Concurring and Dissenting Opinion by
Judge MacPhail :I concur with the majority’s decision to dismiss the complaint against the Commonwealth. I respectfully dissent, however, from that part of the majority’s opinion which overrules the preliminary objections of the individual members of the Pennsylvania Board of Probation and Parole (Board).
The crucial question which must be answered is whether the Act of September 28, 1978, P.L. 788, Act No. 152 (Act 152) or our Supreme Court’s decision in DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d *42293 (1978) represents the controlling law of the Commonwealth on the question of official immunity. It is clear to me that Act 152 is controlling.
The majority states:
All that appears [in Act 152] are [1] expressions by the Legislature that it intends that its officials and employees should continue to enjoy official immunity (Section 1 of Act 152, adding 1 Pa. C.S. §2310); [2] that ‘existing common law defenses are retained’ (42 Pa. C.S. §5110(b)); and [3] that Commonwealth officials ‘may assert . . . defenses which have heretofore been available to such officials’ (42 Pa. C.S. §5110(b)(1)).
The majority interprets this language as merely retaining common law rules of official immunity. I would interpret Act 152 as codifying the common law rules concerning official immunity and making them a part of the statutory law of the Commonwealth.
It is true that our Supreme Court’s decision in DuBree, supra, was announced one week subsequent to the effective date of Act 152, and that it made no mention of the Act. The majority opinion notes that it was represented to us in oral argument (but such fact does not appear as a part of the record) that the Supreme Court refused to hear reargument in DuBree even though the Commonwealth’s petition for reargument rested solely on Act 152. I do not infer from the proceedings in DuBree any determination by the Supreme Court relating to the validity of Act 152. The Court simply did not address the issue either in the opinion or in the denial of the reargument petition.
Prior to today, then, no court has ruled on the validity of Act 152. We have held Act 152 to be constitutional as it relates to the Commonwealth’s sovereign immunity defense. Brungard v. Hartman, 46 *43Pa. Commonwealth. Ct. 10, 405 A.2d 1089 (1979). I would also hold Act 152 to be constitutional and controlling as it relates to the official immunity defense accorded Commonwealth officials and employees acting within the scope of their duties. Prior to the enactment of Act 152 individual members of the Board were entitled to absolute immunity. The legislature codified that immunity in Act 152. Therefore, I would sustain the preliminary objections of the individual defendants and dismiss the complaint against them.
Judge Wilkinson, Jb. joins.