supra ; Section 5103(a) of the Judicial Code, 42 Pa. C.S. § 5103(a).

Since these preliminary objections were first briefed and argued, substantial changes in the law have been brought about by the decisions in Mayle v. Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978), and the enactment of the Act of September 28, 1978, P.L. 788 (Act 152). We ordered reargument and directed the parties to address the issues raised by said decisions and Act of Assembly, as they relate to the continued viability of the defenses of sovereign and absolute immunity, and to the multiple causes of action asserted in the above petition.

We have had the benefit of neither brief nor argument from petitioners at said reargument. The Commissioner and the Insurance Department take the position that Mayle and DuBree are not controlling because Act 152 reinstates sovereign and absolute immunity. Nor, they add, does the instant cause of action fall within any of the exceptions to immunity contained in Act 152. The Coal Compensation Rating Bureau and its member companies have taken no position on the issue of immunity, arguing only their non-governmental status.

Although this cause of action accrued prior to the effective date of Act 152, it is not within the exceptions

[ 46 Pa. Commw. Page 628]

    relating to limited waiver of sovereign immunity, see 42 Pa. C.S. § 5110(a). Therefore, the application of Act 152 is controlled by our decision in Brungard v. Hartman, 46 Pa. Commonwealth Ct. 10, 405 A.2d 1089 (1979), and sovereign immunity constitutes a defense to this cause of action. See Section 5(b)(1) of Act 152, the Judicial Code, 42 Pa. C.S. § 761 (note). The ...


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