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REGINA MCHALE v. LARRY COLE ET AL. (09/08/88)

decided: September 8, 1988.

REGINA MCHALE, APPELLANT
v.
LARRY COLE ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Regina McHale v. Montgomery County Emergency Service, Inc., Doctor Naomi Dank, Ken Courage, and George Kapler, James Harris, M.D., The Borough of Norristown, and Larry Cole, No. 80-18538.

COUNSEL

Edward C. Mintzer, Jr., with him, Anthony F. Zabicki, Jr., McWilliams and Mintzer, P.C., for appellant.

Kingsley A. Jarvis, for appellee, Montgomery County Emergency Service, Inc.

John O'Rourke, with him, Cheryl L. Young, McTighe, Weiss, Stewart, Bacine & O'Rourke, P.C., for appellee, Borough of Norristown.

President Judge Crumlish, Jr., and Judges Barry and Colins, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 119 Pa. Commw. Page 336]

Regina McHale (appellant) appeals an order of the Court of Common Pleas of Montgomery County (County) which granted the motion of the Montgomery County Emergency Services, Inc., Naomi Dank, Ken Courage, and George Kapler (collectively MCS) for summary judgment.

Appellant was raped and severely beaten by Larry Cole (Cole) in a ladies' restroom in Elmwood Park located in the Borough of Norristown. Elmwood Park is adjacent to MCS and Norristown State Hospital. At the time of the rape Cole was a voluntary out-patient at MCS. The morning of the rape, Cole was evaluated by the staff of MCS and was not admitted to the facility even after Cole requested in-patient treatment. Appellant brought suit against the Borough, Cole, and MCS. In her complaint, she alleged that MCS was liable for her injuries because of its failure to admit Cole on an in-patient basis for psychiatric treatment. MCS moved for summary judgment which was granted by the trial court.*fn1 The trial court opined that MCS was immune from suit under Section 8541 of the Judicial Code, since the actual injury was caused by the criminal acts of a third party and could not be attributable to MCS. The trial court considered MCS as a government agency, and therefore immune, since MCS is the designated mental health facility for the County.

Appellant alleges that the trial court's decision to grant MCS' motion for summary judgment is an error

[ 119 Pa. Commw. Page 337]

    of law. She contends that the grant of immunity in Section 8541 of the Judicial Code does not apply to MCS since Cole was a voluntary out-patient seeking inpatient commitment. She contends that the MCS is a government agency only for involuntary commitments and for treatment pursuant to the Mental Health Procedures Act*fn2 (Act). She also contends that the Act does not pertain to a patient who is treated as a voluntary out-patient and that consequently MCS is not shielded by governmental immunity in this matter. We agree.

Rule 1035 of the Pennsylvania Rules of Civil Procedure provides a summary method for the determination of legal disputes where "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa. R.C.P. No. 1035(b). "Entry of summary judgment may be granted only in cases where the right is clear and free of doubt." Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 175, 507 A.2d 323, 331 (1986). The burden of demonstrating that no genuine issue of material fact exists and that one is entitled to judgment as a matter of law, is on the moving party, and the record must be examined in the light most favorable to the non-moving party. Miller v. Leljedal, 71 Pa. Commonwealth ...


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