Mayle v. Pennsylvania Department of Highways

conviction, imposition of and the denial motions post-verdict sentence, a direct was had appeal judgment affirmed, was Commonwealth of sentence judgment McNeil, was A.2d 840 Appellant than counsel his direct counsel other trial on represented by raise a of ineffectiveness counsel appeal. To claim Hearing proceeding, the first time in a Post Conviction counsel other who is petitioner represented appeal than the existence of some trial counsel must demonstrate failure raise the circumstance” “extraordinary justifying justification has not been appeal. issue on direct Such Act, Hearing in the instant cause. Post-Conviction provided (1965) 4(b)(2), Act of P.L. 19 P.S. January § 476 Pa. 1180-4(b)(2) (Supp.1977); May, Commonwealth Dancer, (1978); 382 A.2d 1223 95, 331 435 (1975).* A.2d

Order affirmed.

388 A.2d 709 MAYLE, Jimmy Appellant, V. HIGHWAYS. PENNSYLVANIA DEPARTMENT OF Supreme of Pennsylvania. Argued March 1978. July Decided 1978. Dissenting Aug. 31, Opinion Denied Rehearing See * only applied apparently of the view that this rule trial court was appeared assignments which on the of ineffective assistance those upon it is trial Our have made clear that incumbent record. cases stewardship predecessor completely new review the his counsel to assistance, arguable whether or all instances ineffective record, possible opportunity. on the be raised at first trial must appeal. opportunity been the In this instance that would have direct May, See 382 A.2d 1223 Commonwealth v. Panella, Castle, William M. New for appellant. Herskovitz, Richard Gen., S. Asst. Atty. Dept, of Trans- portation, Harrisburg, appellee. O’BRIEN, ROBERTS, EAGEN, J., and

Before C. POM- LARSEN, EROY, NIX, MANDERINO and JJ. OF THE COURT

OPINION ROBERTS, Justice. an Mayle brought trespass

Appellant Jimmy action against appellee Pennsylvania Department Highways result damages Court for incurred a caused mainte- allegedly by appellee’s negligent injuries nance of Route Legislative public highway. Appellee “sovereign immunity” Common- asserted any wealth court in Commonwealth from prohibited hearing suit. The Commonwealth Court dismissed We reverse.1 complaint. us is whether Commonwealth is question before liability legislative

immune from tort where a act except suit. rule of or authorizes This “sover- expressly implicitly upheld this eign immunity” recently has been Court.2 of “sovereign immunity.” We doctrine today abrogate is unfair to the We conclude that the doctrine and unsuited the power times and that this Court has abolish doctrine. I ever existed the doctrine that justification Whatever for the from for liability immune tortious suit, unless the has consented to the Legislature conduct doctrine, day long doctrine’s has since Under passed. justice plaintiff’s opportunity depends, irrationally, it, his or of the act which upon injury nature of caused but or status of Three upon identity wrongdoer. times in recent we have as unfair similar years repudiated pursuant Appellate appeal hear this to the Court Jurisdiction We II, 203, July 17 P.S. Act of P.L. art. § Act of (Supp.1978). 211.203 § (1977) g., Pa. 370 A.2d 2. E. Freach 471 1163 v. Manderino, JJ., (Roberts, dissenting); Brown v. Nix Common- wealth, (Roberts, (1973) Nix and Manderi- 305 A.2d 868 JJ., no, dissenting).

387 A majority immunities parties.3 status-based rejected states has least to some sovereign immunity degree,4 and commentators oppose nearly unanimously.5 theory origin sovereign

The most immu- popular from nity of the American states is that it is a carryover King wrong.” can do no Al- English doctrine “the though may originally this maxim have been a misstatement law, (mid-13th time of English by the III early Henry law it was settled feudal could not King Century), own his By sued in his courts without consent.6 mid Educ., Ayala Board of Public 305 A.2d Pa. (1973) government Pados, (local immunity); Falco v. (1971) (parental immunity); Pennsylva- Flagiello Hospital, (1965) (immunity nia 208 A.2d 193 of chari- ties). analyzes demonstrating 4. Professor Davis collects and cases that 31 partially immunity by judi sovereign states have at least abolished Davis, cial action. K.C. Law Administrative of the Seventies 25.00 § (1976 Davis, Supp.1977); & K.C. Administrative Law Treatise (1970 supplement); (1958). Chapter § 25.00 bound id.3 25.01 25 of § analyzes fully all three sources also state and federal or statutes partially abolishing immunity. sovereign limiting Later cases or abolishing County the doctrine include Oroz Board of Commission ers, (Wyo.1978); Comm’n, Highway 575 P.2d 1155 Jones State (Mo.1977). judicially S.W.2d 225 at 227 n.1 lists 29 Id. states abol ishing modifying immunity. Borchard, Liability 5. The massive most criticism is Government 1, 757, (I VIII), (1924), Tort 34 Yale L.J. Yale L.J. — (1926), prominent 28 Colum.L.Rev. critics Other 4; sovereign immunity Davis, supra Prosser, include note Torts 131 (4th 1971); Alstyne, Liability: at 970-987 ed. Van Governmental Tort Change, A Decade of 1966 U.I11.L.F.919. Dean notes that Prosser given, “In all of the states . . consent has to a [to been suit] greater Prosser, supra Pennsylva or lesser extent.” at 975. Recent Sloan, Interpretation: nia criticism includes Lessons Constitutional Sovereign Immunity Pennsylvania, (1978). 82 Dick.L.Rev. 209 Jacobs, Sovereign Immunity C. E. The Eleventh Amendment & 5 (1972). suggests immunity only James this is demonstrable back to (late James, cent.). Liability the time of Edward I 13th Tort of Officers, 610, Governmental Units and 22 Their 611 U.Chi.L.Rev. & (1955). n.5 may originally King The maxim have meant that the was not Borchard, privileged I, wrong. Liability Tort, to do See Government 1, (1924); 34 2 Liquor Yale L.J. Biello v. Control Board, 179, n.2, 849, (1973) (Nix, J., 454 Pa. 187-88 301 A.2d 853 n.2 Roberts, joined J., by dissenting). 388 crown, the as the the doctrine

eighteenth century, be without state, of modern could not sued embodiment the of the Blackstonian part its consent had become canon.7 immunity Pennsylvania adopting sovereign The first case in of states is an attri- the American immunity asserted the on them- which states took bute the crown English have they might selves at but which better independence, George: left King behind with independence preroga- “At the declaration of American state, and person, tives the dignity which did not concern him in trust for by such as had been held but King, the here and exer- people his assumed subjects, by were themselves; rest, the unwise- among immediately by cised justice to do think, refusing I the prerogative ly compulsion.”8 Blackstone, *254-55; (the King see 1 *240—42

7. 3 id. Commentaries Yet, state). admitted that the the even Blackstone embodiment of course, would, permit a of itself to be sued. 3 the crown as matter wrongs chapter to done He remedies for id. *255. crown. 3 id. trative devoted Jaffe, See L. Control of Adminis- also Judicial ch. that it It was until 1865 was Action 197-99 right,” “petition the form for suit of which was decided that the against crown, against would not be used the crown redress 203, citing Queen, v. B. Feather The 6 the torts of its servants. Id. at (Q.B.1865) (applying Eng.Rep. “the S. 122 1205 & wrong”). King can no maxim that do (Gibson, J.). Pittsburgh, (1851) v. Pa. 189 C. 8. O’Connor 18 necessity earlier, upon the Even procedure allowing had commented brought claims to be Com- contract Commonwealth, 127-28 6 Pa. monwealth. Hutchinson v. (1847). O’Connor, municipalities parts In held that were of the Court twenty following years O’Con- Commonwealth. In hundred nor, governments and of the immunities local source, single having whether that source were seen as a common Dist., law, Twp. Pa. School 393 Morris v. Mt. Lebanon common 633, see (1958); Pa. 27 A. Brewer v. County, (1942); Allegheny v. A.2d 53 Heil District, Borough (1938); v. School Ford Kendall Gilmartin, (1888); City 15 A. 812 constitutional, City Harrisburg, (1872); Pa. Pa. see Smeltz Laughner County, (1970); Allegheny 269 A.2d 466 (on generally II infra A.2d 607 See section immunity). origins The doctrines sover common-law eign governmental not severed until Brown were Thus, in the doctrine Pennsylvania, sovereign immunity of was criticized at its as an unwise remnant of very inception As English the Court of Illinois political theory. Supreme stated:

“in preserving sovereign the courts have immunity theory, overlooked the fact the Revolutionary War was fought to abolish that ‘divine right Kings’ of on which the theory is based.”9

Moreover, the immunity accorded “sover- Pennsylvania as eign” has been than English far that claimed greater by any king or at least the queen since restoration of the monarchy in time, the crown been to subject Since that has suit in in the equity Exchequer Court of for “it would derogate from King’s the to imagine honour what is equity against a common be person against should not equity Commonwealth, 2, supra Ayala note and Board of Education, 3, supra companion Public in note cases decided Thus, history involving for most of the cases immunity understanding governments necessary of local are both relevant and development sovereign immunity. plaintiff opportunity One earlier case denied a to make full against counter-claim for the Commonwealth in court him and referred however, case, prius (trial relief Senate. This was at nisi term) highest at a time when this Court tribunal in was not Pennsylvania, infra, see and referral to the Senate have been immunity

based not on of the Commonwealth but on the that the fact Senate, employee claiming money counter-claimant was an Senate 303, allegedly Matlack, (4 U.S.) owed. Commonwealth v. 4 Dall. (Pa.Supreme 1804). 1 L.Ed. 843 Matlack won a of set-off verdict (The of the amount of the Commonwealth’s claim him. Id. report of this case is verbatim one Dallas is named not attorney Matlack). 1806, Supreme It should noted that between 1780and Court Appeals High was to the of Errors inferior Court DCCCLXVIII, Pennsylvania. February chap. Act of (1803 (text printed reprint) noted in 2 Laws of Pa. at 239 either Sm.L.), April Chap. by or in edition amended ofAct MDLXIV, 16, 17, 19, 22, (1810 repealed reprint), 3 Sm.L. §§ February 24, MMDCXXXIV, 11, Chap. Act of 4 Sm.L. (1810 reprint). 272—73 haveWe found no decisions of that tribunal bearing immunity. Community 9. Molitor v. Kaneland Unit District No. 18 Ill.2d (1959) (relying upon citing 163 N.E.2d without the Su preme Florida). 10 Nonetheless, him.” Pennsylvania, equity11 peti- include suits grew as well as actions at law. declaratory judgment12 tions for for this of the No was ever offered extension explanation the doctrine not history doctrine and the of does English it. support

A for the growth second reason offered most, a if many, is that without such doctrine soon the gone bankrupt states would have after Revolution. While it true that states many American would bankruptcy period have faced without during suit obligations,13 Pennsylvania insulation from constant- it to be in the the ly against allowed claims made office of 10. Pawlett v. certain cases since Edward I. Officers: law. Hale, B., Liquor J., authority question] Baron had he not believed the [lit. General, joined King. “that (Exchequer C. Hadres at petition Hale would have considered Control ^[1912] by Sovereign Immunity, you for the existence of a E. stated “the Roberts, Attorney g., remove cannot Board, 1 K.B. Biello, 1668) right against J., dissenting). your 454 Pa. at General, 410, 415, (Atkyns, supra. plaintiff King removed in Eng.Rep. hands,” is in actual Jaffe, 77 Harv.L.Rev. full set of This Hadres had 188 n. B.). as cited in Black’s L.Dict. at monarch Suits may equity a Pawlett is 552. equitable remedy Accord, Dyson 465, 469, equitable be a possession against by It is not Biello v. had been A.2d at slight an amoveas often remedy law. 145 109], Governments remedies overstatement. [of seen as clear whether Eng.Rep. 853 n. 4 Pennsylvania as he available unavailable Attorney manum, against land in strong (Nix, at Commonwealth, 11. Life Ins. Co. (1963); Williamsport (1859). Elmira R. & Co. not be (1934) (alternate ^[1911] Compare 1 K.B. 410 brought against sovereign), Bell (contra) (as holding) (petition for Telephone Co. v. cited in L. with Lewis, Jaffe, declaratory judgment Dyson Attorney supra note 169 A. 571 at 202 n. General, could

12). Georgia, (2 U.S.) (1793), 2 Dall. 1 L.Ed. 440 Chisholm v. jurisdiction holding that had over a suit Geor federal courts states, gia by passage of citizens of other caused almost immediate amendment, depriving States courts of such eleventh United Currie, (2d 1975) jurisdiction. D. See Federal Courts 559-61 ed. debating (citing Revolution). bankruptcy of threat after the sources extent of state Comptroller General for “services performed, monies ad- vanced, or articles furnished order by of the legislature,”14 with a to the right appeal Supreme Court Pennsylva- Indeed, nia.15 failed to Pennsylvania Legislature ap- a prove calling resolution constitutional amendment which would shield the states from suits on their obligations court, in federal and when this proposed amendment was by Congress, Further, refused to it.16 Pennsylvania ratify be- fore adoption States, the Constitution of the United had Pennsylvania paid interest on certificates issued to former and, soldiers Continental after a Congress bitter public $5,000,000 controversy, assumed over national debt.17 did need, not feel the certain other did, states to protect itself from liability through sovereign immunity.

Two cases in this from Court the Post-Revolutionary period, Respublica v. Sparhawk,18 and Black Rempublicam,19are nonetheless read as by adopting some the doctrine of sovereign In immunity.20 Sparhawk, the plaintiff to recover sought from the Comptroller General the value of goods seized the during agents Revolution by Commonwealth, direction of the acting upon Continental Congress. The had been goods seized to them prevent from falling British, into the hands of the but the enemy captured and used them anyway.

14. Act of 13, 1782, April Chap. (1810 DCCCCLIX Sm.L. 19 reprint). 15. Respublica Sparhawk, 357, 363, (1 U.S.) 1 Dall. 1 L.Ed. 174 (Pa.Supreme 1788) (McKean, J.).C. 16. Jacobs, Sovereign Immunity C. E. The Eleventh Amendment & (1972). 65-67 & n. 99 17. M. Jensen, The New Nation 393-96 Supra note 15. 19. 1 Yeates 140 (Pa.Supreme 1792).

20. The judicial proposi- first citation of either of these cases for this tion occurs in Collins v. 106 A. 230-31 . this Court21 stated that appeal,

On transaction “[t]he bello; are lawful in things happened flagrante many season, be permitted in time of that which would a. do can no the peace.” stating Far from taking by the original stated that wrong, Court time trespass been a in would have peace.22 occasionally rule which has been then stated a Court is better suffer sovereign immunity: to justify

used “[I]t . mischief, a a inconvenience . . public than private .”23 sometimes been as interpreted “Public inconvenience” has public made tort victims.24 purse the demand on However, examples public may of inconveniences the which the cited in liability denying avoid without Court immunity for public do not demonstrate claim Sparhawk’s circumstances, torts, but show that merely exigent Thus this maxim public was private use property.25 not as a limitation liabili- interpreted conduct, but a limitation on ty of tortious government could claim land and chattels interest citizen private either other citizens government.26 Comptroller This held in the alternative claim to hear be- jurisdiction Sparhawk’s General had no supra. note 21. See (1 U.S.)

22. 1 Dall. at 362. Id. Educ., Ayala 24. See Board of Public 453 Devon, 667, 877, (1973), citing 2 T.R. 881 Russell v. Men J.) (same year (K.B.1788) (Ashhurst, Eng.Rep. as 100 ). Sparhawk public right way example, For had a 25. members (when barges along privately river traffic owned river banks tow otherwise), razed to impeded and a house could be contain would be U.S.) (1 (Pa.Supreme). a fire. 1 Dall. Devon, contrast, Eng.Rep. By 2 T.R. at Russell v. Men 26. (Ashhurst, J.), slogan government as a limit on tort at 362 liability. used the monies performed, the claim was “services cause not for advanced, Despite Common- or articles furnished.”27 it was an immune sovereign,28 wealth’s direct assertion that taking refused to hold that if the Commonwealth’s Court no court would peacetime, had been a committed in trespass have claim absent consent of the had to hear the jurisdiction Legislature.

In Rempublicam,29 Black v. another War Revolutionary case, his were goods to demonstrate plaintiff attempted Failing with of the state. agents taken under a contract that, jurisdictional on the same his claim was dismissed this declined to treat Com- ground. again, Once Court monwealth as an immune and did not discuss the sovereign, Commonwealth’s it to Revolution- argument subjecting Thus, War claims would it.30 fear of bank- ary bankrupt ruptcy did not compel adoption sovereign immunity post-Revolutionary Pennsylvania.31 also birth eighteenth century gave argument for torts of its liability government agents would result in “an of actions.”32 But as infinity early this jurisdic- Court that a recognized properly formulated tional scheme could provide orderly adequate compensa- Supra 27. note 14. (1 U.S.) Commonwealth), citing (argument

28. 1 Dall. at 360 for the * Blackstone’s Commentaries 242. (Pa.Supreme 1792). 29. 1 Yeates 140 Id. at 142. District, Borough In Ford Kendall School 548— (1888), expressed liability 15 A. concern that personal injury agents caused torts of their would threaten the stability districts, poor” although financial of “weak school we previously suggested governments ought had that all state and local injuries private property. to be liable for all O’Connor Pitts- burgh, Devon, Eng.Rep. (Ld.

32. Russell v. Men of at 362 T.R. at Kenyon, J.).C. the “every private property tion for ... damage state or occasioned [municipal] corporation it.”33 argues The Commonwealth now tort both liability overburden the could the courts and either Com- bankrupt Significant- monwealth or its financial endanger stability.34 however, the has Commonwealth shown no evidence that ly, tort of a or a has ever liability public authority government clogging resulted either undue the courts or destabili- Indeed, zation of finances. government what, admits it does know if will anything, happen not finances if court public dockets This tort is abolished.35 sort liability Commonwealth from unjust a doctrine so support “plainly cannot speculation wrongful . conduct persons injured by seems to ... one defend State [and which] [n]o fair.”36

If the information before us that mak- anything, suggests liable for their torts will not ing governments substantially the costs of or upset raise finan- government governmental Certainly, greatest cial threats to finan- stability.37 legislative Pittsburgh, request 18 Pa. at 190. for 33. O’Connor v. This many g., action has been times Morris v. echoed since. E. Mt. Twp. Dist., Lebanon Sch. A.2d 737 Commonwealth, (J. (1978)); In related cases of DuBree Hartman, (1978)), Brungard (J. v. Common- Garrettson wealth, argues (1978) A.2d 724 the Commonwealth particularly upon significant the Common- that a burden would fall Court, jurisdiction original wealth which has over actions See 17 P.S. 211.401. Commonwealth. Appellee Supplemental in DuBree v. Brief for Commonwealth Hartman, Commonwealth, Brungard v. Common- and Garrettson wealth, supra at 6. Development, Department and Economic 36. Willis of Conservation 55 N.J. David, Liability of Local Alternatives to 37. See Tort Government: (1959); Immunity Liability, from 6 U.C.L.A.L.Rev. 6-17 P. Suit Brown, Officials, Sovereign Immunity, Liability of Public G. Personal (Acad, Compensation Contemp. Probs. —Law & for Loss 13-14 & liability 1, 1977). Series No. that tort Ethics Brown indicates officers, major upon government today or its burden but financial years in recent governments and local cial of state stability taxing but limitations tort liability, have not concerned such as liability obligations and on contractual authority38 Further, negli- because and labor agreements.40 bonds39 conduct, of the actor’s the reasonableness involves gence re- measures will not be unreasonably protective expensive of required more than are any they of quired governments suggests analysis Welfare economics private parties.41 efficient, tort, become more may if suable government, on its balance appear not although improvement or reduced sheets as added assets liabilities.42 the government-bankruptcy We recently rejected local gov- when we abolished arguments flood-of-litigation ernmental immunity; as a litigation of excessive must also the fear reject

“We Empirically, doctrine. for the justification will that the courts for the concern there is little support doctrine is abandoned. with if the litigation be flooded than an academic debate [Mjore compelling ‘. . . of increases in the amount over the or real apparent judicial sys- of our concept is the fundamental litigation, not be determinative or tem that such increase should any forum for the judicial relevant to the availability is the rights. individual “It impartial adjudication it, that deserve even remedy wrongs business of the law to depending upon scope analyze of substantive burden does not exposed. liability jurisdiction to which each Election, (proposal Primary Proposition 38. See California state). taxing authority of limit Jersey, See, g., 431 U.S. Trust Co. v. New 39. e. United States (1977). 52 L.Ed.2d 92 S.Ct. City Supervisors See, g., Subway-Surface New York Ass’n v. e. Auth., (Sup.Ct.1976); me Transit 85 Misc.2d 381 N.Y.S.2d Com Municipal Wage nt, Constitutionality York Freeze of the New Moritorium, (1976). Debt 125 U.Pa.L.Rev. 167 Brown, supra 41. See note 37. Tort, Note, Sovereign Immunity Analysis Economic See S.Cal.L.Rev. 515 pitiful is a litigation’;

at the a ‘flood of expense court of any on the incompetence part confession of that it will ground give relief justice deny upon Prosser, Inflic- Intentional too much work to do.” courts Tort, 37 Mich.L.Rev.874 Mental A New Suffering: tion of much work to the “too obviously accept We do where responsibility exactly rationale. We place do” relief to those who have been denying it should be: not of the Common- machinery but on the injured, judicial to make available to obligation wealth to fulfill its itself ”43 litigants.’ In burden in the context of argument the financial rejecting rejected we noted we had immunity, local government it the argument applied as to “the burden] [financial institutions, ‘The volumi- [saying]: of charitable and hospital the defendant arguments by nous advanced curiae, the of the financial subject problems the amicus are, enlightening, while and interesting of hospitals today, us. We have a duty issue before irrelevant to the wholly within the justice, is to see that to and perform cases law, Our function is to decide framework of is done. facts and law. pertinent as come before us on they the event the obtains a plaintiff What could happen here. The in this pleadings litiga- verdict is not an issue hospi- whether the defendant require tion that we decide charges brought against by tal should answer the ”44 plaintiff.’ is no more argument compelling The financial now burden than it no more so in context State was in and or governments than in the context of local government it. reject charities. We continue Educ., Ayala 453 Pa. at Board of Public Brodsky, quoting A.2d at Niederman David, citing supra (1970), note and Fuller and Casner, Liability Operation, Municipal 54 Harv.L.Rev. Tort Flagiello quoting Ayala, 305 A.2d at 486, 503-04, Pennsylvania Hospital, agents the torts of their governments Nonliability courts were reluctant to use the have arisen because doctrine of or to attribute the misdeeds respondeat superior of officers sovereign.45 Eighteenth nineteenth cases reflect this concern. century English In this Court stated: Philadelphia,46 Elliott

“ conceivable,’ J., blame any ‘It is not ‘how says Kennedy, can be fastened a because its upon municipal corporation officer, elected, or for the appointed purpose who is into effect the ordi- to be observed and carried causing police, nances for its either duly passed by corporation office, or under color of his commits mistakenly willfully, for in such a case it cannot be said that the trespass; him, officer either authority given acts under any but must be directly indirectly, by corporation, regarded trespass done the his own will having . . It is case master and like the familiar servant; does an act wilfully where the latter without master, consent or which a third authority ”47 the servant is person injured, alone answerable.’ of an act within the Negligent performance scope agent’s duties was at the time of Elliott attributable to any private corporate master.48 Thus the drawn in analogy Elliott between nonliabilities of municipal and private corpo- rations for acts of their agents was not applicable; was to the doctrine of simply unwilling apply respon- 45. See Ayala Educ., Philadelphia Board of Public 453 Pa. at 589-90, 305 A.2d at 879-80. 46. 348 -49 Id.,

47. Liabilities, quoting Fox v. The Northern 3 Watts & S. 106 (1842) (alternate accord, holding); Queen, v. The 6 B. S. Feather & 257, 295-96, Eng.Rep. (Q.B.1865). 48. Thus, apply respondeat superior Pa. at 349. failure to Jaffe, government not, supra 7 at was as note 232-33, asserts, general unwillingness accept respondeat due to a superior at all. authorities.49 governmental public

deat to most superior for this attitude has of course since long justification Any crumbling early attitude itself and the was disappeared,50 immunity Thus, this basis for as 1888.51 today. from tort is invalid liability asserted, in Pennsylvania both it wás Finally, formerly liable for its elsewhere, should be government that consent to suit because in the of legislative torts absence of which can government] otherwise there is “no fund out [a or that of from own misconduct damages resulting pay [its] as an We recently rejected argument officers.”52 [its] the reasons for conceptualization archaic and inadequate funds are made: public which general appropriations has been that argument advanced] “[The units lack funds from required governmental because It is that funds would paid. argued which claims could the performance be diverted to the of claims and payment functions would be obstructed. proper governmental with the assumption note our Initially, disagreement we proper is not a governmental that the of claims payment out, the fallacy writers have many pointed function. ‘As very point is that it assumes the theory] no-fund [the e., payment i. proved, which is to be sought ”53 purpose.’ claims is not a damage proper District, Accord, Borough 49. Ford v. Kendall School 549-50, superior (1888) (refusing apply respondeat 15 A. Commonwealth); they agents are to school districts because Fuess, (1881) (same); see Black v. School District v. 98 Pa. 600 Rempublicam, (1792) (perceived impossibility 1 Yeates agents goods in of Commonwealth could authorize seizure of New Jersey). Educ., Ayala Philadelphia supra note 3. 50. Board of Public District, 549-50, Borough at 15 A. 51. School Pa. Ford Kendall at 816. accord, Devon, 815; v. Men of 52. Id. 121 15 A. at Russell J.). 672-73, (Ld. Kenyon, Eng.Rep. at 362 C. 2 T.R. at Educ., Ayala 453 Pa. at Board of Public Community 883, quoting Unit District Kaneland A.2d at Molitor v. 18 Ill.2d at 163 N.E.2d at No. Thus, immu- sovereign all the historic made arguments have been in or accepted either never nity vitali- continuing reflect obsolete None has legal thinking. ty-

II advances most argument vigor- the Commonwealth I, 11, is that article section of the Constitution ously court of to hear a Pennsylvania deprives any jurisdiction case absent an act of brought against Commonwealth the suit. This reads: permitting section Legislature

“All courts shall be man for an open; every injury lands, done him in his shall goods, person reputation law, right justice have due course of remedy by sale, administered without denial or delay. Suits manner, in brought against such such Legislature courts and such cases as the may by law direct.”

This section first entered the Pennsylvania Constitution 1790,54and was adopted verbatim in the Constitutions of 1873,56 183855and all three times as the Declaration part of Rights. Despite recent cases in which a of this majority of article accepted interpretation Commonwealth’s I, 11, section retaining the sole reason for the rule we now believe that this constitution- immunity,57 al provision judicial abrogation does not forbid of the doc- Rather, trine. IX,

54. Pa.Const. of art. 11. § IX,

55. Pa.Const. of art. § I,

56. Pa.Const. of art. Commonwealth, 57. Freach v. (1977); 471 Pa. 370 A.2d 1163 Zerby Department Transportation, 464 Pa. 346 A.2d 914 Commonwealth, (1975); Williams v. 460 Pa. Pennsylvania Dep’t Transportation, Sweigard (1975); 454 Pa. Pennsylvania Liquor (1973); Control Biello 309 A.2d 374 Board, Commonwealth, (1973); Brown v. 301 A.2d 849 (1973); Meagher (1970) 266 A.2d 684 “The neutral —it neither re- Constitution It quires sovereign immunity. merely pro- nor prohibits vides that the or presence sovereign immunity absence shall be decided in a non-constitutional manner. . The argument] mistakenly concludes [Commonwealth’s that since the recognized framers the need for resolution of these issues mandated the doctrine itself. they thereby to ... is an unwarranted conclusion assume [I]t from the of consent grant power [to suit] an legislative implicitly abrogation branch that this was abolish common law powers court’s traditional when no meet the needs of the principles they longer time.”58 of this section indicates that the adoption history if it

Framers of 1790 intended to allow the Legislature, desired, to choose cases in which the Commonwealth should immune, grant be but did not intend to constitutional immu- to the nity Commonwealth. establishes, I,

As section and supra, Revolutionary post- was hostile to the notion that Revolutionary Pennsylvania the Commonwealth should have the prerogatives crown or that should be immune from its English paying just debts.59 For example, before the end of War, the Legislature passed a statute allow- Revolutionary all ing against contract and bond claims the Commonwealth Likewise, in the adjudication.60 to be presented that the agreed case of this Court Respublica Sparhawk,61 would have had the plaintiffs’ allegations alleged trespass in wartime to acting keep goods Commonwealth not been out of the of the enemy. hands Board, Pennsylvania Liquor 58. Biello v. Control 454 Pa. at J., Roberts, (Nix, J., (text joined by dissenting) A.2d A.2d); varies in at 854 Jacobs, Sovereign see The Eleventh Amendment and Immuni- ty, 25 & n. 53 supra accompanying 59. See notes 13-31 & text. supra accompanying

60. See notes 14 text. & & supra accompanying 61. See notes 18-28 text. & IX, the Pennsylvania Article section 11 of Constitution was to the 1790 in the fol- originally proposed Convention lowing form:

“That all courts shall be for an open, every [freejman, lands, done him in his injury goods, or person, reputation, law, shall have due course of remedy by [the] right justice denial, administered him,] without [to delay.”62 Wilson,

James a known opponent sovereign immunity,63 persuaded the following Convention add the sentence:

“Suits brought against the Commonwealth as well other corporate bodies and individual.”64 section, This the Commonwealth subjecting to suit in all cases in sued, which could be constitu- private parties would have tionally sovereign immunity precluded abolished the Commonwealth’s liability. Shortly after this section was however, reconsider, approved, a motion was made to the convention substituted the following:

“Suits be the in brought against such manner, in such courts and in such cases as the legislature shall, lawby direct.”65 Shunk,

62. Francis Minutes of the Convention that Formed the Pennsylvania (1825). Present Constitution of James Wilson successfully urged change the Convention to “freeman” to “man.” Id., 223, 261. Pennsylvania 63. At the convention which ratified the Federal Consti tution, Wilson asserted that Article III of the Federal Constitution of states, by 1787 made states liable to citizens of other suit Elliot’s Adoption Debates in the Several States on the of the Federal Consti (1907), tution 491 and later acted on this belief as a member of the Supreme majority Georgia, United States Court in Chisholm v. (2 U.S.) 419, Dall. 453-66 Wilson was one the most of influential members of the 1787 States, convention which drafted the Constitution of the United one of the leading day. legal Levy, Legacy L. scholars of his of Suppression person He also the became first to teach university by giving law at an American a series of law lectures at University Pennsylvania shortly appointment the of his before to the Supreme United States Court. Shunk, supra note at 282. 65. Id. 291-92. has any debate of the versions

Thus, although concerning no that the 1790 Convention adopted been it preserved, appears the Legislature form to preserve this section in that amendment, to make Penn- by denied Wilson’s opportunity, in cases. There is no evidence that sylvania immune certain immunity make this sentence was added to Legislature decides otherwise. constitutional rule unless Indeed, exist in 1790 one would not such evidence to expect in a strong history opposition a state with such of the crown. privilege adoption

Three after Con- years Court, Supreme stitution United States announced that states sub- Georgia,66 Chisholm would citizens ject obligations by federal court suits their gave no indication other states. their subject to suit for torts. states would not also be Nonetheless, refused both recommend Legislature courts of this deprive amendment to federal constitutional when jurisdiction and to the eleventh amendment ratify Had the Pennsylvania Legislature proposed Congress.67 state, consent, of the 1790’s its seen absent integral part an the Constitution Common- wealth, opposed would have destruction of that surely doctrine the federal courts.

Further, the judicial history sovereign immunity indi- cates that it judicial origin

“has a and has been modified. judicially The a more constitutional basis for doctrine has been judicial recent construction. When other have grounds Supra 66. note 63. amendment, supra accompanying The

67. Note & text. 11th states, passed by over 3Aof other reads: power shall not be construed “The of the United States Judicial any equity, prosecuted extend suit in law or commenced or to to State, by one of the United States another or Citizens Subjects any Foreign State.” Citizens failed, provision state constitutional has been thrown into the breach sustain a crumbling legal concept.”68 courts did not unequivocally adopt sovereign until 1851. O’Connor v. the seminal Pittsburgh, case, relied neither the upon Constitution of Pennsylvania nor This upon legislative acts.69 Court thus a “com- adopted mon rule in law” the sense that that term has been used in both the nineteenth and twentieth centuries. For example, in 1855 it was said:

“The ‘common law’ maxims, consists of those principles, usages, and rules of action which observation and experi ence man, of the nature of the constitution of society, the affairs of life have commended to enlightened reason as best calculated for government and security persons and Its property. are principles developed by judicial decisions as necessities arise from time to time demanding the of those application principles particular cases in the administration of justice. The of its authority rules does not depend on any express legislative enact ment, but on the principles are they designed enforce

70» District, (N.Dak.1974) 68. Kitto v. Minot Park 224 N.W.2d (abolishing government immunity despite doctrine of local a consti- provision I, 11, holding tutional similar to Pa.Const. art. and cases governments that immunities of the state and of local are constitu- tionally based). Pittsburgh, (1851) (Gibson, C.J.). O’Connorv. legislative operation cited one act to demonstrate the of sover eign cases, immunity. Respublica Sparhawk, Three earlier dis supra text; accompanying cussed Rempubli notes 18-28 & Black v. cam, supra text; accompanying discussed 404 O’Connor,

In this Court stated that “the of prerogative was one of the attrib- justice compulsion” to do refusing took utes of American states on themselves sovereignty The “at American independence.”71 the declaration of and predating, as unaffected sovereign immunity Court saw and even the Constitution of Constitution of by, 1790, 1776,72 Anglo-American as inherent in the notion of and State, need constitutional enact- legislative without for in adopted sovereign immunity ment. Thus when this Court law. part it of the common viewed doctrine I, that article section 11 first statement judicial the state not be Constitution embodies the doctrine that 1934,73 sued its consent did not occur until more without than after and than the Constitution of more years after years judicial adoption sovereign immunity In the since this Court has Pennsylvania.74 years I, to article 11 as the referred section source frequently has Indeed, in those advanced immunity. years, sovereign for justification retaining no other substantial doctrine.75 (5th denied, 1973), 414 U.S. 94 S.Ct. 38 L.Ed.2d Cir. cert. Bishop, reversing its own In the Fifth Circuit did provide analysis principles rules of action would best of which security persons property. F.2d See 476 at 979-80. for 71. 18 Pa. at 189. shortly independence. adopted after Pa.Const. Lewis, Telephone 169 A.

73. Bell Co. v. Pa. I, (1934) (alternate holding). There is one earlier mention of Article section in connection with Collins 106 A. While this case Pa. Legislature provision states authorizes the that the constitutional requires immunity, say it does that the sover- waive Constitution eign immunity legislative in the absence of action. supra Pittsburgh, note 8. O’Connor v. 635-36, Dist., Twp. 75. In Mt. at Morris v. Lebanon School problem “the this stated solution of governmental complex undertaking responsibility is too an in tort judicial permit partial piecemeal reform.” Needless to . . . retaining government say, rejected supposed we rationale Educ., supra Ayala of Public immunities in note 3. Board Nonetheless, 1968, late as deciding this Court was cases in Constitution, which nor any relying neither the case on the Constitution was used to that the support proposition is suit legislative Commonwealth immune from absent con- sent.76 in the Only past years fifteen has this regular- stated ly I, 11, that article section doctrine of compels the interpretation This sovereign immunity.77 of Constitu- tion is certainly “a recent judicial construction thrown crumbling legal into the breach to sustain a con- 78 cept.”

Once logic the “errors of which history, policy”79 immunity both and the underly sovereign Commonwealth’s bare, interpretation constitutional have been laid we see no reason to them. people, perpetuate Significantly, source of to make the Constitution this power Common wealth, have ratified interpretation not this erroneous I, article 11. The interpretation section was not made until after long enacting 1873, Constitution of plebiscite and article I was submitted to the for reconsider people ation by Further, the Constitutional Convention of 1968-69. other states rejected have of state reading constitution al I, article 11.80 provisions analogous to our section Commonwealth, 571, Ins. Life Co. v. 410 Pa. Twp. (1963); Morris v. Mt. Lebanon Dist. 393 111 School Pa. at 635-36, 738-39; 144, Brewer v. 144 at A.2d 345 Pa. 145, Allegheny County, 53, 449, 21 (1942); Heil v. 54 453, 341, 199 A. 343 supra. 77. See cases cited note 57 District,

78. Kitto v. Park (N.Dak.1974). Minot 224 N.W.2d 799 Dist., Twp. 79. Morris v. Mt. Lebanon 635-36, School 144 A.2d at 738-39. State, Flournoy v. Cal.Rptr. 57 Cal.2d 20 370 P.2d 331 (1962), following Muskopf Corning Hosp. Dist., Cal.2d 11 State, Cal.Rptr. (1961); P.2d Perkins 252 Ind. Indemnity Corp., (1969); N.E.2d Darville v. Associated 31-32 (La. 1975), following Splendour Shipping of Comm’rs So.2d Bd. Co., Enterprises & State, (La. Contra, 1973). Krause v. 273 So.2d 23-25 (1972); Holytz City Ohio St.2d 285 N.E.2d 736 Milwaukee, 17 Wis.2d 115 N.W.2d 618 I, the Pennsyl- therefore hold that article section We does not this Court from abro- preclude vania Constitution of sovereign immunity. doctrine gating

Ill argues Finally, judicial history imbedded in our deeply so stare decisis that we continue adhere require principles many to We what this Court has stated repeat it. need only in the times past: perpetu- is not a vehicle for

“the doctrine of stare decisis which to legal concept responds a error, but rather ating and, thus, orderly justice permits of demands of law flourish.”81 processes growth rule of law preserve not be invoked to a Stare decisis should it was no better reason for than when [it] [that] “[there is] in It is . revolt- Henry laid down the time of IV. . . which was laid down have if the ing grounds upon since, the rule from blind imita- persists vanished and long adhere to the Were we continue to past.”82 tion of of of its manifest light doctrine sovereign the doctrine is knowledge unfairness and of our current that non-constitutional, blindly imitating we would be past, justice was the was way for no reason better than this Henry courts III. administered in the feudal of sovereign immunity the doctrine of We therefore abolish overrule all inconsistent cases. and with proceedings consistent Reversed and remanded this opinion. Educ., Ayala Pa. at Board of Public Lines, Accord, at 888. Griffith v. United Air 605-06, many (1964). Ayala, cites 305 A.2d at recognized the to abandon old cases in which this Court has need light changed legal conditions. doctrines Board, Pennsylvania Liquor 454 Pa. at

82. Biello v. Control Roberts, J., J., dissenting), (Nix, joined by quoting A.2d at 855 Legal Papers Holmes Wendell collected Oliver LARSEN, J., concurring and files a joins opinion opinion.

O’BRIEN, EAGEN, J., filed a in which dissenting opinion J., J., POMEROY, joined. C.

POMEROY, J., filed in which EAG- dissenting opinion J., O’BRIEN, EN, J., joined. C.

LARSEN, Justice, concurring.

I join in Mr. Roberts’ opinion Justice and wish to add that I can think no function or more greater pursuit honorable (Commonwealth than for Pennsylvania) care for those has injured whom it or maimed. Over thirty other share this sovereigns philosophy.

O’BRIEN, Justice, dissenting. I but dissent. The respectfully emphatically majority this court has the power legis- usurped Pennsylvania lature in abrogating Constitutional provi- sion prohibiting suits the Commonwealth unless the legislature directs such suits be filed. I,

Article of the Pennsylvania Constitution provides: “All courts open; shall be every man for an injury lands, done him his goods, person reputation shall have remedy by law, due course of and right justice and sale, administered without denial or delay. may Suits be brought against manner, Commonwealth in such in such courts and in such cases Legislature as the may by law direct.” (Emphasis added.) In Bd., Biello Pa. Liquor Control Pa. 301 A.2d (1973), court stated: “. . . This has been language interpreted consistently to that mean no suit maintained the state in until tort the legislature has specifically provided such an Meaghr Commonwealth, action. 439 Pa. 684 (1970); Bannard v. Y.N. S. Nat. Gas Corp., 404 Pa. 306 (1961); A.2d Brewer v. Common- wealth, 345 (1942); Pa. 27 A.2d 53 Bell Telephone Co. Lewis, (1934); A. 571 v. Com- Collins (1919); 106 A. 229 Fitler v.

monwealth, (Emphasis . Commonwealth, 31 Pa. 406 . .” added.) I, provision is a constitutional Pennsylvania

Article § law modifi judicial a creature of the capable not common abolition, judicial cation or without determination it provision supersedes another constitutional Pennsylvania or that to United States Constitution. repugnant I, 11, of the abrogate court no to Article power This has sovereign immunity may While Pennsylvania Constitution. in Sparhawk, Pennsylvania Respublica have arrived judicial as a creation -that (1788) Dall. 1 L.Ed. 174 constitutional stature in the Consti creation was elevated to in the Constitution of and tution of 1790 and retained and up including in all of the constitutions has remained constitution. today’s the Common- court, consistently upheld

This while having consent, without its has consist- right wealth’s be sued possess alone do they they told legislature ently to suit. to make the Commonwealth amendable power Brown v. See today granted

The majority usurps legislative power Assembly elected of the General Senate members of Pennsylvania.

I dissent and would affirm the order of the Common- wealth Court. POMEROY, J., in this

EAGEN, J., join dissenting C. opinion. Justice, dissenting.

POMEROY, Constitution I, Article 11 of Section provides pertinent part: in such the Commonwealth brought against

“Suits bemay manner, Legisla- cases as the in such courts and such may ture law direct.” by provision

The holds that this constitutional today majority does not mean what it to abolish what it says, purports calls the I sovereign immunity. respectfully “doctrine” dissent. in of the lack of foundation majority’s description sovereign the continuance of the doctrine of policy for

public in the 20th Pennsylvania in the Commonwealth of Indeed, is what the Court states Century unexceptionable. in this a restatement of what has been regard essentially clear to both courts and commentators for See quite years. in to the cited in the addition authorities Court’s generally, opinion, Laughner v. Allegheny County, J., 607 (1970) I would have no (Pomeroy, dissenting). in the Court’s abolition of immu- difficulty joining enthusiasm, I nity, indeed would do so with were able to conclude that this is free to take such action. But I cannot so As I in conclude. wrote Brown v. 566, 574-75, (1973) (concurring

opinion):

“When their Constitution the people Pennsylvania have to the branch of expressly delegated legislative the task of in manner and government determining what in what court and what cases Commonwealth may (and, to the subjected liability to suit implicitly, therefrom), result I fail to see how this Court can may hold that it has a this properly right preempt legislative function. A that had its ancient in the proposition origin common law of and colonial America was England elevat- ed to as long ago constitutional status development warp To would be to ignore plain to suit societal ends meaning Constitution later, now, which one hundred and eighty-three years entire much of this Court thinks are to be membership desired. lament the failure to correct legislative We situation, impa- before the date an but present inequitable the balance of upset power tience should not cause us to our the correc- tripartite system government by making tion ourselves.” I to the am view, persuaded

I remain of this As the historical discussion. contrary the by majority’s concedes, any have the benefit we do not us to determin- guide the 1790 convention during debates Thus I doubt that the the intent of the drafters. ing sufficient what change historical is majority’s speculation of the constitutional long accepted has the construction been which has been relied upon provision construction —a I believe But Pennsylvania government. other branches of irrelevant, for in event it point any on this is that discussion an well a court should undertake examination is settled that if setting only of a historical provision’s constitutional See, e. g., itself wording ambiguous. is provision 560, 565, (1976); A.2d 833 Firing Kephart, 1921(c), Construction Act compare Statutory § I such an 1921(c) cannot find ambi- (Supp.1978). Pa.C.S. § in the constitutional guity provision. contains further After numer- irony. decision

Today’s Legisla- called upon in has ous decisions which this Court deal with necessary ture to take the action comprehensive tort,1 e. g., immunity problem the Commonwealth’s supra, Brown v. 453 Pa. at 305 A.2d at J., id. 871; 576-77, concurring), at 874 (Pomeroy, After lengthy apparently forthcoming. such action now Com- Joint State Government study, Assembly’s General legislation that report2 recommending mission has issued a permit would actions the Commonwealth negligence against indicates, years Legislature opinion 1. As has over the the Court’s provided of redress for those with claims other than those a means April negligence founded Act of on Commonwealth. 30, 1811, 1, 2 March P.L. § Sm.L. 19. See also Act of IV, 405, 228; Code, April § Sm.L. Fiscal Act of P.L. art. Legislature 72 P.S. But the has also been careful to § types. Appellate refuse Court Jurisdiction to authorize suits other Act, 401(c), 211.401(c) July 17 P.S. Act of P.L. § 5101(b), 761(c), (Supp.1978); 761(c), 42 Pa.C.S. Judicial Code §§ §§ 5101(b) 1977) (not effective). (Special Pamphlet, yet Immunity”, published by “Sovereign 2. See the Joint the booklet Pa., Commission, Harrisburg, May, 1978. State Government eight but specific require areas retained all addition, other In areas. suits would be permitted for only causes of arising action on or after July 1979.3 Having a number invited the years Legislature’s attention to subject now advised being that a definitive has been response proposed after serious study, for this Court to inform the Legislature, as does today, Commonwealth is liable to by any person suit any cause of action the reach of decision (for today’s cannot comes with ill torts) grace be limited to without the compelling of some new reason. justification stated, For the reasons above I dissent.

EAGEN, J., O’BRIEN, J., in this C. join dissenting opinion.

390 A.2d 181 MAYLE, Jimmy Appellant, V.

PENNSYLVANIA DEPARTMENT OF HIGHWAYS.

Supreme Court Pennsylvania.

Aug. 1978. proposed by bill the Joint State Government Commission was Representatives April introduced into the House of 1978 with sponsorship (Printer’s 3435) broad as H.B. 2437 No. and referred to Judiciary. reported by the Committee on It has since been the House Judiciary Committee to floor for the full consideration House. Pa.L.J., 19, 1978, at June notes 29-30 & Com Matlack, supra monwealth v. discussed note sometimes seen as adopting rule, did not do so. The rule is stated dictum in Monongahela Coons, Navigation (Pa. Co. v. 6 Watts & S. 1843) (Gibson, C.J.), supporting reasoning. without either citation or generally (use supra involving See discussing note 8 of cases cities in sovereign immunity). People Randolph, (N.Y.1855), quoted 2 Parker Cr.R. Edition”, Law, 109; in 8 Words and Phrases “Permanent Common Colorado, 46, 96-97, accord Kansas v. L.Ed. 956 206 U.S. 27 S.Ct. (1906), 471; quoting Bishop 1 Kent’s Commentaries States, rev’d, F.Supp. (S.D.Tex.1971), United 476 F.2d 977

Case Details

Case Name: Mayle v. Pennsylvania Department of Highways

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 14, 1978

Citation: 388 A.2d 709

Docket Number: 52

Court Abbreviation: Pa.