Original jurisdiction in case of Esther Poklemba, individually and as the Administratrix of the Estate of Stephen F. Poklemba, Esquire, v. Shamokin State General Hospital, Robert Greco, Anne L. Cawthern, Mrs. Neal Little, Helen Wahosky and Quilla Mowery.
Richard F. Stevens, with him Butz, Hudders & Tallman, for plaintiff.
Allen C. Warshaw, Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant, Shamokin State General Hospital.
Christian S. Erb, Jr., with him Metzger, Wickersham, Knauss & Erb, for defendant individuals.
Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.
[ 21 Pa. Commw. Page 303]
Plaintiff, Esther Poklemba, individually, and as Administratrix of the estate of Stephen F. Poklemba, Esquire, has filed wrongful death and survival actions against Shamokin State General Hospital and others. Before this Court are preliminary objections of the defendant Hospital based upon sovereign immunity. We sustain the objections and dismiss the complaint against defendant.
Suits may not be brought against the Commonwealth and its agencies without express legislative consent. Pa. Const. art. I, § 11; Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973). It is undisputed that Shamokin State General Hospital is a creation of the State. See Act of June 13, 1907, P.L. 699, No. 601, as amended, 35 P.S. §§ 221-25. Plaintiff contends, however, under the recent case of Specter v. Commonwealth, Pa. , 341 A.2d 481 (1975), that the Hospital is not an agency of the Commonwealth and thus not able to claim sovereign immunity.*fn1
In Specter, the Pennsylvania Turnpike Commission was found not part of the Commonwealth primarily because the State is explicitly not responsible for any financial obligations of the Commission. Consequently, the Commission could not share in the immunity of the Commonwealth from suit in tort. Specter, however, is inapposite to the instant controversy. Defendant Hospital is, by definition, a State institution within the Pennsylvania Department of Public Welfare and is supported and funded by appropriations to that Department. Act of April 9, 1929, P.L. 177, No. 175, art. II, § 202, as amended,
[ 21 Pa. Commw. Page 30471]
P.S. § 62; Act of June 13, 1967, P.L. 31, No. 21, art. III, §§ 301, 304, 62 P.S. §§ 301, 304. Accordingly, we hold defendant Hospital part of the Commonwealth.
Nevertheless, plaintiff maintains that defendant Hospital still cannot assert sovereign immunity since it is engaged in a "proprietary" rather than a "governmental" activity. Although we do not subscribe to the application of the governmental-proprietary distinction to sovereign immunity cases,*fn2 we conclude contrary to plaintiff.
State-maintained hospitals are measures within the police power of the Commonwealth to protect the public health. Consequently, they are considered purely "governmental" activities. Cf. 18 E. McQuillan, Law of Municipal Corporations § 53.86 (3d rev. ed. F. Ellard 1963); W. L. Prosser, Law of Torts § ...