Flamer v. New Jersey Transit Bus Operations, Inc.

• Court: Pennsylvania Superior Court
• Writing for the Court: HOFFMAN
• Citation: Flamer v. New Jersey Transit Bus Operations, Inc., 607 A.2d 260, 414 Pa.Super. 350 (Pa. Super. Ct. 1992)
• Decision Date: 05 June 1992
• Parties: Lisa FLAMER, Appellant, v. NEW JERSEY TRANSIT BUS OPERATIONS, INC. Nadine THOMAS, Appellant, v. NEW JERSEY TRANSIT CORPORATION.

Page 260

607 A.2d 260

414 Pa.Super. 350

Lisa FLAMER, Appellant, v. NEW JERSEY TRANSIT BUS OPERATIONS, INC.

Nadine THOMAS, Appellant, v. NEW JERSEY TRANSIT CORPORATION.

Superior Court of Pennsylvania.

Argued Dec. 17, 1991.

Filed March 27, 1992.

Reargument Denied June 5, 1992.

Sheldon Tabb, Philadelphia, for appellant (at 192).

Melissa Lang, Philadelphia, for appellant (at 467).

Howard M. Girsh, Philadelphia, for appellee.

Before CAVANAUGH, FORD ELLIOTT and HOFFMAN, JJ.

HOFFMAN, Judge:

This is a consolidated appeal from orders dismissing these cases for lack of jurisdiction. Appellants, Lisa Flamer and Nadine Thomas, contend that the trial court erred (1) in considering and granting a motion for judgment on the pleadings made by appellee, N.J. Transit Bus Operations, Inc. ("N.J. Transit"); and (2) in determining that the Full Faith and Credit Clause of the United States Constitution, Art. 4, § 1, required this Commonwealth to recognize the New Jersey Tort Claims Act and to transfer these cases to New Jersey. For the following reasons, we affirm.

In their complaints, appellants, Lisa Flamer and Nadine Thomas, averred that they are residents of Philadelphia who were injured while riding on a bus owned and operated by appellee, New Jersey Transit, which was involved in a motor vehicle accident in New Jersey. The complaints also averred that appellee maintains a place of business in Philadelphia and regularly conducts business there. In response to appellants' complaints, appellee filed preliminary objections in which it averred that it is a sovereign entity of the State of New Jersey and thus, immune from suit in Pennsylvania pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq. The trial court denied the objections, holding that appellee's claim of immunity had to be pleaded in new matter and would only be entertained in a motion for judgment on the pleadings. Appellee appealed to this court, and we quashed the appeal as being interlocutory and not meeting the requirements of Pa.R.A.P. 311, which pertains to interlocutory appeals as of right. Appellee filed an answer and new matter, alleging that it was a sovereign public entity of the state of New Jersey and thus entitled to the protections of the New Jersey Tort Claims Act. Appellee then filed a motion to dismiss each appellant's complaint for lack of subject matter jurisdiction or alternatively, to apply New Jersey substantive and procedural law to the case. The trial court granted appellee's motion and dismissed appellants' complaints for lack of jurisdiction without prejudice to refile in New Jersey. This timely consolidated appeal followed.

Preliminarily, we note that, although this is a consolidated appeal, the issues raised by the appellants are not identical. Therefore, we will first address the nonidentical issues and then proceed to address the identical issues raised.

I.

A.

Appellant, Nadine Thomas, first contends that the trial court treated appellee's motion to dismiss for lack of jurisdiction as a motion for judgment on the pleadings and erred in granting the motion. Specifically, appellant Thomas argues that the court erred in granting the motion because appellee had already raised the issue of lack of jurisdiction due to sovereign immunity in its preliminary objections, the trial court denied the objection and this court quashed appellee's appeal therefrom. Accordingly, appellant argues, appellee was prohibited from raising the issue again in a motion for judgment on the pleadings and the trial court was prohibited from ruling on the motion. We disagree.

Initially, we note that it is undisputed that appellant's motion to dismiss was to be construed as a motion for judgment on the pleadings ¹. Accordingly, we will treat it as such. While we agree with appellant Thomas that a motion for judgment on the pleadings may not be used to reargue issues concerning the pleadings which the court has already decided, see Standard Pennsylvania Practice 2d, § 31:8 at 149, we find that in the instant case, appellee's motion does not do so. In ruling on appellee's preliminary objections, the trial court never addressed the issue of whether subject matter jurisdiction existed. Instead, the court stated that appellee's claim of lack of subject matter jurisdiction was improperly pled in its preliminary objections and should be pled in appellee's answer by way of a new matter. Opinion, Doty, J., September 22, 1989 at 1 and 2. Moreover, when appellant appealed to this court, we never reached the merits of appellant's contention of lack of subject matter jurisdiction. Rather, we found the appeal as being interlocutory. Therefore, the trial court did not err in considering and ruling on appellee's motion for judgment on the pleadings.

B.

Appellant Thomas also argues that the court erred in considering and accepting appellee's legal conclusion that the court must respect its claim of immunity. As evidence of that trial court considered and accepted this conclusion, appellant states that she did not plead immunity in her complaint, and thus the court relied on appellee's claim of its immunity which it raised in its answer. This claim is meritless. While a trial court cannot accept the conclusions of law of either party when ruling on a motion for judgment on the pleadings, see Jones v. Travelers Ins. Co., 356 Pa.Super. 213, 514 A.2d 576 (1986), it is certainly free to reach those same conclusions independently. See Enoch v. Food Fair Stores, Inc., 232 Pa.Super. 1, 331 A.2d 912 (1974). Here, we find that the trial court reviewed the facts as pleaded by the appellant and made its own independent determination of immunity. Accordingly, we will review that determination.

II.

Appellants Thomas and Flamer both contend that the trial court erred in concluding that the Full Faith and Credit Clause of the U.S. Constitution, Art. 4, § 1, requires this Commonwealth to apply the New Jersey Tort Claims Act, and under such Act, to find appellee immune from suit in Pennsylvania. Both contend that application of this Act violates Pennsylvania's public policy against sovereign immunity and as a result, full faith and credit does not require its application.

We agree with appellants that the Full Faith and Credit Clause does not mandate that a state recognize another state's laws granting itself and its agencies immunity from suit. In Nevada v. Hall, 440 U.S. 410, 425, 99 S.Ct. 1182, 1190-91, 59 L.Ed.2d 416 (1979), the Supreme Court held that whether one state is required to accord sovereign immunity in its courts to another state is purely a question of comity and is not a constitutional mandate. Moreover, the Court specifically stated that, if the public policy of one state allows suit against another state, the Full Faith and Credit clause does not require that state to grant the other immunity. Id. at 422, 99 S.Ct. at 1189. We disagree with appellants, however, that application of the New Jersey Tort Claims Act would violate Pennsylvania's public policy.

Preliminarily, we note that appellee is a public entity of the state of New Jersey and an alter ego of that state. Smith v. New Jersey Transit Corporation, 691 F.Supp. 888 (E.D.Pa.1988); Dunn v. New Jersey Transit Corporation, 681 F.Supp. 246 (D.N.J.1987). As such, appellee is governed by the New Jersey Tort Claims Act. Transport of New Jersey v. Matos, 202 N.J.Super. 571, 495 A.2d 503 (1985). Pursuant to this Act, public entities are held liable for their negligence. N.J.S.A. 59:2-1. See N.J.S.A. 59:2-2(a). However, conditions and limitations are placed on their liability. For example, N.J.S.A. 59:9-1 requires claims brought under this Act to be heard in accordance with New Jersey Rules of Court. One such rule is that suit against a public entity be heard in the county wherein the incident arose. N.J. Court Rule 4:3-2(a). N.J.S.A. 59:9-2 prohibits the payment of punitive or exemplary damages or interest on judgments, and restricts the award of pain and suffering to those cases where there is permanent loss of a bodily function, permanent disfigurement or dismemberment where medical treatment expenses are in excess of $1000.00. In addition, N.J.S.A. 59:8-8 and 59:8-9, require a claimant to provide notice to the public entity within ninety days, but make an exception if the trial court in its discretion, finds no prejudice to the public entity and that suit would be commenced within two years of the accrual of the claim. As these provisions indicate, sovereign immunity still exists in New Jersey, but in a limited form.

Such a limited doctrine of sovereign immunity as that embodied in the New Jersey Tort Claims Act is not repugnant to the public policy of Pennsylvania. We recognize that in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), our Supreme Court abolished the doctrine of sovereign immunity in Pennsylvania and declared the public policy of this Commonwealth was to hold an entity, regardless of its nature, responsible for its tortious conduct. However, our legislature, concerned with the broad implications of Mayle, limited the court's holding by enacting the Act of October 5, 1980, 42 Pa.C.S.A. § 8521 et seq. See Historical Note following 42 Pa.C.S.A. § 8522 ("This act is intended to specifically respond to and prescribe limitations on the decision of Mayle v. Commonwealth, decided by the Supreme Court on July 14, 1978.") Under this Act, Commonwealth parties are still held liable for their negligence, see 42 Pa.C.S.A. § 8522, but conditions and limitations are placed on their liability ². In addition, our legislature enacted, the Political Subdivision Tort Claims Act,42 Pa.C.S.A. § 8541 et seq., which also upholds sovereign immunity with limitations ³.

A comparison of these two Pennsylvania acts with the New Jersey Tort Claims Act reveals that they are similar enough so that application of the New Jersey Tort Claims Act would not violate this...