No. 80-1-40, Appeal from the Order of January 3, 1980 Entered by the Commonwealth Court of Pennsylvania at No. 777 C.D. 1977
Paul H. Titus, Titus & Marcus, Pittsburgh, for appellant.
John L. Sweezy, Asst. Atty. Gen., Herbert L. Olivieri, Robert P. Reed, Metzger, Wickersham, Knauss & Erb, Harrisburg, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., files an Opinion in Support of Affirmance in which O'Brien, C. J., and Larsen, J., join. Nix, J., files an Opinion in Support of Remand in which Flaherty and Kauffman, JJ., join.
The Court being equally divided, the order of the Commonwealth Court, 48 Pa. Commw. 264, 409 A.2d 932 is affirmed.
OPINION IN SUPPORT OF AFFIRMANCE
Proper resolution of this case turns not on the vitality of any claimed immunities, as argued by the Opinion in Support of Remand, but instead turns on whether the present complaint can sustain preliminary objections in the nature of a demurrer.*fn* A review of the complaint makes clear that no cause of action has been stated. Although the receiver alleges that the Commonwealth as well as the successive Secretaries of the Department of Banking and remaining individual defendants owe several duties to the public, the receiver fails to allege the existence of any statutory duty owed to the corporations subject to receivership. The Commonwealth Court's dismissal of the complaint must be sustained on this ground. See, e. g., Mazer v. Williams Brothers Co., 461 Pa. 587, 593 n.6, 337 A.2d 559, 562 n.6 (1975), and Gilbert v. Korvette, Inc., 457 Pa. 602, 604 n.5, 327 A.2d 94, 96 n.5 (1974) (trial court decision may be affirmed if result correct on any ground without regard to grounds actually relied on).
Opinion IN SUPPORT OF REMAND
Pioneer Finance Company, Bellevue Finance Company and other affiliated corporations were placed in receivership by order of the Commonwealth Court on June 27, 1974
pursuant to a petition filed by the Pennsylvania Securities Commission.*fn1 In response, the Commonwealth Court appointed Helen M. Witt as receiver pursuant to a consent decree entered by the court on June 27, 1974. The order of appointment directed that the receiver immediately take into custody, control and possession all assets and property belonging to the subject corporations. By subsequent order dated September 4, 1974, the receiver was also authorized to appoint counsel to assist her in the performance of her duties and to represent her in such legal proceedings as she deemed necessary and appropriate.
This appeal results from a suit in trespass initiated by the receiver and directed against the Department of Banking, it officials, agents and employees. The gist of the complaint charged the Department of Banking, its secretary and other employees with dereliction in their supervisory responsibilities over the operation of the appellant corporations. The action was instituted in the Commonwealth Court addressing its original jurisdiction.*fn2 Preliminary objections were filed and the Commonwealth Court dismissed the action against the Department of Banking relying upon the doctrine of sovereign immunity. The Commonwealth Court also dismissed the action against appellees, Carl K. Dellmuth and G. Allen Patterson on the grounds of official immunity.*fn3 Thereafter, on October 12, 1979, this Court vacated the ...