decided: June 24, 1975.
METROPOLITAN HOSPITAL, ET AL.
Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1966, No. 5181, in case of Harold Greer v. Metropolitan Hospital and Redevelopment Authority of the City of Philadelphia, and William F. Lotz, Inc., Additional Defendant.
James E. Beasley, with him Jeffrey M. Stopford, and Beasley, Hewson, Casey, Kraft & Colleran, for appellant.
Joseph H. Foster, with him Thomas J. Ziomek, and White and Williams, for appellees.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 235 Pa. Super. Page 267]
In May of 1966 the appellant was working on property owned by the Redevelopment Authority of the City of Philadelphia when a fire escape collapsed. The appellant commenced this trespass action to recover damages for his personal injuries and permanent disability which resulted from the accident. Over eight years later as the case was listed for trial, the Redevelopment Authority filed a motion for summary judgment*fn1 asserting the defense of sovereign immunity under Brown v. Commonwealth.*fn2
[ 235 Pa. Super. Page 268]
The appellant opposed the motion contending that the Redevelopment Authority was cloaked only with governmental immunity, which was abolished in Ayala v. Philadelphia Board of Public Education.*fn3 The lower court granted the motion for summary judgment and this appeal followed.
The sole issue presented in this case and a companion case involving the Redevelopment Authority of Pittsburgh decided this same day*fn4 is whether the Redevelopment Authority, as a unit of government, is cloaked with "governmental immunity," thus subjecting it to liability under Ayala or "sovereign immunity," thus precluding liability under Brown. We conclude that the former assertion is correct and reverse the order below.
The decisions of our Supreme Court have repeatedly chronicled the origin, development, faltering vitality*fn5 and eventual demise*fn6 of immunity doctrines in this Commonwealth. The Commonwealth, as a sovereign, "cannot be sued against her consent;" Monongahela Navigation Co. v. Coons, 6 W. & S. 101, 113 (Pa. 1843),*fn7 and remains
[ 235 Pa. Super. Page 269]
immune from suit under article I, section 11 of the Pennsylvania Constitution. Brown, supra. Local units of government also historically enjoyed immunity from tort liability. Apparently originating in the English case of Russell v. Men of Devon, 100 Eng. Rep. 359 (K.B. 1788),*fn8 the doctrine was adopted in this country in 1812,*fn9 and in this Commonwealth at least by 1888.*fn10 The immunity
[ 235 Pa. Super. Page 270]
of local governmental units, however, was not absolute. Liability existed for failure to maintain roads,*fn11 bridges,*fn12 and sidewalks;*fn13 in actions based upon improper management and use of municipal property, Briegel v. City of Philadelphia, 135 Pa. 451, 19 A. 1038 (1890); and in cases in which the function was determined to be "proprietary" as opposed to "governmental." E.g., Shields v. Pittsburgh School Dist., 408 Pa. 388, 184 A.2d 240 (1962); Stouffer v. Morrison, 400 Pa. 497, 162 A.2d 378 (1960); Morris v. Mt. Lebanon Twp. School Dist., 393 Pa. 633, 144 A.2d 737 (1958); Hill v. Allentown Housing Auth., 373 Pa. 92, 95 A.2d 519 (1953).
The distinction between those local units of government to which the governmental-proprietary concept applied, and the Commonwealth was not enunciated as "governmental immunity" versus "sovereign immunity" until the Supreme Court's decisions in Ayala and Brown.*fn14 The Court in Ayala abolished "governmental
[ 235 Pa. Super. Page 271]
immunity," that is, the immunity formerly enjoyed by "local governmental units -- municipal corporations and quasi-corporations . . ." Id. at 607, 305 A.2d at 889. Our courts have since ruled that such local governmental units as cities,*fn15 boards of education,*fn16 townships*fn17 and counties*fn18 are no longer immune from liability. Brown, in which the Court sustained the doctrine of "sovereign immunity," has since been followed in suits against Commonwealth employees,*fn19 Commonwealth Departments,*fn20 Boards,*fn21 Commissions,*fn22 and Colleges.*fn23
[ 235 Pa. Super. Page 272]
As stated earlier, the question with which this Court is presented is whether the Redevelopment Authority is identified with municipal and quasi-municipal corporations or whether it is identified as the Commonwealth itself. It is important, therefore, to examine the nature of authorities in general and the Redevelopment Authority in particular and to abstract the characteristics or attributes important to its classification. The Redevelopment Authority was created pursuant to the Urban Redevelopment Law of 1945.*fn24 The legislature determined that there existed in "urban communities in this Commonwealth" areas which had become blighted, § 1702(a), that such conditions would be harmful to the "well-being of the entire communities in which they exist," § 1702(b), and that such blight could not be adequately controlled by regulation or private enterprise. Id. § 1702(c). Therefore, the legislature created "Redevelopment Authorities," § 1702, each of which is designated as "a public body, corporate and politic, exercising public powers of the Commonwealth as an agency thereof . . ." Id. § 1709. The Redevelopment Authorities exist and operate to eliminate blighted conditions "in conformity with the comprehensive general plans of their respective municipalities." Id. § 1702. Although the Act "created" a separate and distinct redevelopment authority for each city and county, § 1704(a), no authority can become operative "until and unless" the local governing body declares by
[ 235 Pa. Super. Page 273]
appropriate ordinance or resolution "that there is a need for an Authority to function within the territorial limits of said city or county . . ." Id. § 1704(b). Authority members are appointed by the mayor or board of county commissioners, § 1705, serve without compensation, § 1706, and may not acquire any interest, direct or indirect, in any property, contract or redevelopment project. Id. § 1708. An Authority's redevelopment proposals are submitted to the local planning commission for approval, § 1710(e), and subsequently to the local governing body, § 1710(f), which holds hearings, § 1710(g), and either approves or rejects the proposal. Id. § 1710(h). If the local governing body approves the redevelopment proposal, the authority is authorized to take all necessary action. Id. § 1710(i). Its power of eminent domain is the same as that of the city or county which organizes the authority. Id. § 1712. The authority must submit to the Department of State a copy of its forming ordinance or resolution, § 1704(c), must keep its books and records open to inspection by the Department of Community Affairs and file therewith an annual report. Id. § 1719 (Supp. 1974-75). Beyond such report, an authority is under no obligation or duty to consult, advise, confer, or communicate with the Commonwealth or any department thereof.
[ 235 Pa. Super. Page 274]
It is clear from the statutory and case law that an authority is termed an agent of the Commonwealth and not of the local governing body. "An authority shall constitute a public body, corporate and politic, exercising public powers of the Commonwealth as an agency thereof . . .;" id. § 1709, it "shall in no way be deemed to be an instrumentality of such city or county, or engaged in the performance of a municipal function." Id. § 1704(a). "The Authority is a public body exercising public powers of the Commonwealth as an agency thereof." Schwartz v. Urban Redevelopment Auth., 411 Pa. 530, 536, 192 A.2d 371, 374 (1963); see Belovsky v. Redevelopment Page 274} Auth., 357 Pa. 329, 54 A.2d 277 (1947). "[A]n authority is not the creature, agent or representative of the municipality organizing it," Simon Appeal, 408 Pa. 464, 467, 184 A.2d 695, 697 (1962), it is "a corporate agency of the state, and not the child of a municipality . . ." Id. at 470, 184 A.2d at 698. "[M]unicipal authorities are not the creatures, agents or representatives of the municipalities which organize them, but rather are 'independent agencies of the Commonwealth and part of its sovereignty.'" Commonwealth v. Erie Met. Transit Auth., 444 Pa. 345, 348, 281 A.2d 882, 884 (1971).
Reviewing the language used prior to the crystallization of the immunity doctrines in Brown and Ayala, however, we find it singularly unpersuasive. For instance, the Court in Anderson Appeal, 408 Pa. 179, 182 A.2d 514 (1962) in holding the Delaware River Port Authority immune from suit, described it as "a vital arm of the Commonwealth." Id. at 184, 182 A.2d at 517. Justice Eagen, concurring in Dillon v. York City School District, 422 Pa. 103, 220 A.2d 896 (1966) held that "[a] school district is both constitutionally and legislatively an arm of the Commonwealth itself . . . As such, the defendant school district is shielded by the sovereign immunity of the Commonwealth, as well as the doctrine of governmental immunity." Id. at 108, 220 A.2d at 898-99. Dillon was specifically overruled by Ayala, whereas Anderson retains its vitality.*fn25 In Ayala, the Court held that the labeling of quasi-corporations as "agencies" of the Commonwealth would not protect them from suit.
"The notion that the immunity of the school district is linked to the sovereign immunity of the Commonwealth . . . is a notion without present vitality. Underlying this assumption is the theory that there is a distinction between municipal corporations and
[ 235 Pa. Super. Page 275]
quasi-corporations, the latter being agents of the Commonwealth and, thus, entitled to the sovereign immunity enjoyed by the Commonwealth.
"We expressly rejected this theory in Morris v. Mount Lebanon Township School District. . .*fn26
"Thus, municipal corporations and quasi-corporations are on an equal level with regard to immunity." Id. at 601 n. 8, 305 A.2d at 885 n. 8 (citation omitted; footnote added).
Municipal corporations are not agencies of the Commonwealth in the sense that that term applies to quasi-corporations. Id. Nevertheless, in many cases discussing the immunity question, the Court has termed them State "agencies."*fn27 Indeed, if we were to feel constrained by the language employed prior to Brown and Ayala all "agents" of the Commonwealth including municipalities,*fn28 school districts,*fn29 counties,*fn30 townships,*fn31 boroughs,*fn32
[ 235 Pa. Super. Page 276]
municipal authorities,*fn33 housing authorities*fn34 and parking authorities*fn35 would be cloaked with sovereign immunity; yet, they are not. It is thus clear that appellation and terminology are of little value in determining whether a particular entity is cloaked with "sovereign immunity" or the now discarded "governmental immunity." Indeed, the legislature in declaring authorities "agencies" of the Commonwealth most certainly had reasons other than immunity in mind.*fn36
[ 235 Pa. Super. Page 277]
None of the opinions in Brown or Ayala*fn37 specifically states which units of government fall within the "governmental immunity" doctrine as opposed to "sovereign immunity."*fn38 There are factors other than labels, however,
[ 235 Pa. Super. Page 278]
which serve as guideposts in this area.*fn39 The Court in Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199 (1962), held that the turnpike commission was an instrumentality of the Commonwealth and in so doing emphasized its functional rather than nominal relationship to the Commonwealth. The Court, in distinguishing the turnpike commission from "political subdivisions," referred to several factors which render the turnpike commission "in many respects the alter ego of the Commonwealth." Id. at 617, 182 A.2d at 203. The Court noted that the Commonwealth retained direct control and supervision of the Turnpike, that all contracts and agreements had to be approved by the Department of Highways, that all construction was supervised by the Department of Highways, and that Turnpike employees are considered Commonwealth employees. Id. at 618-20, 182 A.2d at 203-04. It may also be noted that the members of the turnpike commission are appointed by the Governor with the advice and consent of the Senate.*fn40
In another case decided the same year, Anderson Appeal, 408 Pa. 179, 182 A.2d 514 (1962), the Court was again presented with the issue of whether a governmental entity would be identified with the Commonwealth or its
[ 235 Pa. Super. Page 279]
political subdivisions.*fn41 In concluding that the Delaware River Port Authority "is to all intents and purposes synonymous with the Commonwealth," id. at 188, 182 A.2d at 518, the Court again examined the substantive relationship with the Commonwealth. The Court noted that the Port Authority is "strictly controlled by and responsible to the legislatures and the governors of the two states,"*fn42 that the Authority acted through the Attorney General in condemning property, that purchase or condemnation would be done in the name of the Commonwealth and that the legislature intended to make the Authority "a vital arm of the Commonwealth." Id. at 184, 182 A.2d at 517.*fn43 The members of the Authority are appointed by the Governor.*fn44 The reasoning of Rader and Anderson was followed without discussion in Roney v. General State Authority, 413 Pa. 218, 196 A.2d 349 (1964).
It is apparent that utilizing the factors found to be determinative in Rader and Anderson, the Redevelopment Authority can be distinguished readily from the turnpike commission and the Port Authority. The essentially localized nature of the redevelopment authorities has been noted before.
[ 235 Pa. Super. Page 280]
"[A]ll the powers given to the Authority . . . are subject to the approval of the city council or the county commissioners, and only after all the details of the particular project are formulated is the ultimate decision made by those governing bodies . . . The planning necessary to accomplish the purposes of the act must necessarily vary from place to place within the same city or county and from city to city and county to county." Belovsky v. Redevelopment Auth., 357 Pa. 329, 342, 54 A.2d 277, 283 (1947).
The Court in Schenck v. Pittsburgh, 364 Pa. 31, 70 A.2d 612 (1950) described the procedures by which each authority proposal must be reviewed by the local governing body. "[T]he Urban Redevelopment Law was obviously intended to give wide scope to municipalities in redesigning and rebuilding such areas within their limits as . . . no longer meet the economic and social needs of modern city life and progress . . . It is for the Authority . . . to decide upon the terms of their contract and for the City Council to approve or reject it . . ." Id. at 37-38, 70 A.2d at 615. Thus, in actions against local redevelopment authorities it is the local governing body, not the Commonwealth, which is an indispensable party to the action. Schwartz v. Urban Redevelopment Auth., 411 Pa. 530, 192 A.2d 371 (1963).
A municipal authority is an entity distinct from both the Commonwealth and a political subdivision; it is a "municipal corporation," Commonwealth v. Erie Met. Transit Auth., 444 Pa. 345, 350, 281 A.2d 882, 885 (1971), and a redevelopment authority is similar to a housing authority*fn45 which, as a municipal corporation, was, prior
[ 235 Pa. Super. Page 281]
to Ayala, liable for negligence in proprietary functions. Hill v. Allentown Housing Auth., 373 Pa. 92, 95 A.2d 519 (1953) (citing only cases involving immunity of municipal government). The Redevelopment Authority is also similar to a parking authority*fn46 which in an eminent domain case similar to Anderson, supra, has been held in contradistinction to the Port Authority, liable for consequential damages in the same manner as municipalities. Peterson v. Pittsburgh Public Parking Auth., 383 Pa. 383, 119 A.2d 79 (1956).
Our Supreme Court has repeatedly urged the legislature to undertake a comprehensive review of the immunity question. See e.g., Brown, supra at 571 n. 6, 305 A.2d at 870 n. 6. Without such review the courts will be compelled to continue refining the nature of immunity on a piecemeal case-by-case basis such as this. We hold that the Redevelopment Authority, by all indicia of substance rather than form, is not cloaked with the Commonwealth's garments of sovereign immunity, and that it must stand in court to defend the plaintiff's claim.*fn47