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JOHN NAGLE AND YONISH TRUCKING v. PENNSYLVANIA INSURANCE DEPARTMENT ET AL. (05/20/83)

decided: May 20, 1983.

JOHN NAGLE AND YONISH TRUCKING, INC., PETITIONERS
v.
PENNSYLVANIA INSURANCE DEPARTMENT ET AL., RESPONDENTS



Original jurisdiction in the case of John Nagle and Yonish Trucking, Inc. v. Pennsylvania Insurance Department, et al.

COUNSEL

Leonard Schaeffer, with him, William H. Bishop and James D. Rosen, Pechner, Dorfman, Wolffe, Rounick & Cabot, for petitioners.

Hannah Leavitt, Assistant Counsel, with her, David T. Kluz, Assistant Attorney General; John H. Isom, Assistant Attorney General; Robert P. Kane, Attorney General; and William R. Balaban and Robert J. Demer, Balaban and Balaban; Joseph Manta, Frumkin & Manta, P.C.; Brian R. Steiner; Joseph R. Thompson; John E. O'Connor; Curtis P. Cheyney, III, Swartz, Campbell & Detweiler; Mark A. Welge; Edward German; Anthony Vale, and Roger T. Shoop, for respondents.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Craig and MacPhail. Opinion by Judge Craig.

Author: Craig

[ 74 Pa. Commw. Page 401]

The procedural history of this case is well summarized in Pechner, Dorfman, etc. v. Insurance Department, Pa. , 452 A.2d 230 (1982), and in Nagle v. Insurance Department, 46 Pa. Commonwealth Ct. 621, 406 A.2d 1229 (1979), our decision from which the appeal to the Supreme Court was taken.

Coal haulers, as petitioners, in 1977 brought these proceedings as original jurisdiction actions in this court against the Insurance Commissioner, the Coal Mine Compensation Rating Bureau of Pennsylvania, other Commonwealth agencies and a number of private insurance companies. The coal haulers sought equitable relief and also pleaded trespass claims against the Insurance Commissioner, who, after having

[ 74 Pa. Commw. Page 402]

    effected a reduction of premiums payable by the coal haulers for black lung disease insurance protection, refused their request for a full refund of all overpaid premiums dating back to 1973, allowing refunds only from February 7, 1977.

Our decision in Nagle, to the extent that we sustained preliminary objections by the respondents to the invoking of our equitable jurisdiction, was affirmed by the Supreme Court, as was our action in dismissing trespass claims against individual Commonwealth officials on the basis of official immunity.

However, the Pennsylvania Supreme Court reversed that aspect of our Nagle decision in which we sustained preliminary objections by the Commonwealth agencies based on their claim of sovereign immunity with respect to trespass counts by the coal haulers, who alleged that the state agencies had wrongfully and conspiratorially injured them by imposing the excessive premiums. The Supreme Court has remanded the case to this court for proceedings consistent with the Supreme Court's opinion.

Concerning the trespass claims, the Supreme Court disagreed with our view that the Act of September 28, 1978, P.L. 788, § 2, formerly 42 Pa. C.S. § 5110, retroactively restored sovereign immunity so as to bar causes of action which had accrued before that Act. The Supreme Court, following Brungard v. Mansfield State College, 491 Pa. 114, 419 A.2d 1171 (1980) and Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980) expressly stated that the 1978 immunity statute could not be constitutionally applied to actions which had accrued and were in existence before its enactment. Hence, it is clear that ...


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