Edward A. Hosey, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for defendant.
F. Lee Shipman, with him Goldberg, Evans & Katzman, for plaintiffs.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Dissenting Opinion by Judge Crumlish. Judge Kramer joins in this Dissent.
[5 Pa. Commw. 637 Page 638]
We have before us a trespass action. This case was originally filed in the Court of Common Pleas of Dauphin County and was transferred to us on January
[5 Pa. Commw. 637 Page 63924]
, 1972, since we have original jurisdiction of all civil actions at law against the Commonwealth under Section 401(a)(1) of the Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, No. 223, 17 P.S. § 211.401(a)(1).
This action in trespass involves a single vehicle accident which occurred on Pennsylvania Highway Route 147, approximately one mile south of Millersburg, Pennsylvania, at or about 10:00 p.m., on March 21, 1969. The vehicle which was owned and operated by plaintiff, Lee R. Sweigard, and in which plaintiff, Sandra L. Sweigard, and their three children, including plaintiff, Kevin L. Sweigard, were passengers, was proceeding in a southerly direction on Route 147, with the weather conditions clear and dry, when a rock fall occurred, causing the plaintiffs' personal injuries and property damage. One of the rocks, approximately the size of a football, smashed the windshield on the passenger's side, bounced off the dashboard and struck wife-plaintiff in the face, causing, among other injuries, severe traumatization of her right eye, necessitating its removal on March 22, 1969.
Plaintiffs assert that the defendant was negligent in not protecting them from the hazardous conditions existing at the place of the accident. It is alleged that rock falls had occurred at the accident scene during a period of several years prior to March 21, 1969.
[5 Pa. Commw. 637 Page 640]
The defendant here is the Department of Transportation, Commonwealth of Pennsylvania, and it has filed preliminary objections asserting that this action is barred by reason of Article I, Section 11 of the Constitution of Pennsylvania which reads as follows: "All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be Page 640} brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." (Emphasis supplied.)
The appellate courts of this Commonwealth have consistently held that this section of our Constitution creates for the Commonwealth and its agencies sovereign immunity from suit. Conrad v. Commonwealth, Department of Highways, 441 Pa. 530, 272 A.2d 470 (1971); Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199 (1962); Brown v. National Guard, 3 Pa. Commonwealth Ct. 457 ...