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SAMUEL O. PICARIELLO v. COMMONWEALTH PENNSYLVANIA ET AL. (10/15/80)

decided: October 15, 1980.

SAMUEL O. PICARIELLO, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA ET AL., DEFENDANTS



Original jurisdiction in case of Samuel O. Picariello v. Commonwealth of Pennsylvania, and Department of Revenue of Pennsylvania, and Milton Lopus, former Secretary of Revenue of Commonwealth of Pennsylvania, and Department of Justice of Pennsylvania, and "The Guide" and Fry Communications, Action in trespass in the Court of Common Pleas of Philadelphia County.

COUNSEL

Jeffrey M. Voluck, for plaintiff.

Herbert L. Olivieri, Chief, Torts Litigation Unit, with him Randall G. Gale, Deputy Attorney General, Harvey Bartle, III, Acting Attorney General, and Joseph F. Roda, of Kohn, Savett, Marion & Graf, for defendants.

Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 54 Pa. Commw. Page 253]

Plaintiff Samuel Picariello filed this action in trespass in the Philadelphia Court of Common Pleas against the Commonwealth of Pennsylvania, Department

[ 54 Pa. Commw. Page 254]

    of Revenue, Milton Lopus, former Secretary of Revenue, the Department of Justice of Pennsylvania (Commonwealth defendants), The Guide newspaper and Fry Communications, alleging defamation, invasion of privacy and intentional inflicting of emotional distress.

Plaintiff's complaint avers that, in January of 1978, a confidential letter containing false and libelous statements was sent by the Justice Department to Secretary Lopus. The information was in turn given by the Secretary as a press release to The Guide, which published it in its January 10, 1979 edition.

The Commonwealth defendants filed a preliminary objection challenging the jurisdiction of the common pleas court on the ground that original jurisdiction over an action against the Commonwealth or an officer acting in his official capacity is vested in the Commonwealth Court by Section 761(a)(1)(iii) of the Judicial Code, 42 Pa. C.S. § 761(a)(1)(iii); the remaining preliminary objections were in the nature of a claim of absolute immunity and a demurrer. The common pleas court sustained the jurisdictional objection and transferred the action as against the Commonwealth defendants to this court pursuant to 42 Pa. C.S. § 5103(a). The remaining preliminary objections are before us at this time.

The Commonwealth defendants first argue that the Commonwealth and the Departments of Revenue and Justice have sovereign immunity from suit for defamation, invasion of privacy, and inflicting emotional distress, under Section 5110 of the Judicial Code, 42 Pa. C.S. § 5110(a) (Act 152).*fn1

[ 54 Pa. Commw. Page 255]

The claim is clearly governed by the provisions of Act 152. Although the Pennsylvania Supreme Court has limited the application of Act 152 to actions arising on or after September 28, 1978, the effective date of the Act, Gibson v. Commonwealth, Pa. , 415 A.2d 80 (1980), the complaint in this case indicates that the alleged injuries occurred "on or ...


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