gavel.gif (3462 bytes) Sovereign Immunity

On/of distinction is "problematic" 
says state Supreme Court

The on/of distinction is no longer a valid argument in the eyes of the Pennsylvania Supreme Court. The governmental and sovereign immunity distinction was called problematic by the high court in their decision in Jones v. Southeastern Pennsylvania Transportation Authority (SEPTA). Justice Ralph Cappy wrote the opinion for the court.

In the court�s opinion, "�having had the benefit of years of observing how the so-called �on/of� distinction has affected this area of the law, we now conclude that the �on/of� distinction is problematic and of little or no use. Not only is it strained and confusing, it is also incorrect because it works to exclude claims that fall within the parameters of the Act�s real estate exception. Therefore, we reject it."

According to the opinion, Crystal Jones slipped and fell on rock salt on a SEPTA train platform. Jones sued SEPTA, saying that the Sovereign Immunity Act�s real estate exception, which waives immunity, applied to her claim. She said that SEPTA was negligent and failed to warn the public of the danger and did not clean up the rock salt.

SEPTA focused on the "dangerous condition of real estate" phrase in the Act�s exception in their argument. SEPTA said that the rock salt did not "derive, originate, or have as its source" the train platform itself.

The court agreed with SEPTA, stating in the opinion that, "we conclude that a claim for damages for injuries caused by a substance or an object on Commonwealth real estate must allege that the dangerous condition �derive[d], originate[d] or ha[d] as its source the Commonwealth realty� itself, if it is to fall within the Sovereign Immunity Act�s real estate exception. Snyder, 565 A.2d at 311 & n.5," said the court, "the Commonwealth may not raise the defense of sovereign immunity when a plaintiff alleges, for example, that a substance or an object on Commonwealth realty was the result of a defect in the property or in its construction, maintenance, repair or design."

Instead of looking at the on/of distinction, the court looked at the wording of the exception, 42 Pa.C.S. Section 8522(b)(4), and said that the complaint must meet the requirements of the exception to be valid.

The court determined that "The complaint�has no averments, which if proven, would establish that the salt derived or originated from or had as its source the train platform itself." The court affirmed the Commonwealth Court and ruled in favor of SEPTA and granted summary judgment.


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