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ISOBEL RUTH CHERONIS v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ET AL. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND CONSOLIDATED RAIL (03/15/88)

decided: March 15, 1988.

ISOBEL RUTH CHERONIS, GUARDIAN AD LITEM OF THE PERSON OF MARY BROWN, AN INCOMPETENT
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ET AL. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND CONSOLIDATED RAIL, APPELLANTS. ISOBEL RUTH CHERONIS, GUARDIAN AD LITEM OF THE PERSON OF MARY BROWN, AN INCOMPETENT V. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ET AL. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND CONSOLIDATED RAIL CORPORATION, APPELLANTS



Appeals from the Order of the Court of Philadelphia County, in case of Isobel Ruth Cheronis, Guardian ad Litem of the Person of Mary Brown, an incompetent v. Southeastern Pennsylvania Transportation Authority and Consolidated Rail and City of Philadelphia, Commonwealth of Pennsylvania, Fred W. Jacobs, Paul Duscano, John Jefferson, Verdell Dean and William Forbes, No. 2700 August Term, 1980.

COUNSEL

Joseph R. Livesey, for appellant.

Alton G. Grube, Senior Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellees.

Judges Barry and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 114 Pa. Commw. Page 414]

Southeastern Pennsylvania Transportation Authority and Consolidated Rail Corporation (collectively, appellants) appeal an order of the Court of Common Pleas of Philadelphia County granting judgment on the pleadings in favor of the Commonwealth of Pennsylvania and individual members of the Pennsylvania Board of Probation and Parole, Fred W. Jacobs, Paul Duscano, John Jefferson, Verdell Dean and William Forbes (Parole Board members).

The facts of this unfortunate matter are straightforward. On March 3, 1980, Mary Brown was violently assaulted in the underground levels of the Philadelphia Suburban Station as she attempted to board a passenger train. Although the attack occurred at approximately 6:00 o'clock P.M., Ms. Brown was not discovered and assisted until 12:00 o'clock P.M. the following day. She sustained severe physical injuries which included, as the trial court noted, permanent brain damage, paralysis, multiple internal and external injuries and irreversible functional and mental impairment.

By Complaint in trespass dated August 21, 1980, Isobel Ruth Cheronis, Guardian ad litem of the person of Ms. Brown, asserted that appellants were liable for Ms. Brown's injuries by virtue of their exclusive possession and control of Suburban Station and their purported failure to there provide adequate security. Appellants then filed a third party Complaint against the City of Philadelphia, the Commonwealth, the above-named Parole Board members and Wendell Long, the alleged perpetrator*fn1 of the attack. The allegations against the Commonwealth and individual Parole Board members centered upon their alleged failure to provide adequate

[ 114 Pa. Commw. Page 415]

    psychiatric care for Mr. Long while he was an inmate in a Commonwealth correctional facility and for releasing Mr. Long on parole without subsequent adequate supervision.

In response, the Commonwealth and Board members pleaded the affirmative defense of sovereign immunity and then filed a Motion for Judgment on the Pleadings, again asserting: (1) that suit against the Commonwealth was barred by those provisions of the Judicial Code pertaining to sovereign immunity, 42 Pa. C. S. § 8521, and that none of the exceptions for waiver of such immunity set forth in 42 Pa. C. S. § 8522 were implicated by the allegations of appellants;*fn2 and (2) that the individual Board members were immune from suit in accordance with DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978), pertaining to the common law defense of official immunity. As noted, the trial court granted the motion and dismissed the complaint against the Commonwealth and Parole Board members.*fn3

[ 114 Pa. Commw. Page 416]

The instant matter is strikingly similar to another dispute considered by this Court en banc in Moore v. Commonwealth, 114 Pa. Commonwealth Ct. 56, 538 A.2d 111 (1988). Moore involved a claim for damages against the Commonwealth and certain individual defendants by the victim of an attack by a furloughed inmate. We there considered the Commonwealth's entitlement to sovereign immunity under Act 152, as well as the provision therein of official immunity. We rejected the victim's contention that allegations of negligence on the part of the Commonwealth and individual defendants in approving the inmate's furlough and in failing to diagnose and treat his psychiatric condition comprised circumstances for ...


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