defense of sovereign immunity in Pennsylvania

2024Section 8522 of what is commonly referred to as the Sovereign Immunity Act, applicable to SEPTA, states in pertinent part: a) Liability imposed.--The General Assembly, . . . does hereby waive, in the instances set forth in subsection (b) . . . sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a 8 negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity. b) Acts which may impose liability.--The follo

2024Section 8522 of what is commonly referred to as the Sovereign Immunity Act, applicable to SEPTA, states in pertinent part: a) Liability imposed.--The General Assembly, . . . does hereby waive, in the instances set forth in subsection (b) . . . sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a 8 negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity. b) Acts which may impose liability.--The follo

2024The court recognized, however, that damages recoverable under mandamus against a government entity must 15 See, e.g., Maute v. Frank, 657 A.2d 985, 986 (Pa. Super. 1995) (“Actions in mandamus are not subject to the defense of sovereign immunity.”). 16See, e.g., Stoner, 587 A.2d at 885 ; see also Maurice A. Nernberg & Assocs. v. Coyne, 920 A.2d 967, 970 (Pa. Commw. 2007) (citing Stoner). [J-50A-2023 and J-50B-2023] - 10 clearly relate to the “defendant’s failure to perform a mandatory ministerial function.” Id. at 1237 (quoting Sch.

2024The court recognized, however, that damages recoverable under mandamus against a government entity must 15 See, e.g., Maute v. Frank, 657 A.2d 985, 986 (Pa. Super. 1995) (“Actions in mandamus are not subject to the defense of sovereign immunity.”). 16See, e.g., Stoner, 587 A.2d at 885 ; see also Maurice A. Nernberg & Assocs. v. Coyne, 920 A.2d 967, 970 (Pa. Commw. 2007) (citing Stoner). [J-50A-2023 and J-50B-2023] - 10 clearly relate to the “defendant’s failure to perform a mandatory ministerial function.” Id. at 1237 (quoting Sch.

2024Williams v. Stickman, 917 A.2d 915, 918 (Pa. Cmwlth. 2007) (footnote omitted). 7 to an action against Commonwealth parties[] for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury [was] caused by a person not having available the defense of sovereign immunity.” 42 Pa.C.S. § 8522(a).

2022Shore, 168 A.3d at 385 n.6 (quoting 42 Pa.C.S. § 8522(b)(3)); see also Williams v. 3 Section 8522(b)(3) provides: “the defense of sovereign immunity shall not be raised to claims for damages caused by . . . [t]he care, custody or control of personal property in the possession or control of Commonwealth parties, including . . . property of persons held by a Commonwealth agency.” 42 Pa.C.S. § 8522(b)(3). 3 Stickman, 917 A.2d 915, 917-18 (Pa. Cmwlth. 2007) (concluding that state employees could not claim sovereign immunity for damage done to the petitioner’s television while in DOC’s possession).

2024Stickman, 917 A.2d at 917 ; La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992); see also 1 Pa. C.S. § 2310.

2023La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992). 3 42 Pa.C.S. § 8522(a). 4 42 Pa.C.S. § 8522(b). 4 Hitner’s negligence claim relies on the exception in Section 8522(b)(3) of the Code,5 which permits a claim for damages caused by the care, custody, or control of personal property in the possession or control of Commonwealth parties, including property held by a Commonwealth agency.

2024However, the petition for review seeks mandamus relief, and “[a]ctions in mandamus are not subject to the defense of sovereign immunity.” Banfield v. Cortes, 922 A.2d 36, 43 (Pa. Cmwlth. 2007) (citation omitted).

2022See Banfield v. Cortes, 922 A.2d 36, 43 (Pa. Cmwlth. 2007) (quoting Maute v. Frank, . . . 657 A.2d 985, 986 ([Pa. Super.] 1995) (‘Actions in mandamus are not subject to the defense of sovereign immunity.’).” Brimmeier v. Pa. Tpk.

1991The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth, and the defense of sovereign immunity shall not be raised to claims for damages caused by: . . . . . (2) Medical-professional liability. — Acts of health care employees or Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, nurse or related health care personnel. 42 Pa.C.S.A. § 8522(b)(2). [4] To be able to maintain this action Sabot must set forth a cause of action where damages would be recoverable under common law or a statute creating a ca

1991The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth, and the defense of sovereign immunity shall not be raised to claims for damages caused by: . . . . . (2) Medical-professional liability. — Acts of health care employees or Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, nurse or related health care personnel. 42 Pa.C.S.A. § 8522(b)(2). [4] To be able to maintain this action Sabot must set forth a cause of action where damages would be recoverable under common law or a statute creating a ca

2025Petitioner’s arguments before this Court largely focus on whether a lack of utility might demonstrate a piece of real estate poses a “dangerous condition.” To be sure, there are colorable arguments about the role of utility in evaluating the distinct question of whether a Commonwealth agency committed “a negligent act where the damages would be recoverable under the common law . . . if the injury were caused by a person not having available the defense of sovereign immunity.” 42 Pa.C.S. §8522(a); cf. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000) (listing “the social utility of the actor’s c

2021Cagey v. Commonwealth, Dep’t of Transp., 179 A.3d 458, 463 (Pa. 2018).

2021Stated another way, “the Commonwealth may not raise the defense of sovereign immunity when a plaintiff alleges, for example, that a substance or an object on Commonwealth realty was the result of a defect in the property or in its construction, maintenance, repair or design.” Id. at 443-444 .

2021Applying these pronouncements to Jones’ claim that salt on the train platform constituted a dangerous condition, the Court concluded that it did not satisfy the real estate exception because she failed to allege that “the salt derived or originated from or had as its source the train platform itself.” Id. at 444 .

2024Dist. of Pittsburgh v. City of Pittsburgh, 352 A.2d 223, 229 (Pa. Commw. 1976) (“City of Pittsburgh”)).

2024Dist. of Pittsburgh v. City of Pittsburgh, 352 A.2d 223, 229 (Pa. Commw. 1976) (“City of Pittsburgh”)).

2024The court recognized, however, that damages recoverable under mandamus against a government entity must 15 See, e.g., Maute v. Frank, 657 A.2d 985, 986 (Pa. Super. 1995) (“Actions in mandamus are not subject to the defense of sovereign immunity.”). 16See, e.g., Stoner, 587 A.2d at 885 ; see also Maurice A. Nernberg & Assocs. v. Coyne, 920 A.2d 967, 970 (Pa. Commw. 2007) (citing Stoner). [J-50A-2023 and J-50B-2023] - 10 clearly relate to the “defendant’s failure to perform a mandatory ministerial function.” Id. at 1237 (quoting Sch.

2024The court recognized, however, that damages recoverable under mandamus against a government entity must 15 See, e.g., Maute v. Frank, 657 A.2d 985, 986 (Pa. Super. 1995) (“Actions in mandamus are not subject to the defense of sovereign immunity.”). 16See, e.g., Stoner, 587 A.2d at 885 ; see also Maurice A. Nernberg & Assocs. v. Coyne, 920 A.2d 967, 970 (Pa. Commw. 2007) (citing Stoner). [J-50A-2023 and J-50B-2023] - 10 clearly relate to the “defendant’s failure to perform a mandatory ministerial function.” Id. at 1237 (quoting Sch.

2021Paluch v. Department of Corrections, 175 A.3d 433, 437-38 (Pa. Cmwlth. 2017) (quoting 42 Pa. C.S. §8522).

2018However, “[s]overeign immunity is not waived for intentional acts committed by a Commonwealth employee acting within the scope of his or her employment.” Paluch v. Pa. Dep’t of Corr., 175 A.3d 433, 438 (Pa. Cmwlth. 2017) (emphasis added).

2011Similar to Ms. Nardella, the plaintiff in Hall asserted that SEPTA, as a common carrier, should be “held to the highest degree of care to its passengers,” but did not cite to any case which construed “the duty of care of a common carrier [that is] entitled to assert the defense of sovereign immunity.” Id. at 1155.

1993Like the appellant in Hall v. Southeastern Pennsylvania Transportation Authority, 141 Pa.Commonwealth Ct. 591, 596 A.2d 1153 (1991) Mr. and Mrs. Williamson have failed to cite any Pennsylvania appellate decisions which construe “the duty of care of a common carrier entitled to assert the defense of sovereign immunity.” Id. at 594-95, 596 A.2d at 1155 (footnote omitted).

2010Mannella v. Port Authority of Allegheny County, 982 A.2d 130, 132 (Pa. Cmwlth. 2009).

2010Mannella v. Port Authority of Allegheny County, 982 A.2d 130, 132 (Pa.Cmwlth.2009).

2025See Dean v. Dep’t of Transp., 751 A.2d 1130, 1132 (Pa. 2000).

2019Dean v. Dep't of Transp. , 561 Pa. 503 , 751 A.2d 1130 , 1132 ( [Pa.] 2000).

2003Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567 , 517 A.2d 1270 (1986). 8 To overcome sovereign immunity, a plaintiff must show that the Commonwealth party would be held liable in tort under common law or statute but for the defense of sovereign immunity. 42 Pa.C.S. § 8522(a) 9 ; Fidanza v. Department of Transportation, 655 A.2d 1076 (Pa.Cmwlth.1995).

1996Discussion Duty In order to maintain a cause of action against a Commonwealth party, the plaintiff must first show that the damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity. 42 Pa.C.S. § 8522(a); Fidanza v. Department of Transportation, 655 A.2d 1076 (Pa.Cmwlth.), petition for allowance of appeal denied, — Pa. -, 668 A.2d 1138 (1995).

2023“Accordingly, the defense of sovereign immunity can provide a basis for dismissal of a prison conditions lawsuit.” McCool, 984 A.2d at 570 .

2023“Accordingly, the defense of sovereign immunity can provide a basis for dismissal of a prison conditions lawsuit.” McCool v. Dep’t of Corr., 984 A.2d 565, 570 (Pa. Cmwlth. 2009).

2022Accordingly, “[t]o impose liability on a Commonwealth party, (1) the alleged negligent act must involve a cause of action that is recognized at common law or by a statute, and (2) the case must fall within one of [the] exceptions to sovereign immunity listed in Section 8522(b)” of . . . the Sovereign Immunity Act.[7] Young v. Wetzel, 260 A.3d 281 , 289 (Pa. Cmwlth. 2021) (emphasis added); see also LaChance v. Michael Baker Corp., 869 A.2d 1054 (Pa. Cmwlth. 2005); Bufford v. Pa. Dep’t of Transp., 670 A.2d 751 (Pa. Cmwlth. 1996).

2021See, e.g., Doremus v. Bd. of Educ. of Borough of Hawthorne, 342 U.S. 429, 434-35 (1952). 9 law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.” 42 Pa.C.S. § 8522(a).10 Thus, “[t]o impose liability on a Commonwealth party, (1) the alleged negligent act must involve a cause of action that is recognized at common law or by a statute, and (2) the case must fall within one of [the] exceptions to sovereign immunity listed in Section 8522(b)” of what is commonly referred to as the Sovereign Immunity Act.11 Bufford v

2017Section 8522(a), 42 Pa.C.S. § 8522(a), states: The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person

2016This “dangerous condition must derive, originate from or have as its source the Commonwealth realty.” Clark, 962 A.2d at 694 (quoting Snyder v. Harmon, 522 Pa. 424 , 562 A.2d 307, 311 (1989)) (emphasis in Clark). 14 PennDOT argues that although West Main Street is a highway, the crosswalk and the RRPBs at the intersection are not part of Commonwealth realty because they are installed, owned and maintained by Waynesboro, for which it cannot be liable under the “real estate exception.” Penn-DOT further argues that it cannot be held liable under the “real estate exception” for an alleged failure

2000Finn v. City of Philadelphia, 541 Pa. 596, 601 , 664 A.2d 1342, 1344 (1995) (citations omitted), see also, Thomas v. City of Philadelphia, 668 A.2d 292 (Pa. Commw. 1995).

2000Finn v. City of Philadelphia, 541 Pa. 596, 601 , 664 A.2d 1342, 1344 (1995) (citations omitted), see also, Thomas v. City of Philadelphia, 668 A.2d 292 (Pa. Commw. 1995).