Thomas, Appellant, v. Baird.
Supreme Court of Pennsylvania
April 23, 1969
433 Pa. 482 | 252 A.2d 653
I concur in the result reached by the majority, but disagree with much of the reasoning. First, although I agree that it was not error for the court below to admit the evidence seized in the search of the apartment building in which appellant resided, this is for the sole reason that there was neither a motion to suppress under
Second, I strongly disagree with the statement of the majority that “as soon as defendant admitted the stabbing, he was informed of his constitutional rights as required by Miranda v. Arizona [384 U.S. 436, 86 S. Ct. 1602 (1966)].” On the contrary, neither at that time nor at any other time was he advised that a lawyer would be appointed to represent him if he was indigent. Commonwealth v. Sites, 427 Pa. 486, 235 A. 2d 387 (1967). Although the majority does not discuss it, appellant signed a written statement, which was admitted into evidence over his objection. I agree with the court below that the statement was properly admitted, but only for the reason that no motion to suppress was timely made under
Mr. Justice JONES joins in this opinion.
Joseph N. Cascio, with him Fike, Cascio & Boose, for appellant.
Robert G. Rose, with him Spence, Custer, Saylor, Wolfe & Rose, for appellee.
OPINION BY MR. CHIEF JUSTICE BELL, April 23, 1969:
This is an appeal from an Order of the Court of Common Pleas sustaining defendant‘s preliminary objections in the nature of a demurrer.
The plaintiff alleged that at about 9:30 A.M. on July 26, 1966, the defendant Ronald G. Baird was operating a maintenance truck along the Pennsylvania Turnpike. The truck was owned by Baird‘s employer, the Pennsylvania Turnpike Commission, and, at the time the accident occurred, Baird was acting within the scope of his employment.
The plaintiff further alleged that Baird brought his truck to a stop in the right, or slow, lane of westbound traffic, disembarked from the truck and was standing on the running board. No precautions were taken to warn traffic coming from the truck‘s rear.
The plaintiff, as administratrix of decedent‘s estate, brought this action in trespass to recover for decedent‘s death under the Pennsylvania statutes. The defendant Turnpike Commission then filed preliminary objections alleging that the Commission is an instrumentality of the Commonwealth engaged in a governmental function and, as such is immune from liability in trespass for injuries and damages resulting from the torts or negligence of its officers or employees. The lower Court sustained the preliminary objections.
Plaintiff acknowledges that our decision in Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A. 2d 199, controls the present case and supports the Order of the lower Court, but asks us to reconsider and overrule that decision. The plaintiff in Rader was injured when his automobile skidded and collided with a guard rail; in his complaint he alleged that the defendant Turnpike Commission allowed ice to accumulate on the turnpike and negligently failed to spread ashes or other abrasive materials thereon or to post a warning of the icy condition. In Rader we held that the Pennsylvania Turnpike Commission was an instrumentality of the Commonwealth engaged in a governmental function and hence immune from liability for the negligence of its employees.
The plaintiff in the instant case does not raise any arguments or contentions which were not adequately and fully considered and rejected in Rader. Moreover, Rader has been cited with approval by our Court several times, and its rationale applied to other factual situations.
Rader is firmly established as the law of Pennsylvania and no convincing reasons have been advanced for overruling it or changing the law.
Order affirmed.
Mr. Justice EAGEN took no part in the consideration or decision of this case.
DISSENTING OPINION BY MR. JUSTICE ROBERTS:
It is both necessary and unfortunate that I must once again vigorously dissent from this Court‘s continuing blind adherence to the doctrine of sovereign immunity. See Harker v. D. & H. Building Wreckers, Inc., 429 Pa. 655, 241 A. 2d 73 (1968) (dissenting opinion); Dillon v. York City School District, 422 Pa. 103, 109, 220 A. 2d 896, 899 (1966) (dissenting opinion). The time is long past for this Court to join those twelve other jurisdictions which have recently abrogated the doctrine. See Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P. 2d 107 (1963); Muskopf v. California Hospital District, 55 Cal. 2d 211, 359 P. 2d 457, 11 Cal. Rptr. 89 (1961); Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957); Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill. 2d 11, 163 N.E. 2d 89 (1959), cert. denied, 362 U.S. 968, 80 S. Ct. 955 (1960); Brinkman v. City of Indianapolis, 231 N.E. 2d 169 (Ind. App. Ct. 1967); Haney v. Lexington, 386 S.W. 2d 738 (Ky. 1964); Williams v. City of Detroit, 364 Mich. 231, 111 N.W. 2d 1 (1961); Spanel v. Mounds View School Dist., 264 Minn. 279, 118 N.W. 2d 795 (1962); Brown v. City of Omaha, 183 Neb. 430, 160 N.W. 2d 805 (1968); McAndrew v. Mularchuk, 33 N.J. 172, 162 A. 2d 820 (1960); Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W. 2d 618 (1962); Parish v. Pitts, 244 Ark. 1239, 429 S.W. 2d 45 (1968). It can be said with all due respect to those who originally promulgated the rule years ago that the doctrine is “no longer just, reasonable nor defensible” and that the “reasons underlying the traditional wide-sweeping rule of sovereign immunity have virtually disappeared in modern society.” Brown v. City of Omaha, supra at 485, 160 N.W. 2d at 806.
Further, to those who would argue that this judicially promulgated doctrine should be rescinded by the Legislature if by anyone, I once again turn to the most recent opinion striking down this rule. “Both the Legislature and this court have power to act to change the doctrine and it may well be that the Legislature will have the ultimate word. This would seem to be a poor reason to avoid the court‘s obligation to modify the common law to serve the requirements of justice in a modern society. We ought not to thrust upon the Legislature the sole responsibility for injustice on the ground that, ‘Thus it was said in the reign of Henry IV,’ nor even on the ground that any change would constitute the traditionally condemned heresy of judicial legislation.” Id. at 485, 160 N.W. 2d at 808; Keeton, Creative Continuity in the Law of Torts, 75 Harv. L. Rev. 463 (Jan. 1962); Keeton, Judicial Law Reform: A Perspective on the Performance of Appellate Courts, 44 Texas L. Rev. 1254 (July 1966); Peck, The Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn. L. Rev. 265 (Dec. 1963).
Finally, I believe the instant fact situation presents uniquely compelling reasons for abrogating the sovereign immunity doctrine. Here we have a turnpike authority which operates almost five hundred
Therefore, again I am forced to dissent and in so doing hopefully I give comfort to those litigants who may try in the future to strike down a doctrine whose time has long since passed into the realm of ancient history.