parties in federal court, even if the private party and
Defendant PennDOT are citizens of the same state, Pennsylvania.
The Eleventh Amendment's state sovereign immunity has long
been recognized to bar suits by citizens or foreign states
against non-consenting states brought in either state or federal
court. See Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144
L.Ed.2d 636 (1999); Seminole Tribe of Florida v. Florida,
517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Principality
of Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed.
1282 (1934); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33
L.Ed. 842 (1890). In addition, the Supreme Court "has
consistently held that an unconsenting State is immune from
suits brought in federal courts by her own citizens as well as
by citizens of another State." Edelman v. Jordan,
415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974).
Immunity extends to arms of the state, including a state's
department of transportation. See Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984);
C.H. ex. rel. Z.H. v. Oliva, 226 F.3d 198 (3d Cir. 2000);
Savory v. Kawasaki Motor Corp., U.S.A., 472 F. Supp. 1216, 1218
(E.D.Pa. 1979) (A "state's Eleventh Amendment immunity is not
limited solely to actions where the state is a party of record
but applies to cases involving agencies or instrumentalities
when the state is a real party in interest.").
Pennsylvania codified these principles in 42 Pa.C.S.A. § 8521
which provides for general immunity for the Commonwealth.
Additionally, the Pennsylvania legislature set forth nine
exceptions to the Commonwealth's sovereign immunity in
42 Pa.C.S.A. § 8522(b) as follows: (1) vehicle liability;*fn1
(2) medical-professional liability; (3) care, custody or control
of personal property; (4) Commonwealth real estate, highways and
sidewalks; (5) potholes and other dangerous conditions; (6)
care, custody or control of animals; (7) liquor store sales; (8)
National Guard activities; and (9) toxoids and vaccines. These
statutory exceptions must be strictly construed. See Marker v.
Corn., Dep't of Transp., 677 A.2d 345, 348 (Pa.Cmwlth. 1996).
"Only the sovereign's own consent could qualify the absolute
character of that immunity." Nevada v. Hall, 440 U.S. 410,
414, 99 S.Ct. 1182, 1185, 59 L.Ed.2d 416 (1979).
PennDOT, in asserting its Eleventh Amendment state sovereign
immunity, does not clarify if it raises this affirmative defense
as a lack of subject matter jurisdiction under Fed.R.Civ.P.
12(b)(1) or as a failure to state a claim upon which relief may
be granted under Fed.R.Civ.P. 12(b)(6).*fn2 Regardless, this
defense is appropriately raised at this point in the present
action. See Bell Atlantic-Pennsylvania, Inc. v. Pa. Pub. Util.
Comm'n, 107 F. Supp.2d 653, 659 (E.D.Pa. 2000) ("The Eleventh
Amendment . . . may be raised by a motion to dismiss.").
If Plaintiff asserted a claim under 42 U.S.C. § 1983 in his
complaint, as suggested by PennDOT, the Pennsylvania
Commonwealth Court decided that both the Eleventh Amendment's
state sovereign immunity and traditional state sovereign
immunity bars such suits against PennDOT.*fn3 See Rank v.
Balshy, 82 Pa. Commw. 362, 475 A.2d 182, 185 (1984). "The
Commonwealth of Pennsylvania has not waived its immunity in §
1983 civil rights cases and Congress did not abrogate state
immunity in general in enacting civil rights legislation,
including § 1983." O'Hara v. Ind. Univ. of Pa., 171 F. Supp.2d 490,
495 (W.D.Pa. 2001). Thus, Plaintiff cannot maintain a §
1983 action against PennDOT.
Further, given the facts presented by the Plaintiff to this
Court, Plaintiff cannot make out a claim against PennDOT under
any of the nine statutory exceptions to state sovereign immunity
enumerated in 42 Pa.C.S.A. § 8522. Consequently, Plaintiffs
complaint is dismissed against PennDOT.
III. PENNDOT IS NOT A PERSON UNDER § 1983 AND WAS NOT
PennDOT also claims that it is not a person subject to suit
under 42 U.S.C. § 1983, assuming that is the claim set forth by
Plaintiff in his complaint. Although we do not engage in a
detailed discussion of this issue, we note that the Supreme
Court "has construed the word `person' in § 1983 to exclude
States, [so that] neither a federal court nor a state court may
entertain a § 1983 action against such a defendant." Howlett v.
Rose, 496 U.S. 356, 376, 110 S.Ct. 2430, 2443, 110 L.Ed.2d 332
(1990). See also Will v. Michigan Dep't of State Police,
491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989).
Additionally, PennDOT asserts that Plaintiffs service of
process via mail and more than 120 days past the filing date is
not proper. Because we have determined that Plaintiff cannot
bring a claim against PennDOT due to state sovereign immunity,
we do not reach this issue.
An appropriate Order follows.
AND NOW, this 1st day of July, 2002, upon consideration of
Defendant Pennsylvania Department of Transportation's Motion to
Dismiss and Plaintiffs response thereto, it is hereby ORDERED,
in accordance with the foregoing Memorandum, that Plaintiffs
complaint against the Pennsylvania Department of Transportation