Original jurisdiction in case of Blanche C. Rockwell, Administratrix of the Estate of Elaine Darlin Simpson, Deceased, and Deanna Marie Rockwell, a minor, by her mother and guardian, Blanche C. Rockwell, in her own right, v. Commonwealth of Pennsylvania and Pennsylvania Department of Transportation and Jacob Kassab, Secretary of Transportation. Complaint in trespass in the Court of Common Pleas of Philadelphia County.
William Goldstein, with him Goldstein & Goldstein, for plaintiffs.
Stuart J. Moskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant, Department of Transportation.
Michael M. Westerman, with him Edwin L. Scherlis, for defendant, Kassab.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as panel of three. Opinion by Judge Wilkinson.
This is a suit to recover damages from the Commonwealth of Pennsylvania and the Secretary of Transportation. The damages are alleged to have been suffered by reason of an accident alleged to have been caused by defendants' negligent construction of Interstate Route 80. A tractor-trailer in which plaintiffs were riding was traveling west. It crossed the medial strip and struck head-on another tractor-trailer traveling east.
Able counsel for plaintiffs recognize that unless they can distinguish this case from our very current Supreme
Court of Pennsylvania decisions in Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973), and Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973), they must fail in their efforts to sue the Commonwealth. The same holds true with regard to the claim against the Secretary of Transportation unless this case can be distinguished from this Court's decision in DuBree v. Commonwealth, 8 Pa. Commonwealth Ct. 567, 303 A.2d 530 (1973). Since we are not persuaded that the instant case can be distinguished from any of the above cases, we must sustain the preliminary objections and dismiss the complaint.
The only real basis asserted for distinguishing this case from those above is that this accident occurred on a highway that was built by the Commonwealth as part of the Interstate System. Plaintiffs assert that the Legislature gave its consent to be sued for accidents alleged to have been caused by negligent construction when it accepted the benefit of the Federal-Aid Highway Act, 23 U.S.C. § 101, et seq. We think not and do not consider Mr. Justice Douglas' dissenting opinion in Meyers v. Pennsylvania, 416 U.S. 946, 40 L. Ed. 2d 298, 94 S. Ct. 1956 (1974), as persuasive as the decision of the majority of the Supreme Court of the United States in that case who, in denying certiorari, obviously felt otherwise.
A much stronger case was made for legislative consent by implication to be sued for tort liability in Biello, supra, and was rejected ...