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GAIL FREACH v. COMMONWEALTH PENNSYLVANIA ET AL. GAIL FREACH (02/28/77)

decided: February 28, 1977.

GAIL FREACH, ADMINISTRATRIX OF THE ESTATE OF PAUL J. FREACH, DECEASED, ET AL., APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA ET AL. GAIL FREACH, ADMINISTRATRIX OF THE ESTATE OF PAUL J. FREACH, DECEASED, ET AL., APPELLANTS, V. JOHN P. SHOVLIN ET AL.



COUNSEL

John E. V. Pieski, Scranton, for appellants.

Norman J. Watkins, Deputy Atty. Gen., for the Com.

Edwin L. Scherlis, Joe Goldberg, Philadelphia, Christian S. Erb, Jr., Harrisburg, Cody H. Brooks, Scranton, for appellees, Shovlin and Burke.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts J., filed a concurring and dissenting opinion in which Nix and Manderino, JJ., join.

Author: Pomeroy

[ 471 Pa. Page 562]

OPINION OF THE COURT

These are two survival and wrongful death actions brought by the personal representatives and parents of two teenage boys, Paul Freach and Edmund Keen, respectively, both of whom were allegedly murdered by one William Wright. The defendants in No. 356 are the Commonwealth of Pennsylvania, the Pennsylvania Department of Welfare, Farview State Hospital, the Pennsylvania Board of Probation and Parole, and the Pennsylvania Bureau of Correction. The defendants in No. 357 are the superintendent, six staff doctors and numerous employes of Farview State Hospital, the superintendent of the parole division and various employees of the Board of Probation and Parole, the district attorney and the deputy assistant district attorney of Delaware County, miscellaneous Commonwealth employes, the City of Scranton, its superintendent of police and his chief clerk, the Northeast Vector Control Association and two of its employes, and Wright himself.

Both complaints allege that in 1955 Wright had been convicted of murdering his great aunt by bludgeoning her to death; that in 1964 he had been arrested for assault with intent to ravish, indecent assault, assault and battery, and corrupting the morals of a minor, all in connection with an attack upon an eleven year old girl; that in 1964 he had been committed to Farview State Hospital ["Farview"] pursuant to the Mental Health Act of 1951;*fn1 that while at Farview, Wright had confessed to

[ 471 Pa. Page 563]

    the 1954 murder of a four year old boy he was attempting to molest by pushing a toy rifle down the boy's throat; that in 1973 Wright was released from Farview and all treatment was terminated; that Wright was never brought to trial on the charges stemming from the 1964 assault on the girl, nor was he charged with any crime in connection with the murder of the boy; that Wright was thereafter employed by the City of Scranton and the Northeast Vector Association as a special policeman. The complaints further allege that, although each of the defendants should have known of Wright's mental instability and criminal tendencies, each was in part responsible for his release from custody and his being placed in a position of authority -- both of which circumstances, it is alleged, directly contributed to his having the opportunity to assault and kill the minor children who are the plaintiffs' decedents herein.

The defendants in No. 356 filed preliminary objections to the complaint on the ground of immunity from suit. In No. 357 two sets of preliminary objections were filed: one set by all but two of the Commonwealth officials and employes sued, and the other by the district attorney and assistant district attorney of Delaware County.*fn2 Both sets of preliminary objections asserted immunity from suit and challenged the jurisdiction of the Commonwealth Court.

The Commonwealth Court (1) sustained the preliminary objections of all the defendants in No. 356 on the ground that the action against them was barred by sovereign immunity; (2) sustained the preliminary

[ 471 Pa. Page 564]

    objections of John P. Shovlin, the superintendent of Farview State Hospital; John J. Burke, the superintendent of the parole division of the Board of Probation and Parole, Stephen J. McEwen, the district attorney of Delaware County, and J. Harold Hughes, the assistant district attorney of Delaware County on the ground that these persons were "high public officials" and therefore were absolutely immune from suits arising out of the performance of their duties; and (3) transferred the case as to all remaining defendants in No. 357 to the Court of Common Pleas of Lackawanna County on the ground that, although some of the defendants may enjoy "conditional" immunity from suit, none of them was the Commonwealth or an officer thereof as those terms are used in Section 401(a)(1) of the Appellate Court Jurisdiction Act of 1970*fn3 and therefore that the Commonwealth Court lacked original jurisdiction of the action as to them.*fn4 These appeals by the plaintiffs followed.*fn5

In part I of this opinion we shall consider the holding of the Commonwealth Court sustaining the preliminary objections as to the defendants in No. 356; the sustaining of preliminary objections as to the four defendants in No. 357 whom the Commonwealth Court held are "high public officials" will be reviewed in part II; and in part III we shall deal with the transfer of the case as to all remaining defendants in No. 357.*fn6

[ 471 Pa. Page 565]

I.

In the absence of legislative authorization, suits against the Commonwealth are barred by Article I, Section 11, of the Constitution of Pennsylvania.*fn7 Appellants do not argue that the defendants in No. 356 -- the Commonwealth itself, the Pennsylvania Department of Welfare, the Pennsylvania Board of Probation and Parole, and the Pennsylvania Bureau of Correction -- are not part of the Commonwealth as that term is used in Article I, Section 11, and therefore are not entitled to sovereign immunity. See Specter v. Commonwealth, 462 Pa. 474, 477, 341 A.2d 481 (1975) (part II of the opinion announcing the decision of the Court); Ayala v. Philadelphia Board of Education, 453 Pa. 584, 305 A.2d 877 (1973); Greer v. Metropolitan Hospital, 235 Pa. Super. 266, 341 A.2d 520 (1975) (petition for allowance of appeal to this Court denied November 5, 1975). Rather, appellants contend that by enacting Section 603 of the

[ 471 Pa. Page 566]

Mental Health and Mental Retardation Act of 1966*fn8 the General Assembly did authorize suits such as theirs against the Commonwealth. Section 603 provides:

"No person and no governmental or recognized nonprofit health or welfare organization or agency shall be held civilly or criminally liable for any diagnosis, opinion, report or any thing done pursuant to the provisions of this act if he acted in good faith and not falsely, corruptly, maliciously or without reasonable cause; provided, however, that causes of action based upon gross negligence or incompetence shall not be affected by the immunities granted by this section."

It is argued that appellants' complaint charges gross negligence on the part of Commonwealth employes in the performance of acts done pursuant to the Act of 1966 in connection with the release of Wright from custody without adequate supervision, and that this suit is therefore authorized by the proviso clause of Section 603, above quoted.

We have held, however, that legislative authorization of suits against the Commonwealth is not to be inferred from language which less than clearly expresses an intent to subject the Commonwealth to suit. In Brown v. Commonwealth, 453 Pa. 566, 570, 305 A.2d 868, 869 (1973), for example, we rejected "the notion that the existence of statutorily mandated public liability insurance evidences a legislative intent to reject sovereign immunity . . . ." While Section 603 is by its terms applicable to "governmental" organizations or agencies, it does not name the Commonwealth as such; nor does it make reference to Article I, Section 11 of the ...


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