Pennsylvania Fish Commission v. Township of Pleasant , 36 Pa. Commw. 216 ( 1978 )

Concurring Opinion by

President Judge Bowman :

I concur, but in doing so, I believe we must recognize tbe limited holding of Commonwealth v. Berks County, 364 Pa. 447, 72 A.2d 129 (1950), and distinguish the instant case from our decision in Department of Public Welfare v. Ludlow Clinical Laboratories, Inc., 22 Pa. Commonwealth Ct. 614, 350 A.2d 208 (1976), aff’d by an equally divided court, 473 Pa. 299, 374 A.2d 526 (1977).¹

In Ludlow, we relied upon Commonwealth v. Orsatti, Inc., 448 Pa. 72, 292 A.2d 313 (1972), which in turn relied upon Berics County. As I understand these opinions, the Commonwealth, in submitting itself to the jurisdiction of court by instituting a suit, subjects itself to affirmative defenses, including right of recoupment, i.e., a general verdict for the defendant with respect to the Commonwealth’s claim. However, in Ludlow, we held the ambit of defenses to which the Commonwealth submitted itself in instituting a suit did not include a counterclaim for money damages in excess of the amount sought by the Commonwealth. To this extent, its sovereign immunity is preserved.

In the instant case, as I read Keystone’s third party complaint against DER., it asserts a right of indemnification against DER if Keystone is found at fault. I agree that such a defense may be asserted in the context of this suit, notwithstanding the potential anomalous result by way of third party proceedings of the Commonwealth, through one agency, asserting a cause of action to which another Commonwealth agency must answer at trial.

1 See also Commonwealth ex rel. Milk Marketing Bd. v. Sunnybrook Dairies, Inc., 32 Pa. Commonwealth. Ct. 313, 379 A.2d 330 (1977).