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DONALD E. GIBSON v. COMMONWEALTH PENNSYLVANIA ET AL. FLORENCE E. HELSEL (06/02/80)

decided: June 2, 1980.

DONALD E. GIBSON, ADMINISTRATOR, ETC., ET AL., APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA ET AL.; FLORENCE E. HELSEL, ADMINISTRATRIX, ETC., ET AL., APPELLANTS, V. COMMONWEALTH OF PENNSYLVANIA ET AL.; RICHARD F. MCCLEMENT, ADMINISTRATOR, ETC., APPELLANT, V. COMMONWEALTH OF PENNSYLVANIA ET AL.; GLADYS J. RUSSELL, ADMINISTRATRIX, ETC., APPELLANT, V. COMMONWEALTH OF PENNSYLVANIA ET AL.; DAVID SELDERS ET AL., APPELLANTS, V. COMMONWEALTH OF PENNSYLVANIA ET AL.



No. 155 March Term, 1979, No. 156 March Term, 1979, No. 157 March Term, 1979, No. 161 March Term, 1979, No. 172 March Term, 1979., Appeals from the Orders of the Commonwealth Court of Pennsylvania, entered on September 25, 1979 at Nos. 1594, 1644, 1669, 1693 and 2317 C.D. 1978.

COUNSEL

John E. Evans, Jr., Pittsburgh, for appellants.

Herbert L. Olivieri, Chief, Torts Litigation Unit, John L. Sweezy, Harrisburg, for Com. and Dept. of Environmental Resources.

W. Arch Irvin, Jr., Wayman, Irvin & McAuley, Pittsburgh, for Gannett, Fleming, Corddry & Carpenter, Inc. amicus curiae in support of appellants.

Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, Johnstown, for Laurel Management Co. amicus curiae.

Frederick N. Egler, Egler & Reinstadtler, Pittsburgh, Samuel R. DiFrancesco, Jr., William G. Barbin, Gleason, DiFrancesco, Shahade & Markovitz, Johnstown, for Greater Johnstown Water Authority, amicus curiae.

Roberts, Justice. Larsen, J., joins in this opinion and files a concurring opinion. Flaherty, J., joins in the concurring opinion of Larsen, J., and in this opinion. Eagen, C. J., and O'Brien and Nix, JJ., dissent.

Author: Roberts

[ 490 Pa. Page 158]

OPINION OF THE COURT

This court abrogated sovereign immunity on July 14, 1978, in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), application for reargument denied, 479 Pa. 411, 390 A.2d 181 (1978). Thereafter the Legislature promulgated Act 152 creating, for the first time in Pennsylvania, statutory sovereign immunity. Act of September 28, 1978, P.L. 788, §§ 1 et seq. This case presents the question of whether it is constitutional to apply Act 152 to causes which became actionable prior to the Act. Because we conclude that Act 152 may not constitutionally govern such actions, this Court reverses the orders of the Commonwealth Court dismissing the present consolidated case, and remands for proceedings consistent with this opinion.

Laurel Run Dam No. 2 flooded Tanneryville, Pennsylvania during a heavy rainstorm on July 20, 1977. Between July 11 and October 4, 1978, appellants filed in Commonwealth Court five separate actions in trespass against appellees Department of Environmental Resources and the Commonwealth, alleging that appellees' negligent supervision of the dam caused the flood and resulting loss of life, limb, and

[ 490 Pa. Page 159]

    property.*fn1 The court consolidated the actions. See Pa.R.Civ.P. 213(a). By preliminary objection, appellees moved to dismiss the actions on the ground that appellees were immune from suit under Section 2 of Act 152, 42 Pa.C.S. § 5110.*fn2 The Commonwealth Court granted the motion, holding that Act 152 applied to appellants' actions, that those actions did not fall within any of the eight exceptions to sovereign immunity ...


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