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decided: November 6, 1981.


No. 152 W.D. Misc. Dkt. 1980, Assumption of Plenary Jurisdiction by the Supreme Court of Pennsylvania by Order dated September 2, 1980 over Complaint in Trespass and Preliminary Objections now pending in the Court of Common Pleas of York County at No. 79-S-1326 -- Civil Action.


Charles E. Evans, Sikov & Love, Pittsburgh, for petitioner-plaintiff.

Lee C. Swartz, Harrisburg, for amicus curiae Pa. Trial Lawyers Assn.

Lewis H. Markowitz, Marc G. Tarlow, York, Leroy Zimmerman, Atty. Gen., for York County.

Marvin A. Fein, Associate City Sol., City of Pittsburgh, Pittsburgh, for intervenor.

Thomas L. Wenger, Wix, Wenger & Weidner, Harrisburg, for Pa. League of Cities, Pa. Municipal Authorities Ass'n, Pa. School Boards Ass'n, Pa. State Ass'n of Boroughs, Pa. State Ass'n of Tp. Com'rs, Pa. State Ass'n of Tp. Sup'rs, Pa. State Ass'n of County Com'rs, amicus curiae.

Alan J. Davis, City Sol., Judith N. Dean, Deputy City Sol., T. Michael Mather, Philadelphia, for City of Philadelphia, amicus curiae.

O'Brien, C. J. and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Larsen, J., files a dissenting opinion in which Flaherty and Kauffman, JJ., join. Kauffman, J., filed a dissenting opinion in which Larsen and Flaherty, JJ., join.

Author: Roberts

[ 496 Pa. Page 365]


At issue on this appeal is the constitutionality of the Political Subdivision Tort Claims Act*fn1 enacted five years after this Court abrogated the judicially created doctrine of governmental immunity. See Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). With the exception of eight areas of activity, not including the activity giving rise to the present action, the Act reinstates the immunity of political subdivisions from suit.*fn2

Plaintiff Nancy D. Carroll filed wrongful death and survival claims in the Court of Common Pleas of York County seeking to recover for the death of her son, Craig S. Breeswine. Decedent committed suicide on February 14, 1979 while in the custody of the York County Detention Home. Plaintiff alleges that Detention Home officials negligently contributed to the death of decedent by placing him in an isolated, inadequately supervised area, even though they knew of decedent's depressed emotional condition and his previous suicide attempt at the Detention Center. Defendant,

[ 496 Pa. Page 366]

County of York, filed preliminary objections to the complaint, asserting immunity from suit under the provisions of the Political Subdivision Tort Claims Act. Plaintiff responded by challenging the constitutionality of the Act. Before the trial court entered a determination, plaintiff petitioned this Court for the assumption of plenary jurisdiction. We granted the petition.*fn3 See 42 Pa.C.S. ยง 726.

Because we conclude that plaintiff's challenges to the constitutionality of the Act are without merit, we sustain the defendant's preliminary objections and dismiss plaintiff's complaint.

The first sentence of Article I, Section 11 of the Pennsylvania Constitution provides:

"All courts shall be open, and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay."

Plaintiff relies on this first sentence to argue that, by prohibiting a tort victim from successfully suing the Commonwealth, the Act unconstitutionally "closes" the courts to potential plaintiffs by denying them a "remedy by due course of law."

Plaintiff's argument, based solely on the first sentence of Article I, Section 11, completely ignores the concluding sentence of that section:

"Suits may be brought against the Commonwealth in such manner and in such cases as the Legislature may by law direct."

This concluding sentence of Article I, Section 11 is an integral, unequivocal and controlling portion of the Constitutional provision upon which plaintiff would rely.

In 1978, this Court discussed the relationship between Article I, Section 11 and the doctrine of sovereign immunity:

[ 496 Pa. Page 367]

"[W]e now believe that this constitutional provision does not forbid judicial abrogation of the doctrine. Rather, 'The Constitution is . . . neutral -- it neither requires nor prohibits sovereign immunity.' It merely provides that the presence or absence of sovereign immunity shall be decided in a non-constitutional manner . . . ."

Mayle v. Pennsylvania Dep't of Highways, 479 Pa. 384, 400, 388 A.2d 709, 716 (1978). Thus, while the Framers of Article I, Section 11 did not intend to grant constitutional immunity to the Commonwealth, they

"intended to allow the Legislature if it desired, to choose cases in which the Commonwealth should be immune . . . ."

479 Pa. at 400, 388 A.2d at 717. Surely the Legislature's authority "to choose cases in which the Commonwealth should be immune" encompasses political subdivisions. It is axiomatic that

"'[m]unicipal corporations are agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined by the Legislature and subject to change, repeal or total abolition at its will.'"

City of Pittsburgh v. Commonwealth of Pennsylvania, 468 Pa. 174, 179, 360 A.2d 607, 610 (1976), quoting Commonwealth v. Moir, 199 Pa. 534, 541, 49 A. 351, 352 (1901). Consistent with Mayle, the conferring of tort immunity upon political subdivisions is within the scope of the Legislature's authority pursuant to Article I, Section 11.

Nonetheless, plaintiff maintains that the Political Subdivision Tort Claims Act creates arbitrary and irrational classifications. Plaintiff seizes upon language in Ayala, supra, where this Court stated:

"We conclude that no reasons whatsoever exist for continuing to adhere to the doctrine of governmental immunity. Whatever may have been the basis for the inception of the

[ 496 Pa. Page 368]

    doctrine, it is clear that no public policy considerations presently justify its retention."

453 Pa. at 592, 305 A.2d at 881.

Plaintiff's reliance on Ayala is misplaced. This Court has repeatedly emphasized the fundamental distinction between the abrogation of a judicially created doctrine, as in Ayala, and the review, as here, of an act of the Legislature. As this Court stated in Ayala,

"the doctrine of governmental immunity -- judicially imposed -- may be judicially dismantled . . . .: the controverted rule . . . is not the creature of the Legislature. This Court fashioned it, and, what it put together, it can dismantle."

453 Pa. at 600, 305 A.2d at 885, quoting Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 503, 208 A.2d 193, 202 (1965) (emphasis added in Ayala). So too, in Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981), where this Court recently abrogated inter-spousal immunity, the primary issue was whether the Legislature had intended to create the immunity. There was no serious question that, absent a controlling statute, this Court could and should abrogate the doctrine.

This Court has frequently recognized that the Legislature may permissibly limit liability on the basis of a defendant's status. For example, in Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899 (1955), this Court found no violation of Article I, Section 11, where a statute denied a remedy in tort to all victims of negligent trespass to personal property which occurred while the property was in the care of an innkeeper even though the same negligent trespass by an owner of an apartment house or an apartment building would have given rise to liability. So too, in Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978), our Court found no constitutional violation where the Legislature had provided that tort liability of architects and builders ...

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