Rader v. Pennsylvania Turnpike Commission

Dissenting Opinion by

Me. Justice Musmanno:

I regret that the prophetic potentialities of United States Circuit Court of Appeals Judge Kalodner of the Third Circuit do not keep pace with his scholarly attainments, his juristic excellence and his sound philosophic appreciation of what constitutes justice. In the case of Gerr v. Emrick, 283 F. 2d 293 , he said: “. . . we are of the opinion that the Pennsylvania Supreme Court would hold that the Pennsylvania Turnpike Commission may be sued for negligence in the construction, operation and maintenance of the Turnpike.”

The Pennsylvania Supreme Court has decided exactly the reverse. It has reached the conclusion that the Pennsylvania Turnpike Commission may not be “sued for negligence in the construction, operation and maintenance of the Turnpike.” However, I believe that Judge Kalodner-’s reasoning more correctly responds to legal realities, decisional integrity, and jurisprudential truth, not to mention natural justice, than does the Majority Opinion of this Court in the case before us.

The legislation which created the Turnpike Commission and the further Acts which have extended its scope (all cited in the Majority Opinion) have specifically stated that the Commission “may sue and be sued.” It would be difficult to find language which more clearly expresses an intention and is less in need of “interpretation” than those words: The Commission *622 may sue and be sued. This statutory authority carries no limitation. It does not say that the Commission may be sued only with regard to construction or in actions arising out of contractual responsibilities. The phrase is there for the world to see and understand. It would take a great deal of interpreting of language to construe those words to mean that the Commission may be sued, “but — .” That interpreting, unfortunately, has not been lacking. The herculean effort to have “be sued” mean “be sued on every subject except tort” has been manifested by many lower courts of the Commonwealth and their distortion of language has now received the official approval of the highest Court of the Commonwealth and nothing can be done about it — at present.

Nevertheless, in the interests of even-handed justice, which is always looming on the horizon of hope in the courts, I believe it is necessary to speak out and declare that the decision of this Court does not accord with legal principles which should control in actions of this kind. I do not intend to write a long dissenting opinion because I do not believe it is necessary. When a statute states that a commission may be sued and it adds no limitation to that suability, the only conclusion possible is that the commission may be sued like anybody else may be sued. I would be willing to state my case of dissent entirely on the excellent opinion written by Judge Kalodner in the case already cited.

In Boorse v. Springfield Township, 377 Pa. 109, I expatiated at length on the many inconsistencies, absurdities and injustices which result from application of the antiquated doctrine that the government is immune from tort liability. I have touched on the subject in other dissenting opinions, but I cannot avoid saying that the immunity proclaimed in the case at bar outdistances the injustices I have heretofore referred to in this field because the entity which is here *623 being sued is not the government. It is not a government institution. It charges for the use of the turnpike it operates, it collects moneys from the restaurants and gasoline stations which offer services to the motorists using the turnpike.

We have thus before our eyes what is definitely and conclusively a business enterprise. There is no difference between buying a ticket to ride on a railroad train and buying a ticket to ride (albeit in your own automobile) on a high-speed highway specially constructed to attract fee-paying clients. The Commonwealth recognizes that the Turnpike Commission is a business engaged in providing service for a monetary consideration. While, therefore, it wants to help it in every way it can because, after all, its success redounds to the credit and prestige of the Commonwealth, it does not in any way want to be obligated financially for obligations incurred by the Commission. Hence, Section 2, 36 P.S. §652b, of the Turnpike Act provides: “That turnpike revenue bonds issued under the provisions of this act shall not be deemed to be a debt of the Commonwealth or a pledge of the faith and credit of the Commonwealth or a pledge of the faith and credit of the Commonwealth, but such bonds shall be payable exclusively from the fund herein provided therefor from tolls. All such bonds shall contain a statement on their face that the Commonwealth is not obligated to pay the same or the interest thereon except from tolls and that the faith and credit of the Commonwealth is not pledged to the payment of the principal or interest of such bonds.” (Emphasis supplied).

In behalf of the tort immunity theory the Commission points out that the Highway Department of the Commonwealth is authorized to render assistance to the Commission through the approval of its plans of construction, participating in repair work, etc. However, it is made clear in the Act that all moneys ex *624 pended by the Department must be paid back by the Commission to the Commonwealth from receipts collected by the Commission from tolls. (Sections 3,. 12, 36 P.S. §§652e, 652.)

The Majority Opinion says that “the authority to ‘sue and be sued’ was not intended as a general waiver of immunity from trespass suits, but applies only to those actions necessary to carry out the ordinary business and functions of the Commission or Agency(Emphasis in original).

But is not the maintenance of the highway an “ordinary business and function of the Commission”? What could be more ordinary, in the sense of regularity and continuity, than the maintenance of the very instrumentality which is the sole reason for its existence, that is, the highway? And if it does that job of maintenance negligently, why should it not be sued? And if found guilty of the charged negligence, why should it not pay as it must pay for any other expenditure in the “ordinary business and functions of the Commission”?

It is true that the turnpike statute makes the statement that the Commission is “hereby constituted an instrumentality of the Commonwealth”, but this provision must be read in connection with other portions of the statute. In Darby v. L. G. De Felice & Son, 94 F. Supp. 535 , the United States District Court of the Eastern District held that “A determination of the question of whether the Commission is an agency or department of the Commonwealth of Pennsylvania or a separate and distinct legal entity we feel depends in the last analysis upon the attributes or characteristics of the Commission as found in the various provisions of the Act of 1940.” ¡

I would accordingly hold that the utterance in the Act that the Commission is an instrumentality of the Commonwealth declares what is impossible, if we are to respect and give vitality to the rest of the Act. The *625 naked statement that the Commission is an .instrumentality of the Commonwealth does not make it so. Declaring a horse to be a cow will never draw milk from the udderless beast.

The Majority Opinion quotes from Transamerican Freight Lines v. Commonwealth, 396 Pa. 64 , where this Court said: “The Legislature has seen fit to prescribe a speed limit for the Turnpike.” But surely this is no criterion for determining that the turnpike is a state function. In the interests of public safety, the Legislature may prescribe a speed limit over any terrain, including private property.

This Court has already indicated that it would not regard the Commission as an integral part of the Commonwealth of Pennsylvania and thus not suable. In Lichtenstein v. Pennsylvania Turnpike Commission, 398 Pa. 415 , we held: “Nothing could be clearer than that claims against the Turnpike Commission are not chargeable to the Commonwealth.”

In Gitlin v. Pa. Turnpike Commission, 384 Pa. 326 , the Commission contended that since the Commonwealth is not liable in damages for delay in payment for property condemned by it and since the Turnpike Commission is statutorily declared to be an instrumentality of the Commonwealth, it was likewise free from liability in such regard. This Court struck down that contention with the finality of a guillotine by stating: “The Commission is not the Commonwealth.”

If the Commission was not the Commonwealth in 1956, what has happened to clothe it with sovereign powers in 1962? Aside from the tangible reasoning which makes the Commission something entirely different from the Commonwealth, it is to be noted that the legislature cannot confer sovereignty. Sovereignty may be acquired only through the affirmative action of a plebiscite because the sovereignty of Pennsylvania is vested in the people, and the people alone. And in this *626 respect, the Commission cannot point to any expression by the people to the effect that a body which charges ■ for the nse of a road it has constructed and maintains may not be sued when, through negligence, it allows ■that road to deteriorate and as a consequence injury is inflicted on fee-paying users of the road.

While the Supreme Court of Pennsylvania pronounces the ultimate decision as to whether the Commission may be sued in tort, I believe that the reasoning employed by the Federal Courts on this subject is entitled to considerable respect because, being completely divorced from the State, they approach the question involved wholly detachedly. They have almost without exception indicated that the Commission is not entitled to the immunity being urged in the case at bar. In Hunklin-Conkey Const. v. Pennsylvania Turnpike Commission, 34 F. Supp. 26 , Judge Watson of the District Court of the Middle District, held that the Commission is “a legal entity distinct from the Commonwealth of Pennsylvania.”

In Lowes v. Pennsylvania Turnpike Commission, 125 F. Supp. 681 , the Commission pleaded immunity on the ground that it was in substance and effect the Commonwealth of Pennsylvania. Judge Follmer of the Middle District of Pennsylvania declared that the statement in the statute that the Commission is an instrumentality of the Commonwealth was “not decisive of the question and not the equivalent of saying that it is entitled to the immunity of the Eleventh Amendment.” He held, therefore, that “There is nothing in the relationship of the Pennsylvania Turnpike Commission to the State to remove it from that group of public corporations and political subdivisions which are not clothed with the immunity from suit which belongs to the State alone.”

In Eastern Motor Express v. Espenshade, 138 F. Supp. 426 , Judge Lord of the Eastern District of Penn *627 sylvania declared that . . the Commission is a separate entity, distinct from the Commonwealth of Pennsylvania [and] not clothed with any immunity.”

In Linger v. Pennsylvania Turnpike Commission, 158 F. Supp. 900 , Judge Miller of the Western District of Pennsylvania stated that even if the State were to be regarded as the real party in interest, the statutory authorization to “sue and be sued” would in itself be “regarded generally as a consent to suit or waiver of a sovereign’s immunity from suit,” citing 49 Am. Jur., States, Territories and Dependencies §102. He held finally that: “Since the Commission is not the state or a mere nominee or agent of the state it does not enjoy immunity from suit.”

The plaintiffs in this case were injured when the automobile in which they were riding skidded as the result of negligence on the part of the Turnpike Commission in maintaining and operating the turnpike. This Court has held that the plaintiffs have no suit because the Turnpike is the Commonwealth. If the accident in question had happened on a county road, and, of course, a county is a subdivision of the Commonwealth, the plaintiffs would have had the right to sue and recover for the injuries they sustained. (Clark v. Allegheny County, 260 Pa. 199 .)

People who are not educated in the mysteries of the law are always asking questions as to why certain things are permitted and certain things not permitted in the law. I leave it to the Majority of this Court to explain why it is that if the plaintiffs had been injured while riding over a road where they would not have to pay toll for riding on it, they could sue those responsible for their injuries, but because they paid out money to ride on the road where they were actually injured they are turned away from the Court.