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FRANCESCO v. WHITE TIGER TRANSP. CO.

January 28, 1988

Joseph Francesco, Plaintiff
v.
White Tiger Transportation Company, Inc., Defendant v. Commonwealth of pennsylvania, Department of Transportation, Third Party Defendant; Beverly Francesco, Plaintiff v. White Tiger Transportation Company, Inc., Defendant v. Commonwealth of Pennsylvania, Department of Transportation, Third Party Defendant



The opinion of the court was delivered by: CONABOY

 Richard P. Conaboy, United States District Judge

 Presently before this Court is a motion to dismiss filed by the Commonnwealth of Pennsylvania in the above-captioned matters. A brief in opposition has been filed by Defendant/Third Party Plaintiff, White Tiger Transportation Company, Inc. (White Tiger) and this matter is ripe for our review. For the reasons stated below, we shall grant the Commonwealth's motion to dismiss, and further order that Francesco v. White Tiger Transportation Company, Inc., Civil No. 87-0168 be consolidated with Francesco v. White Tiger Transportation Company, Inc., Civil No. 87-0167. See Fed.R.Civ.P. 42(a).

 Procedural History

 Joseph Francesco filed this action on February 3, 1987, alleging negligence on the part of Defendant White Tiger in the operation of a tractor trailer.

 An answer was filed on May 7, 1987, by White Tiger. On October 6, 1987, Defendant White Tiger obtained leave of court to join the Commonwealth of Pennsylvania as a Third Party Defendant pursuant to Rule 14(a) of the Federal Rules of Civil Procedure.

 Upon receiving Defendant/Third-Party Plaintiff White Tiger's complaint, the Commonwealth filed a motion to dismiss on November 24, 1987, which is currently under consideration.

 Statement of Facts

 It is alleged that on August 30, 1985, Joseph and Beverly Francesco were involved in an auto accident on Interstate Route 380 in Roaring Brook Township, Lackawanna County, Pennsylvania. Plaintiff contends Defendant/Third Party Plaintiff's employee lost control of his tractor trailer and struck the Francescos' vehicle twice from behind. Plaintiff Francesco claims that the cause of the accident was the negligent operation of Defendant/Third Party Plaintiff's truck. Defendant/Third Party Plaintiff, in its third party complaint, asserts that the accident occurred from the negligent posting of warning signs at a highway construction or repair area on the part of the Third Party Defendant, Commonwealth of Pennsylvania, Department of Transportation.

 Discussion

 In response to White Tiger's third party complaint, the Commonwealth of Pennsylvania asserts its right to sovereign immunity under the Eleventh Amendment to the United States Constitution. That amendment provides, in relevant part:

 
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.

 It applies only to bar a suit against the state in federal court. Whether a state may be sued in its own state courts is a matter of its own state law. Skehan v. Board of Trustees of Bloomsburg State College, et al., 669 F.2d 142, 147 (3d Cir. 1982). Though this amendment is not literally applicable to a suit against a state by its own citizens, an unconsenting state is immune, under constitutional constraints on the exercise of federal judicial power, from suits brought in federal courts by its own citizens as well as by citizens of another state. See Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Employees v. Department of Public Health and Welfare of Missouri, et al., 411 U.S. 279, 36 L. Ed. 2d 251, 93 S. Ct. 1614 (1973). The Commonwealth argues that it has not waived its sovereign immunity and therefore dismissal is in order on jurisdictional grounds.

 In their response to the Commonwealth's motion to dismiss, White Tiger claims that the Commonwealth's receipt of federal monies from the Federal Highway Administration caused it to waive its immunity defense. Such an assertion, however, is in direct conflict with stated case law. See, e.g., Edelman v. Jordan, 415 U.S. 651, 671-74, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) (no waiver by mere participation in federal welfare programs); Daye v. Commonwealth of Pennsylvania, 483 F.2d 294, 298 (3d Cir. 1973), cert. denied, 416 U.S. 946, 94 S. Ct. 1956, 40 L. Ed. 2d 298 (1974) (no waiver based on mere acceptance of funds by the Commonwealth under the Federal-Aid Highway Act). Goad v. Commonwealth of Pennsylvania, 530 F. Supp. 342, 344 (W.D. Pa. 1981) (rejection of claim that Pennsylvania Department of Transportation is an alter ego of the state and thus immune from suit); Skrbina v. Pennsylvania Department of Highways, 468 F. Supp. 215, 218 (W.D.Pa. 1979) (state must clearly and explicitly waive its immunity to suit in federal court). See also Skehan v. Board of Trustees of Bloomsburg State College, et al., 669 F.2d 142, ...


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