Original jurisdiction in case of Mary Hoolick, a Retarded Citizen, by her Parent and Legal Guardian, John Hoolick, et al. v. Retreat State Hospital; Department of Public Welfare; Frank Beal, Secretary, Department of Public Welfare; George Giddins, Acting Superintendent, Retreat State Hospital; Commonwealth of Pennsylvania; and Milton J. Shapp, Governor, Commonwealth of Pennsylvania.
Richard Kirschner, with him Neal Goldstein, Miriam L. Gafni, and Markowitz & Kirschner, for plaintiffs.
Allen C. Warshaw, Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendants.
President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr., did not participate. Opinion by President Judge Bowman.
[ 24 Pa. Commw. Page 219]
Plaintiff, a patient at Retreat State Hospital, acting through her legal guardian and on behalf of other present and future patients of the hospital, has brought a multi-count complaint in equity against the Governor and other State officials seeking (a) to enjoin them from implementing an alleged closing of this institution and mandating its continued operation, (b) the award of punitive and exemplary damages, and (c) costs and reasonable attorney fees.
The essential purpose of the action is to have this Court order that the Retreat State Hospital shall continue in operation within the framework of mental health
[ 24 Pa. Commw. Page 220]
facilities operated by the Commonwealth across the State. Her right, and that of the class she purports to represent, to the relief sought is alleged to be found within the provisions of the Mental Health and Mental Retardation Act of 1966, Act of October 20, 1966, Special Sess., P.L. 96, as amended, 50 P.S. § 4101 et seq. (Act), which if not adhered to by defendants is said to result in a denial to plaintiff and the class of their constitutional right to due process and equal protection and a violation of Article I, Section 26, of the Pennsylvania Constitution.*fn1
Defendants have interposed preliminary objections to plaintiff's complaint, asserting sovereign immunity to the extent that plaintiff's complaint seeks monetary damages and other relief mandatory in nature and in the nature of a demurrer for failure to state a cause of action. In considering these preliminary objections, we accept as true all well-pleaded factual averments and inferences reasonably deductible therefrom.*fn2
Our analysis of the complaint measured by plaintiff's legal theory in support of the relief sought convinces us that plaintiff, both in her own right and on behalf of the class she purports to represent, has failed to state a cause of action. We must, therefore, sustain defendants' preliminary objections in the nature of a demurrer.
It is averred in the complaint that Retreat State Hospital, as an institution within the framework of mental health facilities operated by the Commonwealth, will be closed at some future date. It is also averred that at the present time new admissions to the ...