The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge
This is a wrongful death and survivorship case brought by the
decedent's parents against P.T. Lyons ("Lyons"), Lyon's employer,
Scientific Window Cleaners, Haverford Township and the Commonwealth of
Pennsylvania, Department of Transportation ("PennDOT"). PennDOT filed a
motion to dismiss, asserting Eleventh Amendment immunity.*fn1 The Court
will grant PennDOT's motion.
According to the complaint, on November 29, 2001, the decedent, Sophia
Devi Ali, was driving on Darby Road in Haverford Township, Pennsylvania.
Her car was struck by a vehicle driven by Lyons in the course of his
employment. Ms. Ali died as a result of the crash.
The plaintiffs assert wrongful death claims against both PennDOT and
Haverford Township, alleging both entities owned, controlled, maintained, supervised and had a duty to maintain
Darby Road. The road is alleged to have been improperly maintained and
inadequately posted with warning signs for speeding, slippery
conditions, hills, or curves. The plaintiffs also allege defective road
design against these defendants.
The complaint was originally filed in the United States District Court
for the Eastern District of New York in June 2003. The parties stipulated
to transfer the case to the Eastern District of Pennsylvania in November,
2003 without prejudice to the defendants' right to file motions to
dismiss on grounds other than venue. After transfer, PennDOT filed the
PennDOT argues that it is immune from suit in federal court under the
Eleventh Amendment of the United States Constitution. The Eleventh
Amendment bars suits in federal court that name the state as a
defendant. This immunity extends to suits against departments or agencies
of the state having no existence apart from the state. The immunity is
waived if the state or state agency consents to suit in federal court.*fn2
U.S. CONST. amend. XI; Koslow v. Pennsylvania, 302 F.3d 161, 167-68 (3d
Cir. 2002); Laskaris v. Thornburg, 661 F.2d 23, 25 (3d Cir. 1981) (citing Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280
There is no dispute that PennDOT is an agency of the Commonwealth. See
71 Pa. Cons. Stat. Ann. §§ 511-527; Dave v. Commonwealth of Pennsylvania,
483 F.2d 294, 295-98 (3d Cir. 1973). The issue is whether the state has
consented to suit in this case.
Pennsylvania has specifically withheld consent from suit in federal
courts. See 42 Pa. Cons. Stat. § 8521(b).*fn3 The plaintiffs argue that
PennDOT has nevertheless waived its immunity in this particular case for
three reasons: (1) PennDOT actively participated in the lawsuit; (2)
PennDOT invoked federal jurisdiction by stipulating to the transfer of
the case; and (3) PennDOT failed to raise the defense in its initial
pleadings, in violation of Rule 12(h)(1) of the Federal Rules of Civil
None of these arguments is persuasive. In support of their first
point, the plaintiffs rely on a Ninth Circuit rule that a state waives its
immunity if it appears in federal court and actively litigates the merits
of the case. Hill v. Blind Indus. and Servs. of Maryland, 179 F.3d 754,
763 (9th Cir 1999). In the Third Circuit, however, a state may raise the defense "for the
first time on appeal even if the state defended the merits of the suit in
the district court." Chittister v. Dep't of Community and Econ. Dev.,
226 F.3d 223, 227 (3d Cir. 2000). In any event, PennDOT has not litigated
the merits of the case.
In support of their second point, the plaintiffs rely on Lapides v.
Board of Reagents of the University System of Georgia, 535 U.S. 613
(2002). In Lapides, the Supreme Court held that a state waives its
Eleventh Amendment immunity if it invokes federal jurisdiction by
removing or joining in the removal of a lawsuit from state to federal
court. 535 U.S. at 616. PennDOT neither removed nor joined in the removal
of this case from state court to federal court. The plaintiffs invoked
federal jurisdiction, not PennDOT.
The plaintiffs' final argument assumes that Eleventh Amendment immunity
is tantamount to a defense of lack of personal jurisdiction, improper
venue, or insufficiency of process. Rule 12(h)(1) provides in part that
such defenses are waived if not made in a Rule 12 motion or in a
responsive pleading. The Court does not need to decide whether an
Eleventh Amendment defense is subject to Rule 12(h)(1) to dispose of this
argument. PennDOT has raised the defense in this, its first and only,
Rule 12 motion. The Court finds that PennDOT has not waived its Eleventh Amendment
immunity. The Court will grant PennDOT's motion to dismiss.
An appropriate order follows. ORDER
AND NOW, this 16th day of April, 2004, upon consideration of the
defendant Commonwealth of Pennsylvania, Department of Transportation's
Motion to Dismiss (Docket No. 7), the opposition and reply thereto, and
after hearing argument thereon at a telephone conference held on April
15, 2004, IT IS HEREBY ORDERED that said motion is GRANTED for the
reasons stated in a memorandum of today's date. The ...