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MARY DEMETRIOU v. JOHN CARLIN ET AL. (11/29/79)

decided: November 29, 1979.

MARY DEMETRIOU, PLAINTIFF
v.
JOHN CARLIN ET AL., DEFENDANTS



Original jurisdiction in case of Mary Demetriou v. John Carlin, City of Philadelphia, Slattery Associates, Inc. and Commonwealth of Pennsylvania, Complaint in trespass in the Commonwealth Court of Pennsylvania seeking damages for personal injuries.

COUNSEL

Bruce G. Cassidy, with him, Michael A. Marks, for petitioners.

Walter F. Froh, Assistant Attorney General, Personal Injury Litigation Unit, with him, John L. Sweezy, Chief Attorney of Unit, Theodore A. Adler, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by President Judge Bowman. Judge DiSalle concurs in the result only. Dissenting Opinion by Judge Crumlish, Jr.

Author: Bowman

[ 47 Pa. Commw. Page 480]

Mary Demetriou was injured July 29, 1976 when an automobile in which she was a passenger allegedly struck a barricade on Interstate I-95 within the City of Philadelphia. On May 23, 1977 she filed a complaint in trespass in the Court of Common Pleas of Philadelphia County against the Commonwealth and other named defendants.

The Commonwealth filed preliminary objections asserting sovereign immunity and the action was dismissed as to the Commonwealth for this reason.

On July 24, 1978 she brought a second action in trespass in this Court asserting the same cause of action against the same defendants, including the Commonwealth. The Commonwealth filed preliminary objections in this action again asserting sovereign immunity and also a want of specificity in the complaint. These objections were filed prior to passage of Act No. 152-1978.*fn1 After passage of that

[ 47 Pa. Commw. Page 481]

Act and prior to argument on the Commonwealth's preliminary objections, plaintiff Demetriou moved to transfer the case to the Court of Common Pleas of Philadelphia pursuant to its jurisdictional provisions with respect to allowable causes of action as enumerated in that Act. The Commonwealth objects to the transfer contending that dismissal of the original action in the Court of Common Pleas of Philadelphia County as against the Commonwealth has barred this second action against the Commonwealth, and that Section 5(d) of Act No. 152-1978 precludes any assertion that this Act revives the cause here asserted. It is not disputed that the cause as now asserted in this Court was brought within the statutory period of limitations for personal injuries.

As plaintiff does not argue that Section 5(d) revives her cause we need not reach this question. Rather, plaintiff contends that the judgment of the Court of Common Pleas of Philadelphia in dismissing the first action as against the Commonwealth is a nullity and void for want of jurisdiction.

A judgment rendered by a court not having jurisdiction over the subject matter has variously been characterized as void and of no legal efficacy, Patterson's Estate, 341 Pa. 177, 19 A.2d 165 (1941), a mere nullity, 20 P.L.E. Judgments § 3 (1959), and being a usurpation of power, coram non judice, and thus void. 46 Am. Jur. 2d Judgments § 20 (1969). On the other hand, a judgment rendered by a court enjoying subject matter jurisdiction is res judicata of the cause asserted. Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72 (1974).

It is the application of these general rules to the unique role of the Commonwealth Court in the judicial system of Pennsylvania as prescribed by the legislature which poses the narrow issue before us. ...


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