Opinion
Argued June 6, 1977
July 21, 1977.
Sovereign immunity — Constitution of Pennsylvania, Article I, Section 11 — Pennsylvania State Police — Department of General Services — High public officials — Pennsylvania State Police Commissioner — Secretary of the Department of General Services.
1. The Commonwealth of Pennsylvania, as well as the Pennsylvania State Police and the Pennsylvania Department of General Services as instrumentalities and agencies of the Commonwealth, are absolutely immune from suit under Article I, Section 11 of the Constitution of Pennsylvania, except where the legislature consents to such suits. [209]
2. The Pennsylvania State Police Commissioner and the Secretary of the Pennsylvania Department of General Services are high public officials immune from suit when acting within the scope of their authority. [209-10]
Argued June 6, 1977, before Judges WILKINSON, JR., MENCER and ROGERS, sitting as a panel of three.
Original jurisdiction, No. 6 T.D. 1977, in case of Ronald E. Kenno, a minor, by Ronald A. Kenno, his parent and natural guardian, and Ronald A. Kenno, in his own right, v. Commonwealth of Pennsylvania, Department of State Police, James A. Barger, Commissioner; Commonwealth of Pennsylvania, Department of General Services, Ronald Lench, Secretary. Complaint in trespass in the Court of Common Pleas of Dauphin County seeking damages for personal injuries. Defendants filed preliminary objections. Case transferred to the Commonwealth Court of Pennsylvania. Held: Preliminary objections sustained. Complaint dismissed.
Robert D. Kodak, with him Frederick W. Andrews, and Knupp and Andrews, for plaintiff.
David Max Baer, Deputy Attorney General, with him J. Justin Blewitt, Jr., Deputy Attorney General, and Robert P. Kane, Attorney General, for defendants.
On or about May 27, 1974, Ronald E. Kenno sustained serious injuries when the vehicle in which he was traveling was involved in a collision with a vehicle allegedly driven by a state policeman and owned by the Pennsylvania Department of General Services. Thereafter, Ronald A. Kenno instituted an action in the Court of Common Pleas of Dauphin County in his own right and as parent and natural guardian for his minor son, Ronald E. Kenno, against the Commonwealth of Pennsylvania, the Pennsylvania State Police, the State Police Commissioner, the Department of General Services, and the Secretary of that department. The defendants filed preliminary objections which, inter alia, raised questions of jurisdiction and immunity. The common pleas court correctly decided that the action was within this Court's exclusive original jurisdiction under Section 401 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 Pa.C.S.A. § 211.401, and the case was accordingly transferred here.
The Commonwealth's preliminary objections raise the defense of sovereign immunity which is derived from Article I, Section 11 of the Pennsylvania Constitution. Our Supreme Court has consistently held that the Commonwealth enjoys absolute immunity, absent legislative consent to suits against it. E.g., Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973). Moreover, the Pennsylvania State Police has been held to be an instrumentality of the Commonwealth clearly entitled to the protection of sovereign immunity. Schroeck v. Pennsylvania State Police, 26 Pa. Commw. 41, 362 A.2d 486 (1976). We likewise hold that the Pennsylvania Department of General Services, as an agency of the Commonwealth, is entitled to the protection of sovereign immunity. See Harris v. Rundle, 27 Pa. Commw. 445, 366 A.2d 970 (1976). Accordingly, the complaint as to these defendants must be dismissed.
We again note that immunity from suit is an affirmative defense which should be pleaded under the heading "New Matter" in a responsive pleading. Freach v. Commonwealth, ___ Pa. ___, ___, 370 A.2d 1163 (1977); see Pa. R.C.P. 1030. Since plaintiffs did not object to the manner in which the issue of immunity was raised, we will, in the interest of judicial economy, decide the issue on its merits. See Sharp v. Commonwealth, 29 Pa. Commw. 607, 372 A.2d 59 (1977).
Additionally, we sustain the preliminary objections of the remaining defendants on the basis of the common-law concept of "official immunity." See Freach, supra note 1. The "high public officials" aspect of this doctrine, which insulates from civil liability with respect to official communications and acts high public officials acting within the scope of their authority, has previously been applied to the Pennsylvania State Police Commissioner, James A. Barger. Schroeck, supra. We hold that it also applies to the named Secretary of the Pennsylvania Department of General Services, who has broad statewide policymaking authority. Cf. Fischer v. Kassab, 25 Pa. Commw. 593, 360 A.2d 809 (1976) (Secretary of Transportation). Accordingly, the complaint as to these defendants must also be dismissed.
ORDER
AND NOW, this 21st day of July, 1977, the preliminary objections of the defendants are hereby sustained, and the plaintiffs' complaint as to all defendants is dismissed.