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§ 8522. Exceptions to sovereign immunity

Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 42 Pa.C.S.A. Judiciary and Judicial Procedure

Purdon's Pennsylvania Statutes and Consolidated Statutes
Title 42 Pa.C.S.A. Judiciary and Judicial Procedure (Refs & Annos)
Part VII. Civil Actions and Proceedings
Chapter 85. Matters Affecting Government Units (Refs & Annos)
Subchapter B. Actions Against Commonwealth Parties (Refs & Annos)
Sovereign Immunity
42 Pa.C.S.A. § 8522
§ 8522. Exceptions to sovereign immunity
(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.
(b) Acts which may impose liability.--The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:
(1) Vehicle liability.--The operation of any motor vehicle in the possession or control of a Commonwealth party. As used in this paragraph, “motor vehicle” means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.
(2) Medical-professional liability.--Acts of health care employees of Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, dentist, nurse or related health care personnel.
(3) Care, custody or control of personal property.--The care, custody or control of personal property in the possession or control of Commonwealth parties, including Commonwealth-owned personal property and property of persons held by a Commonwealth agency, except that the sovereign immunity of the Commonwealth is retained as a bar to actions on claims arising out of Commonwealth agency activities involving the use of nuclear and other radioactive equipment, devices and materials.
(4) Commonwealth real estate, highways and sidewalks.--A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).
(5) Potholes and other dangerous conditions.--A dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the Commonwealth agency had actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dangerous condition. Property damages shall not be recoverable under this paragraph.
(6) Care, custody or control of animals.--The care, custody or control of animals in the possession or control of a Commonwealth party, including but not limited to police dogs and horses and animals incarcerated in Commonwealth agency laboratories. Damages shall not be recoverable under this paragraph on account of any injury caused by wild animals, including but not limited to bears and deer, except as otherwise provided by statute.
(7) Liquor store sales.--The sale of liquor at Pennsylvania liquor stores by employees of the Pennsylvania Liquor Control Board created by and operating under the act of April 12, 1951 (P.L. 90, No. 21), known as the “Liquor Code,”1 if such sale is made to any minor, or to any person visibly intoxicated, or to any insane person, or to any person known as an habitual drunkard, or of known intemperate habit.
(8) National Guard activities.--Acts of a member of the Pennsylvania military forces.
(9) Toxoids and vaccines.--The administration, manufacture and use of a toxoid or vaccine not manufactured in this Commonwealth under the following conditions:
(i) The toxoid or vaccine is manufactured in, and available only from, an agency of another state.
(ii) The agency of the other state will not make the toxoid or vaccine available to private persons or corporations, but will only permit its sale to another state or state agency.
(iii) The agency of the other state will make the toxoid or vaccine available to the Commonwealth only if the Commonwealth agrees to indemnify, defend and save harmless that agency from any and all claims and losses which may arise against it from the administration, manufacture or use of the toxoid or vaccine.
(iv) A determination has been made by the appropriate Commonwealth agency, approved by the Governor and published in the Pennsylvania Bulletin, that the toxoid or vaccine is necessary to safeguard and protect the health of the citizens or animals of this Commonwealth.
(v) The toxoid or vaccine is distributed by a Commonwealth agency to qualified persons for ultimate use.
The Commonwealth shall make the toxoid or vaccine available to a qualified person only if the person agrees to indemnify, defend and save harmless the Commonwealth from any and all claims and losses which may arise against the Commonwealth from the manufacture, distribution, administration or use of the toxoid or vaccine.

Credits

1980, Oct. 5, P.L. 693, No. 142, § 221(l), effective in 60 days. Amended 1986, Dec. 11, P.L. 1481, No. 151, § 2, imd. effective.
HISTORICAL AND STATUTORY NOTES
Act 1978-152 legislation
Sections 3, 4 and 5 of Act 1978, Sept. 28, P.L. 788, No. 152, provide:
“Section 3. Powers and duties of Attorney General and Department of General Services.
“(a) Reports to General Assembly.--The Attorney General shall report on April 1, 1980 and annually thereafter to the General Assembly through the Speaker of the House of Representatives and the President pro tempore of the Senate, the number and types of claims instituted against the Commonwealth, their disposition or status, including settlements agreed or verdicts entered, and such other information as the Attorney General shall deem appropriate.
“(b) Rules and regulations.--The Attorney General shall promulgate rules and regulations not inconsistent with this act in order to implement the intent of the act. The subject of the rules and regulations may include the procedures for settlement of claims prior to or after the institution of suit, the designation of local and principal offices for Commonwealth agencies, the basis for undertaking and continuing legal defense of claims, and the procedures for payment of claims and satisfaction of judgments. The rules and regulations, and amendments thereto, promulgated pursuant to this section shall not take effect until the requirements of the ‘Commonwealth Documents Law’ have been complied with and 30 days have expired after transmission of the rules and regulations to the General Assembly through the Speaker of the House of Representatives and the President pro tempore of the Senate.
“(c) Risk management program.--The Department of General Services shall undertake a comprehensive review of risk management including loss prevention, the availability of insurance and the feasibility of self-insurance for the areas of specific waiver of sovereign immunity enumerated in 42 Pa.C.S. § 5110 (relating to limited waiver of sovereign immunity). The department shall report, on or before February 1, 1979, to the Governor and the General Assembly through the President pro tempore of the Senate and the Speaker of the House of Representatives, its findings and recommendations for the most efficient risk management and loss prevention program, the most feasible insurance or self-insurance coverage, or combination of both. The department shall assist the Attorney General in formulating rules and regulations, standards or guidelines, for adjusting and processing claims and otherwise managing the prelitigation procedures to be utilized by Commonwealth agencies to carry out the provisions of this act.”
“Section 4. Repeals.
“(a) The provisions of the following acts, and all other acts and parts of acts, are repealed insofar as they waive or purport to waive sovereign immunity inconsistent with this act, but are saved from repeal insofar as they provide defenses or immunities from suit:
“Section 11, act of March 19, 1951 (P.L. 28, No. 4), known as the ‘State Council of Civil Defense Act of 1951’ (71 P.S. § 1689.11).
“Section 5.2, act of October 27, 1955 (P.L. 744, No. 222), known as the ‘Pennsylvania Human Relations Act’ (43 P.S. § 955.2).
“Section 603, act of October 20, 1966 (3rd Sp.Sess., P.L. 96, No. 6), known as the ‘Mental Health and Mental Retardation Act of 1966’ (50 P.S. § 4603).
“Section 1001, act of October 15, 1975 (P.L. 390, No. 111), known as the ‘Health Care Services Malpractice Act’ (40 P.S. § 1301.1001).
“Section 11, act of November 26, 1975 (P.L. 438, No. 124), known as the ‘Child Protective Services Law’ (11 P.S. § 2211).
“Section 114, act of July 9, 1976 (P.L. 817, No. 143), known as the ‘Mental Health Procedures Act’ (50 P.S. § 7114).
“(b) Except as provided in subsection (a), all other acts and parts of acts are repealed insofar as they are inconsistent with this act.
“(c) Nothing in this section shall repeal the waiver of sovereign immunity in:
“Section 1207, act of April 9, 1929 (P.L. 177, No. 175), known as ‘The Administrative Code of 1929’ (71 P.S. § 337).
“Sections 405, 1003 and 1004, act of April 9, 1929 (P.L. 343, No. 176), known as ‘The Fiscal Code’ (72 P.S. §§ 405, 1003 and 1004).
“Act of May 20, 1937 (P.L. 728, No. 193), referred to as the Board of Arbitration of Claims Act” (72 P.S. § 4651-1 et seq.).
“Section 5. Construction and application.
“(a) This act is intended to specifically respond to and prescribe limitations on the decision of Mayle v. Commonwealth, decided by the Supreme Court on July 14, 1978.
“(b) The following provisions applying this act to actions accrued on the effective date of this act, and its intended retroactive effect, are to assure the development of a consistent body of law, an orderly and uniform management of litigation and to prevent inequities within the terms of this act that would otherwise be caused by the lack of identical restrictions, limitations, procedural requirements and the application of the other provisions of this act. It is the intent of the General Assembly that the express limited waiver from bar of suit, and limited waiver of the defense of sovereign immunity contained in this act, shall be uniformly applied to all actions which are not otherwise barred, and shall not depend upon the fortuitousness of the date of the accruing of the action, or the diligence with which it was prosecuted or its status within the judicial system on July 14, 1978. Accordingly, the limitations on the amount recoverable, the types of damages, the notice requirements and all other limitations shall apply to all actions, whenever accrued, if they would have been applicable had the action accrued on or after the effective date of this act. In the case of claims not barred under this act and for which there was in effect at the time the claim accrued, or such later time as may be applicable, a policy of insurance or a self-insurance program authorized by section 2404(b) of the act of April 9, 1929 (P.L. 177, No. 175), known as ‘the Administrative Code of 1929,’ which policy or program contained limitations on the amount of damages which are less than those set forth in this act, the lesser amount shall apply to such claims. In applying this act:
“(1) An action which accrued prior to the effective date of this act but which is barred by 42 Pa.C.S. § 5110 (relating to limited waiver of sovereign immunity) and is not within the exceptions contained therein, shall continue to be barred, and sovereign immunity shall continue as a defense, unless the action would not have been barred, and sovereign immunity would not have been a defense to it, by the applicable statutory and decisional law as it existed on July 13, 1978; such an action, not otherwise barred, shall be barred if suit is not instituted within the appropriate statute of limitation or within 60 days after the effective date of this act, whichever first occurs.
“(2) An action which is within the exceptions provided in 42 Pa.C.S. § 5110 shall not be barred.
“(c) All further trial or pretrial procedures in actions which are not barred under subsection (b) shall be suspended and no such proceedings shall be had on such cases, excepting only the institution of suit, and the filing and deciding of pretrial motions in which the applicability of this act is at issue. The suspension of further trial or pretrial proceedings shall continue until July 1, 1979. In the case of actions filed prior to the effective date of this act and which are not otherwise barred by this act, the parties to the suit, or any of them, shall have 60 days from the effective date of this act to move to transfer the case to the appropriate court of common pleas having jurisdiction, amend pleadings to conform to the requirements of this act, and otherwise comply with the requirements contained in this act.
“(d) Nothing contained in this act shall be construed to revive any action in which the applicable statute of limitation has run or in which a compromise settlement was reached and a release obtained, or in which final order dismissing the action against the Commonwealth or an agency of the Commonwealth government has been entered, no appeal has been taken, and the time for appeal has expired.
“(e) Nothing contained in this act shall be construed to waive the Commonwealth's immunity from suit in Federal courts guaranteed by the eleventh amendment to the United States Constitution.”
In approving Act 1978, Sept. 28, P.L. 788, No. 152, the Governor stated:
“It is my intention in approving this act that Section 5 (construction and application) shall have general retroactive effect; and in particular it is the specific intent that:
“(1) In all cases where the statute of limitations has run, the cause of action shall be barred.
“(2) In all cases where the cause of action is not permitted by Section 5110, regardless of when it arose, the cause of action shall be barred and sovereign immunity shall continue as a defense: Provided, that an action that would not have been barred by the applicable statutory or decisional law as it existed on July 13, 1978, shall not be barred if suit is instituted within the appropriate statute of limitations or within 60 days after the effective date of this act, whichever first occurs.
“(3) In all cases where the cause of action is permitted by Section 5110, and arose before the effective date of this act, the cause of action shall not be barred and sovereign immunity shall not be a defense to it, provided that the action is brought within the applicable statute of limitations.
“Further, it is my intent in approving this act and my understanding of Section 5(c) that the language therein does not deny the court the power to perpetuate testimony or to take any other action necessary to prevent manifest injustice.”
Act 1980-142 legislation
Section 221(j) of Act 1980, Oct. 5, P.L. 693, No. 142, provides as follows:
“References in the act of September 28, 1978 (P.L. 788, No. 152), to ‘this act’ and to ‘42 Pa.C.S. § 5110’ shall be deemed to be references to Subchapter B of Chapter 85 (relating to actions against Commonwealth parties) of Title 42.”
Act 1986-151 legislation
The 1986 amendment added par. (b)(9).

Footnotes

47 P.S. § 1-101 et seq.
42 Pa.C.S.A. § 8522, PA ST 42 Pa.C.S.A. § 8522
Current through 2017 Regular Session Act 32
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