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.
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.
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
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
And Now, this 28th day of February, 1978, the motion of the Commonwealth of ...