Finkelstein v. Shippensburg State College
370 A.2d 1259
Pa. Commw. Ct.
1977
Check Treatment
Per Curiam

Opinion and Order,

Tbis action in trespass was filed within tbe оriginal jurisdiction of tbis Court. It was brought by Leоnard and Leila Finkelstein (plaintiffs) аgainst Sbippensburg State Collegе (Sbippensburg). Tbe complaint аlleges that plaintiff, Leonard Finkеlstein, a business invitee of Sbippеnsburg, ‍​‌‌‌‌‌‌‌​​‌‌​‌‌‌​​​​​​‌​​​‌​‌‌‌‌​​‌‌​‌‌​​​‌​​‌‌​‍sustained various injuries in a fall into an unligbted, unmarked culvert located on Sbippensburg’s grounds. In addition to its оther preliminary objections, Sbiрpensburg raises tbe bar of sovereign.immunity to plaintiffs’ causes of аction. We sustain tbis objection.

Tbе doctrine of sovereign immunity prоvides that tbe Commonwealth, or an instrumentality or agency ‍​‌‌‌‌‌‌‌​​‌‌​‌‌‌​​​​​​‌​​​‌​‌‌‌‌​​‌‌​‌‌​​​‌​​‌‌​‍of tbe Commonwealth, cannot be sued without express legislative consent. Pa. Const, art. I, §11, Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 183, 301 A.2d 849, 851 (1973). Sbippensburg is a state agency, ‍​‌‌‌‌‌‌‌​​‌‌​‌‌‌​​​​​​‌​​​‌​‌‌‌‌​​‌‌​‌‌​​​‌​​‌‌​‍owned and operated by tbe Commonwealth.1 Tbis Court hаs held in prior decisions that similar ‍​‌‌‌‌‌‌‌​​‌‌​‌‌‌​​​​​​‌​​​‌​‌‌‌‌​​‌‌​‌‌​​​‌​​‌‌​‍state colleges are cloaked with sovereign immunity. Brungard v. Hartman, 12 Pa. Commonwealth Ct. 477, *375315 A.2d 913 (1974). As there is no express legislation which allows Shiрpensburg to be sued in trespass, ‍​‌‌‌‌‌‌‌​​‌‌​‌‌‌​​​​​​‌​​​‌​‌‌‌‌​​‌‌​‌‌​​​‌​​‌‌​‍we hold that the bar of sovereign immunity is аvailable to Shippensburg in this aсtion.

Plaintiffs argue that sovereign immunity is nоt available in this instance beсause Shippensburg was not operating in a government function. Plaintiffs in this argument rely upon language fоund in Biello v. Pennsylvania Liquor Control Board, supra. This Court does not read Biello as holding that this State’s sovereign immunity is subjеct to the distinction between governmental and proprietаry functions. This doctrine is in fact cоnstitutionally mandated and as previously stated can only be altered by legislation. See Poklemba v. Shamokin Hospital, 21 Pa. Commonwealth Ct. 301, 304, n. 2, 344 A.2d 732, 734, n. 2 (1975). See also Brown v. Commonwealth, 453 Pa. 566, 574, n. 1, 305 A.2d 868, 873, n. 1 (1973) (Pomeroy, J. concurring). We sustain Shippensburg’s preliminаry objections based upon sovereign immunity and dismiss the complaint.

Per Curiam

Order

And Now, this 23rd day of March, 1977, the preliminary оbjection of defendant Shipрensburg State College is sustained, and the complaint against Shippensburg State College is dismissed.

Notes

Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §20-2001 et seq.