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decided: February 25, 1988.


Appeals from the Order of the Court of Common Pleas of Philadelphia County, in the cases of Joseph P. Moore, III v. Commonwealth of Pennsylvania, Department of Justice, now Office of General Counsel, No. 4480 November Term, 1981; Joseph P. Moore, III v. Lawrence Reid, Francis Dillman and Counselor Zelles, No. 4481 November Term, 1981, and Joseph P. Moore, III v. Julius T. Cuyler, No. 377 December Term, 1980, dated August 8, 1985.


Stephen M. Feldman, with him, Gary Lee, for appellant.

Gregory R. Neuhauser, Senior Deputy Attorney General, with him, John G. Knorr, III, Senior Deputy Attorney General, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for appellees.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Judge Colins dissents with respect to No. 86 T.d. 1985. Concurring Opinion by Judge Palladino. Judge Craig joins in this concurring opinion.

Author: Crumlish

[ 114 Pa. Commw. Page 57]

Joseph Moore appeals a Philadelphia County Common Pleas Court order granting the defendants Commonwealth,

[ 114 Pa. Commw. Page 58]

Cuyler, Reid, Dillman and Zelles' motion for summary judgment.

Moore was shot five times by Andre Huett following Huett's release on a home furlough from the State Correctional Institution at Graterford (SCIG).

Previously, Moore had been an eyewitness to an armed robbery committed by Huett and was prepared to testify as a prosecution witness. Huett pleaded guilty to the crime and was incarcerated at SCIG. Huett had served ten months of his sentence when Cuyler, the Superintendent of SCIG, Reid, the Director of Treatment at SCIG, and Dillman and Zelles, correctional counselors, voted to approve Huett's application for a two-day home furlough. When Huett failed to return from the furlough, SCIG officials reported him to state and local authorities as an escapee. One month later Huett shot Moore, causing Moore to suffer paraplegia and loss of hearing.

Moore's complaints against the Commonwealth and the individual defendants*fn1 allege essentially that the defendants engaged in willful misconduct and were otherwise negligent in approving the furlough and in failing to properly diagnose, treat or recognize Huett's psychiatric condition.

The common pleas court concluded that the Commonwealth was entitled to sovereign immunity under

[ 114 Pa. Commw. Page 59]

Act 152*fn2 and that Cuyler was entitled to official immunity. DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978). As to Reid, Dillman and Zelles, who waived official immunity by not raising it in an answer, Pa. R.C.P. Nos. 1030, 1032, the common pleas court concluded that they had no common law duty to protect Moore from Huett's actions. Accordingly, the common pleas court entered summary judgment in favor of the defendants.

This Court can sustain a grant of summary judgment only if the pleadings and discovery material show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Muncy Area School District v. Gardner, 91 Pa. Commonwealth Ct. 406, 497 A.2d 683 (1985).

Complaint Against the Commonwealth

Initially, we must reject Moore's contention that the allegations against the Commonwealth fall within Act 152's statutory waiver of immunity for medical-professional liability.*fn3 The Pennsylvania Supreme Court has recently declared that the General Assembly has not

[ 114 Pa. Commw. Page 60]

    waived the immunity of the "Commonwealth or its local agencies" for harm caused by third persons "in any of the eight [immunity] exceptions." Chevalier v. City of Philadelphia, 516 Pa. 316, 319, 532 A.2d 411, 413 (1987), citing Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987) (emphasis in original). See also Johnson v. SEPTA, 516 Pa. 312, 532 A.2d 409 (1987). Although these cases addressed the governmental immunity of local agencies,*fn4 the reasoning of these decisions mandates the same conclusion with respect to the Commonwealth under Act 152. We must follow Mascaro's instruction that exceptions to an absolute rule of immunity are to be narrowly interpreted. Mascaro, 514 Pa. at 361, 523 A.2d at 1123.

In Mascaro, the Court strictly construed the governmental immunity act and concluded that its express statutory language does not waive immunity for damages caused by the acts of others. Mascaro, 514 Pa. at 362, 523 A.2d at 1124. It further noted that this legislative judgment, as evidenced by the language of the statute, is consistent with the general rule that criminal and negligent acts of third parties are superseding causes which absolve the defendant from liability for the harm caused by such third parties. Id. This reasoning is applicable to the medical-professional liability immunity exception in Section 5110(a)(2) of Act 152, which waives immunity only for " [d]amages caused by Commonwealth health care employees . . . or by a doctor, dentist, nurse and related health care personnel." (Emphasis added.) Since Moore's injuries were caused by criminal acts of a third party, Huett, the Commonwealth is "insulated from all liability for the harm caused by such a party." Chevalier, 516 Pa. at 319, 532 A.2d at 413 (emphasis in original).*fn5

[ 114 Pa. Commw. Page 61]

In Allentown State Hospital v. Gill, 88 Pa. Commonwealth Ct. 331, 488 A.2d 1211 (1985), decided before Mascaro, we affirmed the common pleas court's denial of the Commonwealth defendants' motion for judgment on the pleadings where the complaint alleged that a state mental hospital and its doctors negligently released and supervised a mental patient who assaulted the plaintiff. There, we held that the plaintiff's case fell within the immunity exception for medical professional liability. However, that case is distinguishable because the mental patient's harmful acts could not be regarded as having superseded the hospital's own original negligence in releasing the mental patient. A cause is not considered superseding when it is a foreseeable or normal incident of the risk created by the original actor's negligence. Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 465 A.2d 1231 (1983); Restatement (Second) of Torts ยง 448 (1965). In a psychotherapeutic hospital setting, a patient's mental instability and the coinciding risks associated with such instability are obviously recognized by virtue of the patient's admittance. A mental hospital is specifically staffed with psychiatric and medical professionals and has specialized facilities which enable it to foresee the risk of a negligently released mental patient harming another. Therefore, the patient's act in Gill cannot have been said to be so unforeseeable as to have been a superseding cause; rather, it was a mere intervening cause which did not break the chain of causation

[ 114 Pa. Commw. Page 62]

    to absolve the original actors from liability. Vattimo, 502 Pa. at 253, 465 A.2d at 1237.

A state prison furlough of an inmate pursuant to a statutorily authorized program is not comparable to a state hospital's release of a diagnosed mental patient. A prison does not have the expertise and facilities which would enable it to foresee that a furloughed inmate's psychiatric deficiencies could cause him to harm another. This being so, the furloughed inmate's acts in this case were not foreseeable nor could they have been incidents normally considered by the prison authorities. For these reasons, Gill is not controlling.

Complaint Against Superintendent Cuyler

Likewise, we conclude that Superintendent Cuyler is entitled to immunity. Section 2310 of Act 152, 1 ...

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