Kennedy v. Delaware River Joint Toll Bridge Commission

OPINION OF THE COURT

PER CURIAM.

On January 3, 1974, appellant Joseph Kennedy was injured when the automobile he was operating skidded on the Lower Trenton Bridge over the Delaware River between Trenton, New Jersey, and Morrisville, Pennsylvania, and crashed into the structure of the bridge. Kennedy filed an action in trespass in the court of common pleas alleging that his injuries were the result of negligent maintenance of the bridge by the appellee Commission. Preliminary objections, consisting of a demurrer and a motion raising a question of jurisdiction of the court of common pleas, were filed by the Commission. The court of common pleas, being of the view that it lacked jurisdiction,1 ordered the case transferred to the Commonwealth Court.2 The demurrer, which relied on the Commission’s entitlement to sovereign immunity, was renewed in the Commonwealth Court,3 and that court sustained the demurrer. 23 Pa.Cmwlth. 662, 354 A.2d 52 (1976). This appeal followed.4

In Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709, decided this day, sovereign immunity has been abolished as a defense in trespass actions in the courts of this Commonwealth. Our decision in Mayle is controlling here, and compels the conclusion that appellee’s preliminary objections should not have been sustained on the ground of sovereign immunity.5 Accordingly, the order of the Commonwealth Court is reversed, and the case remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

POMEROY, J., filed a concurring opinion.

EAGEN, C. J., and O’BRIEN, J., dissent.

1 See Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. IV, § 401(a)(1), 17 P.S. § 211.401(a)(1) (Supp.1978).

2 Compare Commonwealth Court Act, Act of January 6, 1970, P.L. (1969) 434, No. 185, § 9(b), 17 P.S. § 211.9(b) (Supp.1978) (repealed by Section 509 of the Appellate Court Jurisdiction Act, supra note 1, 17 P.S. § 211.509(a)(7)).

3 See the discussion of the practice of raising immunity from suit by way of demurrer in Freach v. Commonwealth, 471 Pa. 558, 564 n. 6, 370 A.2d 1163, 1166 n. 6 (1977).

4 Appellate Court Jurisdiction Act, supra note 1, art. II, § 203, 17 P.S. § 211.203.

5 Because of our disposition on this ground, we do not reach the other issues raised in this appeal.