Koynok v. Commonwealth

Concurring and Dissenting Opinion by

Judge Crumlish, Jr.:

I, too, would dismiss the complaint, but for the reason that Plaintiffs are guilty of laches. The negative evaluation of Glenmore Academy was issued in 1967, and Koynok was informed in 1968 that this evaluation would not be withdrawn or modified. Yet the instant action was not filed until May 1973. In the interim, many persons involved in the evaluation have left the Department of Education and are unavailable as witnesses, thus significantly prejudicing Defendants’ ability to prepare a defense. Under these circumstances, appearing on the face of the pleadings, I would find Plaintiffs guilty of a want of due diligence in failing to institute their action to Defendants’ preju *379 dice. Holiday Lounge, Inc. v. Shaler Enterprises Corporation, 441 Pa. 201 , 272 A. 2d 175 (1971); Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128 , 221 A. 2d 123 (1966); Marston v. Kline, 8 Pa. Commonwealth Ct. 143 , 301 A. 2d 393 (1973).

I cannot agree, however, that the doctrine of sovereign immunity stands as a bar to the injunctive relief sought against Dr. L. Wagenhorst and N. Eugene Shoemaker merely because Eoynok failed to allege that the statute under which the evaluation was made is unconstitutional. 1 As the language quoted by the majority from Philadelphia Life Insurance Company v. Commonwealth, 410 Pa. 571, 576 , 190 A. 2d 111 (1963) elucidates, suits to compel affirmative action by state officials or to obtain money damages or recover property from the Commonwealth are within its immunity; suits to restrain state officials from performing affirmative acts are not barred from sovereign immunity. Although Philadelphia Life, supra, involved the enforcement of a tax statute alleged to be unconstitutional, it certainly does not stand as a bar to a suit to enjoin a public official from performing acts beyond or in abuse of his statutory authority merely be *380 cause the statute under which the official proceeds is not also attacked as unconstitutional. If Koynok can establish that the evaluation performed was beyond the statutory authority of the individual Defendants or otherwise in abuse of that authority — although the statute enforced is, itself, constitutional, a suit to enjoin such actions would not be against the Commonwealth, but the defendant officials in their individual capacity. See Martin v. Baldy, 249 Pa. 253 , 94 A. 1091 (1915); Isett v. Meehan, 232 Pa. 504 , 81 A. 544 (1911) and the other cases cited in Philadelphia Life Insurance Company v. Commonwealth, supra, enjoining unauthorized actions by state officials not involving allegations of unconstitutionality. See also Beth Jacob Schools of Philadelphia v. Labor Relations Board, 8 Pa. Commonwealth Ct. 343, 346 , 301 A. 2d 715, 717 (1973), and the cases cited therein.

I would have to agree with the majority that, under the present state of the law, the State Board of Private Schools, as an instrumentality of the Commonwealth, is immune from Koynok’s action for money damages. Brown v. Commonwealth, 453 Pa. 566 , 305 A. 2d 868 (1973); Biello v. Liquor Control Board, 454 Pa. 179 , 301 A. 2d 849 (1973). As no specific relief is asked against the Commonwealth, however, it is not a proper party and must be dropped from the Complaint. Pa. R. C. P. 2232(b); see also Philadelphia Life Insurance Company v. Commonwealth, 410 Pa. 571 , 190 A. 2d 111 (1963). Nor would I grant the Defendant public officials absolute immunity from money damages without a factual determination that they were acting within the scope of their official duties at the time when they made the complained of evaluation. See my dissenting opinion in Debree, Jr., Executor v. Commonwealth, 8 Pa. Commonwealth Ct. 567 , 303 A. 2d 530 (1973).