Opinion
November 3, 1976.
Sovereign immunity — Constitution of Pennsylvania, Article I, Section 11 — Pennsylvania Board of Probation and Parole — Waiver.
1. The Constitution of Pennsylvania, Article I, Section 11, grants to the Commonwealth of Pennsylvania and the Pennsylvania Board of Probation and Parole absolute immunity from liability in tort alleged to have arisen from the negligent release, supervision and failure to apprehend parolees, and such immunity can be waived only by express legislative enactments manifesting such intent. [505-6]
Judge CRUMLISH, JR., concurring in part and dissenting in part, filed an opinion which was substantially as follows:
1. The judiciary has the power to pass upon the merits of the doctrine of sovereign immunity upon which the Constitution of Pennsylvania takes a neutral position. [507]
2. An individual should not be cloaked with sovereign immunity until his duties are scrutinized following discovery of all relevant information pertaining thereto. [507]
Submitted on briefs, September 10, 1976, to Judges CRUMLISH, JR., WILKINSON, JR., and ROGERS, sitting as a panel of three.
Original jurisdiction, No. 70 C.D. 1975, in the Commonwealth Court of Pennsylvania in case of Donna Lynn Reiff, a minor, by her parents and natural guardians, Donald A. Reiff and Dovie K. Reiff, and Donald A. Reiff and Dovie K. Reiff, in their own right v. Commonwealth of Pennsylvania and Pennsylvania Board of Probation and Parole. Complaint in trespass to recover damages for personal injuries. Defendant filed preliminary objections. Held: Preliminary objections sustained. Complaint dismissed.
Melvin Alan Bank, with him Bank, Minehart D'Angelo, for plaintiffs.
Robert A. Greevy, Assistant Attorney General, with him J. Andrew Smyser, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendants.
This is a trespass action in which plaintiffs, invoking the original jurisdiction of this Court, seek to recover damages for injuries sustained by the minor plaintiff during the course of the robbery of a Philadelphia shop. The Reiffs assert that the present defendants, the Commonwealth of Pennsylvania and the Pennsylvania Board of Probation and Parole (Board), are liable because of the gross and wanton negligence, recklessness and carelessness of certain members and employees of the Board. Specifically, it is alleged that the defendants, with knowledge of the serious criminal records of the alleged felons, did one or more of the following: allowed the robbers to be released on parole, failed to properly supervise them while on parole, and failed to apprehend them for criminal activity until after the plaintiff had been injured.
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.
In Reiff v. Commonwealth, 24 Pa. Commw. 537, 354 A.2d 918 (1976), we sustained preliminary objections, in the nature of demurrers, raised by some individual defendants whom we found to be high public officials acting within their official capacities or scopes of authority and hence absolutely immune from tort liability. We transferred to the Court of Common Pleas of Philadelphia County the complaint as it related to the City and one of its employes.
The Commonwealth and the Board have raised preliminary objections, alleging that the doctrine of sovereign immunity clothes both the Commonwealth and the Board with absolute tort immunity. The resolution of this matter is controlled by our recent decision in Freach v. Commonwealth, 24 Pa. Commw. 546, 354 A.2d 908 (1976), where we held that suits against the Commonwealth and the Board are expressly precluded by Article I, Section 11 of the Pennsylvania Constitution. However, plaintiffs suggest that in view of recent legislative expressions of concern for the innocent victims of crimes, we should reconsider the doctrine of sovereign immunity, at least insofar as it prevents actions of this character.
The Act of June 18, 1976, P.L. ___, No. 86, amends Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes by adding provisions on the restitution to victims of crimes. The Act of July 9, 1976, P.L. ___, No. 139, creates a Crime Victim's Compensation Board and provides for the consideration and payment of claims to persons who are victims of crimes. Unfortunately, Section 4 of the Act provides that there shall be no compensation for crimes which have occurred prior to the effective date of the Act.
The Commonwealth Court has often held that it has no power or authority to ignore or overturn prior pronouncements of the Supreme Court of Pennsylvania controlling this subject matter. And as the Supreme Court has repeatedly held, the Commonwealth's immunity can be waived only by express legislative enactment manifesting a consent to suit. Brown v. Commonwealth of Pennsylvania, 453 Pa. 566, 305 A.2d 868 (1973). Neither of the two recent acts cited to us by plaintiffs satisfied this constitutional requirement. Thus, we are left with no choice but to conclude that the doctrine of sovereign immunity insulates both of the present defendants from liability.
ORDER
AND NOW, this 3rd day of November, 1976, it is hereby ordered that the preliminary objections of the Commonwealth are sustained and the complaint herein is dismissed.
I must respectfully dissent. As I stated in my Concurring and Dissenting Opinion in Freach v. Commonwealth, 24 Pa. Commw. 546, 354 A.2d 908 (1976), my position is that the Pennsylvania Constitution neither requires nor prohibits sovereign immunity, but rather, is neutral on the subject and merely sets forth the procedure whereby the Commonwealth may waive the power to be immune. Therefore, it is within the power of the judiciary to examine the merits of the doctrine and, if necessary, excise the doctrine from our law. Finally, in all sovereign immunity cases, we must develop a discovery procedure designed to adduce all relevant information as to the duties of an individual defendant before cloaking him with absolute immunity.
I dissent.