No. 52 March Term, 1977, Appeal from the Order entered October 4, 1976 of the Commonwealth Court of Pennsylvania at No. 1865 C.D. 1975.
William M. Panella, New Castle, for appellant.
Richard S. Herskovitz, Asst. Atty. Gen., Dept. of Transportation, Harrisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., joins this opinion and files a concurring opinion. O'Brien, J., filed a dissenting opinion in which Eagen, C. J., and Pomeroy, J., joined. Pomeroy, J., filed a dissenting opinion in which Eagen, C. J., and O'Brien, J., joined.
Appellant Jimmy Mayle brought an action in trespass against appellee Pennsylvania Department of Highways in the Commonwealth Court for damages incurred as a result of injuries allegedly caused by appellee's negligent maintenance of Legislative Route 79, a public highway. Appellee asserted that the "sovereign immunity" of the Commonwealth prohibited any court in the Commonwealth from hearing the suit. The Commonwealth Court dismissed the complaint. We reverse.*fn1
The question before us is whether the Commonwealth is immune from tort liability except where a legislative act expressly or implicitly authorizes suit. This rule of "sovereign immunity" has been recently upheld by this Court.*fn2 We today abrogate this doctrine of "sovereign immunity." We conclude that the doctrine is unfair and unsuited to the times and that this Court has power to abolish the doctrine.
Whatever justification ever existed for the doctrine that the Commonwealth is immune from liability for tortious conduct unless the Legislature has consented to suit, the doctrine's day has long since passed. Under the doctrine, plaintiff's opportunity for justice depends, irrationally, not upon the nature of his injury or of the act which caused it, but upon the identity or status of the wrongdoer. Three times in recent years we have repudiated as unfair similar
status-based immunities of parties.*fn3 A majority of the states has rejected sovereign immunity at least to some degree,*fn4 and commentators oppose it nearly unanimously.*fn5
The most popular theory of the origin of sovereign immunity of the American states is that it is a carryover from the English doctrine that "the King can do no wrong." Although this maxim may originally have been a misstatement of the early English law, by the time of Henry III (mid-13th Century), it was settled feudal law that the King could not be sued in his own courts without his consent.*fn6 By the mid
eighteenth century, the doctrine that the crown, as the embodiment of the modern state, could not be sued without its consent had become part of the Blackstonian canon.*fn7 The first case in Pennsylvania adopting sovereign immunity asserted that the immunity of American states is an attribute to the English crown which the states took on themselves at independence, but which they might better have left behind with King George:
"At the declaration of American independence prerogatives which did not concern the person, state, and dignity of the King, but such as had been held by him in trust for his subjects, were assumed by the people here and exercised immediately by themselves; among the rest, unwisely I think, the prerogative refusing to do justice on compulsion."*fn8
Thus, in Pennsylvania, the doctrine of sovereign immunity was criticized at its very inception as an unwise remnant of English political theory. As the Supreme Court of Illinois stated:
"in preserving the sovereign immunity theory, courts have overlooked the fact that the Revolutionary War was fought to abolish that 'divine right of Kings' on which the theory is based."*fn9
Moreover, the immunity accorded Pennsylvania as "sovereign" has been far greater than that claimed by any English king or queen at least since the restoration of the monarchy in 1660. Since that time, the crown has been subject to suit in equity in the Court of Exchequer for "it would derogate from the King's honour to imagine that what is equity against a common person should not be equity against
him."*fn10 Nonetheless, in Pennsylvania, the immunity of the Commonwealth grew to include suits in equity*fn11 and petitions for declaratory judgment*fn12 as well as actions at law. No explanation was ever offered for this extension of the doctrine and the English history of the doctrine does not support it.
A second reason offered for the growth of sovereign immunity is that without such a doctrine many, if not most, of the states would have gone bankrupt soon after the American Revolution. While it is true that many states would have faced bankruptcy during that period without insulation from suit on obligations,*fn13 Pennsylvania constantly allowed claims against it to be made in the office of the
Comptroller General for "services performed, monies advanced, or articles furnished by order of the legislature,"*fn14 with a right of appeal to the Supreme Court of Pennsylvania.*fn15 Indeed, the Pennsylvania Legislature failed to approve a resolution calling for a constitutional amendment which would shield the states from suits on their obligations in federal court, and when this amendment was proposed by Congress, Pennsylvania refused to ratify it.*fn16 Further, before adoption of the Constitution of the United States, Pennsylvania had paid interest on certificates issued to former soldiers by the Continental Congress and, after a bitter public controversy, assumed over $5,000,000 of the national debt.*fn17 Pennsylvania did not feel the need, as certain other states did, to protect itself from liability through sovereign immunity.
Two cases in this Court from the Post-Revolutionary period, Respublica v. Sparhawk,*fn18 and Black v. Rempublicam,*fn19 are nonetheless read by some as adopting the doctrine of sovereign immunity.*fn20 In Sparhawk, the plaintiff sought to recover from the Comptroller General the value of goods seized during the Revolution by agents of the Commonwealth, acting upon direction of the Continental Congress. The goods had been seized to prevent them from falling into the hands of the British, but the enemy captured and used them anyway.
On appeal, this Court*fn21 stated that "[t]he transaction . . . happened flagrante bello; and many things are lawful in that season, which would not be permitted in a time of peace." Far from stating that the sovereign can do no wrong, the Court stated that the original taking by the Commonwealth would have been a trespass in time of peace.*fn22
The Court then stated a rule which has occasionally been used to justify sovereign immunity: "[I]t is better to suffer a private mischief, than a public inconvenience . . . ."*fn23 "Public inconvenience" has sometimes been interpreted as the demand on the public purse made by tort victims.*fn24 However, the examples of inconveniences the public may avoid without liability which the Court cited in denying Sparhawk's claim do not demonstrate public immunity for torts, but merely show that in exigent circumstances, the public may use private property.*fn25 Thus this maxim was interpreted in Pennsylvania not as a limitation of the liability of government for tortious conduct, but as a limitation on the private interest a citizen could claim in land and chattels against either other citizens or the government.*fn26
This Court held in the alternative that the Comptroller General had no jurisdiction to hear Sparhawk's claim because
the claim was not for "services performed, monies advanced, or articles furnished."*fn27 Despite the Commonwealth's direct assertion that it was an immune sovereign,*fn28 the Court refused to hold that if the Commonwealth's taking had been a trespass committed in peacetime, no court would have had jurisdiction to hear the claim absent consent of the Legislature.
In Black v. Rempublicam,*fn29 another Revolutionary War case, the plaintiff attempted to demonstrate his goods were taken under a contract with agents of the state. Failing that, his claim was dismissed on the same jurisdictional ground. Once again, this Court declined to treat the Commonwealth as an immune sovereign, and did not discuss the Commonwealth's argument that subjecting it to Revolutionary War claims would bankrupt it.*fn30 Thus, fear of bankruptcy did not compel the adoption of sovereign immunity in post-Revolutionary Pennsylvania.*fn31
The eighteenth century also gave birth to the argument that liability of the government for torts of its agents would result in "an infinity of actions."*fn32 But as early as 1851, this Court recognized that a properly formulated jurisdictional scheme could provide orderly and adequate compensation
for "every damage to private property . . . by the state or [municipal] ...