: 
: 
: 
: 
: 
: 
: 
: 
: 
: 

J-S37005-22  

CEDRIC GALETTE 

 

v. 

2023 PA SUPER 46 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

J TRANSIT AND JULIE E. MCCREY 

PPEAL OF: NJ TRANSIT 

 

 No. 2210 EDA 2021 

Appeal from the Order Entered September 27, 2021 
In the Court of Common Pleas of Philadelphia County Civil Division at 
No(s):  2008000610 

EFORE:  BOWES, J., LAZARUS, J., and OLSON, J. 

OPINION BY BOWES, J.: 

 

 

 

      FILED MARCH 21, 2023 

New 

Jersey  Transit  Corporation 

(“NJ  Transit”)  appeals 

the 

September 27, 2021 denial of its motion to dismiss the negligence claims of 

Cedric Galette pursuant to the doctrine of sovereign immunity.  We affirm. 

This  controversy  stems  from  an  August  9,  2018  incident  wherein  a 

collision occurred between a bus owned and operated by NJ Transit and the 

personal  vehicle  of  Julie  McCrey  in  Philadelphia,  Pennsylvania.    Mr.  Galette 

was a passenger in Ms. McCrey’s vehicle and suffered various physical injuries 

as a result of the collision.  He timely commenced this civil action by filing a 

praecipe for a writ  of summons on August  7, 2020, and,  ultimately, served 

both  Ms.  McCrey  and  NJ  Transit.    Thereafter,  Mr.  Galette  filed  a  complaint 

containing  claims  sounding  in  negligence  against  both  Ms.  McCrey  and  NJ 

     

    N

    A

 

 

  B

 

 

  

Transit.1  NJ Transit filed an answer with a new matter alleging, inter alia, that 

it  was  an  “arm”  of  the  State  of  New  Jersey  and  that  Mr.  Galette’s  claims 

against it  were barred by the doctrine of sovereign immunity.   See Answer 

and New Matter, 6/15/21, at ¶ 28 (“NJ Transit and its subsidiary, NJ Transit 

Bus Operations, Inc., are arms of the State of New Jersey and are protected 

by  the  [s]tate[-]afforded  governmental  and  sovereign  immunities  and,  as 

such,  [Mr.  Galette’s  c]omplaint  is  barred  and  must  be  dismissed.”).  

Thereafter,  NJ  Transit  filed  a  motion  to  dismiss  reiterating  this  particular 

claim.2  Mr. Galette filed a response opposing NJ Transit’s arguments. 

On  September  27,  2021,  the  trial  court  denied  NJ  Transit’s  motion  to 

dismiss.  On October 25, 2021, NJ Transit filed a timely notice of appeal to 

this Court.  The trial court did not direct NJ Transit to file a concise statement 

of errors pursuant to Pa.R.A.P. 1925(b) and none was filed.  Nonetheless, the 

trial  court  submitted  a  Rule  1925(a)  opinion  expressing  its  belief  that  NJ 

Transit’s appeal was improper and interlocutory pursuant to Pa.R.A.P. 311(b) 

(requiring a party to take certain actions to take an immediate appeal from 

an  order  sustaining  venue,  or  personal  or  in  rem  jurisdiction).    NJ  Transit 

submits that the order was collateral and immediately appealable. 

1  Although Ms. McCrey is listed as an appellee in this proceeding, she has not 
participated in this matter.  Accordingly, we will not discuss her further. 

    It  is  well-established  that  “a  defense  of  governmental  immunity  is  an 
absolute defense and is non-waivable,” thus, “it may be raised at any time[.]”  
Snead v. Society for Prevention of Cruelty to Animals of Pennsylvania, 
929 A.2d 1169, 1178 n.10 (Pa.Super. 2007). 

  2

____________________________________________ 

- 2 - 

J-S37005-22 

1.  Is  the  order  denying  NJ  Transit’s  motion  to  dismiss  on  its 
defense  of  state  sovereign  immunity  an  appealable  collateral 
order? 

.  Did  the  trial  court  err,  as  a  matter  of  law,  in  denying  NJ 
Transit’s  motion  to  dismiss  for  lack  of  jurisdiction  where  NJ 
Transit,  a  foreign  state  entity,  did  not  provide  consent  to  be 
sued in another state and rightfully asserted its state sovereign 
immunity protections under the United States Constitution? 

 

  2

 

NJ Transit has raised the following claims for our consideration: 

J Transit’s brief at 4 (cleaned up; issues reordered for ease of disposition). 

We  begin  our  analysis  by  assessing  whether  the  trial  court’s 

  N

 

September 27,  2021  order  is  an  appealable,  collateral  order  pursuant  to 

Pennsylvania Rule of Appellate Procedure 313.  The appealability of an order 

pursuant to the collateral order doctrine is a question of law, over which our 

standard of review is de novo and our scope of review is plenary.  See Brooks 

v. Ewing Cole, Inc., 259 A.3d 359, 365 (Pa. 2021). 

Rule  313  provides  that  “[a]n  appeal  may  be  taken  as  of  right  from  a 

collateral order of a trial court or other government unit.”  Pa.R.A.P. 313(a).  

Thus, the collateral order doctrine is a “specialized, practical application of the 

general  rule  that  only  final  orders  are  appealable  as  of  right.”    Price  v. 

Simakas  Co.,  Inc.,  133  A.3d  751,  755  (Pa.Super.  2016).    An  order  is 

considered “final and appealable” under the collateral order doctrine if:  (1) it 

is  separable  from  and  collateral  to  the  main  cause  of  action;  (2)  the  right 

involved is too important to be denied review; and (3) the question presented 

is such that if review is postponed until final judgment in the case, the claimed 

- 3 - 

J-S37005-22 

J-S37005-22 

right will be irreparably lost.  See Brooks, supra at 370; Pa.R.A.P. 313(b) 

(same).  If an order satisfies this test, then “an appellate court may exercise 

jurisdiction even though the order is not final.  If the test is not met, however, 

and  in  the  absence  of  another  exception  to  the  final  order  rule,  there  is  no 

jurisdiction to consider an appeal of such an order.”  Brooks, supra at 370. 

 

In Brooks, our Supreme Court addressed whether a decision denying a 

governmental party’s assertion of the sovereign immunity defense meets the 

collateral order doctrine.  Therein, the High Court concluded that a claim of 

sovereign immunity is: (1) “separable” from civil claims of negligence since it 

presents  a  “purely  legal  question”  that  can  be  resolved  without  “an 

examination  of  the  merits  of  [the  plaintiff’s]  negligence  claims;”  (2)  “is  too 

important to evade review before final judgment;” and (3) “irreparably lost if 

appellate review of an adverse decision on sovereign immunity is postponed 

until after final judgment.”  Id. at 371-73.  Accordingly, it found that an order 

denying  a  party’s  petition  for  relief  pursuant  to  the  sovereign  immunity 

doctrine was a collateral order that was immediately appealable  as of right.  

Id. at 373 (“Subjecting a governmental entity, which claims it is immune, to 

the legal process undermines the purposes of sovereign immunity.”). 

Pursuant to Brooks, we find that the September 27, 2021 order denying 

NJ  Transit’s  motion  to  dismiss  is  a  collateral  order  that  was  immediately 

appealable as of right.  Accordingly, our jurisdiction over this appeal is proper 

pursuant to Rule 313.  Thus, we proceed to the merits. 

- 4 - 

J-S37005-22 

 

In its substantive claim for relief, NJ Transit asserts the trial court erred 

in declining to dismiss based upon sovereign immunity.  See Appellant’s brief 

at 9 (“[NJ Transit] is an arm of the State of New Jersey who was hauled into 

a foreign [s]tate court without its consent.”).   Our  standard of review is  de 

novo, and our scope of review is plenary.  See Goldman v. Southeastern 

Pennsylvania Transp. Authority, 57 A.3d 1154, 1170 (Pa. 2012).   

Sovereign immunity is a venerable legal doctrine that has its origins in 

the old adage of the English common law that “the Crown could not be sued 

without  consent  in  its  own  courts.”    Alden  v.  Maine,  527  U.S.  706,  715 

(1999).  After examining the relevant history and case law, the United States 

Supreme Court has concluded that this general legal principle was “universal” 

in terms of its recognition at the time that the United States Constitution was 

“drafted and ratified.”  Id. at 716.  Specifically, the Court has recognized that 

the historical circumstances of the passage of the Eleventh Amendment clearly 

evince  an  intent  “to  preserve  the  States'  traditional  immunity  from  private 

suits.”  See id. at 724; see also U.S. CONST., Amend XI (“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.”).  

Specifically, “[t]he Eleventh Amendment confirmed that the [United States] 

Constitution was not meant to raise up any suits against the States that were 

anomalous and unheard of when the Constitution was adopted.”  Franchise 

- 5 - 

J-S37005-22 

Tax  Board  of  California  v.  Hyatt,  139  S.Ct.  1485,  1496  (2019)  (cleaned 

up).    However,  the  Court  has  also  emphasized  that  “the  bare  text  of  the 

Amendment  is  not  an  exhaustive  description  of  the  States’  constitutional 

immunity from suit.”  Alden, supra at 736. 

Sovereign  immunity  often  arises  in  the  context  of  interstate  lawsuits.  

In  the  landmark  ruling  of  Nevada  v.  Hall,  440  U.S.  410  (1979),  the  High 

Court  held  that  the  question  of  “any  one  State’s  immunity  from  suit  in  the 

courts  of  another  State”  was  “a  matter  of  comity.”    Thus,  it  was  not 

automatically incumbent upon one State to recognize the sovereign immunity 

of another State.  See also Flamer v. New Jersey Transit Bus Operations, 

Inc.,  607  A.2d  260,  262  (Pa.Super.  1992)  (citing  Hall,  supra  at  425) 

(“[W]hether one [S]tate is required to accord sovereign immunity in its courts 

to another [S]tate is purely a question of comity and is not a constitutional 

mandate.”).   

In Hyatt, the Court revisited and explicitly overruled Hall: 

Interstate sovereign immunity is . . . integral to the structure of 
the Constitution.   Like a dispute over borders or water rights, a 
State’s  assertion  of  compulsory  judicial  process  over  another 
State  involves  a  direct  conflict  between  sovereigns.    The 
Constitution implicitly strips States of any power they once had to 
refuse each other sovereign immunity, just as it denies them the 
power  to resolve border disputes by political means.   Interstate 
immunity, in other words, is implied as an essential component of 
federalism. 

Hall] is irreconcilable with our constitutional structure and with 
the  historical  evidence  showing  a  widespread  preratification 

- 6 - 

. . . . 

   

  [

understanding that States retained immunity from private suits, 
both  in  their  courts  and  in  other  courts.    We  therefore  overrule 
that decision. 

yatt,  supra  at  1497-99.    Thus,  Hall  no  longer  animates  the  contours  of 

  H

sovereign immunity and “States retain their sovereign immunity from private 

suits brought in the courts of other States.”3  Id. at 1492. 

Although the State of New Jersey is not directly named as a defendant 

in  this  matter,  it  is  well-established  that  sovereign  immunity  extends  to 

“entities which are agents or instrumentalities of the [S]tate such that a suit 

brought against them would be, for all practical purposes, a suit against the 

[S]tate  itself.”    Goldman,  supra  at  1171.    NJ  Transit  maintains  it  is  an 

instrumentality of the State of New Jersey.  See Appellant’s brief at 10-14.   

At a basic level, the determination of whether a particular entity qualifies 

as an alter ego of a State for the purposes of sovereign immunity is a question 

of federal law that concomitantly relies upon a searching examination of state 

law  provisions.    See  Goldman,  supra  at  1173.    Interpreting  the  relevant 

precedents of the  United  States Supreme Court, the Pennsylvania  Supreme 

Court has distilled this inquiry into six factors of “equal importance,” namely:  

(1)  the  legal  classification  and  description  of  the  entity  within  the 

governmental structure of the State, both statutorily and under its caselaw; 

____________________________________________ 

3    The  holding  in  Franchise  Tax  Board  of  California  v.  Hyatt,  139  S.Ct. 
1485 (2019) did not include any discussion of the determinative issue in the 
instant appeal, i.e., whether a particular entity qualifies as an instrumentality 
of a State for the purposes of sovereign immunity. 

- 7 - 

J-S37005-22 

J-S37005-22 

(2) the degree of control the State exercises over the entity; (3) the extent to 

which the entity may independently raise revenue; (4) the extent to which the 

State provides funding to the entity; (5) whether the monetary obligations of 

the entity are binding upon the  State; and (6) whether the core function of 

the entity is normally performed by the State.  See id. at 1179. 

Rather  than  discuss  Pennsylvania  law,  however,  NJ  Transit  has  relied 

entirely  upon  the  jurisprudence  of  the  U.S.  Court  of  Appeals  for  the  Third 

Circuit,  which  has  previously  concluded  that  NJ  Transit  qualifies  as  an 

instrumentality  of  the  State  of  New  Jersey  for  the  purposes  of  sovereign 

immunity under its own three-part test.4  See Karns v. Shanahan, 879 F.3d 

504, 513 (3d Cir. 2018).  It is well-established that the holdings of the Third 

Circuit are not binding upon this Court, even in the context of a question of 

federal law.5  See Werner v. Plater-Zyberk, 799 A.2d 776, 782 (Pa.Super. 

2002)  (“[A]bsent  a  United  States  Supreme  Court  pronouncement,  the 

decisions of federal courts are not binding on Pennsylvania state courts, even 

when  a  federal  question  is  involved.”).    Rather,  such  decisions  have  only 

4  Specifically, the Third Circuit examines the following factors in determining 
whether an entity qualifies as an alter ego of state government: “(1) whether 
the payment of the judgment would come from the state; (2) what status the 
entity has under state law; and (3) what degree of autonomy the entity has.”  
Karns v. Shanahan, 879 F.3d 504, 513 (3d Cir. 2018). 

  Our Supreme Court has rejected identical attempts to render Third Circuit 
jurisprudence  controlling  in  this  context.    See  Goldman  v.  Southeastern 
Pennsylvania Transp. Authority, 57 A.3d 1154, 1169 n.12 (Pa. 2012). 

  5

____________________________________________ 

- 8 - 

J-S37005-22 

persuasive  value.    See  Chiropractic  Nutritional  Associates,  Inc.  v. 

Empire Blue Cross and Blue Shield, 669 A.2d 975, 980 (Pa.Super. 1995).  

NJ Transit is mistaken to the extent it suggests Karns or other holdings from 

the  Third  Circuit  controls  the  result  here.    Nonetheless,  Karn  does  offer 

significant  clarification  as  to  the  issues  at  play  and  we  considered  it  for  its 

proper persuasive value. 

The first element in Pennsylvania’s six-part test entails an examination 

of NJ Transit’s status under New Jersey law, which clearly evinces support for 

the conclusion that it should be considered an instrumentality of the State of 

New Jersey.  See N.J.S.A. § 27:25-4 (“[NJ Transit] is hereby constituted as 

an instrumentality of the State exercising public and essential governmental 

functions, and the exercise by [NJ Transit] of the powers conferred by this act 

shall  be  deemed  and  held  to  be  an  essential  governmental  function  of  the 

State.”).    Similarly,  the  second  factor  regarding  relative  autonomy  is  also 

supportive  of  a  finding  that  NJ  Transit  is  an  alter  ego  of  the  State’s 

government.    See  Karns,  supra  at  518  (reviewing  New  Jersey  statutes  to 

document  the  “operational  constraints”  placed  upon  NJ  Transit  by  the  state 

government, which controls the appointment of its governing board, reviews 

and audits its expenditures, and possesses veto power over actions taken by 

its board and certain acquisitions).  Finally, the sixth factor also supports the 

same  conclusion,  as  NJ  Transit’s  activities  are  explicitly  identified  as  an 

“essential governmental function” of New Jersey.  See N.J.S.A. § 27:25-4. 

- 9 - 

J-S37005-22 

By contrast, however, the remaining three factors augur in favor of the 

opposite conclusion.  Specifically, NJ Transit is independently empowered to 

raise revenue through several different avenues.  See N.J.S.A. § 27:25-5(k), 

(n)-(o) (providing NJ Transit may generate revenue through the disposition of 

“real and personal property,” by setting and collecting fares, rentals, fees, and 

other  charges,  and/or  by  depositing  corporate  revenues  in  interest-bearing 

accounts).    Moreover,  NJ  Transit  is  funded  from  a  “combination  of  federal, 

state, and local funds,” such that “it is not entirely reliant on state funds[.]”  

Karns,  supra  at  516.    Finally,  New  Jersey  law  provides  that  “[n]o  debt  or 

liability of the corporation shall be deemed or construed to create or constitute 

a  debt,  liability,  or  a  loan  or  pledge  of  the  credit  of  the  State.”    N.J.S.A. 

§ 27:25-17.  Accordingly, “the [S]tate is under no legal or other obligation to 

pay  NJ  Transit’s  debts  or  to  reimburse  NJ  Transit  for  any  judgments  that  it 

pays.”  Karns, supra at 516.  Thus, the third, fourth, and fifth factors do not 

support NJ Transit’s alleged status as an instrumentality of New Jersey. 

Where, as here, the six-factor test is not dispositive, we must reach a 

conclusion  by inquiring as  to whether  allowing NJ Transit  to be sued  in this 

particular  manner  would “thwart  the two principal purposes of the Eleventh 

Amendment,” namely, “the protection of [New Jersey’s] dignity as a sovereign 

[S]tate  and  the  protection  of  [New  Jersey’s  treasury]  against  involuntary 

depletion from suits brought by private persons.”  Goldman, supra at 1181.  

In this context, we are “mindful” that “state dignity is the paramount purpose 

- 10 - 

J-S37005-22 

of the Eleventh Amendment.”  Id. at 1182 (citing Federal Maritime Comm’n 

v. South Carolina State Ports Authority, 535 U.S. 743, 769 (2002)). 

 

Goldman is highly instructive on the merits of these related points of 

inquiry.    Therein,  the  Pennsylvania  Supreme  Court  considered  whether  it 

would offend the dignity or the finances of the Commonwealth to permit the 

Southeastern Pennsylvania Transportation Authority (“SEPTA”) to be sued in 

a  Pennsylvania  state  court  pursuant  to  the  Federal  Employees  Liability  Act 

(“FELA”).6  Ultimately, the Court found a lawsuit naming SEPTA as a defendant 

would not offend Pennsylvania’s sovereign dignity, reasoning as follows: 

the 

legislature  of 

In such a suit, the Commonwealth is not a named defendant, as 
SEPTA  has  been  designated  by 
the 
Commonwealth as a distinct legal entity with the power to sue and 
be sued in its own capacity.  Thus, it is not any purported negligent 
act of the Commonwealth at issue in a suit, but, rather, the alleged 
negligent act of SEPTA itself.  Neither can the Commonwealth be 
joined  as  a  defendant  in  any  action  against  SEPTA  since  the 
Commonwealth has specifically repudiated any legal responsibility 
for  obligations  incurred  by  SEPTA;  hence,  having  explicitly 
disclaimed  all responsibility  for any  financial liability  incurred by 
SEPTA,  it  may  not  be  joined  in  a  suit  against  SEPTA  under  our 
rules  of  civil  procedure.    See  Pa.R.C.P.  1076.1,  2252(a)(1),  (4) 
(allowing joinder by plaintiff or defendant in a civil action of only 
those parties which are solely liable to the plaintiff, liable to the 
joining party, or jointly or severally liable with the joining party on 
the plaintiff’s cause of action).  Further, the Commonwealth does 
not enter its appearance to defend a suit on SEPTA’s behalf, and 
it does not otherwise participate in the litigation, as the legislature 
has explicitly placed the responsibility on SEPTA to manage all of 
its own legal affairs, which responsibility includes the defense of 

____________________________________________ 

6  While Goldman was an intrastate legal dispute, it directly adjudicates the 
salient  issue  of  whether  an  entity  should  be  considered  an  “arm”  of  state 
government for the purposes of sovereign immunity under federal law. 

- 11 - 

any  suits  against  it.    In  sum,  then,  SEPTA  bears  the  sole  and 
exclusive burden of any litigation against it in our state courts. 

the 

entity  without 

ecause  a  suit  against  SEPTA  in  the  courts  of  common  pleas  of 
this Commonwealth proceeds against  SEPTA, alone, as a  wholly 
independent 
the 
Commonwealth, the Commonwealth cannot, therefore, be subject 
to any decree or order of court as the result of such a suit.  Thus, 
no right or interest of the Commonwealth will be affected by the 
outcome of a suit against SEPTA in our Commonwealth’s courts, 
and  so  a  suit  poses  no  danger  that  the  Commonwealth  will  be 
involuntarily subject to and controlled by the mandates of judicial 
tribunals, without its consent, at the instance of private parties. 

involvement 

of 

  B

oldman, supra at 1183-84 (cleaned up). 

We find the particulars of NJ Transit’s status with respect to the State 

of  New  Jersey  to  be  in  complete  parity  with  this  analysis.    NJ  Transit  is  a 

distinct legal entity that is empowered to sue, and be sued, in a capacity that 

is independent from the State.  See N.J.S.A. §§ 27:25-4(a), 27:25-5(a).  To 

that end, NJ Transit is authorized “[t]o employ and retain legal counsel” at its 

own  discretion  and,  thereby,  manage  its  own  legal  affairs.    See  N.J.S.A. 

§ 27:25-5(z).    New  Jersey  has  also  disclaimed  any  and  all  financial 

responsibility as to the liabilities of NJ Transit.  See N.J.S.A. § 27:25-17.   

We discern no risk to the sovereign dignity of New Jersey in permitting 

a suit against NJ Transit to proceed.  For the purposes of such legal disputes, 

it seems beyond cavil that NJ Transit operates as a “wholly independent entity” 

that cannot bind the State of New Jersey  or otherwise place it in a position 

where  it  will  be  “subject  to  and  controlled  by  the  mandates  of  judicial 

tribunals,” without its consent, “at the instance of private parties.”  Goldman, 

  G

 

J-S37005-22 

- 12 - 

J-S37005-22 

supra  at  1183.    Thus,  the  paramount  consideration  of  the  Eleventh 

Amendment  does  not  support  a  finding  that  NJ  Transit  is  a  state 

instrumentality for the purposes of sovereign immunity.  See id. at 1183-84. 

 

Likewise,  we  also  find  that  any  potential  judgment  against  NJ  Transit 

would have no discernible impact upon the New Jersey treasury.  While such 

an inquiry cannot be reduced to a formalistic assessment of “ultimate financial 

responsibility,”  the  “controlling  question  is  whether  [the  State]  would  be 

legally liable to pay” if a bevy of legal claims overwhelmed NJ Transit’s ability 

to pay.  Goldman, supra at 1184 (emphasis in original) (citing Regents of 

the  Univ.  of  California  v.  Doe,  519  U.S.  425,  431-32  (1997)).  

Comparatively,  “the  mere  prospect  that  a  [S]tate  might  render  financial 

assistance to cover an unforeseen budgetary shortfall of an entity it created 

does  not  create  a  legal  obligation  of  the  [S]tate  to  pay.”    Id.  at  1184 

(emphasis in original) (citing Hess v. Port Auth. Trans-Hudson Corp., 513 

U.S. 30, 43-44 (1994)).  Overall, New Jersey bears no culpability with respect 

to the financial liabilities of NJ Transit.  See N.J.S.A. § 27:25-17.  Accordingly, 

this  secondary  factor  also  supports  a  conclusion  that  NJ  Transit  is  not  an 

instrumentality of the State of New Jersey. 

 

Based on the foregoing analysis, we discern  that Mr. Galette’s lawsuit 

poses no threat to either the sovereign dignity or the state treasury of New 

Jersey.  Accordingly, we conclude that NJ Transit is not an arm of the State of 

- 13 - 

New  Jersey  and,  thus,  it  is  not  entitled  to  the  protections  of  sovereign 

immunity which it has asserted.  See Goldman, supra at 1185. 

Order affirmed. 

Judgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/21/2023 

 

     

    J

  D

 

J-S37005-22 

- 14 -