Original jurisdiction in case of Helen M. Witt, Receiver of Pioneer Finance Company, Bellevue Finance Company, Belleview Consumer Discount Company, Pioneer Acceptance Company and Belleview Acceptance Company v. Department of Banking, Carl K. Dellmuth, G. Allen Patterson, John B. Toppin, Robert J. Sarsfield, James Robb, Raymond Bowersox, F. A. George and Charles Cook.
Michael L. Snyder, with him Paul H. Titus, Frances O. Tennant and Kaufman & Harris, for petitioner.
John L. Sweezy, Assistant Attorney General, with him John E. Nanorta, Assistant Attorney General, Bonnie J. McRobbie, Assistant Attorney General, Robert P. Kane, Attorney General, Robert P. Reed and Metzger, Wickersham, Knauss & Erb, for respondents.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and DiSalle. Memorandum Opinion by President Judge Bowman. Concurring and Dissenting Opinion by Judge Crumlish, Jr. Concurring and Dissenting Opinion by Judge DiSalle.
[ 48 Pa. Commw. Page 265]
By order dated October 12, 1979, the Supreme Court of Pennsylvania vacated our Order of June 12, 1978, entered in the above proceedings and remanded the record to us for consideration in light of Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978); DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978) and the Act of September 28, 1978, P.L. 788 (Act 152), amending or adding 1 Pa. C.S. § 2310 and 42 Pa. C.S. §§ 761, 762, 931, 5101, 5110, 5111, 5522.
By opinion supporting our Order of June 12, 1978, we had concluded that sovereign immunity protected
[ 48 Pa. Commw. Page 266]
the Department of Banking for the cause of action asserted against it; that absolute immunity barred the cause of action asserted against defendants, Dellmuth and Patterson; and that as the status of the remaining defendants as officers of the Commonwealth -- upon which our jurisdiction depended -- could not be ascertained, depositions were to be taken to thereafter determine their status as officers of the Commonwealth for jurisdictional purposes.
In response to the remaining defendants' motion to clarify our Opinion and Order of June 12, 1978, we issued a further Order on June 29, 1978, as follows:
Now, June 29, 1978, having considered defendants' motion for clarification of our prior opinion and Order of June 12, 1978, in the above case, it is ordered as follows:
1. The Court, although raising sua sponte, the issue of the power and authority of the plaintiff to assert the cause of action complained of, declines to pass upon said issue as it pertains to defendants Department of Banking, Carl K. Dellmuth and G. Allen Patterson, as the cause of action was dismissed as to said defendants upon other grounds. As to the remaining defendants, the Court preserves this issue in the event it concludes, after further proceedings, that said remaining defendants, upon the cause of action asserted, are within the jurisdiction of this Court as 'officers' of the Commonwealth.
2. The issue of whether the remaining defendants were properly served to afford in personam jurisdiction over them is likewise preserved and will be decided by this Court if it concludes said defendants are 'officers' of the ...