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GARY W. RANK v. JOHN C. BALSHY ET AL. (05/11/84)

decided: May 11, 1984.

GARY W. RANK, PETITIONER
v.
JOHN C. BALSHY ET AL., RESPONDENTS



Original jurisdiction in the case of Gary W. Rank v. John C. Balshy, et al.

COUNSEL

Dennis J. Valenza, with him Gilbert B. Abramson, Abramson, Freedman & Blackman, P.C., for petitioner.

Maura A. Johnston, Deputy Attorney General, with her, Randall G. Gale, Deputy Attorney General, Torts Litigation Unit, Allen C. Warshaw, Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge MacPhail.

Author: Macphail

[ 82 Pa. Commw. Page 363]

Gary W. Rank (Petitioner) filed a Complaint in Trespass in this Court on April 24, 1981, against the Commonwealth of Pennsylvania, the Pennsylvania State Police and four individual State Troopers*fn1 (Respondents). The complaint alleged that Respondents violated Petitioner's civil rights*fn2 and committed several torts, including battery, false imprisonment, malicious prosecution, abuse of process, intentional infliction of emotional distress and defamation, pursuant to the unsuccessful prosecution of Petitioner in connection with the murder of Helen Horn.

The procedural history of this action is complex. After the action was filed in our Court, we transferred the case, sua sponte, on April 30, 1981, to the Court of

[ 82 Pa. Commw. Page 364]

Common Pleas of Dauphin County, pursuant to the jurisdictional mandate of Section 761(a)(1)(v) of the Judicial Code, 42 Pa. C.S. § 761(a)(1)(v)*fn3 (Code). Notwithstanding our order, from which no appeal was taken, the court of common pleas entertained a petition from the Respondents raising the question of the jurisdiction of that court and entered an order re-transferring the case to us, holding that we have exclusive jurisdiction pursuant to the provisions of Section 761 of the Code*fn4 inasmuch as that court could find no exception to our Court's exclusive jurisdiction provided in that Section for causes of action based upon civil rights violations.*fn5

[ 82 Pa. Commw. Page 365]

In a pre-argument order, we directed that Respondents' motion for summary judgment and the question of this Court's jurisdiction be addressed. Since we once again conclude that we do not have jurisdiction in this case, we cannot rule upon the motion for summary judgment.

There can be no doubt that we may examine the question of our jurisdiction sua sponte, Husted v. Board of Directors of Wellsboro Area School District, 57 Pa. Commonwealth Ct. 520, 427 A.2d 272 (1981), notwithstanding the fact that both parties contend that we do have jurisdiction.

The Petitioner's complaint in trespass alleges that the tortious acts of the individual Troopers constituted a willful deprivation of his federal constitutional rights in violation of 42 U.S.C. §§ 1983 and 1985. In count II of the complaint, Petitioner avers that the Commonwealth and Pennsylvania State Police violated his civil rights in violation of Sections 1983 and 1985 and his rights secured by the Constitution of Pennsylvania in that they, the Commonwealth and Pennsylvania State Police, failed to exercise due care over the selection of State Troopers, failed to train and exercise due control over the individual Respondent State Troopers and failed to exercise proper control over custodians and other personnel in the Dauphin County Jail. ...


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