The opinion of the court was delivered by: ZIEGLER
This is a diversity action for damages arising out of a fire which occurred on November 3, 1977, at the Holiday Inn, New Castle, Pennsylvania. Plaintiff's decedent, Thomas Frank Greenfield, was a business invitee at the motel and died in the blaze. The administrator instituted this civil action alleging that the fire and decedent's death were caused by the joint and several negligence of defendants. Defendant-Vesella, the owner of the establishment, filed a third-party complaint against, among others, the Pennsylvania Department of Labor and Industry (hereinafter Department of Labor) and its inspector, Alfred Bellinotti, alleging that the Department, by its agent, negligently inspected the premises prior to the fire and failed to advise Vesella of the unsafe and dangerous conditions.
The Department of Labor and Bellinotti have moved to dismiss the third-party complaint on two distinct grounds: (1) The Eleventh Amendment to the Constitution bars suit in Federal Court against the Commonwealth, its agencies or officials, acting within the scope of their employment, for money damages without the consent of the sovereign; and (2) Alfred Bellinotti is protected under Pennsylvania law by the doctrine of official immunity for tortious acts within the scope of his authority.
II. Eleventh Amendment Immunity
The Eleventh Amendment to the Constitution reads as follows:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
In the absence of a clear and express waiver by the state, the Eleventh Amendment is a bar to suits for money damages against a state in a federal court. Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Ford Motor Co. v. Dept. of Treasury of Indiana, 323 U.S. 459, 65 S. Ct. 347, 89 L. Ed. 389 (1945). A waiver will be found "only where stated by the most express language or by such overwhelming implications from the text as (will) leave no room for any other reasonable construction." Edelman v. Jordan, supra 415 U.S. at 673, 94 S. Ct. 1347.
It is well established that, although a state is not a named party to the action, a suit may be barred by the Eleventh Amendment if the judgment against state officials will be paid out of state funds. West v. Keve, 571 F.2d 158, 163 (3d Cir. 1978).
The Department of Labor contends that the abrogation of sovereign immunity by the Pennsylvania Supreme Court is not determinative of whether Pennsylvania has relinquished its Eleventh Amendment immunity from suit in a federal court. See, Edelman v. Jordan, supra 415 U.S. at 677, n. 19, 94 S. Ct. 1347. It urges a crabbed reading of Mayle and a restriction of claims for money damages against the Commonwealth to the courts of that state.
The decisional guidance on the question of waiver of the Eleventh Amendment immunity in the main relates to two situations. First, whether a particular legislative enactment permitting suits against a state in its courts serves as a consent to suit in a federal court under the Eleventh Amendment. Edelman v. Jordan, supra. Second, whether acceptance by a state of certain federal benefits constitutes a waiver of immunity under the Amendment. See, Daye v. Comm. of Pennsylvania, 483 F.2d 294 (3d Cir. 1973).
In the case at bar, the parties have searched in vain for any case which discusses the survival of the constitutional immunity following a judicial abrogation of sovereign immunity. Our research has produced similar results.
Our reading of Mayle, however, leads to the conclusion that the Commonwealth has clearly and expressly waived its Eleventh Amendment immunity, and consented to suit in federal court. The judgment of this court is based upon the sweeping and unequivocal language of the Pennsylvania Supreme Court in abolishing the defense. Nowhere in the opinion is there any indication that the court intended that civil claims must be restricted to state court. To the contrary, the entire text leads inexorably to the conclusion that the immunity was abrogated in all cases and in all courts. In short, it leaves "no room for any other reasonable construction." Edelman v. Jordan, supra 415 U.S. at 673, 94 S. Ct. at 1361.
We note in passing that the decisions of the Court of Appeals for the Third Circuit, which have discussed sovereign immunity in this context, have applied Pennsylvania law that predated Mayle. Thus, the Court consistently dismissed diversity cases against the Commonwealth on the basis of the Pennsylvania doctrine of sovereign immunity.
Since the Court of Appeals was required in each instance to apply Pennsylvania law which no longer obtains, and ...