Appeal, No. 72, Jan. T., 1949, from judgment of Court of Common Pleas of Berks County, Dec. T., 1946, No. 131, in case of Commonwealth of Pennsylvania v. County of Berks. Judgment affirmed.
Frederick J. Bertolet, Special Attorney for Department of Justice, with him T. McKeen Chidsey, Attorney General, for appellant.
Henry M. Koch, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY Mr. Justice JONES
The Commonwealth sued the County of Berks for the cost of maintaining in a State mental institution two criminals who, having been convicted in the County, became insane while serving their sentences and were transferred to the Wernersville State Hospital. The County answered, denying the plaintiff's right to recover because of an alleged indebtedness due the County by the Commonwealth in an amount in excess of the sum sued for; the indebtedness so asserted by the County
grew out of the Commonwealth's collection from persons legally liable for the support of indigent insane, the cost of their maintenance in State institutions, to which the County had theretofore contributed and for which it was then entitled to pro tanto reimbursement. The facts not being in dispute, a jury trial was waived. It is the Commonwealth's contention that the County's claim constitutes a set-off or counterclaim and is not available, without the consent of the Commonwealth, as a defense to the suit. The learned trial judge held otherwise and entered judgment for the defendant to which the plaintiff filed exceptions. The court en banc dismissed the exceptions and the Commonwealth appealed.
The principal question involved is whether the indebtedness due the County grew out of the same transaction that gave rise to the Commonwealth's claim. Except for a presently immaterial jurisdiction conferred by the Constitution of the United States in respect of suits against States (Art. III, Sec. 2), a State may not be sued without its consent. In Bell Telephone Company of Penna. V. Lewis, 313 Pa. 374, 375, 169 A. 571, Mr. Justice SCHAFFER, speaking for this court, termed the rule fundamental. See also Collins v. Commonwealth, 262 Pa. 572, 575, 106 A. 229. So far as Pennsylvania's courts are concerned, it is only as the legislature may by law direct that suits may be brought against the Commonwealth: Pennsylvania Constitution, Art. I, Sec. 11. Nor is the State's consent any less essential where it is sought to interpose a claim against the Commonwealth by way of a set-off or counterclaim to a suit by it: see Commonwealth v. Matlack, 4 Dallas *303; and In re Monongahela Rye Liquors, 141 F. 2d 864, 869 (C.C.A. 3).
Where, however, a State voluntarily submits to court jurisdiction by its institution of a suit, it at once renders available, as a defense to the adverse party, such of the latter's claims as have grown out of the transaction
which gave rise to the sovereign's suit. "A defendant's right in such regard is one of recoupment": In re Monongahela Rye Liquors, supra, at p. 869. In Bull v. United States, 295 U.S. 247, 262, it was said that "... recoupment is in the nature of a defense arising out of some feature of the transaction upon which the plaintiff's action is grounded" (Emphasis supplied). And, while the right does not entitle the defendant to a certificate in its favor for the excess of its claim over the amount sued for by the ...