Sovereign immunity — Constitution of Pennsylvania, Article I, Section 11 — Department of Transportation — Navigation Commission for the Delaware River and its Navigable Tributaries — Delaware River Port Authority — Jurisdiction of the Commonwealth Court of Pennsylvania — Appellate Court Jurisdiction Act of 1970, Act 1970, July 31, P.L. 673.
1. The Commonwealth of Pennsylvania is granted immunity from suit in trespass by Article I, Section 11 of the Constitution of Pennsylvania. [412]
2. The Department of Transportation of the Commonwealth of Pennsylvania is protected from suit in trespass by sovereign immunity. [412]
3. The Navigation Commission for the Delaware River and its Navigable Tributaries is protected from suit in trespass by sovereign Immunity. [412-13]
4. The Delaware River Port Authority is protected from suit in trespass by sovereign immunity. [413-14]
5. When the original jurisdiction of the Commonwealth Court of Pennsylvania under the Appellate Court Jurisdiction Act of 1970, Act 1970, July 31, P.L. 673, depends on the presence of certain defendants in the suit, the case must be transferred if the complaint is dismissed as to those particular defendants and the Court has no independent original jurisdiction over the action against the remaining defendants. [414]
OPINION BY JUDGE MENCER, May 23, 1978:
Diane McDevitt (plaintiff) has brought this action as administratrix of her husband's estate, alleging the liability of various parties for the death of her husband on or about January 13 or January 14, 1976. It is alleged that the decedent's car struck an unattended truck at night and that he was either thrown into the Delaware River by the collision or fell into the river while trying to free his vehicle or seek assistance. Preliminary objections to the complaint in this case brought as an original jurisdiction action in this Court were filed by A. Golin, alleged owner of the truck, The Philadelphia Port Corporation, Navigation Commission for the Delaware River and its Navigable Tributaries (Commission), Department of Transportation of the Commonwealth of Pennsylvania (PennDOT), and Delaware River Port Authority (Authority). Since the parties upon which our original jurisdiction is based are immune from liability, we transfer the balance of this action to the Court of Common Pleas of Philadelphia County.
See Section 401(a)(1) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 Pa.C.S.A. § 211.401 (a)(1).
By way of preliminary objections "in the nature of a petition raising a question of jurisdiction," PennDOT has asserted that Article I, Section 11 of the Constitution of Pennsylvania prohibits such an action against the Commonwealth without its consent. At this writing, it is clear that the prevailing case law in this Commonwealth supports PennDOT's entitlement to the cloak of sovereign immunity. See Sweigard v. Department of Transportation, 454 Pa. 32, 309 A.2d 374 (1973); Iudicello v. Department of Transportation, ___ Pa. Commonwealth Ct. ___, 383 A.2d 1294 (1978); Tokar v. Department of Transportation, 29 Pa. Commw. 383, 371 A.2d 537 (1977). tions. At the time in question, the Commission was a departmental administrative commission in the De-Therefore, we will sustain PennDOT's preliminary objections.
Immunity from suit is an affirmative defense which should be pleaded under new matter. Pa. R.C.P. Nos. 1030, 1045. However, where, as here, the plaintiff did not object to the use of preliminary objections in his answer or in any other pleading, we will address the immunity question. See Freach v. Commonwealth, 471 Pa. 558, 370 A.2d 1163 (1977); Walter v. Commonwealth, 30 Pa. Commw. 248, 373 A.2d 771 (1977).
The plaintiff also did not object to the Commission's use of preliminary objections to raise an immunity defense. See note 2, supra.
The Commission filed similar preliminary objecpartment of Transportation. Section 202 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended by Section 4 of the Act of December 3, 1970, P.L. 834, 71 P. S. § 62. We have previously held that other departmental administrative commissions are included under the umbrella of protection of the Commonwealth's sovereign immunity. See, e.g., Hart v. Spectrum, Arena, Inc., 15 Pa. Commw. 584, 329 A.2d 311 (1974) (State Athletic Commission). Since the Commission is entitled to the same immunity as PennDOT, we will also sustain its preliminary objections.
Later in 1976 the Commission became part of the Department of Commerce. Act of July 9, 1976, P.L. 980, § 1. For a description of the Commission and the scope of its authority, see Sections 475 and 2504-B of The Administrative Code of 1929, 71 P. S. § 180-5, 670.2; Act of June 8, 1907, P.L. 496, as amended, 55 P. S. § 1 et seq.
The Authority filed preliminary objections in the nature of a demurrer asserting, in part, the defense of sovereign immunity. In Anderson Appeal, 408 Pa. 179 182 A.2d 514 (1962), the Supreme Court specifically held that the Authority, which was created by a compact between the Commonwealth and the State of New Jersey, was entitled to this immunity. The Superior Court has reaffirmed this view in recent years. See Yancoskie v. Delaware River Port Authority, 235 Pa. Super. 263, 340 A.2d 533 (1975) (allocatur granted, argued April 22, 1977); Enoch v. Food Fair Stores, Inc., 232 Pa. Super. 1, 331 A.2d 912 (1974). Moreover, our decision in Kennedy v. Delaware River Joint Toll Bridge Commission, 23 Pa. Commw. 662, 354 A.2d 52 (1976), relied on Anderson in finding that the defendant there was entitled to the immunity of the sovereign. Since we agree that these cases and the reasoning behind them reflect the current state of the law, we will sustain the Authority's demurrer based upon this immunity.
In her answer to these preliminary objections, the plaintiff objected to the raising of immunity by way of preliminary objections. Thus, the situation here is somewhat different from that with respect to the preliminary objections of PennDOT and the Commission, where no objection was pleaded by the plaintiff. However, we have recently held that the presence of such an objection will not dissuade us from resolving the issue where the presence of the immunity defense is clear from the face of the complaint. Iudicello, supra. The interests of judicial economy, therefore, compel us to reach the merits of the Authority's preliminary objections. See Commonwealth ex rel. Milk Marketing Board v. Sunnybrook Dairies, Inc., 32 Pa. Commw. 313, 379 A.2d 330 (1977).
For a description of the Authority, its powers and duties, see Act of August 10, 1951, P.L. 1206, as amended, 36 P. S. § 3503.
Since we sustain preliminary objections of PennDOT, the Commission, and the Authority, and as we have no independent original jurisdiction over A. Golin, the City of Philadelphia, or The Philadelphia Port Corporation, we must transfer these proceedings to the Court of Common Pleas of Philadelphia County. See Section 503(b) of the Appellate Court Jurisdiction Act of 1970, 17 Pa.C.S.A. § 211.503(b); Lerro v. Department of Transportation, 32 Pa. Commw. 372, 379 A.2d 652 (1977). In light of this, we do not rule on the preliminary objections of A. Golin or The Philadelphia Port Corporation.
ORDER
AND NOW, this 23rd day of May, 1978, the preliminary objections of the Department of Transportation, the Navigation Commission for the Delaware River and its Navigable Tributaries, and the Delaware River Port Authority are sustained, and the plaintiff's complaint as to them is dismissed.
With respect to defendants A. Golin, the City of Philadelphia, and The Philadelphia Port Corporation, the case is transferred to the Court of Common Pleas of Philadelphia County for disposition of the outstanding preliminary objections and for all further proceedings. The Chief Clerk shall transmit the record of the above proceedings in its entirety to the Prothonotary of said court, together with a copy of this order.