Sweigard v. Pennsylvania Department of Transportation

Dissenting Opinion by

Mb. Justice Roberts :

The majority again allows a judicially-created anachronism to deprive a litigant of his day in court. I dissent for the reasons set out in my dissenting opinion in Brown v. Commonwealth, 453 Pa. 566, 577 , 305 A. 2d 868, 871 (1973) (joined by Nix and Manderino, JJ.), and Mr. Justice Nix's dissenting opinion in Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 187 , 301 A. 2d 849, 853 (1973), in which I joined. 1

In Brown, supra, we were presented with a situation in which the Legislature had mandated that the agency in question procure insurance. Likewise, here, the Department of Property and Supplies is, by statute, required to purchase liability insurance. As I emphasized in Brown , “there is no rational reason why the majority could not and should not now judicially abrogate the doctrine of sovereign immunity in toto, or at the least, refuse to apply it, where, as here, an instrumentality of the Commonwealth has obtained liability insurance (at the command of the Legislature) to compensate those injured through the fault of its agents.” 2

*36 I also take this opportunity to note that another state supreme court has acted to abolish the antiquated doctrine of sovereign immunity. In Board of Commissioners v. Splendour Shipping & Enterprises Co., 273 So. 2d 19 (La. 1973), the Supreme Court of Louisiana judicially abrogated that state’s long-standing rule of sovereign immunity for state agencies. That case is particularly relevant to the majority’s theory that “ ‘Article I, Section 11 of our Constitution compels the conclusion that this Commonwealth’s immunity is constitutionally, not judicially mandated for the Louisiana court acted in the face of a constitutional provision substantially identical to our own. 3

The Splendour Shipping court squarely faced the inconsistency inherent in the Louisiana Constitution which, in addition to the so-called sovereign immunity clause, mandates that “every person for injury done him . . . shall have adequate remedy by due process of law and justice administered without denial, partiality *37 or unreasonable delay.” La. Const. art. I, §6. Having thus found the state constitution inconclusive, that court continued: “Considering the source of the doctrine in its history, there are three reasons which move us to withdraw from the Board the immunity with which the court has previously insulated it from tort suits. It is unfair. It tends toward governmental irresponsibility. It is an unnecessary exception to the policy of the State of Louisiana as expressed in . . . our Constitution.” 273 So. 2d at 25 .

The same analysis applies to our own constitution. Article I, Section 11 considered in its entirety presents an inconsistency remarkably similar to that in the Louisiana Constitution.

“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.” The majority inexplicably chooses to prefer one sentence of our constitution over another—one right, the questionable immunity privilege of the Commonwealth, is preferred to the unequivocal right granted to “every man” of “have remedy by due course of law.” I cannot accept this conclusion.

“The Constitution is .. . neutral—it neither requires nor prohibits sovereign immunity____The framers of the Constitution accepted the then prevalent concept of sovereignty to include immunity from suit, and attempted through this section to implement the power of the State to consent to actions brought against it.” Biello v. Pennsylvania Liquor Control Board, supra at 189, 301 A. 2d at 854 (Nix, J., dissenting, joined by Roberts, J.).

*38 The day of the absolute monarch endowed with divine right has long since passed into the history boohs. It is time that this Court relegated another vestige of the autocratic past, the doctrine of sovereign immunity, to that same resting place.

Mr. Justice Nix and Mr. Justice Manderino join in this dissent.

See also Thomas v. Baird, 433 Pa. 482, 485 , 252 A. 2d 653, 655 (1969) (Roberts, J., dissenting).

Brown v. Commonwealth, 453 Pa. 566, 578 , 305 A. 2d 868, 871 (1973) (footnote).

*36 “Cf. Falco v. Pados, 444 Pa. 372 , 282 A. 2d 351 (1971); Flagiello v. Pennsylvania Hospital, 417 Pa. 486 , 208 A. 2d 193 (1965).” Id. at 578 n.*, 305 A. 2d at 871 n*.

Compare La. Const. art III, §35, “The Legislature is empowered to waive, by special or general laws or resolutions, the immunity from suit and from liability of the state, and of parishes, municipalities, political subdivisions, public boards, institutions, departments, commissions, districts, corporations, agencies and authorities and other public or governmental bodies; and each authorization by the Legislature for suit against the State or other such public body, heretofore and hereafter enacted or granted, shall be construed to be and shall be effective and valid for all purposes, as of and from the date thereof, as a waiver of the defendant’s immunity both from suit and from liability.”, with Pa. Const, art. I, §11, “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.”