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Toombs v. Manning

filed: December 11, 1987.


On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. No. 85-0075.

Gibbons, Chief Judge, Seitz, Weis, Higginbotham, Sloviter, Becker, Stapleton, Mansmann, Greenberg, Hutchinson, Scirica and Garth,*fn* Circuit Judges.

Author: Garth


Garth, Circuit Judge:

The primary issue we confront on this appeal is whether the defendant, the Southeastern Pennsylvania Transportation Authority (SEPTA), is a Commonwealth party within the ambit of the sovereign immunity statute enacted by the Pennsylvania General Assembly in 1978. Both the plaintiff, Harold T. Toombs, and the defendants (SEPTA and two of its employees) appeal from a district court judgment of $284,314.64 in favor of Toombs.

Toombs contends that the district court erred when, in accordance with the 1978 limited immunity statute, it reduced the original jury verdict of $1,000,000 to $250,000 plus delay damages. The defendants assert that they are fully immune under the sovereign immunity statute, and are therefore entitled to judgment as a matter of law. Moreover, they contend that the assessment of delay damages was improper.

We hold that the district court correctly decided that SEPTA was a "Commonwealth party" within the meaning of the sovereign immunity statute, and that judgment in favor of Toombs was properly molded to reflect the statutory cap. We will remand for the district court to hold a Craig*fn1 hearing on the question of delay damages.


These appeals arise out of a negligence action brought in January of 1985 by Harold Toombs against SEPTA and two of its employees, Sylvester Manning, a station cashier, and James Brown, a subway trainman. Toombs claimed damages for injuries incurred in an accident while he was waiting for a train on a SEPTA platform.

The accident occurred in the early morning hours of January 8, 1983, when Toombs entered the underground Broad Street and Allegheny Avenue station. While waiting on the subway platform, Toombs was approached by two men who demanded that Toombs give them money. Toombs refused and an argument ensued. At the time the argument began, the three men were out of the defendant Sylvester Manning's line of vision from his cashier's booth. For about ten to twelve minutes, the two men harassed Toombs.

Eventually, Toombs and his two assailants came within the sight of Manning in his booth and Manning asked Toombs whether he was all right. Toombs was standing near the edge of the platform, facing Manning. The two men who were harassing Toombs had their backs to Manning, and Manning could se that one of the men was holding a knife behind his back. When Manning left the booth to see what was happening, one of the men harassing Toombs told Manning that he was going to punch Toombs in the mouth. Manning then quickly returned to the booth to let someone through the turnstile.

Manning chose not to summon the police to resolve the argument. There were three ways in which Manning could have summoned aid: (1) by switching on a light at street level to alert the police; (2) by telephoning the SEPTA dispatcher; (3) or by sounding an alarm on the platform itself. Manning testified at trial that there were several loud arguments each night on the station platform, and that he usually tried to handle them himself. He stated that when he had summoned the police in the past they did not arrive in time. Moreover, he claimed that the argument only became serious as the train pulled into the station, and that by then there was not time to call for help.

When Manning returned to his booth, a train, driven by the defendant James Brown, approached the station. Toombs turned to look at the incoming train and the larger of the two men punched him in the face. Toombs, with his hands covering his face, stumbled down into the path of the train. When Brown saw Toombs, he applied the train's brake, and the train stopped in its usual position, but not before it had struck Toombs.

Toombs incurred serious injures as a result of the accident. He was comatose for several weeks, and spent two months in the hospital. He has been in the hospital for several prolonged periods, primarily for treatment of chronic osteomyelitis of his left tibia. Since the accident, Mr. Toombs has been unable to work.

On May 21, 1986, the jury returned a verdict in favor of Toombs, finding Manning 80 % responsible for the accident and Brown 20 % responsible for the accident. Two days later the jury found Toombs' damages to be $1,000,000. On May 27, 1986, judgment in the amount was entered.

Following the entry of judgment for $1,000,000, several post-trial motions were filed. SEPTA filed a motion for judgment notwithstanding the verdict, a motion for a new trial, and a motion to amend the judgment. Toombs filed a motion to amend the judgment to include delay damages. On July 29, 1986, the district court denied SEPTA's motions for a new trial and judgment notwithstanding the verdict, but granted its motion to amend the judgment. Toombs' motion to amend the judgment to include delay damages was also granted. As a result, judgment was entered in the amount of $284,314.64 -- $250,000 representing the maximum damages permitted under the sovereign immunity statute's cap on damages and $34,314.64 representing delay damages.

The memorandum opinion accompanying the district court's rulings on the post-trial motions sets out its reasons for reducing the size of the jury award. First, the district court held that SEPTA was a "Commonwealth party" within the meaning of the Pennsylvania sovereign immunity statute. 42 Pa. Cons. Stat. Ann. § § 8521-8528 (Purdon 1982). In reaching this conclusion, the district court relied heavily upon Feingold v. Southeastern Pennsylvania Transportation Authority, 339 Pa. Super. 15, 488 A.2d 284 (1985) which has since been affirmed by the Pennsylvania Supreme Court. Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986).

Second, the district court held that SEPTA, as a Commonwealth party, could be liable only if the facts underlying Toombs' cause of action came within one or more of the eight exceptions found in the sovereign immunity statute. 42 Pa. Cons. Stat. Ann. § 8522 (Purdon 1982). The district court concluded that Toombs' suit fell within one of these exceptions to immunity: the vehicular liability exception. Because a successful plaintiff's damages are capped at $250,000 under the statute, the district court reduced Toombs' damage judgment, and, without holding a hearing, added delay damages under Rule 238 of the Pennsylvania Rules of Civil Procedure.

SEPTA made many of the same arguments in its post-trial motions as it now urges in this appeal.*fn2 SEPTA also argued that it was immune from any damage judgment because Toombs' action did not come within any of the exceptions to the sovereign immunity statute. The district court rejected all of SEPTA's claims including its argument that delay damages had to be included within the $250,000 cap on damages. These appeals followed.*fn3


In this diversity case, we face the difficult task of predicting how the Pennsylvania Supreme Court would view the applicability of the Pennsylvania sovereign immunity statute to SEPTA. Based upon our historical analysis of sovereign immunity in Pennsylvania, as well as SEPTA's statutory history and the recent Pennsylvania Supreme Court decision of Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986), we hold that SEPTA is a Commonwealth party within the meaning of the 1978 Pennsylvania sovereign immunity statute.


The Pennsylvania Supreme Court abolished governmental immunity in the 1973 decision Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). The Court's abrogation of sovereign immunity came a few years later in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). Following Mayle, in September of 1978, the Pennsylvania General Assembly enacted a limited statutory sovereign immunity scheme. Act of Sept. 28, 1978, P.L. 788, No. 152 (codified as amended at 42 Pa. Cons. Stat. Ann. § § 8521-8528 (Purdon 1982)).

The 1978 Act was repealed in 1980 and reenacted as amended by the Act of October 5, 1980, P.L. 693, No. 142, § 221(g). The 1980 Act included a sovereign immunity statute and a statutory governmental immunity scheme for "local agencies,"*fn4 42 Pa. Cons. Stat. Ann. § § 8541-8553*fn5 -- both of which were substantially identical in substance to the 1978 Acts. These statutes recreated the immunity that state and local entities had enjoyed prior to abrogation of common-law immunity, but allowed to recovery of compensatory damages in certain situations. Because the 1980 amendments reflect no substantive differences from the original 1978 enactments, unless otherwise stated, our references will be to the 1978 Act, as currently codified, throughout this opinion.

The legislature set out the intended scope of the sovereign immunity statute in section one of the 1978 Act:

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 ad directed by the provisions of Title 42 (relating to judiciary and judicial procedure) unless otherwise specifically authorized by statute.

1 Pa. Cons. Stat. Ann. § 2310 (Purdon Supp. 1987) (Act of Sept. 28, 1978, P.L. 788, No. 152, § 1) (emphasis added). Thus the new statute ensured that all claims against the Commonwealth of Pennsylvania would be controlled by one statutory immunity scheme unless particular legislation specifically authorized otherwise.

The "revival" of sovereign immunity by the 1978 legislation brought into question the validity of earlier enactments which had waived sovereign immunity for certain state entities. Section 4 of the 1978 Act dealt with the problem of existing statutes which waived sovereign immunity in a manner inconsistent with the provisions of the Act. Subsection (a) provided that "the provisions of the following acts, and all other acts and parts of acts, are repealed insofar as they waive or purport to waive sovereign immunity inconsistent with this act, but are saved from repeal insofar as they provide defenses or immunities from suit." Act of Sept. 28, 1978, P.L. 788, No. 152, § 4(a).*fn6 Subsection (b) of section 4 of the 1978 Act clarified the legislature's intention that any statutory provisions conflicting with a new statutory sovereign immunity scheme were repealed: "Except as provided in subsection (a), all other acts and parts of acts are repealed insofar as they are inconsistent with this act." Id. § 4(b).

These portions of the 1978 Act clearly indicate that the new statutory sovereign immunity, as set out in 42 Pa. Cons. Stat. Ann. § 8521-8528 (Purdon 1982), was to protect every stat agency, even if an agency's sovereign immunity had been previously waived by the state. The result was a statutory scheme which applied uniformly to all stat agencies.*fn7 It provided that liability could be found only if an action fell within one of the eight exceptions set out in the statute: 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 activities. Id. § 8522(b)(1)-(8).

The 1978 statute extended sovereign immunity to all "Commonwealth parties" defined in the statute as "Commonwealth agenc[ies] and any employee thereof, but only with respect to an act within the scope of his office or employment." Id. § 8501. The legislative history for the sovereign immunity statute noted that the term "Commonwealth agency" is defined in 42 Pa. Cons. Stat. Ann. § 102 as "any executive agency or independent agency." 42 Pa. Cons. Stat. Ann. § 102; see General Assembly of the Commonwealth of Pennsylvania, Joint State Government Commission, Sovereign Immunity 11 n.2 (1978) [hereinafter Sovereign Immunity ]. Section 102 also defines both "executive agency"*fn8 and "independent agency."*fn9

The definition of independent agency is more relevant to our immunity analysis, because the Pennsylvania Turnpike Commission, which was considered non-immune from tort of liability under common law, see Specter v. Commonwealth, 462 Pa. 474, 341 A.2d 481 (1975), is now included within the definition as an independent agency within the protection of the 1978 immunity statute. Indeed, the legislative history for the 1978 Act specifically noted that the Pennsylvania Turnpike Commission is an "independent agency" within the meaning of the statute. Sovereign Immunity, supra, at 11 n.2.

The significance to our analysis of the legislature's inclusion of the Pennsylvania Turnpike Commission as an immune agency is that it is clear that the General Assembly intended to provide sovereign immunity protection not only for those entities which before Mayle had been immune as sovereigns, but also for those entities not previously immune, but which now came within the statute's scope.*fn10

Nothing in the 1978 Act's legislative history indicates that previously non-immune entities (such as SEPTA) were not to be covered by the immunity provided by the 1978 legislation. Indeed, the attempt by Chief Judge Gibbons in dissent to argue otherwise, by referring to Pennsylvania Governor Shapp's September 28, 1978 statement when the Governor approved the 1978 legislation, is unavailing. (See dissent typescript at p.5).

In reproducing Governor Shapp's statement, the dissent has deleted a significant portion thus changing the entire meaning of the statement. The deleted portion not included by the dissent reads:

The full statement made by Governor Shapp discloses clearly that the Governor was not referring to a distinction between formerly immune and formerly non-immune entities. Rather, the statement in context reveals that § 5 of the Act was designed, and was understood by the Governor, to provide a grace period for causes of action that had not, but could have been, brought prior to the passage of the Act, but which were barred by the passage of the Act. The underlined portions of the Governor's statement which follow, provide ample proof that the dissent's interpretation of the statement, and thus its argument made in reliance on that statement, is flawed. The relevant complete portion of the Governor's statement reads as follows:

It is my intention in approving this act that section 5 (construction and application) shall have general retroactive effect; and in particular it is the specific intent that:

Governor's Message in Approving Act of September 28, 1978, Pub. L. 788, No. 152 (emphasis added).

Thus, when considered in full context, Governor Shapp's statement does not support the dissent's thesis that the 1978 Act provided no immunity for SEPTA.


Commonwealth parties are subject to suit if the actions charging them with liability fall within one or more of the eight exceptions listed in 42 Pa. Cons. Stat. Ann. § 8522(b). Any recovery under these exceptions is limited by a cap on damages. The damage limitation for Commonwealth parties provides that "damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $250,000 in favor of any plaintiff or $1,000,000 in the aggregate." 42 Pa. Cons. Stat. Ann. § 8528(b) (Purdon 1982).*fn11


The question thus arises: is SEPTA a "Commonwealth party?" We can look to many sources, but the logical place to start is the statute which created SEPTA.

SEPTA is a regional transportation authority serving five communities in the Philadelphia metropolitan area. It was created by the Pennsylvania General Assembly under the Metropolitan Transportation Authorities Act of 1963 for the purpose of improving the existing uncoordinated and inefficient mass transportation system. Act of August 14, 1963, P.L. 984, No. 450 (codified as amended at 66 Pa. Cons. Stat. Ann. § § 2001-2043 (Purdon Supp. 1975) (repealed 1980)), reenacted and codified at 55 Pa. Cons. Stat. Ann. § § 600.301-.407. (Purdon Supp. 1987). SEPTA currently operates under the Pennsylvania Urban Mass Transportation Law. 55 Pa. Cons. Stat. Ann. § ...

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