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THELMA NICHOLSON AND JOSEPH NICHOLSON v. M & S DETECTIVE AGENCY (01/31/86)

decided: January 31, 1986.

THELMA NICHOLSON AND JOSEPH NICHOLSON
v.
M & S DETECTIVE AGENCY, INC. AND COMMONWEALTH OF PENNSYLVANIA. COMMONWEALTH OF PENNSYLVANIA, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Thelma Nicholson and Joseph Nicholson v. M & S Detective Agency, Inc. and Commonwealth of Pennsylvania, No. 3224 April Term, 1984.

COUNSEL

Gary Stewart Seflin, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellant.

Howard D. Scher, Montgomery, McCracken, Walker & Rhoads, for appellees.

Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 94 Pa. Commw. Page 522]

Thelma Nicholson (appellee) was formerly employed by a Philadelphia bank. On September 9, 1983, a security guard at the bank, employed by M & S Detective Agency, Inc., committed a robbery therein. During the course of the robbery, the security guard threatened to murder appellee, handcuffed her, forced her into a darkened utility closet, gagged her, and lashed her hands and neck with wire to an overhead

[ 94 Pa. Commw. Page 523]

    pipe in such a manner as to force her to stand on her toes in order to breathe. She remained immobilized in the closet for hours until she was rescued. Appellee claims that she suffers severe, continuing, and possibly permanent physical, mental and emotional injury; consequently, she is suing M & S Detective Agency, Inc., as employer of the guard, and the Commonwealth of Pennsylvania, for having failed to perform a statutory duty to prevent known criminals from being employed by private detective agencies.

The Commonwealth of Pennsylvania (appellant) raised preliminary objections to the lawsuit in the nature of a demurrer, seeking dismissal of the complaint on the grounds that appellant was protected from suit by sovereign immunity.*fn1 The trial court denied the preliminary objections and this appeal is before us as an interlocutory appeal by permission.*fn2 The sole issue is whether appellant is protected from this suit by sovereign immunity, and its preliminary objections should thus be sustained.

[ 94 Pa. Commw. Page 524]

Sovereign immunity is statutorily provided for by § 8521 of the Judicial Code, 42 Pa. C.S. § 8521. There are only eight instances in which the Commonwealth has waived sovereign immunity as a bar to an action against Commonwealth parties, these exceptions being statutorily provided for in § 8522 of the Judicial Code, 42 Pa. C.S. § 8522. Unless appellee's complaint falls within one of the eight areas in which immunity has been waived, it is clear that sovereign immunity would bar this suit, and the preliminary objections should be sustained.

In examining appellee's complaint against the Commonwealth, it is evident that the complaint is based on a failure of the Pennsylvania State Police, undeniably an agency of this Commonwealth, to perform a statutory duty. This duty is found in The Private Detective Act of 1953 (Act), Act of August 21, 1953, P.L. 1273, as amended, 22 P.S. § 11-30. The Act provides that a private detective agency may employ as many persons as are deemed necessary; however, such persons must be of good character, as defined by § 23 of the Act, 22 P.S. § 23. In order to ascertain that such employees are not, in fact, criminals or persons with prior criminal records, § 23 of the Act provides:

(c) Immediately upon the verification of any employee's statement, the holder of a license certificate by whom such person has been or is to be employed, shall cause two sets of fingerprints of the two hands of such person to be recorded in such ...


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