The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lee Marshall and Pamela Fuller : CASES CONSOLIDATED
:
v. : No. C.D.
:
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. : No. C.D.
: Argued: March ,
Lee Marshall, Pamela Fuller, and :
Southeastern Pennsylvania :
Transportation Authority :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION BY
JUDGE DUMAS FILED: August ,
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 , , 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., / / , ¶¶ - ; accord
generally Am. Compl., / / . 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., / / , ¶ .
NJ Transit filed preliminary objections for lack of subject matter
jurisdiction, which invoked sovereign immunity based on Franchise Tax Board of
California v. Hyatt, S. Ct. ( ) (Hyatt III). Prelim. Objs., / / , ¶¶ - ,
, - .2 Plaintiffs 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., / / , ¶ . The trial court ultimately overruled NJ Transit’s
preliminary objections. Order, / / . NJ Transit moved for reconsideration or to
1
In presenting the background, we note that in resolving preliminary objections, “we must
. . . accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every
inference that is fairly deducible from those facts.” Raynor v. D’Annunzio, A. d , (Pa.
) (cleaned up). We may reject “conclusions of law, unwarranted inferences from facts,
argumentative allegations, or expressions of opinion.” Freemore v. Dep’t of Corr., A. d ,
(Pa. Cmwlth. ) (per curiam) (citation omitted). The same standard applies in reviewing an
order resolving a motion for judgment on the pleadings. Cagey v. Commonwealth, A. d ,
n. (Pa. ).
2
We are bound by decisions of the Supreme Court of the United States. NASDAQ OMX
PHLX, Inc. v. PennMont Secs., A. d , (Pa. Super. ) (NASDAQ). Further,
“[w]henever possible, Pennsylvania state courts follow the Third Circuit so that litigants do not
improperly walk across the street to achieve a different result in federal court than would be
obtained in state court.” Id. (cleaned up). We may cite to Superior Court or non-precedential
federal cases for their persuasive value, but we are not bound by such cases unless the doctrines of
res judicata or judicial estoppel apply. Commonwealth v. Monsanto Co., A. d , n.
(Pa. Cmwlth. ); Register v. Longwood Ambulance Co., A. d , n. (Pa. Cmwlth.
); Bienert v. Bienert, A. d , (Pa. Super. ).
2
certify its order for interlocutory appeal, which the trial court denied. Order, / / .
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, / / , and NJ Transit timely appealed to this Court. The
trial court did not order a Pa.R.A.P. (b) statement. This Court granted NJ
Transit’s application to consolidate the separate appeals and stayed the underlying
case. Order, / / .
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., / / , at .
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 . 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
3
Generally, an order overruling a preliminary objection is not an appealable order.
Commonwealth ex rel. Corbett v. Snyder, A. d , (Pa. Cmwlth. ). However, if a
preliminary objection invokes sovereign immunity, then an order resolving such a preliminary
objection may be an appealable collateral order. Brooks v. Ewing Cole, Inc., A. d , n.
(Pa. ).
In any event, NJ Transit complied with Pa.R.A.P. , which addresses interlocutory
appeals by permission. NJ Transit requested the trial court to certify its order under Pa.C.S. §
, and NJ Transit timely filed a petition for permission to appeal. See generally Pa.R.A.P. .
NJ Transit incorrectly filed a petition for permission to appeal with the Superior Court, which
ordered that the petition be treated as a notice of appeal, New Jersey Transit v. Marshall (Pa. Super.,
No. EDM , filed Sept. , ) (order), and transferred the appeal to this Court. New
Jersey Transit v. Marshall (Pa. Super., No. EDA , filed Jan. , ) (order).
3
contends that it did not waive sovereign immunity under the New Jersey Tort Claims
Act (Tort Act), N.J.S.A. §§ : - to : - . 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 . 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 - .5
The collateral order doctrine provides that an order is an appealable
collateral order when “( ) it is separable from and collateral to the main cause of
action; ( ) the right involved is too important to be denied review; and ( ) the
question presented is such that if review is postponed until final judgment in the
case, the claimed right will be irreparably lost.” Brooks, A. d at (citation
omitted).
For example, in Brooks, the plaintiff was injured while exiting the
4
“The appealability of an order under the Pa.R.A.P. collateral order doctrine presents
a question of law, over which our standard of review is de novo, and our scope of review is
plenary.” Brooks, A. d at . NJ Transit, however, invoked sovereign immunity as a
demurrer instead of a new matter. See Pa.R.Civ.P. (a). Because Plaintiffs failed to challenge
that procedural defect via preliminary objections to NJ Transit’s preliminary objections, we will
apply the preliminary objection standard of review. See Sutton v. Bickell, A. d , n.
(Pa. ). Further, we review an order resolving a motion for judgment on the pleadings to
determine whether based on the facts pleaded, recovery is impossible under the law. Yanakos v.
UPMC, A. d , n. (Pa. ). Finally, the “way in which the laws of a foreign
jurisdiction operate presents a question of law, which we review de novo. We may take judicial
notice of New Jersey statutory provisions and reported judicial decisions.” Melmark, Inc. v. Schutt,
A. d , (Pa. ) (cleaned up); accord Pa.C.S. § .
5
Plaintiffs did not challenge NJ Transit’s arguments regarding the collateral order doctrine.
4
Family Court of Philadelphia. Id. at . 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 - . The
Brooks Court reversed because the order was an appealable collateral order. Id. at
- .
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,
A. d at . 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 - . 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 (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.
See id. at - . Like the Family Court in Brooks, the issue of whether NJ Transit
can invoke sovereign immunity is a purely legal question separable from the
5
underlying merits of Plaintiffs’ negligence claims. See id. at . 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. See id. As in Brooks, delaying review of the instant
orders until after final judgment would impair NJ Transit’s right to invoke sovereign
immunity. See id. 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 . In support, NJ Transit
recounts the history of the Eleventh Amendment6 and related caselaw, including
Hyatt III. Id. at - . 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 - (cleaned up). NJ Transit argues Pennsylvania
is obligated to recognize NJ Transit’s sovereign immunity. Id. at - . 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 . 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
6
“The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI.
6
exception for vehicular negligence, and thus, New Jersey consented to be sued. Id.
at . 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 - ; see also id. at (discussing Laconis v. Burlington Cnty. Bridge Comm’n,
A. d (Pa. Super. )).
Initially, whether sovereign immunity applies is a question of law.
Brooks, A. d at . Generally, sovereign immunity forecloses lawsuits against
government entities. Id. at - .7 New Jersey defines sovereign immunity
similarly. NL Indus., Inc. v. State, A. d , - (N.J. ). For example,
under New Jersey law, NJ Transit is a government entity that can invoke sovereign
immunity. See Resp. to Prelim. Objs. ¶ (conceding NJ Transit is an arm of New
7
The doctrine is not absolute. For example, sovereign immunity does not necessarily apply
when the suit is between (a) political subdivisions of one state, or (b) a private citizen of one state
and another state’s municipality. Galindo v. City of Flagstaff, P. d , n. (Utah )
(recognizing, as well, that “sovereign immunity does not flow from the Eleventh Amendment”);
City of College Park v. Clayton Cnty., S.E. d , (Ga. ). As discussed below,
sovereign immunity may be waived, e.g., a sovereign could consent to be sued by legislative act
or some other affirmative conduct.
We acknowledge that our Supreme Court stated that “[s]overeign immunity is an absolute
defense that is not waivable,” despite explicitly referencing various legislative waivers of
sovereign immunity. Brooks, A. d at . Subsequently, a few months later, in resolving an
issue of original jurisdiction, our Supreme Court commented, in dicta, that “Sovereign Immunity
is in the nature of an affirmative defense; (a) it does not go to jurisdiction and (b) it can be waived.”
Bisher v. Lehigh Valley Health Network, Inc., A. d , n. (Pa. ) (quoting Chem.
Nat. Res., Inc. v. Republic of Venezuela, A. d , (Pa. )).
To the extent that our Supreme Court’s jurisprudence appears contradictory, we need not
address any apparent tension. See Gibraltar Rock, Inc. v. Dep't of Env’t Prot., A. d ,
(Pa. ) (cautioning this Court from sua sponte raising issues). Regardless of any tension, in
Hyatt III, the High Court summarily rejected an argument that the sovereign entity “waived its
immunity. The [entity] has raised an immunity-based argument from this suit’s inception . . . .”
Hyatt III, S. Ct. at n. . In other words, despite holding that the entity has interstate
sovereign immunity, the High Court implied that the entity could potentially waive its immunity
by not timely invoking it. See id.; Fin. Oversight & Mgmt. Bd. for P.R. v. Centro de Periodismo
Investigativo, Inc., S. Ct. , , ( ) (explaining that the board had sovereign
immunity but that the board could elect to waive its immunity).
7
Jersey); Flamer v. N.J. Transit Bus Operations, Inc., A. d , (Pa. Super.
) (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, S. Ct. at . The Hyatt III Court reasoned that
although not “spelled out in the Constitution,” sovereign immunity—like judicial
review, executive privilege, and executive immunity—is “nevertheless implicit in
8
Accord Maison v. N.J. Transit Corp., A. d , - (N.J. ) (explaining that
public entities, like NJ Transit, may be held liable for negligence subject to the Tort Act’s
limitations); Ross v. Transp. of N.J., A. d , (N.J. ) (holding the bus division of NJ
Transit is a public entity subject to the Tort Act); Roe by M.J. v. N.J. Transit Rail Operations, Inc.,
A. d , (N.J. Super. Ct. App. Div. ) (holding, “NJ Transit is a public entity entitled
to the protection of the Tort Claims Act” (citation omitted)); Karns v. Shanahan, F. d ,
( d. Cir. ) (concluding NJ Transit was an “arm of the state” for Eleventh Amendment
immunity). Cf. Galette v. NJ Transit, A. d , (Pa. Super. ) (stating the plaintiff
opposed NJ Transit’s contention that it was an arm of New Jersey that could invoke sovereign
immunity), appeal filed (Pa., No. EAL , filed June , ).
In contrast, Pennsylvania courts have differed on whether SEPTA is entitled to sovereign
immunity. Our Supreme Court reasoned that because SEPTA is not a Pennsylvania government
entity, SEPTA cannot invoke Eleventh Amendment sovereign immunity. Goldman v. SE Pa.
Transp. Auth., A. d , (Pa. ). In Goldman, which predates Hyatt II and Hyatt III,
the Pennsylvania Supreme Court considered whether SEPTA could invoke Eleventh Amendment
immunity in a state lawsuit filed under federal law. Goldman, A. d at - . The Goldman
Court noted that because the U.S. Supreme Court held that “states have sovereign immunity in
their own courts from suits brought by private individuals under federal law,” the issue before the
Court was whether SEPTA was an arm of the Commonwealth. Id. at . Unlike the state suit
under federal law in Goldman, the instant suit raises claims under Pennsylvania common law, i.e.,
negligence. The Goldman Court also noted that the appellants waived an argument as to whether
SEPTA was entitled to invoke the Sovereign Immunity Act. Id. at n. . This Court, however,
has frequently held that SEPTA is entitled to invoke sovereign immunity under the Sovereign
Immunity Act. Compare id. at (observing that “SEPTA has been designated by the legislature
of the Commonwealth as a distinct legal entity with the power to sue and be sued in its own
capacity”), with, e.g., Knox v. SEPTA, A. d , (Pa. Cmwlth. ) (distinguishing
Goldman in holding that SEPTA may invoke sovereign immunity). We need not reconcile
Goldman and Knox, as the issue before this Court is whether Pennsylvania must recognize NJ
Transit’s interstate sovereign immunity under Hyatt III. See Gibraltar Rock, A. d at .
8
[the U.S. Constitution’s] structure and supported by historical practice.” Id. at -
.9 To provide context, we briefly discuss Franchise Tax Board of California v.
Hyatt, U.S. ( ) (Hyatt I), Franchise Tax Board of California v. Hyatt,
U.S. ( ) (Hyatt II), and Hyatt III.
In the Hyatt cases, the plaintiff, a private party, had sued a California
agency in Nevada state court for various torts. Hyatt III, S. Ct. at . The
California agency countered that under the Full Faith and Credit Clause of the U.S.
Constitution, Nevada must recognize and apply a California law that immunized the
California agency from suit. Id. The Nevada Supreme Court declined to apply that
California law, and it instead applied Nevada law to resolve the scope of the
California agency’s immunity. Id. Subject to two qualifications, the U.S. Supreme
Court affirmed, “holding that the Full Faith and Credit Clause did not prohibit
9
Pennsylvania has similarly concluded that its sovereign immunity is grounded in common
law in addition to statute. See Pa.C.S. § ; Pa.C.S. §§ - (Sovereign Immunity
Act); Mayle v. Pa. Dep’t of Highways, A. d , (Pa. ). This conclusion buttresses
the High Court’s observation that because “the States considered themselves fully sovereign
nations” prior to the drafting and ratification of the U.S. Constitution, the sovereign immunity
doctrine is implicitly woven into the U.S. Constitution. Hyatt III, S. Ct. at ; Alden v.
Maine, U.S. , - ( ).
We add that the Sovereign Immunity Act appears to recognize that Eleventh Amendment
immunity applies to federal suits or, as appropriate, state suits under federal law. Pa.C.S. §
(b); Goldman, A. d at . Federal courts have also suggested that Eleventh Amendment
immunity is limited to federal suits. See PennEast Pipeline Co. v. New Jersey, S. Ct. ,
( ) (explaining that when “a State waives its immunity and consents to suit in federal
court, the Eleventh Amendment does not bar the action” (citation omitted)); Waterfront Comm’n
of New York Harbor v. Governor of New Jersey, F. d , ( d. Cir. ) (stating “the
Eleventh Amendment expressly protects a State from federal suits by citizens of another State or
country”); see generally Treatise on Const. L. § . (b)(v) (“The Eleventh Amendment, and the
broader state sovereign immunity that the Eleventh Amendment reflects, bars federal court relief
that, but for the Eleventh Amendment, a federal court could grant.”); William Baude & Stephen E.
Sachs, The Misunderstood Eleventh Amendment, U. Pa. L. Rev. , , ( ) (same).
But cf. Galette, A. d at - (invoking the Eleventh Amendment in resolving whether NJ
Transit may invoke sovereign immunity). Our Supreme Court may resolve any division between
the intermediate appellate courts. See generally Holland v. Marcy, A. d , (Pa. ).
9
Nevada from applying its own immunity law to the case.” Id. (citing Hyatt I,
U.S. at - ).10
Subsequently, following a Nevada state court trial, a jury found the
California agency liable and awarded significant damages. Hyatt III, S. Ct. at
. The California agency appealed, and the Nevada Supreme Court rejected most
of the damages but affirmed a one million dollar judgment on one of the counts. Id.
In relevant part, although the Nevada Supreme Court “recognized that tort liability
for Nevada state agencies was capped at $ , under state law, it nonetheless held
that Nevada public policy precluded it from applying that limitation to the California
agency in this case.” Id. In other words, the California agency was liable for the
full amount notwithstanding a Nevada law capping damages for Nevada state
agencies. Id. The Hyatt II Court “reversed, holding that the Full Faith and Credit
Clause required Nevada courts to grant the [California agency] the same immunity
that Nevada agencies enjoy,” i.e., the damages cap that applied to Nevada agencies
would also apply to the California agency. Id. (citing Hyatt II, U.S. at - ).11
10
The first qualification was that the Full Faith and Credit Clause did “not require one State
to apply another State’s law that violates its own legitimate public policy.” Hyatt II, U.S. at
(cleaned up). The second qualification was that Nevada’s exercise of its choice-of-law
principles in invoking Nevada law, “did not exhibit a policy of hostility to the public Acts of a
sister State.” Id. (cleaned up) (noting Nevada’s reliance on its own sovereign immunity principles).
11
In reaching that holding, the Hyatt II Court emphasized that it was not endorsing a
“balancing-of-interests approach to conflicts of law under the Full Faith and Credit Clause,” as “a
state need not substitute the statutes of other states for its own statutes dealing with a subject matter
concerning which it is competent to legislate.” Hyatt II, U.S. at (cleaned up). The Hyatt
II Court reasoned, however, that the U.S. Constitution does not permit Nevada to disregard its own
law and impose damages against a California agency “that are greater than it could award against”
a Nevada agency “in similar circumstances.” Id. at , . In doing so, the Hyatt II Court
explained, Nevada failed to give a “healthy regard” to California’s sovereign status. Id. at . Cf.
Galette, A. d at - (applying Pennsylvania law to resolve NJ Transit’s sovereign status).
Nevada’s lack of regard reflected a “constitutionally impermissible” “hostility” to California’s law
immunizing its agency from suit. Hyatt II, U.S. at .
10
In sum, Hyatt I stood for the qualified proposition that the Full Faith
and Credit Clause did not obligate one state to recognize another state’s sovereign
immunity. Hyatt III, S. Ct. at . Hyatt II held that the Full Faith and Credit
Clause bars one state from treating another state’s sovereigns, i.e., agencies treated
as arms of the state, differently from its own sovereigns. Hyatt II, U.S. at ,
. Both Hyatt I and II addressed the state’s exercise of comity in whether to
recognize another state’s sovereign immunity.12
Prior to Hyatt III, Pennsylvania state courts similarly relied on comity
in resolving whether to recognize New Jersey’s sovereign immunity. For example,
in Flamer v. New Jersey Transit Bus Operations, Inc., A. d (Pa. Super.
), two Pennsylvania residents were injured on a NJ Transit bus in Camden, New
Jersey. Flamer, A. d at .13 The Flamer Court recognized that NJ Transit
was an arm of New Jersey that could invoke sovereign immunity. Id. at ,
n. . The Court exercised comity to recognize that New Jersey’s Tort Act was not
repugnant to Pennsylvania’s public policy. Id. at - . Upon applying the Tort
Act, the Court agreed that NJ Transit could not be sued in Pennsylvania. Id. at .14
12
“Comity refers to the principle that one state will give effect to laws and judicial
decisions of another state out of deference and mutual respect, rather than out of duty.” Neyman
v. Buckley, A. d , (Pa. Super. ) (cleaned up).
13
The Flamer plaintiffs sued NJ Transit in Pennsylvania state court, and the trial court
agreed with NJ Transit’s position that it was immune from being sued in Pennsylvania under the
Tort Act. Flamer, A. d at ; see also Ross, A. d at (explaining that New Jersey
Transit Bus Operations, Inc., is a public entity subject to the Tort Act). On appeal, the plaintiffs
argued that because New Jersey’s Tort Act violates Pennsylvania’s public policy, Pennsylvania
should not recognize the Tort Act under the Full Faith and Credit Clause. Flamer, A. d at
. Cf. Hyatt III, S. Ct. at . One of the plaintiffs also argued that suit should remain in
Pennsylvania because she failed to comply with the Tort Act’s notice requirements and there was
no other forum in which she could file suit. Flamer, A. d at n. . The Flamer Court
rejected both arguments, infra.
14
Contra Galette, A. d at - (applying Pennsylvania jurisprudence to hold NJ
Transit is not an arm of the state). We add that the Superior Court also followed Flamer in
11
In contrast, in Laconis, the plaintiff (a Pennsylvania resident) was
injured while driving on a bridge linking Pennsylvania and New Jersey, which was
operated by the defendant bridge commission. Laconis, A. d at .
Specifically, the plaintiff’s accident occurred on a Pennsylvania-owned highway
“located immediately after” the bridge. Id. The defendant argued that Pennsylvania
should have applied the Full Faith and Credit Clause to recognize the Tort Act, under
which the commission was immune. Id. at . The Laconis Court disagreed,
reasoning that under pre-Hyatt III caselaw, the issue of “whether one state is required
to accord sovereign immunity in its courts to another state is purely a question of
comity.” Id. Citing various factors, the Laconis Court held that “principles of comity
do not require us to apply the New Jersey sovereign immunity statute,” and thus, the
defendant could not invoke immunity. Id. at - . These Pennsylvania cases
stand for the proposition that prior to Hyatt III, states could apply comity principles
and elect whether to recognize New Jersey’s sovereign immunity under the Tort Act.
See Laconis, A. d at - ; Flamer, A. d at - ; Astorino, A. d
at . No longer.
In Hyatt III, the U.S. Supreme Court resolved a more fundamental
question: whether the U.S. “Constitution permits a State to be sued by a private party
without its consent in the courts of a different State.” Hyatt III, S. Ct. at ;
accord id. at - (stating, “the question here is whether the Federal
Constitution requires each State to grant its sister States immunity, or whether the
resolving whether the Tort Act applied in a suit involving Pennsylvania residents riding a NJ
Transit train when it derailed in New Jersey. Astorino v. N.J. Transit Corp., A. d , (Pa.
Super. ). NJ Transit asserted that it was immune from being sued in Pennsylvania under the
Tort Act. Id. at . The trial court agreed and dismissed the case for lack of jurisdiction. Id. The
Astorino Court affirmed, reasoning that it would exercise comity to recognize the Tort Act and that
Pennsylvania state courts lacked jurisdiction as New Jersey was immune from suit. Id.
12
Constitution instead permits a State to grant or deny its sister States immunity as it
chooses,” i.e., comity. (Breyer, J., dissenting) (emphases in original)). In other
words, when private parties have sued NJ Transit, a New Jersey sovereign agency,
in Pennsylvania state courts, the issue is whether Pennsylvania must recognize, or
can it choose not to recognize, NJ Transit’s sovereign immunity. See id. at ;
accord id. at - .
The Hyatt III Court explained that each “State’s equal dignity and
sovereignty under the Constitution implies certain constitutional limitations on the
sovereignty of all of its sister States.” Id. at (cleaned up). “One such limitation
is the inability of one State to hale another into its courts without the latter’s consent.
The Constitution does not merely allow States to afford each other immunity as a
matter of comity; it embeds interstate sovereign immunity within the constitutional
design.” Id.15 In other words, the U.S. “Constitution implicitly strips States of any
power they once had to refuse each other sovereign immunity[.]” Id. at .16
Instead of each state exercising its discretion on whether to recognize a sister state’s
sovereign immunity, each state was now obligated to recognize the other’s sovereign
immunity. Id. at (holding that “States retain their sovereign immunity from
private suits brought in the courts of other States”), .
Subsequently, numerous courts have dismissed suits based on Hyatt III.
15
In contrast, as noted herein, prior to Hyatt III, “States maintained sovereign immunity
vis-à-vis each other in the same way that foreign nations do, meaning that immunity is available
only if the forum State voluntarily decides to respect the dignity of the defendant State as a matter
of comity.” Hyatt III, S. Ct. at (cleaned up and emphasis added).
16
Accord Farmer v. Troy Univ., S.E. d , (N.C. ) (explaining that before
Hyatt III, “the rule was that States were allowed, but not constitutionally required, to extend
sovereign immunity to sister States as a matter of comity”); Belfand, N.Y.S. d at (stating
that Hyatt III “holds that a state may be sued by a private citizen in a sister state only when it has
consented to such suits”). Contra Galette, A. d at - (applying comity to reject NJ
Transit’s status as an arm of the state).
13
For example, in State v. Great Lakes Minerals, LLC, S.W. d (Ky. )
(Minerals), the Kentucky Supreme Court held that an Ohio agency and an Ohio
public official, in his official capacity, were entitled to sovereign immunity.
Minerals, S.W. d at - (relying on Hyatt III). In Minerals, a Kentucky
company sued Ohio and Ohio’s Tax Commissioner in Kentucky state court. Id. at
. Both Ohio and the Tax Commissioner invoked sovereign immunity, with the
latter invoking immunity both in his official capacity and personal capacity. Id. The
Minerals Court agreed that Ohio and the Tax Commissioner in his official capacity
were both entitled to sovereign immunity based on the Hyatt III reasoning. Id. at
- .17
Similarly, in Farmer, the North Carolina Supreme Court recognized
that under Hyatt III, an Alabama defendant had sovereign immunity per Alabama
law. Farmer, S.E. d at . In Farmer, a North Carolina plaintiff sued an
Alabama university in North Carolina state court. Id. at . The Alabama university
invoked sovereign immunity based on an Alabama law that Alabama’s universities
have sovereign immunity. Id. at . The North Carolina Supreme Court recognized
that Alabama law because under Hyatt III, “the United States Constitution does not
simply permit a State to grant its sister States immunity from suit but requires it.”
Id. Contra Galette, A. d at - (rejecting New Jersey jurisprudence that NJ
Transit is an arm of the state). Thus, the Farmer Court held that the Alabama
17
With respect to the Ohio Tax Commissioner in his official capacity, the Minerals Court
relied on U.S. Supreme Court precedent that a suit against a public official in an official capacity
is identical to a suit against the state. Minerals, S.W. d at (discussing Kentucky v. Graham,
U.S. , - ( )). The Minerals Court next examined whether the Tax Commissioner
could still be sued in his personal capacity in Kentucky. Id. The Kentucky Supreme Court
explained that it would have to interpret Ohio law to resolve whether the Tax Commissioner was
entitled to common law immunity. Id. at - . The Minerals Court applied principles of comity,
held that “Ohio’s state courts are better suited to efficiently evaluate and apply Ohio law to this
issue,” and dismissed the Tax Commissioner in his personal capacity. Id.
14
university was “entitled to sovereign immunity from suit without its consent in the
state courts of every state in the country.” Farmer, S.E. d at (citation
omitted).18 In sum, in relevant part, neither Supreme Court exercised comity in
deciding whether to accept the defendant’s sovereign immunity status.19
Instantly, like in Hyatt III, Minerals, and Farmer, Plaintiffs have sued
a New Jersey agency in Pennsylvania state court. Cf. Hyatt III, S. Ct. at ;
Minerals, S.W. d at ; Farmer, S.E. d at . Similar to ( ) the California
agency that invoked sovereign immunity under California law in Hyatt III, and ( )
the Alabama entity subject to Alabama law in Farmer, NJ Transit has invoked
sovereign immunity under the Tort Act. See Hyatt III, S. Ct. at ; Farmer,
S.E. d at . Under pre-Hyatt III caselaw, Pennsylvania would have applied
comity principles in deciding whether to recognize NJ Transit’s sovereign status.
See, e.g., Flamer, A. d at - ; Astorino, A. d at ; Laconis, A. d
at - . Following Hyatt III, Pennsylvania no longer has the option of exercising
comity and must recognize New Jersey’s sovereign immunity, which includes NJ
Transit. See Hyatt III, S. Ct. at , ; Minerals, S.W. d at -
18
The Farmer Court next considered whether the Alabama university explicitly waived its
sovereign immunity when it registered as a nonprofit corporation under North Carolina law.
Farmer, S.E. d at . The applicable North Carolina statute provided that when the
university registered as a nonprofit corporation, the university consented to be sued in North
Carolina state courts. Id. Thus, the Farmer Court recognized the Alabama university’s sovereign
immunity as an arm of the state, but that the university waived sovereign immunity. Id. at - .
19
We note that the Farmer Court did not consider whether to apply comity before
recognizing the Alabama law bestowing sovereign immunity to its universities. See also Hyatt II,
U.S. at (reiterating its rejection of “a complex balancing-of-interests approach to conflicts
of law under the Full Faith and Credit Clause” in resolving whether to respect another state’s
statutorily-imposed sovereign immunity (cleaned up)); Alden, U.S. at - (explaining that
the United States—a sovereign—cannot abrogate the sovereign immunity of a state—a
sovereign—in federal courts). But see Galette, A. d at - . Although a state law was not
at issue in Minerals, the Kentucky Supreme Court similarly did not apply comity in deciding
whether Ohio could invoke sovereign immunity. But see id.
15
(recognizing Ohio’s sovereign immunity); Farmer, S.E. d at
(acknowledging Alabama’s sovereign immunity). But see Galette, A. d at -
.
We add that Plaintiffs erroneously argue that Pennsylvania is the proper
jurisdiction because no Pennsylvania statute bars NJ Transit from being sued in
Pennsylvania. The Hyatt III Court, however, rejected a similar argument. See Hyatt
III, S. Ct. at - (explaining that because interstate sovereign immunity is
inherent in the U.S. Constitution, it is “inappropriate for state law to control”
(citation omitted)). Plaintiffs also misconstrue sovereign immunity as merely
permitting NJ Transit to invoke, in Pennsylvania court, any immunities it would have
in New Jersey court. Absent NJ Transit’s consent, or some other exception not
before this Court, NJ Transit cannot be sued in Pennsylvania state courts. See id. at
; Brooks, A. d at .20 Accordingly, bound by U.S. Supreme Court
precedent, we hold that Pennsylvania must also recognize NJ Transit’s sovereign
immunity. See Hyatt III, S. Ct. at ; NASDAQ, A. d at .21 We next
address whether NJ Transit waived sovereign immunity.
20
See also Treasurer of New Jersey v. U.S. Dep’t of Treasury, F. d , - ( d Cir.
) (holding that absent the sovereign’s express, unambiguous waiver of sovereign immunity, a
court lacks subject matter jurisdiction and that “consent alone gives jurisdiction to adjudge against
a sovereign. Absent that consent, the attempted exercise of judicial power is void” (cleaned up)).
21
It would appear to follow that if one state has enacted a statute immunizing its agency—
much like California did with its agency in Hyatt III—then a sister state no longer has the option
of exercising comity, as Nevada did in Hyatt I and II. Rather, Nevada is now obligated to recognize
the sovereign immunity of the California agency. Hyatt III, S. Ct. at , . In so holding,
the High Court did not analyze California or Nevada law in resolving whether to recognize the
California agency’s sovereign immunity. See id. Compare Galette, A. d at - (rejecting
New Jersey law and applying Pennsylvania law in determining whether NJ Transit was an arm of
New Jersey), with cf. Hyatt III, S. Ct. at (noting that it “is not rational to suppose that the
sovereign power should be dragged before a court”). In any event, Plaintiffs concede that NJ
Transit is a sovereign agency. Resp. to Prelim. Objs. ¶ .
16
C. Waiver of Sovereign Immunity Under the Tort Act
Third, NJ Transit maintains that it has not waived its sovereign
immunity. NJ Transit begins by discussing Atascadero State Hosp. v. Scanlon,
U.S. ( ), for the proposition that in order to waive sovereign immunity, a
state must explicitly specify its intention to be sued in federal court. NJ Transit’s Br.
at . Per NJ Transit, because the constitutional clause in Scanlon was silent about
the state’s willingness to be sued in federal court, the High Court refused to hold that
the state waived sovereign immunity. Id. NJ Transit analogizes to Scanlon,
reasoning that because the Tort Act is similarly silent about New Jersey public
entities being sued outside of New Jersey, NJ Transit has not waived sovereign
immunity. Id. at - (discussing § : - of the Tort Act, which we quote infra).
Plaintiffs counter that Scanlon is inapt because the instant case is not a
federal suit. Pls.’ Br. at . They argue that under N.J.S.A. § : - , public entities
are liable for negligence to the same extent as a private person would be. Id. at .
Plaintiffs summarily conclude that because a NJ Transit bus accident “is an
exception to state sovereign immunity,” “there is clearly no” immunity here. Id. at
- . Plaintiffs similarly reason that if this Court accepted NJ Transit’s argument,
then NJ Transit could never be sued in “any court at all for an accident that occurred
in Philadelphia.” Id. at . Plaintiffs thus maintain that sovereign immunity does
not prevent NJ Transit from being sued in Pennsylvania. Id. at .22
22
Plaintiffs tersely construe sovereign immunity as granting NJ Transit the same
immunities in Pennsylvania that NJ Transit would have in New Jersey. Pls.’ Br. at . Plaintiffs
also concisely argue that they could not sue in New Jersey “because there is no basis to sue
[SEPTA] in New Jersey for an accident that occurred in Philadelphia.” Id. at . Further, Plaintiffs
curtly claim they could not file two separate complaints under New Jersey’s “Entire Controversy
doctrine,” but Plaintiffs did not explain the doctrine. Id. In reply, NJ Transit reiterates that under
the Tort Act, it can be sued in New Jersey. NJ Transit’s Reply Br. at - . NJ Transit also retorts
that because SEPTA is not a public entity under Pennsylvania law, Plaintiffs could have sued
SEPTA in New Jersey. Id. at - .
17
New Jersey’s Tort Act states that it is “the public policy of this State
that public entities shall only be liable for their negligence within the limitations of
this act and in accordance with the fair and uniform principles established herein.”
N.J.S.A. § : - ; see generally Melmark, A. d at . “Any liability of a
public entity established by this act is subject to any immunity of the public entity
and is subject to any defenses that would be available to the public entity if it were
a private person.” N.J.S.A. § : - (b); see id. § : - (a).23 The term “any
immunity” includes sovereign immunity. Rochinsky v. State, A. d ,
(N.J. ) (explaining that the Tort Act preserved “common-law and statutory
immunities not contained in the Act” itself, including sovereign immunity (emphasis
in original)).24
With respect to Plaintiffs’ cursory arguments, Plaintiffs misconstrue the sovereign
immunity doctrine. See Hyatt III, S. Ct. at (explaining that states are immune from private
suits filed in the courts of other states); see also Brooks, A. d at (explaining sovereign
immunity is an immunity from suit and not a defense to liability); Maison, A. d at
(explaining that the Tort Act, “in the absence of an applicable immunity, generally contemplates a
symmetry of treatment between government actors and private actors” for liability (emphases
added)). Further, SEPTA has been sued in New Jersey. See Triffin v. S.E. Pa. Transp. Auth.,
A. d , (N.J. Super. Ct. App. Div. ) (reasoning that because SEPTA waived personal
jurisdiction, “there is no bar–constitutional or otherwise–to a court’s adjudication of a claim
against a non-resident defendant”). Finally, Plaintiffs’ skeletal argument invoking the Entire
Controversy doctrine fails for lack of development. See Diamond v. Chulay, F. Supp. ,
(N.D. Ill. ).
23
Section : - (a) states, “A public entity is liable for injury proximately caused by an
act or omission of a public employee within the scope of his employment in the same manner and
to the same extent as a private individual under like circumstances.” N.J.S.A. § : - (a).
24
Accord Stewart v. New Jersey Tpk. Auth./Garden State Parkway, A. d , (N.J.
) (noting that the New Jersey Legislature passed the Tort Act after the New Jersey Supreme
Court “abolished the common law doctrine of sovereign immunity”). “Tort claims under this act
shall be heard by a judge sitting without a jury or a judge and jury where appropriate demand
therefor is made in accordance with the rules governing the courts of the State of New Jersey.” Id.
§ : - ; see also Mesgleski v. Oraboni, A. d , (N.J. Super. Ct. App. Div. )
(stating the “legislative goal of the [Tort] Act is to re-establish immunity for all governmental
bodies within its definition of public entity. Immunity is all-inclusive within that definition except
as otherwise provided by the [Tort] Act” (cleaned up)). In sum, under the Tort Act, a New Jersey
18
Instantly, Plaintiffs conceded that NJ Transit is a sovereign, public
entity subject to the Tort Act. Resp. to Prelim. Objs. ¶ ; accord Maison, A. d
at . As a public entity, the Tort Act shields NJ Transit from liability subject to
certain exceptions. Maison, A. d at ; Wright v. State, A. d , (N.J.
). The Tort Act, however, does not explicitly address or otherwise express New
Jersey’s consent to be sued outside of New Jersey, i.e., there is no waiver of
sovereign immunity. See generally N.J.S.A. §§ : - to : - .
But other courts have addressed the issue. To provide some context for
those cases, we briefly discuss Scanlon. In Scanlon, the High Court addressed
whether a state constitution clause waived the state’s Eleventh Amendment
immunity to being sued in federal court. Scanlon, U.S. at (interpreting
constitutional clause stating, “[s]uits may be brought against the State in such
manner and in such courts as shall be directed by law”). The Scanlon Court stated
that “in order for a state statute or constitutional provision to constitute a waiver of
Eleventh Amendment immunity, it must specify the State’s intention to subject itself
to suit in federal court.” Id. (emphasis in original). Because the clause did not
indicate the state was open to being sued in federal court, the High Court refused to
hold that the state waived immunity. Id.25
Although the Scanlon Court did not address the Tort Act, New York
public entity may negate liability by establishing immunity. Maison, A. d at ; Rochinsky,
A. d at - .
25
See also Hyatt v. Cnty. of Passaic, Fed. App’x ( d. Cir. ) (Passaic). In New
Jersey, plaintiffs sued Passaic County, New Jersey, among other agencies, in federal court. Id. at
. The defendants invoked Eleventh Amendment immunity, the district court agreed, and the
plaintiffs appealed. Id. at . The plaintiffs argued that the Tort Act “waived Eleventh
Amendment immunity.” Id. at . The Third Circuit summarily held that the Tort Act “allows
suits against public entities and their employees in state courts, [but] does not expressly consent to
suit in federal courts and thus is not an Eleventh Amendment waiver.” Id. (citing N.J.S.A. § : -
(a)).
19
courts have addressed it. In Belfand, a New York plaintiff was in an accident with a
NJ Transit bus in New York. Belfand, N.Y.S. d at . The plaintiff sued NJ
Transit in New York, and NJ Transit invoked sovereign immunity. Id. On appeal,
the Belfand Court noted that the Tort Act provided no consent to suits in federal
court. Id. at (citing cases). The Belfand Court reasoned that if the Tort Act was
insufficient to establish NJ Transit’s consent to be sued in federal court, then it was
“equally insufficient” to establish New Jersey’s consent to “suits in a sister state.”
Id. at . The Court therefore held, “New Jersey’s consent to suits in its state courts
under its [Tort Act] is not an express consent to suit in courts of a sister state and
therefore fails to satisfy [Hyatt III’s] constitutional demand. The statute is not a
basis for a finding that [NJ Transit] consented to this New York action.” Id.26
Instantly, similar to Scanlon, and after reviewing the Tort Act, we also
agree with the Passaic and Belfand Courts that the Tort Act contains no language in
which New Jersey, i.e., NJ Transit, explicitly consents to being sued outside of New
Jersey. See Scanlon, U.S. at ; Passaic, Fed. App’x at ; Belfand,
N.Y.S. d at ; see also Melmark, A. d at . Because NJ Transit invoked
sovereign immunity in its preliminary objections, answer, and motion for judgment
on the pleadings, we also disagree with the trial court’s holding that NJ Transit
waived sovereign immunity. See Trial Ct. Op. at . It follows that given NJ Transit
did not consent to be sued in Pennsylvania courts, the trial court erred as a matter of
law in overruling NJ Transit’s preliminary objections and denying its motion for
26
The Belfand Court, however, further held that NJ Transit had waived sovereign immunity
by failing to timely invoke it. Belfand, N.Y.S. d at ; see also Taylor v. N.J. Transit Corp.,
N.Y.S. d , (N.Y. App. Div. ); Fetahu v. N.J. Transit Corp., N.Y.S. d , (N.Y.
App. Div. ); Henry v. N.J. Transit Corp., N.Y.S. d (N.Y. App. Div. ). Thus, the
Belfand suit continued in New York. Plaintiffs have not suggested NJ Transit untimely raised
sovereign immunity. We add that NJ Transit cited to Belfand before the trial court.
20
judgment on the pleadings. See Farmer, S.E. d at ; Minerals, S.W. d at
- ; Sutton, A. d at n. ; Yanakos, A. d at n. .
IV. CONCLUSION
In sum, we hold as follows. First, the orders at issue are appealable
collateral orders. Second, the trial court erred because Pennsylvania must recognize
NJ Transit’s sovereign immunity under Hyatt III. Third, under the Tort Act, NJ
Transit did not consent to be sued outside of New Jersey state courts. Accordingly,
the trial court erred in overruling NJ Transit’s preliminary objections and denying
NJ Transit’s motion for judgment on the pleadings. We reverse the orders at issue
and remand with instructions to dismiss.
LORI A. DUMAS, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lee Marshall and Pamela Fuller : CASES CONSOLIDATE
:
v. : No. C.D.
:
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. : No. C.D.
:
Lee Marshall, Pamela Fuller, and :
Southeastern Pennsylvania :
Transportation Authority :
ORDER
th
AND NOW, this day of August, , we REVERSE the June ,
order entered by the Court of Common Pleas of Philadelphia County (trial
court), which overruled the preliminary objections filed by New Jersey Transit and
New Jersey Transit Corporation (collectively, NJ Transit). We REVERSE the trial
court’s January , order denying NJ Transit’s motion for judgment on the
pleadings. We REMAND with instructions to dismiss the case.
LORI A. DUMAS, Judge