Van Dusen, Aldisert and Stahl, Circuit Judges.
Appellant brought the present action to recover damages for personal injuries. In his complaint he alleged that while operating a tractor-trailer for his employer along the Pennsylvania Turnpike the vehicle struck a large hole in the roadway, causing the truck to veer off the road and down an embankment, and resulting in personal injuries to him. Appellee Turnpike Commission was charged with negligently failing to maintain the roadway in a reasonably safe condition. Federal jurisdiction was based on diversity of citizenship.*fn1
The district court, on appellee's motion, dismissed the complaint on the ground that appellant failed to state a cause of action upon which relief could be granted. The basis for the dismissal was the Pennsylvania Supreme Court's decision in Rader v. Pennsylvania Turnpike Comm'n, 407 Pa. 609, 182 A.2d 199 (1962), which held that the "Turnpike Commission possesses the same immunity from liability in trespass actions arising out of the negligence of its agents and employees in the maintenance of the highway as does the Commonwealth." 182 A.2d at 205.
In dismissing the complaint on the ground that the Turnpike Commission was immune from liability the district court acted correctly. Whether or not the Commission is immune from the tort liability posited here is a question of state law,*fn2 and under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), we are bound to apply the law as announced by the Pennsylvania Supreme Court in Rader notwithstanding*fn3 our prior decision in Gerr v. Emrick, 283 F.2d 293 (3d Cir. 1960), cert. denied, 365 U.S. 817, 81 S. Ct. 698, 5 L. Ed. 2d 695 (1961), where we held, before the highest state court had spoken on the matter, that the Commission was subject to suit and to liability for negligence in the construction, operation and maintenance of the turnpike.
In his brief and at oral argument appellant also raised constitutional claims bottomed on the Fourteenth Amendment. In Ewalt v. Pennsylvania Turnpike Comm'n, 382 Pa. 529, 115 A.2d 729 (1955), the Pennsylvania Supreme Court held that an owner of real property could maintain a suit in equity and recover damages against the Turnpike Commission when dirt and debris from exposed cuts and fills for a new turnpike right-of-way were carried on to the owner's land. The asserted injury was found to be a continuing trespass arising out of the Commission's construction, operation and maintenance of the turnpike, and the Court held that the suit could be maintained by virtue of an express statutory provision authorizing such suits.*fn4 Appellant argues that to permit the maintenance of a trespass action against the Commission to recover for property damage caused by the construction, operation or maintenance of the turnpike, while, at the same time, denying relief to one who has suffered personal injuries as a result of the Commission's negligence in carrying out those same functions results in an arbitrary and unreasonable classification between property owners and travelers upon the turnpike and denies to the latter class the equal protection of the laws.
Appellant contends that while a state may effect a partial waiver of immunity from tort liability, it may not waive that immunity in such a way as to treat differently persons similarly situated.*fn5 Assuming this to be the rule, we do not find the partial waiver here, in effect a form of classification, to be unreasonable. While the precise question presented here does not seem to have arisen previously,*fn6 we note that the equal protection clause "is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective," McGowan v. Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393 (1961), and that "if the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law." Allied Stores, Inc. v. Bowers, 358 U.S. 522, 527, 79 S. Ct. 437, 441, 3 L. Ed. 2d 480 (1959), quoting from Brown-Forman Co. v. Kentucky, 217 U.S. 563, 573, 30 S. Ct. 578, 54 L. Ed. 883 (1910). Without attempting to enumerate all of the possible reasons or policies which may have prompted the Commonwealth to follow the course indicated by Ewalt and Rader, we think it clear that the classification complained of is not an unreasonable one.
Appellant also makes a due process argument, contending that the application of the turnpike statute in question so as to deny him any redress for the personal injuries received as a result of the negligence of the Pennsylvania Turnpike Commission deprives him of "that fundamental fairness and justice required under the due process clause." Brief, p. 12.
In Palmer v. Ohio, 248 U.S. 32, 39 S. Ct. 16, 63 L. Ed. 108 (1918), plaintiffs sued the State of Ohio for property damage occasioned by the elevation of a spillway of a state-maintained dam. The state courts dismissed the suit on the ground that the state had not consented to be sued, and plaintiffs claimed that in denying them a right to sue, the state had deprived them of due process of law in violation of the Fourteenth Amendment. The case was dismissed because no federal question was presented, the Supreme Court noting that "the right of individuals to sue a State, in either a federal or a state court, cannot be derived from the Constitution or laws of the United States. It can come only from the consent of the State." Id. at 34, 39 S. Ct. at 17. We believe this rule applies whether the Turnpike Commission is immune from suit under the concept of sovereign immunity or whether it is immune from tort liability, under the law of the state, as an instrumentality of the state.*fn7
To appellant's plea that we re-examine the doctrine of governmental immunity from tort liability in light of Pennsylvania's abolition of charitable immunity in Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965), we can only repeat what we said in Jamison v. Pittsburgh, 360 F.2d 162, 163 (1966):
Such a course may be desirable. But it is not now sufficiently foreshadowed in Pennsylvania decisions to justify a federal court applying Pennsylvania law in a diversity case in holding that Pennsylvania law subjects municipalities [here the Turnpike Commission] to liability * * *.*fn8
The order of the district court to dismiss the complaint ...