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decided: April 19, 1977.


Original jurisdiction in case of Daniel Sharp, Jr. and Ruth Sharp, his wife, v. Commonwealth of Pennsylvania and William Sherlock, Secretary of Transportation.


Harry Alan Sherman, with him R. Herb Buchman, for plaintiffs.

Richard S. Herskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendants.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 29 Pa. Commw. Page 608]

This is an action in trespass commenced by Daniel Sharp and his wife against the Commonwealth of Pennsylvania and its Secretary of Transportation. Daniel Sharp was employed as a painter by the firm of Solomon & Teslovich, which firm was awarded the general contract for the painting of bridges on a Federal-State project on Interstate Highway 79. Due to an alleged negligence in the positioning of the scaffold upon which Sharp was working and an alleged failure to properly control traffic, Sharp was severely injured when the scaffold was stricken by a tractor-trailer truck attempting to pass beneath the bridge and scaffold. Sharp instituted the present suit along with his wife, who asserts a cause of action for loss of consortium. The case is presently before us on preliminary objections,*fn1 in the nature of a demurrer, filed by the Commonwealth and the Secretary of Transportation. The Commonwealth asserts sovereign immunity and the Secretary asserts absolute immunity as a "high public official."

Our analysis must begin with a statement of several basic propositions. First, Article I, Section 11,

[ 29 Pa. Commw. Page 609]

    of the Pennsylvania Constitution has consistently been held to provide the Commonwealth with absolute immunity from suit in the absence of express legislative consent. Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973); Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973); Schroeck v. Pennsylvania State Police, 26 Pa. Commonwealth Ct. 41, 362 A.2d 486 (1976); Poklemba v. Shamokin State General Hospital, 21 Pa. Commonwealth Ct. 301, 344 A.2d 732 (1975). Second, common-law absolute immunity attaches to the actions of "high public officials" when acting within the scope of their authority and in the course of their official duties. Schroeck, supra; Fischer v. Kassab, 25 Pa. Commonwealth Ct. 593, 360 A.2d 809 (1976); DuBree v. Commonwealth, 8 Pa. Commonwealth Ct. 567, 303 A.2d 530 (1973). Third, the Secretary of Transportation is a "high public official." Fischer v. Kassab, supra.

Plaintiffs' attempts to breach this seemingly impenetrable wall of immunity are two: (1) the applicable federal statutes bar the defenses of sovereign immunity in this case; (2) the Commonwealth and the Secretary have waived their immunities by contract and are estopped from raising them in this action in trespass.

The Plaintiffs' first argument raises initially the question of whether the Congress has the power to deprive a State and its officers of immunity from suit in state courts. The United States Supreme Court has never been presented this issue for decision. Almost invariably the Court has dealt with the issue of the immunity of the States and their officers from suit in federal courts, which brings into the Court's analyses the entangling web formed by the conjunction of sovereign immunity, Article III of the United States Constitution, the Eleventh Amendment and

[ 29 Pa. Commw. Page 610]

    the so-called "11 1/2 Amendment."*fn2 See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Edelman v. Jordan, 415 U.S. 651 (1974); Employees v. Department of Public Health and Welfare, 411 U.S. 279 (1973); Parden v. Terminal R. Co., 377 U.S. 184 (1964). In the context of a suit in a state court, one is dealing with the less complex, though perhaps no less difficult, question of whether the Congress may, in enacting legislation pursuant to those powers delegated to it or necessary and proper thereto, require the courts of a State to entertain suits against that State for vindication of rights created by federal legislation. Cast in these terms, the question appears to be readily resolved as a matter of federal supremacy. Indeed, Justice Marshall's concurring opinion in Employees v. Department of Public Health and Welfare, supra at 287-98, considers the question and gives an affirmative answer.*fn3 See also, General Oil Co. v. ...

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