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NANCY F. GREGORY v. DR. EMIL MARTYAK (11/16/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 16, 1979.

NANCY F. GREGORY, EXECUTRIX OF THE ESTATE OF HOWARD C. GREGORY, DECEASED, AND NANCY F. GREGORY, IN HER OWN RIGHT, PETITIONER
v.
DR. EMIL MARTYAK, MARIE R. KAPISH AND DR. JOHN P. SLOVAK, RESPONDENTS

Appeal from the Order of the Administrator of Arbitration Panels for Health Care in case of Nancy F. Gregory, Executrix of the Estate of Howard C. Gregory, Deceased, and Nancy F. Gregory, in her own right v. Dr. Emil Martyak and Marie R. Kapish and Dr. John P. Slovak, No. M77-180.

COUNSEL

Edward F. Silva, with him Jack E. Feinberg, for appellant.

Barbara A. Brown, Assistant Attorney General, with her Peter J. Curry, Assistant Attorney General, John L. Sweezy, Chief Attorney of Unit, Theodore A. Adler, Chief Counsel, and Gerald Gornish, Acting Attorney General, for appellees.

Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 47 Pa. Commw. Page 343]

Nancy F. Gregory (Petitioner) appeals to this Court from a decision of the Administrator for Arbitration Panels for Health Care (Administrator) sustaining the preliminary objection in the form of a demurrer of Marie R. Kapish (Respondent) and dismissing those portions of Petitioner's complaint which alleged a cause of action against Respondent.*fn1 The only issue Petitioner raises is whether it was error for the Administrator to conclude that Respondent

[ 47 Pa. Commw. Page 344]

    was entitled to official immunity from liability.*fn2 For the reasons which follow, we reverse the Administrator's decision and remand this case for proceedings not inconsistent with this opinion.

On November 10, 1976, Howard C. Gregory (Decedent) was working on a pig farm in Weatherly, Pennsylvania when a crate slipped onto his hand crushing and cutting his right index finger. Decedent was taken to Hazleton General Hospital where he received emergency treatment from Dr. Emil Martyak and Respondent. As part of the treatment, Respondent, under the direction of Dr. Martyak, administered to Decedent a tetanus booster injection. Decedent then came under the care of his family physician, Dr. John P. Slovak. On November 17, 1976, Decedent was admitted to Hazleton General Hospital suffering from tetanus. He died two days later while enroute to Hahnemann Hospital.

Petitioner filed a complaint pursuant to the Probate, Estates and Fiduciaries Code, Act of June 30, 1972, P.L. 508, as amended, 20 Pa. C.S.A. § 3371 et seq. and the Act of April 26, 1855, P.L. 309, as amended, 12 P.S. § 1602 et seq.,*fn3 against Respondent, Dr. Martyak, and Dr. Slovak with the Administrator. Respondent

[ 47 Pa. Commw. Page 345]

    demurred to the complaint stating that no cause of action would lie against her because she was a Commonwealth employee acting within the scope of her employment. In considering the demurrer, the Administrator found that Respondent was a registered nurse employed by the Commonwealth ("a 'low employee' of the government as opposed to a 'high public official'") and that she was entitled to conditional immunity from tort liability for ordinary negligence when acting within the scope of her employment. He also found that Petitioner failed to allege that Respondent had acted intentionally, maliciously, wantonly, or recklessly. The Administrator therefore sustained Respondent's demurrer.

[ 47 Pa. Commw. Page 346]

Since the time that this cause of action arose, the law of the Commonwealth as it relates to sovereign and official immunity has undergone extensive scrutiny and revision. On July 14, 1978, our Supreme Court abrogated the doctrine of sovereign immunity. Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). September 28, 1978, was the effective date of P.L. 788, Act No. 152 which reinstated, retroactively, the doctrine of sovereign immunity, with eight enumerated exceptions, and left intact "existing common law defenses" relating to official immunity. One week later, on October 5, 1978, the Pennsylvania Supreme Court, while refusing to abrogate the doctrine of official immunity, did establish certain criteria to be met before official immunity would be afforded to Commonwealth officials. DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978). On September 14, 1979, this Court held that Act No. 152 was constitutional and controlling as it related to sovereign immunity. Brungard v. Hartman, 46 Pa. Commonwealth Ct. 10, 405 A.2d 1089 (1979). In another case decided the same day, Estate of Armstrong v. Pennsylvania Board of Probation Page 346} and Parole, 46 Pa. Commonwealth Ct. 33, 405 A.2d 1099 (1979), the Court held that DuBree v. Commonwealth is controlling on the issue of official immunity.

The test of official immunity as set forth in DuBree v. Commonwealth, therefore, must be applied in determining whether Respondent is subject to suit on the facts of this case.*fn4 We believe, however, that the test would better be applied here by the Administrator than by this Court. Section 307(c) of the Health Care Services Malpractice Act, Act of October 15, 1975, P.L. 390, as amended, 40 P.S. § 1301.307(c) provides that "Prior to appointment of an arbitration panel chairman, the administrator is authorized and empowered to rule on all preliminary motions." The Administrator did rule on Respondent's preliminary motions here and his decision is the order now on appeal. Normally, we would review the law as it applies to the facts of the case before us and determine whether or not the Administrator was correct in his ruling. In a case such as this, however, where the law underwent drastic revision subsequent to the Administrator's order and prior to our considering the case on appeal, we believe it the better practice to remand the case to allow the Administrator to reconsider Respondent's preliminary objection in the form of a demurrer in light of the applicable law as set forth in DuBree v. Commonwealth.

Order reversed and case remanded to the Administrator of Arbitration Panels for Health Care for proceedings not inconsistent with this opinion.

[ 47 Pa. Commw. Page 347]

Order

And Now, this 16th day of November, 1979, the Order of the Administrator of Arbitration Panels for Health Care in Case No. M77-0180 is reversed and this case is remanded to the Administrator for proceedings not inconsistent with this opinion.

Disposition

Reversed and remanded.


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