36 Pa. Commw. 272 | Pa. Commw. Ct. | 1978
Opinion by
This is the appeal of Joseph Lucy, Peter Bukowsld, Patrick' Vinansky, Richard Cicci, Jack Evans and
Plaintiffs Lucy, Vinansky and Bukowski are members of the Mine Safety Committee of the Ellsworth, Pennsylvania Local of the United Mine Workers of America. Plaintiffs Washlack, Cicci and Evans are members of the Mine Committee of the same local. The plaintiffs’ amended complaint contains allegations that the defendants Muchnok and Urbany are Bituminous Mine Inspectors of the Commonwealth and the defendant Vicinelly is the Commissioner of Deep Mine Safety j
The defendants filed amended preliminary objections in which under the heading “Lack of Jurisdiction” they averred the following concerning Bitumi
(a) appointed by the Governor;
(b) charged with the enforcement of the bituminous deep mine safety laws in his assigned district;
(c) delegated discretion by statute in the enforcement of the deep mine safety laws in his district;
(d) charged with investigation and reporting any violations of the bituminous deep mine safety laws and other matters affecting the safety of persons working in bituminous deep mines;
(e) authorized to initiate criminal and civil proceedings against persons violating the bituminous deep mine safety laws;
(f) charged with serving on commissions, the findings of which are binding upon the Commonwealth;
(g) charged with conducting examinations for certification of mine officials.
(h) charged with conducting examinations for certification of miners in his district; and
(i) charged with approving mining methods and procedures within his district.
The amended preliminary objections averred that the defendant Vicinelly, as Commissioner of Deep Mine Safety, was:
(a) charged with directing the work of the Office of Deep Mine Safety, including the work of the Bituminous Mine Inspectors;
(b) responsible directly to the Secretary of Environmental Resources;
(c) charged with the enforcement of all deep mine safety laws and with determining*276 policy with regard to the enforcement of those laws; and
(d) authorized to appoint investigating commissions, the findings of which are binding upon the Commonwealth, and to approve mining methods, equipment and training programs.
The plaintiffs filed an answer to the amended preliminary objections admitting these averments.
The defendants also demurred to the amended complaint on the ground that all defendants were high public officials who enjoyed absolute immunity from suit on account of acts done in their official capacity. The court below held that the nature of the duties with which the defendants were charged required that they be deemed to be high public officials, sustained the defendants’ preliminary objections in the nature of a demurrer and dismissed the plaintiffs’ complaint. This appeal followed.
We have first a question of which court, the court below or we, has jurisdiction with respect to suits against the several defendants. Section 401(a)(1) of the Appellate Court Jurisdiction Act of 1970 (Act)
Since defendants Muchnok and Urbany plainly did not perform any state-wide policymaking functions as Bituminous Mine Inspectors, they are not officers of the Commonwealth for jurisdictional purposes. As we noted in Fischer v. Kassab, 32 Pa. Commonwealth Ct. 581, 585, 380 A.2d 926, 928 (1977), however, “an individual may be a high public official entitled to absolute immunity but not be an officer of the Commonwealth if his policymaking authority is not statewide.” As the court below correctly decided, this is precisely the case with defendants Muchnok and Urbany.
Accordingly, we enter the following
Order
And Now, this 12th day of June, 1978, the order of Court of Common Pleas of Washington County dated March 10, 1977 is affirmed with respect to the suits against J. M. Muchnok and E. C. Urbany; with respect to the suit against W. J. Vicinelly, which we treat as having been transferred, the preliminary objections are sustained and the complaint dismissed.
The complaint also named W. H. Nixon, another Bituminous Mine Inspector, as a defendant. By stipulation of the parties, Mr. Nixon was removed as a defendant as the result of his death subsequent to the filing of the complaint.
Act of July 31, 1970, P.L. 673, as amended, 17 P.S. §211.401 (a) (1).
It may be noted that we held in Fischer v. Kassab, 32 Pa. Commonwealth Ct. 581, 585, 380 A.2d 926, 928 (1977), that “‘officer’ as used in Section 401(a)(1) and as defined in Opie v. Glascow, Inc., supra, encompasses ‘high’ public officials for purposes of determining absolute immunity so that an individual who is an officer over whom we have jurisdiction is necessarily entitled to absolute immunity.”