Brown v. Commonwealth
| Decision Date | 23 May 1973 |
| Citation | 305 A.2d 868,453 Pa. 566 |
| Parties | Donna BROWN, a minor, by her parent and natural guardian, Catherine Brown, and Catherine Brown in her own right, Appellants, v. COMMONWEALTH of Pennsylvania. |
| Court | Pennsylvania Supreme Court |
Rehearing Denied June 27, 1973.
Joel M. Lieberman, Silver, Silver & Segal Philadelphia, for appellants.
J. Shane Creamer, Atty. Gen., Salvatore J Cucinotta, Lawrence T. Hoyle, Jr., and Burton D. Morris Deputy Attys. Gen., Harrisburg, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
On August 24, 1969, appellant, Donna Brown a minor, while a guest at a Pennsylvania National Guard outing in Meadowbrook, sustained injuries when a National Guard jeep in which she was riding as a passenger was involved in an accident occasioned by the negligence of the operator, a Guardsman.
By her guardian, appellant brought a trespass action seeking damages for her injuries and the expense incurred for her treatment. [1] The Commonwealth, by demurrer, interposed the doctrine of sovereign immunity. The Commonwealth Court sustained the Commonwealth's preliminary objections and dismissed appellants' complaint. [2] An appeal was taken from dismissal of the complaint. Act of July 31, 1970, P.L. ---, § 203, 17 P.S. § 211.203.
The questions raised by this appeal reduce themselves to a frontal assault upon the doctrine of sovereign immunity. The subparts of this challenge question (1) whether sovereign immunity Should be abolished, (2) whether it Can be abolished and (3) whether it applies at all under the factual circumstances of this case. The desirability of limiting our decisions to the narrowest of issues necessitates the leading consideration of the question whether sovereign immunity applies to these factual circumstances.
Appellants argue that because the Commonwealth has obtained liability insurance, which may provide compensation for the damages resulting from this incident, the doctrine of sovereign immunity should not apply. Cf., Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965).
The Commonwealth's Department of Property and Supplies obtained automobile liability insurance, protective of the officers, enlisted men and employees of the National Guard, in conformity with the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, § 2404, as amended, 71 P.S. § 634. [3]
The Commonwealth concedes that the Administrative Code provision, as implemented by the purchase of insurance by the Department of Property and Supplies, represents an avenue of compensation open to appellants, an avenue which they have failed to utilize. Appellants urge, by analogy to this Court's decisions in Flagiello and Falco, [4] that the existence of insurance coverage obviates the need for 'outmoded' law. We reject the notion that the existence of statutorily mandated public liability insurance evidences a legislative intent to reject sovereign immunity in this context.
Article I, Section 11 of the Pennsylvania Constitution, P.S., provides that suits may be brought against the Commonwealth 'in such cases as the Legislature may by law direct.' While insurance coverage is provided, and the Commonwealth concedes the existence of a system of compensation in this factual setting, [5] we cannot justify a holding that the Legislature, by enacting Section 2404 of the Administrative Code, intended to create a sovereign immunity exception as envisioned by Article I, Section 11 of the Pennsylvania Constitution. Section 2404 does not permit the injured or damaged party to sue the Commonwealth. We find no legislative exception to sovereign immunity in this case. We will not create one by judicial edict.
Although appellants frame the separate issues of whether sovereign immunity can and should be abolished, these considerations are inextricably woven into the real question here involved: may we strike down a policy embodied by the Commonwealth's Constitution absent some compelling showing that Article I, Section 11 is in conflict with the Federal Constitution?
Appellants urge that because sovereign immunity was judicially created, and improvidently so, this Court should hasten its judicial demise. Article I, Section 11 of our Constitution compels the conclusion, however, that this Commonwealth's immunity is constitutionally, not judicially, mandated:
'Suits may be brought against the Commonwealth in such manner, in such courts and in such cases As the Legislature may be law direct.' (Emphasis added)
No other conclusion is possible than that it falls to the Legislature to determine the circumstances under which immunity may be waived. [6] Commonwealth v. Orsatti, 448 Pa. 72, 292 A.2d 313 (1972); Conrad v. Commonwealth Department of Highways, 441 Pa. 530, 272 A.2d 470 (1971); Meagher v. Commonwealth, 439 Pa. 532, 266 A.2d 684 (1970); Bannard v. New York State Natural Gas Corp., 404 Pa. 269, 172 A.2d 306 (1961); Stouffer v. Morrison, 400 Pa. 497, 162 A.2d 378 (1960); Commonwealth v. Berks County, 364 Pa. 447, 72 A.2d 129 (1950).
Appellants also argue that Article I, Section 11 of the Pennsylvania Constitution is repugnant to the Due Process and Equal Protection Clauses of the Federal Constitution. The basis of appellants' constitutional argument is that Article I, Section 11 is uncertain by its own terms, and so void for vagueness, and that it confers upon the Legislature the unfettered discretion to arbitrarily formulate exceptions to the doctrine of sovereign immunity.
The vagueness standard is inapplicable in this context. Article I, Section 11 establishes a standardless prerogative for the Legislature to consent to suit against the Commonwealth. The due process vagueness standard applies to void Legislation which limits the ability of those to whom the statute is applied to understand that which is prohibited or mandated. Since Article I, Section 11 provides only a framework within which the Legislature may operate, the void-for-vagueness argument is inapposite here.
Similarly, because Article I, Section 11 is not self-executing, and because no classification is possible without legislative implementation, this constitutional provision cannot be considered discriminatory for equal protection purposes.
Whether the doctrine of sovereign immunity should be modified in this Commonwealth is a legislative question. We could not base a contrary holding upon our impatience with the Legislature's failure to act as speedily and comprehensively as we believe it should.
Order affirmed. Each party to pay own costs.
I join in Mr. Justice Nix's dissent for the reasons stated therein as well as for the reasons set out in my dissenting opinion in Thomas v. Baird, 433 Pa. 482, 485, 252 A.2d 653, 655 (1969).
As Mr. Justice Nix recently stated in his dissenting opinion (in which I joined) in Biello v. Pennsylvania Liquor Control Board, Pa., 301 A.2d 849, 854 (1973):
(Emphasis added) (Footnote omitted).
The majority today, however, reasserts that 'Article I, Section 11 of our Constitution compels the conclusion . . . that this Commonwealth's immunity is constitutionally, not judicially, mandated . . .' and that the question of whether '. . . sovereign immunity should be or modified in this Commonwealth is a legislative question.' Despite the majority's absolute pronouncement that any modification in the doctrine of sovereign immunity must originate with the Legislature, this Court, only recently, in Biello, supra, 'modified' the doctrine by holding, Without specific legislative direction, that the Commonwealth is Not immune from suit where it engages in performing 'proprietary functions.' Through judicial action, this Court wisely narrowed the heretofore unlimited scope of state immunity. However, Biello obviously negates the majority's present assertion that sovereign immunity is constitutionally ordained and alterable only by the Legislature.
Having moved in the proper direction in Biello, there is no rational reason why the majority could not and should not now judicially abrogate the doctrine of sovereign immunity in toto, or at the least, refuse to apply it, where, as here, an instrumentality of the Commonwealth has obtained liability insurance (at the command of the Legislature) to compensate those injured through the fault of its agents. [*]
Twenty-one states, eight through judicial action, have now abolished the concept of state immunity. Nine others have partially abrogated the doctrine, and Eight others have abolished it where (as here) the state (or its instrumentalities) has obtained insurance. American Law Institute, Restatement of Law Second, Torts, p. 21 (Tentative Draft 19, March 30 1973). Despite this overwhelming rejection of sovereign immunity, the majority continues to adhere to age old precedent which has long ago...
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