Brown v. Commonwealth

Opinion by

Mb. Chief Jiracs Jones,

On August 24, 1969, appellant, Donna Brown, a minor, wMle a guest at a Pennsylvania National Guard outing in Meadowbrook, sustained injuries when a National Guard jeep in wMch she was riding as a passenger was involved in an accident occasioned by the negligence of the operator, a Guardsman.

By her guardian, appellant brought a trespass action seeking damages for her injuries and the expense incurred for her treatment. The Commonwealth, by demurrer, interposed the doctrine of sovereign immunity. The Commonwealth Court sustained the Commonwealth’s preliminary objections and dismissed appellants’ complaint. An appeal was taken from dismissal of the complaint. Act of July 31, 1970, P. L. 673, §203, 17 P.S. §211.203.

The questions raised by this appeal reduce themselves to a frontal assault upon the doctrine of sovereign immunity. The subparts of tMs challenge question (1) whether sovereign immunity should be abolished, (2) whether it earn be abolished and (3) whether it applies at all under the factual circumstances of tMs case. The desirability of limiting our decisions to the narrowest of issues necessitates the leading consideration of the question whether sovereign immunity applies to these factual circumstances.

Appellants argue that because the Commonwealth has obtained liability insurance, which may provide compensation for the damagees resulting from this incident, the doctrine of sovereign immunity should not apply. Cf. Falco v. Pados, 444 Pa. 372, 282 A. 2d 351 (1971); Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A. 2d 193 (1965).

The Commonwealth’s Department of Property and Supplies obtained automobile liability insurance, protective of the officers, enlisted men and employees of the National Guard, in conformity with the Administrative Code of 1929, Act of April 9, 1929, P. L. 177, §2404, as amended, 71 P.S. 634.

The Commonwealth concedes that the Administrative Code provision, as implemented by the purchase of insurance by the Department of Property and Supplies, represents an avenue of compensation open to appellants, an avenue which they have failed to utilize. Appellants urge, by analogy to this Court’s decisions in Flagiello and Falco, that the existence of insurance coverage obviates tbe need for “outmoded” law. We reject tbe notion that tbe existence of statutorily mandated public liability insurance evidences a legislative intent to reject sovereign immunity in tbis context.

Article I, Section 11 of tbe Pennsylvania Constitution provides that suits may be brought against tbe Commonwealth “in such cases as tbe Legislature may by law direct.” While insurance coverage is provided, and tbe Commonwealth concedes tbe existence of a system of compensation in tbis factual setting, we cannot justify a bolding that tbe Legislature, by enacting Section 2404 of tbe Administrative Code, intended to create a sovereign immunity exception as envisioned by Article I, Section 11 of tbe Pennsylvania Constitution. Section 2404 does not permit tbe injured or damaged party to sue tbe Commonwealth. We find no legislative exception to sovereign immunity in tbis case. We will not create one by judicial edict.

Although appellants frame tbe separate issues of whether sovereign immunity can and should be abolished, these considerations are inextricably woven into tbe real question here involved: may we strike down a policy embodied by tbe Commonwealth’s Constitution absent some compelling showing that Article I, Section 11 is in conflict with tbe Federal Constitution?

Appellants urge that because sovereign immunity was judicially created, and improvidently so, tbis Court should hasten its judicial demise. Article I, Section 11 of our Constitution compels the conclusion, however, that this Commonwealth’s immunity is constitutionally, not judicially, mandated: “Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by lava direct.” (Emphasis added) No other conclusion is possible than that it falls to the Legislature to determine the circumstances under which immunity may he waived. Commonwealth v. Orsatti, 448 Pa. 72, 292 A. 2d 313 (1972); Conrad v. Commonwealth Department of Highways, 441 Pa. 530, 272 A. 2d 470 (1971); Meagher v. Commonwealth, 439 Pa. 532, 266 A. 2d 684 (1970); Barnnard v. New York State Natural Gas Corp., 404 Pa. 269, 172 A. 2d 306 (1961); Stouffer v. Morrison, 400 Pa. 497, 162 A. 2d 378 (1960); Commonwealth v. Berks County, 364 Pa. 447, 72 A. 2d 129 (1950).

Appellants also argue that Article I, Section 11 of the Pennsylvania Constitution is repugnant to the Due Process and Equal Protection Clauses of the Federal Constitution. The basis of appellants’ constitutional argument is that Article I, Section 11 is uncertain by its own terms, and so void for vagueness, and that it confers upon the Legislature the unfettered discretion to arbitrarily formulate exceptions to the doctrine of sovereign immunity.

The vagueness standard is inapplicable in this context. Article I, Section 11 establishes a standardless prerogative for the Legislature to consent to suit against the Commonwealth. The due process vagueness standard applies to void legislation which limits the ability of those to whom the statute is applied to understand that which is prohibited or mandated. Since Article I, Section 11 provides only a framework within which the Legislature may operate, the void-for-vagueness argument is inapposite here.

Similarly, because Article I, Section 11 is not self-executing, and because no classification is possible without legislative implementation, this constitutional provision cannot be considered discriminatory for equal protection purposes.

Whether the doctrine of sovereign immunity should be modified in this Commonwealth is a legislative question. We could not base a contrary holding upon our impatience with the Legislature’s failure to act as speedily and comprehensively as we believe it should.

Order affirmed. Each party to pay own costs.

In this action in trespass the appellants named only the Commonwealth. They did not name the Guardsman as a party defendant.

Argument on the preliminary objections was heard by a three-judge panel of the Commonwealth Court including Judges Jambs C. Crumlish, Jb., Harry A. Kramer and Theodore O. Rosees.

“The Department of Property and Supplies shall have the power, and its duty shall be:

(b) To procure automobile liability insurance, covering vehicles owned by tbe Commonwealth. . . .

“All automobile liability insurance procured by the Department of Property and Supplies hereunder shall protect both the Commonwealth and the State officer or employe operating the vehicle, or State officers and employes and officers and enlisted men of the Pennsylvania National Guard . . . against claims for damages for injury to person or property. . . .”

Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A. 2d 193 (1965), relying to some extent upon the availability of liability insurance to the charitable institution, disallowed the defendant hospital’s assertion of charitable immunity. Falco v. Pados, 444 Pa. 372, 282 A. 2d 351 (1971), abolished parental immunity by permitting tbe unemancipated child to recover against the insured parent.

It is appellants’ position that an attempt to recover against the Commonwealth’s policy was thwarted, by the Guard Insurance Adjuster’s failure to cooperate in the claims process, and that the only alternative was to initiate this action so that discovery might disclose the identity of the negligent Guardsman. The Commonwealth claims that the appellants have not exercised due diligence in attempting to discover the identity of the Guardsman and that the Guard will disclose his identity on request.

As this appeal concerns the propriety of the Commonwealth Court’s order sustaining the demurrer to appellants’ complaint the alleged intransigence of the Guard’s Adjuster is irrelevant.

We reiterate our urging of the need for comprehensive legislative action permissible under Article I, Section 11. Stouffer v. Morrison, 400 Pa. 497, 162 A. 2d 378 (1960) (concurring opinion by the late Mr. Justice Cohen joined by this writer).