Marshall v. Se. Pa. Transp. Auth.

• Docket Number: 40 C.D. 2022, No. 157 C.D. 2022,No. 40 C.D. 2022
• Decision Date: 04 August 2023
• Citation: 300 A.3d 537
• Parties: Lee MARSHALL and Pamela Fuller v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, New Jersey Transit and New Jersey Transit Corporation Appeal of: New Jersey Transit and New Jersey Transit Corporation New Jersey Transit and New Jersey Transit Corporation, Appellants v. Lee Marshall, Pamela Fuller, and Southeastern Pennsylvania Transportation Authority
• Court: Pennsylvania Commonwealth Court

300 A.3d 537

Lee MARSHALL and Pamela Fuller v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, New Jersey Transit and New Jersey Transit Corporation

Appeal of: New Jersey Transit and New Jersey Transit Corporation

New Jersey Transit and New Jersey Transit Corporation, Appellants v. Lee Marshall, Pamela Fuller, and Southeastern Pennsylvania Transportation Authority

No. 40 C.D. 2022

No. 157 C.D. 2022

Commonwealth Court of Pennsylvania.

Argued March 6, 2023

Decided August 4, 2023

Jessica M. Anderson, Cherry Hill, NJ, for Appellants New Jersey Transit and New Jersey Transit Corporation.

Cory A. Trobman, Philadelphia, for AppelleesLee Marshall and Pamela Fuller.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge

OPINION BY JUDGE DUMAS

New Jersey Transit and New Jersey Transit Corporation(collectively, NJ Transit) appeal from two orders entered by the Court of Common Pleas of Philadelphia County(trial court).The first order overruled NJ Transit's preliminary objections to the complaint filed by Lee Marshall and Pamela Fuller(collectively, Plaintiffs).The second order denied NJ Transit's motion for judgment on the pleadings.On appeal, NJ Transit contends that the trial court should have held that NJ Transit could invoke sovereign immunity.We reverse and remand with instructions to dismiss the case.

I.BACKGROUND¹

On July 30, 2018, Plaintiffs, both New Jersey residents, were passengers on a NJ Transit bus in Philadelphia when it hit a bus operated by the Southeastern Pennsylvania Transportation Authority (SEPTA).Compl., 6/12/20, ¶¶ 1-6;accord generally Am. Compl., 1/27/21.Plaintiffs sued NJ Transit and SEPTA for negligence.See Am. Compl.Both Pennsylvania and New Jersey have a two-year statute of limitations for tort claims.Pls.’Mot. for Recons., 5/28/21, ¶ 11.

NJ Transit filed preliminary objections for lack of subject matter jurisdiction, which invoked sovereign immunity based on Franchise Tax Board of California v. Hyatt , ––– U.S. ––––, 139 S. Ct. 1485, 203 L.Ed.2d 768(2019)( Hyatt III ).Prelim.Objs., 2/1/21, ¶¶ 7-8, 11, 29-31.²Plaintiffs filed a response, conceding that NJ Transit "is an arm of the state" but asserting that NJ Transit is not immune from suit in Pennsylvania.Resp. to Prelim.Objs., 2/12/21, ¶ 9.The trial court ultimately overruled NJ Transit's preliminary objections.Order, 6/24/21.NJ Transit moved for reconsideration or to certify its order for interlocutory appeal, which the trial court denied.Order, 7/8/21.NJ Transit timely filed a petition for permission to appeal.³

Meanwhile, NJ Transit filed an answer to the complaint and moved for judgment on the pleadings with each invoking sovereign immunity.The trial court denied the motion, Order, 1/11/22, and NJ Transit timely appealed to this Court.The trial court did not order a Pa.R.A.P. 1925(b) statement.This Court granted NJ Transit's application to consolidate the separate appeals and stayed the underlying case.Order, 6/13/22.

In denying relief to NJ Transit, the trial court did not detail its reasoning.The trial court concisely stated that NJ Transit "had waived sovereign immunity for the commission of vehicular negligence and whatever defenses were available to [NJ Transit] under the applicable tort claims law were recognizable by the court and would be applied by it."Trial Ct. Op., 3/23/22, at 3.

II.ISSUES

On appeal, NJ Transit raises three issues.First, NJ Transit claims that the orders at issue are appealable collateral orders.NJ Transit's Br.at 5.Second, NJ Transit asserts that it is entitled to sovereign immunity as an arm of New Jersey and, therefore, immune from being sued in Pennsylvania.Id.Third, NJ Transit contends that it did not waive sovereign immunity under the New Jersey Tort Claims Act (Tort Act), N.J.S.A. §§ 59:1-1 to:12-3. Id.

III.DISCUSSION⁴

A.Collateral Order Doctrine

In support of its first issue, NJ Transit argues that the issue of whether it may assert sovereign immunity is a question of law separable from and collateral to Plaintiffs’ negligence claims.Id. at 18.NJ Transit reasons that sovereign immunity is a right too important to deny appellate review.Id.If appellate review is postponed until final judgment, NJ Transit contends it would lose the benefit of a right to invoke sovereign immunity.Id. at 18-19.⁵

The collateral order doctrine provides that an order is an appealable collateral order when "(1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost."Brooks , 259 A.3d at 370(citation omitted).

For example, in Brooks , the plaintiff was injured while exiting the Family Court of Philadelphia.Id. at 361.She sued the Family Court, which moved for summary judgment on the basis of sovereign immunity.Id.The trial court denied summary judgment, the Family Court appealed, this Court quashed as premature, and the Family Court appealed to our Supreme Court.Id. at 363-64.The Brooks Court reversed because the order was an appealable collateral order.Id. at 360-61.

In support, the Brooks Court reasoned that the issue of whether the Family Court could invoke sovereign immunity was a purely legal question separable from the underlying merits of the plaintiff's negligence claim.Brooks , 259 A.3d at 372.Further, because the right to a sovereign immunity defense "is deeply rooted in public policy, as it is both secured by the [Pennsylvania]Constitution" and statute, the Brooks Court held that the issue was too important to defer resolution until after final judgment.Id.Finally, our Supreme Court held that the Family Court's ability to invoke sovereign immunity as a defense would be lost if appellate review occurred after final judgment.Id. at 373-74.The Brooks Court added that the U.S. Supreme Court also held that such orders were immediately appealable as "collateral orders because the entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial."Id. at 374(emphasis in original and cleaned up).

Instantly, consistent with the Brooks Court's reasoning, we also hold that the trial court's orders overruling NJ Transit's preliminary objections and denying the motion for judgment on the pleadings are appealable collateral orders.Seeid. at 373-74.Like the Family Court in Brooks , the issue of whether NJ Transit can invoke sovereign immunity is a purely legal question separable from the underlying merits of Plaintiffs’ negligence claims.Seeid. at 372.To paraphrase the Brooks Court, undoubtedly whether NJ Transit has the right to invoke a defense of sovereign immunity in the courts of this Commonwealth implicates Pennsylvania's public policy at the very least.Seeid.As in Brooks , delaying review of the instant orders until after final judgment would impair NJ Transit's right to invoke sovereign immunity.Seeid.Because we conclude that we may exercise appellate review, we address NJ Transit's next issue.

B.Sovereign Immunity Under Hyatt III

In support of its second issue, NJ Transit argues it cannot be sued in other states without its consent.NJ Transit's Br.at 20.In support, NJ Transit recounts the history of the Eleventh Amendment⁶ and related caselaw, including Hyatt III .Id. at 20-31.Per NJ Transit, the Hyatt III Court held that states are immune "from private suits brought in the courts of other states" subject to two exceptions involving federal courts.Id. at 28-29(cleaned up).NJ Transit argues Pennsylvania is obligated to recognize NJ Transit's sovereign immunity.Id. at 29-30.NJ Transit marshals several cases dismissing lawsuits on the basis of sovereign immunity and contends the trial court should have similarly dismissed this action.Id.

Plaintiffs counter that sovereign immunity does not prevent NJ Transit from being sued in Pennsylvania.Pls.’ Br.at 9.In their view, sovereign immunity only means that any immunity NJ Transit has in New Jersey would also apply in Pennsylvania.Id.Plaintiffs assert that absent a statute prohibiting NJ Transit from being sued in Pennsylvania, Pennsylvania is the proper jurisdiction.Id.Plaintiffs distinguish Hyatt III on the basis that New Jersey's sovereign immunity has an exception for vehicular negligence, and thus, New Jersey consented to be sued.Id. at 10.Plaintiffs claim that NJ Transit's argument lacks any legal support because NJ Transit cited no cases involving a state that consented to be sued in another state.Id. at 14-18;see alsoid. at 22(discussingLaconis v. Burlington Cnty. Bridge Comm'n , 583 A.2d 1218(Pa. Super.1990) ).

Initially, whether sovereign immunity applies is a question of law.Brooks , 259 A.3d at 372.Generally, sovereign immunity forecloses lawsuits against government entities.Id. at 372-73.⁷New Jersey defines sovereign immunity similarly.NL Indus., Inc. v. State , 228 N.J. 280, 156 A.3d 1043, 1052-53(2017).For example, under New Jersey law, NJ Transit is a government entity that can invoke sovereign immunity.See Resp. to Prelim.Objs. ¶ 9(conceding NJ Transit is an arm of New Jersey);Flamer v. N.J. Transit Bus Operations, Inc. , 414 Pa.Super. 350, 607 A.2d 260, 262(1992)(recognizing the defendant is "a public entity of the state of New Jersey and an alter ego of that state" subject to the Tort Act(citations omitted)).⁸

The High Court explained that the "States’ sovereign immunity is a historically rooted principle embedded in the text and structure of the [U.S.]Constitution."Hyatt III , 139 S. Ct. at 1499.The Hyatt III Court reasoned that although not "spelled out in the Constitution," sovereign immunity—like judicial review, executive...