Finkelstein v. Shippensburg State College ( 1977 )

Per Curiam

Opinion and Order,

Tbis action in trespass was filed within tbe original jurisdiction of tbis Court. It was brought by Leonard and Leila Finkelstein (plaintiffs) against Sbippensburg State College (Sbippensburg). Tbe complaint alleges that plaintiff, Leonard Finkelstein, a business invitee of Sbippensburg, sustained various injuries in a fall into an unligbted, unmarked culvert located on Sbippensburg’s grounds. In addition to its other preliminary objections, Sbippensburg raises tbe bar of sovereign.immunity to plaintiffs’ causes of action. We sustain tbis objection.

Tbe doctrine of sovereign immunity provides that tbe Commonwealth, or an instrumentality or agency of tbe Commonwealth, cannot be sued without express legislative consent. Pa. Const, art. I, §11, Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 183, 301 A.2d 849, 851 (1973). Sbippensburg is a state agency, owned and operated by tbe Commonwealth.¹ Tbis Court has held in prior decisions that similar state colleges are cloaked with sovereign immunity. Brungard v. Hartman, 12 Pa. Commonwealth Ct. 477, 315 A.2d 913 (1974). As there is no express legislation which allows Shippensburg to be sued in trespass, we hold that the bar of sovereign immunity is available to Shippensburg in this action.

Plaintiffs argue that sovereign immunity is not available in this instance because Shippensburg was not operating in a government function. Plaintiffs in this argument rely upon language found in Biello v. Pennsylvania Liquor Control Board, supra. This Court does not read Biello as holding that this State’s sovereign immunity is subject to the distinction between governmental and proprietary functions. This doctrine is in fact constitutionally mandated and as previously stated can only be altered by legislation. See Poklemba v. Shamokin Hospital, 21 Pa. Commonwealth Ct. 301, 304, n. 2, 344 A.2d 732, 734, n. 2 (1975). See also Brown v. Commonwealth, 453 Pa. 566, 574, n. 1, 305 A.2d 868, 873, n. 1 (1973) (Pomeroy, J. concurring). We sustain Shippensburg’s preliminary objections based upon sovereign immunity and dismiss the complaint.

Per Curiam

Order

And Now, this 23rd day of March, 1977, the preliminary objection of defendant Shippensburg State College is sustained, and the complaint against Shippensburg State College is dismissed.

1 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §20-2001 et seq.