# Mayle v. Pennsylvania Department of Highways

> Supreme Court of Pennsylvania · July 14, 1978 · 479 Pa. 384

URL: https://www.frixlaw.com/law-library/cases/9699420

## Case

- **Full name:** Jimmy v. MAYLE, Appellant, v. PENNSYLVANIA DEPARTMENT OF HIGHWAYS
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 14, 1978
- **Citations:** 479 Pa. 384; 388 A.2d 709; 1978 Pa. LEXIS 764
- **Precedential status:** Published
- **Opinion:** Dissent by O'Brien
- **Judges:** Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino, Larsen, Eag-En
- **Cited by:** 296 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9699420

## How later opinions describe it (automated extraction)

- stating “the information before us suggests that making governments liable for their torts will not substantially raise the costs of government or upset governmental financial stability”
- holding that the doctrine of sovereign immunity in the Commonwealth resulted from a mistaken view of the law by earlier courts

## Opinion text

O’BRIEN, Justice,
dissenting.
I respectfully but emphatically dissent. The majority of this court has usurped the power of the Pennsylvania legislature in abrogating the Pennsylvania Constitutional provision prohibiting suits against the Commonwealth unless the legislature directs that such suits may be filed.
Article I, § 11, of the Pennsylvania Constitution provides:
“All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.” (Emphasis added.)
In Biello v. Pa. Liquor Control Bd., 454 Pa. 179 , 301 A.2d 849 (1973), this court stated:
“. . . This language consistently has been interpreted to mean that no suit may be maintained against the state in tort until the legislature specifically has provided for such an action. Meaghr v. Commonwealth, 439 Pa. 532 , 266 A.2d 684 (1970); Bannard v. N. Y. S. Nat. Gas Corp., 404 Pa. 269 , 172 A.2d 306 (1961); Brewer v. Commonwealth, 345 Pa. 144 , 27 A.2d 53 (1942); Bell Telephone Co. *408 v. Lewis, 313 Pa. 374 , 169 A. 571 (1934); Collins v. Commonwealth, 262 Pa. 572 , 106 A. 229 (1919); Fitler v. Commonwealth, 31 Pa. 406 (1858). . . .” (Emphasis added.)
Article I, § 11, is a Pennsylvania constitutional provision not a creature of the common law capable of judicial modification or abolition, without a judicial determination that another Pennsylvania constitutional provision supersedes it or that it is repugnant to the United States Constitution. This court has no power to abrogate Article I, § 11, of the Pennsylvania Constitution. While sovereign immunity may have arrived in Pennsylvania in Respublica v. Sparhawk, 1 Dall. 357 , 1 L.Ed. 174 (1788) as a judicial creation -that creation was elevated to constitutional stature in the Constitution of 1790 and retained in the Constitution of 1873, and has remained in all of the constitutions up to and including today’s constitution.
This court, while having consistently upheld the Commonwealth’s right not to be sued without its consent, has consistently told the legislature that they and they alone do possess the power to make the Commonwealth amendable to suit. See Brown v. Commonwealth, 453 Pa. 566 , 305 A.2d 868 (1973).
The majority today usurps the legislative power granted to elected members of the General Assembly and the Senate of Pennsylvania.
I dissent and would affirm the order of the Commonwealth Court.
EAGEN, C. J., and POMEROY, J., join in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9699420. Public record. Not legal advice.