Appeal from order of Commonwealth Court, No. 2 Tr. Dkt. 1972, in case of Kevin L. Sweigard, a minor by Lee R. Sweigard, his father and natural guardian and Lee R. Sweigard and Sandra L. Sweigard, his wife, individually v. Department of Transportation, Commonwealth of Pennsylvania.
F. Lee Shipman, with him Goldberg, Evans & Katzman, for appellants.
Edward V. A. Kussy, Assistant Attorney General, with him Edward A. Hosey, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Nix and Mr. Justice Manderino join in this dissent. Dissenting Opinion by Mr. Justice Nix.
Appellants commenced an action in trespass alleging injuries while proceeding along Pennsylvania Route 147, resultant from a rock fall due to negligent maintenance and construction by the Pennsylvania Department of Transportation. This appeal arises from an order of the Commonwealth Court sustaining the Commonwealth's preliminary objections based on constitutional immunity, as found in Article I, Section 11 of the Constitution of Pennsylvania, and dismissing appellants' complaint. We now affirm.
Appellants make three contentions: the doctrine of sovereign immunity in Pennsylvania is judicially, and not constitutionally established; Article I, Section 11 of the Constitution of Pennsylvania constitutes a waiver of the Commonwealth's immunity from tort liability; and the enactment of legislation authorizing the Department of Property and Supplies to purchase liability insurance constitutes a waiver of sovereign immunity and consent to suit for tort liability.
The pertinent portion of Article I, Section 11 of our Constitution provides: "Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." Initially, we recognize that the maintenance and construction of roads is a governmental and not a proprietary function. Thus, this is clearly an action against the Commonwealth. See Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973). We have just recently spoken directly to appellants' first and third contentions. In Brown v. Commonwealth, 453 Pa. 566, 571, 305 A.2d 868, 871 (1973) we reasserted that "Article I, Section 11 of our Constitution compels the conclusion that this Commonwealth's immunity is constitutionally, not judicially mandated. . . ." We also rejected in Brown the notion
that the existence of statutorily mandated public liability insurance evidences a legislative intent to reject sovereign immunity in this context. Id. at 570, 305 A.2d at 869. In light of our holding that Article I, Section 11 establishes sovereign immunity, appellants' contention that that section waives such immunity is obviously without merit.