The opinion of the court was delivered by: COHEN
The question for decision in this case is whether New Jersey and Pennsylvania have waived their sovereign immunity under the Eleventh Amendment by entering into the congressionally sanctioned interstate compact which created the Delaware River Port Authority.
Lorraine Yancoskie commenced this action as administratrix of her husband's estate, on behalf of her son, and in her own right, to recover damages for the death of her husband, which occurred during the course of the construction of a bridge by the defendant. The complaint does not indicate in what capacity the decedent was employed when he allegedly received an electric shock and fell from the bridge. It simply alleges that the decedent's death was the result of defendant's negligence. From a reading of the complaint, it would appear that plaintiff would have this court exercise its jurisdiction pursuant to 28 U.S.C. § 1332. Defendant, Delaware River Port Authority, moves to dismiss the complaint for lack of jurisdiction, and for failure to state a claim upon which relief can be granted.
The Authority makes three arguments in support of its motion. First, it maintains that the Authority is not a "citizen" within the meaning of 28 U.S.C. § 1332.
It contends that under the law of Pennsylvania it is considered the "alter ego" of the state. It is well settled that neither a state, nor its "alter ego," is a "citizen" within the meaning of § 1332. See Moor v. County of Alameda, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973).
The second argument posited by the Authority is that it is a "public corporate instrumentality of the Commonwealth of Pennsylvania and the State of New Jersey." N.J.S.A. § 32:3-2; 36 P.S. § 3503.
The Authority's third contention is couched in the form of a motion to dismiss for failure to state a claim upon which relief can be granted. Assuming this court has jurisdiction, the Authority claims that it is cloaked with sovereign immunity under the aegis of Pennsylvania law.
This court need not decide the questions of whether the Authority is a "citizen" within the meaning of § 1332, or whether diversity of citizenship exists between plaintiff, a Pennsylvania citizen, and the Authority, a corporate citizen of both Pennsylvania and New Jersey. We have concluded that there is yet another jurisdictional base upon which this court may act. The Delaware River Port Authority was created pursuant to the Compact Clause of the Constitution, Art. I, § 10, Cl. 3,
and approved by Congress. 49 Stat. 1058. The construction of an interstate compact approved by Congress presents a federal question. Petty v. Tennessee-Missouri Comm'n, 359 U.S. 275, 79 S. Ct. 785, 3 L. Ed. 2d 804 (1959); Delaware River Comm'n v. Colburn, 310 U.S. 419, 60 S. Ct. 1039, 84 L. Ed. 1287 (1940). The facts of the Petty case are strikingly similar to those present here. Petty also involved a joint state bridge commission created pursuant to the Compact Clause and the question before the court was whether the Compact constituted a waiver of the Eleventh Amendment immunity of the contracting states.
The Court in Petty provided some indication as to what law governed the interpretation of compacts such as the one involved here:
"The construction of a compact sanctioned by Congress under Art. I, § 10, Cl. 3 of the Constitution presents a federal question (citation omitted). Moreover, the meaning of a compact is a question on which this Court has the final say (citation omitted). The rule is no different when the contention is that a State has, by compact, waived its immunity from suit . . . [Where] the waiver is, as here, claimed to arise from a compact between several States, the Court is called on to interpret not unilateral state action but the terms of a consensual agreement, the meaning of which, because made by different States acting under the Constitution and with congressional approval, is a question of federal law." 359 U.S. at 278, 79 S. Ct. at 788.
In a footnote the Court indicated that:
"While we show deference to state law in construing a compact, state law as pronounced in prior adjudications and rulings is not binding." 359 U.S. at 278, n. 4, 79 S. Ct. at 788.
State law, therefore, may be consulted; however, it does not necessarily govern the result.
In Petty, supra, Justices Black, Clark, and Stewart concurred in the judgment of the Court "with the understanding that we do not reach the constitutional question as to whether the Eleventh Amendment immunizes from suit agencies created by two or more States under state compacts which the Constitution requires to be approved by the Congress." ...