decided: July 14, 1978.
JIMMY V. MAYLE, APPELLANT,
PENNSYLVANIA DEPARTMENT OF HIGHWAYS
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.
[ 479 Pa. Page 386]
OPINION OF THE COURT
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
[ 479 Pa. Page 387]
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
[ 479 Pa. Page 388]
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
[ 479 Pa. Page 389]
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
[ 479 Pa. Page 390]
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
[ 479 Pa. Page 391]
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.
[ 479 Pa. Page 392]
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
[ 479 Pa. Page 393]
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
[ 479 Pa. Page 394]
for "every damage to private property . . . by the state or [municipal] corporation that occasioned it."*fn33
The Commonwealth now argues both that tort liability could overburden the courts and either bankrupt the Commonwealth or endanger its financial stability.*fn34 Significantly, however, the Commonwealth has shown no evidence that tort liability of a government or a public authority has ever resulted in either undue clogging of the courts or destabilization of government finances. Indeed, the Commonwealth admits it does not know what, if anything, will happen to court dockets and public finances if the immunity of the Commonwealth from tort liability is abolished.*fn35 This sort of speculation cannot support a doctrine so "plainly unjust . . . to persons injured by the wrongful conduct of the State [and which] [n]o one seems to defend . . . as fair."*fn36
If anything, the information before us suggests that making governments liable for their torts will not substantially raise the costs of government or upset governmental financial stability.*fn37 Certainly, the greatest threats to the financial
[ 479 Pa. Page 395]
stability of state and local governments in recent years have not concerned tort liability, but limitations on taxing authority*fn38 and liability on contractual obligations such as bonds*fn39 and labor agreements.*fn40 Further, because negligence involves the reasonableness of the actor's conduct, unreasonably expensive protective measures will not be required of governments any more than they are required of private parties.*fn41 Welfare economics analysis suggests that government, if suable in tort, may become more efficient, although this improvement may not appear on its balance sheets as added assets or reduced liabilities.*fn42
We recently rejected the government-bankruptcy and flood-of-litigation arguments when we abolished local governmental immunity:
"We must also reject the fear of excessive litigation as a justification for the immunity doctrine. Empirically, there is little support for the concern that the courts will be flooded with litigation if the doctrine is abandoned. '. . . [M]ore compelling than an academic debate over the apparent or real increases in the amount of litigation, is the fundamental concept of our judicial system that any such increase should not be determinative or relevant to the availability of a judicial forum for the adjudication of impartial individual rights. "It is the business of the law to remedy wrongs that deserve it, even
[ 479 Pa. Page 396]
at the expense of a 'flood of litigation'; and it is a pitiful confession of incompetence on the part of any court of justice to deny relief upon the ground that it will give the courts too much work to do." Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874 (1939). We obviously do not accept the "too much work to do" rationale. We place the responsibility exactly where it should be: not in denying relief to those who have been injured, but on the judicial machinery of the Commonwealth to fulfill its obligation to make itself available to litigants.'"*fn43
In rejecting the financial burden argument in the context of local government immunity, we noted we had rejected
"the [financial burden] argument as it applied to the immunity of charitable institutions, [saying]: 'The voluminous arguments advanced by the defendant hospital and the amicus curiae, on the subject of the financial problems of hospitals today, are, while interesting and enlightening, wholly irrelevant to the issue before us. We have a duty to perform and that is to see that justice, within the framework of law, is done. Our function is to decide cases as they come before us on the pertinent facts and law. What could happen in the event the plaintiff obtains a verdict is not an issue here. The pleadings in this litigation require that we decide whether the defendant hospital should answer the charges brought against it by the plaintiff.'"*fn44
The financial burden argument is no more compelling now than it was in 1790, and no more so in the context of State government than in the context of local governments or charities. We continue to reject it.
[ 479 Pa. Page 397]
Non-liability of governments for the torts of their agents may have arisen because courts were reluctant to use the doctrine of respondeat superior or to attribute the misdeeds of officers to the sovereign.*fn45 Eighteenth and nineteenth century English and Pennsylvania cases reflect this concern. In Elliott v. Philadelphia,*fn46 this Court stated:
"'It is not conceivable,' says Kennedy, J., 'how any blame can be fastened upon a municipal corporation because its officer, who is appointed or elected, for the purpose of causing to be observed and carried into effect the ordinances duly passed by the corporation for its police, either mistakenly or willfully, under color of his office, commits a trespass; for in such a case it cannot be said that the officer acts under any authority given to him, either directly or indirectly, by the corporation, but must be regarded as having done the trespass of his own will . . . . It is like the familiar case of master and servant; where the latter wilfully does an act without the consent or authority of the master, by which a third person is injured, the servant alone is answerable.'"*fn47
Negligent performance of an act within the scope of the agent's duties was at the time of Elliott attributable to any private corporate master.*fn48 Thus the analogy drawn in Elliott between nonliabilities of municipal and private corporations for acts of their agents was not applicable; the Court was simply unwilling to apply the doctrine of respondeat
[ 479 Pa. Page 398]
superior to most governmental and public authorities.*fn49 Any justification for this attitude has of course long since disappeared,*fn50 and the attitude itself was crumbling as early as 1888.*fn51 Thus, this basis for Commonwealth immunity from tort liability is invalid today.
Finally, it was formerly asserted, both in Pennsylvania and elsewhere, that government should not be liable for its torts in the absence of legislative consent to suit because otherwise there is "no fund out of which [a government] can pay damages resulting from [its] own misconduct or that of [its] officers."*fn52 We recently rejected this argument as an archaic and inadequate conceptualization of the reasons for which general appropriations of public funds are made:
"[The argument has been advanced] that immunity is required because governmental units lack funds from which claims could be paid. It is argued that funds would be diverted to the payment of claims and the performance of proper governmental functions would be obstructed. Initially, we note our disagreement with the assumption that the payment of claims is not a proper governmental function. 'As many writers have pointed out, the fallacy in [the no-fund theory] is that it assumes the very point which is sought to be proved, i. e., that payment of damage claims is not a proper purpose.'"*fn53
[ 479 Pa. Page 399]
Thus, all the historic arguments made for sovereign immunity either have never been accepted in Pennsylvania or reflect obsolete legal thinking. None has continuing vitality.
The argument the Commonwealth advances most vigorously is that article I, section 11, of the Constitution of Pennsylvania deprives any court of jurisdiction to hear a case brought against the Commonwealth absent an act of the Legislature permitting the suit. This section reads:
"All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct."
This section first entered the Pennsylvania Constitution in 1790,*fn54 and was adopted verbatim in the Constitutions of 1838*fn55 and 1873,*fn56 all three times as part of the Declaration of Rights. Despite recent cases in which a majority of this Court accepted the Commonwealth's interpretation of article I, section 11, as the sole reason for retaining the rule of sovereign immunity,*fn57 we now believe that this constitutional provision does not forbid judicial abrogation of the doctrine. Rather,
[ 479 Pa. Page 400]
"The Constitution is . . . neutral -- it neither requires nor prohibits sovereign immunity. It merely provides that the presence or absence of sovereign immunity shall be decided in a non-constitutional manner. . . . The [Commonwealth's argument] mistakenly concludes that since the framers recognized the need for resolution of these issues they thereby mandated the doctrine itself. . . . [I]t is an unwarranted conclusion to assume from the grant of the power of consent [to suit] to the legislative branch that this was implicitly an abrogation of the court's traditional powers to abolish common law principles when they no longer meet the needs of the time."*fn58
The history of the adoption of this section indicates that the Framers of 1790 intended to allow the Legislature, if it desired, to choose cases in which the Commonwealth should be immune, but did not intend to grant constitutional immunity to the Commonwealth.
As section I, supra, establishes, Revolutionary and post-Revolutionary Pennsylvania was hostile to the notion that the Commonwealth should have the prerogatives of the English crown or that it should be immune from paying its just debts.*fn59 For example, in 1782, before the end of the Revolutionary War, the Legislature passed a statute allowing all contract and bond claims against the Commonwealth to be presented for adjudication.*fn60 Likewise, in the 1788 case of Respublica v. Sparhawk,*fn61 this Court agreed that the plaintiffs' allegations would have alleged a trespass had the Commonwealth not been acting in wartime to keep goods out of the hands of the enemy.
[ 479 Pa. Page 401]
Article IX, section 11 of the Pennsylvania Constitution was originally proposed to the 1790 Convention in the following form:
"That all courts shall be open, and every [free]man, for an injury done him in his lands, goods, person, or reputation, shall have remedy by the due course of [the] law, and right and justice administered [to him,] without denial, or delay."*fn62
James Wilson, a known opponent of sovereign immunity,*fn63 persuaded the Convention to add the following sentence:
"Suits may be brought against the Commonwealth as well as against other bodies corporate and individual."*fn64
This section, subjecting the Commonwealth to suit in all cases in which private parties could be sued, would constitutionally have abolished sovereign immunity and precluded the Commonwealth's liability. Shortly after this section was approved, however, a motion was made to reconsider, and the convention substituted the following:
"Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the legislature shall, by law direct."*fn65
[ 479 Pa. Page 402]
Thus, although no debate concerning any of the versions has been preserved, it appears that the 1790 Convention adopted this section in that form to preserve for the Legislature the opportunity, denied by Wilson's amendment, to make Pennsylvania immune in certain cases. There is no evidence that this sentence was added to make sovereign immunity the constitutional rule unless the Legislature decides otherwise. Indeed, one would not expect such evidence to exist in 1790 in a state with such a strong history of opposition to this privilege of the crown.
Three years after the adoption of the Pennsylvania Constitution of 1790, the United States Supreme Court, in Chisholm v. Georgia,*fn66 announced that states would be subject in federal court to suits on their obligations by citizens of other states. The Court gave no indication that the states would not also be subject to suit for their torts. Nonetheless, the Legislature refused both to recommend a constitutional amendment to deprive federal courts of this jurisdiction and to ratify the eleventh amendment when proposed by Congress.*fn67 Had the Pennsylvania Legislature of the 1790's seen immunity of the state, absent its consent, as an integral part of the Constitution of the Commonwealth, it surely would have opposed destruction of that doctrine in the federal courts.
Further, the judicial history of sovereign immunity indicates that it
"has a judicial origin and has been judicially modified. The constitutional basis for this doctrine has been a more recent judicial construction. When other grounds have
[ 479 Pa. Page 403]
failed, the state constitutional provision has been thrown into the breach to sustain a crumbling legal concept."*fn68
Pennsylvania courts did not unequivocally adopt sovereign immunity until 1851. O'Connor v. Pittsburgh, the seminal case, relied upon neither the Constitution of Pennsylvania nor upon legislative acts.*fn69 This Court thus adopted a "common law" rule in the sense that that term has been used in both the nineteenth and twentieth centuries. For example, in 1855 it was said:
"The 'common law' consists of those principles, maxims, usages, and rules of action which observation and experience of the nature of man, the constitution of society, and the affairs of life have commended to enlightened reason as best calculated for the government and security of persons and property. Its principles are developed by judicial decisions as necessities arise from time to time demanding the application of those principles to particular cases in the administration of justice. The authority of its rules does not depend on any express legislative enactment, but on the principles they are designed to enforce . . . ."*fn70
[ 479 Pa. Page 404]
In O'Connor, this Court stated that "the prerogative of refusing to do justice on compulsion" was one of the attributes of sovereignty the American states took on themselves "at the declaration of American independence."*fn71 The Court saw sovereign immunity as predating, and unaffected by, the Constitution of 1790, and even the Constitution of 1776,*fn72 and as inherent in the Anglo-American notion of the State, without need for legislative or constitutional enactment. Thus when this Court adopted sovereign immunity in 1851, it viewed the doctrine as part of the common law.
The first judicial statement that article I, section 11 of the Constitution embodies the doctrine that the state may not be sued without its consent did not occur until 1934,*fn73 more than 140 years after the Constitution of 1790, and more than 80 years after judicial adoption of sovereign immunity in Pennsylvania.*fn74 In the years since 1934, this Court has frequently referred to article I, section 11 as the source of sovereign immunity. Indeed, in those years, it has advanced no other substantial justification for retaining the doctrine.*fn75
[ 479 Pa. Page 405]
Nonetheless, as late as 1963, this Court was deciding cases in which neither the Constitution, nor any case relying on the Constitution was used to support the proposition that the Commonwealth is immune from suit absent legislative consent.*fn76 Only in the past fifteen years has this Court regularly stated that article I, section 11, compels the doctrine of sovereign immunity.*fn77 This interpretation of the Constitution is certainly "a recent judicial construction . . . thrown into the breach to sustain a crumbling legal concept."*fn78
Once the "errors of history, logic and policy"*fn79 which underly both sovereign immunity and the Commonwealth's constitutional interpretation have been laid bare, we see no reason to perpetuate them. Significantly, the people, the source of power to make the Constitution of this Commonwealth, have not ratified this erroneous interpretation of article I, section 11. The interpretation was not made until long after the plebiscite enacting the Constitution of 1873, and article I was not submitted to the people for reconsideration by the Constitutional Convention of 1968-69. Further, other states have rejected this reading of state constitutional provisions analogous to our article I, section 11.*fn80
[ 479 Pa. Page 406]
We therefore hold that article I, section 11 of the Pennsylvania Constitution does not preclude this Court from abrogating the doctrine of sovereign immunity.
Finally, the Commonwealth argues that sovereign immunity is so deeply imbedded in our judicial history that principles of stare decisis require that we continue to adhere to it. We need only repeat what this Court has stated many times in the past:
"the doctrine of stare decisis is not a vehicle for perpetuating error, but rather a legal concept which responds to the demands of justice and, thus, permits the orderly growth processes of the law to flourish."*fn81
Stare decisis should not be invoked to preserve a rule of law when "[there is] no better reason for [it] than [that] it was laid down in the time of Henry IV. It is . . . revolting if the grounds upon which it was laid down have vanished long since, and the rule persists from blind imitation of the past."*fn82 Were we to continue to adhere to the doctrine of sovereign immunity in light of its manifest unfairness and of our current knowledge that the doctrine is non-constitutional, we would be blindly imitating the past, for no reason better than that this was the way justice was administered in the feudal courts of Henry III.
We therefore abolish the doctrine of sovereign immunity and overrule all inconsistent cases.
Reversed and remanded for proceedings consistent with this opinion.
[ 479 Pa. Page 407]
LARSEN, Justice, concurring.
I join in Mr. Justice Roberts' opinion and wish to add that I can think of no greater function or more honorable pursuit than for the sovereign (Commonwealth of Pennsylvania) to care for those whom it has injured or maimed. Over thirty other sovereigns share this philosophy.
O'BRIEN, Justice, dissenting.
I respectfully but emphatically dissent. The majority of this court has usurped the power of the Pennsylvania legislature in abrogating the Pennsylvania Constitutional provision prohibiting suits against the Commonwealth unless the legislature directs that such suits may be filed.
Article I, § 11, of the Pennsylvania Constitution provides:
"All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." (Emphasis added.)
In Biello v. Pa. Liquor Control Bd., 454 Pa. 179, 301 A.2d 849 (1973), this court stated:
[ 479 Pa. Page 408]
". . . This language consistently has been interpreted to mean that no suit may be maintained against the state in tort until the legislature specifically has provided for such an action. Meaghr v. Commonwealth, 439 Pa. 532, 266 A.2d 684 (1970); Bannard v. N. Y. S. Nat. Gas Corp., 404 Pa. 269, 172 A.2d 306 (1961); Brewer v. Commonwealth, 345 Pa. 144, 27 A.2d 53 (1942); Bell Telephone Co. Page 408} v. Lewis, 313 Pa. 374, 169 A. 571 (1934); Collins v. Commonwealth, 262 Pa. 572, 106 A. 229 (1919); Fitler v. Commonwealth, 31 Pa. 406 (1858). . . ." (Emphasis added.)
Article I, § 11, is a Pennsylvania constitutional provision not a creature of the common law capable of judicial modification or abolition, without a judicial determination that another Pennsylvania constitutional provision supersedes it or that it is repugnant to the United States Constitution. This court has no power to abrogate Article I, § 11, of the Pennsylvania Constitution. While sovereign immunity may have arrived in Pennsylvania in Respublica v. Sparhawk, 1 Dall. 357, 1 L.Ed. 174 (1788) as a judicial creation that creation was elevated to constitutional stature in the Constitution of 1790 and retained in the Constitution of 1873, and has remained in all of the constitutions up to and including today's constitution.
This court, while having consistently upheld the Commonwealth's right not to be sued without its consent, has consistently told the legislature that they and they alone do possess the power to make the Commonwealth amendable to suit. See Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973).
The majority today usurps the legislative power granted to elected members of the General Assembly and the Senate of Pennsylvania.
I dissent and would affirm the order of the Commonwealth Court.
POMEROY, Justice, dissenting.
Article I, Section 11 of the Pennsylvania Constitution provides in pertinent part:
"Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct."
[ 479 Pa. Page 409]
The majority today holds that this constitutional provision does not mean what it says, and purports to abolish what it calls the "doctrine" of sovereign immunity. I respectfully dissent.
The majority's description of the lack of foundation in public policy for the continuance of the doctrine of sovereign immunity in the Commonwealth of Pennsylvania in the 20th Century is unexceptionable. Indeed, what the Court states in this regard is essentially a restatement of what has been quite clear to both courts and commentators for years. See generally, in addition to the authorities cited in the Court's opinion, Laughner v. Allegheny County, 436 Pa. 572, 576, 261 A.2d 607 (1970) (Pomeroy, J., dissenting). I would have no difficulty in joining the Court's abolition of sovereign immunity, and indeed would do so with enthusiasm, were I able to conclude that this Court is free to take such action. But I cannot so conclude. As I wrote in Brown v. Commonwealth, 453 Pa. 566, 574-75, 305 A.2d 868, 873 (1973) (concurring opinion):
"When by their Constitution the people of Pennsylvania have expressly delegated to the legislative branch of government the task of determining in what manner and in what court and in what cases the Commonwealth may be subjected to suit (and, implicitly, to the liability that may result therefrom), I fail to see how this Court can properly hold that it has a right to preempt this legislative function. A proposition that had its ancient origin in the common law of England and colonial America was elevated to constitutional status in Pennsylvania as long ago as 1790. To ignore this development would be to warp the plain meaning of the Constitution to suit societal ends which now, one hundred and eighty-three years later, the entire membership of this Court thinks are much to be desired. We may lament the legislative failure to correct before the present date an inequitable situation, but impatience should not cause us to upset the balance of power in our tripartite system of government by making the correction ourselves."
[ 479 Pa. Page 410]
I remain of this view, and I am not persuaded to the contrary by the majority's historical discussion. As the Court concedes, we do not have the benefit of any of the debates during the 1790 convention to guide us to determining the intent of the drafters. Thus I doubt that the majority's historical speculation is sufficient to change what has long been the accepted construction of the constitutional provision -- a construction which has been relied upon by the other branches of Pennsylvania government. But I believe that discussion on this point is in any event irrelevant, for it is well settled that a court should undertake an examination of a constitutional provision's historical setting only if the wording of the provision itself is ambiguous. See, e. g., Firing v. Kephart, 466 Pa. 560, 565, 353 A.2d 833 (1976); compare Statutory Construction Act of 1972, § 1921(c), 1 Pa.C.S. § 1921(c) (Supp.1978). I cannot find such an ambiguity in the constitutional provision.
Today's decision contains a further irony. After numerous decisions in which this Court has called upon the Legislature to take the comprehensive action necessary to deal with the problem of the Commonwealth's immunity in tort,*fn1 e. g., Brown v. Commonwealth, supra, 453 Pa. at 572, 305 A.2d at 871; id. at 576-77, 305 A.2d at 874 (Pomeroy, J., concurring), such action is now apparently forthcoming. After lengthy study, the General Assembly's Joint State Government Commission has issued a report*fn2 recommending legislation that would permit negligence actions against the Commonwealth
[ 479 Pa. Page 411]
in eight specific areas but require that immunity be retained in all other areas. In addition, suits would be permitted only for causes of action arising on or after July 1, 1979.*fn3
Having for a number of years invited the Legislature's attention to this subject and being now advised that a definitive response has been proposed after serious study, for this Court to inform the Legislature, as it does today, that the Commonwealth is liable to suit by any person on any cause of action (for the reach of today's decision cannot be limited to torts) comes with ill grace and without the justification of some compelling new reason.
For the reasons above stated, I dissent.