No. 425 January Term, 1976, Appeal from an Order of Commonwealth Court at 4 T.D. 1975 Dated December 11, 1975.
John J. O'Brien, Jr., Elizabeth McK. Iannelli, Philadelphia, for appellants.
Edwin L. Scherlis, Frederick E. Black, Joseph Goldberg, Philadelphia, for appellees, A. S. Tornay, M. D. and Daniel Blain, M. D.
Joseph Wheeler McGuire, J. Justin Blewitt, Jr., Deputy Attys. Gen., Harrisburg, for appellee, Phila. State Hospital.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., filed a concurring and dissenting opinion in which Eagen, C. J., and O'Brien, J., joined.
This was an action for indemnity brought by appellants, operators of the Commodore Apartments, against appellees, the Philadelphia State Hospital, Daniel Blain, M.D., the superintendent of the Hospital at the time and A. S. Tornay, M.D., a staff psychiatrist. Judge Wilkinson of the Commonwealth Court sustained appellees' preliminary objections and dismissed appellants' complaint. For reasons that follow, we reverse the order dismissing the complaint and the case is remanded to the Commonwealth Court for further proceedings consistent herewith.
A judgment in the amount of One Hundred Seventy-Five Thousand Dollars ($175,000.00) was entered against appellants, as defendants in a tort action for the negligent hiring of an employee as a maintenance man. The complaint in that lawsuit alleged that appellants knew, or should have known, that the employee possessed dangerous, immoral and perverted propensities. The employee sexually assaulted a female tenant of appellants' apartment house. At the time of his hiring, the employee had recently been released from the Philadelphia State Hospital where he had been treated for approximately one month following a civil commitment. The employee was being treated by A. S. Tornay, M.D. during his commitment in the institution.
The indemnity action was initially filed in the Philadelphia Court of Common Pleas. Preliminary objections in the nature of a demurrer and raising lack of the court's jurisdiction were filed in response. The Court of Common Pleas sustained the jurisdiction objection and transferred the matter to the Commonwealth Court. The Commonwealth Court, after hearing, sustained the preliminary objections and dismissed the complaint as to all of the appellees in this
appeal. The basis of this decision was sovereign immunity, absolute and conditional immunity.
Judge Wilkinson relied upon our decision in Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973) in ruling that suits may not be brought against the Commonwealth and its agencies without express legislative authorization. After rejecting an argument that section 603 of the Mental Health and Mental Retardation Act of 1966*fn1 represented a legislative intention to allow suit against the Commonwealth under the conditions set forth therein, Judge Wilkinson determined that the doctrine of sovereign immunity insulated the Philadelphia State Hospital from suit under the averments of the complaint. Since Judge Wilkinson's order was filed, the Court has changed its position with reference to sovereign immunity and we have now abolished that doctrine. Mayle v. Pa. Dept. of Highways, 479 Pa. 384, ...