Suing the King – The Defense of Sovereign Immunity in Pennsylvania

Personal injury lawyers know only too well that the government enjoys a measure of immunity from suit for its negligence. Likewise, governmental officials may be immune from lawsuits when they are acting within the scope of their official duties. This immunity, known broadly as “sovereign immunity,” is an Americanized concept which took its roots from an English doctrine which held that “the King can do no wrong.” Today, when we speak of sovereign immunity, we are talking about lawsuits against the Federal government or the States. When we talk about claims against local municipalities or their officials, we use the term “governmental immunity.”

There is an important difference. In Pennsylvania, there are two today statutes which govern the two different kinds of immunities. Because they were originally common law rights, with little, if any, constitutional power behind them, the courts had the power to strike them down. In 1973, Pennsylvania Supreme Court did just that: it abolished governmental immunity in the seminal case of Ayala v. Philadelphia Board of Public Education. Five years later, the Court abolished sovereign immunity in Mayle v. Pa. Dept. of Highways. However, the courts can not so easily emasculate legislation – in 1980 the Pennsylvania legislature enacted the Sovereign Immunity Act and the Political Subdivision Tort Claims Act, which effectively put both immunities back on the map.

The Sovereign Immunity Act provides that as a general rule the Commonwealth is immune from suit. For cases in which a person or agency without immunity might otherwise be held liable, the Act provides nine exceptions, where sovereign immunity will not apply. These exceptions include:

  1. Vehicle liability – the operation of any motor vehicle in the possession or control of a Commonwealth party;
  2. Medical-professional liability – acts of health care employees of commonwealth agency medical facilities or institutions or by a commonwealth party who is a doctor, dentist, nurse or related health care personnel;
  3. Care, custody or control of personal property in the possession or control of Commonwealth parties; however, sovereign immunity is not waived as to the “use of nuclear and other radioactive equipment, devices and materials”;
  4. Commonwealth real estate, highways and sidewalks – dangerous conditions of real estate;
  5. Dangerous conditions created by potholes and sinkholes on Commonwealth highways;
  6. Care, custody or control of animals in the possession or control of a Commonwealth party, including police dogs and horses;
  7. Liquor store sales at Pennsylvania liquor stores by employees of the Pennsylvania Liquor Control Board “if such sale is made to any minor, or to any person visibly intoxicated, or to any insane person, or to any person known as an habitual drunkard, or of known intemperate habit”;
  8. National Guard – acts of members of the Pennsylvania military forces; and
  9. Toxoids and vaccines – liability may be imposed on the Commonwealth a toxoid or vaccine is not manufactured in Pennsylvania, and Pennsylvania must take responsibility for it.

The Sovereign Immunity Act limits recovery against a Commonwealth party to a maximum of “$250,000 in favor of any plaintiff or $1,000,000 in the aggregate.” There are five types of damages allowed: (1) past and future loss of earnings and earning capacity; (2) pain and suffering; (3) medical and dental expenses; (4) loss of consortium; and (5) property losses, except that property losses cannot be recovered in actions involving dangerous conditions created by potholes and sinkholes on Commonwealth highways.

Within six months after an injury to his person or property, a potential plaintiff must give written notice of the injury to the Commonwealth or government unit. The notice must include the identity of the injured party, his address, the location, date and hour of the accident and the name and address of his treating physician. Failure to file the notice within six months bars a suit for the plaintiff’s injuries.

Similar to the Sovereign Immunity Act, the Political Subdivision Tort Claims Act bars suits against local municipalities, and carves out some exceptions. They are similar, but not equivalent, to the exceptions noted in the Sovereign Immunity Act, and include: (1) operation of a motor vehicle; (2) care, custody or control of personal property of others in the possession or control of the local agency; (3) care, custody or control of real property in the possession of the local agency; (4) care, custody or control of trees, traffic controls and street lighting, which create a dangerous condition; (5) a dangerous condition of utility service facilities; (6) a dangerous condition of streets; (7) a dangerous condition of sidewalks; and (8) the care, custody or control of animals.

Also like the Sovereign Immunity Act, the Tort Claims Act limits the amount of damages recoverable against a local agency, and restricts types of damages which may be recovered. It limits damages against a local agency to a maximum of $500,000 either by a single plaintiff or in the aggregate. In addition to recognizing the types of damages allowed under the Sovereign Immunity Act, the Tort Claims Act allows recovery for loss of support, and restricts recovery for pain and suffering to, (1) Death or (2) “only in the cases of permanent loss of a bodily function, permanent disfigurement or permanent dismemberment where the medical and dental expenses are in excess of $1,500.” Unlike the Sovereign Immunity Act, the Tort Claims Act also specifically provides that if there is insurance coverage for the plaintiff’s damages, any insurance recovery must be deducted from any awards against the local government.

Finally, the Tort Claims Act provides that an official who commits willful misconduct cannot hide behind the shield of immunity: “in any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct,” the defenses do not apply.

As you can imagine, many people feel that they have been wronged by the government, and some of them seek to utilize the courts for redress. Having read this article, you now know that recovering damages against the government is even more difficult than recovering against a party with no immunity. The Acts discussed here severely limit our rights to use the courts to seek reparation for our claims. The Acts themselves are confusing, ever-changing, and fraught with pitfalls. Skilled legal counsel is required to ensure that a claimant’s rights to sue the government are protected.

The attorneys of Wolf, Baldwin & Associates, P.C. would be honored to be your legal representatives. We have been practicing law primarily in Montgomery County, Berks County, and Chester County for a combined total of over fifty years. If you think you may have a claim against the Commonwealth of Pennsylvania or your local municipality, you don't have much time to act. Please contact us right away to schedule an appointment.

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