Dusty Rhoads, a/k/a William Rhoads d/b/a Close Range, Inc. v. Philadelphia Housing Authority and Vernon Cooney and Michael Subick and Chief Richard Zappile, Appellants (2009)

The majority finds that the Philadelphia Housing Authority and its employees are immune under the provisions of what is commonly known as the Sovereign Immunity Act.¹ Because only “commonwealth parties” are entitled to sovereign immunity, and the Philadelphia Housing Authority is not a “commonwealth party” as that term is defined, I respectfully dissent.

42 Pa.C.S. § 8522 provides that the protection of sovereign immunity is only available to “commonwealth parties”.²  A commonwealth party is defined as “a commonwealth agency and employee, but only with respect to an act within the scope of his office or employment.”  42 Pa.C.S. § 8501.   After that, to determine what is a commonwealth party requires going from defined term to term.   Under 42 Pa.C.S. § 102, “commonwealth agency” is defined as “[a]n executive agency or independent agency.”   Agencies are classified as “executive” if they are under the supervision and control of the Governor, and, if they are not, as “independent.”   Id. Both of these types of agencies are expressly defined as including entities such as boards, commissions, authorities and other agencies “of the Commonwealth government.”   Id. “Commonwealth government” is, in turn, defined as encompassing “․ the departments, boards, commissions, authorities and officers and agencies of the commonwealth, but the term does not include any political subdivision, municipal or other local authority, or any officer or agency of any such political subdivision or local authority.”   Id. (Emphasis added.)  “Local authority” is defined as “When used in any statute finally enacted on or after January 1, 1975, a municipal authority or any other body corporate and politic created by one or more political subdivisions pursuant to statute.”

Because the Judicial Code, which includes what is commonly known as the Sovereign Immunity and Political Subdivision Torts Claim Act,³ was enacted after January 1, 1975, any authority that is created by a political subdivision is not a commonwealth party, and governmental and not sovereign immunity applies.   Because the Philadelphia Housing Authority was created by the City of Philadelphia, it is not a commonwealth party under the sovereign immunity provisions of the Judicial Code.

I recognize that some of our case law has held that the Philadelphia Housing Authority is entitled to sovereign immunity, but those cases must fall before the statutory language set forth above;  otherwise, we are no longer interpreting the law but rewriting the law.   Accordingly, because we have to address this issue under the Political Subdivision Tort Claims Act, I respectfully dissent.

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DAN PELLEGRINI, JUDGE

FOOTNOTES

FN1. 42 Pa.C.S. §§ 8521-8528..  FN1. 42 Pa.C.S. §§ 8521-8528.

FN2. 42 Pa. CS § 8522(a) provides:  “(a) Liability imposed.-The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.”  Article 1, § 1 provides in relevant part that:  “Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.”.  FN2. 42 Pa. CS § 8522(a) provides:  “(a) Liability imposed.-The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.”  Article 1, § 1 provides in relevant part that:  “Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.”

FN3. 42 Pa.C.S. §§ 8541-8542..  FN3. 42 Pa.C.S. §§ 8541-8542.