Estate of Armstrong v. Pennsylvania Board of Probation & Parole

tion therefore continues to be barred by virtue of Section 5(b)(1) of Act 152. Finally, this Court today holds, in Brungard v. Hartman, 46 Pa. Commonwealth Ct. 10, A.2d (1979), that Section 5(b)(1) of Act 152 is not unconstitutional insofar as it acts retroactively to bar suits which would otherwise have been allowed by virtue of the judicial abolition of sovereign immunity in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). We-must therefore hold that the Commonwealth and the Board continue to enjoy immunity from suit, and we must dismiss the action as to those defendants.

II The Complaint against the Members of the Pennsylvania Board of Probation and Parole.

Preliminary objections of the individual members of the Board of Probation and Parole seek dismissal of the Complaint against them on the ground of their absolute immunity as so-called high Commonwealth officials. In Reiff v. Commonwealth, 23 Pa. Commonwealth Ct. 537, 354 A.2d 918 (1976), we held that members of the Board were absolutely immune. The individual defendants thus invoke the traditional common law rules of official immunity. These rules were that high Commonwealth officials were absolutely immune from suit for conduct within the scope of their authority and that other Commonwealth officers and employees were liable only if their conduct was alleged and proved to be malicious, wanton or reckless. The Pennsylvania Supreme Court in DuBree v. Commonwealth of Pennsylvania, 481 Pa. 540, 393 A.2d 293 (1978), substituted for those rules the requirements that the extent of the immunity to be accorded public officials should be decided on a case by case basis by consideration of whether public policy would be promoted in shielding the defendant from liability; whether the defendant’s actions complained of could be measured against a predictable standard of care; whether, bnt for the defendant’s status, a right of action would lie under analogous rules of law; and whether the plaintiff has improperly failed to avail himself of other available remedies.

The common law principles of official immunity were of pure judicial origin. As such, just as sovereign immunity, they were subject to modification to meet changing times and conditions by the Pennsylvania Supreme Court. Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965); Commonwealth v. Ladd, 402 Pa. 164, 166 A.2d 501 (1960). On the other hand, no court has the power to strike down a statute except for constitutional reasons, even where it believes the statute unwise or productive of socially undesirable results. Commonwealth v. Moon, 383 Pa. 18, 117 A.2d 96 (1955).

Act 152 was effective, as we have stated, on September 28,1978. DuBree was decided October 5, 1978. No mention of Act 152 appears in the opinion of the Court in DuBree or in either of two dissenting opinions. However, the Commonwealth asked for reargument in DuBree relying, we understand, solely on Act 152. The application was denied on November 16, 1978. 481 Pa. at 640, 393 A.2d at 293.

We are convinced that Act 152 did not make the traditional court-made common law principles of official immunity the statutory law of the Commonwealth; and that it did not, therefore, remove the power of the Pennsylvania Supreme Court to supplant or modify them, as the Court did in DuBree. The principles of official immunity are not stated in Act 152. All that appears are expressions by the Legislature that it intends that its officials and employees should continue to enjoy official immunity (Section 1 of Act 152, adding 1 Pa. C.S. §2310); that “existing common law defenses are retained” (42 Pa. C.S. §5110(b)); and

I would, therefore, sustain the preliminary objections of the individual Board members and dismiss the action as to them.¹

Judge Wilkinson, Jr. joins in this concurring and dissenting opinion.

1 Here the majority overrules the preliminary objections filed by the members of the Pennsylvania Board of Probation and Parole on the authority of DuBroe v. Commonwealth, supra, without applying to the individual defendants in the instant case the BuBrce tests that the extent of the immunity to be accorded public officials should be decided on a case-by-case basis by consideration of whether public policy would be promoted in shielding the defendant from liability; whether the defendant’s actions complained of could be measured against a predictable standard of care; whether, but for the' defendant’s status,- a right of action would lie under analogous rules of law; and whether the plaintiff has improperly failed to avail himself of other available remedies.