Summary
In Fischer v. Kassab (I), 25 Pa. Commw. 593, 360 A.2d 809 (1976), the first time these proceedings came before this Court, we sustained the preliminary objections of Jacob G. Kassab, Secretary of Transportation, on the ground that he was a "high" public official entitled to absolute immunity from suit.
Summary of this case from Fischer v. KassabOpinion
Argued March 4, 1976
July 22, 1976.
Sovereign immunity — Absolute immunity — Conditional immunity — Discretionary acts — Jurisdiction of courts of common pleas — Suits against Commonwealth employes — Words and phrases — High public officials — Secretary of Transportation — Imprecise pleadings — Pa. R.C.P. No. 1028(c) — Depositions.
1. High public officials of the Commonwealth when acting within the scope of their authority are protected from suit by an absolute immunity, and a conditional immunity protects other public officials so long as they are acting within the scope of their authority and their conduct is not malicious, wanton or reckless. [595-6]
2. Whether the acts complained of are discretionary or nondiscretionary is of no relevance in determining whether a public official is immune from suit. [596]
3. Suits against Commonwealth employes enjoying only conditional immunity must be filed in a court of common pleas rather than in the Commonwealth Court of Pennsylvania. [596]
4. Whether a Commonwealth officer is a high public official entitled to absolute immunity depends upon the nature of his duties, the importance of his office and his power to make policy, and an officer to whom sovereign governmental functions are delegated to exercise for the public benefit is a high public official. [596]
5. The Secretary of Transportation of the Commonwealth of Pennsylvania is a high public official protected from suit by absolute immunity. [597]
6. When allegations in a complaint are so broad and preliminary objections so imprecise that it is impossible to determine whether the defendants are high public officals entitled to absolute immunity or officials entitled only to conditional immunity, the court under Pa. R.C.P. No. 1028(c) may direct that depositions be taken so that the issue may be properly resolved. [597]
Argued March 4, 1976, before Judges CRUMLISH, JR., KRAMER and ROGERS, sitting as a panel of three.
Original jurisdiction, No. 1174 C.D. 1975, in case of Bernard A. Fischer, Executor of the Estate of Sally Wilson, deceased v. Jacob G. Kassab, David C. Simms, Harold C. Poulson, Phillip W. Amos, Anthony Daliessio, Thomas J. Duff, Joseph P. Synkonis, Jr., Harold A. Humbert, Joseph P. Wade, Haverford Township, Thomas Banner, John Doe, John Doe, John Doe and John Doe. Complaint in trespass in the Commonwealth Court of Pennsylvania to recover damages. Defendants filed preliminary objections. Held: Preliminary objections sustained in part and overruled in part. Complaint dismissed as to defendant Kassab. Plaintiff directed to take depositions.
Joseph D. Shein, with him Shein Brookman, P.A., for plaintiff. Joseph Goldberg, with him Edwin L. Scherlis, and Frank, Margolis, Edelstein and Scherlis, for defendants.
Invoking the original jurisdiction of this Court, the personal representative of Sally Wilson, deceased, has filed a wrongful death and survival action against individuals, who, it is alleged, acted negligently in the performance of the duties of their employment with or by the Commonwealth's Department of Transportation (PennDOT) in the maintenance of a State highway. Also named as defendants are Haverford Township and an employe of that municipality. All of the defendants are alleged to have acted wilfully, wantonly, maliciously and with complete disregard of the decedent's safety.
The defendants who are employes of PennDOT have filed preliminary objections on the basis of absolute and conditional immunity, a demurrer and a motion to strike for failure to conform to the Pennsylvania Rules of Civil Procedure. Those defendants are: Jacob G. Kassab, Secretary of Transportation; David C. Simms, Deputy Secretary for Highway Administration; Harold C. Poulson, Deputy Chief Highway Engineer East; Phillip W. Amos, Assistant Deputy Chief Highway Engineer East; Anthony D. Daliessio, former Superintendent of Maintenance, Delaware County; Thomas J. Duff, present Superintendent of Maintenance, Delaware County; Joseph P. Synkonis, Jr., District Engineer of Engineering District 6-0, Delaware County; Harold A. Humbert, Deputy District Engineer, Engineering District 6-0; Joseph P. Wade, Assistant District Engineer (Operations), Delaware County.
Recent opinions of this Court have reviewed the state of the law concerning absolute and conditional immunity. Absolute immunity attaches to the actions of "high public officials" when acting within the scope of their authority; conditional immunity attaches to actions of other public officials so long as they are acting within the scope of their authority and so long as the conduct was not malicious, wanton or reckless. Trulli v. City of Philadelphia, 23 Pa. Commw. 611, 353 A.2d 502 (1976); Kulik v. Stotelmyer, 23 Pa. Commw. 583, 354 A.2d 916 (1976); Freach v. Commonwealth of Pennsylvania, Department of Welfare, 23 Pa. Commw. 546, 354 A.2d 908 (1976); DuBree v. Commonwealth, 8 Pa. Commw. 567, 303 A.2d 530 (1973); See also Ammlung v. Platt, 224 Pa. Super. 47, 302 A.2d 491 (1973). Whether the actions of the public officials complained of are discretionary or nondiscretionary is without significance. Walter v. Commonwealth of Pennsylvania, 23 Pa. Commw. 97, 350 A.2d 440 (1976).
Suits against officers of the Commonwealth are properly brought before this Court. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 Pa.C.S.A. § 211.401 (a)(1). Hence, high public officials of the Commonwealth may be sued here; other officers and employes enjoying only conditional immunity must be sued in courts of common pleas.
The determination of whether Commonwealth officers are high public officials depends on the nature of their duties, the importance of their offices and whether they have policy-making functions. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958); DuBree v. Commonwealth, supra. They will be held to be high public officials if sovereign functions of government are delegated to them to be exercised for the public benefit. Forney v. Harrisburg State Hospital, 18 Pa. Commw. 17, 336 A.2d 709.
The Secretary of Transportation, Kassab, is clearly a high public official of the Commonwealth. He enjoys absolute immunity. We must sustain his preliminary objection based on that immunity.
With regard to the Commonwealth defendants other than Kassab, we are squarely presented with the problem stated by Judge CRUMLISH in his dissenting opinion in Freach v. Commonwealth of Pennsylvania, supra, and Kulik v. Stotelmyer, supra. From the broad averments of the complaint and the imprecise preliminary objections, we presently are unable to make any determination as to the status of these other PennDOT employes for the purposes of absolute or conditional immunity.
Pa. R.C.P. No. 1028(c) provides that if an issue of fact is raised by preliminary objections, the court shall take evidence by deposition or otherwise. We have concluded that we should invoke this power and direct taking depositions necessary to enable us to determine the status of the Commonwealth defendants other than Kassab.
It is, of course, certain that we have no original jurisdiction with respect to Haverford Township or its employe, one Thomas Banner. Were we able to determine from the pleadings that all of the Commonwealth defendants except Kassab were not high public officials we would transfer the entire matter to a court of common pleas for trial. Since, after depositions are completed, we may conclude that some of the other Commonwealth defendants are high public officials whose demurrers based on absolute immunity must be sustained, we will not effect such transfer at this time. After the taking of depositions and the determination of the status of such other Commonwealth employes, we will transfer the matter as to all defendants still in the case, including Haverford. Township and its employe, for disposition.
ORDER
AND NOW, this 22nd day of July, 1976, the preliminary objections of the defendant Kassab based on absolute immunity are sustained and the plaintiff's complaint dismissed as to him.
The plaintiff is hereby directed to take such depositions as are necessary for the determination of whether the other Commonwealth officers named as defendants are or are not high public officials, and upon the completion of such depositions to request a relisting of such remaining Commonwealth defendants' preliminary objections.
It is further ordered that the preliminary objections to the naming in the complaint as defendants of "John Doe" in four instances is sustained, and said designations are stricken, without prejudice to the plaintiff's right, subject to statute of limitation, to amend his complaint to join other persons as defendants when their identities are ascertained.