sovereign immunity in Pennsylvania

2024Additionally, the dissent found Runion instructive here because only a “person” may be liable for mandamus damages under Section 8303’s clear terms, “governmental agencies of this Commonwealth” are not so liable. [Runion, 662 A.2d at 621 ]. 18 As discussed further herein, Section 2310 was a direct response to this Court’s decision in Mayle, which “abolish[ed] the doctrine of sovereign immunity.” Mayle v. Pennsylvania Dep’t of Highways, 388 A.2d 709, 720 (Pa. 1978). [J-50A-2023 and J-50B-2023] - 12 PLCB is a governmental agency of the Commonwealth protected by sovereign immunity.

2024Additionally, the dissent found Runion instructive here because only a “person” may be liable for mandamus damages under Section 8303’s clear terms, “governmental agencies of this Commonwealth” are not so liable. [Runion, 662 A.2d at 621 ]. 18 As discussed further herein, Section 2310 was a direct response to this Court’s decision in Mayle, which “abolish[ed] the doctrine of sovereign immunity.” Mayle v. Pennsylvania Dep’t of Highways, 388 A.2d 709, 720 (Pa. 1978). [J-50A-2023 and J-50B-2023] - 12 PLCB is a governmental agency of the Commonwealth protected by sovereign immunity.

2024The previous year, Justice Roberts wrote in dissent that “the doctrine of sovereign immunity ought, in its entirety, to be consigned to the judicial scrapheap[.]” McCoy v. Commonwealth Liquor Control Bd., 326 A.2d 396, 397 (Pa. 1974); see also Sweigard v. Pennsylvania Dep’t of Transp., 309 A.2d 374, 376 (Pa 1973) (“The majority again allows a judicially-created anachronism to deprive a litigant of his day in court.”) (Roberts, J., dissenting) (joined by Nix & Manderino, JJ.), Brown v. Commonwealth, 305 A.2d 868, 871 (Pa. 1973) (“[T]here is no rational reason why the majority could not and shou

2024The previous year, Justice Roberts wrote in dissent that “the doctrine of sovereign immunity ought, in its entirety, to be consigned to the judicial scrapheap[.]” McCoy v. Commonwealth Liquor Control Bd., 326 A.2d 396, 397 (Pa. 1974); see also Sweigard v. Pennsylvania Dep’t of Transp., 309 A.2d 374, 376 (Pa 1973) (“The majority again allows a judicially-created anachronism to deprive a litigant of his day in court.”) (Roberts, J., dissenting) (joined by Nix & Manderino, JJ.), Brown v. Commonwealth, 305 A.2d 868, 871 (Pa. 1973) (“[T]here is no rational reason why the majority could not and shou

2024Id.; see Smolsky v. Pennsylvania General Assembly, 34 A.3d 316 , 321 n.7 (Pa. Cmwlth. 2011) (holding that courts have ruled on POs raising sovereign immunity where a petitioner did not object to improper procedure). 6 Section 8522 of the Judicial Code, 42 Pa. C.S. §8522; La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992).

2023Sovereign immunity has been waived in limited situations involving the negligence of a Commonwealth official or employee acting within the scope of his employment. 42 Pa. C.S. §8522; La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992).

2024The previous year, Justice Roberts wrote in dissent that “the doctrine of sovereign immunity ought, in its entirety, to be consigned to the judicial scrapheap[.]” McCoy v. Commonwealth Liquor Control Bd., 326 A.2d 396, 397 (Pa. 1974); see also Sweigard v. Pennsylvania Dep’t of Transp., 309 A.2d 374, 376 (Pa 1973) (“The majority again allows a judicially-created anachronism to deprive a litigant of his day in court.”) (Roberts, J., dissenting) (joined by Nix & Manderino, JJ.), Brown v. Commonwealth, 305 A.2d 868, 871 (Pa. 1973) (“[T]here is no rational reason why the majority could not and shou

2024The previous year, Justice Roberts wrote in dissent that “the doctrine of sovereign immunity ought, in its entirety, to be consigned to the judicial scrapheap[.]” McCoy v. Commonwealth Liquor Control Bd., 326 A.2d 396, 397 (Pa. 1974); see also Sweigard v. Pennsylvania Dep’t of Transp., 309 A.2d 374, 376 (Pa 1973) (“The majority again allows a judicially-created anachronism to deprive a litigant of his day in court.”) (Roberts, J., dissenting) (joined by Nix & Manderino, JJ.), Brown v. Commonwealth, 305 A.2d 868, 871 (Pa. 1973) (“[T]here is no rational reason why the majority could not and shou

2024Finally, “the dangerous condition must be an artificial condition or 5 “With roots in the English common law, the concept of a limitation on the availability of remedies against the alleged wrongdoing by state officials, i.e., the doctrine of sovereign immunity, was suggested in our Commonwealth as early as 1788.” Dorsey v. Redman, 96 A.3d 332, 340 (Pa. 2014) (footnote omitted). 4 defect of the land itself, as opposed to the absence of such a condition, and that artificial condition or defect must be the cause, or a concurrent cause, of the injury.” Id.

2024Finally, “the dangerous condition must be an artificial condition or 5 “With roots in the English common law, the concept of a limitation on the availability of remedies against the alleged wrongdoing by state officials, i.e., the doctrine of sovereign immunity, was suggested in our Commonwealth as early as 1788.” Dorsey v. Redman, 96 A.3d 332, 340 (Pa. 2014) (footnote omitted). 4 defect of the land itself, as opposed to the absence of such a condition, and that artificial condition or defect must be the cause, or a concurrent cause, of the injury.” Id.

1996Before the doctrine of sovereign immunity was abrogated by our Supreme Court in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384 , 388 A.2d 709 (1978), the Court had explained that sovereign immunity applied only to “[s]uits which seek to compel affirmative action on the part of state officials or to obtain money damages to recover property from the Commonwealth ...; suits which simply seek to restrain state officials from performing affirmative acts are not within the rule of immunity.” Philadelphia Life Insurance Company v. Commonwealth, 410 Pa. 571, 576 , 190 A.2d 111, 114 (1963) (

1996Before the doctrine of sovereign immunity was abrogated by our Supreme Court in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384 , 388 A.2d 709 (1978), the Court had explained that sovereign immunity applied only to “[s]uits which seek to compel affirmative action on the part of state officials or to obtain money damages to recover property from the Commonwealth ...; suits which simply seek to restrain state officials from performing affirmative acts are not within the rule of immunity.” Philadelphia Life Insurance Company v. Commonwealth, 410 Pa. 571, 576 , 190 A.2d 111, 114 (1963) (

2025Paluch v. Pa. Dep’t of Corr., 175 A.3d 433, 437-38 (Pa. Cmwlth. 2017).

2022Sovereign immunity applies to the Department as a state agency and to Secretary Wetzel because he was sued in his official capacity. 42 Pa.C.S. § 8501; see Paluch v. Pa. Dep't of Corr., 175 A.3d 433, 438 (Pa. Cmwlth. 4 A Commonwealth party is defined in Section 8501 of the Judicial Code as “[a] Commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment.” 42 Pa.C.S. § 8501. 3 2017) (barring claims directed against the Department and numerous employees based on sovereign immunity); Smith v. Cortes, 879 A.2d 382 (Pa. Cmwlth. 2005), a

2022Id. at 14-17 (citing, inter alia, Bufford v. Department of Transportation, 670 A.2d 751 (Pa. Cmwlth. 1996)). 4 “Sovereign immunity is an affirmative defense which ordinarily should be raised as new matter[] but may be raised in preliminary objections when to delay a ruling thereon would serve no purpose.” Stackhouse v. Pa. State Police, 892 A.2d 54 , 60 n.7 (Pa. Cmwlth. 2006); see also Kull v. Guisse, 81 A.3d 148, 160 (Pa. Cmwlth. 2013) (sovereign immunity may be raised in preliminary objections where it is apparent on the face of the pleading that the cause of action does not fall within the

2016Sovereign immunity may be overcome where the plaintiff can establish: (1) a common law or statutory cause of action under which damages could be recoverable if not for the immunity defense, and; (2) the alleged negligent act falls within one of the nine specific exceptions provided in section 8522(b) of the Judicial Code (Code), commonly referred to as the Political Subdivision Tort Claims Act. 8 Kull v. Guisse, 81 A.3d 148, 157 (Pa.Cmwlth.2013).

2018Given the tremendous hostility of the Court to sovereign immunity manifested in its decisions in Mayle v. Pennsylvania Department of Highways , 479 Pa. 384 , 388 A.2d 709 (1978), and Ayala v. Philadelphia Board of Public Education, 453 Pa. 584 , 305 A.2d 877 (1973), one might have thought that the Court would have cemented a contrary rule, at least in the absence of explicit legislative direction.

2018Given the tremendous hostility of the Court to sovereign immunity manifested in its decisions in Mayle v. Pennsylvania Department of Highways , 479 Pa. 384 , 388 A.2d 709 (1978), and Ayala v. Philadelphia Board of Public Education, 453 Pa. 584 , 305 A.2d 877 (1973), one might have thought that the Court would have cemented a contrary rule, at least in the absence of explicit legislative direction.

2014Further, in the MCARE Cases, the Commonwealth was “judicially estopped from making th[e] argument” that it “cannot comply with any remedy requiring such a monetary transfer” because “it prevailed on an opposite contention when opposing [the petitioners’] request for a preliminary injunction.” MCARE Cases, 77 A.3d at 596 n. 9. “[Sovereign immunity does not bar a declaratory judgment action or injunction seeking to prohibit state parties from acting, it does [however] apply to an action seeking to compel state parties to act or seeking to obtain money damages or recover property from the Commonw

2013As stated in Finn v. Rendell, 990 A.2d 100, 105 (Pa.Cmwlth.2010), the doctrine of sovereign immunity applies “to an action seeking to compel state parties to act or seeking to obtain money damages from the Commonwealth.” An order from this Court granting Precision Marketing relief would, in the end, authorize Precision Marketing to recover damages from the State Treasury.

2021Catastrophe Loss Fund, 750 A.2d 299, 302 (Pa. 2000) (holding sovereign 16 Had we concluded that Graziano failed to aver sufficient facts to establish standing, we would have allowed him to amend his amended petition to incorporate the facts set forth in his amended motion for a preliminary injunction. 17 “Sovereign immunity is an affirmative defense which ordinarily should be raised as new matter, but may be raised in preliminary objections when to delay a ruling thereon would serve no purpose.” Stackhouse v. Pa. State Police, 892 A.2d 54 , 60 n.7 (Pa. Cmwlth.), appeal denied, 903 A.2d 539 (Pa

2006Lowery and Tarr submit that the trial court failed to recognize that in some cases the Supreme Court has been willing to let actions proceed even when they do not meet the exceptions to immunity, citing Legal Capital, LLC. v. Medical Professional Liability Catastrophe Loss Fund, 561 Pa. 336 , 750 A.2d 299 (2000), where the court held that sovereign immunity did not bar an assignee from seeking a declaratory judgment to determine the legality of assignments to rights to payment by the fund.

2024The previous year, Justice Roberts wrote in dissent that “the doctrine of sovereign immunity ought, in its entirety, to be consigned to the judicial scrapheap[.]” McCoy v. Commonwealth Liquor Control Bd., 326 A.2d 396, 397 (Pa. 1974); see also Sweigard v. Pennsylvania Dep’t of Transp., 309 A.2d 374, 376 (Pa 1973) (“The majority again allows a judicially-created anachronism to deprive a litigant of his day in court.”) (Roberts, J., dissenting) (joined by Nix & Manderino, JJ.), Brown v. Commonwealth, 305 A.2d 868, 871 (Pa. 1973) (“[T]here is no rational reason why the majority could not and shou

2024The previous year, Justice Roberts wrote in dissent that “the doctrine of sovereign immunity ought, in its entirety, to be consigned to the judicial scrapheap[.]” McCoy v. Commonwealth Liquor Control Bd., 326 A.2d 396, 397 (Pa. 1974); see also Sweigard v. Pennsylvania Dep’t of Transp., 309 A.2d 374, 376 (Pa 1973) (“The majority again allows a judicially-created anachronism to deprive a litigant of his day in court.”) (Roberts, J., dissenting) (joined by Nix & Manderino, JJ.), Brown v. Commonwealth, 305 A.2d 868, 871 (Pa. 1973) (“[T]here is no rational reason why the majority could not and shou

2017Id. at 434-35 , 562 A.2d at 312 (emphasis added); see also Finn, 541 Pa. at 605 , 664 A.2d at 1346 (in the context of a sidewalks -exception claim, reviewing prior decisions and concluding that "[t]he common theme of all these cases is that liability depends . . . on the legal determination that an injury was caused by a condition of government realty itself, deriving, originating from, or having the realty as its source").3 2 Although Snyder involved the sovereign immunity of the Commonwealth, the sovereign and governmental immunity statutes "are to be interpreted consistently, as they deal w

2017Id. at 434-35 , 562 A.2d at 312 (emphasis added); see also Finn, 541 Pa. at 605 , 664 A.2d at 1346 (in the context of a sidewalks -exception claim, reviewing prior decisions and concluding that "[t]he common theme of all these cases is that liability depends . . . on the legal determination that an injury was caused by a condition of government realty itself, deriving, originating from, or having the realty as its source").3 2 Although Snyder involved the sovereign immunity of the Commonwealth, the sovereign and governmental immunity statutes "are to be interpreted consistently, as they deal w

2026McShea v. City of Philadelphia, 995 A.2d 334, 341 (Pa. 2010); Lockwood v. City of Pittsburgh, 751 A.2d 1136, 1139 (Pa. 2000).

2026McShea v. City of Philadelphia, 995 A.2d 334, 341 (Pa. 2010); Lockwood v. City of Pittsburgh, 751 A.2d 1136, 1139 (Pa. 2000).

2025Thus, under the doctrine of sovereign immunity, “[t]he Commonwealth is immune from suit in tort, and this immunity extends to employees of the Commonwealth who are not high public officials . . . when they act within the scope of their employment and not in an intentionally malicious, wanton or reckless manner.” McCool v. Dep’t of Corr., 984 A.2d 565, 570 (Pa. Cmwlth. 2009) (quoting Walter v. Commonwealth, 350 A.2d 440, 442 (Pa. Cmwlth. 1976)) (internal brackets and quotation marks omitted).

2025Thus, under the doctrine of sovereign immunity, “[t]he Commonwealth is immune from suit in tort, and this immunity extends to employees of the Commonwealth who are not high public officials . . . when they act within the scope of their employment and not in an intentionally malicious, wanton or reckless manner.” McCool v. Dep’t of Corr., 984 A.2d 565, 570 (Pa. Cmwlth. 2009) (quoting Walter v. Commonwealth, 350 A.2d 440, 442 (Pa. Cmwlth. 1976)) (internal brackets and quotation marks omitted).

2025Additionally, as to the term “official immunity,” we observed the following in 1977: “To be distinguished from the constitutionally[ ]based doctrine of sovereign immunity in Pennsylvania is the common-law concept of ‘official immunity’—a status which pertains to government officials and employees.” Freach, 370 A.2d at 1168 .

1980Most of the cases address the issue of whether section 603 impliedly repealed or waived the doctrine of sovereign immunity: Heifetz v. Philadelphia State Hospital, 22 Pa. Commonwealth Ct. 325 , 348 A. 2d 455 (1975), reversed and remanded, 482 Pa. 386 , 393 A. 2d 1160 (1978) (on the ground that Mayle v. Pa. Dept. of Highways, 479 Pa. 384 , 388 A. 2d 709 (1978) abolished the doctrine of sovereign immunity); Freach v. Com., 23 Pa. Commonwealth Ct. 546 , 354 A. 2d 908 (1976), reversed and remanded, 471 Pa. 558 , 370 A. 2d 1163 (1977) (on the ground that the immunity provided by section 603 superse

2024Id. at 348-49 .13 Further, the Court expressly rejected the plaintiff’s theory of liability because it was “not predicated on a defective condition on Commonwealth land but rather the knowledge of an inherently dangerous condition contiguous with Commonwealth property . . . .” Id. at 349 (quoting Snyder, 562 A.2d at 312 ).14 In Clark, this Court affirmed the entry of nonsuit in favor of PennDOT based upon the agency’s sovereign immunity.

2017Id. at 434-35 , 562 A.2d at 312 (emphasis added); see also Finn, 541 Pa. at 605 , 664 A.2d at 1346 (in the context of a sidewalks -exception claim, reviewing prior decisions and concluding that "[t]he common theme of all these cases is that liability depends . . . on the legal determination that an injury was caused by a condition of government realty itself, deriving, originating from, or having the realty as its source").3 2 Although Snyder involved the sovereign immunity of the Commonwealth, the sovereign and governmental immunity statutes "are to be interpreted consistently, as they deal w

2022A preliminary objection in the nature of a demurrer presents a question 4 “Sovereign immunity is an affirmative defense which ordinarily should be raised as new matter, but may be raised in preliminary objections when to delay a ruling thereon would serve no purpose.” Stackhouse v. Pa. State Police, 892 A.2d 54 , 60 n.7 (Pa. Cmwlth. 2006). 5 “Our review of a trial court’s order sustaining preliminary objections and dismissing a complaint determines whether the trial court committed an error of law or abused its discretion.” Circle of Seasons Charter Sch. v. Nw.

2022Id. at 14-17 (citing, inter alia, Bufford v. Department of Transportation, 670 A.2d 751 (Pa. Cmwlth. 1996)). 4 “Sovereign immunity is an affirmative defense which ordinarily should be raised as new matter[] but may be raised in preliminary objections when to delay a ruling thereon would serve no purpose.” Stackhouse v. Pa. State Police, 892 A.2d 54 , 60 n.7 (Pa. Cmwlth. 2006); see also Kull v. Guisse, 81 A.3d 148, 160 (Pa. Cmwlth. 2013) (sovereign immunity may be raised in preliminary objections where it is apparent on the face of the pleading that the cause of action does not fall within the

2009(R.R. at 65a.) 2 While the Port Authority is a Commonwealth agency entitled to sovereign immunity, Marshall v. Port Authority of Allegheny County, 524 Pa. 1 , 568 A.2d 931 (1990), the General Assembly created exceptions to that immunity when it enacted what is commonly know as the Sovereign Immunity Act. 3 Section 8522 of the Judicial Code, 42 Pa.C.S. § 8522, provides that a Commonwealth party’s sovereign immunity is waived where: (1) the alleged act of the Commonwealth party is a negligent act for which damages would be recoverable under the common law or by statute, and (2) the act of the Co

2009(R.R. at 65a.) 2 While the Port Authority is a Commonwealth agency entitled to sovereign immunity, Marshall v. Port Authority of Allegheny County, 524 Pa. 1 , 568 A.2d 931 (1990), the General Assembly created exceptions to that immunity when it enacted what is commonly know as the Sovereign Immunity Act. 3 Section 8522 of the Judicial Code, 42 Pa.C.S. § 8522, provides that a Commonwealth party’s sovereign immunity is waived where: (1) the alleged act of the Commonwealth party is a negligent act for which damages would be recoverable under the common law or by statute, and (2) the act of the Co

2025Williams, 917 A.2d 915 (Pa. Cmwlth. 2001).

2023Id. 8 In Payne v. Whalen (Pa. Cmwlth., No. 2100 C.D. 2014, filed Aug. 20, 2015), 2015 WL 5457835 (unreported),4 Payne asserted that prison employees lost his family photos.

2018Under 8 See, e.g., 36 P.S. § 670-401 (requiring that the Commonwealth “construct or improve, and thereafter maintain and repair, at the cost and expense of the Commonwealth, the highways forming the plan or system of the State highways, in the several counties and townships”); 36 P.S. § 670-416 (requiring the Commonwealth to construct sidewalks “[w]henever it shall appear that any part or portion of a State highway in any township is dangerous to the traveling public, and such danger could be materially reduced or lessened by the construction of a sidewalk”). 9 See Dean, 751 A.2d at 1134 n.9 (

2018See Dean , 751 A.2d at 1134 n.9 ("Following the dissent's position to its logical conclusion would expose the Commonwealth to unlimited liability, a result clearly not intended by the legislature in enacting the sovereign immunity statute.").

1990In Davidow v. Anderson, 83 Pa. Commonwealth Ct. 86, 91 , 476 A.2d 998, 1000 (1984), we stated: We interpret this section as being evidence of an intent on the part of the General Assembly to exempt the sovereign from immunity only in specific, clearly-stated situations and that it is our duty, therefore, strictly to construe the above sections. *531 Accordingly, keeping in mind that the personal property exception must be narrowly construed, we must determine whether the trial court properly found that the map, balloons and radio caused injury while in the care, custody and control of DER.

1990In Davidow v. Anderson, 83 Pa. Commonwealth Ct. 86, 91 , 476 A.2d 998, 1000 (1984), we stated: We interpret this section as being evidence of an intent on the part of the General Assembly to exempt the sovereign from immunity only in specific, clearly-stated situations and that it is our duty, therefore, strictly to construe the above sections. *531 Accordingly, keeping in mind that the personal property exception must be narrowly construed, we must determine whether the trial court properly found that the map, balloons and radio caused injury while in the care, custody and control of DER.

1979The so-called sovereign immunity trilogy of Mayle v. Pennsylvania Department of Highways, 479 Pa. 384 , 388 A.2d 709 (1973); DuBree v. Commonwealth, 481 Pa. 540 , 393 A.2d 293 (1978), and Act 152, which involved the abrogation and re-enactment of the sovereign immunity doctrine in particular trespass actions, do not in any way affect the basic law regarding equity actions against the Commonwealth.

1979The so-called sovereign immunity trilogy of Mayle v. Pennsylvania Department of Highways, 479 Pa. 384 , 388 A.2d 709 (1973); DuBree v. Commonwealth, 481 Pa. 540 , 393 A.2d 293 (1978), and Act 152, which involved the abrogation and re-enactment of the sovereign immunity doctrine in particular trespass actions, do not in any way affect the basic law regarding equity actions against the Commonwealth.

1992She then argues by extension that the Game Commission is not entitled to raise the sovereign immunity defense because it is an independent agency, and relies on Specter v. Commonwealth, 462 Pa. 474 , 341 A.2d 481 (1975), as support.

1992She then argues by extension that the Game Commission is not entitled to raise the sovereign immunity defense because it is an independent agency, and relies on Specter v. Commonwealth, 462 Pa. 474 , 341 A.2d 481 (1975), as support.