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GINO CERRONE v. MILTON SCHOOL DISTRICT (08/09/84)

decided: August 9, 1984.

GINO CERRONE, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, DIANE CERRONE AND ROCCO CERRONE, AND DIANE CERRONE AND ROCCO CERRONE, IN THEIR OWN RIGHT AND SANTINA CERRONE, APPELLANTS
v.
MILTON SCHOOL DISTRICT, BOROUGH OF MILTON, EVANGELICAL COMMUNITY HOSPITAL AND AMADOR CALDERON, M.D., APPELLEES



Appeal from the Order of the Court of Common Pleas of Northumberland County in the case of Gino Cerrone, a minor, by his parents and natural guardians, Diane Cerrone and Rocco Cerrone and Diane Cerrone and Rocco Cerrone, in their own right, and Santina Cerrone v. Milton School District, Borough of Milton, Evangelical Community Hospital and Amador Calderon, M.D., No. CV 82-76.

COUNSEL

Myron H. Deutsch, for appellants.

David R. Bahl, McCormick, Reeder, Nichols, Sarno, Bahl & Knecht, for appellee, Milton School District.

Judges Williams, Jr., Doyle and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 84 Pa. Commw. Page 396]

Gino Cerrone, a minor, represented by his parents Diane and Rocco Cerrone, as well as the elder Cerrones in their own right and Santina Cerrone (Appellants) appeal from an order of the Court of Common Pleas of Northumberland County which sustained preliminary objections in the nature of a demurrer, filed by Milton School District (Appellee). We affirm.

Gino Cerrone was a student attending a school in Milton School District when he was injured while wrestling at the school. The trial court dismissed Appellants' amended complaint*fn1 and sustained Appellee's preliminary objections holding that Appellants' action in trespass against the school district was barred by the Political Subdivision Tort Claims Act

[ 84 Pa. Commw. Page 397]

(Act).*fn2 Following an appeal of the trial court's decision to the Pennsylvania Superior Court the case was transferred to this Court.

Of the three arguments raised by Appellants the first two challenge the constitutionality of the Act. Appellants allege that the Act violates Article I, ยง 11 of the Pennsylvania Constitution which contains the following language:

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.*fn3

Appellants contend that the above language does not empower the legislature to immunize the Commonwealth from suit. We disagree. Our Supreme Court's recent decision in Carrol v. County of York, 496 Pa. 363, 437 A.2d 394 (1981), specifically addressed this argument and upheld the legislature's authority to grant immunity to the Commonwealth. Writing for the majority, Justice Roberts stated:

[m]anifestly, it is within the province of the Legislature to determine that certain bars to suit are, in its judgment, needed for ...


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