Appeal from the Order of the Court of Common Pleas of Northampton County in the case of Eileen E. Gill v. Allentown State Hospital, City of Easton, Easton Police Department, et al. and Lehigh County and Lehigh County Mental Health/Mental Retardation, No. 1982-C-249 and No. 1982-C-2748.
Richard C. Angino, with him, Terry S. Hyman, Angino & Rovner, P.C., for appellant.
Matthew R. Sorrentino, Holland, Taylor and Sorrentino, for appellees.
President Judge Crumlish, Jr. and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Rogers. Judge Colins dissents. Judge Williams, Jr., did not participate in the decision in this case.
[ 88 Pa. Commw. Page 328]
This case is a companion to Allentown State Hospital v. Gill, 88 Pa. Commonwealth Ct. 331, A.2d (1985). Eileen Gill appeals from an order of the Northampton County Court of Common Pleas which granted Northampton County and Northampton County Mental Health/Mental Retardation Center's*fn1 Motion for Summary Judgment on the basis that these defendants below were immune from liability under 42 Pa. C.S. § 8541, which reads as follows:
Except as otherwise provided in this subchapter, no local agency shall be liable for any
[ 88 Pa. Commw. Page 329]
damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.
Forty-two Pa. C.S. § 8542 supplements § 8541 by providing a limited waiver of immunity for eight acts described in 42 Pa. C.S. § 8542(b), none of which applies to the acts of negligence alleged by Ms. Gill against the defendants. Ms. Gill challenges the constitutionality of the sections cited on equal protection grounds and on the theory that, in abrogating the right of individuals to bring certain personal injury suits against a local agency, they violate Article I, Section 11 of the Pennsylvania Constitution as well as the federal constitution.*fn2
Ms. Gill first contends that 42 Pa. C.S. §§ 8541 and 8542 violate her right to equal protection by barring suits alleging medical malpractice by local agencies and their employees while a similar statute relating to suits against the Commonwealth, at 42 Pa. C.S. § 8522, permits suits for medical malpractice committed by State agencies and their employees.
Sections 8541 and 8542 do not treat similar classifications of tort actions or defendants differently; for example, all tort actions involving personal property loss are treated similarly, as are all tort actions involving claims of medical malpractice by political subdivision employees. Ms. Gill's contention in reality is that the legislature may not withhold permission to injured ...