Summary
In Brown v. National Guard, 3 Pa. Commw. 457 (1971), Kremin v. Commonwealth of Pennsylvania, 1 Pa. Commw. 642 (1971), and Biello v. Pennsylvania Liquor Control Board, 1 Pa. Commw. 179 (1971), we also considered the impact of Article I, Section 11 of the Pennsylvania Constitution and the governmental activity involved as influencing the application of the doctrine; and since our earlier decisions the Supreme Court has again reaffirmed the doctrine of sovereign immunity in Conrad v. Commonwealth of Pennsylvania, Department of Highways, 441 Pa. 530, 272 A.2d 470 (1971).
Summary of this case from Duquesne Light Co. v. Dept. of TranspOpinion
Argued October 8, 1971
December 2, 1971.
Sovereign immunity — Stare decisis — Constitution of Pennsylvania, Article I, Section 11 — The Military Code, Act 1949, May 27, P. L. 1903 — Pennsylvania National Guard.
1. The Commonwealth Court of Pennsylvania is bound by recent affirmations of the doctrine of sovereign immunity by the Supreme Court of Pennsylvania. [459]
2. While the Constitution of Pennsylvania, Article I, Section 11 permits such suits against the Commonwealth as the Legislature may direct, the Legislature has not authorized suits in trespass against the Commonwealth and has expressly prohibited payments of claims arising out of negligence in the operation of automobiles of the Pennsylvania National Guard by the terms of The Military Code, Act 1949, May 27, P. L. 1903. [459]
Judge CRUMLISH, JR., filed a concurring opinion (joined in by Judge KRAMER) substantially as follows:
1. The doctrine of sovereign immunity, having been recently applied by the Supreme Court of Pennsylvania, must be recognized by the Commonwealth Court of Pennsylvania, although it appears archaic to shield governmental authority, which is increasingly involved in private enterprise, from the consequences of its intentional or negligent conduct. [459-60]
Argued October 8, 1971, before Judges CRUMLISH, JR., KRAMER and ROGERS, sitting as a panel of three.
Original jurisdiction, No. 320 C. D. 1971. Complaint in trespass in the Commonwealth Court of Pennsylvania in case of Donna Brown, a minor, by her parent and natural guardian, Catherine Brown and Catherine Brown, in her own right v. National Guard, A Division of the Commonwealth of Pennsylvania. Defendant filed preliminary objections. Held: Preliminary objections sustained and complaint dismissed.
Joel M. Lieberman, with him Silver, Silver Segal, for plaintiffs.
Salvatore J. Cucinotta, Deputy Attorney General, with him J. Shane Creamer, Attorney General, for defendant.
In this trespass action damages are sought for personal injuries to the minor plaintiff and for the expenses of treating those injuries. The complaint alleges that the minor plaintiff attended a Pennsylvania National Guard demonstration and suffered injuries when a jeep in which she was riding as a passenger was involved in an accident caused by the negligence of the driver, a Guardsman. The Commonwealth has filed a demurrer, asserting that it is immune from liability for this cause under the doctrine of sovereign immunity. The plaintiffs' sole contention is that the doctrine should be abolished and they repeat with vigor and thoroughness the familiar arguments.
The most recent reaffirmation of the doctrine of sovereign immunity by our Supreme Court is Conrad v. Commonwealth of Pennsylvania, Department of Highways, 441 Pa. 531, 272 A.2d 470 (1971). The Commonwealth Court has held that it has no power or authority to ignore or overturn prior pronouncements of the highest court of this State controlling this subject matter. Lovrinoff-Madacsi-Kunze v. The Pennsylvania Turnpike Commission, 3 Pa. Commw. 161, 281 A.2d 176 (1971). See also Biello v. Pennsylvania Liquor Control Board et al., 1 Pa. Commw. 179, ___ A.2d ___ (1971), and Kremin v. Commonwealth of Pennsylvania, 1 Pa. Commw. 642, ___ A.2d ___ (1971).
Article I, § 11 of the Pennsylvania Constitution provides that suits may be brought against the Commonwealth in such manner and in such cases as the Legislature may direct. Not only has the Legislature not given its consent to suits in trespass against it, it has specifically excluded from the category of demands payable by the Department of Military Affairs arising out of negligence in the operations of the Pennsylvania National Guard, any such claims arising from the operation of automobiles. The Military Code of 1949, Act of 1949, May 27, P. L. 1903, § 402(11), 51 P.S. 1-402(11).
The Commonwealth's preliminary objections are sustained and the complaint herein is dismissed.
The Pennsylvania Supreme Court, by order dated October 22, 1971, refused to grant allocatur in Lovrinoff et al. v. Pennsylvania Turnpike Commission, 3 Pa. Commw. 161, 281 A.2d 176 (1971), thus at least for the time being maintaining its historical position on the issue of sovereign immunity. This binds me and so I concur in today's decision. However, in doing so, I reiterate the position I took in my dissenting remarks in Lovrinoff.
Governmental authority arising from increasing involvement in private enterprise must have as its corrolary commensurate responsibility in Torts and Contract. Shielding bureaucrats from intentional or negligent conduct in their dealings with the affairs of the citizens they represent is an archaic concept born in the Divine Right of Kings Theory which has no place in a Democratic Republic.
Judge KRAMER joins in this Opinion.