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SKRBINA v. PENNSYLVANIA DEPT. OF HWYS.

March 15, 1979

Paul SKRBINA, Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF HIGHWAYS and Pavement Specialists, Inc., Defendants



The opinion of the court was delivered by: SNYDER

On May 22, 1977, Paul Skrbina, a resident of Ohio, was seriously injured while driving his motorcycle on a road in Mercer County, Pennsylvania, when he swerved to avoid a "pothole" *fn1" , struck another "pothole" and was thrown to the ground. He alleges that the Pennsylvania Department of Highways (PennDOT) was negligent in failing to maintain the roadway and/or in failing to warn motorists of the danger. He also alleges that Pavement Specialists, Inc., a Missouri corporation, engaged then in repairing the road under a contract with PennDOT, failed to warn of the danger. PennDOT has moved to dismiss on the grounds that an action against the Commonwealth in federal court is barred by the Eleventh Amendment to the United States Constitution, since recovery could only be paid out of public funds. The Motion will be granted.

I.

 In Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), the Pennsylvania Supreme Court abolished sovereign immunity as a defense. *fn2" Immediately, the question arose whether this abrogation constituted a waiver of the immunity normally afforded the state by the Eleventh Amendment in a federal forum. Judge Donald E. Ziegler of this Court held that it did in Greenfield v. Vesella, 457 F. Supp. 316 (W.D.Pa.1978). *fn3" Several other courts have held to the contrary. See Hernandez v. Whitesell, 462 F. Supp. 569 (E.D.Pa.1978); Battle v. Commonwealth, No. 78-132 (E.D.Pa., September 19, 1978). The reasoning of these latter cases was that although Mayle abolished the common law defense of sovereign immunity in tort cases in Pennsylvania, it did not abrogate sovereign immunity where provided by statute. Thus, where Pennsylvania provided by statute for exclusive jurisdiction in the Commonwealth of all civil actions or proceedings against the Commonwealth, or any officer thereof acting in his official capacity, 17 P.S. § 211.401, federal courts were precluded from finding that the Commonwealth had consented to suit in a federal forum.

 Subsequent to Mayle, and effective September 28, 1978, the General Assembly of Pennsylvania enacted Act No. 1978-152, which provided Inter alia :

 
Pursuant to section 11 of Article I of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. When the General Assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in such manner and in such courts and in such cases as directed by the provisions of Title 42 (relating to judiciary and judicial procedure) unless otherwise specifically authorized by statute."
 
"§ 761. Original jurisdiction (42 Pa.C.S.A. § 761)
 
(a) General rule. The Commonwealth Court shall have original jurisdiction of all civil actions or proceedings:
 
(1) Against the Commonwealth government, including any officer thereof, acting in his official capacity, except:
 
(i) actions or proceedings in the nature of applications for a writ of habeas corpus or post-conviction relief not ancillary to proceedings within the appellate jurisdiction of the court;
 
(ii) eminent domain proceedings; and
 
(iii) actions on claims in which sovereign immunity has been waived pursuant to section 5110 (relating to limited waiver of sovereign immunity) and pursuant to the act of May 20, 1937 (P.L. 728, No. 193), referred to as the Board of Arbitration of Claims Act.
 
(2) By the Commonwealth government, including any officer thereof, acting in his official capacity, except eminent domain proceedings.
 
(3) Original jurisdiction of which is vested in the Commonwealth Court by any ...

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