The opinion of the court was delivered by: WILLIAM H. YOHN, JR.
Summary judgment is appropriate if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). The court does not resolve questions of disputed fact, but simply decides whether there is a genuine issue of fact which must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
SEPTA is an agency of the Commonwealth of Pennsylvania and as such is afforded the protection of sovereign immunity as articulated under Pennsylvania law.
See, Toombs v. Manning, 835 F.2d 453, 463 (3d Cir. 1987); Tulewicz v. Southeastern Pennsylvania Transp. Authority, 529 Pa. 588, 606 A.2d 427, 430 (1992).
Initially, the court must set out Pennsylvania's sovereign immunity law. The Pennsylvania statutes provide as follows:
§ 2310. Sovereign immunity reaffirmed; specific waiver
Pursuant to section 11 of Article I of the Constitution of Pennsylvania,
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 as 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 (Supp. 1992) (footnote added). As the Third Circuit noted, this "statute ensures that all claims against the Commonwealth of Pennsylvania [will] be controlled by one statutory immunity scheme unless particular legislation specifically authorizes otherwise." Toombs, 835 F.2d at 457.
Pennsylvania's statutory immunity scheme is set forth at 42 Pa. Cons. Stat. Ann. §§ 8521-8528 (1982). In section 8522, the General Assembly waives the sovereign immunity of Commonwealth parties in nine enumerated instances
involving "damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity." 42 Pa. Cons. Stat. Ann. § 8522(a).
Both parties agree that HSCA claims do not fall within the ambit of the sovereign immunity waiver set forth in section 8522. The sole issue presented to the court in SEPTA's motion is a question of law--whether HSCA contains a specific waiver of sovereign immunity as required by section 2310. Because the court finds that HSCA specifically waives the Commonwealth's sovereign immunity, the court must deny SEPTA's motion for partial summary judgment.