Opinion
Argued September 11, 1972
October 2, 1972.
Sovereign immunity — Stare decisis — Powers of the Commonwealth Court of Pennsylvania — Supreme Court of Pennsylvania — Constitution of Pennsylvania, Article I, Section 11.
1. The Commonwealth Court of Pennsylvania has no power or authority to ignore or overturn prior pronouncements of the Supreme Court of Pennsylvania. [365-6]
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 absent such authorization, the doctrine of sovereign immunity precludes the prosecution of such actions. [365-6]
Judge CRUMLISH filed a concurring opinion substantially as follows:
1. Although the Supreme Court of Pennsylvania continues to recognize the doctrine of sovereign immunity and this is binding on this court, the Commonwealth Court should, nevertheless, consider the merits of these cases. [366-7]
Argued September 11, 1972, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Original jurisdiction No. 527 C.D. 1972 in case of Duquesne Light Company v. Department of Transportation. Complaint in trespass charging negligence of defendant filed in the Commonwealth Court of Pennsylvania. Preliminary objections filed. Held: Objections sustained and complaint dismissed.
Eric P. Reif, with him Daniel I. Booker and Reed, Smith, Shaw McClay, for plaintiff.
Stuart M. Bliwas, Assistant Attorney General, with him Edward V. A. Kussy, Assistant Attorney General, Edward A. Hosey, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for defendant.
The instant case is another of a series of cases filed in this Court since its inception seeking to judicially overturn the doctrine of sovereign immunity. In Lovrinoff et al. v. Pennsylvania Turnpike Commission, 3 Pa. Commw. 161, 281 A.2d 176 (1971), we declared (Judges CRUMLISH, JR. and MANDERINO dissenting) that the Commonwealth Court has no power or authority to ignore or overturn prior pronouncements of the Supreme Court of Pennsylvania on the subject. 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).
Petition for allocatur to the Supreme Court of Pennsylvania refused by its order dated October 22, 1971.
We would also here note the recent decision of the United States Court of Appeals, Third Circuit, in William F. O'Neill et ux. v. Commonwealth of Pennsylvania, 459 F.2d 1 (1972), rejecting a contention of federal question jurisdiction on the basis of a claim that the doctrine of sovereign immunity violates due process and equal protection clauses of the 14th amendment. Also see Palmer v. Ohio, 248 U.S. 32, 63 L.Ed. 108 (1918).
These decisions preclude any further consideration of plaintiff's cause of action by this Court and compel us to sustain the Commonwealth's preliminary objections raising sovereign immunity as a bar to plaintiff's suit. Although not raised by the preliminary objections, we would note that plaintiff's complaint does not allege a single act of negligence on the part of the Commonwealth in the cause of action pleaded which would be reason enough to dismiss the complaint.
The Commonwealth's preliminary objections are hereby sustained and plaintiff's complaint is dismissed.
I recognize that the Supreme Court of this State has elected not to change its position on the doctrine of sovereign immunity and hence I will conform. I would, however, like to reaffirm my position in Lovrinoff et al. v. Pennsylvania Turnpike Commission, 3 Pa. Commw. 161, 281 A.2d 176 (1971), and reiterated in Brown v. National Guard, 3 Pa. Commw. 457 (1971), that the merits of these cases should be considered by this Court.