Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
Is the Pennsylvania Turnpike Commission endowed with the attributes of the sovereign immunity of the Commonwealth of Pennsylvania with respect to actions for personal injuries and property damage on the Commission's alleged negligence in the construction, operation or maintenance of the Pennsylvania Turnpike?
That is the primary question presented by this appeal from the Order of the United States District Court for the Middle District of Pennsylvania which answered it in the affirmative and dismissed the action.*fn1
The issue is novel in the sense that the precise question has never been decided by the appellate courts of Pennsylvania and that being so we are required to consider such approach to the problem as may be indicated by the Pennsylvania cases in the general field and to resort to general applicable principles to reach a conclusion consistent with Pennsylvania law.*fn2 In sum, it is incumbent on us to make our own determination of what the Pennsylvania Supreme Court would probably rule in a similar case.*fn3
There have been a number of cases in the Common Pleas Courts and Federal District Courts in Pennsylvania in which the question of immunity of the Pennsylvania Turnpike Commission in negligence cases was at issue.
The Common Pleas Courts of Pennsylvania - three in Dauphin County,*fn4 two in Allegheny*fn5 and one in Philadelphia,*fn6 all have held that the Commission is endowed with the sovereign immunity of the Commonwealth of Pennsylvania and hence not subject to liability in negligence cases.
The District Court for the Eastern District of Pennsylvania disagreed with the view of the Pennsylvania Common Pleas Courts in one case*fn7 and agreed with it in another.*fn8 The District Court for the Western District of Pennsylvania disagreed with the Pennsylvania Common Pleas Courts.*fn9
The sum of the lower court opinions holding the Pennsylvania Turnpike Commission immune from suit in negligence engaged in the performance of "an essential governmental function" and accordingly is endowed with the attributes of the sovereign immunity of the Commonwealth of Pennsylvania.
The contrary view expressed in the two federal district court decisions is premised on their holding that the Pennsylvania Turnpike Commission is "a separate entity" distinct from the Commonwealth of Pennsylvania and that the latter is not the "real party in interest."
On the score of the lower Pennsylvania court decisions we need only say that we do not deem them to represent such a "consensus" of nisi prius opinion as to require us to defer to their holding,*fn10 particularly in view of recent rulings and expressions therein of the Supreme Court of Pennsylvania.
We find an illuminating guide towards the decision of the issue here presented in Lichtenstein v. Pennsylvania Turnpike Commission, 1960, 398 Pa. 415, 158 A.2d 461 and are moved by it to conclude that the Pennsylvania Supreme Court would hold that the Commission is not immune from actions premised on its negligent construction, operation or maintenance of the Pennsylvania Turnpike.
In Lichtenstein v. Pennsylvania Turnpike Commission it was held that where the Commission condemns and enters upon land and a board of viewers awards the landowner damages the Commission is liable for interest on the award. Of special significance is the fact that in so holding the Pennsylvania Supreme Court expressly overruled its earlier decision in Pennsylvania Turnpike Commission v. Smith, 1944, 350 Pa. 355, 39 A.2d 139 insofar as ...