Opinion
March 19, 1975.
June 24, 1975.
Trespass action — Immunity from liability — Doctrine of sovereign immunity — Delaware River Port Authority — Practice — Motion for judgment on the pleadings — Motion properly granted by court below.
The Delaware River Port Authority may properly raise the doctrine of sovereign immunity as a defense in an action in trespass, and it was Held that the court below properly granted the motion of the Delaware River Port Authority for judgment on the pleadings.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 322, Oct. T., 1975, from judgment of Court of Common Pleas of Delaware County, No. 1644 of 1973, in case of Lorraine Yancoskie, Administratrix of the Estate of Francis J. Yancoskie and Jason Adam Yancoskie by his parent and natural guardian, Lorraine Yancoskie, and Lorraine Yancoskie in her own right v. Delaware River Port Authority. Judgment affirmed.
Trespass for wrongful death.
Order entered granting motion by defendant for judgment on the pleadings, opinion by BLOOM, J. Plaintiffs appealed.
Louis Samuel Fine, with him Fine, Staud, Grossman Garfinkle, for appellants.
John J. O'Brien, Jr., with him Elizabeth M. McKenna, for appellee.
JACOBS, J., concurred in the result.
HOFFMAN, J., filed a concurring opinion, in which CERCONE, J., joined.
SPAETH, J., filed a concurring opinion.
Argued March 19, 1975.
Appellants instituted an action in trespass against appellee, Delaware River Port Authority, and other named parties for the death of appellants' decedent during construction of the Chester-Bridgeport Bridge which was built under the auspices of appellee. The allegations of negligence were based on the failure of appellee and the other defendants to adhere to proper safety standards during said construction. Appellee raised the defense of sovereign immunity and moved for Judgment on the Pleadings, which was granted October 30, 1974 against appellants and all the other parties to this action.
We are again urged to abandon the doctrine of sovereign immunity, a question which has been presented on many previous appeals. All parties concede, as they must, that the present law of this Commonwealth requires we affirm. We decline to depart from the doctrine of sovereign immunity and will affirm. Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973); Enoch v. Food Fair Stores, Inc., 232 Pa. Super. 1, 331 A.2d 912 (1974).
The judgment of the lower court is affirmed.
JACOBS, J., concurs in the result.
We recognize that under existing law, the Delaware River Port Authority correctly invoked the defense of sovereign immunity. Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973); Enoch v. Food Fair Stores, Inc., 232 Pa. Super. 1, 331 A.2d 912 (1974). Once again, however, we exhort the Supreme Court to abandon its "blind adherence to the doctrine of sovereign immunity. . . . The time is long past for this Court to join those twelve other jurisdictions which have recently abrogated the doctrine. . . . It can be said with all due respect to those who originally promulgated the rule years ago that the doctrine is `no longer just, reasonable nor defensible' and that the `reasons underlying the traditional wide-sweeping rule of sovereign immunity have virtually disappeared in modern society.'" Thomas v. Baird, 433 Pa. 482, 485-86, 252 A.2d 653 (1969) (dissenting opinion by ROBERTS, J.; citations omitted).
But see dissenting opinion by ROBERTS, J., in which NIX and MANDERINO, JJ., joined; dissenting opinion by NIX, J., in which ROBERTS and MANDERINO, JJ., joined; and dissenting opinion by MANDERINO, J.
CERCONE, J., joins in this concurring opinion.
I agree that the judgment of the lower court should be affirmed, but do so for the reasons expressed by Mr. Justice POMEROY, concurring in Brown v. Commonwealth, 453 Pa. 566, 572-77, 305 A.2d 868, 872-74 (1973).