Opinion
Argued March 21, 1979
September 19, 1979.
Sovereign immunity — Act of 1978, September 28, P.L. 788 — Ex post facto law — Constitution of Pennsylvania, Article I, Section 17 — Vested rights — Retroactivity.
1. Provisions of Article I, Section 17 of the Constitution of Pennsylvania, prohibiting the enactment of ex post facto legislation, apply only to penal statutes and are inapplicable to the Act of 1978, September 28, P.L. 788, relating to the doctrine of sovereign immunity. [99]
2. Provisions of the Act of 1978, September 28, P.L. 788, authorizing the use of the defense of sovereign immunity to claims against the Commonwealth whenever arising neither impair contractual obligations nor disturb vested rights of persons when applied to a claim for damages alleged to result from the diverting of traffic from the business premises of the claimant prior to the statutory enactment. [100]
Judges CRUMLISH, JR. and DiSALLE dissented.
Argued March 21, 1979, before President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., MENCER, ROGERS, BLATT, DiSALLE, CRAIG and MacPHAIL.
Original jurisdiction, No. 1708 C.D. 1976, in case of Richard Kastner v. Commonwealth of Pennsylvania, Pennsylvania Department of Transportation. Complaint in trespass in the Commonwealth Court of Pennsylvania seeking damages for loss of business. Preliminary objections filed and overruled. ( 32 Pa. Commw. 267) Plaintiff appealed to the Supreme Court of Pennsylvania. Petition for remand filed and granted. Matter reargued. Held: Preliminary objections sustained. Complaint dismissed.
Robert E. Cherwony, with him Wilbur Greenberg, and, of counsel, Sidkoff, Pincus, Greenberg Green, P.C., for plaintiff.
Stuart J. Moskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for defendant.
On October 5, 1976, Richard Kastner (Plaintiff) filed a complaint in trespass within our original jurisdiction against the Pennsylvania Department of Transportation (Department). The Department filed preliminary objections to Plaintiff's complaint on the basis of sovereign immunity. On October 26, 1977, this Court, per President Judge BOWMAN, sustained the Department's preliminary objections and dismissed the complaint. Kastner v. Department of Transportation, 32 Pa. Commw. 267, 378 A.2d 1050 (1977). Plaintiff then filed an appeal with our Supreme Court. Plaintiff subsequently petitioned the Supreme Court to remand the case to this Court for reconsideration in light of the Supreme Court's decision in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). The petition was granted and the case was argued to us on March 21 of this year.
Plaintiff raises three issues for our consideration: (1) whether the decision in Mayle v. Pennsylvania Department of Highways, supra, vested Plaintiff with a cause of action against the Commonwealth which could not be destroyed by legislative action, (2) whether the Act of September 28, 1978, P.L. 788, Act No. 152 (Act 152) is unconstitutional because it retroactively destroys Plaintiff's vested right in the cause of action and provides no alternative remedy for redress, and (3) whether Act 152 is unconstitutional as an ex post facto law.
The first two issues raised by Plaintiff were decided adversely to his position by our decision in Brungard v. Hartman, 46 Pa. Commw. 10, 405 A.2d 1089 (1979) and no further discussion of those issues is necessary here. We find Plaintiff's third argument to be meritless as well.
Article I, Section 17 of the Constitution of Pennsylvania provides that "No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed." Our Courts have consistently held that the term "ex post facto" as used in the Constitutions of the United States and Pennsylvania applies only to penal statutes and "may be defined as [a law] which imposes a punishment for an act which was not punishable when it was committed, imposes additional punishment or changes the rules of evidence by which less or different testimony is sufficient to convict. . . ." Myers v. Lohr, 72 Pa. Super. 472, 474 (1919); see also Padgett v. Stein, 406 F. Supp. 287, 300-01 (M.D. Pa. 1975) and Black's Law Dictionary 662 (Rev. 4th ed. 1968).
Having concluded that the term "ex post facto" as used in Article I, Section 17 of the Constitution of Pennsylvania is not applicable to the case at bar, we next consider the applicability of the remainder of the language in Section 17. We said in Brungard v. Hartman, supra, that our Supreme Court's decision in Mayle v. Pennsylvania Department of Highways, supra, did not provide prospective plaintiffs with a vested right to sue the Commonwealth. Act 152 neither impairs a contractual obligation nor disturbs a vested right of the parties in this case, and, therefore, is not unconstitutional. See Roy v. Jones, 349 F. Supp. 315, 323 (W.D. Pa. 1972), aff'd, 484 F.2d 96 (3d Cir. 1973) and Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960).
The Department's preliminary objections are sustained and Plaintiff's complaint is dismissed.
Plaintiff's complaint fails to allege a cause of action which would fall within any of the eight exceptions to the sovereign immunity defense provided by Section 2 of Act 152, 42 Pa. C.S. § 5110.
Judge CRUMLISH, JR. dissents.
ORDER
AND NOW, this 19th day of September, 1979, the preliminary objections of the Defendant, Pennsylvania Department of Transportation are sustained and the complaint of Plaintiff, Richard Kastner, is dismissed.
I respectfully dissent for the reasons set forth in my dissenting opinion in Brungard v. Hartman, 46 Pa. Commw. 10, 405 A.2d 1089 (1979).