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BROWN ET AL. v. COMMONWEALTH (05/23/73)

decided: May 23, 1973.

BROWN ET AL., APPELLANTS,
v.
COMMONWEALTH



Appeal from order of Commonwealth Court of Pennsylvania, No. 320 C.D. 1971, sustaining preliminary objections of the Commonwealth and dismissing the complaint of the appellants, plaintiffs, in case of Donna Brown, a minor, by her parent and natural guardian, Catherine Brown and Catherine Brown, in her own right v. Commonwealth.

COUNSEL

Joel M. Lieberman, for appellants.

Burton D. Morris, Deputy Attorney General, with him Edward J. Weintraub, Deputy Attorney General, and J. Shane Creamer, Attorney General, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Concurring Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Nix and Mr. Justice Manderino join in this dissenting opinion. Dissenting Opinion by Mr. Justice Nix. Mr. Justice Roberts and Mr. Justice Manderino join in this dissenting opinion. Dissenting Opinion by Mr. Justice Manderino.

Author: Jones

[ 453 Pa. Page 568]

On August 24, 1969, appellant, Donna Brown, a minor, while a guest at a Pennsylvania National Guard outing in Meadowbrook, sustained injuries when a National Guard jeep in which she was riding as a passenger was involved in an accident occasioned by the negligence of the operator, a Guardsman.

By her guardian, appellant brought a trespass action seeking damages for her injuries and the expense incurred for her treatment.*fn1 The Commonwealth, by demurrer, interposed the doctrine of sovereign immunity. The Commonwealth Court sustained the Commonwealth's preliminary objections and dismissed appellants' complaint.*fn2 An appeal was taken from dismissal of the complaint. Act of July 31, 1970, P. L. 673, § 203, 17 P.S. § 211.203.

The questions raised by this appeal reduce themselves to a frontal assault upon the doctrine of sovereign immunity. The subparts of this challenge question (1) whether sovereign immunity should be abolished, (2) whether it can be abolished and (3) whether it applies at all under the factual circumstances of this case. The desirability of limiting our decisions to the narrowest of issues necessitates the leading consideration of the question whether sovereign immunity applies to these factual circumstances.

[ 453 Pa. Page 569]

Appellants argue that because the Commonwealth has obtained liability insurance, which may provide compensation for the damagees resulting from this incident, the doctrine of sovereign immunity should not apply. Cf. Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965).

The Commonwealth's Department of Property and Supplies obtained automobile liability insurance, protective of the officers, enlisted men and employees of the National Guard, in conformity with the Administrative Code of 1929, Act of April 9, 1929, P. L. 177, § 2404, as amended, 71 P.S. 634.*fn3

The Commonwealth concedes that the Administrative Code provision, as implemented by the purchase of insurance by the Department of Property and Supplies, represents an avenue of compensation open to appellants, an avenue which they have failed to utilize. Appellants urge, by analogy to this Court's decisions in Flagiello and Falco,*fn4 that the existence of insurance

[ 453 Pa. Page 570]

    coverage obviates the need for "outmoded" law. We reject the notion that the existence of statutorily mandated public liability insurance evidences a legislative intent to reject sovereign immunity in this context.

Article I, Section 11 of the Pennsylvania Constitution provides that suits may be brought against the Commonwealth "in such cases as the Legislature may by law direct." While insurance coverage is provided, and the Commonwealth concedes the existence of a system of compensation in this factual setting,*fn5 we cannot justify a holding that the Legislature, by enacting Section 2404 of the Administrative Code, intended to create a sovereign immunity exception as envisioned by Article I, Section 11 of the Pennsylvania Constitution. Section 2404 does not permit the injured or damaged party to sue the Commonwealth. We find no legislative exception to sovereign immunity in this case. We will not create one by judicial edict.

Although appellants frame the separate issues of whether sovereign immunity can and should be abolished, these considerations are inextricably woven into the real question here involved: may we strike down a policy embodied by the Commonwealth's Constitution absent some compelling showing that Article I, Section 11 is in conflict with the Federal Constitution?

Appellants urge that because sovereign immunity was judicially created, and improvidently so, this Court

[ 453 Pa. Page 571]

    should hasten its judicial demise. Article I, Section 11 of our Constitution compels the conclusion, however, that this Commonwealth's immunity is constitutionally, not judicially, mandated: " Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." (Emphasis added) No other conclusion is possible than that it falls to the Legislature to determine the circumstances under which immunity may be waived.*fn6 Commonwealth v. Orsatti, 448 Pa. 72, 292 A.2d 313 (1972); Conrad v. Commonwealth Department of Highways, 441 Pa. 530, 272 A.2d 470 (1971); Meagher v. Commonwealth, 439 Pa. 532, 266 A.2d 684 (1970); Bannard v. New York State Natural Gas Corp., 404 Pa. 269, 172 A.2d 306 (1961); Stouffer v. Morrison, 400 Pa. 497, 162 A.2d 378 (1960); Commonwealth v. Berks County, 364 Pa. 447, 72 A.2d 129 (1950).

Appellants also argue that Article I, Section 11 of the Pennsylvania Constitution is repugnant to the Due Process and Equal Protection Clauses of the Federal Constitution. The basis of appellants' constitutional argument is that Article I, Section 11 is uncertain by its own terms, and so void for vagueness, and that it confers upon the Legislature the unfettered discretion to arbitrarily formulate exceptions to the doctrine of sovereign immunity.

The vagueness standard is inapplicable in this context. Article I, Section 11 establishes a standardless prerogative for the Legislature to consent to suit against the Commonwealth. The due process vagueness standard applies to void legislation which limits the ability of those to whom the statute ...


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