decided: July 14, 1978.
JOSEPH KENNEDY, APPELLANT,
DELAWARE RIVER JOINT TOLL BRIDGE COMMISSION
No. 388 January Term, 1976, Appeal from the Order of the Commonwealth Court dated March 11, 1976, at No. 21 T.D. 1975
Jack Sirott, Bristol, for appellant.
Robert W. Valimont, William E. Benner, Reeves, Bowen & Valimont, Doylestown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., filed a concurring opinion. Eagen, C. J., and O'Brien, J., dissent.
Author: Per Curiam
[ 479 Pa. Page 515]
OPINION OF THE COURT
On January 3, 1974, appellant Joseph Kennedy was injured when the automobile he was operating skidded on the Lower Trenton Bridge over the Delaware River between Trenton, New Jersey, and Morrisville, Pennsylvania, and crashed into the structure of the bridge. Kennedy filed an action in trespass in the court of common pleas alleging that his injuries were the result of negligent maintenance of the
[ 479 Pa. Page 516]
bridge by the appellee Commission. Preliminary objections, consisting of a demurrer and a motion raising a question of jurisdiction of the court of common pleas, were filed by the Commission. The court of common pleas, being of the view that it lacked jurisdiction,*fn1 ordered the case transferred to the Commonwealth Court.*fn2 The demurrer, which relied on the Commission's entitlement to sovereign immunity, was renewed in the Commonwealth Court,*fn3 and that court sustained the demurrer. 23 Pa. Commw. 662, 354 A.2d 52 (1976). This appeal followed.*fn4
In Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709, decided this day, sovereign immunity has been abolished as a defense in trespass actions in the courts of this Commonwealth. Our decision in Mayle is controlling here, and compels the conclusion that appellee's preliminary objections should not have been sustained on the ground of sovereign immunity.*fn5 Accordingly, the order of the Commonwealth Court is reversed, and the case remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
[ 479 Pa. Page 517]
POMEROY, Justice, concurring.
Although I cannot join the majority's rationale in this case,*fn1 I concur in the result because in my view the appellee Delaware River Joint Toll Bridge Commission ("the Commission") is not an "integral part of the Commonwealth" as that phrase is explained in Specter v. Commonwealth, 462 Pa. 474, 341 A.2d 481 (1975), and Yancoskie v. Delaware River Port Authority, 478 Pa. 396, 387 A.2d 41 (1978).
The Commission is in many respects similar to the interstate body involved in Yancoskie, the Delaware River Port Authority. The Commission too is the creature of an interstate compact between the Commonwealth of Pennsylvania and the State of New Jersey,*fn2 and its powers are virtually identical to those of the authority.*fn3 In addition, the discussion in Yancoskie of the pertinent judicial decisions involving the status of interstate authorities in the governmental
[ 479 Pa. Page 518]
structure of Pennsylvania applies with equal force to the present case.*fn4 Although the financial structures of the two entities are somewhat different (due principally to the succession of statutes pertaining to the Commission), I do not find the difference to be controlling.
Whether a particular entity is financially independent of the central government of the Commonwealth is a critical element in an analysis of whether it is an "integral part of the Commonwealth." Like the Delaware River Port Authority in Yancoskie, the Commission in the case at bar operates a number of toll bridges paid for by revenues raised from the sale of bonds, which obligations are repaid through tolls and other user charges. 36 P.S. § 3401, Art. V, Art. X(i). But the construction of the Lower Trenton Bridge, the negligent maintenance of which is at issue in this case, was not so financed. That bridge was built by a prior interstate body using direct appropriations from Pennsylvania and New Jersey,*fn5 and its operation is governed in part by a statute which antedates the interstate compact and remains in force. Act of May 8, 1919, P.L. 148, §§ 1-8, 36 P.S. §§ 3271-3278 (1961).*fn6 Section 7 of the Act of 1919 provides that the bridge is to be operated "in the joint names of the Commonwealth of Pennsylvania and the State of New Jersey . . . free of charge to the traveling public . . ." and the bridge's free status is expressly preserved by the later interstate compact.*fn7 Since the bridge is not self-sustaining through tolls, Section 8 of the Act provides that
[ 479 Pa. Page 519]
Pennsylvania and New Jersey shall each assume half the obligations of funding the cost of maintenance.
[ 479 Pa. Page 520]
The Commission urges that since ownership of the free bridges remains vested in the Commonwealth of Pennsylvania and the State of New Jersey, and since direct funding of the maintenance of those bridges continues to come from the governments of those two states, a suit drawing in question the Commission's maintenance of such a bridge is in actuality a "suit against the Commonwealth", and as such proscribed, in the absence of legislative authorization, by Article I, Section 11 of the Pennsylvania Constitution. I am unable to agree. The same Section 8 of the Act of 1919 which provides for funding of the costs of maintenance of free bridges by the two states also declares that such bridges are "in the charge and control of [the] [C]ommission . . .", thereby placing the duty of care squarely on the Commission's shoulders. Moreover, the interstate compact, like the legislative enactments under which the Pennsylvania Turnpike Commission in Specter and the Delaware River Port Authority in Yancoskie operate, requires that the Commission's acts be the Commission's responsibility when it states that "[n]otwithstanding any provision of this agreement, the [C]ommission shall have no power to . . . create any debt against [the] Commonwealth . . ."*fn8 Given this allocation of responsibility, the partial funding of the Commission's maintenance of free bridges by the Commonwealth does not make such maintenance an activity of the Commonwealth.*fn9 Thus it seems to me that what was said in Specter, Page 520} supra, 462 Pa. at 492-93, 341 A.2d 481, 491, is equally applicable here:
"The legislature created this separate body and at the same time disclaimed all responsibility on the part of the Commonwealth for liabilities which it, the Commission, might incur. It is clear that the Commission is not an integral part of the Commonwealth . . . It follows that the Commission is not immune from suit in tort for the acts of its servants and agents acting in the course of their employment or agency."
On the basis of this analysis of the origin, nature and powers of the Delaware River Joint Toll Bridge Commission, I concur in the result reached by the Court in the case at bar.