IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

Lee Marshall and Pamela Fuller : CASES CONSOLIDATED 

 : 

 v. : No. ൮൪ C.D. ൬൪൬൬

 : 

Southeastern Pennsylvania : 

Transportation Authority, New Jersey : 

Transit and New Jersey Transit : 

Corporation : 

 : 

Appeal of: New Jersey Transit and : 

New Jersey Transit Corporation : 

 

New Jersey Transit and New Jersey : 

Transit Corporation, : 

 Appellants : 

 : 

 v. : No. ൫൯൱ C.D. ൬൪൬൬

 : Argued: March ൰, ൬൪൬൭

Lee Marshall, Pamela Fuller, and : 

Southeastern Pennsylvania : 

Transportation Authority : 

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge 

 HONORABLE ELLEN CEISLER, Judge 

 HONORABLE LORI A. DUMAS, Judge 

OPINION BY 

JUDGE DUMAS FILED: August ൮, ൬൪൬൭

 New Jersey Transit and New Jersey Transit Corporation (collectively, 

NJ Transit) appeal from two orders entered by the Court of Common Pleas of 

Philadelphia County (trial court). The first order overruled NJ Transit’s preliminary 

objections to the complaint filed by Lee Marshall and Pamela Fuller (collectively, 

Plaintiffs). The second order denied NJ Transit’s motion for judgment on the 

pleadings. On appeal, NJ Transit contends that the trial court should have held that 

NJ Transit could invoke sovereign immunity. We reverse and remand with 
2 

instructions to dismiss the case. 

I. BACKGROUND1

On July ൭൪, ൬൪൫൲, Plaintiffs, both New Jersey residents, were passengers 

on a NJ Transit bus in Philadelphia when it hit a bus operated by the Southeastern 

Pennsylvania Transportation Authority (SEPTA). Compl., ൰/൫൬/൬൪, ¶¶ ൫-൰; accord 

generally Am. Compl., ൫/൬൱/൬൫. Plaintiffs sued NJ Transit and SEPTA for 

negligence. See Am. Compl. Both Pennsylvania and New Jersey have a two-year 

statute of limitations for tort claims. Pls.’ Mot. for Recons., ൯/൬൲/൬൫, ¶ ൫൫.

 NJ Transit filed preliminary objections for lack of subject matter 

jurisdiction, which invoked sovereign immunity based on Franchise Tax Board of 

California v. Hyatt, ൫൭൳ S. Ct. ൫൮൲൯ (൬൪൫൳) (Hyatt III). Prelim. Objs., ൬/൫/൬൫, ¶¶ ൱-൲, 

൫൫, ൬൳-൭൫.

2

 Plaintiffs filed a response, conceding that NJ Transit “is an arm of the 

state” but asserting that NJ Transit is not immune from suit in Pennsylvania. Resp. 

to Prelim. Objs., ൬/൫൬/൬൫, ¶ ൳. The trial court ultimately overruled NJ Transit’s 

preliminary objections. Order, ൰/൬൮/൬൫. NJ Transit moved for reconsideration or to 

1

 In presenting the background, we note that in resolving preliminary objections, “we must 

. . . accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every 

inference that is fairly deducible from those facts.” Raynor v. D’Annunzio, ൬൮൭ A.൭d ൮൫, ൯൬ (Pa. 

൬൪൬൪) (cleaned up). We may reject “conclusions of law, unwarranted inferences from facts, 

argumentative allegations, or expressions of opinion.” Freemore v. Dep’t of Corr., ൬൭൫ A.൭d ൭൭, ൭൱

(Pa. Cmwlth. ൬൪൬൪) (per curiam) (citation omitted). The same standard applies in reviewing an 

order resolving a motion for judgment on the pleadings. Cagey v. Commonwealth, ൫൱൳ A.൭d ൮൯൲, 

൮൰൭ n.൬ (Pa. ൬൪൫൲).

2

 We are bound by decisions of the Supreme Court of the United States. NASDAQ OMX 

PHLX, Inc. v. PennMont Secs., ൯൬ A.൭d ൬൳൰, ൭൪൭ (Pa. Super. ൬൪൫൬) (NASDAQ). Further, 

“[w]henever possible, Pennsylvania state courts follow the Third Circuit so that litigants do not 

improperly walk across the street to achieve a different result in federal court than would be 

obtained in state court.” Id. (cleaned up). We may cite to Superior Court or non-precedential 

federal cases for their persuasive value, but we are not bound by such cases unless the doctrines of 

res judicata or judicial estoppel apply. Commonwealth v. Monsanto Co., ൬൰൳ A.൭d ൰൬൭, ൰൯൭ n.൬൪

(Pa. Cmwlth. ൬൪൬൫); Register v. Longwood Ambulance Co., ൱൯൫ A.൬d ൰൳൮, ൰൳൳ n.൬ (Pa. Cmwlth. 

൬൪൪൪); Bienert v. Bienert, ൫൰൲ A.൭d ൬൮൲, ൬൯൯ (Pa. Super. ൬൪൫൱).
3 

certify its order for interlocutory appeal, which the trial court denied. Order, ൱/൲/൬൫. 

NJ Transit timely filed a petition for permission to appeal.3

 Meanwhile, NJ Transit filed an answer to the complaint and moved for 

judgment on the pleadings with each invoking sovereign immunity. The trial court 

denied the motion, Order, ൫/൫൫/൬൬, and NJ Transit timely appealed to this Court. The 

trial court did not order a Pa.R.A.P. ൫൳൬൯(b) statement. This Court granted NJ 

Transit’s application to consolidate the separate appeals and stayed the underlying 

case. Order, ൰/൫൭/൬൬.

 In denying relief to NJ Transit, the trial court did not detail its reasoning. 

The trial court concisely stated that NJ Transit “had waived sovereign immunity for 

the commission of vehicular negligence and whatever defenses were available to [NJ 

Transit] under the applicable tort claims law were recognizable by the court and 

would be applied by it.” Trial Ct. Op., ൭/൬൭/൬൬, at ൭.

II. ISSUES 

On appeal, NJ Transit raises three issues. First, NJ Transit claims that 

the orders at issue are appealable collateral orders. NJ Transit’s Br. at ൯. Second, 

NJ Transit asserts that it is entitled to sovereign immunity as an arm of New Jersey 

and, therefore, immune from being sued in Pennsylvania. Id. Third, NJ Transit 

3

 Generally, an order overruling a preliminary objection is not an appealable order. 

Commonwealth ex rel. Corbett v. Snyder, ൳൱൱ A.൬d ൬൲, ൯൪ (Pa. Cmwlth. ൬൪൪൳). However, if a 

preliminary objection invokes sovereign immunity, then an order resolving such a preliminary 

objection may be an appealable collateral order. Brooks v. Ewing Cole, Inc., ൬൯൳ A.൭d ൭൯൳, ൭൱൮ n.൯

(Pa. ൬൪൬൫). 

In any event, NJ Transit complied with Pa.R.A.P. ൫൭൫൫, which addresses interlocutory 

appeals by permission. NJ Transit requested the trial court to certify its order under ൮൬ Pa.C.S. § 

൱൪൬, and NJ Transit timely filed a petition for permission to appeal. See generally Pa.R.A.P. ൫൭൫൫. 

NJ Transit incorrectly filed a petition for permission to appeal with the Superior Court, which 

ordered that the petition be treated as a notice of appeal, New Jersey Transit v. Marshall (Pa. Super., 

No. ൱൱ EDM ൬൪൬൫, filed Sept. ൫൯, ൬൪൬൫) (order), and transferred the appeal to this Court. New 

Jersey Transit v. Marshall (Pa. Super., No. ൫൱൳൰ EDA ൬൪൬൫, filed Jan. ൬൫, ൬൪൬൬) (order).
4 

contends that it did not waive sovereign immunity under the New Jersey Tort Claims 

Act (Tort Act), N.J.S.A. §§ ൯൳:൫-൫ to :൫൬-൭. Id.

III. DISCUSSION4

A. Collateral Order Doctrine 

 In support of its first issue, NJ Transit argues that the issue of whether 

it may assert sovereign immunity is a question of law separable from and collateral 

to Plaintiffs’ negligence claims. Id. at ൫൲. NJ Transit reasons that sovereign 

immunity is a right too important to deny appellate review. Id. If appellate review 

is postponed until final judgment, NJ Transit contends it would lose the benefit of a 

right to invoke sovereign immunity. Id. at ൫൲-൫൳.

5

 The collateral order doctrine provides that an order is an appealable 

collateral order when “(൫) it is separable from and collateral to the main cause of 

action; (൬) the right involved is too important to be denied review; and (൭) the 

question presented is such that if review is postponed until final judgment in the 

case, the claimed right will be irreparably lost.” Brooks, ൬൯൳ A.൭d at ൭൱൪ (citation 

omitted). 

 For example, in Brooks, the plaintiff was injured while exiting the 

4 “The appealability of an order under the Pa.R.A.P. ൭൫൭ collateral order doctrine presents 

a question of law, over which our standard of review is de novo, and our scope of review is 

plenary.” Brooks, ൬൯൳ A.൭d at ൭൰൯. NJ Transit, however, invoked sovereign immunity as a 

demurrer instead of a new matter. See Pa.R.Civ.P. ൫൪൭൪(a). Because Plaintiffs failed to challenge 

that procedural defect via preliminary objections to NJ Transit’s preliminary objections, we will 

apply the preliminary objection standard of review. See Sutton v. Bickell, ൬൬൪ A.൭d ൫൪൬൱, ൫൪൭൯ n.൮

(Pa. ൬൪൫൳). Further, we review an order resolving a motion for judgment on the pleadings to 

determine whether based on the facts pleaded, recovery is impossible under the law. Yanakos v. 

UPMC, ൬൫൲ A.൭d ൫൬൫൮, ൫൬൫൲ n.൰ (Pa. ൬൪൫൳). Finally, the “way in which the laws of a foreign 

jurisdiction operate presents a question of law, which we review de novo. We may take judicial 

notice of New Jersey statutory provisions and reported judicial decisions.” Melmark, Inc. v. Schutt, 

൬൪൰ A.൭d ൫൪൳൰, ൫൫൪൯ (Pa. ൬൪൫൳) (cleaned up); accord ൮൬ Pa.C.S. § ൯൭൬൱. 

5

 Plaintiffs did not challenge NJ Transit’s arguments regarding the collateral order doctrine. 
5 

Family Court of Philadelphia. Id. at ൭൰൫. She sued the Family Court, which moved 

for summary judgment on the basis of sovereign immunity. Id. The trial court 

denied summary judgment, the Family Court appealed, this Court quashed as 

premature, and the Family Court appealed to our Supreme Court. Id. at ൭൰൭-൰൮. The 

Brooks Court reversed because the order was an appealable collateral order. Id. at 

൭൰൪-൰൫.

 In support, the Brooks Court reasoned that the issue of whether the 

Family Court could invoke sovereign immunity was a purely legal question 

separable from the underlying merits of the plaintiff’s negligence claim. Brooks, 

൬൯൳ A.൭d at ൭൱൬. Further, because the right to a sovereign immunity defense “is 

deeply rooted in public policy, as it is both secured by the [Pennsylvania] 

Constitution” and statute, the Brooks Court held that the issue was too important to 

defer resolution until after final judgment. Id. Finally, our Supreme Court held that 

the Family Court’s ability to invoke sovereign immunity as a defense would be lost 

if appellate review occurred after final judgment. Id. at ൭൱൭-൱൮. The Brooks Court 

added that the U.S. Supreme Court also held that such orders were immediately 

appealable as “collateral orders because the entitlement is an immunity from suit

rather than a mere defense to liability; and like an absolute immunity, it is effectively 

lost if a case is erroneously permitted to go to trial.” Id. at ൭൱൮ (emphasis in original 

and cleaned up). 

 Instantly, consistent with the Brooks Court’s reasoning, we also hold 

that the trial court’s orders overruling NJ Transit’s preliminary objections and 

denying the motion for judgment on the pleadings are appealable collateral orders. 

See id. at ൭൱൭-൱൮. Like the Family Court in Brooks, the issue of whether NJ Transit 

can invoke sovereign immunity is a purely legal question separable from the 
6 

underlying merits of Plaintiffs’ negligence claims. See id. at ൭൱൬. To paraphrase the 

Brooks Court, undoubtedly whether NJ Transit has the right to invoke a defense of 

sovereign immunity in the courts of this Commonwealth implicates Pennsylvania’s 

public policy at the very least. See id. As in Brooks, delaying review of the instant 

orders until after final judgment would impair NJ Transit’s right to invoke sovereign 

immunity. See id. Because we conclude that we may exercise appellate review, we 

address NJ Transit’s next issue. 

B. Sovereign Immunity Under Hyatt III

 In support of its second issue, NJ Transit argues it cannot be sued in 

other states without its consent. NJ Transit’s Br. at ൬൪. In support, NJ Transit 

recounts the history of the Eleventh Amendment6 and related caselaw, including 

Hyatt III. Id. at ൬൪-൭൫. Per NJ Transit, the Hyatt III Court held that states are immune 

“from private suits brought in the courts of other states” subject to two exceptions 

involving federal courts. Id. at ൬൲-൬൳ (cleaned up). NJ Transit argues Pennsylvania 

is obligated to recognize NJ Transit’s sovereign immunity. Id. at ൬൳-൭൪. NJ Transit 

marshals several cases dismissing lawsuits on the basis of sovereign immunity and 

contends the trial court should have similarly dismissed this action. Id. 

Plaintiffs counter that sovereign immunity does not prevent NJ Transit 

from being sued in Pennsylvania. Pls.’ Br. at ൳. In their view, sovereign immunity 

only means that any immunity NJ Transit has in New Jersey would also apply in 

Pennsylvania. Id. Plaintiffs assert that absent a statute prohibiting NJ Transit from 

being sued in Pennsylvania, Pennsylvania is the proper jurisdiction. Id. Plaintiffs 

distinguish Hyatt III on the basis that New Jersey’s sovereign immunity has an 

6

 “The Judicial power of the United States shall not be construed to extend to any suit in 

law or equity, commenced or prosecuted against one of the United States by Citizens of another 

State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. 
7 

exception for vehicular negligence, and thus, New Jersey consented to be sued. Id. 

at ൫൪. Plaintiffs claim that NJ Transit’s argument lacks any legal support because NJ 

Transit cited no cases involving a state that consented to be sued in another state. Id.

at ൫൮-൫൲; see also id. at ൬൬ (discussing Laconis v. Burlington Cnty. Bridge Comm’n, 

൯൲൭ A.൬d ൫൬൫൳ (Pa. Super. ൫൳൳൪)).

 Initially, whether sovereign immunity applies is a question of law. 

Brooks, ൬൯൳ A.൭d at ൭൱൬. Generally, sovereign immunity forecloses lawsuits against 

government entities. Id. at ൭൱൬-൱൭.

7

 New Jersey defines sovereign immunity 

similarly. NL Indus., Inc. v. State, ൫൯൰ A.൭d ൫൪൮൭, ൫൪൯൬-൯൭ (N.J. ൬൪൫൱). For example, 

under New Jersey law, NJ Transit is a government entity that can invoke sovereign 

immunity. See Resp. to Prelim. Objs. ¶ ൳ (conceding NJ Transit is an arm of New 

7

 The doctrine is not absolute. For example, sovereign immunity does not necessarily apply 

when the suit is between (a) political subdivisions of one state, or (b) a private citizen of one state 

and another state’s municipality. Galindo v. City of Flagstaff, ൮൯൬ P.൭d ൫൫൲൯, ൫൫൲൱ n.൬ (Utah ൬൪൫൳) 

(recognizing, as well, that “sovereign immunity does not flow from the Eleventh Amendment”); 

City of College Park v. Clayton Cnty., ൲൭൪ S.E.൬d ൫൱൳, ൫൲൱ (Ga. ൬൪൫൳). As discussed below, 

sovereign immunity may be waived, e.g., a sovereign could consent to be sued by legislative act 

or some other affirmative conduct. 

We acknowledge that our Supreme Court stated that “[s]overeign immunity is an absolute 

defense that is not waivable,” despite explicitly referencing various legislative waivers of 

sovereign immunity. Brooks, ൬൯൳ A.൭d at ൭൱൫. Subsequently, a few months later, in resolving an 

issue of original jurisdiction, our Supreme Court commented, in dicta, that “Sovereign Immunity 

is in the nature of an affirmative defense; (a) it does not go to jurisdiction and (b) it can be waived.” 

Bisher v. Lehigh Valley Health Network, Inc., ൬൰൯ A.൭d ൭൲൭, ൮൪൪ n.൫൪ (Pa. ൬൪൬൫) (quoting Chem. 

Nat. Res., Inc. v. Republic of Venezuela, ൬൫൯ A.൬d ൲൰൮, ൲൰൱ (Pa. ൫൳൰൰)). 

To the extent that our Supreme Court’s jurisprudence appears contradictory, we need not 

address any apparent tension. See Gibraltar Rock, Inc. v. Dep't of Env’t Prot., ൬൲൰ A.൭d ൱൫൭, ൱൬൯

(Pa. ൬൪൬൬) (cautioning this Court from sua sponte raising issues). Regardless of any tension, in 

Hyatt III, the High Court summarily rejected an argument that the sovereign entity “waived its 

immunity. The [entity] has raised an immunity-based argument from this suit’s inception . . . .” 

Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൫ n.൫. In other words, despite holding that the entity has interstate 

sovereign immunity, the High Court implied that the entity could potentially waive its immunity 

by not timely invoking it. See id.; Fin. Oversight & Mgmt. Bd. for P.R. v. Centro de Periodismo 

Investigativo, Inc., ൫൮൭ S. Ct. ൫൫൱൰, ൫൫൲൭, ൫൫൲൯ (൬൪൬൭) (explaining that the board had sovereign 

immunity but that the board could elect to waive its immunity). 
8 

Jersey); Flamer v. N.J. Transit Bus Operations, Inc., ൰൪൱ A.൬d ൬൰൪, ൬൰൬ (Pa. Super. 

൫൳൳൬) (recognizing the defendant is “a public entity of the state of New Jersey and 

an alter ego of that state” subject to the Tort Act (citations omitted)).8 

The High Court explained that the “States’ sovereign immunity is a 

historically rooted principle embedded in the text and structure of the [U.S.] 

Constitution.” Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൳. The Hyatt III Court reasoned that 

although not “spelled out in the Constitution,” sovereign immunity—like judicial 

review, executive privilege, and executive immunity—is “nevertheless implicit in 

8 Accord Maison v. N.J. Transit Corp., ൬൮൯ A.൭d ൯൭൰, ൯൮൰-൮൲ (N.J. ൬൪൬൫) (explaining that 

public entities, like NJ Transit, may be held liable for negligence subject to the Tort Act’s 

limitations); Ross v. Transp. of N.J., ൯൯൭ A.൬d ൫൬, ൫൲ (N.J. ൫൳൲൳) (holding the bus division of NJ 

Transit is a public entity subject to the Tort Act); Roe by M.J. v. N.J. Transit Rail Operations, Inc., 

൱൬൫ A.൬d ൭൪൬, ൭൪൯ (N.J. Super. Ct. App. Div. ൫൳൳൲) (holding, “NJ Transit is a public entity entitled 

to the protection of the Tort Claims Act” (citation omitted)); Karns v. Shanahan, ൲൱൳ F.൭d ൯൪൮, ൯൫൳

(൭d. Cir. ൬൪൫൲) (concluding NJ Transit was an “arm of the state” for Eleventh Amendment 

immunity). Cf. Galette v. NJ Transit, ൬൳൭ A.൭d ൰൮൳, ൰൯൬ (Pa. Super. ൬൪൬൭) (stating the plaintiff 

opposed NJ Transit’s contention that it was an arm of New Jersey that could invoke sovereign 

immunity), appeal filed (Pa., No. ൬൪൮ EAL ൬൪൬൭, filed June ൬൲, ൬൪൬൭). 

In contrast, Pennsylvania courts have differed on whether SEPTA is entitled to sovereign 

immunity. Our Supreme Court reasoned that because SEPTA is not a Pennsylvania government 

entity, SEPTA cannot invoke Eleventh Amendment sovereign immunity. Goldman v. SE Pa. 

Transp. Auth., ൯൱ A.൭d ൫൫൯൮, ൫൫൰൪ (Pa. ൬൪൫൬). In Goldman, which predates Hyatt II and Hyatt III, 

the Pennsylvania Supreme Court considered whether SEPTA could invoke Eleventh Amendment 

immunity in a state lawsuit filed under federal law. Goldman, ൯൱ A.൭d at ൫൫൯൳-൰൪. The Goldman 

Court noted that because the U.S. Supreme Court held that “states have sovereign immunity in 

their own courts from suits brought by private individuals under federal law,” the issue before the 

Court was whether SEPTA was an arm of the Commonwealth. Id. at ൫൫൰൬. Unlike the state suit 

under federal law in Goldman, the instant suit raises claims under Pennsylvania common law, i.e., 

negligence. The Goldman Court also noted that the appellants waived an argument as to whether 

SEPTA was entitled to invoke the Sovereign Immunity Act. Id. at ൫൫൰൯ n.൳. This Court, however, 

has frequently held that SEPTA is entitled to invoke sovereign immunity under the Sovereign 

Immunity Act. Compare id. at ൫൫൲൭ (observing that “SEPTA has been designated by the legislature 

of the Commonwealth as a distinct legal entity with the power to sue and be sued in its own 

capacity”), with, e.g., Knox v. SEPTA, ൲൫ A.൭d ൫൪൫൰, ൫൪൬൬ (Pa. Cmwlth. ൬൪൫൭) (distinguishing 

Goldman in holding that SEPTA may invoke sovereign immunity). We need not reconcile 

Goldman and Knox, as the issue before this Court is whether Pennsylvania must recognize NJ 

Transit’s interstate sovereign immunity under Hyatt III. See Gibraltar Rock, ൬൲൰ A.൭d at ൱൬൯. 
9 

[the U.S. Constitution’s] structure and supported by historical practice.” Id. at ൫൮൳൲-

൳൳.

9

 To provide context, we briefly discuss Franchise Tax Board of California v. 

Hyatt, ൯൭൲ U.S. ൮൲൲ (൬൪൪൭) (Hyatt I), Franchise Tax Board of California v. Hyatt, 

൯൱൲ U.S. ൫൱൫ (൬൪൫൰) (Hyatt II), and Hyatt III. 

In the Hyatt cases, the plaintiff, a private party, had sued a California 

agency in Nevada state court for various torts. Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൫. The 

California agency countered that under the Full Faith and Credit Clause of the U.S. 

Constitution, Nevada must recognize and apply a California law that immunized the 

California agency from suit. Id. The Nevada Supreme Court declined to apply that 

California law, and it instead applied Nevada law to resolve the scope of the 

California agency’s immunity. Id. Subject to two qualifications, the U.S. Supreme 

Court affirmed, “holding that the Full Faith and Credit Clause did not prohibit 

9

 Pennsylvania has similarly concluded that its sovereign immunity is grounded in common 

law in addition to statute. See ൫ Pa.C.S. § ൬൭൫൪; ൮൬ Pa.C.S. §§ ൲൯൬൫-൲൯൬൱ (Sovereign Immunity 

Act); Mayle v. Pa. Dep’t of Highways, ൭൲൲ A.൬d ൱൪൳, ൱൫൳ (Pa. ൫൳൱൲). This conclusion buttresses 

the High Court’s observation that because “the States considered themselves fully sovereign 

nations” prior to the drafting and ratification of the U.S. Constitution, the sovereign immunity 

doctrine is implicitly woven into the U.S. Constitution. Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൭; Alden v. 

Maine, ൯൬൱ U.S. ൱൪൰, ൱൫൯-൫൰ (൫൳൳൳). 

We add that the Sovereign Immunity Act appears to recognize that Eleventh Amendment 

immunity applies to federal suits or, as appropriate, state suits under federal law. ൮൬ Pa.C.S. § 

൲൯൬൫(b); Goldman, ൯൱ A.൭d at ൫൫൰൪. Federal courts have also suggested that Eleventh Amendment 

immunity is limited to federal suits. See PennEast Pipeline Co. v. New Jersey, ൫൮൫ S. Ct. ൬൬൮൮, 

൬൬൰൬ (൬൪൬൫) (explaining that when “a State waives its immunity and consents to suit in federal 

court, the Eleventh Amendment does not bar the action” (citation omitted)); Waterfront Comm’n 

of New York Harbor v. Governor of New Jersey, ൳൰൫ F.൭d ൬൭൮, ൬൭൲ (൭d. Cir. ൬൪൬൪) (stating “the 

Eleventh Amendment expressly protects a State from federal suits by citizens of another State or 

country”); see generally ൫ Treatise on Const. L. § ൬.൫൬(b)(v) (“The Eleventh Amendment, and the 

broader state sovereign immunity that the Eleventh Amendment reflects, bars federal court relief 

that, but for the Eleventh Amendment, a federal court could grant.”); William Baude & Stephen E. 

Sachs, The Misunderstood Eleventh Amendment, ൫൰൳ U. Pa. L. Rev. ൰൪൳, ൰൬൭, ൰൯൪ (൬൪൬൫) (same). 

But cf. Galette, ൬൳൭ A.൭d at ൰൯൰-൯൱ (invoking the Eleventh Amendment in resolving whether NJ 

Transit may invoke sovereign immunity). Our Supreme Court may resolve any division between 

the intermediate appellate courts. See generally Holland v. Marcy, ൲൲൭ A.൬d ൮൮൳, ൮൯൪ (Pa. ൬൪൪൯). 
10 

Nevada from applying its own immunity law to the case.” Id. (citing Hyatt I, ൯൭൲

U.S. at ൮൳൲-൳൳).10 

Subsequently, following a Nevada state court trial, a jury found the 

California agency liable and awarded significant damages. Hyatt III, ൫൭൳ S. Ct. at 

൫൮൳൫. The California agency appealed, and the Nevada Supreme Court rejected most 

of the damages but affirmed a one million dollar judgment on one of the counts. Id. 

In relevant part, although the Nevada Supreme Court “recognized that tort liability 

for Nevada state agencies was capped at $൯൪,൪൪൪ under state law, it nonetheless held 

that Nevada public policy precluded it from applying that limitation to the California 

agency in this case.” Id. In other words, the California agency was liable for the 

full amount notwithstanding a Nevada law capping damages for Nevada state 

agencies. Id. The Hyatt II Court “reversed, holding that the Full Faith and Credit 

Clause required Nevada courts to grant the [California agency] the same immunity 

that Nevada agencies enjoy,” i.e., the damages cap that applied to Nevada agencies 

would also apply to the California agency. Id. (citing Hyatt II, ൯൱൲ U.S. at ൫൱൲-൲൪).11 

10 The first qualification was that the Full Faith and Credit Clause did “not require one State 

to apply another State’s law that violates its own legitimate public policy.” Hyatt II, ൯൱൲ U.S. at 

൫൱൱ (cleaned up). The second qualification was that Nevada’s exercise of its choice-of-law 

principles in invoking Nevada law, “did not exhibit a policy of hostility to the public Acts of a 

sister State.” Id. (cleaned up) (noting Nevada’s reliance on its own sovereign immunity principles). 

11 In reaching that holding, the Hyatt II Court emphasized that it was not endorsing a 

“balancing-of-interests approach to conflicts of law under the Full Faith and Credit Clause,” as “a 

state need not substitute the statutes of other states for its own statutes dealing with a subject matter 

concerning which it is competent to legislate.” Hyatt II, ൯൱൲ U.S. at ൫൱൳ (cleaned up). The Hyatt 

II Court reasoned, however, that the U.S. Constitution does not permit Nevada to disregard its own 

law and impose damages against a California agency “that are greater than it could award against” 

a Nevada agency “in similar circumstances.” Id. at ൫൱൰, ൫൲൪. In doing so, the Hyatt II Court 

explained, Nevada failed to give a “healthy regard” to California’s sovereign status. Id. at ൫൱൳. Cf. 

Galette, ൬൳൭ A.൭d at ൰൯൰-൯൱ (applying Pennsylvania law to resolve NJ Transit’s sovereign status). 

Nevada’s lack of regard reflected a “constitutionally impermissible” “hostility” to California’s law 

immunizing its agency from suit. Hyatt II, ൯൱൲ U.S. at ൫൱൳. 
11 

In sum, Hyatt I stood for the qualified proposition that the Full Faith 

and Credit Clause did not obligate one state to recognize another state’s sovereign 

immunity. Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൫. Hyatt II held that the Full Faith and Credit 

Clause bars one state from treating another state’s sovereigns, i.e., agencies treated 

as arms of the state, differently from its own sovereigns. Hyatt II, ൯൱൲ U.S. at ൫൱൰, 

൫൲൪. Both Hyatt I and II addressed the state’s exercise of comity in whether to 

recognize another state’s sovereign immunity.12

 Prior to Hyatt III, Pennsylvania state courts similarly relied on comity 

in resolving whether to recognize New Jersey’s sovereign immunity. For example, 

in Flamer v. New Jersey Transit Bus Operations, Inc., ൰൪൱ A.൬d ൬൰൪ (Pa. Super. 

൫൳൳൬), two Pennsylvania residents were injured on a NJ Transit bus in Camden, New 

Jersey. Flamer, ൰൪൱ A.൬d at ൬൰൫.

13 The Flamer Court recognized that NJ Transit 

was an arm of New Jersey that could invoke sovereign immunity. Id. at ൬൰൬, ൬൰൯

n.൮. The Court exercised comity to recognize that New Jersey’s Tort Act was not 

repugnant to Pennsylvania’s public policy. Id. at ൬൰൭-൰൮. Upon applying the Tort 

Act, the Court agreed that NJ Transit could not be sued in Pennsylvania. Id. at ൬൰൯.

14

 

12 “Comity refers to the principle that one state will give effect to laws and judicial 

decisions of another state out of deference and mutual respect, rather than out of duty.” Neyman 

v. Buckley, ൫൯൭ A.൭d ൫൪൫൪, ൫൪൫൱ (Pa. Super. ൬൪൫൰) (cleaned up).

13 The Flamer plaintiffs sued NJ Transit in Pennsylvania state court, and the trial court 

agreed with NJ Transit’s position that it was immune from being sued in Pennsylvania under the 

Tort Act. Flamer, ൰൪൱ A.൬d at ൬൰൫; see also Ross, ൯൯൭ A.൬d at ൫൲ (explaining that New Jersey 

Transit Bus Operations, Inc., is a public entity subject to the Tort Act). On appeal, the plaintiffs 

argued that because New Jersey’s Tort Act violates Pennsylvania’s public policy, Pennsylvania 

should not recognize the Tort Act under the Full Faith and Credit Clause. Flamer, ൰൪൱ A.൬d at 

൬൰൬. Cf. Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൫. One of the plaintiffs also argued that suit should remain in 

Pennsylvania because she failed to comply with the Tort Act’s notice requirements and there was 

no other forum in which she could file suit. Flamer, ൰൪൱ A.൬d at ൬൰൯ n.൮. The Flamer Court 

rejected both arguments, infra. 

14 Contra Galette, ൬൳൭ A.൭d at ൰൯൮-൯൰ (applying Pennsylvania jurisprudence to hold NJ 

Transit is not an arm of the state). We add that the Superior Court also followed Flamer in 
12 

 In contrast, in Laconis, the plaintiff (a Pennsylvania resident) was 

injured while driving on a bridge linking Pennsylvania and New Jersey, which was 

operated by the defendant bridge commission. Laconis, ൯൲൭ A.൬d at ൫൬൬൪. 

Specifically, the plaintiff’s accident occurred on a Pennsylvania-owned highway 

“located immediately after” the bridge. Id. The defendant argued that Pennsylvania 

should have applied the Full Faith and Credit Clause to recognize the Tort Act, under 

which the commission was immune. Id. at ൫൬൬൫. The Laconis Court disagreed, 

reasoning that under pre-Hyatt III caselaw, the issue of “whether one state is required 

to accord sovereign immunity in its courts to another state is purely a question of 

comity.” Id. Citing various factors, the Laconis Court held that “principles of comity 

do not require us to apply the New Jersey sovereign immunity statute,” and thus, the 

defendant could not invoke immunity. Id. at ൫൬൬൬-൬൭. These Pennsylvania cases 

stand for the proposition that prior to Hyatt III, states could apply comity principles 

and elect whether to recognize New Jersey’s sovereign immunity under the Tort Act. 

See Laconis, ൯൲൭ A.൬d at ൫൬൬൬-൬൭; Flamer, ൰൪൱ A.൬d at ൬൰൭-൰൮; Astorino, ൳൫൬ A.൬d 

at ൭൫൪. No longer. 

In Hyatt III, the U.S. Supreme Court resolved a more fundamental 

question: whether the U.S. “Constitution permits a State to be sued by a private party 

without its consent in the courts of a different State.” Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൪; 

accord id. at ൫൮൳൳-൫൯൪൪ (stating, “the question here is whether the Federal 

Constitution requires each State to grant its sister States immunity, or whether the 

resolving whether the Tort Act applied in a suit involving Pennsylvania residents riding a NJ 

Transit train when it derailed in New Jersey. Astorino v. N.J. Transit Corp., ൳൫൬ A.൬d ൭൪൲, ൭൪൳ (Pa. 

Super. ൬൪൪൰). NJ Transit asserted that it was immune from being sued in Pennsylvania under the 

Tort Act. Id. at ൭൫൪. The trial court agreed and dismissed the case for lack of jurisdiction. Id. The 

Astorino Court affirmed, reasoning that it would exercise comity to recognize the Tort Act and that 

Pennsylvania state courts lacked jurisdiction as New Jersey was immune from suit. Id.
13 

Constitution instead permits a State to grant or deny its sister States immunity as it 

chooses,” i.e., comity. (Breyer, J., dissenting) (emphases in original)). In other 

words, when private parties have sued NJ Transit, a New Jersey sovereign agency, 

in Pennsylvania state courts, the issue is whether Pennsylvania must recognize, or 

can it choose not to recognize, NJ Transit’s sovereign immunity. See id. at ൫൮൳൪; 

accord id. at ൫൮൳൳-൫൯൪൪.

 The Hyatt III Court explained that each “State’s equal dignity and 

sovereignty under the Constitution implies certain constitutional limitations on the 

sovereignty of all of its sister States.” Id. at ൫൮൳൱ (cleaned up). “One such limitation 

is the inability of one State to hale another into its courts without the latter’s consent. 

The Constitution does not merely allow States to afford each other immunity as a 

matter of comity; it embeds interstate sovereign immunity within the constitutional 

design.” Id.15 In other words, the U.S. “Constitution implicitly strips States of any 

power they once had to refuse each other sovereign immunity[.]” Id. at ൫൮൳൲.

16

 

Instead of each state exercising its discretion on whether to recognize a sister state’s 

sovereign immunity, each state was now obligated to recognize the other’s sovereign 

immunity. Id. at ൫൮൳൬ (holding that “States retain their sovereign immunity from 

private suits brought in the courts of other States”), ൫൮൳൲.

Subsequently, numerous courts have dismissed suits based on Hyatt III. 

15 In contrast, as noted herein, prior to Hyatt III, “States maintained sovereign immunity 

vis-à-vis each other in the same way that foreign nations do, meaning that immunity is available 

only if the forum State voluntarily decides to respect the dignity of the defendant State as a matter 

of comity.” Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൬ (cleaned up and emphasis added). 

16 Accord Farmer v. Troy Univ., ൲൱൳ S.E.൬d ൫൬൮, ൫൬൰ (N.C. ൬൪൬൬) (explaining that before 

Hyatt III, “the rule was that States were allowed, but not constitutionally required, to extend 

sovereign immunity to sister States as a matter of comity”); Belfand, ൫൮൲ N.Y.S.൭d at ൮൰൭ (stating 

that Hyatt III “holds that a state may be sued by a private citizen in a sister state only when it has 

consented to such suits”). Contra Galette, ൬൳൭ A.൭d at ൰൯൮-൯൰ (applying comity to reject NJ 

Transit’s status as an arm of the state). 
14 

For example, in State v. Great Lakes Minerals, LLC, ൯൳൱ S.W.൭d ൫൰൳ (Ky. ൬൪൫൳) 

(Minerals), the Kentucky Supreme Court held that an Ohio agency and an Ohio 

public official, in his official capacity, were entitled to sovereign immunity. 

Minerals, ൯൳൱ S.W.൭d at ൫൱൫-൱൭ (relying on Hyatt III). In Minerals, a Kentucky 

company sued Ohio and Ohio’s Tax Commissioner in Kentucky state court. Id. at 

൫൱൪. Both Ohio and the Tax Commissioner invoked sovereign immunity, with the 

latter invoking immunity both in his official capacity and personal capacity. Id. The 

Minerals Court agreed that Ohio and the Tax Commissioner in his official capacity 

were both entitled to sovereign immunity based on the Hyatt III reasoning. Id. at 

൫൱൫-൱൭.

17

 

Similarly, in Farmer, the North Carolina Supreme Court recognized 

that under Hyatt III, an Alabama defendant had sovereign immunity per Alabama 

law. Farmer, ൲൱൳ S.E.൬d at ൫൬൲. In Farmer, a North Carolina plaintiff sued an 

Alabama university in North Carolina state court. Id. at ൫൬൯. The Alabama university 

invoked sovereign immunity based on an Alabama law that Alabama’s universities 

have sovereign immunity. Id. at ൫൬൲. The North Carolina Supreme Court recognized 

that Alabama law because under Hyatt III, “the United States Constitution does not 

simply permit a State to grant its sister States immunity from suit but requires it.” 

Id. Contra Galette, ൬൳൭ A.൭d at ൰൯൮-൯൰ (rejecting New Jersey jurisprudence that NJ 

Transit is an arm of the state). Thus, the Farmer Court held that the Alabama 

17 With respect to the Ohio Tax Commissioner in his official capacity, the Minerals Court 

relied on U.S. Supreme Court precedent that a suit against a public official in an official capacity 

is identical to a suit against the state. Minerals, ൯൳൱ S.W.൭d at ൫൱൭ (discussing Kentucky v. Graham, 

൮൱൭ U.S. ൫൯൳, ൫൰൯-൰൰ (൫൳൲൯)). The Minerals Court next examined whether the Tax Commissioner 

could still be sued in his personal capacity in Kentucky. Id. The Kentucky Supreme Court 

explained that it would have to interpret Ohio law to resolve whether the Tax Commissioner was 

entitled to common law immunity. Id. at ൫൱൭-൱൮. The Minerals Court applied principles of comity, 

held that “Ohio’s state courts are better suited to efficiently evaluate and apply Ohio law to this 

issue,” and dismissed the Tax Commissioner in his personal capacity. Id.
15 

university was “entitled to sovereign immunity from suit without its consent in the 

state courts of every state in the country.” Farmer, ൲൱൳ S.E.൬d at ൫൬൲ (citation 

omitted).18 In sum, in relevant part, neither Supreme Court exercised comity in 

deciding whether to accept the defendant’s sovereign immunity status.19

Instantly, like in Hyatt III, Minerals, and Farmer, Plaintiffs have sued 

a New Jersey agency in Pennsylvania state court. Cf. Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൫; 

Minerals, ൯൳൱ S.W.൭d at ൫൱൪; Farmer, ൲൱൳ S.E.൬d at ൫൬൯. Similar to (൫) the California 

agency that invoked sovereign immunity under California law in Hyatt III, and (൬) 

the Alabama entity subject to Alabama law in Farmer, NJ Transit has invoked 

sovereign immunity under the Tort Act. See Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൫; Farmer, 

൲൱൳ S.E.൬d at ൫൬൲. Under pre-Hyatt III caselaw, Pennsylvania would have applied 

comity principles in deciding whether to recognize NJ Transit’s sovereign status. 

See, e.g., Flamer, ൰൪൱ A.൬d at ൬൰൭-൰൮; Astorino, ൳൫൬ A.൬d at ൭൫൪; Laconis, ൯൲൭ A.൬d 

at ൫൬൬൬-൬൭. Following Hyatt III, Pennsylvania no longer has the option of exercising 

comity and must recognize New Jersey’s sovereign immunity, which includes NJ 

Transit. See Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൬, ൫൮൳൲; Minerals, ൯൳൱ S.W.൭d at ൫൱൫-൱൭

18 The Farmer Court next considered whether the Alabama university explicitly waived its 

sovereign immunity when it registered as a nonprofit corporation under North Carolina law. 

Farmer, ൲൱൳ S.E.൬d at ൫൬൲. The applicable North Carolina statute provided that when the 

university registered as a nonprofit corporation, the university consented to be sued in North 

Carolina state courts. Id. Thus, the Farmer Court recognized the Alabama university’s sovereign 

immunity as an arm of the state, but that the university waived sovereign immunity. Id. at ൫൬൳-൭൪.

19 We note that the Farmer Court did not consider whether to apply comity before 

recognizing the Alabama law bestowing sovereign immunity to its universities. See also Hyatt II, 

൯൱൲ U.S. at ൫൱൳ (reiterating its rejection of “a complex balancing-of-interests approach to conflicts 

of law under the Full Faith and Credit Clause” in resolving whether to respect another state’s 

statutorily-imposed sovereign immunity (cleaned up)); Alden, ൯൬൱ U.S. at ൱൯൫-൯൬ (explaining that 

the United States—a sovereign—cannot abrogate the sovereign immunity of a state—a 

sovereign—in federal courts). But see Galette, ൬൳൭ A.൭d at ൰൯൮-൯൰. Although a state law was not 

at issue in Minerals, the Kentucky Supreme Court similarly did not apply comity in deciding 

whether Ohio could invoke sovereign immunity. But see id.
16 

(recognizing Ohio’s sovereign immunity); Farmer, ൲൱൳ S.E.൬d at ൫൬൲

(acknowledging Alabama’s sovereign immunity). But see Galette, ൬൳൭ A.൭d at ൰൯൮-

൯൰.

 We add that Plaintiffs erroneously argue that Pennsylvania is the proper 

jurisdiction because no Pennsylvania statute bars NJ Transit from being sued in 

Pennsylvania. The Hyatt III Court, however, rejected a similar argument. See Hyatt 

III, ൫൭൳ S. Ct. at ൫൮൳൲-൳൳ (explaining that because interstate sovereign immunity is 

inherent in the U.S. Constitution, it is “inappropriate for state law to control” 

(citation omitted)). Plaintiffs also misconstrue sovereign immunity as merely 

permitting NJ Transit to invoke, in Pennsylvania court, any immunities it would have 

in New Jersey court. Absent NJ Transit’s consent, or some other exception not 

before this Court, NJ Transit cannot be sued in Pennsylvania state courts. See id. at 

൫൮൳൱; Brooks, ൬൯൳ A.൭d at ൭൱൮.

20 Accordingly, bound by U.S. Supreme Court 

precedent, we hold that Pennsylvania must also recognize NJ Transit’s sovereign 

immunity. See Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൬; NASDAQ, ൯൬ A.൭d at ൭൪൭.

21 We next 

address whether NJ Transit waived sovereign immunity. 

20 See also Treasurer of New Jersey v. U.S. Dep’t of Treasury, ൰൲൮ F.൭d ൭൲൬, ൭൳൯-൳൰ (൭d Cir. 

൬൪൫൬) (holding that absent the sovereign’s express, unambiguous waiver of sovereign immunity, a 

court lacks subject matter jurisdiction and that “consent alone gives jurisdiction to adjudge against 

a sovereign. Absent that consent, the attempted exercise of judicial power is void” (cleaned up)). 

21 It would appear to follow that if one state has enacted a statute immunizing its agency—

much like California did with its agency in Hyatt III—then a sister state no longer has the option 

of exercising comity, as Nevada did in Hyatt I and II. Rather, Nevada is now obligated to recognize 

the sovereign immunity of the California agency. Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൬, ൫൮൳൲. In so holding, 

the High Court did not analyze California or Nevada law in resolving whether to recognize the 

California agency’s sovereign immunity. See id. Compare Galette, ൬൳൭ A.൭d at ൰൯൮-൯൰ (rejecting 

New Jersey law and applying Pennsylvania law in determining whether NJ Transit was an arm of 

New Jersey), with cf. Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൲ (noting that it “is not rational to suppose that the 

sovereign power should be dragged before a court”). In any event, Plaintiffs concede that NJ 

Transit is a sovereign agency. Resp. to Prelim. Objs. ¶ ൳.
17 

C. Waiver of Sovereign Immunity Under the Tort Act 

 Third, NJ Transit maintains that it has not waived its sovereign 

immunity. NJ Transit begins by discussing Atascadero State Hosp. v. Scanlon, ൮൱൭

U.S. ൬൭൮ (൫൳൲൯), for the proposition that in order to waive sovereign immunity, a 

state must explicitly specify its intention to be sued in federal court. NJ Transit’s Br. 

at ൭൰. Per NJ Transit, because the constitutional clause in Scanlon was silent about 

the state’s willingness to be sued in federal court, the High Court refused to hold that 

the state waived sovereign immunity. Id. NJ Transit analogizes to Scanlon, 

reasoning that because the Tort Act is similarly silent about New Jersey public 

entities being sued outside of New Jersey, NJ Transit has not waived sovereign 

immunity. Id. at ൭൱-൭൲ (discussing § ൯൳:൬-൬ of the Tort Act, which we quote infra). 

Plaintiffs counter that Scanlon is inapt because the instant case is not a 

federal suit. Pls.’ Br. at ൫൱. They argue that under N.J.S.A. § ൯൳:൬-൬, public entities 

are liable for negligence to the same extent as a private person would be. Id. at ൫൲. 

Plaintiffs summarily conclude that because a NJ Transit bus accident “is an 

exception to state sovereign immunity,” “there is clearly no” immunity here. Id. at 

൫൲-൫൳. Plaintiffs similarly reason that if this Court accepted NJ Transit’s argument, 

then NJ Transit could never be sued in “any court at all for an accident that occurred 

in Philadelphia.” Id. at ൫൳. Plaintiffs thus maintain that sovereign immunity does 

not prevent NJ Transit from being sued in Pennsylvania. Id. at ൬൪.

22

22 Plaintiffs tersely construe sovereign immunity as granting NJ Transit the same 

immunities in Pennsylvania that NJ Transit would have in New Jersey. Pls.’ Br. at ൬൪. Plaintiffs 

also concisely argue that they could not sue in New Jersey “because there is no basis to sue 

[SEPTA] in New Jersey for an accident that occurred in Philadelphia.” Id. at ൬൫. Further, Plaintiffs 

curtly claim they could not file two separate complaints under New Jersey’s “Entire Controversy 

doctrine,” but Plaintiffs did not explain the doctrine. Id. In reply, NJ Transit reiterates that under 

the Tort Act, it can be sued in New Jersey. NJ Transit’s Reply Br. at ൫൰-൫൱. NJ Transit also retorts 

that because SEPTA is not a public entity under Pennsylvania law, Plaintiffs could have sued 

SEPTA in New Jersey. Id. at ൫൱-൫൳.
18 

 New Jersey’s Tort Act states that it is “the public policy of this State 

that public entities shall only be liable for their negligence within the limitations of 

this act and in accordance with the fair and uniform principles established herein.” 

N.J.S.A. § ൯൳:൫-൬; see generally Melmark, ൬൪൰ A.൭d at ൫൫൪൯. “Any liability of a 

public entity established by this act is subject to any immunity of the public entity 

and is subject to any defenses that would be available to the public entity if it were 

a private person.” N.J.S.A. § ൯൳:൬-൫(b); see id. § ൯൳:൬-൬(a).

23 The term “any 

immunity” includes sovereign immunity. Rochinsky v. State, ൯൮൫ A.൬d ൫൪൬൳, ൫൪൭൮

(N.J. ൫൳൲൲) (explaining that the Tort Act preserved “common-law and statutory 

immunities not contained in the Act” itself, including sovereign immunity (emphasis 

in original)).24

With respect to Plaintiffs’ cursory arguments, Plaintiffs misconstrue the sovereign 

immunity doctrine. See Hyatt III, ൫൭൳ S. Ct. at ൫൮൳൬ (explaining that states are immune from private 

suits filed in the courts of other states); see also Brooks, ൬൯൳ A.൭d at ൭൱൮ (explaining sovereign 

immunity is an immunity from suit and not a defense to liability); Maison, ൬൮൯ A.൭d at ൯൮൱

(explaining that the Tort Act, “in the absence of an applicable immunity, generally contemplates a 

symmetry of treatment between government actors and private actors” for liability (emphases 

added)). Further, SEPTA has been sued in New Jersey. See Triffin v. S.E. Pa. Transp. Auth., ൬൬൯

A.൭d ൫൯൬, ൫൯൯ (N.J. Super. Ct. App. Div. ൬൪൬൪) (reasoning that because SEPTA waived personal 

jurisdiction, “there is no bar–constitutional or otherwise–to a court’s adjudication of a claim 

against a non-resident defendant”). Finally, Plaintiffs’ skeletal argument invoking the Entire 

Controversy doctrine fails for lack of development. See Diamond v. Chulay, ൲൫൫ F. Supp. ൫൭൬൫, 

൫൭൭൯ (N.D. Ill. ൫൳൳൭).

23 Section ൯൳:൬-൬(a) states, “A public entity is liable for injury proximately caused by an 

act or omission of a public employee within the scope of his employment in the same manner and 

to the same extent as a private individual under like circumstances.” N.J.S.A. § ൯൳:൬-൬(a). 

24 Accord Stewart v. New Jersey Tpk. Auth./Garden State Parkway, ൬൰൲ A.൭d ൭൮൰, ൭൯൭ (N.J. 

൬൪൬൬) (noting that the New Jersey Legislature passed the Tort Act after the New Jersey Supreme 

Court “abolished the common law doctrine of sovereign immunity”). “Tort claims under this act 

shall be heard by a judge sitting without a jury or a judge and jury where appropriate demand 

therefor is made in accordance with the rules governing the courts of the State of New Jersey.” Id.

§ ൯൳:൳-൫; see also Mesgleski v. Oraboni, ൱൮൲ A.൬d ൫൫൭൪, ൫൫൭൮ (N.J. Super. Ct. App. Div. ൬൪൪൪) 

(stating the “legislative goal of the [Tort] Act is to re-establish immunity for all governmental 

bodies within its definition of public entity. Immunity is all-inclusive within that definition except 

as otherwise provided by the [Tort] Act” (cleaned up)). In sum, under the Tort Act, a New Jersey 
19 

 Instantly, Plaintiffs conceded that NJ Transit is a sovereign, public 

entity subject to the Tort Act. Resp. to Prelim. Objs. ¶ ൳; accord Maison, ൬൮൯ A.൭d 

at ൯൮൰. As a public entity, the Tort Act shields NJ Transit from liability subject to 

certain exceptions. Maison, ൬൮൯ A.൭d at ൯൯൬; Wright v. State, ൱൱൲ A.൬d ൮൮൭, ൮൯൪ (N.J. 

൬൪൪൫). The Tort Act, however, does not explicitly address or otherwise express New 

Jersey’s consent to be sued outside of New Jersey, i.e., there is no waiver of 

sovereign immunity. See generally N.J.S.A. §§ ൯൳:൫-൫ to :൫൬-൭.

But other courts have addressed the issue. To provide some context for 

those cases, we briefly discuss Scanlon. In Scanlon, the High Court addressed 

whether a state constitution clause waived the state’s Eleventh Amendment 

immunity to being sued in federal court. Scanlon, ൮൱൭ U.S. at ൬൮൫ (interpreting 

constitutional clause stating, “[s]uits may be brought against the State in such 

manner and in such courts as shall be directed by law”). The Scanlon Court stated 

that “in order for a state statute or constitutional provision to constitute a waiver of 

Eleventh Amendment immunity, it must specify the State’s intention to subject itself 

to suit in federal court.” Id. (emphasis in original). Because the clause did not 

indicate the state was open to being sued in federal court, the High Court refused to 

hold that the state waived immunity. Id.25

Although the Scanlon Court did not address the Tort Act, New York 

public entity may negate liability by establishing immunity. Maison, ൬൮൯ A.൭d at ൯൯൬; Rochinsky, 

൯൮൫ A.൬d at ൫൪൭൭-൭൮.

25 See also Hyatt v. Cnty. of Passaic, ൭൮൪ Fed. App’x ൲൭൭ (൭d. Cir. ൬൪൪൳) (Passaic). In New 

Jersey, plaintiffs sued Passaic County, New Jersey, among other agencies, in federal court. Id. at 

൲൭൯. The defendants invoked Eleventh Amendment immunity, the district court agreed, and the 

plaintiffs appealed. Id. at ൲൭൰. The plaintiffs argued that the Tort Act “waived Eleventh 

Amendment immunity.” Id. at ൲൭൱. The Third Circuit summarily held that the Tort Act “allows 

suits against public entities and their employees in state courts, [but] does not expressly consent to 

suit in federal courts and thus is not an Eleventh Amendment waiver.” Id. (citing N.J.S.A. § ൯൳:൬-

൬(a)).
20 

courts have addressed it. In Belfand, a New York plaintiff was in an accident with a 

NJ Transit bus in New York. Belfand, ൫൮൲ N.Y.S.൭d at ൮൯൳. The plaintiff sued NJ 

Transit in New York, and NJ Transit invoked sovereign immunity. Id. On appeal, 

the Belfand Court noted that the Tort Act provided no consent to suits in federal 

court. Id. at ൮൰൮ (citing cases). The Belfand Court reasoned that if the Tort Act was 

insufficient to establish NJ Transit’s consent to be sued in federal court, then it was 

“equally insufficient” to establish New Jersey’s consent to “suits in a sister state.” 

Id. at ൮൰൯. The Court therefore held, “New Jersey’s consent to suits in its state courts 

under its [Tort Act] is not an express consent to suit in courts of a sister state and 

therefore fails to satisfy [Hyatt III’s] constitutional demand. The statute is not a 

basis for a finding that [NJ Transit] consented to this New York action.” Id.26

 Instantly, similar to Scanlon, and after reviewing the Tort Act, we also 

agree with the Passaic and Belfand Courts that the Tort Act contains no language in 

which New Jersey, i.e., NJ Transit, explicitly consents to being sued outside of New 

Jersey. See Scanlon, ൮൱൭ U.S. at ൬൮൫; Passaic, ൭൮൪ Fed. App’x at ൲൭൱; Belfand, ൫൮൲

N.Y.S.൭d at ൮൰൯; see also Melmark, ൬൪൰ A.൭d at ൫൫൪൯. Because NJ Transit invoked 

sovereign immunity in its preliminary objections, answer, and motion for judgment 

on the pleadings, we also disagree with the trial court’s holding that NJ Transit 

waived sovereign immunity. See Trial Ct. Op. at ൭. It follows that given NJ Transit 

did not consent to be sued in Pennsylvania courts, the trial court erred as a matter of 

law in overruling NJ Transit’s preliminary objections and denying its motion for 

26 The Belfand Court, however, further held that NJ Transit had waived sovereign immunity 

by failing to timely invoke it. Belfand, ൫൮൲ N.Y.S.൭d at ൮൰൱; see also Taylor v. N.J. Transit Corp., 

൫൯൲ N.Y.S.൭d ൯൲, ൯൳ (N.Y. App. Div. ൬൪൬൫); Fetahu v. N.J. Transit Corp., ൫൯൮ N.Y.S.൭d ൯൪, ൯൫ (N.Y. 

App. Div. ൬൪൬൫); Henry v. N.J. Transit Corp., ൫൮൮ N.Y.S.൭d ൲൯൫ (N.Y. App. Div. ൬൪൬൫). Thus, the 

Belfand suit continued in New York. Plaintiffs have not suggested NJ Transit untimely raised 

sovereign immunity. We add that NJ Transit cited to Belfand before the trial court. 
21 

judgment on the pleadings. See Farmer, ൲൱൳ S.E.൬d at ൫൬൯; Minerals, ൯൳൱ S.W.൭d at 

൫൱൫-൱൭; Sutton, ൬൬൪ A.൭d at ൫൪൭൯ n.൮; Yanakos, ൬൫൲ A.൭d at ൫൬൫൲ n.൰. 

IV. CONCLUSION 

 In sum, we hold as follows. First, the orders at issue are appealable 

collateral orders. Second, the trial court erred because Pennsylvania must recognize 

NJ Transit’s sovereign immunity under Hyatt III. Third, under the Tort Act, NJ 

Transit did not consent to be sued outside of New Jersey state courts. Accordingly, 

the trial court erred in overruling NJ Transit’s preliminary objections and denying 

NJ Transit’s motion for judgment on the pleadings. We reverse the orders at issue 

and remand with instructions to dismiss. 

 

 LORI A. DUMAS, Judge 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

Lee Marshall and Pamela Fuller : CASES CONSOLIDATE 

 : 

 v. : No. ൮൪ C.D. ൬൪൬൬

 : 

Southeastern Pennsylvania : 

Transportation Authority, New Jersey : 

Transit and New Jersey Transit : 

Corporation : 

 : 

Appeal of: New Jersey Transit and : 

New Jersey Transit Corporation : 

 

New Jersey Transit and New Jersey : 

Transit Corporation, : 

 Appellants : 

 : 

 v. : No. ൫൯൱ C.D. ൬൪൬൬

 : 

Lee Marshall, Pamela Fuller, and : 

Southeastern Pennsylvania : 

Transportation Authority : 

O R D E R 

 AND NOW, this ൮

th day of August, ൬൪൬൭, we REVERSE the June ൬൮, 

൬൪൬൫ order entered by the Court of Common Pleas of Philadelphia County (trial 

court), which overruled the preliminary objections filed by New Jersey Transit and 

New Jersey Transit Corporation (collectively, NJ Transit). We REVERSE the trial 

court’s January ൫൫, ൬൪൬൬ order denying NJ Transit’s motion for judgment on the 

pleadings. We REMAND with instructions to dismiss the case. 

 

 LORI A. DUMAS, Judge