Freach v. Commonwealth

Concurring and Dissenting Opinion by

Judge Crumlish, Jr. :

I must respectfully dissent. Legion are the cases wherein our Supreme Court has considered and reaffirmed the doctrine of sovereign immunity. This Court has consistently declined to examine the merits of the doctrine because it believes that we may not disturb the pronouncements of our Supreme Court which hold that the soverign immunity of the Commonwealth is constitutionally ordained¹ and that it may be waived only by specific proclamation by the legislature. Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973); Sweigard v. Pennsylvania Dept. of Transportation, 454 Pa. 32, 309 A.2d 374 (1973) ; Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973). However, governmental immunity (immunity of units of local government) as distinguished from sovereign immunity (immunity of the Commonwealth and its agencies) is not of constitutional origin. Rather, governmental immunity is a creature of judicial conception and can and has met its demise by the stroke of the judicial pen. Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973).

While I recognize that this Court is bound by the pronouncements of our Supreme Court in Brown and Biello, I am obliged to express my notions as they relate to the cause before us.

I cannot agree that sovereign immunity is of constitutional origin. Rather, I agree with the dissenting Justices² in Sweigard, Brown, and Biello, supra, that Artice I, Section 11 of the Pennsylvania Constitution neither proclaims nor disclaims sovereign immunity but that it merely prescribes the manner in which the Commonwealth may waive the power to immunize itself from tort liability. In my view then, sovereign immunity, having been born in the common law, is subject to destruction at the hands of the judiciary³ just as governmental immunity. See also the dissenting opinion of Mr. Justice Roberts, joined in by Mr. Justice Nix and Mr. Justice Manderino in Tarantino v. Allentown State Hospital, Pa. , 351 A.2d 247 (1976).

Again recognizing that we are bound to accept the precept that sovereign immunity is a creature of the constitution and may be waived only by specific statutory enactment, two issues continually emerge from the sovereign immunity controversies which, with unabating insistence, demand resolution. First, is there particular legislation which waives the sovereign immunity in a given instance? Second, should individual defendants be immune absolutely, immune conditionally, or not immune at all?

In the case before us, the majority has rejected Plaintiff’s contention that Section 603 of the Mental Health and Mental Retardation Act of 1966⁴ (Act) constitutes a legislative waiver of sovereign immunity. I disagree. Section 603 provides:

“No person or no governmental or recognized nonprofit health or welfare organization or agency shall be held civilly or criminally liable for any diagnosis, opinion, report or any thing done pursuant to the provisions of this act if he acted in good faith and not falsely, corruptly, maliciously or without reasonable cause; provided, however, that causes of action based upon gross negligence or incompetence shall not be affected by the immunities granted by this section.” In Heifetz v. Philadelphia State Hospital, 22 Pa.

Commonwealth Ct. 325, 348 A.2d 455 (1975), we held that Section 603 grants immunity to persons, organizations and agencies acting under the authority of the Act. We also held that a cause of action based on gross negligence or incompetence is not created by this section if it would not otherwise exist in law. I reiterate my position in the Heifetz dissent that Section 603 of the Act waives the constitutional immunity of governmental or non-profit health or welfare organizations where the actions are based upon gross negligence or incompetence. In my view, the averments of the Plaintiffs in this case constitute a good cause of action under Section 603 and they should be able to proceed on the merits.

As to the second issue for our determination in these controversies, several of the individuals in the instant case do not qualify as “high public officials” according to my notion of the meaning of that term. In DuBree v. Commonwealth, 8 Pa. Commonwealth Ct. 567, 303 A.2d 530 (1973), we held that the absolute immunity enjoyed by the Commonwealth flows to “high public officials” acting within the scope of their authority. DuBree also held that other employees who are not “high public officials” are “conditionally immune” from suit, i.e., they enjoy immunity when they are acting within the scope of their employment and do not act in an intentional, malicious, wanton or reckless manner. In determining who is a “high public official,” DuBree instructs us to inquire into the nature of a particular individual’s duties, the importance of his office, and the extent to which he is, if at all, a policy maker.

Here I would agree that Defendant Shovlin, as Superintendent of Farview State Hospital, is a “high public official” under the definition in DuBree, supra. See McCoy v. Liquor Control Board, 9 Pa. Commonwealth Ct. 107, 305 A.2d 746 (1973), aff’d, 457 Pa. 513, 325 A.2d 396 (1974). Section 417 of the Act, 50 P.S. §4417, outlines the powers and duties of directors⁵ of mental health facilities. Unquestionably, his authority and responsibility to be exercised in the administration of mental health care within the facility is of the highest magnitude. Furthermore, I would concur in that part of the Court’s opinion which directs that the case be transferred to Common Pleas Court as to those defendants⁶ who are not “officers” of the Commonwealth and therefore not within our original jurisdiction.

However, I disagree with the Courts conclusion as to the immunity status of Defendants Burke, McEwen and Hughes, respectively, the Superintendent of the Parole Division, the District Attorney of Delaware County and an Assistant District Attorney of Delaware County. Reiterating my dissent in DuBree, supra, there should be a more extensive inquiry into the nature of the duties and sphere of authority of these Defendants in order to ascertain whether they are “high public officials.” Without such an examination, Defendants are obliged to participate in legal marathons at the whim of or ignorance of litigious plaintiffs. For example, it may be that District Attorneys and their assistants are “high public officials” when they engage in investigative and prosecutorial duties. However, in their relations with the Board of Probation and Parole, they may or may not appear before the Board, may or may not be called upon to recite the factual background of a case, may or may not be asked for recommendations. Obviously, theirs is not the duty to make policy or decisions. In short, their duties may be merely collateral to the Board’s. Insofar as the Superintendent of the Parole Division is concerned, the averments in the complaint provide no basis, absent further inquiry, for the conclusion that he is a “high public official.”

It has long been my view that discovery procedures similar to interrogatories or depositions should be required so that more information may be at hand for this Court to determine the precise nature of the official duties of individual defendants prior to the filing of Preliminary Objections. Only in this way can this Court make a fair and factual evaluation as to who is a “high public official.”

In summary, my position is that the Pennsylvania Constitution neither requires nor prohibits sovereign immunity but, rather, is neutral on the subject and merely sets forth the procedures whereby the Commonwealth may waive the power to be immune. Therefore, it is within the power of the judiciary to examine the merits of the doctrine and, if necessary, excise the doctrine from our law. Furthermore, even assuming, arguendo, the constitutional origin of sovereign immunity, Section 603 of the Act is precisely the kind of legislation envisioned by the draftsmen of the constitution whereby the sovereign immunity is waived. Finally, in all sovereign immunity cases, we must develop a discovery procedure designed to adduce all relevant information as to the duties of an individual defendant before cloaking him with absolute immunity.

I dissent.

Judge Kramer joins in this concurring and dissenting opinion.

1 . Article I, §11 of the Pennsylvania Constitution.

2 . In Sweigard and Brown, Mr. Justice Roberts dissented with an opinion in which Mr. Justice Nrx and Mr. Justice Manderino joined. In Biello, Mr. Justice Nix dissented with an opinion in which Mr. Justice Roberts joined.

3 . In my dissenting opinion in Sweigard v. Commonwealth, 5 Pa. Commonwealth Ct. 637, A. 2d (1972), aff’d, 454 Pa. 32, 309 A. 2d 374 (1973), in which Judge Kramer joined, I contended that our Court can consider the merits of the contention that sovereign immunity is reviewable by the judiciary.

4 . Act of October 20, 1966, Special Sess. No. 3, P.L. 96, as amended, 50 P.S. §4603.

5 . “Directors” include superintendents. Section 102 of the Act, 50 P.S. §4102.

6 . Specifically, these Defendants are: various staff doctors and employees of Farview State Hospital; various parole agents of the Commonwealth; miscellaneous employees of the Commonwealth; the City of Scranton; Scranton’s Superintendent of Police and his Chief Clerk; Northeast Vector Control Association and two of its employees; William Wright; and various other unknown individuals.