Harris T. Bock, Mendel & Schwartz, P. C., M. Mark Mendel, Philadelphia for appellants.
Burton D. Morris, Deputy Atty. Gen., Harrisburg, for appellee, Pennsylvania Turnpike Commission.
Jack M. Stover, Robert J. Woodside, Shearer, Mette, Hoerner & Woodside, Lawrence Silver, Deputy Atty. Gen., Chief, Civ. Litigation, Robert P. Kane, Atty. Gen., Harrisburg, for appellee Commonwealth of Pennsylvania.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Eagen and O'Brien, JJ., would affirm the order of the Commonwealth Court in its entirety. Roberts, J., filed a concurring and dissenting opinion in which Nix, J., joins. Manderino, J., filed a concurring and dissenting opinion.
Appellants, Irving Specter and Marie, his wife, have sued the Commonwealth of Pennsylvania and the Pennsylvania Turnpike Commission [hereinafter "Commission"] alleging that they were injured in a collision on the Turnpike caused solely by the neglience of a Commission employee, driving a Commission-owned vehicle, in making an illegal U-turn without warning while traveling at a high rate of speed.
Preliminary objections in the nature of a demurrer were sustained because of the bar of sovereign immunity, and the complaint was dismissed. This appeal followed.*fn1
We are thus again presented with challenges to the immunity of the Commonwealth and the Commission from suit for liability in tort.
Article I, Section 11, of the Constitution of Pennsylvania, P.S., provides in part that "suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." This Court has repeatedly and recently construed the quoted language as imposing a constitutional bar to suits against the Commonwealth of Pennsylvania and as leaving it to the legislature to determine how and when this bar shall be lifted.*fn2 As we said in Brown v. Commonwealth, 453 Pa. 566, 572, 305 A.2d 868, 871 (1973), "[w]hether the doctrine of sovereign immunity should be modified in this Commonwealth is a legislative question. We could not base a contrary holding upon our impatience with the Legislature's failure to act as speedily and comprehensively as we believe it should." We remain of this opinion, founded as it is in the conviction that the bar to suit absent legislative direction to the contrary is constitutionally mandated. The legislature having chosen to maintain the immunity of the sovereign as to suits of this character, the action against the Commonwealth may not be maintained, and the trial court was correct in sustaining the preliminary objections and dismissing the complaint as to the Commonwealth.
After mature consideration, however, we conclude that the immunity enjoyed by the Commonwealth does not extend
to the Commission. The action against it must therefore be allowed to proceed. The remainder of this opinion elucidates the basis for this holding.
We acknowledge at the outset that this Court has twice held that the Commission shares the immunity of the Commonwealth and is therefore not subject to suits arising out of the negligence of its agents and employees in the course of their maintenance of the Turnpike. Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199 (1962); Thomas v. Baird, 433 Pa. 482, 252 A.2d 653 (1969). Both of these cases, however, preceded our decision in Ayala v. Philadelphia Board of Education, 453 Pa. 584, 305 A.2d 877 (1973), in which we discarded the doctrine of immunity insofar as it applied to political subdivisions or governmental entities other than the Commonwealth itself. This doctrine, being a product of judicial decision as distinguished from constitutional directive, we felt free to abolish.*fn3 It is no longer possible, therefore, for a governmental body to avoid suit simply because of its governmental nature. Rather, whether any governmental entity is amenable to suit depends upon whether it is or is not part of the "Commonwealth" as that term is used in Article I, Section 11, of the Constitution, which establishes the immunity of the Commonwealth. If it is such a part, it is immune from suit; but if it is not, it is subject to suit.
Although the opinion in Rader seems to equate the immunity of the Commission with that of the Commonwealth, in neither Rader nor Baird was it expressly held that the Commission is part of the Commonwealth, and, as we have just observed, both cases were decided at a time when such a holding was not strictly necessary to sustain the Commission's claim of immunity. In light of
our abrogation of governmental immunity in Ayala and the trend in recent years to do away with immunities from suit which are neither constitutionally nor statutorily compelled,*fn4 we deem it appropriate at this time to re-examine the question whether the Pennsylvania Turnpike Commission is immune from suit. This involves a scrutiny of its status in the governmental framework of Pennsylvania.
Whether the Commission is part of the "Commonwealth" as that term is used in Article I, Section 11, of the Constitution of Pennsylvania, and so cloaked with the immunity which the sovereign enjoys, depends upon the nature of the Commission and its relationship to other statewide governmental bodies. In making this determination we must be guided by the legislative acts creating the Commission and defining its purposes and powers and by judicial decisions in which the status of the Commission was at issue.
A. The statutory basis of the Turnpike Commission
The Turnpike Commission was created and is governed in general by the Act of May 21, 1937, P.L. 774, No. 211, § 1 et seq., 36 P.S. § 652a et seq. [hereinafter "the Act"]. Section 4 of the Act, 36 P.S. § 652d, constitutes the Commission as an "instrumentality of the Commonwealth" and describes the exercise of its powers as "an essential governmental function of the Commonwealth." Section 4 further states that the Commission "may sue and be sued, plead and be impleaded, contract and be contracted with, and have an official seal." Section 11 of the Act, 36 P.S. § 652k, provides that "the commission shall not be required to pay any taxes or assessments on any property acquired or used by it for the
purposes provided in this act, and the bonds or other securities and obligations issued by the commission, their transfer and the income therefrom, including any profits made on the sale thereof, shall at all times be free from taxation within the Commonwealth." The Act grants the Commission broad powers, among which are the following:
to "make necessary rules and regulations for its own government", § 4 of the Act, 36 P.S. § 652d;
to "acquire, own, use, hire, lease, operate and dispose of personal property, real property and ...