The opinion
DISSENTING OPINION BY
Judge PELLEGRINI.
The issue in this appeal is whether the Southeastern Pennsylvania Transportation Authority (SEPTA) is an “arm of the state” enjoying Eleventh Amendment immunity from liability under the Federal Employers’ Liability Act (FELA). 1 Coming to a different conclusion than does the United States Court of Appeals for the Third Circuit, the majority finds that SEPTA is entitled to Eleventh Amendment immunity. It does so because, like all authorities in Pennsylvania, even those created mainly by local governments for purely local purposes, it is denominated as an “instrumentality of the Commonwealth;” it is governed by provisions of the Sovereign Immunity Act, rather than what is commonly known as the Political Subdivision Torts Claim Act that governs non-commonwealth agencies; and it receives significant funding from the Commonwealth in carrying out its activities. Because I disagree with the majority’s holding that SEPTA is an arm of the state entitled to Eleventh Amendment immunity, I respectfully dissent.
I.
The Eleventh Amendment provides that: “[t]he 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.” See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 146 , 113 S.Ct. 684 , 121 L.Ed.2d 605 (1993). (“The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity.”) 2
The Eleventh Amendment is also available to certain state entities even when the state is not a named party so long as the state is the real party in interest. Whether an entity is entitled to Eleventh Amendment immunity is determined by whether its relationship with the state effectively makes it an “arm of the state.” Regents of the University of California v. Doe, 519 U.S. 425, 429-430 , 117 S.Ct. 900 , 137 L.Ed.2d 55 (1997) (quoting Mt. Healthy City School Dist, Bd. of Educ. v. Doyle, 429 U.S. 274 280 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977)). An important factor used to determine whether an “entity is the arm of the state” is whether any potential money judgment would or would not come from the state treasury. In Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994), the Supreme Court held that the *717 port authority, an entity created by a bi-state compact, was not entitled to Eleventh Amendment immunity as an “arm of the state” because neither state would be “legally” or “practically” liable for a possible money judgment awarded to two injured railway workers. Moreover, “with respect to the underlying Eleventh Amendment question, it is the entity’s potential legal liability, rather than its ability or inability to require a third party. to reimburse it, or to discharge the liability in the first instance, that is relevant.” Doe, 519 U.S. 425, 429-430 , 117 S.Ct. 900 , 137 L.Ed.2d 55 (1997).
However, even though the Eleventh Amendment and state sovereign immunity serves to shield the state treasury, “With regard to Eleventh Immunity, [wjhile state sovereign immunity serves the important function of shielding state treasuries ... the [Eleventh Amendment] doctrine’s central purpose is to accord the states the respect owed to them as joint sovereigns.” Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 , 122 S.Ct. 1864 , 152 L.Ed.2d 962 (2002). If SEPTA is an “arm of the state,” it would be immune; if not, it would continue to be subject to actions brought under FELA.
Each federal circuit court of appeals has adopted a slightly different test to determine whether an entity is an “arm of the state” to determine whether Eleventh Amendment immunity is available. 3 Because FELA actions can be brought in' either federal or state courts, 45 U.S.C. § 56 , it is particularly appropriate to examine how the Third Circuit confers Eleventh Amendment immunity on SEPTA. If we are at odds with the Third Circuit, the net result will be that plaintiffs will bring their actions in federal court.
II.
To determine whether an entity enjoys Eleventh Amendment immunity, the Third Circuit adopted a three-factor test in Fitchik v. N.J. Transit Rail Operations, 873 F.2d 655, 659 (3d Cir.1989). The three “Fitchik factors” are:
(1) Whether the money that would pay the judgment would come from the state (whether payment will come from the state’s treasury, whether the agency has the money to satisfy the judgment, and whether the sovereign has immunized itself from responsibility for the agency’s debts);
(2) The status of the agency under state law (whether the entity is separately incorporated, whether the agency can sue or be sued in its own right, and whether it is immune from state taxation); and
(3) What degree of autonomy the agency has.
In applying the Fitchik test, the Third Circuit noted that while none of the factors were dispositive, the “most important” was “whether any judgment would be paid from the state treasury.” Id. at 659-660 . However, as a result of the Supreme Court decision in Doe and Federal Maritime Commission , the Third Circuit stated that it would “no longer ascribe primacy to the [state-treasury] factor” and now gave equal weight to each of the three Fitchik factors. Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 239 (3d Cir.2005). *718 (Courts of Common Pleas were entitled to Eleventh Amendment immunity even when acting in an administrative capacity because they acted as “arms of the state.”) See also Febres v. Camden Board of Education, 445 F.3d 227 (3d Cir.2006). (School board was not an “arm of the state”).
The Third Circuit examined whether SEPTA was an arm of the state entitled to Eleventh Amendment immunity in Bolden v. SEPTA, 953 F.2d 807 (3d Cir.1991) (en banc), cert. denied, 504 U.S. 943 , 112 S.Ct. 2281 , 119 L.Ed.2d 206 (1992) and, more recently, in Cooper v. SEPTA, 548 F.3d 296, 299 (3d Cir.2008), cert. denied, - U.S. -, 129 S.Ct. 2736 , 174 L.Ed.2d 247 (2009). In each instance, the Third Circuit found that SEPTA was not an arm of the state and was not entitled to Eleventh Amendment immunity.
Cooper involved the same issue that is at issue here — whether SEPTA was entitled to Eleventh Amendment immunity under the “arm of the state,” albeit under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. 207(a). Because there were changes since Bolden was decided in Eleventh Amendment jurisprudence and its state funding formula, Cooper reexamined whether Bolden’s conclusion that SEPTA was an arm of the state for Eleventh Amendment immunity was still good law. After reviewing Bolden and subsequent case law, Chief Judge Scirica, writing for the court, examined each of the Fitchik factors.
A.
Regarding the first Fitchik factor, Cooper found that the relevant criteria under the state-treasury factor weighed against a finding of Eleventh Amendment immunity. Since the United States Supreme Court’s decision in Doe , the Third Circuit stated that no matter what percentage of the agency budget the state paid, the determinative factor was whether the state treasury was legally responsible for the payment of a judgment against the entity. It went on to note that in Febres , it found that even though the Camden Board of Education received 85% to 90% of its funding from New Jersey, “the fact that New Jersey is the principal source of the Board’s finances does not alone confer immunity, or even compel a finding that this prong of the analysis favors immunity.” Cooper at 303-304 , quoting from Febres, 445 F.3d at 232-233 . Because under 74 Pa.C.S. § 1741(c) 4 the Commonwealth was not liable for SEPTA’s debts, it found that the state treasury would not be at risk if a judgment was entered against SEPTA on the FELA claim.
B.
In its analysis of the second Fitchik factor — [t]he status of the agency under state law, the Third Circuit in Cooper found that SEPTA’s status under state law weighed slightly in favor of a Ending of immunity. It reiterated that factors to consider in making that determination included “how state law treats the agency generally, whether the entity is separately incorporated, whether the agency can sue or be sued in its own right, and whether it is immune from state taxation.” Fitchik, 873 F.2d at 659 ; see also Febres, 445 F.3d *719 at 230 . After going through the countervailing factors, the Third Circuit found those did not point clearly in one direction because certain attributes of SEPTA under state law weigh for and against immunity. 5 Regarding the point on which the majority most relies- — -the Commonwealth’s designation of SEPTA as an agency covered under the Pennsylvania Sovereign Immunity Act — it found it to be significant but not dispositive stating that:
As discussed, SEPTA’s enabling legislation grants it attributes that are characteristic of an arm of the state, and those that are not. In Bolden, we rejected SEPTA’s contention that “the Pennsylvania Sovereign Immunity Act conferred Eleventh Amendment protection upon SEPTA.” 953 F.2d at 817; see also id. (explaining that “[i]f this reasoning were accepted, each state legislature apparently could confer Eleventh Amendment protection on any entity it wished, including counties and cities, by enacting a statute clothing these entities with ‘sovereign immunity’ from suit on state claims”). Although we have revised our immunity analysis since Bolden, we do not believe this alters our ultimate conclusion on this point.
C.
In answering the third Fitchik factor, what degree of autonomy SEPTA has from the state, the Third Circuit in Cooper found that factor weighed slightly against Eleventh Amendment immunity. It did so because the Commonwealth lacked a mechanism to dictate the outcome of decisions made by SEPTA’s board of directors. It noted that the same conditional-funding *720 influence over any entity that applies for financial assistance, including political subdivisions which, the United State Supreme Court has held is not an arm of the state.
D.
Balancing those factors, giving equal weight to each, because the state treasury factor weighed against a finding of immunity, SEPTA’s status under state law weighed slightly in favor of immunity and the autonomy factor weighs slightly against immunity, the Third Circuit found that SEPTA was not entitled to Eleventh Amendment immunity.
Because I agree with the Third Circuit’s analysis, I would affirm the trial court’s decision in Goldman and reverse in Davis. Accordingly, I respectfully dissent.
. For an analysis of FELA’s and SEPTA’s history, see the thorough and well written opinion of the Honorable Nitza Quinones Alejandro, dated December 24, 2008.
. Congress can abrogate states' immunity from suit when: (1) Congress has "unequivocally” expressed the "intent” to abrogate immunity and (2) Congress is acting "pursuant to a valid exercise of power.” Green v. Mansour, 474 U.S. 64, 68 , 106 S.Ct. 423 , 88 L.Ed.2d 371 (1985). There is no allegation that Congress has abrogated Eleventh Amendment immunity from actions brought against the state under FELA.
. Analisa Dillingham, REACHING FOR IMMUNITY: THE THIRD CIRCUIT’S APPROACH TO THE EXTENSION OF ELEVENTH AMENDMENT IMMUNITY TO IN-STRUMENTALITIES AS ARMS OF THE STATE IN BENN V. FIRST JUDICIAL DISTRICT OF PENNSYLVANIA, 51 Villa. L.Rev. 999 (2006). This excellent article compares the Third Circuit and the other federal circuits' approaches to determining whether Eleventh Amendment immunity applies.
. 74 Pa.C.S. § 1741(c)provides that “The authority shall have no power, at any time or in any manner, to pledge the credit or taxing power of the Commonwealth or any other government agency, nor shall any of the authority’s obligations be deemed to be obligations of the Commonwealth or of any other government agency, nor shall the Commonwealth or any government agency be liable for the payment of principal or interest on such obligations.”
. The Third Circuit weighed the following in determining SEPTA's status under state law:
Under its enabling statute, SEPTA has (1) a separate corporate existence, 74 Pa. Cons. Stat. § 1711 (a); (2) the power to sue and be sued, id. § 1741(a)(2); and (3) the power to enter into contracts and make purchases on its own behalf, id. § 1741(a)(8), (9), (12)(18), (20), (21), (22), (24), (25). Other attributes support immunity: (1) its enabling statute provides that SEPTA “shall in no way be deemed to be an instrumentality of any city or county or other municipality or engaged in the performance of a municipal function, but shall exercise the public powers of the Commonwealth as an agency and instrumentality thereof,” id. § 1711(a) and "shall continue to enjoy sovereign and official immunity, as provided [by the statutory provisions that comprise and pertain to the Pennsylvania Sovereign Immunity Act],” id. § 1711(c)(3); (2) SEPTA has the power of eminent domain, id. § 1741(a)(13); and (3) SEPTA is immune from state taxation. As noted in Bolden, 953 F.2d at 820, Pennsylvania state courts have recognized SEPTA to be a Commonwealth agency to which the Pennsylvania Sovereign Immunity Act applies. See, e.g., Jones v. SEPTA, 565 Pa. 211 , 772 A.2d 435, 444 (2001) (holding SEPTA immune in a tort case because the case did not fall within an exception to the Sovereign Immunity Act); Feingold v. SEPTA, 512 Pa. 567 , 517 A.2d 1270, 1276-77 (1986) (finding that SEPTA is "an agency of the Commonwealth” against whom "it would be inappropriate to assess punitive damages”). In other contexts, however, Pennsylvania courts have declined to treat SEPTA as the Commonwealth. See, e.g., Fraternal Order of Transit Police v. SEPTA, 668 A.2d 270, 272 (Pa.Commw.Ct.1995) (holding "that for purposes of determining jurisdiction, SEPTA is a local agency and not a Commonwealth agency"); SEPTA v. Union Switch & Signal, Inc., 161 Pa.Cmwlth. 400 , 637 A.2d 662, 669 (1994) (“Because SEPTA is financially independent of the Commonwealth and its operations are not statewide, we conclude that the General Assembly did not intend SEPTA to be the Commonwealth for purposes of the Board Claims Act.”); Fisher v. SEPTA, 60 Pa.Cmwlth. 269 , 431 A.2d 394, 397 (1981) ("We do not believe that the Legislature intended SEPTA to be a Commonwealth agency in the traditional sense or for SEPTA employees to be considered Commonwealth employees for purposes of other legislative enactments.”), (footnotes omitted.)