Marshall lost to Pitt 43-27 in their 2016 game.
PITTSBURGH – A Pennsylvania appeals court has upheld the dismissal of the University of Pittsburgh’s lawsuit against Marshall University over a canceled 2020 football game.
ruling that Marshall, as an arm of the state of West Virginia, cannot be sued in a Pennsylvania court without the state’s consent.
In a unanimous opinion filed Sept. 24, a three-judge panel of the Pennsylvania Superior Court ruling that Marshall, as an arm of the State of West Virginia, cannot be sued in a Pennsylvania court without the state’s consent. The ruling affirmed an Allegheny County judge’s decision to dismiss Pitt’s declaratory judgment action against the Marshall University Board of Governors.
Pitt had asked the court to find that it did not breach a 2014 agreement for a home-and-home football series and did not owe Marshall $1 million in liquidated damages after the scheduled September 2020 game in Huntington, West Virginia, was canceled during the COVID-19 pandemic.
The schools played the first game of the series at Pitt in October 2016. Under the agreement, Pitt was to play Marshall in Huntington in September 2020. Pitt canceled that game amid the pandemic, and the schools were unable to reach an agreement to reschedule it, according to the court.
Marshall then declared that Pitt had breached the contract and demanded that the university either reschedule the game or pay $1 million under the agreement’s liquidated-damages provision.
Pitt sued in Allegheny County Common Pleas Court, seeking a declaration that it was not required to reschedule the game and owed no damages. Marshall responded that the lawsuit was barred by sovereign immunity because it is an arm of the state of West Virginia.
The trial court agreed and dismissed the case with prejudice in September 2025. Pitt appealed.
Judge Christine Donohue Bowes, writing for the Superior Court panel, said Pitt did not dispute that Marshall qualifies as an arm of the West Virginia government. Instead, Pitt argued that West Virginia law recognizes an exception to sovereign immunity for declaratory judgment actions.
The court rejected that argument, concluding that the West Virginia cases cited by Pitt involved West Virginia residents challenging the actions of West Virginia officials in West Virginia courts, generally to obtain interpretations of state law.
“Pitt cannot offer a single instance in which a declaratory judgment exception was applied to hold that a suit seeking the interpretation of a contractual agreement between an arm of West Virginia and a third party, rather than of a West Virginia law, was outside the realm of its sovereign immunity,” Bowes wrote.
The court said the distinction was especially important because Pitt sought to bring the case in Pennsylvania, not West Virginia.
Pitt had provided no authority showing that West Virginia consented to let one of its state entities be sued in another state’s court over contractual rights, the panel said.
“Pitt has failed to establish that West Virginia has unequivocally expressed consent to be sued in Pennsylvania for a declaration of its contractual rights,” Bowes wrote.
The opinion cited the U.S. Supreme Court’s ruling that states generally have immunity from lawsuits in another state’s courts without their consent. Such immunity, the Pennsylvania court said, is an essential part of the constitutional structure governing relations among states.
The panel said West Virginia’s constitution broadly provides that “the state of West Virginia shall never be made defendant in any court of law or equity,” subject to limited exceptions.
While West Virginia courts have allowed certain declaratory judgment cases against state officials, including disputes over whether a tax or statute applies, the Superior Court said those cases do not create a blanket exception allowing a private party to sue a West Virginia state entity in Pennsylvania over a contract.
Marshall had not argued that it would be immune from a declaratory judgment claim brought in a West Virginia court, according to the opinion. But the Pennsylvania court said that question was not before it.
The ruling leaves intact the dismissal of Pitt’s Pennsylvania case and does not decide whether Pitt breached the football agreement or whether Marshall can recover the $1 million it demanded.
A related case still is pending in Cabell Circuit Court in Huntington. The trial in that case begins September 29.
