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ALFRED BERSHEFSKY AND MARY ANN BERSHEFSKY v. COMMONWEALTH PENNSYLVANIA (07/21/80)

decided: July 21, 1980.

ALFRED BERSHEFSKY AND MARY ANN BERSHEFSKY, HIS WIFE, APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, AND FARVIEW STATE HOSPITAL, WAYMART, WAYNE COUNTY, PENNSYLVANIA



No. 72 May Term, 1979, Appeal from an Order of the Commonwealth Court, No. 389, C.D. 1976.

COUNSEL

Henry C. McGrath, Scranton, Patrick M. Connolly, Philadelphia, for appellants.

Allen C. Warshaw, Deputy Atty. Gen., Herbert L. Olivieri, Harrisburg, for appellees.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., files a dissenting opinion. Eagen, C. J., and O'Brien, J., dissent. Larsen, J., joins in this opinion and files a concurring opinion.

Author: Roberts

[ 491 Pa. Page 103]

OPINION OF THE COURT

In 1976 appellants Alfred Bershefsky and Mary Ann Bershefsky commenced this action in trespass against appellees the Commonwealth of Pennsylvania, the Department of Public Welfare, and Farview State Hospital. The complaint alleges that as a result of appellees' negligence and reckless and wanton conduct, Herschel Smith, a former Farview patient, was able to gain access to the administration building of Farview and shoot Alfred Bershefsky, a Farview employee. The Commonwealth Court, by order dated June 16, 1977, dismissed the complaint on the basis of sovereign immunity. This Court on October 6, 1979 granted the parties' joint petition to vacate the Commonwealth Court's order and remand the case in light of Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978), application for reargument denied, 479 Pa. 411, 390 A.2d 181 (1978)*fn* and Act 152, Act of September 28, 1978, P.L. 788, ยงยง 1 et seq. See also Brungard v. Hartman, 483 Pa. 200, 394 A.2d 1265 (1978) (Commonwealth Court's dismissal of complaint

[ 491 Pa. Page 104]

    on basis of sovereign immunity vacated and remanded in light of Mayle). On remand, the Commonwealth Court dismissed the complaint on the ground that Act 152, which created for the first time in Pennsylvania statutory sovereign immunity in certain categories, barred the action.

This Court recently held in Gibson v. Commonwealth of Pennsylvania, 490 Pa. 156, 415 A.2d 80 (1980), that Act 152 cannot be constitutionally applied to actions like the present one which accrued and were in existence prior to passage of the Act. Here, as in Gibson, it was error for the Commonwealth Court to dismiss the complaint.

Accordingly, the order of the Commonwealth Court is vacated and the case is remanded for further proceedings consistent with this opinion.

LARSEN, Justice, concurring.

I join in the majority opinion and take this opportunity to respond to Mr. Justice Nix's dissent. Mr. Justice Nix attempts to buttress his weak legal arguments with certain facts contained in a letter dated March 12, 1980, from the Pennsylvania Department of Justice, wherein the Justice Department stated that they estimated their financial exposure as a result of the Gibson case would be $68,000,000. (Footnote 10 of Dissenting Opinion).

This letter is not part of the record and the figure of $68,000,000 is unsubstantiated and unsupported by any evidence whatsoever. Obviously this figure is being 'thrown-about' solely for the purpose of scaring the uninitiated.

For fantasy's sake, assume the $68,000,000 is a legitimate figure. If the Commonwealth or any other person or entity is creating that much havoc and carnage (broken bones and death) on ...


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