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MELVIN HEIFETZ AND ARNOLD LEVIT v. PHILADELPHIA STATE HOSPITAL (12/11/75)

decided: December 11, 1975.

MELVIN HEIFETZ AND ARNOLD LEVIT, T/A COMMODORE APARTMENTS, PLAINTIFFS
v.
PHILADELPHIA STATE HOSPITAL, A. S. TORNAY, M.D. AND DANIEL BLAIN, M.D., DEFENDANTS



Original jurisdiction in case of Melvin Heifetz and Arnold Levit, t/a Commodore Apartments v. Philadelphia State Hospital, A. S. Tornay, M.D. and Daniel Blain, M.D.

COUNSEL

Elizabeth M. McKenna, with her John J. O'Brien, Jr., for plaintiffs.

Glenn Gilman, Assistant Attorney General, with him Michael Von Moschzisker, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant, Hospital.

Edwin L. Scherlis, for defendants, Tornay and Blain.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Crumlish, Jr. Judge Kramer joins in this Dissent.

Author: Wilkinson

[ 22 Pa. Commw. Page 326]

This case is an action for indemnity by Melvin Heifetz and Arnold Levit, trading as Commodore Apartments (plaintiffs), against Philadelphia State Hospital, a former superintendent of the institution and a psychiatrist in its employ (defendants). We must dismiss the action.

On June 7, 1974, a judgment in the amount of $175,000.00 was entered against plaintiffs, as defendants in a prior action, for the negligent hiring of one Sonny Daves as a maintenance man at the Commodore Apartments when they knew, or should have known, that Daves was dangerous, immoral and had perverted inclinations. Daves, following his hiring, had sexually assaulted a tenant of plaintiffs' apartment house. At the time of his hiring, Daves had recently been released from defendant Philadelphia State Hospital where he had been treated for approximately one month following civil commitment. While in the hospital, Daves was under the supervision of defendant A. S. Tornay, M.D., a psychiatrist employed by the institution. Defendant Daniel Blain, M.D., was the superintendent of the hospital at the time.

[ 22 Pa. Commw. Page 327]

Plaintiffs brought this indemnity action against the defendants in the Court of Common Pleas of Philadelphia County, alleging defendants were grossly negligent and incompetent and acted without reasonable cause in discharging Daves from the hospital.*fn1 Preliminary objections raising lack of court jurisdiction and in the nature of a demurrer were filed by defendants grounded upon, inter alia, sovereign and conditional immunity. The case has now been transferred to this Court.

Suits may not be brought against the Commonwealth and its agencies without express legislative authorization. Pa. Const. art. I, ยง 11; Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973). Thus, sovereign immunity has been held to protect Philadelphia State Hospital from suits based upon tortious actions. McCoy v. Commonwealth, 9 Pa. Commonwealth Ct. 107, 305 A.2d 746 (1973), aff'd per curiam, 457 Pa. 513, 326 A.2d 396 (1974).

Further, the immunity of the Commonwealth has been extended absolutely to its high public officials acting within the scope of their authority. DuBree v. Commonwealth, 8 Pa. Commonwealth Ct. 567, 303 A.2d 530 (1973). Specifically, the superintendent of Philadelphia State Hospital has been held a high public official and thus absolutely immune ...


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