waived the state's sovereign immunity by indemnifying NPHC for claims, liabilities, or obligations incurred prior to September 26, 1986.
After reviewing the provisions of the statute and agreement upon which the Third Party Plaintiff builds their case, we cannot agree that a clear and explicit waiver from suit in a federal court has been presented. To the contrary, Plaintiff, on the face of their brief, recognizes that "the state has impliedly consented to a third party action by the indemnified party seeking to enforce the indemnification agreement. . . ." Plaintiff's Brief in Opposition, Docket Item Number 14 at 7. Such a description, used by the Third Party Plaintiff's counsel, surely does not evidence the clear and explicit waiver required by developed case law. See Edelman, supra 415 U.S. at 673; Atascadero State Hospital v. Scanlon, 473 U.S. 234, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1985).
Plaintiff cites the case of Chicago & North Western Transportation Co. v. Hurst Excavating, Inc., 498 F. Supp. 1 (N.D. Iowa 1978), for the proposition that at least one federal court has held that an indemnification agreement constituted a waiver of a state's Eleventh Amendment immunity. A closer examination of that case, however, shows that it has been cited only once by another court which questioned the soundness of the Hurst decision. Prueitt v. Boone County, Iowa, et al., 599 F. Supp. 278, 281 (S.D. Iowa, 1984).
In the Pruitt case, the court found that a state's waiver of its sovereign immunity from suit for breach of contract did not constitute a waiver of its Eleventh Amendment immunity from suit in federal court. The court questioned the Hurst decision and applied what we feel is the more appropriate legal standard in light of Edelman [supra] and its progeny. See Skehan v. Board of Trustees of Bloomsburg State College, et al., 669 F.2d 142, 148 (3rd Cir. 1982); Skrbina v. Pennsylvania Department of Highways, 468 F. Supp. 215, 218 (W.D. Pa. 1979). Such a conclusion is in line with Defendant's contention that "the mere existence of an indemnification agreement does not give Northeastern the right to seek enforcement of that agreement in federal court." Defendant's Reply Brief, Docket Item #17 at 3.
It is clear to this court that the terms and conditions of the Divestiture Statute and Dispositive Agreement are grounds for waiver of the Commonwealth's sovereign immunity in state court, but they in no way implicate its right to immunity in federal court. We are unpersuaded by the Third Party Plaintiff's argument that the dismissal from this case of the Commonwealth will leave them without recourse. The pending suit before the Pennsylvania Board of Claims should resolve the issues involving the Commonwealth's obligations concerning the disputed lease.
Therefore, we shall grant the Third Party Defendant's motion to dismiss and, accordingly, an appropriate Order is attached.
NOW, this 11th day of February, 1988, IT IS HEREBY ORDERED THAT:
1. Third Party Defendant's motion to dismiss based on the Commonwealth's right to sovereign immunity is hereby granted.