38 U. Pitt. L. Rev. 185 (1976-1977)
Foreword: Sovereign Immunity in Pennsylvania: An Open Letter to Mr. Justice Pomeroy

handle is hein.journals/upitt38 and id is 201 raw text is: SURVEY OF PENNSYLVANIA LAW
FOREWORD: SOVEREIGN IMMUNITY IN PENNSYLVANIA:
AN OPEN LETTER TO MR. JUSTICE POMEROY
Robert L. Potter*
BACKGROUND AND CURRENT STATUS OF THE DOCTRINE
It has been common ground for at least a decade and a half in both
judicial and academic circles that immunities which protect the
state and its subdivisions are disfavored.' Through the 1960's, a
veritable avalanche of decisions was filed by state supreme courts
in which the doctrine of governmental immunity2 or the doctrine of
sovereign immunity3 was judicially abrogated. It surprised no
one, therefore, that the Supreme Court of Pennsylvania in 1973,
with two justices who had served on the court for barely over one
* B.A. 1963, Cornell University; J.D. 1972, University of Pittsburgh; Assistant Pro-
fessor of Law, University of Pittsburgh.
Shortly after this article was committed to publication, Chief Justice Benjamin R. Jones
publicly announced his intention to resign from the Supreme Court of Pennsylvania on
February 28, 1977. Any new justice appointed to the court by the Governor of Pennsylvania
during 1977 would be required to stand in a contested election in the Fall of 1977. This
unexpected development necessarily creates some uncertainty in the voting alignment of the
justices of the Supreme Court of Pennsylvania on the sovereign immunity question discussed
here. The former Chief Justice was an opponent of judicial abrogation of the doctrine. There-
fore, the appointment of a new associate justice improves the likelihood of development in
the area. Eds.
1. According to Professor Davis, the doctrine of governmental immunity was only
rarely, if ever, defended on the merits during the 1960's. K. DAVIS, ADMINISTRATIVE LAW
TREATISE § 25.18, at 869 (Supp. 1970).
The seminal and early criticism is Borchard, Government Liability in Tort, 34 YALE L.J.
1 (1924). See also Governmental Responsibility in Tort VI, 36 YALE L.J. 1 (1926); Borchard,
Governmental Responsibility in Tort VII, 28 COL. L. REv. 577 (1928). Treatment of the status
of governmental immunity as of 1954 is in Leflar & Kantrowitz, Tort Liability of the States,
29 N.Y.U.L. REV. 1363 (1954). A review of the progress of the abolition of governmental
immunities through 1966 is Van Alstyne, Governmental Tort Liability: A Decade of Change,
1966 U. ILL. L. F. 919. For a recent review of national change and comments directed to
Pennsylvania, see Comment, Judicial Abrogation of Governmental and Sovereign Immunity:
A National Trend with a Pennsylvania Perspective, 78 DICK. L. REv. 365 (1973).
2. Governmental immunity generally refers to an immunity which protects munici-
pal corporations, authorities, counties, school districts and the like from liability. See
RESTATEMENT (SECOND) OF TORTS § 895C (Tent. Draft No. 19, March 30, 1973) (Local Gov-
ernment Entities).
3. Sovereign immunity generally refers to an immunity which protects the state itself
and those of its agencies which are closely enough related to the state to be regarded as the
state. RESTATEMENT (SECOND) OF TORTS § 895B (Tent. Draft No. 19, March 30, 1973)
(States).

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