McCoy v. Commonwealth 457 Pa. 513

Opinion

Per Curiam,

Order affirmed.

Dissenting Opinion by

Me. Justice Kobebts :

In addition to continuing to adhere to the view, fully expressed elsewhere,1 that the doctrine of sovereign immunity ought, in its entirety, to be consigned to the judicial scrapheap, I believe that there are compelling reasons for its non-application in this case. Therefore, I dissent.

*515Plaintiff filed his complaint in the Commonwealth Court in his capacity as executor of the estate of his father. He alleged, inter alia, that the Pennsylvania Liquor Control Board, its members and agents wrongfully permitted liquor to be sold to the decedent after they had been advised that he was an alcoholic and requested to prevent sales to him.2 A three-judge panel of the Commonwealth Court sustained defendants’ preliminary objections and dismissed the complaint on grounds of sovereign immunity and high public official immunity.

Shielding the Commonwealth and the Liquor Control Board from liability in this case is particularly appalling for two reasons.

First, in my view, the Legislature has consented to suit in section 4-493(1) of the Liquor Code.3 “It shall be unlawful — (1) For . . . the board, or any employe, servant or agent... of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.” This Court has held that a violation of this section is negligence per se for which the violator will be liable in damages to a person protected by the statute. Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963). I conclude that the declaration by the Legislature that the Board may be guilty of permitting the sale of liquor to “habitual drunkards” is a mani*516festation of its consent to be sued for violations. “What possible reason could tbe Legislature have bad in specifically (in Section 493(1)) making it unlawful for tbe Board to sell liquor to minors, if it wasn’t indicating its legislative intent that tbis was sucb an important matter of public policy that it (The Board) could be held Bable for sucb an unlawful act? How can it be said that tbis provision is intended to be solely related to criminal law? How does the Commonwealth fine or put itself (its board) in jail for a violation? If tbe sovereign can do< no wrong, bow can it violate Section 493(1) of the Code, even criminally? Why mention tbe Board at all, if more than a crime wasn’t intended? By tbe manner in which tbis prohibition is set forth in tbe Code, I can find authorization to sue tbe Board if as a result of doing sucb an unlawful act [a statutorily protected person is injured].” Biello v. Pennsylvania Liquor Control Board, 1 Pa. Commonwealth Ct. 179, 190 (1971) (dissenting opinion of Judge Kramer) .

Second, in tbe sale of Bquor perhaps more than in any other activity, tbe Commonwealth is in business. It operates a vast wholesale and retail operation that in most states is performed by private enterprise. It seems particularly outrageous to me that people lose their right to be compensated for injuries done them because tbe Commonwealth has appropriated to itself a segment of tbe economy. Surely if tbe Commonwealth wishes to enjoy tbe profits of enterprise it must suffer tbe liabiBties as well. See Thomas v. Baird, 433 Pa. 482, 486-87, 252 A.2d 653, 655-56 (1969) (dissenting opinion of Roberts, J.).

I would vacate tbe orders of tbe Commonwealth Court sustaining preliminary objections and remand for an adjudication of tbe merits.

Mr. Justice Nix and Mr. Justice Mandarino join in tbis dissenting opinion.