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BRAZOS CARONIA v. HERBERT GREENFEDER ET AL. (05/27/77)

decided: May 27, 1977.

BRAZOS CARONIA, PLAINTIFF
v.
HERBERT GREENFEDER ET AL., DEFENDANTS. PHILADELPHIA STATE HOSPITAL, ADDITIONAL DEFENDANT



Original jurisdiction in case of Brazos Caronia v. Herbert Greenfeder and Lee Steven Greenfeder and Philadelphia State Hospital.

COUNSEL

Benedict A. Casey, with him Beasley, Hewson, Casey, Colleran and Stopford, for plaintiff.

Lise Luborsky, with her Earl T. Britt, and Duane, Morris & Heckscher, for defendant.

Stanley I. Slipakoff, Assistant Attorney General, with him Michael von Moschzisker, Deputy Attorney General, and Robert P. Kane, Attorney General, for additional defendant.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 30 Pa. Commw. Page 338]

While crossing Roosevelt Boulevard, Brazos Caronia (Plaintiff), a patient at Philadelphia State Hospital (Hospital), was struck by an automobile driven by Lee Steven Greenfeder (Defendant). Defendant contends that Plaintiff was allowed to leave the Hospital grounds unattended, although he was mentally deficient at the time, which constituted gross negligence by Hospital's employees and agents. Defendant joined Hospital as an additional defendant but Hospital, a Commonwealth institution asserting sovereign immunity, moved for judgment on the pleadings. Sovereign immunity is conferred by Article I, Section 11, of the Pennsylvania Constitution which states in part: "Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the legislature may by law direct." Plaintiff and Defendant acknowledge that Article I,

[ 30 Pa. Commw. Page 339]

Section 11, would bar this action absent explicit legislative consent, but assert that the required consent was given by the legislature when it enacted Section 603 of the Mental Health and Retardation Act of 1966*fn1 (Act), which 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.

This precise argument has been rejected by this Court in prior cases*fn2 (notwithstanding the assertion of this writer's position to the contrary), and moreover, this argument was recently rejected again by our Supreme Court in Freach v. Commonwealth, Pa. , 370 A.2d 1163 (1977). We must hold, therefore, that this action is barred by Article I, Section 11 of the Pennsylvania Constitution.

Absent a waiver of sovereign immunity by the legislature, an agency of the Commonwealth, such as Hospital, is generally immune from suits.*fn3 The Supreme Court has held that a waiver of immunity must be unqualifiedly explicit and that the language of Section 603 of the Act is ...


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