Can You Sue the Commonwealth of Pennsylvania for Wrongful Death Damages ?

In Tork-Hiis v. Commonwealth, 558 Pa. 170, 735 A.2d 1256 (1999), the plaintiffs initiated a wrongful death and survivor action against the "Commonwealth of Pennsylvania" and two "John Doe" defendants after their parents died while cross-country skiing in a state park. The Commonwealth preliminarily objected on the grounds that it was immune from damages; that the plaintiffs had failed to name a "Commonwealth party" for which immunity had been waived; and that the statute of limitations precluded amendment of the complaint. The trial court determined that the Commonwealth agency must be identified in the pleading as a defendant before the statute of limitations had expired. The Court reversed, holding that the substitution or addition of a Commonwealth agency was permissible, even after the statute of limitations had expired, so long as the same assets were exposed to judgment before and after the amendment. Tork-Hiis v. Commonwealth, 714 A.2d 518 (Pa. Cmwlth. 1998). The Pennsylvania Supreme Court rejected this analysis, concluding that "the assets of the Commonwealth are not the same as the assets of any of its agencies." Tork-Hiis, 558 Pa. at 177, 735 A.2d at 1259. It explained that the proper inquiry is whether the correct party was sued but under a wrong designation--in which event the amendment is permissible--or whether the wrong party was sued and the amendment will have the effect of substituting another party for the one originally named. Tork-Hiis, 558 Pa. at 175-176, 735 A.2d at 1258 (citing to Gozdonovic). The Supreme Court observed that the General Assembly has waived sovereign immunity "for a Commonwealth party," which is a "Commonwealth agency and any employee thereof...." 42 Pa. C.S. 8501. The Supreme Court also observed that naming only the "Commonwealth" as defendant, instead of the appropriate agency, would cause significant hardship: The aggrieved party's counsel would be under no compulsion to act with due diligence in determining the correct party, regardless of the fact that the correct party would have neither notice of the suit nor repose from it. Tork-Hiis, 558 Pa. at 176, 735 A.2d at 1259. Thus, the Supreme Court held that citing a specific Commonwealth agency in place of "Commonwealth" after the statute of limitations had run "amounts to the addition of a new party and not merely the correction of a captioned party name." Tork-Hiis, 558 Pa. at 174-175, 735 A.2d at 1258.