DuBree v. Com.

• Citation: 481 Pa. 540,393 A.2d 293
• Parties: Roland E. DuBREE, Executor of the Estate of Roland E. DuBree, Sr., Appellant, v. COMMONWEALTH of Pennsylvania, Robert G. Bartlett, Paul L. Thomas, Joseph Wide, John Auerbach, Harry Snyder, Oscar Kulp, Eugene Schad, and Protection Service, Inc.
• Decision Date: 16 November 1978
• Court: United States State Supreme Court of Pennsylvania

Page 293

393 A.2d 293

481 Pa. 540

Roland E. DuBREE, Executor of the Estate of Roland E DuBree, Sr., Appellant, v. COMMONWEALTH of Pennsylvania, Robert G. Bartlett, Paul L Thomas, Joseph Wide, John Auerbach, Harry Snyder Oscar Kulp, Eugene Schad, and Protection Service, Inc.

Supreme Court of Pennsylvania.

Argued April 25, 1974.

Reargued Jan. 18, 1978.

Reargument Denied Nov. 16, 1978.

Harry R. Nixon, Schneider & Nixon, Hatboro, Stephen M. Feldman, Feldman &amp Richard P. McBride, Doylestown, Pa., E. R. Cusey, Gerald Gornish, Harrisburg, for appellees.

Feldman (Phila. Trial Lawyers Assn.), Philadelphia, for appellant.

Argued before JONES, C. J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

Reargued before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Appellant Roland DuBree, Jr., executor of the estate of Roland DuBree, Sr., seeks damages in a wrongful death and survival action against appellees, the Commonwealth of Pennsylvania and seven named officials of the Pennsylvania Department of Transportation. ¹ Decedent was killed when, on the night of August 6, 1969, his car plunged into a ten foot deep excavation in a public highway. Appellant alleges that the individual appellees were negligent in failing to barricade the excavation adequately, or to warn motorists of the excavation. Appellant also alleges the individual appellees were negligent in failing properly to supervise their subordinates to ensure that the excavation did not endanger motorists. ²

The Court of Common Pleas of Bucks County dismissed the complaint against the Commonwealth on the doctrine of "sovereign immunity." In Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), we abrogated this doctrine. We therefore vacate the order of the Commonwealth Court affirming the order of the trial court dismissing the complaint against the Commonwealth.

The Court of Common Pleas dismissed the complaint against the individual appellees on the doctrine of "official immunity." ³ Because the complaint alleged "mere negligence," the Commonwealth Court affirmed. ⁴ We conclude that the liability of the individual appellees should not have been analyzed solely on the basis of their status as employees of the Commonwealth. We therefore vacate the order of the Commonwealth Court and remand for proceedings consistent with this opinion. ⁵

In recent years, we have declined to grant immunities when they proved ineffective in promoting their underlying policies. E. g., Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978) (sovereign immunity); Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973) (local government immunity); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971) (parental immunity); Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965) (charitable immunity). In this case, too, an examination is required of whether the considerations underlying "official immunity" are effectively advanced.

In order to discharge his duties effectively, a public servant must be free to exercise his judgment unhampered by the fear of unpredictable liability. Where the nature of the servant's decision or action in question is such that it may not be measured against a predictable standard of care, the possibility of litigation may tend to discourage the making of clear choices. It is in the public interest to avoid such a chilling effect upon the servant's performance of his duties. Where, on the other hand, a standard of care may be defined and applied with relative ease, the public servant is not similarly deterred and the public interest in the protection of the official weakens. Also relevant to the strength of the public interest is the potential impact of the challenged decision or action upon the public as a whole or upon a large segment of it. The greater or more pervasive this impact, the stronger becomes the public interest in insuring unfettered decisionmaking.

Yealey v. Fink, 43 Pa. 212 (1862), demonstrates the importance of the public interest in insuring unfettered decisionmaking. In Yealey, township supervisors were held not liable for building a causeway which interfered with the flow of water to the plaintiff's mill. The supervisors had the responsibility of determining where and how roads should be built. This Court believed that they should be privileged to place and build the roads in the manner they saw fit, so long as their choice was not made maliciously, intending to injure another party. Public interest required the supervisors to be free to build roads in the safest manner and place them most conveniently "without being terrified with the apprehension of personal responsibility, if their acts should result in harm to any private property." 43 Pa. at 212.

Consistent with the interest in unimpaired decisionmaking, we believe it appropriate to protect from the possibility of suit a public servant who has not himself engaged in actionable conduct. Thus, those in the "chain of command" should not be subject to suit on any theory of vicarious responsibility. Compare Commonwealth ex rel. Oris v. Roberts, 392 Pa. 572, 141 A.2d 393 (1958) (absent allegation that supervisory procedures were inadequate, prothonotary not liable for subordinate's failure to file lien); Hirysh v. State, 376 Mich. 384, 136 N.W.2d 910 (1965) (police chief not liable for incident which he did not have knowledge of, participate in, or direct); and Spielman v. State, 91 N.W.2d 627 (N.D.1958) (Highway Commissioner not liable for negligent driving of Highway Department employee in absence of his own negligent conduct), with Fernelius v. Pierce, 22 Cal.2d 226, 138 P.2d 12 (1943) (city manager and chief of police liable for negligently failing to fire police officers known for brutality) and Martinez v. Cahill, 215 Cal.App.2d 823, 30 Cal.Rptr. 566 (1963) (deputy police chief may be liable for failure to supervise properly or to transfer officers who operated jail improperly). If a public servant engages in actionable conduct in the performance of his duties, only he and the Commonwealth, his ultimate employer, are subject to suit.

As in Jonnet v. Bodick, 431 Pa. 59, 244 A.2d 751 (1968), consideration must also be given to whether the party seeking relief has improperly failed to pursue existing, available remedies. In Jonnet, this Court held that township supervisors could not be held liable for wrongfully refusing to grant a building permit. The relevant statute provided for an administrative appeal from the refusal of township supervisors to grant a building permit, but the plaintiff had not appealed. This Court stated that a plaintiff should not be allowed to recoup losses he might have avoided by taking an available administrative appeal. 431 Pa. at 61, 244 A.2d at 753. Rules of law applicable in similar situations should also be examined, including, for example, those relating to the conduct of officials of local government. Dean v. New Milford Township, 5 W. & S. 545 (Pa.1843) (township supervisors liable for their negligence in failing to assure safe roads); Kiel v. DeSmet Township, 242 N.W.2d 153 (S.D.1976) (township supervisor liable for negligent posting of road warning signs).

Where, but for the defendant's status, a right of action would lie under analogous rules of law, and no public policy would be promoted in shielding a defendant from liability, and the plaintiff has not failed to pursue existing remedies, denial of the possibility of recovery is unjustified. Cf. e. g., Jackson v. Kelley, 557 F.2d 735 (10th Cir. 1977) (army doctor liable for negligent malpractice because, although discretionary, choice between methods of treatment does not involve government policymaking requiring special protection); United Air Lines v. Weiner, 335 F.2d 379, 397-98 (9th Cir.), cert. denied, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964) (while military authorities may have absolute discretion concerning when and where to fly, officer liable for negligently failing to warn civilian aviation); Upchurch v. Clinton Co., 330 S.W. 428 (Ky.1959) (County Commissioners, who had broad discretion in executing duty to establish dog pound held liable for damage caused by wild dogs when no pound was established).

Our approach patterns closely that fashioned by the Supreme Court of the United States in Butz v. Economou, --- U.S. ----, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Butz broadened the scope of liability of employees of the executive branch of federal government to include federal officers' acts infringing constitutional rights. But Butz did not eliminate all immunities of all federal executive officers, and likewise we do not today abrogate all immunities of all state officials. Compare e. g., Barr v. Matteo, 360 U.S. 654, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) (agency head held immune from suit for defamation despite allegation of malice); Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 184 U.S.App.D.C. 397, 566 F.2d 289 (1977) (en banc, per Leventhal, J.) (following Barr ), cert. denied, --- U.S. ----, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978).

Several times in recent years we have declined to follow easily-applied but unjust doctrines in favor of rules which, though requiring case-by-case determinations, more often produce equitable results. E. g., Neiderman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970) ("impact rule"). Mr. Justice Nix, speaking for this Court in another context, recently emphasized the advisability of refraining

"from attempting to fashion broad general rules as a panacea. The obviously wiser course is to resolve disputes on a case-by-case basis until we develop, through experiences in (an) area, a sound basis for developing overall principles."

Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 500, 337 A.2d 262, 265 ...