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CONSOLIDATED RAIL CORPORATION v. INGERSOLL-RAND CORPORATION AND PENNSYLVANIA DEPARTMENT TRANSPORTATION AND WALTER FATZINGER. INGERSOLL-RAND CORPORATION (11/14/79)

decided: November 14, 1979.

THE CONSOLIDATED RAIL CORPORATION
v.
THE INGERSOLL-RAND CORPORATION AND PENNSYLVANIA DEPARTMENT OF TRANSPORTATION AND WALTER FATZINGER. THE INGERSOLL-RAND CORPORATION, APPELLANT



Appeal from the order of the Court of Common Pleas of Northampton County in case of the Consolidated Rail Corporation v. The Ingersoll-Rand Corporation and Pennsylvania Department of Transportation and Walter Fatzinger, No. 162 January Term, 1977.

COUNSEL

Joseph Hurley, with him, Robert H. Holland, and Kolb, Holland and Taylor, for appellant.

Norman J. Watkins, Deputy Attorney General, and Lance H. Lilien, Deputy Attorney General, with them, Barbara A. Brown, Assistant Attorney General, J. Justin Blewitt, Jr., Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for appellees.

Judges Mencer, Rogers and Craig, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Mencer. Concurring and Dissenting Opinion by Judge Crumlish, Jr. Concurring and Dissenting Opinion by Judge Wilkinson, Jr. Concurring and Dissenting Opinion by Judge DiSalle. Concurring and Dissenting Opinion by Judge MacPhail.

Author: Mencer

[ 47 Pa. Commw. Page 306]

On or before November 12, 1975, the Ingersoll-Rand Corporation (Rand) secured a special hauling permit from the Pennsylvania Department of Transportation (PennDOT) through Walter Fatzinger, a clerk and employee of PennDOT. The permit was to allow Rand to transport an oversize load on an approved route within the Commonwealth. Rand informed PennDOT through Fatzinger that to transport the oversize load it would use a trailer with an overall height of 15 feet and 4 inches.

On November 15, 1975, Rand's tractor-trailer proceeded along the route approved and, when attempting to pass under a bridge with a clearance of 14 feet and 7 inches, damage was caused to the bridge, to the tractor-trailer, and to its cargo, due to the fact that the tractor-trailer's height was in excess of the bridge clearance.

The Consolidated Rail Corporation (Consolidated) filed an action in trespass against Rand which thereafter filed complaints joining PennDOT and Fatzinger as additional defendants. PennDOT and Fatzinger filed preliminary objections in the nature of a demurrer, and the Court of Common Pleas of Northampton County sustained these preliminary objections and struck the complaints as to these additional defendants. Rand timely filed an appeal from this order to this Court.

Rand advances the following questions for our consideration:

[ 47 Pa. Commw. Page 3071]

. Whether the Act of September 28, 1978, P.L. 788 (Act 152)], as it pertains to the sovereign immunity of the Commonwealth, may be retroactively applied when the same would result in the impairment of vested rights?

2. Whether Act 152 properly may grant blanket sovereign immunity to the Commonwealth except where the Commonwealth specifically waives the same?

3. Whether Act 152 properly may grant immunity to officials and employees of the Commonwealth?

4. Whether Act 152, as it pertains to immunity of employees of the Commonwealth, may be retroactively applied when the same would ...


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