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THERESA BRAUN PATTERSON v. JAMES WILSON (02/28/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 28, 1978.

THERESA BRAUN PATTERSON, ADMINISTRATRIX OF THE ESTATE OF THERESA ANN PATTERSON, DECEASED, PLAINTIFF
v.
JAMES WILSON, ON BEHALF OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, AND ROBERT P. KANE, ON BEHALF OF THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS

Original jurisdiction in case of Theresa Braun Patterson, Administratrix of the Estate of Theresa Ann Patterson, Deceased, v. James Wilson, on behalf of the Pennsylvania Department of Transportation, and Robert P. Kane, on behalf of the Commonwealth of Pennsylvania.

COUNSEL

Samuel Merovitz, for plaintiff.

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

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 34 Pa. Commw. Page 59]

The plaintiff, Theresa Braun Patterson, administratrix of the estate of Theresa Ann Patterson, filed a complaint in trespass in this Court against the Pennsylvania Department of Transportation (PennDOT) and the Commonwealth of Pennsylvania (Commonwealth).*fn1 The complaint alleges that an automobile accident which occurred on August 7, 1976 had been caused by the defendants' negligent design, construction, and maintenance of a highway, known as Old 309 or as the Bethlehem Pike, in Montgomery County, Pennsylvania, and that the plaintiff is entitled to damages

[ 34 Pa. Commw. Page 60]

    for the death of her daughter, Theresa Ann Patterson, which resulted from that accident. Presently before us is defendants' motion for judgment on the pleadings and James Wilson and Robert P. Kane's preliminary objections raising the issue that no cause of action has been pled against them.

Once again, we are requested to abolish the doctrine of sovereign immunity which is derived from Article I, Section 11 of the Pennsylvania Constitution. Our Supreme Court has consistently held that the Commonwealth enjoys absolute sovereign immunity absent legislative consent to suits against it. Specter v. Commonwealth, 462 Pa. 474, 341 A.2d 481 (1975); Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973); Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973). The plaintiff also urges us to recognize a distinction between governmental and proprietary functions performed by Commonwealth agencies, but we have held that sovereign immunity is not limited to governmental functions. Poklemba v. Shamokin State General Hospital, 21 Pa. Commonwealth Ct. 301, 344 A.2d 732 (1975).

As a Commonwealth agency, PennDOT is protected by the constitutional grant of immunity. Zerby v. Department of Transportation, 464 Pa. 421, 346 A.2d 914 (1975); Sweigard v. Pennsylvania Department of Transportation, 454 Pa. 32, 309 A.2d 374 (1973); Tokar v. Commonwealth, 29 Pa. Commonwealth Ct. 383, 371 A.2d 537 (1977); Reinert v. Pennsylvania Department of Transportation, 26 Pa. Commonwealth Ct. 283, 363 A.2d 1337 (1976).

We therefore make the following

Order

And Now, this 28th day of February, 1978, the motion of the Commonwealth of Pennsylvania and its

[ 34 Pa. Commw. Page 61]

    agency, the Department of Transportation, for judgment on the pleadings is hereby granted, and the preliminary objections of James Wilson and Robert P. Kane are sustained and the complaint dismissed as to those individual defendants. It is directed that the Chief Clerk of this Court enter judgment in favor of defendants, Pennsylvania Department of Transportation and Commonwealth of Pennsylvania, and against the plaintiff in the above captioned case.

Disposition

Motions sustained. Complaint dismissed as to individual defendants. Judgment entered for Commonwealth defendants.


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