BROWN v. Commonwealth

Concurring Opinion by

Mr. Justice Pomeroy:

I join in the opinion of the Court, but deem it appropriate to add this statement of explanation.

As will be clear from my dissenting opinion in Laughner v. Allegheny County, 436 Pa. 572, 576 , 261 A. 2d 607 (1970), it is my considered belief that “neither the early conceptualistic theories nor the more recently articulated policy arguments are adequate to justify retention of the [governmental] immunity doctrine in its present broad scope.” Id. at 579 . I there advanced the view that this unsatisfactory rule, developed as it was by the common law, was a fit subject for abrogation by judicial action: “. . . the judiciary’s traditional responsibility for adapting and improving the doctrines of the common law, particularly in the area of torts, coupled with its original role in the promulgation of the immunity rule, indicate that the judiciary is a natural and proper agent of change in the present case, unless there are countervailing considerations of such strength as to demonstrate the unwisdom of such a conclusion.” Id. at 582 . The opinion in Laughner concluded that neither (1) the argument *573 that the issue fell peculiarly within the institutional competence of the legislature nor (2) the closely related argument that judicial reform of the doctrine would upset the proper relationship between the judiciary and the legislative branches served to prevent reform of the doctrine from being undertaken by this Court. These views I continue to hold, and I therefore note with satisfaction the Court’s decision in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584 , 305 A. 2d 877 (1973) decided this day, in which the doctrine of governmental immunity is abolished in Pennsylvania.

The point of difference between Laughner, Ayala and similar cases involving immunity of units of local government (governmental immunity) on the one hand, and the case at bar and our recent decision in Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179 , 301 A. 2d 849 (1973), involving immunity of the Commonwealth and its agencies (sovereign immunity) on the other hand, is that in the former class of cases there is no constitutional basis for the immunity, while in the latter there is. Thus while one type of immunity may be as distasteful and inequitable as the other, the remedy by judicial decision which the majority of the Court properly finds to be available in the one situation is not in my opinion available in the other.

The Constitution of Pennsylvania provides that “[s]uits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.” Pa. Const, art. I, §11. I am obliged to agree with the Chief Justice that because of this provision “no other conclusion is possible than that it falls to the Legislature to determine the circumstances under which immunity must be waived.” Opinion of the Court, ante at 571. I also agree with the statement in the opinion of Mr. Justice O’Bkien in Biello, supra, that “this [constitutional] language has *574 consistently been interpreted to mean tbat no suit may be maintained against tbe state in tort until the legislature specifically has provided for such an action”. 1 By the same token, I cannot agree with my brother Nix, dissenting in Biello and repeating that dissent here, that the constitutional provision above quoted does not place a limitation on the power of the judiciary to act in the premises. When by their Constitution the people of Pennsylvania have expressly delegated to the legislative branch of government the task of determining in what manner and in what court and in what cases the Commonwealth may be subjected to suit (and, implioity, to the liability that may result therefrom), I fail to see how this Court can properly hold that it has a right to preempt this legislative function. A proposition that had its ancient origin in the common law of England and colonial America was elevated to constitutional status in Pennsylvania as long ago as 1790. To ignore this development would be to warp *575 the plain meaning of the Constitution to suit societal ends which now, one hundred and eighty-three years later, the entire membership of this Court thinks are much to be desired. We may lament the legislative failure to correct before the present date an inequitable situation, but impatience should not cause us to upset the balance of power in our tripartite system of government by making the correction ourselves. To do so would be judicial action of a quite different order from that which I thought proper in Laughner, supra, and which the Court is today taking in Ayala .

It is true, as my brother Roberts observes in his separate dissent herein, that twenty-one jurisdictions (20 states and the District of Columbia) have now in general, subject to normal exceptions, done away with the doctrine of sovereign immunity (i.e., the immunity of states as distinguished from that of political subdivisions). It must be emphasized, however, that of the twenty states taking this action, twelve have done so either by constitutional provision or by statute. Seven states have, to be sure, accomplished this end by judicial decision, but there is no indication that this has been done in the teeth of a constitutional provision such as we have in Pennsylvania recognizing the immunity of the state from suit and vesting in the legislature the power to consent to suit. 2 As the commentary to the proposed new section of the Restatement (Second) of Torts recognizes, “[i]n many states the rule that the state cannot be sued without its consent is written into the constitution . . . Consent to suit against the state or its agencies is normally given by express legislation. In many states this is expressly or impliedly set forth in the State Constitution----” American Law Institute, Restatement (Second) of Torts *576 §895B, at 28, 24 (Comment a) (Tent. Draft No. 19, Mar. 30, 1973) (emphasis added). 3 Thus in the area of sovereign immunity, as distinguished from governmental immunity, reliance on the abolition by this Court of certain other now obsolete doctrines of tort law is in my view quite misplaced. See, e.g., Falco v. Pados, 444 Pa. 372 , 282 A. 2d 351 (1971); Flagiello v. Pennsylvania Hospital, 417 Pa. 486 , 208 A. 2d 193 (1965).

Finally, it is worth noting that the General Assembly of Pennsylvania from as long ago as 1811 has known how in non-tort actions “to enable claimants who ordinarily would have been barred by the prerogative of sovereign immunity against suit, to have a method of redress against the Commonwealth”. Lowry v. Commonwealth, 365 Pa. 474, 478 , 76 A. 2d 863 (1950). See also Merchants Warehouse Co. v. Gelder, 349 Pa. 1 , 36 A. 2d 444 (1944). That the legislature continues to be aware of the problem is clearly demonstrated by the careful caveat in the recent Appellate Court Jurisdiction Act, wherein it was stipulated that the placing in the Commonwealth Court of jurisdiction of certain actions against the Commonwealth “shall not be construed as a waiver by the Commonwealth of immunity to suit”. Act of July 31, 1970, P. L. 673, §401 (c), 17 P.S. §211.401. This renewed recognition that the abrogation or modification of sovereign immunity in Penn *577 sylvania is constitutionally vested in the legislature does not, of course, prevent our continued urging upon the General Assembly of the need to recognize the inequity which is implicit in a case such as this one, and to take appropriate remedial action, as have the legislative bodies of so many of our sister states.

1 would add that this constitutional prohibition of suits against the Commonwealth is not limited to the field of torts, nor is it in my view dependent upon whether or not the activity of the Commonwealth giving rise to the claim is “governmental” or “proprietary” in nature. The Constitution speaks in general terms and the delegation to the legislature of the right to waive the immunity by consent to suit is not restricted to so-called governmental activities. The cases cited in Biello for the proposition that this distinction has been implicit in our application of the rule of sovereign immunity are not to the contrary. In those cases, the word “governmental” was employed as one of the indicators that the agency being sued was actually the Commonwealth; it was not used in contradistinction to the idea of “proprietary”.

Moreover, “[t]he delineation of a rational and consistent line between governmental and proprietary activities has eluded the courts and commentators, and the line between such activities is likely to grow still more elusive as the government increasingly performs services only recently left to the private sector.” Laughner v. Allegheny County, 436 Pa. 572, 582 , 261 A. 2d 607 (1070) (Pomebox, J., dissenting) (footnote omitted).

See Krause v. Ohio, 31 Ohio St. 2d 132 , 285 N.E. 2d 736 (1972). Cf. Muskopf v. Corning Hospital District, 55 Cal. 2d 211 , 359 P. 2d 457 (1961).

Another comment to tlie same proposed new section of the Restatement thus summarizes the present situation: “Thus, it now has become clear that .the tort immunity of the state and its agencies can be abrogated, or severely limited, by either legislative or judicial action. On the basis of this action by courts and legislatures in abrogating the general tort immunity, the modern rule is that the state and its agencies are subject to liability in tort. This liability is subject, of course, to any legislative restrictions which may be imposed upon it, and also to certain recognized exceptions at common law.” Restatement (Second) of Torts §895B (Comment b) (Tent. Draft No. 19, Mar. 30, 1973).