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HARRISBURG STATE HOSPITAL v. THOMAS SHERK AND SUSAN SHERK (08/17/89)

decided: August 17, 1989.

HARRISBURG STATE HOSPITAL, APPELLANT,
v.
THOMAS SHERK AND SUSAN SHERK, HIS WIFE, LINA WIEGEL, AS ADMINISTRATOR OF THE ESTATE OF MARK A. JORDAN, APPELLEES



Appeal from PETITION FOR PERMISSION TO APPEAL COMMON PLEAS DAUPHIN COUNTY, Honorable Clarence C. Morrison.

COUNSEL

Stephen E. Geduldig, Deputy Atty. Gen., Office of Atty. Gen., Torts Litigation Unit, Harrisburg, for appellant.

Gary M. Lightman, Peter J. Hart, Harrisburg, for appellees.

Doyle and Palladino, JJ., and Narick, Senior Judge.

Author: Palladino

[ 128 Pa. Commw. Page 152]

Harrisburg State Hospital (Appellant) appeals an order of the Court of Common Pleas of Dauphin County (trial court) which overruled Appellant's preliminary objection in the nature of a demurrer raising the defense of sovereign immunity.*fn1 For the reasons stated below, we reverse.

The facts are undisputed in this case. On June 14, 1986, police officer Thomas Sherk, (Sherk) while investigating a report of a suspicious person, attempted to place under arrest one Mark Jordan (Jordan). A scuffle ensued during which Jordan obtained Sherk's service revolver and shot Sherk in the thigh. Jordan fled the scene with the weapon and committed suicide with it several hours later. Jordan had been institutionalized at Harrisburg State Hospital from October 12, 1985 through May 3, 1986.

On August 2, 1988 Sherk and his wife (Appellees) filed a complaint which alleged in pertinent part that the Appellant had been (1) negligent in undertaking and administering medical care to Jordan; (2) negligent by employing persons who failed to use the requisite skill and care in treating Jordan; (3) negligent by failing to ascertain the extent of Jordan's illness prior to discharge; and (4) negligent by failing to properly supervise its employees so as to prevent the early release of Jordan. Appellant filed preliminary objections, one of which was in the nature of a demurrer raising the defense of sovereign immunity, which the trial court overruled. Appellant appeals from that order.*fn2

In determining whether to sustain preliminary objections in the nature of a demurrer, all well-pleaded facts and all inferences that may be deduced therefrom, but not

[ 128 Pa. Commw. Page 153]

    conclusions of law, must be accepted as true. County of Allegheny v. Dominijanni, 109 Pa. Commonwealth Ct. 484, 531 A.2d 562 (1987). A demurrer will not be sustained unless it is clear on the face of the pleading that the law will not permit recovery. Hawkins v. City of Harrisburg, 120 Pa. Commonwealth Ct. 369, 548 A.2d 399 (1988).

Appellees argue that the medical-professional liability exception to sovereign immunity, 42 Pa.C.S. ยง 8522(b)(2) is applicable to this case. This section reads as follows:

Medical-professional liability. -- Acts of health care employees of Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, ...


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