Masse v. Pennsylvania Turnpike Commission, Civ. A. No. 23428.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtGeorge W. Alexander, Jr., Philadelphia, Pa., for plaintiff
Citation163 F. Supp. 510
PartiesRocco MASSE v. PENNSYLVANIA TURNPIKE COMMISSION and Richard Germroth.
Docket NumberCiv. A. No. 23428.
Decision Date14 July 1958

163 F. Supp. 510

Rocco MASSE
v.
PENNSYLVANIA TURNPIKE COMMISSION and Richard Germroth.

Civ. A. No. 23428.

United States District Court E. D. Pennsylvania.

July 14, 1958.


George W. Alexander, Jr., Philadelphia, Pa., for plaintiff.

John J. McDevitt, 3rd, Philadelphia, Pa., for Pennsylvania Turnpike Commission.

KRAFT, District Judge.

Asserting diversity of citizenship as the basis for this court's jurisdiction, the plaintiff, a guest in a motor vehicle operated by defendant, Germroth, sued his host and the Pennsylvania Turnpike Commission (Commission) to recover for personal injuries resulting

163 F. Supp. 511
from a collision between the defendants' vehicles. Before the court is the Commission's motion to dismiss

The two main reasons advanced by the Commission are, first, that it is immune from suit under the Eleventh Amendment to the Constitution because it contends that it is an instrumentality of the Commonwealth of Pennsylvania and, second, that, under Pennsylvania law, it is immune from the liability sought to be imposed by this plaintiff.

Whether, as a creature of the state, the Commission is, in effect, a state within the meaning of the Eleventh Amendment and, therefore, immune from suit in a diversity action is a question of federal, not state, law. This question has heretofore been decided adversely to the Commission in a number of cases.1 Without repetition of the reasons assigned in those cases, we reach the same conclusion and hold that this court's jurisdiction is not precluded by the Eleventh Amendment.

Whether the Commission, as a creature of the state, is immune from the type of tort liability asserted in this diversity action is, however, a question of state, not federal law. After careful analysis we reach the conclusion that Ewalt v. Pennsylvania Turnpike Commission, 1955, 382 Pa. 529, 115 A.2d 729, supplies the rule of decision that, except as otherwise expressly provided by statute, the Commission is immune from liability for negligent acts of its employees. In Ewalt, the Pennsylvania Supreme Court, conceding the general immunity from such liability which the Commission sought to impute to itself, held that the plaintiffs had a right of action against the Commission for alleged damage to and destruction of plaintiffs' property, because Section 6(k) of the Western Pennsylvania Turnpike Extension Act of 1941, 36 P.S.Pa. § 654 et seq., expressly imposed such liability. Of its decision in Ewalt, the Supreme Court later said, in Valley Forge Gardens v. James D. Morrissey, Inc., 1956, 385 Pa. 477, 485, 123 A.2d 888, 892:

"We held (in Ewalt) that the Commission was liable for the proven consequential damages because the Western Pennsylvania Turnpike Extension Act of 1941, P.L. 101, 36 P.S. § 654 et seq., under which that section of the turnpike was constructed, expressly charged the Commission with the payment of compensation for property damaged or destroyed by the construction, operation and maintenance of the turnpike."

The injuries suffered by the present plaintiff occurred on the Philadelphia extension of the turnpike between Middle-sex and Philadelphia. The construction, operation and maintenance of that turnpike was authorized by the Pennsylvania Turnpike Philadelphia Extension Act,2 Section 6(k) of which is identical with Section 6(k) of the Western Pennsylvania Turnpike Extension Act of 1941 which was construed by the Supreme Court in Ewalt. The language of Section 6(k) cannot reasonably be construed expressly to charge the Commission with payment of compensation for personal injuries resulting from the construction, operation and maintenance of the turnpike. Absent such an express imposition of liability upon the Commission, its general immunity from liability for torts resulting from negligence of its employees, as conceded by the Supreme Court in Ewalt, must prevail.

163 F. Supp. 512

If Ewalt is not regarded as sufficiently definitive to supply a rule of decision, consideration must then be given to the effect, upon a federal court exercising diversity jurisdiction, of pertinent decisions of county courts. While county court decisions are not usually controlling, nevertheless, if a number sufficient to indicate a consensus exists, the federal district court is obliged to follow that consensus.3 Even in the absence of a consensus, statements in a single lower state court opinion may be considered as indicative of what the state law may be and, if the state law does supply a rule of decision, it is the duty of a federal district court to ascertain and apply that law, though it has not been announced by the highest state court.4

Though the Commission has existed and operated for twenty years,5 no reported decision of any county court has yet held the Commission liable for personal injuries resulting from the negligent act of a Commission employee. In House v. Commission and in Frye v. Commission,6 the Common Pleas Court of Dauphin County held that the Commission was a "quasi-public corporation and, as such, * * * an instrumentality of...

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13 practice notes
  • SJ Groves & Sons Co. v. New Jersey Turnpike Authority, Civ. No. 531-66.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • May 18, 1967
    ...alter egos of the State itself, at least by the Federal standard required to invoke the Amendment. Masse v. Pennsylvania Turnpike Comm., 163 F.Supp. 510 (E.D.Pa.1958). See American Governmental Tort Liability, 20 Rutgers L.Rev. 710 (1966), discussing the American history of "sovereign immun......
  • Rader v. Pennsylvania Turnpike Commission
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 8, 1962
    ...Lowes v. Pennsylvania Turnpike Commission, 125 F.Supp. 681 (M.D.Pa.1954); contra: Masse v. Pennsylvania Turnpike Commission, 163 F.Supp. 510 [407 Pa. 617] We, of course, are not bound by these decisions of the federal Courts, but in view of the vigor with which they are urged upon us by pla......
  • Litton RCS, Inc. v. Pennsylvania Turnpike Commission, Civ. A. No. 73-1902.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 15, 1974
    ...Turnpike Commission is not the "alter ego" of the state as a matter of federal law. See Masse v. Pennsylvania Turnpike Commission, 163 F.Supp. 510 (E.D.Pa.1958); Linger v. Pennsylvania Turnpike Commission, 158 F.Supp. 900 (W.D.Pa.1958); Eastern Motor Express, Inc. v. Espenshade, 138 F.Supp.......
  • Gordenstein v. University of Delaware, Civ. A. No. 74-59.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • September 16, 1974
    ...J. Groves & Sons Co. v. New Jersey Turnpike Authority, 268 F. Supp. 568, 574 (D.N.J.1967). 5 Masse v. Pennsylvania Turnpike Commission, 163 F.Supp. 510, 511 (E.D.Pa.1958); Fleming v. Upper Dublin School Dist., 141 F.Supp. 813 (E.D.Pa.1956); cf., Urbano v. Bd. of Managers, supra. Pennsylvani......
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13 cases
  • SJ Groves & Sons Co. v. New Jersey Turnpike Authority, Civ. No. 531-66.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • May 18, 1967
    ...alter egos of the State itself, at least by the Federal standard required to invoke the Amendment. Masse v. Pennsylvania Turnpike Comm., 163 F.Supp. 510 (E.D.Pa.1958). See American Governmental Tort Liability, 20 Rutgers L.Rev. 710 (1966), discussing the American history of "sovereign immun......
  • Rader v. Pennsylvania Turnpike Commission
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 8, 1962
    ...Lowes v. Pennsylvania Turnpike Commission, 125 F.Supp. 681 (M.D.Pa.1954); contra: Masse v. Pennsylvania Turnpike Commission, 163 F.Supp. 510 [407 Pa. 617] We, of course, are not bound by these decisions of the federal Courts, but in view of the vigor with which they are urged upon us by pla......
  • Litton RCS, Inc. v. Pennsylvania Turnpike Commission, Civ. A. No. 73-1902.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 15, 1974
    ...Turnpike Commission is not the "alter ego" of the state as a matter of federal law. See Masse v. Pennsylvania Turnpike Commission, 163 F.Supp. 510 (E.D.Pa.1958); Linger v. Pennsylvania Turnpike Commission, 158 F.Supp. 900 (W.D.Pa.1958); Eastern Motor Express, Inc. v. Espenshade, 138 F.Supp.......
  • Gordenstein v. University of Delaware, Civ. A. No. 74-59.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • September 16, 1974
    ...J. Groves & Sons Co. v. New Jersey Turnpike Authority, 268 F. Supp. 568, 574 (D.N.J.1967). 5 Masse v. Pennsylvania Turnpike Commission, 163 F.Supp. 510, 511 (E.D.Pa.1958); Fleming v. Upper Dublin School Dist., 141 F.Supp. 813 (E.D.Pa.1956); cf., Urbano v. Bd. of Managers, supra. Pennsylvani......
  • Request a trial to view additional results

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