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GAIL FREACH v. COMMONWEALTH PENNSYLVANIA PENNSYLVANIA DEPARTMENT WELFARE FARVIEW STATE HOSPITAL PENNSYLVANIA BOARD PROBATION AND PAROLE PENNSYLVANIA BUREAU CORRECTION (03/04/76)

decided: March 4, 1976.

GAIL FREACH, ADMINISTRATRIX OF THE ESTATE OF PAUL J. FREACH, DECEASED; PAUL FREACH AND GAIL FREACH; DOROTHY KEEN, ADMINISTRATRIX OF THE ESTATE OF EDMUND J. KEEN, DECEASED; EDMUND KEEN AND DOROTHY KEEN, PLAINTIFFS
v.
COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA DEPARTMENT OF WELFARE; FARVIEW STATE HOSPITAL; PENNSYLVANIA BOARD OF PROBATION AND PAROLE; PENNSYLVANIA BUREAU OF CORRECTION, DEFENDANTS. GAIL FREACH, ADMINISTRATRIX OF THE ESTATE OF PAUL J. FREACH, DECEASED; PAUL FREACH AND GAIL FREACH; DOROTHY KEEN, ADMINISTRATRIX OF THE ESTATE OF EDMUND J. KEEN, DECEASED; EDMUND KEEN AND DOROTHY KEEN, PLAINTIFFS V. JOHN P. SHOVLIN; JOHN J. BURKE; J. HAROLD HUGHES; STEPHEN J. MCEWEN, JR.; TIM SPIZER; M. H. TRUAX; TED DENSHAM; E. J. MCCANN; CHARLES F. GENTER; BERNARD J. WILLIS; WILLIAM H. HORAN; AMBROSE V. LUPCHO; JOSEPH F. COMERFORD; PHILIP POWELL; JOSEPH B. RADDIN; GERALD STANVICH; PAUL FARRELL; FRANK WALSH; MR. GLAUGHLIN; MR. CADULLO; MR. FITZGERALD; JOHN MCCRONE; AL PETRUCCI; CITY OF SCRANTON; WILLIAM RUSSELL; KENNETH OPRISKO; NORTHEAST VECTOR CONTROL ASSN.; JOHN DOE; RICHARD DOE; JOSEPH DOE; MARY DOE; ANN DOE; JANE DOE; AND WILLIAM WRIGHT, DEFENDANTS



Original jurisdiction in cases of Gail Freach, Administratrix of the Estate of Paul J. Freach, Deceased; Paul Freach and Gail Freach; Dorothy Keen, Administratrix of the Estate of Edmund J. Keen, Deceased; Edmund Keen and Dorothy Keen v. Commonwealth of Pennsylvania; Pennsylvania Department of Welfare; Farview State Hospital; Pennsylvania Board of Probation and Parole; Pennsylvania Bureau of Corrections; and Gail Freach, Administratrix of the Estate of Paul J. Freach, Deceased; Paul Freach and Gail Freach; Dorothy Keen, Administratrix of the Estate of Edmund J. Keen, Deceased; Edmund Keen and Dorothy Keen, v. John P. Shovlin; John J. Burke; J. Harold Hughes, Stephen J. McEwen, Jr.; Tim Spicer; M. H. Truax; Ted Densham; E. J. McCann; Charles F. Genter; Bernard J. Willis; William H. Horan; Ambrose V. Lupcho; Joseph F. Comerford; Philip Powell; Joseph B. Raddin; Gerald Stanvich; Paul Farrell; Frank Walsh; Mr. Glaughlin; Mr. Cadullo; Mr. Fitzgerald; John McCrone; Al Petrucci; City of Scranton; William Russell; Kenneth Oprisko; Northeast Vector Control Assn.; Joe Doe; Richard Doe; Joseph Doe; Mary Doe; Ann Doe; Jane Doe; and William Wright.

COUNSEL

John E. V. Pieski, with him John P. Pesota, for plaintiffs.

Norman J. Watkins, Deputy Attorney General, Joseph Goldberg, Assistant Attorney General, Cody H. Brooks, Christian S. Erb. Jr., with them Beverly A. Nelson, Deputy Attorney General, Lawrence Silver, Deputy Attorney General, Robert P. Kane, Attorney General, Edwin L. Scherlis; Frank & Margolis; Henkelman, McMenamin, Kreder & O'Connell, for defendants.

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

Author: Wilkinson

[ 23 Pa. Commw. Page 549]

This decision concerns two trespass actions within our original jurisdiction arising out of the sexual assault and killing of two minors, Paul J. Freach and Edmund J. Keen, in Scranton on November 1, 1973, alleged to have been committed by one William Wright. Almost ten years earlier, on January 28, 1964, the Court of Common Pleas of Delaware County found Wright to be mentally ill and of criminal tendency and ordered him committed to Farview State Hospital for treatment until further order of court. At the time, the State Board of Probation and Parole had also filed a warrant with the hospital to commit and retain Wright for a parole violation subject to further Board order.*fn1 However, on June 15, 1973, Wright was released from Farview on a long-term leave of absence, with all supervision and treatment being terminated in August of 1973. Wright lived and worked in the Scranton area, being employed by Northeast Vector Control Association, a nonprofit organization, and also by the City of Scranton as a special policeman and patrolman for which position he was issued a badge. He also managed to gain possession of a .25 caliber pistol. It is contended that Wright utilized the badge, the police

[ 23 Pa. Commw. Page 550]

    powers conferred upon him, his employment, and the pistol to allegedly attack and slay the minor decedents.

Plaintiffs, as parents and representatives of the estates of the minor decedents, have filed two complaints in trespass at Nos. 1411 and 1412 C.D. 1974, against the Commonwealth, certain of its agencies, officials and employees, and against others,*fn2 averring that they wrongfully allowed Wright the opportunity to acquire and retain the badge, police powers, employment, and pistol, thereby proximately causing the assault and death of the minor decedents. Specifically, plaintiffs allege that defendants knew, or should have known, of the extreme mental instability and criminal propensity of Wright, particularly toward children,*fn3 and of the outstanding court order and Board of Probation and Parole detainer precluding his release from Farview until further orders by those bodies; and that despite such knowledge, defendants did one or more of the following: permitted the continued release of Wright from confinement, failed to properly transmit information and warnings regarding his prior legal and medical status, failed to provide and terminated proper supervision and control over him, and failed to render

[ 23 Pa. Commw. Page 551]

    and terminated proper treatment of his mental infirmities.

Presently before this Court are preliminary objections of the Commonwealth, its agencies, officials and employees, grounded upon sovereign, absolute and conditional immunity. Also before us are preliminary objections of Northeast Vector Control Association and two of its employees, named as defendants herein, challenging this Court's jurisdiction over entities and individuals not agencies or officers of the Commonwealth.

Initially we reject plaintiffs' contention that Section 603 of the Mental Health and Mental Retardation Act of 1966, Act of October 20, 1966, Special Sess. No. 3, P.L. 96, as amended, 50 P.S. § 4603,*fn4 constitutes a waiver of immunity from tort liability enjoyed by the Commonwealth, its officials and employees. We recently declined an identical argument in Heifetz v. Philadelphia State Hospital, 22 Pa. Commonwealth Ct. 325, 348 A.2d 455 (1975), and need not repeat our rationale. Thus, immunity is properly raised in the instant controversy.

As to the Commonwealth, the Department of Welfare, Farview State Hospital, the Board of Probation and Parole, and the Bureau of Correction, we are required to sustain their preliminary objections. Pa. Const. art. I, § 11; Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973); 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). The complaint against them must, therefore, be dismissed.

As to defendants Burke, McEwen, and Hughes, who are alleged to have acted at all ...


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