Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



decided: June 2, 1980.


No. 155 March Term, 1979, No. 156 March Term, 1979, No. 157 March Term, 1979, No. 161 March Term, 1979, No. 172 March Term, 1979., Appeals from the Orders of the Commonwealth Court of Pennsylvania, entered on September 25, 1979 at Nos. 1594, 1644, 1669, 1693 and 2317 C.D. 1978.


John E. Evans, Jr., Pittsburgh, for appellants.

Herbert L. Olivieri, Chief, Torts Litigation Unit, John L. Sweezy, Harrisburg, for Com. and Dept. of Environmental Resources.

W. Arch Irvin, Jr., Wayman, Irvin & McAuley, Pittsburgh, for Gannett, Fleming, Corddry & Carpenter, Inc. amicus curiae in support of appellants.

Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, Johnstown, for Laurel Management Co. amicus curiae.

Frederick N. Egler, Egler & Reinstadtler, Pittsburgh, Samuel R. DiFrancesco, Jr., William G. Barbin, Gleason, DiFrancesco, Shahade & Markovitz, Johnstown, for Greater Johnstown Water Authority, amicus curiae.

Roberts, Justice. Larsen, J., joins in this opinion and files a concurring opinion. Flaherty, J., joins in the concurring opinion of Larsen, J., and in this opinion. Eagen, C. J., and O'Brien and Nix, JJ., dissent.

Author: Roberts

[ 490 Pa. Page 158]


This court abrogated sovereign immunity on July 14, 1978, in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), application for reargument denied, 479 Pa. 411, 390 A.2d 181 (1978). Thereafter the Legislature promulgated Act 152 creating, for the first time in Pennsylvania, statutory sovereign immunity. Act of September 28, 1978, P.L. 788, §§ 1 et seq. This case presents the question of whether it is constitutional to apply Act 152 to causes which became actionable prior to the Act. Because we conclude that Act 152 may not constitutionally govern such actions, this Court reverses the orders of the Commonwealth Court dismissing the present consolidated case, and remands for proceedings consistent with this opinion.

Laurel Run Dam No. 2 flooded Tanneryville, Pennsylvania during a heavy rainstorm on July 20, 1977. Between July 11 and October 4, 1978, appellants filed in Commonwealth Court five separate actions in trespass against appellees Department of Environmental Resources and the Commonwealth, alleging that appellees' negligent supervision of the dam caused the flood and resulting loss of life, limb, and

[ 490 Pa. Page 159]

    property.*fn1 The court consolidated the actions. See Pa.R.Civ.P. 213(a). By preliminary objection, appellees moved to dismiss the actions on the ground that appellees were immune from suit under Section 2 of Act 152, 42 Pa.C.S. § 5110.*fn2 The Commonwealth Court granted the motion, holding that Act 152 applied to appellants' actions, that those actions did not fall within any of the eight exceptions to sovereign immunity enumerated in the Act, and that such application did not violate any constitutional guarantees.*fn3 This appeal followed.

[ 490 Pa. Page 160]

Section 5 of Act 152 expressly manifests the Legislature's intention to apply the Act to claims, like those of appellants, which arose before the Act's promulgation. Compare Political Subdivision Tort Claims Act, Act of November 26, 1978, P.L.1399, § 803, 53 P.S. § 5311.803 (statutory tort immunity of political subdivisions applies only to causes of action arising sixty days after enactment). Appellants here concede that application of Act 152 to their actions would completely extinguish their remedy for appellees' alleged negligence. Appellants claim, however, that such elimination of remedy would violate Article I, section 11 of the Pennsylvania Constitution and the Fourteenth Amendment

[ 490 Pa. Page 161]

    of the United States Constitution because appellants' rights of action accrued prior to the Act. We agree.

It is well-settled that the Legislature may not extinguish a right of action which has already accrued to a claimant. This Court has consistently held that the Legislature's repeal of a law which created a right of action does not disturb any actions accrued thereunder:

"There is a vested right in an accrued cause of action . . . . A law can be repealed by the law giver; but the rights which have been acquired under it, while it was in force, do not thereby cease. It would be an absolute injustice to abolish with the law all the effects it had produced. This is a principle of general jurisprudence; but a right to be within its protection must be a vested right."

Lewis v. Pennsylvania R. R. Co., 220 Pa. 317, 324, 69 A. 821, 823 (1908) (quotations omitted); see Rebel v. Standard Sanitary Mfg. Co., 340 Pa. 313, 319, 16 A.2d 534, 537-38 (1940); Commonwealth ex rel. Margiotti v. Cunningham, 337 Pa. 289, 301-02, 10 A.2d 559, 563-64 (1940); accord, Creighan v. Pittsburgh, 389 Pa. 569, 574, 132 A.2d 867, 870 (1957); Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960).

The separation of powers doctrine suggests a fortiori that the Legislature may not disturb actions which have accrued under the Judiciary's authority. See Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193 (1971). As this Court has explained:

"In the very nature of things, a law that is enacted after the case has arisen can be no part of the case. Such a law can have only a forced and unnatural relation to the case, and must produce an untrue decision; a decision, not of the case arising between the parties, as it ought to be, but of a case partly created by the legislature.

When, therefore, the constitution declares that it is the exclusive function of the courts to try private cases of disputed right, and that they shall administer justice 'by the law of the land,' and 'by due course of law,' it means to say, that the law relating to the transaction in controversy,

[ 490 Pa. Page 162]

    at the time when it is complete, shall be an inherent element of the case, and shall guide the decision; and that the case shall not be altered, in its substance, by any subsequent law."

Menges v. Dentler, 33 Pa. 495, 498-99 (1859); see Kay v. Pennsylvania, 65 Pa. 269, 277 (1870); Commonwealth v. Sutley, 474 Pa. 256, 263, 378 A.2d 780, 783 (1977).

This established view is consistent with federal decisional law which squarely holds that a legislature may not constitutionally eliminate in toto a remedy, whether judicially or legislatively created, which has already accrued. See Ettor v. Tacoma, 228 U.S. 148, 33 S.Ct. 428, 57 L.Ed. 773 (1913); Forbes Pioneer Boat Line v. Board of Comm'rs, 258 U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647 (1922) (Holmes, J.); Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934) (Brandeis, J.); W. B. Worthen Co. ex rel. Bd. of Comm'rs v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed. 1298 (1935) (Cardozo, J.); accord, United States Trust Co. v. New Jersey, 431 U.S. 1, 26-7, 97 S.Ct. 1505, 1520, 52 L.Ed.2d 92 (1977). As Chief Justice Marshall wrote, "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 5 U.S. (1 Cranch) 87, 102, 2 L.Ed. 60 (1803).

A tort cause of action generally accrues on the date of the accident or injury. See Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960); Rebel v. Standard Sanitary Mfg. Co., 340 Pa. 313, 16 A.2d 534 (1940); see generally Bell v. Koppers Co., Inc., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978) (procedural rules apply to cases filed after effective dates; substantive rights are governed by law in effect at time causes of action accrue). Although tort claims against the Commonwealth were not actionable before our decision in Mayle, see e. g. Meagher v. Commonwealth, 439 Pa. 532, 266 A.2d 684 (1970), Mayle allowed such suits to be maintained. Appellees contend that Mayle should not be applied "retrospectively" to claims such as these which arose before the decision in Mayle. We cannot agree. Fully applying

[ 490 Pa. Page 163]

Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (decision striking down bond law applied in limited fashion to avoid "injustice or hardship" to cities and bondholders); England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) (holding that state adjudication of federal claims is res judicata in subsequent federal court action applied in limited fashion to avoid undue prejudice to plaintiffs).

We see no reason here not to give Mayle full effect. First it must be obvious that application of Mayle to claims based on torts occurring prior to that decision will not unfairly prejudice the Commonwealth. It would be unrealistic to assume that the Commonwealth has committed torts in reliance upon case precedent granting it immunity. See R. Traynor, La Rude Vita, La Dolce Giustizia; Or Hard Cases Can Make Good Law, 29 U.Chi.L.Rev. 223, 231 (1962). In any event, we held in Mayle that considerations of fairness required the abrogation, not maintenance, of the sovereign immunity doctrine. There this Court rejected the argument that elimination of that doctrine would overburden the Commonwealth:

"[T]he Commonwealth has show no evidence that tort liability of a government or a public authority has ever resulted in either undue clogging of the courts or destabilization of government finances. Indeed, the Commonwealth admits it does not know what, if anything, will happen to court dockets and public finances if the immunity of the Commonwealth from tort liability is abolished. This sort of speculation cannot support a doctrine so 'plainly unjust . . . to persons injured by the wrongful conduct of the State [and which] [n]o one seems to defend . . . as fair.'

If anything, the information before us suggests that making governments liable for their torts will not substantially raise the costs of government or upset governmental financial stability. Certainly, the greatest threats to the financial stability of state and local governments in recent years have not concerned tort liability, but limitations

[ 490 Pa. Page 165]

    on taxing authority and liability on contractual obligations such as bonds and labor agreements. Further, because negligence involves the reasonableness of the actor's conduct, unreasonably expensive protective measures will not be required of governments any more than they are required of private parties. Welfare economic analysis suggests that government, if suable in tort, may become more efficient, although this improvement may not appear on its balance sheets as added assets or reduced liabilities."

Mayle v. Pennsylvania Dept. of Highways, supra, 479 Pa. at 394-95, 388 A.2d at 714.

Second, this Court has already applied Mayle to those cases pending in the courts on the date of the Mayle decision. E. g. Steinberg v. Commonwealth, Dept. of Public Welfare, 480 Pa. 321, 389 A.2d 1086 (1978); Grieser v. Commonwealth, Dept. of Transportation, 480 Pa. 447, 390 A.2d 1263 (1978); Tokar v. Commonwealth, Dept. of Transportation, 480 Pa. 598, 391 A.2d 1046 (1978); Dubree v. Commonwealth, 481 Pa. 539, 393 A.2d 293 (1978); Kenno v. Commonwealth, Dept. of State Police, 481 Pa. 562, 393 A.2d 304 (1978); Brungard v. Hartman, 483 Pa. 200, 394 A.2d 1265 (1978); Reinert v. Pennsylvania, Dept. of Transportation, 482 Pa. 612, 394 A.2d 490 (1978). There is no principled reason to discriminate now against appellants whose causes also accrued before Mayle, but whose complaints were filed post- Mayle.*fn5 Though the date of a complaint's institution is relevant to the tolling of a statute of limitations, it has no place in the determination of appellants' substantive rights. Significantly, both classes of suits affect the Commonwealth in equal measure, and therefore must be treated in like fashion. Applying Mayle, then, we hold that because appellants' claims accrued on July 20, 1977, these claims are free

[ 490 Pa. Page 166]

    from the subsequently enacted statutory bar of sovereign immunity.*fn6

The orders of the Commonwealth Court are reversed and the consolidated case is remanded for proceedings consistent with this opinion.

LARSEN, Justice, concurring.

I join Mr. Justice Roberts' opinion, however, I would go further and declare Act 152 unconstitutional.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.