1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-27-1995

Christy v PA Turnpike Comm

Precedential or Non-Precedential:

Docket 94-1386

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Recommended Citation

"Christy v PA Turnpike Comm" (1995). 1995 Decisions. Paper 83.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/83
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 Nos. 94-1386 and 94-1398 

 ___________ 

 CHARLES A. CHRISTY, 

 vs. 

 PENNSYLVANIA TURNPIKE COMMISSION, A DULY 

ORGANIZED AND EXISTING AGENCY OF THE 

COMMONWEALTH OF PENNSYLVANIA; ROBERT BRADY, 

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; 

JAMES J. DODARO, INDIVIDUALLY AND IN HIS 

OFFICIAL CAPACITY; HOWARD YERUSALIM, 

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; 

FRANK S. URSOMARSO, INDIVIDUALLY AND IN HIS 

OFFICIAL CAPACITY; JAMES F. MALONE, III, 

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; 

JOHN L. SOKOL, JR., INDIVIDUALLY AND IN HIS 

OFFICIAL CAPACITY; S. MICHAEL PALERMO, 

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; 

JOSEPH L. DIRIENZO, INDIVIDUALLY AND IN HIS 

OFFICIAL CAPACITY; SAMUEL S. CARNABUCI, 

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; 

MELVIN M. SHELTON, INDIVIDUALLY AND IN HIS 

OFFICIAL CAPACITY; DEBORAH KOVAL, 

INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; 

JOHN A. BOSCHI, INDIVIDUALLY AND IN HIS 

OFFICIAL CAPACITY; VINCENT J. GRECO, 

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; 

JOHN A. STEWART, INDIVIDUALLY AND IN HIS 

OFFICIAL CAPACITY; GEORGE PILECKI, 

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; 

SEAN PILECKI, INDIVIDUALLY 

 Pennsylvania Turnpike Commission, Robert 

Brady, Vincent Greco and John Stewart 

 Appellants No. 94-1386

 John A. Boschi, 

 

 Appellant No. 94-1398
 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 (D.C. Civil No. 93-cv-03346) 

 ___________ 

 ARGUED SEPTEMBER 12, 1994 

 BEFORE: STAPLETON, ALITO and LEWIS, Circuit Judges. 

 (Filed March 27, l995) 

 ___________ 

Michael M. Baylson (ARGUED) 

Duane, Morris & Heckscher 

4200 One Liberty Place 

Philadelphia, PA 19103-7396 

 Attorney for Appellants, Pennsylvania 

Turnpike Commission, Robert Brady, Vincent 

Greco and John Stewart

David S. Fortney (ARGUED) 

Lisa G. DiPietro 

Reed, Smith, Shaw & McClay 

1650 Market Street 

2500 One Liberty Place 

Philadelphia, PA 19103-7301 

 Attorney for Appellant, John A. Boschi

Joseph F. Lawless, Jr. (ARGUED) 

6 Harvey Lane 

Newtown Square, PA 19073 

John P. Hickey 

Imogene E. Hughes 

Kleinbard, Bell & Brecker 

1900 Market Street 

Suite 700 
Philadelphia, PA 19103 

 Attorneys for Appellee
 ___________ 

 OPINION OF THE COURT 

 ___________ 

LEWIS, Circuit Judge. 

 In this case, we must determine whether the 

Pennsylvania Turnpike Commission ("Commission") is an "arm" or 

"alter ego" of the Commonwealth of Pennsylvania and thus entitled 

to Eleventh Amendment immunity from suit in federal court. 

Because we conclude that the Commission is not an arm or alter 

ego of Pennsylvania we will affirm the district court's finding 

that the Commission does not enjoy Eleventh Amendment sovereign 

immunity. 

I. 

 The appellee, Charles Christy ("Christy"), has been an 

employee of the Commission since 1976.1 In November of 1992, 

Christy made application for the position of Paint Crew Foreman. 

He was interviewed for this position in early 1993 by the 

appellants John Boschi, Vincent Greco and John Stewart.2 Christy 

was then chosen as one of three final candidates for the Paint 

Crew Foreman position. The names of the three final candidates 

were passed to the Commission's personnel committee for final 

 

1. Since 1983, Christy has been employed as an Auto 

Mechanic 1. 

2. John Boschi is currently the Commission's Deputy Executive 

Director of Maintenance; Vincent Greco is Eastern Division 

Superintendent of the Commission; and John Stewart is Assistant 

Deputy Executive Director of Maintenance for the Commission. The 

other individual defendant in this appeal, Robert Brady, is a 

Turnpike Commissioner. 
review. The personnel committee then recommended that the 

position be awarded to one Sean Pilecki, a Commission employee 

during the preceding four and a half years. The Commission 

adopted the personnel committee's recommendation and hired Mr. 

Pilecki. Christy subsequently applied and was turned down for 

the position of Eastern Division Equipment Supervisor. 

 Christy then sued the Commission and its individual 

commissioners and personnel committee members pursuant to 

42 U.S.C. §§ 1983 and 1985, claiming that he was not promoted due 

to political bias against him. In response to Christy's claims 

of political bias, the Commission and individual defendants 

Brady, Greco and Stewart filed a joint motion for summary 

judgment, while the defendant Boschi filed a separate summary 

judgment motion. The district court denied the defendants' 

motions, ruling as a matter of law that the Commission was not 

entitled to Eleventh Amendment immunity, and rejecting the 

individual defendants' claims of qualified immunity. These 

appeals followed. 

II. 

 The district court had jurisdiction in this case 

pursuant to 28 U.S.C. §§ 1343(a)(3) and 1367(a).3 We have 

 

3. The Commission argues that the district court lacked 

subject matter jurisdiction over it because Christy had elected 

to drop the Commission as a party by the time the district court 

ruled on the Eleventh Amendment issue. Putting aside the 

question whether or not Christy in fact effectively dropped the 

Commission as a party, the Commission is incorrect in asserting 

that the district court lacked subject matter jurisdiction over 

it at the time the court ruled on the Eleventh Amendment issue. 

Christy sued the individual defendants in both their individual 

and official capacities. A suit against an individual in his or 
appellate jurisdiction pursuant to 28 U.S.C. § 1291 over the 

district court's denial of the defendants' motions seeking 

summary judgment on Eleventh Amendment grounds. See Puerto Rico 

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., ___ U.S. ___, 113 

S. Ct. 684, 687-89, 121 L.Ed.2d 605 (1993) (holding that district 

court orders denying Eleventh Amendment immunity claims by states 

or putative "arms of the state" are immediately appealable under 

the collateral order doctrine).4 We exercise plenary review of 

(..continued) 

her official capacity is no different from a suit against that 

individual's office. "As such, it is no different from a suit 

against" the office itself. Will v. Michigan Dept. of State 

Police, 491 U.S. 58, 71 (1989) (citations omitted); see also

Kentucky v. Graham, 473 U.S. 159 (1985) (emphasizing that 

official capacity suits "`generally represent only another way of 

pleading an action against an entity of which an officer is an 

agent.'" (citation omitted)). In this case, a suit against the 

individual defendants in their official capacities is the same as 

a suit against the Commission. The individual defendants have 

asserted Eleventh Amendment immunity in relation to Christy's 

official capacity claims, and pressed that immunity in their 

summary judgment motions before the district court. Thus, the 

issue of the Commission's entitlement to sovereign immunity was 

properly before the district court at the time the court ruled on 

the issue. 

4. We will dismiss for lack of appellate jurisdiction the 

individual defendants' appeals from the district court's denial 

of their motions for summary judgment on qualified immunity 

grounds. While we have appellate jurisdiction to consider the 

denial of summary judgment when such denial is based on the 

district's conclusion that the movant is not entitled to 

qualified immunity, see, e.g., Brown v. Grabowski, 922 F.2d 1097, 

1105 (3d Cir. 1990), the district court in this case did not rule 

that the individual defendants were not entitled to qualified 

immunity. Rather, it ruled that it could not find qualified 

immunity based on the facts at summary judgment. The district 

court could still find at the close of evidence at trial that the 

individual defendants are entitled to qualified immunity in 

relation to Christy's claims brought against them in their 

individual capacities. 
the district court's denial of the defendants' motions for 

summary judgment. Rappa v. New Castle County, 18 F.3d 1043, 1050 

(3d Cir. 1994). 

III. 

 We must determine whether the district court correctly 

concluded that the Commission is not an "arm" of Pennsylvania and 

therefore not entitled to sovereign immunity under the Eleventh 

Amendment.5 The question whether the Commission is an "arm" of 

the State is one of federal law. Blake v. Kline, 612 F.2d 718, 

722 (3d Cir. 1979). However, before undertaking our Eleventh 

Amendment analysis, we must decide a question of apparent first 

impression in this Circuit: who bears the burden of production 

and persuasion with respect to factual questions when a putative 

state entity claims immunity under the Eleventh Amendment? We 

conclude that the party asserting Eleventh Amendment immunity 

(and standing to benefit from its acceptance) bears the burden of 

proving its applicability. In so concluding, we adopt the 

reasoning set forth by the Court of Appeals for the Ninth Circuit 

in ITSI TV Productions v. Agricultural Associations, 3 F.3d 1289 

(9th Cir. 1993). Because Eleventh Amendment immunity can be 

 

5. The Eleventh Amendment provides that "[t]he 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 . . . ." U.S. Const. 

amend. XI. Its explicit terms notwithstanding, the Eleventh 

Amendment has consistently been interpreted to immunize an 

unconsenting state "`from suits brought in federal courts by her 

own citizens as well as by citizens of another state.'" 

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 

(1984) (citation omitted). 
expressly waived by a party, or forfeited through non-assertion, 

it does not implicate federal subject matter jurisdiction in the 

ordinary sense. Id. at 1291. We agree with the Ninth Circuit 

that "whatever its jurisdictional attributes, [Eleventh Amendment 

immunity] should be treated as an affirmative defense[,]" and 

"[l]ike any other such defense, that which is promised by the 

Eleventh Amendment must be proved by the party that asserts it 

and would benefit from its acceptance." Id. We also agree with 

the Ninth Circuit that considerations of fairness support this 

conclusion. As the court noted in ITSI TV Productions: 

 In general, a claim of Eleventh Amendment 

immunity will occasion serious dispute only 

where a relatively complex institutional 

arrangement makes it unclear whether a given 

entity ought to be treated as an arm of the 

state. In such cases, the "true facts" as to 

the particulars of this arrangement will 

presumably "lie particularly within the 

knowledge of" the party claiming immunity. 

Id. at 1292 (citations omitted). 

 Having concluded that the party asserting Eleventh 

Amendment immunity bears the burden of proving entitlement to it, 

we turn now to the merits of the immunity question. We have on 

numerous occasions set forth the criteria to be considered in 

determining whether an entity is an "alter ego" or "arm" of a 

state for purposes of the Eleventh Amendment. See e.g., Peters 

v. Delaware River Port Authority, 16 F.3d 1346, 1350 (3d Cir. 

1994); Bolden v. Southeastern Pennsylvania Transp. Auth., 953 

F.2d 807, 816-818 (3d Cir. 1991) (in banc); Fitchik v. New Jersey 

Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) 
(in banc). Our oft-reiterated test entails three distinct 

inquiries: (1) whether, in the event the plaintiff prevails, the 

payment of the judgment would come from the state (this includes 

three considerations: whether the payment will come from the 

state's treasury, whether the agency has sufficient funds to 

satisfy the judgment, and whether the sovereign has immunized 

itself from responsibility for the agency's debts); (2) the 

status of the agency under state law (this includes four 

considerations: how state law treats the agency generally, 

whether the agency is separately incorporated, whether the agency 

can sue and be sued in its own right, and whether it is immune 

from state taxation); and (3) what degree of autonomy the agency 

enjoys. Peters v. Del. River Port Authority, 16 F.3d 1346, 1350 

(3d Cir. 1994) (citing Bolden v. Southeastern Pa. Transp. Auth., 

953 F.2d 807, 816 (3d Cir. 1991) (in banc)). We turn now to this 

three-pronged inquiry. 

 A. Funding

 We have explained that although no single factor is 

dispositive of the Eleventh Amendment inquiry, the "most 

important" factor is whether a judgment against the entity in 

question, in this case the Commission, would be paid out of the 

state treasury. See, e.g., Fitchik v. New Jersey Transit Rail 

Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) (in banc). 

The special emphasis we place upon the funding factor is 

supported by the Eleventh Amendment's central goal: the 

prevention of federal court judgments that must be paid out of 

the State's treasury. See Fitchik, 873 F.2d at 659-60 (citing
Edelman v. Jordan, 415 U.S. 651 (1974)). The Supreme Court has 

recently reiterated the significance accorded this factor in 

relation to other Eleventh Amendment considerations. In Hess v. 

Port Authority Trans-Hudson Corporation, 115 S. Ct. 394 (1994), 

the Court explained that "prevention of federal court judgments 

that must be paid out of a State's treasury" formed the "impetus" 

for the Eleventh Amendment. Hess, 115 S. Ct. at 404. 

 Accordingly, Courts of Appeals have 

recognized the vulnerability of the State's 

purse as the most salient factor in Eleventh 

Amendment determinations . . . . "[T]he vast 

majority of Circuits have concluded that the 

state treasury factor is the most important 

factor to be considered and, in practice, 

have generally accorded this factor 

dispositive weight." 

Id. (citations omitted). 

 1. Whether Payment Will Come from the State's Treasury

 Pursuant to the Turnpike Organization, Extension and 

Toll Road Conversion Act ("The Act"), 36 P.S. §§ 651.1 et. seq., 

the Commission is authorized to obtain funds through the 

collection of tolls for the use of the Pennsylvania Turnpike 

System. 36 P.S. § 651.16. The Commission is also authorized to 

collect rents and charges for telephone and electric lines, gas 

stations, garages, stores, hotels, restaurants and advertising 

signs. Id. The Act also authorizes the Commission to obtain 

funds through the issuance of bonds, notes and other obligations. 

Id. at § 651.12. In addition, the Act authorizes the Commission 

to obtain funds from the federal government. Id. at § 651.19. 

Finally, the Commission receives some funding out of 
Pennsylvania's oil company franchise tax collections. 75 

Pa.C.S.A. § 9511(h). 

 The Commission notes that only one of these funding 

sources -- tolls -- is not subject to state control. According 

to the Commission, the state's regulation and control of the 

Commission's funding is crucial to our analysis of the funding 

factor. Also significant, according to the Commission, is the 

fact that upon retiring its debts, or setting aside funds 

sufficient to do so, the Commission is to be dissolved and all of 

the Commission's property is to be vested in the Department of 

Highways. See 36 P.S. § 652o. 

 We do not know what percentage of the Commission's 

funding might be attributed to each of the funding sources 

identified above. We are, of course, able to observe that only 

one of the five available sources of funding -- the oil company 

franchise tax -- is obtained from the state. The other four 

sources -- tolls, rents, bond and note revenues, and federal 

funding -- are not state-derived. That four of the five 

established sources of the Commission's funding are not statederived is, we think, even in the absence of additional 

information, some support for the conclusion that the Commission 

is not the alter ego of Pennsylvania.6

 

6. Although the figure does not appear in the record, the 

Commission has represented to us that it has received "more than 

$112,000,000" in oil company franchise tax revenues. (Commission 

brief at 36 n.18). We fail to see, however, how we can draw any 

conclusion from this representation, given that the Commission 

has failed to provide information regarding the percentage of its 

annual revenues received in this form. See Bolden, 953 F.2d at 

819-20 (without knowing what percentage of SEPTA's total revenue 
 The degree of state regulation of the Commission's 

funding does not alter our conclusion that the funding factor 

weighs against according immunity to the Commission. We have 

explained that state control is only significant to the funding 

analysis where such control indicates state ownership of the 

funds. Fitchik, 873 F.2d at 661. In other words, state control 

over an entity's ability to obtain funds is inadequate to 

demonstrate state ownership of the funds where the state is not 

shown to have a financial interest that would be directly and 

adversely affected by the diminution of the funds in question. 

See id. Otherwise, the degree of state control over the entity's 

funding is relevant to the autonomy inquiry, which we discuss 

below. Id. Here, the state's control over the Commission's 

authority to issue bonds, notes and other obligations falls short 

of indicating state ownership of the funds obtained through the 

issuance of such bonds, notes and other obligations. Likewise, 

state control over the Commission's ability to obtain federal 

funding falls short of indicating state ownership of the federal 

funds obtained. The Commission's evidence of state control over 

its ability to obtain funds simply fails to show a financial 

interest on the part of Pennsylvania that would be directly and 

adversely affected by the diminution of the Commission's funds 

obtained through the issuance of bonds or from the federal 

government. 

(..continued) 

comes from state funds under a particular new law, we held that 

the impact of the law on SEPTA's funding was too uncertain to be 

given significant weight in the funding analysis). 
 Nor is our conclusion with respect to the funding 

factor altered by the fact that the Commission will one day be 

dissolved and all its remaining funds and property vest in the 

Department of Highways. Pursuant to 36 P.S. § 652o: 

 When all bonds and the interest thereon 

shall have been paid or a sufficient amount 

for the payment of all bonds and the interest 

to maturity thereon, shall have been set 

aside in trust for the benefit of the 

bondholders, and shall continue to be held 

for that purpose, the turnpike and the 

connecting tunnels and bridges shall become a 

part of the system of State highways, and 

shall be maintained by the Department of 

Highways free of tolls, and thereupon the 

commission shall be dissolved, and all funds 

of the commission not required for the 

payment of the bonds and all machinery, 

equipment and other property belonging to the 

commission, shall be vested in the Department 

of Highways. 

36. P.S. § 652o. Thus, the dissolution of the Commission is 

statutorily contingent upon the Commission satisfying, or being 

able to satisfy, all of its debts and obligations. If anything, 

this provision provides further support for our conclusion by 

illustrating the state's reluctance to take on the Commission's 

financial obligations as its own. 

 2. Whether the Commission Could Satisfy a Judgment Against It

 We do not know how much money the Commission has or 

would have available to it to satisfy a potential judgment 

against it. According to the Commission, the lack of record 

evidence on this point renders this second funding inquiry 

"irrelevant." We do not agree. Since the Commission bears the 

burden of proving its entitlement to Eleventh Amendment immunity, 
the Commission's failure to provide pertinent information 

regarding its ability, or lack thereof, to satisfy a potential 

judgment against it simply means that the Commission has failed 

to sustain its burden of proof on this important question. 

Moreover, even in the absence of such evidence, our cases enable 

us to draw certain conclusions, with respect to the Commission's 

ability to pay a judgment against it. In both Bolden and 

Fitchik, we suggested that an entity with power to raise revenues 

by raising fares need not request funds from the state to meet 

shortfalls caused by adverse judgments. See Bolden, 953 F.2d at 

819; Fitchik, 873 F.2d at 661.7 The Commission is authorized "to 

fix, and to revise, from time to time," tolls for the use of the 

Pennsylvania Turnpike System. 36 P.S. § 651.16(a). In fact, the 

Commission's authority to set the toll rate "shall not be subject 

to supervision or regulation by any other State commission, 

board, bureau or agency." Id. at § 651.16(b). In light of 

Bolden and Fitchik, we think the Commission's power to raise 

revenue levels by increasing the toll rates, even in the absence 

of information regarding the Commission's financial condition and 

consequent ability to pay a judgment against it, supports the 

view that the Commission need not seek assistance from the state 

to satisfy a judgment against it. 

 3. Whether the Sovereign has Immunized Itself

 

7. We also noted in Fitchik, alternatively, that the entity 

could cover a shortfall by reducing its expenses or capital 

budget. Fitchik, 873 F.2d at 661. Similarly, the Commission 

would, we imagine, be able to cover a shortfall by reducing its 

expenses or capital budget. 
 The Act provides that "[a]ll compensation and salaries 

and all expenses incurred in carrying out the provisions of this 

act shall be paid solely from funds provided under the authority 

of this act . . . ." 36 P.S. § 651.8(a). Furthermore, the Act 

provides that all bonds, notes and other obligations issued by 

the Commission under the Act 

 shall not be deemed to be a debt of the 

Commonwealth or a pledge of the faith and 

credit of the Commonwealth, but such bonds, 

notes or other obligations shall be payable 

solely from the revenues of the commission 

. . . . All such bonds, notes or other 

obligations shall contain a statement on 

their face that the Commonwealth is not 

obligated to pay the same or the interest 

thereon except from revenues of the 

commission . . . and that the faith and 

credit of the Commonwealth is not pledged to 

the payment of the principal or interest of 

such bonds, notes or other obligations. The 

issuance of turnpike revenue bonds, notes or 

other obligations under the provisions of 

this act shall not directly or indirectly or 

contingently obligate the Commonwealth to 

levy or to pledge any form of taxation 

whatever therefor or to make any 

appropriation for their payment. 

36 P.S. § 651.4. 

 The Commission observes that the General Assembly of 

Pennsylvania has not expressly immunized the state from 

responsibility for all of the Commission's possible debts and 

liabilities. Nowhere in the Commission's original or subsequent 

enabling acts, the Commission notes, is there a provision 

disclaiming Pennsylvania's responsibility for the Commission's 

unassumed liabilities and obligations. One can imagine, the 

Commission suggests, numerous situations in which the Commission 
would face unassumed liabilities or debts large enough to exhaust 

the Commission's funds and necessitate the Commission's rescue by 

the Commonwealth. 

 In light of our case law, we do not agree that the 

absence of a blanket disclaimer is significant. What is

significant under our case law is the fact that the Commission 

has failed to establish that Pennsylvania is under any 

affirmative obligation to pay the Commission's unassumed 

liabilities in the first place. See Bolden, 953 F.2d at 819 ("A 

state legislature might feel compelled as a practical matter to 

subsidize a variety of entities that provide necessary services, 

including financially pressed municipalities. Such discretionary 

subsidies committed in reaction to a judgment, however, would not 

necessarily transform the recipients into alter egos of the 

state."). Although the Commonwealth might well choose to 

appropriate money to the Commission to enable it to meet a 

shortfall caused by an adverse judgment, such voluntary payments 

by a state simply "`do not trigger [Eleventh Amendment] 

immunity.'" Id. (quoting Fitchik, 873 F.2d at 661).8

 

8. Christy contends that the Commission is able to self-insure 

and to purchase liability insurance, and that the Commission in 

fact self-insures at least part of its contingent liabilities 

under the Commonwealth's Employee Liability Self-Insurance 

Program. We have in cases past considered an entity's ability to 

obtain insurance as evidence of that entity's financial selfsufficiency and independence from the state. See Bolden, 953 

F.2d at 819; Fitchik, 873 F.2d at 661. The Commission counters 

that the alleged fact of the Commission's self-insurance is not 

in evidence noting that "[n]o record reference is offered [by 

Christy], nor does any affidavit, deposition excerpt, or document 

included in the record support this statement." (Commission 

reply at 19 n.14). But the Commission overlooks the fact that it 
 The Commission has failed to establish that (1) a 

judgment against it would be tantamount to a judgment against the 

Treasury of the Commonwealth of Pennsylvania; (2) the Commission 

lacks financial resources sufficient to pay a potential judgment 

against it; or (3) Pennsylvania would be under any obligation to 

cover any such potential judgment against the Commission. 

Accordingly, on the record as it stands before us, the funding 

factor, the most important of the three, weighs heavily in 

support of the conclusion that the Commission is not an arm of 

the Commonwealth of Pennsylvania and does not enjoy Eleventh 

Amendment immunity from suit in federal court. 

 B. Status at State Law

 The second general factor we must consider in 

determining whether the Commission is an arm or alter ego of the 

Commonwealth of Pennsylvania is the status of the Commission 

under Pennsylvania law. Our purpose here is to determine whether 

Pennsylvania law treats the Commission as an independent entity, 

or as a surrogate for the state. See Fitchik, 873 F.2d at 662. 

 In Specter v. Commonwealth, 341 A.2d 481 (1975), a 

plurality of the Pennsylvania Supreme Court held that the 

Commission is not an arm of the Commonwealth and not entitled to 

sovereign immunity. After examining the legislative acts 

creating the Commission and defining its purposes and powers, as 

(..continued) 

bears the burden of proving entitlement to Eleventh Amendment 

immunity; its failure to provide evidence of an inability to 

obtain insurance is our primary concern, not Christy's failure to 

cite record evidence to the contrary. 
well as judicial decisions in which the Commission's status was 

at issue, the court explained that: 

 There is, of course, no doubt that the 

Commonwealth itself could have constructed 

the Turnpike in the same manner that it 

constructs and operates its State highways. 

Had it done so, the State's immunity from 

suit would encompass actions arising in 

connection with the Turnpike. But the 

Commonwealth itself did not build this

highway and does not maintain it. The 

legislature created this separate body and at 

the same time disclaimed any responsibility 

on the part of the Commonwealth for 

liabilities which it, the Commission, might 

incur. It is clear that the Commission is 

not an integral part of the Commonwealth, and 

cannot share the attributes of sovereignty 

which inhere in the state. It follows that 

the Commission is not immune from suit in 

tort for the acts of its servants and agents 

acting in the course of their employment or 

agency. 

Id. at 491 (emphasis in original). 

 The Commission does, we recognize, possess certain 

attributes associated with sovereignty. For example, the 

Commission (1) may exercise the power of eminent domain; see 36 

P.S. §§ 651.9 - .11; (2) enjoys statutory immunity from suit in 

state court; see 42 Pa.C.S.A. § 8522(a); and (3) is exempt from 

all state property taxation; see 36 P.S. § 651.15. On the other 

hand, the Commission possesses certain traits not at all 

characteristic of an arm of the state; for example, the 

Commission may sue and be sued in its own name; see 36 P.S. 

§ 651.7(a)(3); and has the power to enter into contracts in its 

own name; see 36 P.S. § 651.7(a)(2). 
 On balance, the "status under state law" factors weigh 

slightly in favor of the conclusion that the Commission is not an 

arm of the Commonwealth of Pennsylvania. This is true, 

especially in light of the plurality holding of the Pennsylvania 

Supreme Court in Specter that the Commission is not an integral 

part of the Commonwealth, and thus cannot share the attributes of 

sovereignty which inhere in the state. Cf. Peters, 16 F.3d at 

1351 (holding that the Delaware River Port Authority's status 

under state law weighs in favor of the conclusion that the agency 

does not enjoy sovereign immunity, especially in light of a 

Pennsylvania Supreme Court case holding that the DRPA is not "`an 

integral part of the Commonwealth of Pennsylvania'" (citation 

omitted)). 

 The Commission contends that in enacting Pennsylvania's 

sovereign immunity statute, see 42 Pa.C.S.A. §§ 8501 et seq., the 

Pennsylvania legislature "conclusively repudiated" Specter's 

conclusion that the Commission is separate and apart from the 

Commonwealth. The Commission further notes that in two 

unanimous, post-Specter, decisions, the Pennsylvania Commonwealth 

Court confirmed that the Commission enjoys sovereign immunity. 

See Pennsylvania Turnpike Commission v. Jellig, 563 A.2d 202 

(Pa.Cmwlth. 1989); Bradley v. Pennsylvania Turnpike Commission, 

550 A.2d 261 (Pa.Cmwlth. 1988). To accord Specter any deference, 

the Commission argues, is to give Specter value already taken 

away by the Pennsylvania legislature and judiciary. 

 We do not share the Commission's appraisal of Specter's 

continued vitality. Passage of the Pennsylvania sovereign 
immunity statute has not diminished the significance of Specter's 

analysis to our assessment of the Commission's claim of 

entitlement to Eleventh Amendment immunity. By enacting an 

immunity statute pursuant to which the Commission is accorded 

sovereign immunity, the Pennsylvania legislature did not 

"conclusively repudiate" Specter's conclusion that the Commission 

is not an integral part of the Commonwealth and does not share 

the attributes of sovereignty inhering in the state. In enacting 

the sovereign immunity statute, the Pennsylvania legislature 

merely conferred upon entities such as the Commission by way of 

statute that which they otherwise lacked, namely, immunity from 

suit in state court. We implied as much in Toombs v. Manning, 

835 F.2d 453 (3d Cir. 1987), in which we explained that 

 [t]he significance to our analysis of the 

legislature's inclusion of the . . . 

Commission as an immune agency is that it is 

clear that the General Assembly intended to 

provide sovereign immunity protection not 

only for those entities which before Mayle[ 

v. Pennsylvania Department of Highways, 388 

A.2d 709 (1978) (in which the Pennsylvania 

Supreme Court abrogated sovereign immunity)] 

had been immune as sovereigns, but also for 

those entities not previously immune, but 

which now came within the statute's scope. 

Toombs, 835 F.2d at 459 (footnote omitted) (emphasis supplied). 

Nor do Jellig and Bradley undermine the continuing validity of 

Specter's analysis. In those cases, the Pennsylvania 

Commonwealth Court merely applied the Pennsylvania sovereign 

immunity statute to find, unremarkably, that the Commission 
enjoys sovereign immunity from suit in state court. See Jellig, 

563 A.2d at 205; Bradley, 550 A.2d at 263.9 

 C. Autonomy

 The Commission's membership is controlled by the 

executive and legislative branches of the Commonwealth. One 

member of the five-person Commission must always be the Secretary 

of Transportation, a cabinet-level position appointed by the 

Governor and confirmed by the Pennsylvania Senate. See 36 P.S. 

§§ 651.5(d), 652d; see also 71 P.S. § 67.1(d)(1) (Gubernatorial 

appointment and senatorial confirmation of Secretary of 

Transportation). The four remaining Commission members are also 

appointed by the Governor and confirmed by the Senate. See 36 

P.S. §§ 651.5(b), 652d; see also 71 P.S. § 67.1(c)(2) 

 

9. We recognize that the Pennsylvania sovereign immunity 

statute itself is some evidence of the Commission's status before 

the law of Pennsylvania. And as some evidence of the 

Commission's status at state law, it is relevant to our Eleventh 

Amendment inquiry. However, it is far from determinative of that 

inquiry. We have explained that state law extending sovereign 

immunity to an agency is "relevant to the Eleventh Amendment 

determination, but it is not dispositive." Bolden, 953 F.2d at 

815 n.8 (citations omitted). 

 Thus, a state law determination of sovereign 

immunity may coincide with and influence the 

federal law determination of Eleventh 

Amendment status, but the former does not 

conclusively determine the latter . . . . 

[Otherwise], each state legislature 

apparently could confer Eleventh Amendment 

protection on any entity it wished, including 

counties and cities, by enacting a statute 

clothing these entities with "sovereign 

immunity" from suit on state claims. 

Id. at 815 n.8, 817. 
(Gubernatorial appointment and senatorial confirmation of 

Commission members). State authority over the appointment of 

Commission members lends obvious support to a finding of 

sovereignty. See Peters, 16 F.3d at 1351-52. 

 On the other hand, weighing in favor of a finding of 

autonomy are the facts that the Commission may fix and revise 

tolls; enter contracts in its own name; issue bonds and notes; 

sue in its own name; purchase and own property; and promulgate 

rules and regulations for its own governance. See 36 P.S. 

§ 651.16 (fix and revise tolls); 36 P.S. § 651.7 (enter 

contracts, sue in its own name, purchase and own property, and 

promulgate rules and regulations for its own governance); 36 P.S. 

§ 651.12 (issue bonds and notes). Of course, several of these 

powers are subject to a degree of state control. For example, 

the Pennsylvania Attorney General must review the form and 

legality of each contract and rule or regulation the Commission 

proposes. See 71 P.S. § 732-204(b) (review of rules and 

regulations); 71 P.S. § 732-204(f) (review of contracts). 

Moreover, Commission issuance of bonds and notes is subject to 

state approval. See 36 P.S. § 652u.1 

 On balance, the significant control the Commonwealth 

exercises through the power to appoint all the members of the 

Commission weighs slightly in favor of Commission immunity from 

suit. Cf. Peters, 16 F.3d at 1351-52 (where separately 

incorporated agency was found to have power to enter contracts, 

hold property, and set and collect tolls, we held that the 

autonomy factor weighed "slightly" in favor of affording immunity 
in light of the states' power to appoint the members of the board 

of the agency in question). 

 D. The Totality of Factors

 Having considered each of the three factors above, we 

now must consider the three factors in their totality. See

Bolden, 953 F.2d at 821. Since the most important factor, 

funding, weighs heavily against the Commission and only one 

factor weighs, even slightly, in favor of the Commission, the 

balance is clearly struck against a finding that the Commission 

enjoys sovereign immunity as an arm of the Commonwealth of 

Pennsylvania. Consequently, we find that the Commission is 

subject to suit in federal court. We will affirm the district 

court's conclusion to this effect. 

 IV. Conclusion

 For the reasons stated above, we will affirm the 

district court's denial of the defendants' motions for summary 

judgment on Eleventh Amendment immunity grounds, and will dismiss 

for lack of appellate jurisdiction the defendants' appeals from 
the district court's denial of their motions for summary judgment 

on qualified immunity grounds. 

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