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decided: September 14, 1979.


Original jurisdiction in case of Karen R. Brungard v. John A. Hartman and Mansfield State College.


Richard Z. Freemann, Jr., with him Bonnie S. Brier, and, of counsel, Roger V. Wiest; Wiest & Wiest ; and Ballard, Spahr, Andrews & Ingersoll, for plaintiff.

Jered L. Hock, with him Metzger, Wickersham, Knauss & Erb, for defendant, John A. Hartman.

J. Justin Blewitt, Jr., Deputy Attorney General, and Bruce A. Krain, Deputy Attorney General, with them Norman J. Watkins, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for defendants, Mansfield State College and Commonwealth.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Crumlish. Jr. Concurring and Dissenting Opinion by Judge DiSalle. Concurring and Dissenting Opinion by Judge Wilkinson, Jr. Concurring and Dissenting Opinion by Judge MacPhail. Judge Mencer joins in this concurring and dissenting opinion.

Author: Rogers

[ 46 Pa. Commw. Page 13]

Karen R. Brungard filed a complaint in trespass in this Court against Mansfield State College and John A. Hartman, a chemistry professor at Mansfield, in which she alleged that she was injured by an explosion in a classroom resulting from the College's and Professor Hartman's negligence. We dismissed the counts of the complaint against Mansfield State College on the ground of the State's sovereign immunity and those against Professor Hartman on the ground of his immunity as an official of the Commonwealth from liability except for acts maliciously, wantonly or recklessly done -- conduct not ascribed to Professor Hartman in the complaint.*fn1 The Pennsylvania Supreme Court vacated our order dismissing the complaint against Mansfield State College based on its decision in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), and vacated our order dismissing the complaint against Hartman and remanded for consideration in light of all the principles enunciated in DuBree v. Commonwealth of Pennsylvania, 481 Pa. 540, 393 A.2d 293 (1978).*fn2

(I) The Complaint Against the Commonwealth -- Sovereign Immunity.

In Mayle, supra, decided on July 14, 1978, the Supreme Court abrogated the doctrine of sovereign immunity in Pennsylvania. The General Assembly in specific response to, and expressly in order to prescribe limitations on Mayle, supra, then enacted the Act of September 28, 1978, P.L. 788 (Act 152), effective immediately, making amendments or additions to the new Judicial Code of Title 42 Pennsylvania Consolidated

[ 46 Pa. Commw. Page 14]

Statutes and to General Provisions, Title 1 Pennsylvania Consolidated Statutes.*fn3 The General Assembly there waived, with monetary limitations, sovereign immunity as a bar to actions against Commonwealth agencies and their officials and employees for damages arising out of negligent acts or omissions with respect to eight categories, or as the Act calls them, instances, of claims, to wit, vehicle liability; medical-professional liability; care, custody or control of personal property; Commonwealth real estate, highways and sidewalks; potholes and other dangerous conditions; care, custody or control of animals; liquor store sales; and national guard activity.*fn4 The Act provides with respect to these eight categories of claims that the waiver of immunity shall be effective as to all actions whenever accrued; that is, that the waiver shall have retroactive effect. It further expressly provides, however, that the waiver shall extend only to the eight categories of claims,*fn5 and that sovereign immunity shall continue as a defense to all actions which had accrued before the effective date of the Act and which are not within any of the eight categories of claims in which immunity was waived.*fn6

Karen Brungard's claim does not fall within any of the categories of claims as to which the Commonwealth's immunity has been waived. The accident in which she was injured occurred November 10, 1970 and she commenced her suit on November 9, 1972. Act 152 thus expressly declares that her action against Mansfield College, that is, the Commonwealth, is barred by sovereign immunity.

[ 46 Pa. Commw. Page 15]

We must mention that we are mindful that the Supreme Court simply vacated our order dismissing the plaintiff's complaint against Mansfield College and remanded. In contrast to this action, it vacated our order dismissing the complaint against Hartman and remanded for consideration in light of the principles enunciated in DuBree. The possibility that consideration by us of the effect of Act 152 on the claim against Mansfield College might be thought to be an act of lese majeste has not escaped us. However, the Commonwealth and Hartman and the defendants in other similar cases remanded by the Pennsylvania Supreme Court are pressing the bar of Act 152 and it seems to us that the best interests of the litigants would be served by our deciding this matter now. Further, no objection has been raised by the plaintiff to our doing so.

The Commonwealth has invoked sovereign immunity declared by Act 152 as a bar to the plaintiff's claim. The plaintiff says that her claim, which she variously describes as "a vested cause of action" or "a vested right to sue"*fn7 or "a property interest," is one which the General Assembly could not "under constitutional and common law . . . destroy through retroactive legislation." She depends on the due process clause of the 14th Amendment of the United States Constitution, Article I, Section 9 of the Pennsylvania Constitution,*fn8

[ 46 Pa. Commw. Page 16]

    and on a line of cases which declare that the constitutional provisions mentioned do protect certain rights from destruction by retroactive State action. In Ettor v. City of Tacoma, 228 U.S. 148 (1912), an abutting owner's right to consequential damages for street grading existing by statute at the time the work was done was held to be a vested property right which was protected from destruction by the repeal of the statute after the damage was done. The Supreme Court concluded that the repealing act deprived the property owner of his right to enforce a fixed liability and thus of a right which was in every sense a property right. The appellant boat operator in Forbes Pioneer Boat Line v. Board of Commissioners, 258 U.S. 338 (1922), had been unlawfully required to pay tolls to use a canal lock and sued to recover the payments. On the same day it got judgment, the State Legislature passed an act which purported to validate the collection. The Supreme Court held that the state could not by legislation constitutionally take from a private party a right to recover money due when the enactment was passed. In Kay v. Pennsylvania Railroad, 65 Pa. 269 (1870), the Supreme Court of Pennsylvania held that an Act of Assembly which retrospectively to the time of injury placed a limitation on the extent of compensation recoverable against a railroad enterprise was invalid as offensive to the then due process clause of the state constitution. The court declared that the injured plaintiff had a vested right in his claim without the limitation. In Lewis v. Pennsylvania Railroad, 220 Pa. 317, 69 A. 821 (1908), the Pennsylvania Supreme Court held that a repealer could not deprive the defendant of a statutory exemption from liability existing at the time the cause of action accrued. In Rebel v. Standard Sanitary Manufacturing Co., 340 Pa. 313, 16 A.2d 534 (1940), it was held that a worker who claimed that he contracted an occupational disease as the result of an employer's

[ 46 Pa. Commw. Page 17]

    failure to comply with an Act of Assembly requiring safety devices could not be deprived of his vested right to recover by repeal of the act.

Of course, the cases just referred to are absent the crucial circumstance present in this case that the defendant is a state in which, at the time of the events constituting the plaintiff's cause or right of action, the doctrine of sovereign immunity, both as a common law principle and by constitutional limitation,*fn9 was in full force and effect. The circumstance is crucial because decisions before and after November 1970, when the instant plaintiff was injured, invoke the bar of sovereign immunity in terms which clearly negate the possession by the plaintiff of any right or interest whatsoever, much less the vested cause of action, the vested right of action or the property interest to which plaintiff here lays claim. In Collins v. Commonwealth, 262 Pa. 572, 106 A. 229 (1919), the Pennsylvania Supreme Court said that the Commonwealth "cannot be sued" for a tort of its employee. In Merchants' Warehouse Company v. Gelder, 349 Pa. 1, 36 A.2d 444 (1944), it was said that the absence of the Commonwealth's consent to being sued would cause there to be "no forum" for the claim sued on. In Meagher v. Commonwealth, 439 Pa. 532, 266 A.2d 684 (1970), decided a few months before the accident in which the plaintiff here was injured, the Pennsylvania Supreme Court affirmed an order of the trial court sustaining a demurrer to the plaintiff's complaint in trespass, with the observation that it failed to state a claim upon which relief could be granted because it was directed against the Commonwealth. In Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973), the Pennsylvania Supreme

[ 46 Pa. Commw. Page 18]

Court referred to the effect of the bar of the state's immunity as creating the result "that no suit may be maintained against the state in tort."

It is manifest that the plaintiff, who as the cases just referred to say, could not sue, was without a forum, was unable to state a claim upon which a relief could be granted and could not maintain a suit, was not possessed of any vested cause of action, vested right of action or other interest entitled to the protection of the constitutional provisions she invokes. Not only the terms in which the doctrine, until abrogated in Mayle, supra, was described, but practice, demonstrated that a claim against the State founded in tort was a nullity. Suits asserting such were dismissed upon preliminary objections in the nature of a demurrer for failure to state a cause of action. It can therefore be truly said that there was no cause of action or right of action against the state.

The plaintiff has not therefore carried the heavy burden laid upon all suitors so asserting, of demonstrating that the legislation complained of clearly, palpably and plainly violates the constitution. Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975).

Our holding is in agreement with those made by other courts which have considered the issue. In Palmer v. Penn-Ohio Road Materials, Inc., 462 F. Supp. 312 (W.D. Pa. 1978), the plaintiff made the same claim of a vested right arising out of a pre- Mayle, pre-Act 152 injury as that made here. The Court held that the plaintiff had no cause of action on the date of the injury, so that none was abrogated. After the Supreme Court of California held in Muskopf v. Corning Hospital District, 359 P.2d 457 (1961), that governmental immunity could not be invoked as a defense to actions to receive damages for injuries resulting from torts of public employees, the California Legislature enacted moratorium legislation and

[ 46 Pa. Commw. Page 19]

    thereafter comprehensive laws dealing with governmental immunity. This legislation retroactively affected the claim of Shirley M. Hawley against the County of Los Angeles for injuries allegedly resulting from the negligence of County employees. In County of Los Angeles v. The Superior Court of Los Angeles, 402 P.2d 868 (1965), the California Supreme Court was faced with Mrs. Hawley's contention that the legislation could not be retroactively applied to her claim and, by Chief Justice Traynor, disposed of it in the following fashion:

Mrs. Hawley contends, however, that the 1963 legislation cannot be applied retroactively to restrict the county's liability under Muskopf. She contends that although the Legislature can retroactively abrogate rights provided by statute, it cannot retroactively change the common law to abrogate a 'vested right'. . . . We find no constitutional basis for distinguishing statutory from common-law rights merely because of their origin . . . , and describing a right as 'vested' is merely conclusory. . . . We must consider instead the reasons advanced to justify retroactive application of a statute to determine if it is constitutionally permissible. Although the Legislature normally legislates prospectively, it can provide for retroactive application of a statute if it has a reasonable basis for doing so. Here, the Legislature responded to this court's abrogation of the common-law doctrine of governmental immunity by enacting comprehensive legislation to govern the liability of ...

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