137 C.D. 1975 | Pa. Commw. Ct. | Sep 29, 1976
Marian J. Reinert, Administratrix of the Estate of Audrey S. Reinert, Deceased, and Robert L. Mitch, Administrator of the Estate of Vicki L. Mitch, Deceased, Plaintiffs
v.
Pennsylvania Department of Transportation, Defendant.
Commonwealth Court of Pennsylvania.
Submitted on briefs, September 14, 1976, to Judges CRUMLISH, JR., WILKINSON, JR., and ROGERS, sitting as a panel of three.
*284 Robert M. Ruzzi, with him Bernard J. Avellino, for plaintiffs.
Richard S. Herskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant.
OPINION BY JUDGE ROGERS, September 29, 1976:
Marian J. Reinert and Robert L. Mitch, respectively the Administratrices of the Estates of Audrey S. Reinert and Vicki L. Mitch, both deceased, have filed a Complaint in Trespass in this Court against Pennsylvania Department of Transportation, alleging that the Department was negligent in the matter of the design and construction of Legislative Route 100 at a location in Chester County and in failing to provide notice of alleged dangerous conditions, the only such condition specified being the absence of a guard rail separating the North and South bound lanes of the road. The Commonwealth, by its Department of Transportation, has filed preliminary objections in the nature of a demurrer grounded on the Commonwealth's immunity from the suit.
The plaintiffs reiterate the familiar arguments against the Pennsylvania courts' continued recognition of the so-called doctrine of sovereign immunity, despite our Supreme Court's continued recognition of the viability of the doctrine by reason particularly of Article I, Section 11 of this State's constitution. Specter v. Commonwealth of Pennsylvania, 462 Pa. 474, 341 A.2d 481 (1975).
We assume that the plaintiffs, as they have the undoubted right to do, wish to raise the issue again *285 in the Supreme Court. This Court must, however, sustain the Commonwealth's preliminary objections.
ORDER
AND NOW, this 29th day of September, 1976, it is ordered that the preliminary objections of the Commonwealth, Department of Transportation, in the nature of a demurrer be and they are hereby sustained and the complaint herein is dismissed.