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PALMER v. PENN-OHIO RD. MATERIALS

December 15, 1978

Loren D. PALMER and Brenda M. Palmer, husband and wife, and Arthur Stewart, Administrator of the Estate of Esther Stewart, Deceased, Plaintiffs,
v.
PENN-OHIO ROAD MATERIALS, INC., Defendant and Third-Party Plaintiff. SPECTOR FREIGHT SYSTEM, INC., Defendant, v. Loren D. PALMER, L.G. Kisseleff, W.C. Moffit, J.P. Iacino, Jack Bestwick, G.L. Pellegrini, and the Commonwealth of Pennsylvania, Department of Transportation, Third-Party Defendants



The opinion of the court was delivered by: ZIEGLER

I. History of Case

This wrongful death, survival and personal injury action arose out a vehicular collision which occurred on March 27, 1976, on Interstate Route 80, Mercer County, Pennsylvania. The complaint alleges, inter alia, that: (1) the accident was proximately caused by a certain unusual, dangerous, and unexpected traffic pattern existing in an area of roadway construction on Interstate 80; and (2) signs and barriers erected by defendant, Penn-Ohio Materials, Inc., (Penn-Ohio) were inadequate to warn motorists of these conditions. Penn-Ohio joined several employees of the Commonwealth of Pennsylvania Department of Transportation as third-party defendants. These parties moved to dismiss the third-party complaint alleging official immunity. The motion was denied on August 25, 1978. Penn-Ohio then filed a third-party complaint joining the Department of Transportation (Penn. DOT). Presently before the court is Penn. DOT's motion to dismiss the third-party complaint alleging immunity from suit under the Eleventh Amendment of the Constitution. We conclude that the motion must be granted.

 II. Discussion

 The Pennsylvania Supreme Court abolished the longstanding doctrine of sovereign immunity in Pennsylvania in an opinion filed on July 14, 1978. Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978). Thereafter, we held that the abrogation of sovereign immunity by the Supreme Court of Pennsylvania constituted a judicial waiver of the immunity afforded the state by the Eleventh Amendment from civil liability for money damages in a federal forum. Greenfield v. Vesella, 457 F. Supp. 316 (W.D.Pa.1978). *fn1" Accordingly, we denied the Commonwealth's motion to dismiss in that case.

 Since the Pennsylvania Supreme Court's decision in Mayle and our decision in Greenfield, the General Assembly of Pennsylvania enacted Act 152, effective September 28, 1978, reinstating a limited form of sovereign immunity within the courts of the Commonwealth, while explicitly preserving the Commonwealth's Eleventh Amendment immunity from suit in federal court. Section 5(e) of the Act provides:

 
Nothing contained in this act shall be construed to waive the Commonwealth's immunity from suit in Federal courts guaranteed by the eleventh amendment to the United States Constitution.

 The question before the court is whether Act 152 should be given retroactive application to causes of action accruing prior to the date of its enactment so as to bar Penn-Ohio's third-party complaint against Penn. DOT.

 Under Pennsylvania law, a legislative enactment will not be construed to affect pre-existing substantive rights unless the legislature clearly expresses its intention to do so. Misitis v. Steel City Piping Co., 441 Pa. 339, 272 A.2d 883 (1971); Atkins v. Blaw Knox Foundry & Mill Mach., Inc., 431 F. Supp. 369, 371 (W.D.Pa.1977). This principal has been codified by the legislature in 1 Pa.C.S.A. ยง 1926, which states:

 
No law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature.

 Act 152, by its explicit terms, applies to causes of action accruing prior to the date of its enactment. Section 5(a) provides that "(t)his Act is intended to specifically respond to and prescribe limitations on the decision of Mayle v. Commonwealth, decided by the Supreme Court on July 14, 1978." Section 5(b) states in part:

 
The following provisions applying this act to actions accrued on the effective date of this Act, and its intended Retroactive effect are to assure the development of a consistent body of law . . . . (emphasis added).

 Moreover, the Governor, in an addendum attached to Act 152, stated:

 
It is my intention in approving this Act that Section 5 (construction and application) shall have general ...

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