The opinion of the court was delivered by: LORD
This case is before the Court on defendants' motions to dismiss, claiming:
2. Failure to state a cause of action; and
We shall discuss the issues in that order.
Plaintiff seeks to recover from defendants damages alleged to have been sustained to its tractor-trailer as a result of an accident on January 7, 1953 on the Pennsylvania Turnpike.
1. The Commission has filed its motion to dismiss the complaint on the grounds of lack of jurisdiction. The basis of the motion is the Commission is designated an instrumentality of the Commonwealth by the act creating it, Act of May 16, 1940, P.L. (1941) 949, 36 P.S.Pa. § 653 et seq.; as such an instrumentality of the Commonwealth it is not subject to suits against it without its consent by virtue of the Eleventh Amendment to the Constitution of the United States; and that it has consented to be sued only in the proper courts in Dauphin County in the Commonwealth, 36 P.S. § 653e(c).
This same problem was before the Federal Courts for the first time in the case of Hunkin-Conkey Const. Co. v. Pennsylvania Turnpike Commission, D.C.M.D.Pa.1940, 34 F.Supp. 26. The court in that case concluded that the Commission is a separate and distinct legal entity and not an agency or department of the Commonwealth of Pennsylvania. In reaching this conclusion, the court considered the extensive grants of powers given to the Commission by the act which created it, saying at page 29:
'The Pennsylvania Turnpike Commission has been given the power to create a fund through the pledging of its own credit to defray all and any expenses which it might incur, and the State has expressly denied its own financial responsibility in the undertaking. Furthermore, the Commission has been given the power to act through its own agents, subject only to supervision by the State in a few matters. In addition, the Pennsylvania State Highway Commission, an agency of the State, existed at the time of the creation of the defendant Commission, and was qualified to carry out the duties of the defendant Commission. The fact that it was not designated to do so lends support to the contention that the Commonwealth of Pennsylvania desired to create an entity distinct and apart from itself for the purpose of constructing the turnpike.'
The same precise issue was again raised by the Commission in the case of Darby v. L. G. De Felice & Son, Inc., D.C.E.D.Pa.1950, 94 F.Supp. 535. In that motion to dismiss, the Commission again claimed it was an instrumentality of the Commonwealth of Pennsylvania. The court overruled that contention, at page 538:
'In conclusion, we hold that the Pennsylvania Turnpike Commission is a separate and distinct legal entity and is subject to suit in this Court. * * *'
The same result was also reached in the case of Lowes v. Pennsylvania Turnpike Commission, D.C.M.D.Pa.1954, 125 F.Supp. 681. The court denied the Commission's motion, citing the Hunkin-Conkey and Darby cases, supra, saying, at page 685:
'There is nothing in the relationship of the Pennsylvania Turnpike Commission to the State to remove it from that group of public corporations and political subdivisions which are not clothed with the ...