Appeals, Nos. 2 and 3, May T., 1962, from judgment of Court of Common Pleas of Dauphin County, No. 549 Commonwealth Docket, 1959, in case of Shirley C. Rader, Charles A. Rader, Jr., a minor, by his guardian, Charles A. Rader, et al. v. Pennsylvania Turnpike Commission. Judgment affirmed.
Harry J. Rubin, with him Cohen, Senft and Rubin, for plaintiffs, appellants.
Bruce E. Cooper, and Cooper and Woodside, for plaintiff, appellant.
Heath L. Allen, with him James K. Thomas, Francis J. O'Gorman, Jr., Henry E. Harner, and Hull, Leiby and Metzger, for defendant, appellee.
Before Bell, C.j., Musmanno, Jones, Eagen and O'brien, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
The sole question presented by these appeals is whether the Pennsylvania Turnpike Commission is immune from liability in trespass for damage resulting from the negligence of its agents and employees. Although the Courts of Common Pleas have decided this question on numerous occasions, it is one of first impression in this Court and the answer is not easy.
Plaintiffs-appellants instituted the present action in trespass against the Pennsylvania Turnpike Commission.
In their amended complaint they alleged that defendant-Commission allowed ice to accumulate on the Turnpike, failed to spread ashes or other abrasive material or to have equipment available to spread abrasive material thereon, and failed to post signs warning of a slippery condition or to have equipment available for the posting of such signs. Plaintiffs contend that, as a result of these acts, the Commission is liable for personal injuries and property damage which ensued when the vehicle operated by plaintiff Charles A. Rader skidded and collided with a guard rail.
Defendant-Commission filed preliminary objections in the nature of a demurrer to the amended complaint setting forth that the Pennsylvania Turnpike Commission was an instrumentality of the Commonwealth engaged in a governmental function and therefore is not liable for such injuries and damages in a trespass action.*fn1 The Court below, after hearing oral argument, sustained the Commission's preliminary objections and entered judgment in its favor against all plaintiffs.
Plaintiffs concede, as they must, that the Commonwealth itself, in the absence of a statute which authorizes suits against it for torts, is immune from liability in trespass for the negligence of its agents and employees in the construction, operation, maintenance and repair of a highway: Collins v. Commonwealth, 262 Pa. 572, 106 A. 229. However, they contend that all ten turnpike acts authorizing construction of segments of the highway by the Commission expressly provide that the Commission "may sue and be sued".*fn2 This language,
if it stood alone, is per se broad enough to cover all actions including the present one. However, this same contention was urged upon and rejected by the Court of Common Pleas of Dauphin County in House v. Pennsylvania Turnpike Commission, 45 Pa. D. & C. 677, 53 Dauphin 38 (1942), where the question of the Commission's immunity from tort liability was first raised. In that case, plaintiffs brought actions of trespass against the Pennsylvania Turnpike Commission, claiming damages for injuries sustained as a result of the negligence of an employee or agent of the Commission. The Court sustained the affidavits of defense in the nature of a statutory demurrer which asserted that the Commission was an instrumentality of the Commonwealth and as such was not liable for the torts of its employees or agents. President Judge SHEELY, specially presiding, aptly said (pages 680-681, 682): "In Greene County v. Center Township, 305 Pa. 79, 86, Mr. Justice KEPHART said: 'We stated in Westmoreland Chem. Co. v. Public Service Commission, 294 Pa. 451, 456, that the highways of the Commonwealth, apart from those owned privately, such as turnpikes, are the property of the State. It may set up within constitutional limitations any agency it sees fit to improve, maintain, repair, administer and control them. It may impose the cost incident thereto entirely on one agency to the exclusion of another, or it may permit them to agree on a division of costs. ... "And, in the building of roads, it [a county] is acting in its governmental,
rather than business, capacity." Townships are in the same situation as counties with respect to roads.' See also Szilagyi et al. v. Bethlehem, 312 Pa. 260.
"The fact that a toll is exacted from users of the turnpike does not change the character of its operation from that of a governmental function. In Geiger v. The Perkiomen & Reading Turnpike Road, 167 Pa. 582, 585, the Supreme Court said: 'The taking of tolls, it has been held, is only another method of taxing the public for the cost of construction, repair and reimbursement to the corporation for the capital invested. ...'
"In Brush v. Commissioner of Internal Revenue, 300 U.S. 352, 372, the Supreme Court of the United States said: 'If that service be governmental it does not become private because a charge is made for it, or a profit realized. A state, for example, constructs and operates a highway. It may, if it choose, exact compensation for its use from those who travel over it ... but this does not destroy the claim that the maintenance of the highway is a public and governmental function.'
"The Turnpike Commission, having but one function to perform, does not come within the rule making a distinction between governmental functions and business or corporate functions of a municipality. See Clamper v. Philadelphia, 279 Pa. 385, Steele v. McKeesport, 298 Pa. 116, Scibilia v. Philadelphia, 279 Pa. 549. The only [pertinent] authority given to the Turnpike Commission under the statute is the construction, maintenance, and operation of the turnpike, which is a governmental function: Balashaitis et ux. v. Lackawanna County, 296 Pa. 83. It follows that there can be no liability unless it be expressly imposed: Collins v. Commonwealth, 262 ...