BROWN v. Commonwealth

¶1Opinion by

¶2On 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.

¶3By her guardian, appellant brought a trespass action seeking damages for her injuries and the expense incurred for her treatment.1 The Commonwealth, by demurrer, interposed the doctrine of sovereign immunity. The Commonwealth Court sustained the Commonwealth’s preliminary objections and dismissed appellants’ complaint.23An appeal was taken from dismissal of the complaint. Act of July 31, 1970, P. L. 673, §203, 17 P.S. §211.203.

¶4The 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.

¶5*569Appellants 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).

¶6The 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. 634.3

¶7The 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 Flagielloand Falco,4 that the existence of insurance *570coverage 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.

¶8Article 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,5 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.

¶9Although 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?

¶10Appellants urge that because sovereign immunity was judicially created, and improvidently so, tbis Court *571should 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.6Commonwealth 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).

¶11Appellants 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.

¶12The 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 *572I, Section 11 provides only a framework within which the Legislature may operate, the void-for-vagueness argument is inapposite here.

¶13Similarly, 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.

¶14Whether 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.

¶15Order affirmed. Each party to pay own costs.

¶23Dissenting Opinion by

¶24I join in Mr. Justice Nix’s dissent for the reasons stated therein as well as for the reasons set out in my dissenting opinion in Thomas v. Baird, 433 Pa. 482, 485, 252 A. 2d 653, 655 (1969).

¶25As Mr. Justice Nix recently stated in his dissenting opinion (in which I joined) in Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 187, 301 A. 2d 849, 854 (1973) : “[T]he language of the Constitution [Article I, Section 11] itself fails to provide any basis for the majority’s assumption that in Pennsylvania this immunity [sovereign immunity] is constitutionally mandated. ... To the contrary, Article I, Section 11 merely sets forth the mechanism by which the state may waive this power [immunity from suit]. . . . The Constitution is therefore neutral—it neither requires nor prohibits sovereign immunity. It merely provides that the presence or absence of sovereign immunity shall be decided in a non-constitutional manner.” (Emphasis added) (Footnote omitted).

¶26The majority today, however, reasserts that “Article I, Section 11 of our Constitution compels the conclusion . . . that this Commonwealth’s immunity is constitutionally, not judicially, mandated . . .” and that the question of whether “. . . sovereign immunity should be modified in this Commonwealth is a legislative question.” Despite the majority’s absolute pronouncement that any modification in the doctrine of sovereign immunity must originate with the Legislature, this Court, only recently, in Biello, supra, “modified” the doctrine *578by holding, without specific legislative direction, that the Commonwealth is not immune from suit where it engages in performing “proprietary functions.” Through judicial action, this Court wisely narrowed, the heretofore unlimited, scope of state immunity. However, Bielloobviously negates the majority’s present assertion that sovereign immunity is constitutionally ordained and alterable only by the Legislature.

¶27Having moved in the proper direction in Biello, 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.*

¶28Twenty-one states, eight through judicial action, have now abolished the concept of state immunity. Nine others have partially abrogated the doctrine, and eight others have abolished it where (as here) the state (or its instrumentalities) has obtained insurance. American Law Institute, Restatement of Law Second, Torts, p. 21 (Tentative Draft 19, March 30, 1973). Despite this overwhelming rejection of sovereign immunity, the majority continues to adhere to age old precedent which has long ago lost any justification in twentieth century society. See Biello, supra (dissenting opinion). “[W]hen precedent is examined in the light of modem reality and it is evident that the reason for the precedent no longer exists, the abandonment of the precedent is not a destruction of stare decisis but rather a fulfillment of its purpose. Stare decisis is not a confining phenomenon but rather a principle of law. And when the application of this principle will *579not result in justice, it is evident that the doctrine is not properly applicable.” Smith v. State, 93 Idaho 795, 801, 473 P. 2d 937, 943 (1970). See also Niederman v. Brodsky, 436 Pa. 401, 261 A. 2d 84 (1970) (rejects the “impact” rule); Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A. 2d 193 (1965) (rejects the doctrine of charitable immunity); Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A. 2d 796 (1964) (rejects “place of wrong” test as the choice of law doctrine in Pennsylvania). It is all too clear that the majority’s application of sovereign immunity here has created an unjust result.

¶29I dissent.

¶31*580Dissenting Opinion by

¶32I dissent from the unwarranted conclusion that the doctrine of sovereign immunity is not a judicially created doctrine. I dissent also from the Court’s refusal to strike down the judicially created doctrine, which does not have and never had any legitimate roots in constitutional government.

¶33In Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A. 2d 849 (1973), the dissenting opinion of my brother, Mr. Justice Nix, cogently pointed out that the doctrine of soverign immunity is . . an obsolete vestige of a distant past. . . .” It is that and more in Pennsylvania. It is a doctrine which has no support in the written constitution of Pennsylvania—and never had.

¶34The majority concludes that past decisions of this Court have settled the question. They have not. Each of the past decisions of this Court have pronounced the existence of the doctrine of sovereign immunity and then cited a previous case in support of the pronouncement. One would expect that a search through the precedents, containing the pronouncement followed by a prior citation, would eventually lead to the origin of the judicial chain and a discovery that the chain is solidly anchored in principles worthy of government established by a written constitution. Such a discovery cannot be found in the past decisions of this Court. Those decisions have assumed that the sovereign is the state and that the state possesses inherent and inalienable rights—the exact principles of government guillotined and buried in the human revolutions that gave birth to written constitutions.

¶35The majority quotes a sentence from Section 11 of Article 1 of the Pennsylvania Constitution and finds support for its position in that sentence. It does not, however, support the majority’s position.

¶36*581Article 1 of the Pennsylvania Constitution is titled the Declaration of Bights. The entire Article is concerned with establishing the principle that the people are the sovereign—not the state. There are twenty-six sections in Article 1 and every single section is concerned with the rights of the people—not the state. To isolate one sentence out of the twenty-six sections in the Declaration of Bights and say that it should be interpreted to protect the rights of the state—not the people—is ludicrous and violates all reasonable principles of construing written language in proper context. Article 1, the Declaration of Bights, opens by stating that the purpose of the Declaration is “that the general, great and essential principles of liberty and free government may be recognized and unalterably established.” Nothing is said about protecting the state. The complete Declaration—its language, tone and thrust—concerns the protection of the people— not the state.

¶37The Declaration speaks of the inherent and indefeasible rights of people—not the state. It states that all power is inherent in the people, and all free governments are founded on their authority—not that power is inherent in the state or that government is founded on the authority of a divinity or an unwritten floating concept in a judge’s mind. The Declaration states that no one can be deprived of his life, liberty, or property, unless by the judgment of Ms peers or the law of the land—not that the state’s life, liberty or property is protected. It also says that private property shall not be taken without just compensation being first made or secured—and there is no exception for any kind of property. The people are protected from any grant of special privileges or immunities by the state. The people are given the right to the redress of grievances— no exception for tort claims or any other claim. The *582Declaration ends by protecting the people in the enjoyment of all civil rights.

¶38The purpose of the Declaration of Bights in the Pennsylvania Constitution, all of its Sections, is to guarantee and make absolute the principle that the people are supreme—sovereign—and possess the inalienable rights which were possessed by the state prior to government under a written constitution. The majority focuses on three words, out of context, which they conclude are exceptions to the entire purpose and thrust of the Decimation of Bights. The three words relied on by the majority are not only read out of context of the Decimation of Bights for the people in which they appear, they are also read out of the context of Section 11 of the Decimation of Bights and out of the context of the sentence in in which the words appear.

¶39Section 11 has two sentences and they must be read together. The entire Section 11 states: “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.”

¶40The first sentence of Section 11 is unequivocal. It protects everyone—without exception—for all injuries —without exception. It specifically speaks of injuries to lands, goods, person or reputation. The first sentence says that everyone shall have remedy by due course of law—it does not say that sometimes there is a remedy and sometimes not. The sentence states that right and justice shall be administered without . . . denial—it does not say justice can be denied sometimes and sometimes not. The first sentence of Section 11 must be read before proceeding to sentence two, and that *583first sentence could not have been written in more absolute terms even by one possessing divine rights. Can we possibly destroy the absolutely plain meaning of sentence one by an interpretation of sentence two, which requires a reach outside the people’s written constitution. The written constitution contains no mention of immunity for the state—or inherent rights of the state—or inalienable rights of the state—or indefeasible rights of the state. It is thus necessary for the majority to begin its interpretation of sentence two by reaching outside the icritten constitution. Just where that reach extends, we are not told.

¶41If sentence two of Section 11 can be reasonably interpreted without destroying the clear meaning of sentence one or doing violence to the purpose of the entire Article in which the Section appears, we are bound in the name of reason to so interpret sentence two of Section 11. The only reasonable meaning of sentence two, in context, must be that it gives the legislature the right to implement procedurally the substantive rights granted so absolutely in the first sentence of Section 11.

¶42The majority focuses on the words “in such cases” which appear in the second sentence of Section 11. Those words, however, are part of a phrase appearing in the sentence. The full phrase is “in such manner, in such courts and in such cases. . . .” If the focus is on the complete phrase, or the complete sentence, or the complete Section, or the complete Article, the majority’s interpretation cannot stand. The majority’s interpretation depends upon a focus centered on three words—ignoring the phrase in which they appear— ignoring the sentence in which they appear—ignoring the Section in which they appear—and ignoring the Article in which they appear, all of which is called the Declaration of Rights for the protection of the people— who are the sovereign.

¶43*584In addition, the majority’s focus on the three words requires a second focus of the judicial eyesight, outside the written constitution for the discovery of a doctrine known as sovereign immunity originating in the days when authority had to be delegated to people rather than delegated to the state; and when the state was the sovereign rather than the people.

¶44There is no sovereign in constitutional government—except the people. How can the state have any immunity if the people didn’t authorize it? How could the people have authorized it if it is not in the written constitution? How can the written constitution be interpreted to contain something which it clearly does not? How can three words in the people’s constitution be used to breathe life into a corpse which we buried centuries ago without shedding tears?

¶45In the name of three misinterpreted words, we cannot allow special privileges by which some citizens injured by government shall have a remedy and not be denied right and justice (first sentence of Section 11), while other citizens are denied any remedy and are denied right and justice.

¶46The concept that the state is sovereign has been dead for centuries. The corpse was not given any immunity by the people in the Pennsylvania Constitution. This Court should finally recognize the realities of history.

¶47The order of the lower court should be reversed.