No. 417 January Term, 1979, Appeal from the Order of September 14, 1979, of the Commonwealth Court, No. 1100 Commonwealth Docket 1972.
Richard Z. Freemann, Jr., Bonnie S. Brier, George E. Moore, Philadelphia, for appellant.
Jered L. Hock, Harrisburg, for appellee John A. Hartman.
John G. Eidmueller, Jr., Dep. Atty. Gen., Herbert L. Olivieri, Atty. Gen., Dauphin, for appellee Mansfield State College.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., files a dissenting opinion. Eagen, C. J., and O'Brien, J., dissent.
In 1972 appellant Karen Brungard commenced this action in trespass against Mansfield State College and Professor John A. Hartman, a chemistry professor at the College. The complaint alleged that appellant was injured in a chemistry lab explosion as a result of defendants' negligence. The Commonwealth Court dismissed the complaint against the College on the basis of sovereign immunity, and dismissed the complaint against the professor on the basis of official immunity. See Brungard v. Hartman, 12 Pa. Commw. 477, 315 A.2d 913 (1974). On appeal this Court (1) vacated the Commonwealth Court's order with respect to the College on the basis of our decision in Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978), application for reargument denied, 479 Pa. 411, 390 A.2d 181 (1978),*fn1 and (2) vacated the Commonwealth Court's order
with respect to the professor and remanded for consideration in light of the principles of official immunity enunciated in Dubree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978). See Brungard v. Hartman, 483 Pa. 200, 394 A.2d 1265 (1978).
On remand, the Commonwealth Court dismissed the complaint with respect to the College on the ground that Act 152, Act of September 28, 1978, P.L. 788, §§ 1 et seq., which created for the first time in Pennsylvania statutory sovereign immunity in certain categories, barred the action.*fn2 See Brungard v. Hartman, 46 Pa. Commw. 10, 405 A.2d 1089 (1979).
This Court recently held in Gibson v. Commonwealth of Pennsylvania, 490 Pa. 156, 415 A.2d 80 (1980), that Act 152 cannot be constitutionally applied to actions like the instant one which accrued and were in existence prior to passage of the Act. Here, as in Gibson, it was error for the Commonwealth Court to dismiss the complaint against the College.
Accordingly, the order of the Commonwealth Court dismissing the complaint with respect to the College is vacated and the case is remanded for further ...