Christy v. PA Turnpike Comm

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

3-27-1995

Christy v PA Turnpike Comm
Precedential or Non-Precedential:

Docket 94-1386

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

Nos. 94-1386 and 94-1398
___________

CHARLES A. CHRISTY,

vs.

PENNSYLVANIA TURNPIKE COMMISSION, A DULY
ORGANIZED AND EXISTING AGENCY OF THE
COMMONWEALTH OF PENNSYLVANIA; ROBERT BRADY,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
JAMES J. DODARO, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY; HOWARD YERUSALIM,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
FRANK S. URSOMARSO, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY; JAMES F. MALONE, III,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
JOHN L. SOKOL, JR., INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY; S. MICHAEL PALERMO,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
JOSEPH L. DIRIENZO, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY; SAMUEL S. CARNABUCI,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
MELVIN M. SHELTON, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY; DEBORAH KOVAL,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY;
JOHN A. BOSCHI, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY; VINCENT J. GRECO,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
JOHN A. STEWART, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY; GEORGE PILECKI,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
SEAN PILECKI, INDIVIDUALLY

Pennsylvania Turnpike Commission, Robert
Brady, Vincent Greco and John Stewart

Appellants No. 94-1386

John A. Boschi,

Appellant No. 94-1398
 ___________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 93-cv-03346)

___________

ARGUED SEPTEMBER 12, 1994

BEFORE: STAPLETON, ALITO and LEWIS, Circuit Judges.

(Filed March 27, l995)

___________

Michael M. Baylson (ARGUED)
Duane, Morris & Heckscher
4200 One Liberty Place
Philadelphia, PA 19103-7396

Attorney for Appellants, Pennsylvania
Turnpike Commission, Robert Brady, Vincent
Greco and John Stewart

David S. Fortney (ARGUED)
Lisa G. DiPietro
Reed, Smith, Shaw & McClay
1650 Market Street
2500 One Liberty Place
Philadelphia, PA 19103-7301

Attorney for Appellant, John A. Boschi

Joseph F. Lawless, Jr. (ARGUED)
6 Harvey Lane
Newtown Square, PA 19073

John P. Hickey
Imogene E. Hughes
Kleinbard, Bell & Brecker
1900 Market Street
Suite 700
Philadelphia, PA 19103

Attorneys for Appellee
 ___________

OPINION OF THE COURT
___________

LEWIS, Circuit Judge.

In this case, we must determine whether the

Pennsylvania Turnpike Commission ("Commission") is an "arm" or

"alter ego" of the Commonwealth of Pennsylvania and thus entitled

to Eleventh Amendment immunity from suit in federal court.

Because we conclude that the Commission is not an arm or alter

ego of Pennsylvania we will affirm the district court's finding

that the Commission does not enjoy Eleventh Amendment sovereign

immunity.

I.

The appellee, Charles Christy ("Christy"), has been an

employee of the Commission since 1976.1 In November of 1992,

Christy made application for the position of Paint Crew Foreman.

He was interviewed for this position in early 1993 by the

appellants John Boschi, Vincent Greco and John Stewart.2 Christy

was then chosen as one of three final candidates for the Paint

Crew Foreman position. The names of the three final candidates

were passed to the Commission's personnel committee for final

1
. Since 1983, Christy has been employed as an Auto
Mechanic 1.
2
. John Boschi is currently the Commission's Deputy Executive
Director of Maintenance; Vincent Greco is Eastern Division
Superintendent of the Commission; and John Stewart is Assistant
Deputy Executive Director of Maintenance for the Commission. The
other individual defendant in this appeal, Robert Brady, is a
Turnpike Commissioner.
review. The personnel committee then recommended that the

position be awarded to one Sean Pilecki, a Commission employee

during the preceding four and a half years. The Commission

adopted the personnel committee's recommendation and hired Mr.

Pilecki. Christy subsequently applied and was turned down for

the position of Eastern Division Equipment Supervisor.

Christy then sued the Commission and its individual

commissioners and personnel committee members pursuant to

42 U.S.C. §§ 1983 and 1985, claiming that he was not promoted due

to political bias against him. In response to Christy's claims

of political bias, the Commission and individual defendants

Brady, Greco and Stewart filed a joint motion for summary

judgment, while the defendant Boschi filed a separate summary

judgment motion. The district court denied the defendants'

motions, ruling as a matter of law that the Commission was not

entitled to Eleventh Amendment immunity, and rejecting the

individual defendants' claims of qualified immunity. These

appeals followed.

II.

The district court had jurisdiction in this case

pursuant to 28 U.S.C. §§ 1343(a)(3) and 1367(a).3 We have
3
. The Commission argues that the district court lacked
subject matter jurisdiction over it because Christy had elected
to drop the Commission as a party by the time the district court
ruled on the Eleventh Amendment issue. Putting aside the
question whether or not Christy in fact effectively dropped the
Commission as a party, the Commission is incorrect in asserting
that the district court lacked subject matter jurisdiction over
it at the time the court ruled on the Eleventh Amendment issue.
Christy sued the individual defendants in both their individual
and official capacities. A suit against an individual in his or
appellate jurisdiction pursuant to 28 U.S.C. § 1291 over the

district court's denial of the defendants' motions seeking

summary judgment on Eleventh Amendment grounds. See Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., ___ U.S. ___, 113

S. Ct. 684, 687-89, 121 L.Ed.2d 605 (1993) (holding that district

court orders denying Eleventh Amendment immunity claims by states

or putative "arms of the state" are immediately appealable under

the collateral order doctrine).4 We exercise plenary review of

(..continued)
her official capacity is no different from a suit against that
individual's office. "As such, it is no different from a suit
against" the office itself. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989) (citations omitted); see also
Kentucky v. Graham, 473 U.S. 159 (1985) (emphasizing that
official capacity suits "`generally represent only another way of
pleading an action against an entity of which an officer is an
agent.'" (citation omitted)). In this case, a suit against the
individual defendants in their official capacities is the same as
a suit against the Commission. The individual defendants have
asserted Eleventh Amendment immunity in relation to Christy's
official capacity claims, and pressed that immunity in their
summary judgment motions before the district court. Thus, the
issue of the Commission's entitlement to sovereign immunity was
properly before the district court at the time the court ruled on
the issue.
4
. We will dismiss for lack of appellate jurisdiction the
individual defendants' appeals from the district court's denial
of their motions for summary judgment on qualified immunity
grounds. While we have appellate jurisdiction to consider the
denial of summary judgment when such denial is based on the
district's conclusion that the movant is not entitled to
qualified immunity, see, e.g., Brown v. Grabowski, 922 F.2d 1097,
1105 (3d Cir. 1990), the district court in this case did not rule
that the individual defendants were not entitled to qualified
immunity. Rather, it ruled that it could not find qualified
immunity based on the facts at summary judgment. The district
court could still find at the close of evidence at trial that the
individual defendants are entitled to qualified immunity in
relation to Christy's claims brought against them in their
individual capacities.
the district court's denial of the defendants' motions for

summary judgment. Rappa v. New Castle County, 18 F.3d 1043, 1050

(3d Cir. 1994).

III.

We must determine whether the district court correctly

concluded that the Commission is not an "arm" of Pennsylvania and

therefore not entitled to sovereign immunity under the Eleventh

Amendment.5 The question whether the Commission is an "arm" of

the State is one of federal law. Blake v. Kline, 612 F.2d 718,

722 (3d Cir. 1979). However, before undertaking our Eleventh

Amendment analysis, we must decide a question of apparent first

impression in this Circuit: who bears the burden of production

and persuasion with respect to factual questions when a putative

state entity claims immunity under the Eleventh Amendment? We

conclude that the party asserting Eleventh Amendment immunity

(and standing to benefit from its acceptance) bears the burden of

proving its applicability. In so concluding, we adopt the

reasoning set forth by the Court of Appeals for the Ninth Circuit

in ITSI TV Productions v. Agricultural Associations, 3 F.3d 1289

(9th Cir. 1993). Because Eleventh Amendment immunity can be

5
. The Eleventh Amendment provides that "[t]he Judicial power
of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State . . . ." U.S. Const.
amend. XI. Its explicit terms notwithstanding, the Eleventh
Amendment has consistently been interpreted to immunize an
unconsenting state "`from suits brought in federal courts by her
own citizens as well as by citizens of another state.'"
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100
(1984) (citation omitted).
expressly waived by a party, or forfeited through non-assertion,

it does not implicate federal subject matter jurisdiction in the

ordinary sense. Id. at 1291. We agree with the Ninth Circuit

that "whatever its jurisdictional attributes, [Eleventh Amendment

immunity] should be treated as an affirmative defense[,]" and

"[l]ike any other such defense, that which is promised by the

Eleventh Amendment must be proved by the party that asserts it

and would benefit from its acceptance." Id. We also agree with

the Ninth Circuit that considerations of fairness support this

conclusion. As the court noted in ITSI TV Productions:
In general, a claim of Eleventh Amendment
immunity will occasion serious dispute only
where a relatively complex institutional
arrangement makes it unclear whether a given
entity ought to be treated as an arm of the
state. In such cases, the "true facts" as to
the particulars of this arrangement will
presumably "lie particularly within the
knowledge of" the party claiming immunity.

Id. at 1292 (citations omitted).
Having concluded that the party asserting Eleventh

Amendment immunity bears the burden of proving entitlement to it,
we turn now to the merits of the immunity question. We have on

numerous occasions set forth the criteria to be considered in

determining whether an entity is an "alter ego" or "arm" of a

state for purposes of the Eleventh Amendment. See e.g., Peters

v. Delaware River Port Authority, 16 F.3d 1346, 1350 (3d Cir.

1994); Bolden v. Southeastern Pennsylvania Transp. Auth., 953

F.2d 807, 816-818 (3d Cir. 1991) (in banc); Fitchik v. New Jersey

Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989)
(in banc). Our oft-reiterated test entails three distinct

inquiries: (1) whether, in the event the plaintiff prevails, the

payment of the judgment would come from the state (this includes

three considerations: whether the payment will come from the

state's treasury, whether the agency has sufficient funds to

satisfy the judgment, and whether the sovereign has immunized

itself from responsibility for the agency's debts); (2) the

status of the agency under state law (this includes four

considerations: how state law treats the agency generally,

whether the agency is separately incorporated, whether the agency

can sue and be sued in its own right, and whether it is immune

from state taxation); and (3) what degree of autonomy the agency

enjoys. Peters v. Del. River Port Authority, 16 F.3d 1346, 1350

(3d Cir. 1994) (citing Bolden v. Southeastern Pa. Transp. Auth.,

953 F.2d 807, 816 (3d Cir. 1991) (in banc)). We turn now to this

three-pronged inquiry.

A. Funding

We have explained that although no single factor is

dispositive of the Eleventh Amendment inquiry, the "most

important" factor is whether a judgment against the entity in

question, in this case the Commission, would be paid out of the

state treasury. See, e.g., Fitchik v. New Jersey Transit Rail
Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) (in banc).

The special emphasis we place upon the funding factor is

supported by the Eleventh Amendment's central goal: the

prevention of federal court judgments that must be paid out of

the State's treasury. See Fitchik, 873 F.2d at 659-60 (citing
Edelman v. Jordan, 415 U.S. 651 (1974)). The Supreme Court has

recently reiterated the significance accorded this factor in

relation to other Eleventh Amendment considerations. In Hess v.

Port Authority Trans-Hudson Corporation, 115 S. Ct. 394 (1994),

the Court explained that "prevention of federal court judgments

that must be paid out of a State's treasury" formed the "impetus"

for the Eleventh Amendment. Hess, 115 S. Ct. at 404.
Accordingly, Courts of Appeals have
recognized the vulnerability of the State's
purse as the most salient factor in Eleventh
Amendment determinations . . . . "[T]he vast
majority of Circuits have concluded that the
state treasury factor is the most important
factor to be considered and, in practice,
have generally accorded this factor
dispositive weight."

Id. (citations omitted).
1. Whether Payment Will Come from the State's Treasury

Pursuant to the Turnpike Organization, Extension and

Toll Road Conversion Act ("The Act"), 36 P.S. §§ 651.1 et. seq.,

the Commission is authorized to obtain funds through the

collection of tolls for the use of the Pennsylvania Turnpike
System. 36 P.S. § 651.16. The Commission is also authorized to

collect rents and charges for telephone and electric lines, gas

stations, garages, stores, hotels, restaurants and advertising

signs. Id. The Act also authorizes the Commission to obtain

funds through the issuance of bonds, notes and other obligations.

Id. at § 651.12. In addition, the Act authorizes the Commission

to obtain funds from the federal government. Id. at § 651.19.

Finally, the Commission receives some funding out of
Pennsylvania's oil company franchise tax collections. 75

Pa.C.S.A. § 9511(h).

The Commission notes that only one of these funding

sources -- tolls -- is not subject to state control. According

to the Commission, the state's regulation and control of the

Commission's funding is crucial to our analysis of the funding

factor. Also significant, according to the Commission, is the

fact that upon retiring its debts, or setting aside funds

sufficient to do so, the Commission is to be dissolved and all of

the Commission's property is to be vested in the Department of

Highways. See 36 P.S. § 652o.

We do not know what percentage of the Commission's

funding might be attributed to each of the funding sources

identified above. We are, of course, able to observe that only

one of the five available sources of funding -- the oil company

franchise tax -- is obtained from the state. The other four

sources -- tolls, rents, bond and note revenues, and federal

funding -- are not state-derived. That four of the five

established sources of the Commission's funding are not state-

derived is, we think, even in the absence of additional

information, some support for the conclusion that the Commission

is not the alter ego of Pennsylvania.6

6
. Although the figure does not appear in the record, the
Commission has represented to us that it has received "more than
$112,000,000" in oil company franchise tax revenues. (Commission
brief at 36 n.18). We fail to see, however, how we can draw any
conclusion from this representation, given that the Commission
has failed to provide information regarding the percentage of its
annual revenues received in this form. See Bolden, 953 F.2d at
819-20 (without knowing what percentage of SEPTA's total revenue
 The degree of state regulation of the Commission's

funding does not alter our conclusion that the funding factor

weighs against according immunity to the Commission. We have

explained that state control is only significant to the funding

analysis where such control indicates state ownership of the

funds. Fitchik, 873 F.2d at 661. In other words, state control

over an entity's ability to obtain funds is inadequate to

demonstrate state ownership of the funds where the state is not

shown to have a financial interest that would be directly and

adversely affected by the diminution of the funds in question.

See id. Otherwise, the degree of state control over the entity's

funding is relevant to the autonomy inquiry, which we discuss

below. Id. Here, the state's control over the Commission's

authority to issue bonds, notes and other obligations falls short

of indicating state ownership of the funds obtained through the

issuance of such bonds, notes and other obligations. Likewise,

state control over the Commission's ability to obtain federal

funding falls short of indicating state ownership of the federal

funds obtained. The Commission's evidence of state control over

its ability to obtain funds simply fails to show a financial

interest on the part of Pennsylvania that would be directly and

adversely affected by the diminution of the Commission's funds

obtained through the issuance of bonds or from the federal

government.
(..continued)
comes from state funds under a particular new law, we held that
the impact of the law on SEPTA's funding was too uncertain to be
given significant weight in the funding analysis).
 Nor is our conclusion with respect to the funding

factor altered by the fact that the Commission will one day be

dissolved and all its remaining funds and property vest in the

Department of Highways. Pursuant to 36 P.S. § 652o:
When all bonds and the interest thereon
shall have been paid or a sufficient amount
for the payment of all bonds and the interest
to maturity thereon, shall have been set
aside in trust for the benefit of the
bondholders, and shall continue to be held
for that purpose, the turnpike and the
connecting tunnels and bridges shall become a
part of the system of State highways, and
shall be maintained by the Department of
Highways free of tolls, and thereupon the
commission shall be dissolved, and all funds
of the commission not required for the
payment of the bonds and all machinery,
equipment and other property belonging to the
commission, shall be vested in the Department
of Highways.

36. P.S. § 652o. Thus, the dissolution of the Commission is

statutorily contingent upon the Commission satisfying, or being

able to satisfy, all of its debts and obligations. If anything,

this provision provides further support for our conclusion by
illustrating the state's reluctance to take on the Commission's

financial obligations as its own.

2. Whether the Commission Could Satisfy a Judgment Against It

We do not know how much money the Commission has or

would have available to it to satisfy a potential judgment

against it. According to the Commission, the lack of record

evidence on this point renders this second funding inquiry

"irrelevant." We do not agree. Since the Commission bears the

burden of proving its entitlement to Eleventh Amendment immunity,
the Commission's failure to provide pertinent information

regarding its ability, or lack thereof, to satisfy a potential

judgment against it simply means that the Commission has failed

to sustain its burden of proof on this important question.

Moreover, even in the absence of such evidence, our cases enable

us to draw certain conclusions, with respect to the Commission's

ability to pay a judgment against it. In both Bolden and

Fitchik, we suggested that an entity with power to raise revenues

by raising fares need not request funds from the state to meet

shortfalls caused by adverse judgments. See Bolden, 953 F.2d at

819; Fitchik, 873 F.2d at 661.7 The Commission is authorized "to

fix, and to revise, from time to time," tolls for the use of the

Pennsylvania Turnpike System. 36 P.S. § 651.16(a). In fact, the

Commission's authority to set the toll rate "shall not be subject

to supervision or regulation by any other State commission,

board, bureau or agency." Id. at § 651.16(b). In light of

Bolden and Fitchik, we think the Commission's power to raise

revenue levels by increasing the toll rates, even in the absence

of information regarding the Commission's financial condition and

consequent ability to pay a judgment against it, supports the

view that the Commission need not seek assistance from the state

to satisfy a judgment against it.

3. Whether the Sovereign has Immunized Itself

7
. We also noted in Fitchik, alternatively, that the entity
could cover a shortfall by reducing its expenses or capital
budget. Fitchik, 873 F.2d at 661. Similarly, the Commission
would, we imagine, be able to cover a shortfall by reducing its
expenses or capital budget.
 The Act provides that "[a]ll 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 . . . ." 36 P.S. § 651.8(a). Furthermore, the Act

provides that all bonds, notes and other obligations issued by

the Commission under the Act
shall not be deemed to be a debt of the
Commonwealth or a pledge of the faith and
credit of the Commonwealth, but such bonds,
notes or other obligations shall be payable
solely from the revenues of the commission
. . . . All such bonds, notes or other
obligations shall contain a statement on
their face that the Commonwealth is not
obligated to pay the same or the interest
thereon except from revenues of the
commission . . . and that the faith and
credit of the Commonwealth is not pledged to
the payment of the principal or interest of
such bonds, notes or other obligations. The
issuance of turnpike revenue bonds, notes or
other obligations under the provisions of
this act shall not directly or indirectly or
contingently obligate the Commonwealth to
levy or to pledge any form of taxation
whatever therefor or to make any
appropriation for their payment.

36 P.S. § 651.4.

The Commission observes that the General Assembly of

Pennsylvania has not expressly immunized the state from

responsibility for all of the Commission's possible debts and

liabilities. Nowhere in the Commission's original or subsequent

enabling acts, the Commission notes, is there a provision

disclaiming Pennsylvania's responsibility for the Commission's

unassumed liabilities and obligations. One can imagine, the

Commission suggests, numerous situations in which the Commission
would face unassumed liabilities or debts large enough to exhaust

the Commission's funds and necessitate the Commission's rescue by

the Commonwealth.

In light of our case law, we do not agree that the

absence of a blanket disclaimer is significant. What is

significant under our case law is the fact that the Commission

has failed to establish that Pennsylvania is under any

affirmative obligation to pay the Commission's unassumed

liabilities in the first place. See Bolden, 953 F.2d at 819 ("A

state legislature might feel compelled as a practical matter to

subsidize a variety of entities that provide necessary services,

including financially pressed municipalities. Such discretionary

subsidies committed in reaction to a judgment, however, would not

necessarily transform the recipients into alter egos of the

state."). Although the Commonwealth might well choose to

appropriate money to the Commission to enable it to meet a

shortfall caused by an adverse judgment, such voluntary payments

by a state simply "`do not trigger [Eleventh Amendment]

immunity.'" Id. (quoting Fitchik, 873 F.2d at 661).8

8
. Christy contends that the Commission is able to self-insure
and to purchase liability insurance, and that the Commission in
fact self-insures at least part of its contingent liabilities
under the Commonwealth's Employee Liability Self-Insurance
Program. We have in cases past considered an entity's ability to
obtain insurance as evidence of that entity's financial self-
sufficiency and independence from the state. See Bolden, 953
F.2d at 819; Fitchik, 873 F.2d at 661. The Commission counters
that the alleged fact of the Commission's self-insurance is not
in evidence noting that "[n]o record reference is offered [by
Christy], nor does any affidavit, deposition excerpt, or document
included in the record support this statement." (Commission
reply at 19 n.14). But the Commission overlooks the fact that it
 The Commission has failed to establish that (1) a

judgment against it would be tantamount to a judgment against the

Treasury of the Commonwealth of Pennsylvania; (2) the Commission

lacks financial resources sufficient to pay a potential judgment

against it; or (3) Pennsylvania would be under any obligation to

cover any such potential judgment against the Commission.

Accordingly, on the record as it stands before us, the funding

factor, the most important of the three, weighs heavily in

support of the conclusion that the Commission is not an arm of

the Commonwealth of Pennsylvania and does not enjoy Eleventh

Amendment immunity from suit in federal court.

B. Status at State Law

The second general factor we must consider in

determining whether the Commission is an arm or alter ego of the

Commonwealth of Pennsylvania is the status of the Commission

under Pennsylvania law. Our purpose here is to determine whether

Pennsylvania law treats the Commission as an independent entity,

or as a surrogate for the state. See Fitchik, 873 F.2d at 662.

In Specter v. Commonwealth, 341 A.2d 481 (1975), a

plurality of the Pennsylvania Supreme Court held that the

Commission is not an arm of the Commonwealth and not entitled to

sovereign immunity. After examining the legislative acts

creating the Commission and defining its purposes and powers, as

(..continued)
bears the burden of proving entitlement to Eleventh Amendment
immunity; its failure to provide evidence of an inability to
obtain insurance is our primary concern, not Christy's failure to
cite record evidence to the contrary.
well as judicial decisions in which the Commission's status was

at issue, the court explained that:
There is, of course, no doubt that the
Commonwealth itself could have constructed
the Turnpike in the same manner that it
constructs and operates its State highways.
Had it done so, the State's immunity from
suit would encompass actions arising in
connection with the Turnpike. But the
Commonwealth itself did not build this
highway and does not maintain it. The
legislature created this separate body and at
the same time disclaimed any responsibility
on the part of the Commonwealth for
liabilities which it, the Commission, might
incur. It is clear that the Commission is
not an integral part of the Commonwealth, and
cannot share the attributes of sovereignty
which inhere in the state. It follows that
the Commission is not immune from suit in
tort for the acts of its servants and agents
acting in the course of their employment or
agency.

Id. at 491 (emphasis in original).

The Commission does, we recognize, possess certain

attributes associated with sovereignty. For example, the

Commission (1) may exercise the power of eminent domain; see 36
P.S. §§ 651.9 - .11; (2) enjoys statutory immunity from suit in

state court; see 42 Pa.C.S.A. § 8522(a); and (3) is exempt from

all state property taxation; see 36 P.S. § 651.15. On the other

hand, the Commission possesses certain traits not at all

characteristic of an arm of the state; for example, the

Commission may sue and be sued in its own name; see 36 P.S.

§ 651.7(a)(3); and has the power to enter into contracts in its

own name; see 36 P.S. § 651.7(a)(2).
 On balance, the "status under state law" factors weigh

slightly in favor of the conclusion that the Commission is not an

arm of the Commonwealth of Pennsylvania. This is true,

especially in light of the plurality holding of the Pennsylvania

Supreme Court in Specter that the Commission is not an integral

part of the Commonwealth, and thus cannot share the attributes of

sovereignty which inhere in the state. Cf. Peters, 16 F.3d at

1351 (holding that the Delaware River Port Authority's status

under state law weighs in favor of the conclusion that the agency

does not enjoy sovereign immunity, especially in light of a

Pennsylvania Supreme Court case holding that the DRPA is not "`an

integral part of the Commonwealth of Pennsylvania'" (citation

omitted)).

The Commission contends that in enacting Pennsylvania's

sovereign immunity statute, see 42 Pa.C.S.A. §§ 8501 et seq., the

Pennsylvania legislature "conclusively repudiated" Specter's

conclusion that the Commission is separate and apart from the

Commonwealth. The Commission further notes that in two

unanimous, post-Specter, decisions, the Pennsylvania Commonwealth

Court confirmed that the Commission enjoys sovereign immunity.

See Pennsylvania Turnpike Commission v. Jellig, 563 A.2d 202
(Pa.Cmwlth. 1989); Bradley v. Pennsylvania Turnpike Commission,

550 A.2d 261 (Pa.Cmwlth. 1988). To accord Specter any deference,

the Commission argues, is to give Specter value already taken

away by the Pennsylvania legislature and judiciary.

We do not share the Commission's appraisal of Specter's
continued vitality. Passage of the Pennsylvania sovereign
immunity statute has not diminished the significance of Specter's

analysis to our assessment of the Commission's claim of

entitlement to Eleventh Amendment immunity. By enacting an

immunity statute pursuant to which the Commission is accorded

sovereign immunity, the Pennsylvania legislature did not

"conclusively repudiate" Specter's conclusion that the Commission

is not an integral part of the Commonwealth and does not share

the attributes of sovereignty inhering in the state. In enacting

the sovereign immunity statute, the Pennsylvania legislature

merely conferred upon entities such as the Commission by way of

statute that which they otherwise lacked, namely, immunity from

suit in state court. We implied as much in Toombs v. Manning,

835 F.2d 453 (3d Cir. 1987), in which we explained that
[t]he significance to our analysis of the
legislature's inclusion of the . . .
Commission as an immune agency is that it is
clear that the General Assembly intended to
provide sovereign immunity protection not
only for those entities which before Mayle[
v. Pennsylvania Department of Highways, 388
A.2d 709 (1978) (in which the Pennsylvania
Supreme Court abrogated sovereign immunity)]
had been immune as sovereigns, but also for
those entities not previously immune, but
which now came within the statute's scope.

Toombs, 835 F.2d at 459 (footnote omitted) (emphasis supplied).

Nor do Jellig and Bradley undermine the continuing validity of

Specter's analysis. In those cases, the Pennsylvania

Commonwealth Court merely applied the Pennsylvania sovereign

immunity statute to find, unremarkably, that the Commission
enjoys sovereign immunity from suit in state court. See Jellig,

563 A.2d at 205; Bradley, 550 A.2d at 263.9

C. Autonomy

The Commission's membership is controlled by the

executive and legislative branches of the Commonwealth. One

member of the five-person Commission must always be the Secretary

of Transportation, a cabinet-level position appointed by the

Governor and confirmed by the Pennsylvania Senate. See 36 P.S.

§§ 651.5(d), 652d; see also 71 P.S. § 67.1(d)(1) (Gubernatorial

appointment and senatorial confirmation of Secretary of

Transportation). The four remaining Commission members are also

appointed by the Governor and confirmed by the Senate. See 36

P.S. §§ 651.5(b), 652d; see also 71 P.S. § 67.1(c)(2)

9
. We recognize that the Pennsylvania sovereign immunity
statute itself is some evidence of the Commission's status before
the law of Pennsylvania. And as some evidence of the
Commission's status at state law, it is relevant to our Eleventh
Amendment inquiry. However, it is far from determinative of that
inquiry. We have explained that state law extending sovereign
immunity to an agency is "relevant to the Eleventh Amendment
determination, but it is not dispositive." Bolden, 953 F.2d at
815 n.8 (citations omitted).

Thus, a state law determination of sovereign
immunity may coincide with and influence the
federal law determination of Eleventh
Amendment status, but the former does not
conclusively determine the latter . . . .
[Otherwise], each state legislature
apparently could confer Eleventh Amendment
protection on any entity it wished, including
counties and cities, by enacting a statute
clothing these entities with "sovereign
immunity" from suit on state claims.

Id. at 815 n.8, 817.
(Gubernatorial appointment and senatorial confirmation of

Commission members). State authority over the appointment of

Commission members lends obvious support to a finding of

sovereignty. See Peters, 16 F.3d at 1351-52.

On the other hand, weighing in favor of a finding of

autonomy are the facts that the Commission may fix and revise

tolls; enter contracts in its own name; issue bonds and notes;

sue in its own name; purchase and own property; and promulgate

rules and regulations for its own governance. See 36 P.S.

§ 651.16 (fix and revise tolls); 36 P.S. § 651.7 (enter

contracts, sue in its own name, purchase and own property, and

promulgate rules and regulations for its own governance); 36 P.S.

§ 651.12 (issue bonds and notes). Of course, several of these

powers are subject to a degree of state control. For example,

the Pennsylvania Attorney General must review the form and

legality of each contract and rule or regulation the Commission

proposes. See 71 P.S. § 732-204(b) (review of rules and

regulations); 71 P.S. § 732-204(f) (review of contracts).

Moreover, Commission issuance of bonds and notes is subject to

state approval. See 36 P.S. § 652u.1
On balance, the significant control the Commonwealth

exercises through the power to appoint all the members of the

Commission weighs slightly in favor of Commission immunity from

suit. Cf. Peters, 16 F.3d at 1351-52 (where separately

incorporated agency was found to have power to enter contracts,

hold property, and set and collect tolls, we held that the

autonomy factor weighed "slightly" in favor of affording immunity
in light of the states' power to appoint the members of the board

of the agency in question).

D. The Totality of Factors

Having considered each of the three factors above, we

now must consider the three factors in their totality. See

Bolden, 953 F.2d at 821. Since the most important factor,

funding, weighs heavily against the Commission and only one

factor weighs, even slightly, in favor of the Commission, the

balance is clearly struck against a finding that the Commission

enjoys sovereign immunity as an arm of the Commonwealth of

Pennsylvania. Consequently, we find that the Commission is

subject to suit in federal court. We will affirm the district

court's conclusion to this effect.

IV. Conclusion

For the reasons stated above, we will affirm the

district court's denial of the defendants' motions for summary

judgment on Eleventh Amendment immunity grounds, and will dismiss

for lack of appellate jurisdiction the defendants' appeals from
the district court's denial of their motions for summary judgment

on qualified immunity grounds.
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