Opinion by
Mr. Chief Justice Bell,
The sole question presented by these appeals is whether the Pennsylvania Turnpike Commission is immune from liability in trespass for damage resulting from the negligence of its agents and employees. Although the Courts of Common Pleas have decided this question on numerous occasions, it is one of first impression in this Court and the answer is not easy.
Plaintiffs-appellants instituted the present action in trespass against the Pennsylvania Turnpike Commis[611]*611sion. In their amended complaint they alleged that defendant-Commission allowed ice to accumulate on the Turnpike, failed to spread ashes or other abrasive material or to have equipment available to spread abrasive material thereon, and failed to post signs warning of a slippery condition or to have equipment available for the posting of such signs. Plaintiffs contend that, as a result of these acts, the Commission is liable for personal injuries and property damage which ensued when the vehicle operated by plaintiff Charles A. Rader skidded and collided with a guard rail.
Defendant-Commission filed preliminary objections in the nature of a demurrer to the amended complaint setting forth that the Pennsylvania Turnpike Commission was an instrumentality of the Commonwealth engaged in a governmental function and therefore is not liable for such injuries and damages in a trespass action.
Plaintiffs concede, as they must, that the Commonwealth itself, in the absence of a statute which authorizes suits against it for torts, is immune from liability in trespass for the negligence of its agents and employees in the construction, operation, maintenance and repair of a highway: Collins v. Commonwealth, 262 Pa. 572, 106 A. 229. However, they contend that all ten turnpike acts authorizing construction of segments of the highway by the Commission expressly provide that the Commission “may sue and be sued”.** This lan[612]*612guage, if it stood alone, is per se broad enough to cover all actions including the present one. However, this same contention was urged upon and rejected by the Court of Common Pleas of Dauphin County in House v. Pennsylvania Turnpike Commission, 45 Pa. D. & C. 677, 53 Dauphin 38 (1942), where the question of the Commission’s immunity from tort liability was first raised. In that case, plaintiffs brought actions of trespass against the Pennsylvania Turnpike Commission, claiming damages for injuries sustained as a result of the negligence of an employee or agent of the Commission. The Court sustained the affidavits of defense in the nature of a statutory demurrer which asserted that the Commission was an instrumentality of the Commonwealth and as such was not liable for the torts of its employees or agents. President Judge Sheelt, specially presiding, aptly said (pages 680-681, 682) : “In Greene County v. Center Township, 305 Pa. 79, 86, Mr. Justice Kephart said: ‘We stated in Westmoreland Chem. Co. v. Public Service Commission, 294 Pa. 451, 456, that the highways of the Commonwealth, apart from those owned privately, such as turnpikes, are the property of the State. It may set up within constitutional limitations any agency it sees fit to improve, maintain, repair, administer and control them. It may impose the cost incident thereto entirely on one agency to the exclusion of another, or it may permit them to agree on a division of costs. . . . “And, in the building of roads, it [a county] is acting in its governmental, [613]*613rather than business, capacity.” Townships are in the same situation as counties with respect to roads.’ See also Szilagyi et al. v. Bethlehem, 312 Pa. 260.
“The fact that a toll is exacted from users of the turnpike does not change the character of its operation from that of a governmental function. In Geiger v. The Perkiomen & Reading Turnpike Road, 167 Pa. 582, 585, the Supreme Court said: ‘The taking of tolls, it has been held, is only another method of taxing the public for the cost of construction, repair and reimbursement to the corporation for the capital invested. . . .’
“In Brush v. Commissioner of Internal Revenue, 300 U. S. 352, 372, the Supreme Court of the United States said: ‘If that service be governmental it does not become private because a charge is made for it, or a profit realized. A state, for example, constructs and operates a highway. It may, if it choose, exact compensation for its use from those who travel over it . . . but this does not destroy the claim that the maintenance of the highway is a public and governmental function.’
“The Turnpike Commission, having but one function to perform, does not come within the rule making a distinction between governmental functions and business or corporate functions of a municipality. See Clamper v. Philadelphia, 279 Pa. 385, Steele v. McKeesport, 298 Pa. 116, Scibilia v. Philadelphia, 279 Pa. 549. The only [pertinent] authority given to the Turnpike Commission under the statute is the construction, maintenance, and operation of the turnpike, which is a governmental function: Balashaitis et ux. v. Lackawanna County, 296 Pa. 83. It follows that there can be no liability unless it be expressly imposed: Collins v. Commonwealth, 262 Pa. 572, 580. There is nothing in the Turnpike Act imposing such liability, and the provision of the statute that the commission may sue and be sued is not suffi[614]*614cient for that purpose. The same provision is contained in the School Code but, as we have shown above, a school district is not subject to the principle of respondeat superior.”
Since that time the same contention has been repeatedly presented to the lower Courts of this Commonwealth and each time it has been rejected: Super v. Pennsylvania Turnpike Commission, 19 Pa. D. & C. 2d 372, 73 Dauphin 387 (1959); Harrell v. Porter, 19 Pa. D. & C. 2d 385 (1958); DiRenzo v. Transamerican Freight Lines, Inc., 10 Pa. D. & C. 2d 723 (1957); Caputo v. Pennsylvania Turnpike Commission, 103 P.L.J. 486 (1955); Malpica v. Pennsylvania Turnpike Commission, 65 Dauphin 302 (1953). Moreover, since the House case (supra) was decided in 1942, the legislature has passed seven acts relating to new or additional extensions of the turnpike and each contained the identical “sue and be sued” clause. Significantly, however, the legislature has not seen fit to vary or amplify this clause in any of the above enumerated acts or to impose upon the Turnpike Commission liability for torts. If the statutory construction and the result reached in House and unanimously followed in the later cases had not been in accordance with the intent of the legislature, it could easily have changed the language of the new Acts to impose trespass liability. Cf. Loeb Estate, 400 Pa. 368, 375-376, 162 A. 2d 207; Cali v. Philadelphia, 406 Pa. 290, 310-311, 177 A. 2d 824. In the light of these facts and the well reasoned decisions above cited, we do not feel that this legislatively approved result should be judicially changed or modified.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Mr. Chief Justice Bell,
The sole question presented by these appeals is whether the Pennsylvania Turnpike Commission is immune from liability in trespass for damage resulting from the negligence of its agents and employees. Although the Courts of Common Pleas have decided this question on numerous occasions, it is one of first impression in this Court and the answer is not easy.
Plaintiffs-appellants instituted the present action in trespass against the Pennsylvania Turnpike Commis[611]*611sion. In their amended complaint they alleged that defendant-Commission allowed ice to accumulate on the Turnpike, failed to spread ashes or other abrasive material or to have equipment available to spread abrasive material thereon, and failed to post signs warning of a slippery condition or to have equipment available for the posting of such signs. Plaintiffs contend that, as a result of these acts, the Commission is liable for personal injuries and property damage which ensued when the vehicle operated by plaintiff Charles A. Rader skidded and collided with a guard rail.
Defendant-Commission filed preliminary objections in the nature of a demurrer to the amended complaint setting forth that the Pennsylvania Turnpike Commission was an instrumentality of the Commonwealth engaged in a governmental function and therefore is not liable for such injuries and damages in a trespass action.
Plaintiffs concede, as they must, that the Commonwealth itself, in the absence of a statute which authorizes suits against it for torts, is immune from liability in trespass for the negligence of its agents and employees in the construction, operation, maintenance and repair of a highway: Collins v. Commonwealth, 262 Pa. 572, 106 A. 229. However, they contend that all ten turnpike acts authorizing construction of segments of the highway by the Commission expressly provide that the Commission “may sue and be sued”.** This lan[612]*612guage, if it stood alone, is per se broad enough to cover all actions including the present one. However, this same contention was urged upon and rejected by the Court of Common Pleas of Dauphin County in House v. Pennsylvania Turnpike Commission, 45 Pa. D. & C. 677, 53 Dauphin 38 (1942), where the question of the Commission’s immunity from tort liability was first raised. In that case, plaintiffs brought actions of trespass against the Pennsylvania Turnpike Commission, claiming damages for injuries sustained as a result of the negligence of an employee or agent of the Commission. The Court sustained the affidavits of defense in the nature of a statutory demurrer which asserted that the Commission was an instrumentality of the Commonwealth and as such was not liable for the torts of its employees or agents. President Judge Sheelt, specially presiding, aptly said (pages 680-681, 682) : “In Greene County v. Center Township, 305 Pa. 79, 86, Mr. Justice Kephart said: ‘We stated in Westmoreland Chem. Co. v. Public Service Commission, 294 Pa. 451, 456, that the highways of the Commonwealth, apart from those owned privately, such as turnpikes, are the property of the State. It may set up within constitutional limitations any agency it sees fit to improve, maintain, repair, administer and control them. It may impose the cost incident thereto entirely on one agency to the exclusion of another, or it may permit them to agree on a division of costs. . . . “And, in the building of roads, it [a county] is acting in its governmental, [613]*613rather than business, capacity.” Townships are in the same situation as counties with respect to roads.’ See also Szilagyi et al. v. Bethlehem, 312 Pa. 260.
“The fact that a toll is exacted from users of the turnpike does not change the character of its operation from that of a governmental function. In Geiger v. The Perkiomen & Reading Turnpike Road, 167 Pa. 582, 585, the Supreme Court said: ‘The taking of tolls, it has been held, is only another method of taxing the public for the cost of construction, repair and reimbursement to the corporation for the capital invested. . . .’
“In Brush v. Commissioner of Internal Revenue, 300 U. S. 352, 372, the Supreme Court of the United States said: ‘If that service be governmental it does not become private because a charge is made for it, or a profit realized. A state, for example, constructs and operates a highway. It may, if it choose, exact compensation for its use from those who travel over it . . . but this does not destroy the claim that the maintenance of the highway is a public and governmental function.’
“The Turnpike Commission, having but one function to perform, does not come within the rule making a distinction between governmental functions and business or corporate functions of a municipality. See Clamper v. Philadelphia, 279 Pa. 385, Steele v. McKeesport, 298 Pa. 116, Scibilia v. Philadelphia, 279 Pa. 549. The only [pertinent] authority given to the Turnpike Commission under the statute is the construction, maintenance, and operation of the turnpike, which is a governmental function: Balashaitis et ux. v. Lackawanna County, 296 Pa. 83. It follows that there can be no liability unless it be expressly imposed: Collins v. Commonwealth, 262 Pa. 572, 580. There is nothing in the Turnpike Act imposing such liability, and the provision of the statute that the commission may sue and be sued is not suffi[614]*614cient for that purpose. The same provision is contained in the School Code but, as we have shown above, a school district is not subject to the principle of respondeat superior.”
Since that time the same contention has been repeatedly presented to the lower Courts of this Commonwealth and each time it has been rejected: Super v. Pennsylvania Turnpike Commission, 19 Pa. D. & C. 2d 372, 73 Dauphin 387 (1959); Harrell v. Porter, 19 Pa. D. & C. 2d 385 (1958); DiRenzo v. Transamerican Freight Lines, Inc., 10 Pa. D. & C. 2d 723 (1957); Caputo v. Pennsylvania Turnpike Commission, 103 P.L.J. 486 (1955); Malpica v. Pennsylvania Turnpike Commission, 65 Dauphin 302 (1953). Moreover, since the House case (supra) was decided in 1942, the legislature has passed seven acts relating to new or additional extensions of the turnpike and each contained the identical “sue and be sued” clause. Significantly, however, the legislature has not seen fit to vary or amplify this clause in any of the above enumerated acts or to impose upon the Turnpike Commission liability for torts. If the statutory construction and the result reached in House and unanimously followed in the later cases had not been in accordance with the intent of the legislature, it could easily have changed the language of the new Acts to impose trespass liability. Cf. Loeb Estate, 400 Pa. 368, 375-376, 162 A. 2d 207; Cali v. Philadelphia, 406 Pa. 290, 310-311, 177 A. 2d 824. In the light of these facts and the well reasoned decisions above cited, we do not feel that this legislatively approved result should be judicially changed or modified.
Moreover, when the highest Courts of our sister states have been called upon to interpret similar “sue and be sued” clauses, they have almost unanimously held that such clauses authorize only such actions as are necessary to carry out the business and functions of the Commission or Agency and do not waive immu[615]*615nity from suit in negligence actions: Nelson v. Maine Turnpike Authority, 157 Me. 174, 170 A. 2d 687; Spangler v. Florida State Turnpike Authority, 106 So. 2d 421 (Florida); Tounsel v. State Highway Department, 180 Ga. 112, 178 S.E. 285; Fatzer v. Kansas Turnpike Authority, 176 Kan. 683, 273 P. 2d 198; Westwego Canal & T. Co. v. Louisiana Highway Commission, 200 La. 990, 9 So. 2d 389. Contra: McCabe v. New Jersey Turnpike Authority, 35 N. J. 26, 170 A. 2d 810; Petty v. Tennessee-Missouri Bridge Commission, 359 U. S. 275 (that Court, however, recognized that neither Missouri nor Tennessee would have allowed the suit). See: Annotation, 62 A.L.R. 2d 1231.
We agree with the Court of Common Pleas of Dauphin County and with the highest Courts of our sister States that the authority to “sue and be sued” was not intended as a general waiver of immunity from trespass suits, but applies only to those actions necessary to ca/rry out the ordinary business and functions of the Commission or Agency.
Plaintiffs’ second and final contention is that the Pennsylvania Turnpike Commission is a quasi-corporate agent of the Commonwealth which occupies the same status as counties, cities, townships, boroughs and municipal authorities with respect to liability for the negligent maintenance of roads and highways. It is well settled that while the Commonwealth is not liable for the negligent maintenance of its highways, its political subdivisions do not enjoy the same immunity: Smith v. Snowden Township, 348 Pa. 187, 34 A. 2d 515; Clark v. Allegheny County, 260 Pa. 199, 103 A. 552; Kriebel v. Worcester Township, 253 Pa. 452, 98 A. 686; Burrell Township v. Uncapher, 117 Pa. 353, 11 A. 619; Dean v. New Milford Township, 5 W. & S. 545; Hartness v. Allegheny County, 349 Pa. 248, 250-251, 37 A. 2d 18; Balashaitis v. Lackawanna County, 296 Pa. 83, 85-86, 145 A. 691; Scibilia v. Philadelphia, 279 Pa. [616]*616549, 555-556, 124 A. 273; Collins v. Commonwealth, 262 Pa. 572, 580, 106 A. 229; Ford v. Kendall Borough School District, 121 Pa. 543, 549, 15 A. 812.
Plaintiffs rely upon a number of federal decisions which support their contention. Chief among these is Gerr v. Emrick, 283 F. 2d 293, decided by the Court of Appeals for the Third Circuit in 1960. In that case the Court, which was bound by Erie R. Co. v. Tompkins, 304 U. S. 64, to apply Pennsylvania law, ignored our lower Court decisions and held that the Pennsylvania Turnpike Commission did not enjoy the sovereign immunity of the Commonwealth.* In arriving at this result the Third Circuit placed great reliance upon Lichtenstein v. Pennsylvania Turnpike Commission, 398 Pa. 415, 158 A. 2d 461,** which, as will presently appear, is completely inapplicable to the case at bar. The District Courts have likewise generally denied immunity to the Commission: Linger v. Pennsylvania Turnpike Commission, 158 F. Supp. 900 (W.D. Pa. 1958); Eastern Motor Express, Inc. v. Espenshade, 138 F. Supp. 426 (E.D. Pa. 1956); Lowes v. Pennsylvania Turnpike Commission, 125 F. Supp. 681 (M. D. Pa. 1954); contra: Masse v. Pennsylvania Turnpike Commission, 163 F. Supp. 510 (E. D. Pa. 1958).
[617]*617We, of course, are not bound by these decisions of the federal Courts, but in view of the vigor with which they are urged upon us by plaintiffs and as an expression of a view contrary to current Pennsylvania law, we desire to mention them and refute their reasoning. Plaintiffs as well as the Third Circuit Court have misconceived the breadth and effect of our decision in Lichtenstein v. Pennsylvania Turnpike Commission, 398 Pa., supra, upon which they rely. In that case this Court overruled Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355, 39 A. 2d 139, and held that the Commission is liable for interest on the award of a Board of View where it condemns and enters upon land. Similarly, in Wolf v. Commonwealth, 403 Pa. 499, 170 A. 2d 557 (which was decided only a few months later), the Court overruled Culver v. Commonwealth, 348 Pa. 472, 35 A. 2d 64, and held that the Commonwealth was liable not only for detention damages, but also for interest in condemnation cases. In this sense, Lichtenstein was merely a precursor of Wolf, but neither imposed a liability for torts.
There is a material and important difference and distinction between the Pennsylvania Turnpike Commission and Counties, Cities, and similar political subdivisions. This is apparent from Section 4 of the Act of May 21, 1937, which makes clear that the Turnpike Commission is in many respects the alter ego of the Commonwealth. That section provides pertinently:
“That there is hereby created a commission to be known as the ‘Pennsylvania Turnpike Commission’ and by that name the commission may sue and be sued, plead and be impleaded, contract and be contracted with, and have an official seal. The commission is hereby constituted an instrumentality of the Commonwealth* and the exercise by the commission of the [618]*618powers conferred by this act in the construction, operation and maintenance of the turnpike shall be deemed and held to be an essential governmental function of the Commonwealth. The commission shall consist of five members, and the Secretary of Highways shall be a member ex officio. . . . Provided, however, That all contracts and agreements relating to the construction of the turnpihe and connecting tunnels and bridges shall be approved by the Department of Highways, and the turnpihe and connecting tunnels and bridges shall be constructed under the supervision of the Department of Highways. . . . All such compensation and salaries and all expenses incurred in carrying out the provisions of this act shall be paid solely from funds provided under the authority of this act, and no liability or obligation shall be incurred hereunder beyond the extent to which money shall have been provided under the authority of this act.”
It is clear from the above quoted provisions of the Act that the Commonwealth has not divorced itself from all control and supervision over the Turnpike as it did with respect to highways constructed and maintained by its political subdivisions by the Act of June 13, 1836, P. L. 551.* The Act, we repeat, specifically states: “Provided, however, That all contracts and agreements relating to the construction of the turnpike and connecting tunnels and bridges shall be approved by the Department of Highways, and the turnpike and connecting tunnels and bridges shall be constructed under the supervision of the Department of Highways.”
Furthermore, Transamerican Freight Lines v. Commonwealth, 396 Pa. 64, 151 A. 2d 630, cert. denied 361 U. S. 882, held that the Pennsylvania Turnpike was a [619]*619State highway. This case arose under the Act of June 22, 1931, P. L. 694, as amended, 72 PS §2183 et seq., which imposed an excise tax on the gross receipts of companies engaged in the business of carrying passengers or property over Pennsylvania highways. For companies operating over routes in interstate commerce, the tax was determined by dividing the number of miles operated in Pennsylvania by the total number of miles operated on all highways. The taxpayer contended, inter alia, that mileage operated over the Pennsylvania Turnpike should be excluded from the numerator of the fraction on the ground that the turnpike was not a State highway. In analyzing the pertinent Turnpike Acts, the Court said (pages 71-72) : “ ‘We believe that the statutes, inter alia, provide that the Pennsylvania Turnpike Commission is an instrumentality of the Commonwealth; that the Turnpike is to be maintained and repaired through* the Department of Highways; and further when all bonds have been paid the Turnpike is to become part of the system of State highways and be maintained by the Department of Highways free of all tolls. The Legislature has seen fit to prescribe a speed limit for the Turnpike: Act of April 15, 1941, P. L. 17, 75 P.S. §501(7).
“ ‘In a number of appellate court decisions, the status of the Pennsylvania Turnpike Commission is defined. In Pennsylvania Turnpike Commission Land Condemnation Case, 347 Pa. 643 (1943), it was held that in acquiring property for the Turnpike Commission, the Commonwealth was acquiring the same through its agent, the Commission.
“ ‘In Pennsylvania Turnpike Commission Appeal, 351 Pa. 139 (1945), it was held that the authority of the State Mining Commission to determine the amount [620]*620of coal to be left in place under a State highway and the compensation therefor included the authority to determine the amount of coal to be left in place under a portion of the Pennsylvania Turnpike.
“ ‘In Pickett Unemployment Compensation Case, 177 Pa. Superior Ct. 240 (1955), an employee of the Turnpike Commission is considered to be an employee of the State.
“ ‘The Pennsylvania Turnpike Commission is an instrumentality of the Commonwealth and the Turnpike a public highway: Shirks Motor Express Corporation v. Messner et al., 375 Pa. 450, supra, at pages 454-460, 461. See also Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117 (1956); Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355 (1944).
“ ‘It is our opinion that within the meaning of the Act of 1931, as amended, the Pennsylvania Turnpike is a State highway.’ ”
Moreover, in Ewalt v. Pennsylvania Turnpike Commission, 382 Pa. 529, 115 A. 2d 729, where plaintiff filed a bill in equity seeking consequential damages for injury to his property in the nature of a continuing trespass, the Court said (pages 534-535) :
“On the basis of the foregoing, the appellee contends that the Commonwealth’s immunity from liability for damages due to injuries such as are pleaded by the plaintiffs also attends the Commission since Section 4 of the Turnpike Act of May 21, 1937. P. L. 774, 36 PS §652(d), constitutes the Commission an instrumentality of the Commonwealth and Section 5 of the Western Pennsylvania Turnpike Extension Act of 1941, supra, declares that the Commission’s exercise of the powers conferred by that Act in the construction, operation and maintenance of the turnpike shall be deemed and held to be an essential governmental function of the Commonwealth. The immunity which the appellee thus imputes to itself may be conceded.”
[621]*621These authorities aid us in reaching the conclusion that the Pennsylvania Turnpike Commission possesses the same immunity from liability in trespass actions arising out of the negligence of its agents and employees in the maintenance of the highway as does the Commonwealth.
Judgment affirmed.
Mr. Justice Cohen took no part in the consideration or decision of this case.
The Commission also filed a petition for severance of the personal action of Charles A. Rader to permit his joinder as an additional defendant in the actions of the other plaintiffs. The Court below granted the severance and Charles A. Rader was joined as an additional defendant by complaint.