Opinion
Argued May 7, 1973
August 9, 1973.
Sovereign immunity — Constitution of Pennsylvania, Article I, Section 11 — Governmental acts — Act of 1937, May 20, P. L. 728 — Contract claims — Exclusive remedy — Board of Arbitration of Claims.
1. The Constitution of Pennsylvania, Article I, Section 11, confers upon the Commonwealth, immunity from suit involving claims arising out of the performance by the Commonwealth of governmental activities. [492]
2. Pursuant to the authority of the Constitution of Pennsylvania, Article I, Section 11, the Legislature has provided in the Act of 1937, May 20, P. L. 728, for claims arising from contracts to be prosecuted against the Commonwealth exclusively before the Board of Arbitration of Claims. [493]
Judge CRUMLISH, JR. filed a concurring opinion reiterating his position in other cases which was substantially as follows:
1. Although the Supreme Court of Pennsylvania continues to recognize the doctrine of sovereign immunity and this is binding upon this court, the Commonwealth Court of Pennsylvania should, nevertheless, consider the merits of cases where this issue is presented. [493]
Argued May 7, 1973, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Original jurisdiction, No. 744 Tr. Dkt. 1970, in case of Craig S. Kreider v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission. Complaint in assumpsit for breach of employment contract in the Court of Common Pleas of Dauphin County. Transferred to the Commonwealth Court of Pennsylvania, September 1, 1970. Defendant filed preliminary objections. Held: Objections sustained. Complaint dismissed.
Michael Sedor, with him Louis J. Adler and Kohn, Adler Adler, for plaintiff.
Sanford Kahn, General Counsel, with him Robert Englesberg, Assistant Attorney General, for defendant.
Craig S. Kreider has sued the Commonwealth of Pennsylvania in assumpsit, alleging the breach of an oral agreement made by the Pennsylvania Human Relations Commission to employ him as a Human Relations Representative. The complaint avers that in reliance upon the alleged agreement, the plaintiff quit a position of employment and made changes in his living arrangements which caused him substantial financial losses. The Commonwealth has filed preliminary objections in the nature of a demurrer, based upon the Commonwealth's immunity from suit, except as authorized pursuant to Article I, Section 11 of the Commonwealth's Constitution. The objections must be sustained. The doctrine of sovereign immunity, at least against claims arising out of the performance by the Commonwealth of governmental as distinguished from proprietary activities, remains the law of this State. Biello, Administrator v. Pennsylvania Liquor Control Board, et al., ___ Pa. ___, 301 A.2d 849 (1973).
The cited constitutional provision permits suits against the Commonwealth, "in such manner, in such courts and in such cases as the Legislature may by law direct." As we pointed out in Armour Rentals, Inc. v. General State Authority, 4 Pa. Commw. 517, 287 A.2d 862 (1972), the Legislature has provided for claims against the Commonwealth arising from contracts to be prosecuted before the Board of Arbitration of Claims. Act of May 20, 1937, P. L. 728, as amended, 72 P. S. § 4651-1 et seq. As we further pointed out in Armour, moreover, the exclusive jurisdiction of the Board of Arbitration of Claims of such claims continues by Section 509(e)(2) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P. L. 673, as amended, 17 Pa.C.S.A. § 211.509(e)(2).
The preliminary objections are sustained and the plaintiff's complaint is dismissed.
While I concur in the result reached by the majority and that part of the majority opinion which states that the exclusive jurisdiction for claims against the Commonwealth arising from contracts rests with the Board of Arbitration of Claims, I feel it is necessary to once again reiterate that my position on the doctrine of sovereign immunity remains as stated in Duquesne Light Company v. Department of Transportation, 6 Pa. Commw. 364, 295 A.2d 351 (1972); Lovrinoff v. Pennsylvania Turnpike Commission, 3 Pa. Commw. 161, 281 A.2d 176 (1971); Brown v. National Guard, 3 Pa. Commw. 457 (1971).