MEMORANDUM AND ORDER
Plaintiff's decedent was killed when her car skidded on an icy roadway. Plaintiff initially filed suit against the Pennsylvania Department of Transportation ("PennDOT") and various of its employees. PennDOT was dismissed as a defendant in 1977, on grounds of sovereign immunity. At that time, the Supreme Court of Pennsylvania had pending before it several cases in which abrogation of the defense of sovereign immunity was being sought; accordingly, the Order of dismissal in this case was expressly made without prejudice to plaintiff's right to refile her action against PennDOT in the event an intervening change in the law of Pennsylvania justified such action.
On July 14, 1978, the Supreme Court of Pennsylvania decided the case of Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978) abolishing the defense of sovereign immunity. Plaintiff thereafter brought a separate action against PennDOT, Civil Action No. 78-2424, but that action has been withdrawn by mutual consent (presumably because of the pendency of actions instituted by plaintiff in the Commonwealth Court and in the Court of Common Pleas of Chester County).
Meanwhile, plaintiff filed an Amended Complaint in this action naming as defendants various individual employees of PennDOT, and also West Goshen Township and certain employees of that Township. West Goshen Township filed a third-party complaint against PennDOT, and also against the remaining individual defendants.
The various defendants have filed motions to dismiss plaintiff's Amended Complaint, and the third-party defendants have filed motions to dismiss West Goshen Township's third-party complaint. In addition, plaintiff is pressing various discovery motions.
Defendants' Motions to Dismiss Plaintiff's Amended Complaint
To the extent that the motions to dismiss the Amended Complaint are based upon the assertion of sovereign immunity, they now lack merit, in view of Mayle v. PennDOT, supra. I agree with the defendants, however, that the abolition of the doctrine of sovereign immunity does not impair the continued vitality in Pennsylvania of the doctrine of official immunity.
Under Pennsylvania law, a "high public official" acting within the scope of his authority, is absolutely immune from civil liability; a "low public official" is conditionally immune. U. S. ex rel. Fear v. Rundle, 506 F.2d 331 (3d Cir. 1974); Fischer v. Kassab, 25 Pa.Cmwlth. 593, 360 A.2d 809 (1976); Freach v. Commonwealth, 471 Pa. 558, 370 A.2d 1163 (1977). It does not appear that any of the individual defendants occupied a policy-making position at a level which would qualify the incumbent as a "high public official." At best, therefore, they must be regarded as perhaps entitled to a qualified immunity: If the actions or omissions giving rise to liability were matters committed to their discretion, they would be immune so long as that conduct was not malicious, wanton or reckless. If they were not vested with discretion in the premises, then it would seem they would be liable for mere negligence. U. S. ex rel. Fear v. Rundle, supra, at p. 335. It seems virtually self-evident that the issues of qualified privilege cannot properly be determined on the pending motions to dismiss; a fuller development of the factual background is required. The motions to dismiss plaintiff's Amended Complaint will therefore be denied.
Individual Third-Party Defendants' Motions to Dismiss the Third-Party Complaint of West Goshen Township
Just as plaintiff's Complaint cannot be dismissed, on this record, on grounds of sovereign immunity or official immunity, the cross-claims of West Goshen Township against the individual defendants are not vulnerable on those grounds, to the extent that the Township seeks indemnity or contribution. Of course, under federal third-party practice, it is impermissible for West Goshen Township to seek to impose "sole liability" upon the third-party defendants for plaintiff's damages. Language in the cross-claims asserting sole liability will therefore be disregarded as surplusage.
Plaintiff's Discovery Motions
Plaintiff is clearly entitled to the discovery sought. The defendants will be required to comply with all outstanding discovery requests within thirty days from this date. Plaintiff's Motion for Sanctions is denied.
Motion of Pennsylvania Department of Transportation to Dismiss the Third-Party Complaint of West Goshen Township
By reason of the Mayle decision, Supra, it is now clear that, under the law of Pennsylvania, PennDOT, as an instrumentality of the sovereign, is no longer immune from civil liability to private citizens for torts committed by its agents, servants and employees, in the course and scope of their employment. The issue presented by PennDOT's motion and the third-party plaintiff's response thereto is whether Pennsylvania's abolition of the defense of sovereign immunity also eliminates the bar of the Eleventh Amendment to the United States Constitution. A further issue, which has not been identified by the parties, but which I believe is also presented in this case, is the proper exercise of a district court's discretion, limited though it may be, to decline to assert ancillary jurisdiction over third-party claims where diversity is lacking.
A. The Eleventh Amendment
The Eleventh Amendment provides simply that
"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."