Dashner v. Hamburg Center of the Department of Public Welfare

845 A.2d 935, 2004 Pa. Commw. LEXIS 207

• Court: Commonwealth Court of Pennsylvania
• Decided: March 12, 2004
• Status: Published

Opinions

OPINION BY

Judge LEAVITT.

The Hamburg Center of the Department of Public Welfare (Center) appeals from the April 21, 2003 order of the Court of Common Pleas of Berks County (trial court), which denied summary judgment to the Center as to Counts I, II, III and IV of a sixteen-count Complaint filed against the Center by (1) John W. Dashner, Sr. and Loretta A. Dashner, individually and as parents and guardians of John W. Dashner, Jr. (Dashner),¹ an incapacitated person, and (2) Anna L. Miller, individually and as the parent and guardian of Michael A. Moatz (Moatz),² an incapacitated person (collectively Parents). Parents seek damages for tortious assaults upon their children, but the Center contends that Parents’ tort claim is barred by sovereign immunity.

The Center is a residential intermediate care facility for the mentally retarded that is operated by the Department of Public Welfare. Craig Muthersbaugh (Muthers-baugh) was an employee of the Center from February 18, 1997, until July 28, 2000, first as a probationary Aide Trainee and thereafter as a Residential Services Aide (RSA).³ Between August 1, 1999, and the spring of 2000, Muthersbaugh sexually assaulted Dashner and Moatz; the exact dates and number of acts of abuse are unknown. The Center became aware of the abuse on June 19, 2000, when Dash-ner made comments to another RSA about having a “secret” involving Muthersbaugh. R.R. at 200a, 387a. Muthersbaugh was suspended on June 20, 2000 and later terminated. On October 30, 2000, pursuant to a plea agreement, Muthersbaugh pleaded guilty to two counts of indecent assault and two counts of indecent exposure. He was sentenced to six years of probation.

On November 9, 2000, Parents filed a complaint with the trial court. In Counts I and II of their Complaint, Parents raised a number of negligence claims against the Center.⁴ In Counts III and IV of their Complaint, Parents averred that the Center was negligent in its hiring, supervision and retention of Muthersbaugh.⁵ The remaining counts of Parents’ Complaint asserted claims against the Center under theories of agency and/or vicarious liability (Counts V and VI), breach of contract (Counts VII, VIII, IX, and X), and corporate negligence (Counts XI and XII). Parents also raised four claims directly against the Department of Public Welfare under theories of agency and/or vicarious liability (Counts XIII and XIV) and corpo-. rate negligence (Counts XV and XVI).⁶

On November 7, 2002, the Center filed a motion for summary judgment. The Center argued that it was immune from liability because the allegations in Counts I through IV of the Complaint describe negligent institutional, i.e. corporate, acts that do not fall within the medical professional liability exception to sovereign immunity. The Center further argued that Parents had not produced an expert witness to establish that the Center breached professional standards of conduct. The Center also asserted that Parents had produced no evidence that Muthersbaugh had a history of abusive conduct which the Center could have discovered before hiring him or that the Center did not adequately supervise Muthersbaugh after hiring him. In support of its motion, the Center produced evidence pertaining to its hiring of Muth-ersbaugh, its evaluation of his job performance and its termination of Muthersbaugh after learning of his abusive conduct.

Following argument on April 21, 2003, the trial court denied summary judgment to the Center on Counts I through IV of the Complaint.⁷ The Center requested that the trial court amend its order to include the statement that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the matter. Pa.R.A.P. 1311 (Interlocutory Appeals by Permission); 42 Pa.C.S. § 702(b). The trial court granted the request, amended the order and stayed all proceedings pending disposition of the Center’s petition for permission to appeal to this court. On June 6, 2003, this Court granted the Center’s petition.

The Center filed a concise statement of matters complained of on appeal. The Center argued that the trial court erred in denying summary judgment with respect to Counts I through IV of the Complaint because: (1) the alleged negligent acts set forth in Counts I through IV are institutional acts, and, as a result, sovereign immunity is not waived; and (2) Parents failed to produce evidence essential to their cause of action, including evidence of gross negligence or incompetence as required by Section 603 of the Mental Health and Mental Retardation Act of 1966 (Mental Health Act).⁸

In its opinion supporting the order denying summary judgment with respect to Counts I through IV, the trial court concluded that the alleged negligent acts in Counts I through IV of the Complaint were not institutional acts but, rather, were the acts of the Center’s employees. Thus, the trial court concluded that sovereign immunity was waived pursuant to an exception to sovereign immunity related to acts of medical professionals employed by the Commonwealth.⁹

Our scope of review of an order denying summary judgment is limited to determining whether the trial court committed an error of law or abused its discretion. Fleetwood Area School District v. Berks County Board of Assessment Appeals, 821 A.2d 1268 (Pa.Cmwlth.2003). A party may move for summary judgment in whole or in part as a matter of law if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action. Pa. R.C.P. No. 1035.2(2).

The trial court concluded that Counts I through IV of the Complaint were not barred by sovereign immunity because Muthersbaugh’s actions fell within the “medical-professional liability exception” to sovereign immunity set forth in 42 Pa.C.S. § 8522(b)(2).¹⁰ We disagree.

In Counts I and II of the Complaint, Parents allege that the Center was negligent in failing to conduct adequate background checks and/or evaluations on its employees; failing to adequately investigate the qualifications of Muthersbaugh; failing to warn Parents about Muthers-baugh’s violent and dangerous propensities; failing to place Dashner and Moatz in a place free from Muthersbaugh’s abuse; failing to enact and/or enforce proper procedures to prevent abuse; failing to adequately address and investigate the improper relationships between Dashner and Moatz and Muthersbaugh; allowing Muth-ersbaugh to abuse his position; disregarding the welfare of Dashner and Moatz after the initiation of the improper relationships; failing to take all necessary steps to separate Dashner and Moatz from Muthersbaugh; and failing to provide a safe treatment facility. In Counts III and IV of the Complaint, Parents raise substantially similar allegations in support of their claim that the Center was negligent in its hiring, supervision and retention of Muthersbaugh.

Whether labeled as “Negligence, Carelessness, Recklessness” (Counts I and II) or “Negligent Hiring, Supervision and Retention” (Counts III and IV), the aver-ments of these Counts of the Complaint are based upon the alleged institutional, administrative negligence of the Center. Based upon our Supreme Court’s holding in Moser v. Heistand, 545 Pa. 554, 681 A.2d 1322 (1996), these allegations do not fall within the medical-professional liability exception to sovereign immunity.

In holding that sovereign immunity precludes a cause of action based on corporate liability against Commonwealth medical facilities, the Moser Court explained:

A cause of action in corporate negligence is based on the negligent acts of an institution. For such a cause of action to be viable against a Commonwealth hospital, sovereign immunity for the acts of the institution must be waived. Institutions do not act on their own, but through the creation and enforcement of policies established by their officers and employees. Nevertheless, the medical-professional liability exception to sovereign immunity specifically refers to [a]cts of health care employees and a Commonwealth party who is a doctor, dentist, nurse or related health care professional. Accordingly, while 42 Pa.C.S. 8522(b)(2) waives sovereign immunity for the negligent acts of specified individuals when they are working at or for a Commonwealth institution, it does not waive sovereign immunity for individuals who act as the corporate entity.

While Commonwealth medical facilities are not immune from suit based on the negligence of their health care employees (respondeat superior), 42 Pa.C.S. 8522(b)(2) does not provide for a waiver of immunity for the facilities themselves. Because of our responsibility to construe narrowly the legislatively created exceptions to sovereign immunity ... we cannot extend the corporate theory of liability to state owned medical facilities. Accordingly, plaintiffs who seek recovery from the Commonwealth for damages sustained in such facilities must base their cause of action on the negligence of the parties specifically enumerated in 42 Pa. C.S. 8522(b)(2).

Id. at 561-562, 681 A.2d at 1326 (emphasis added). Parents attempt to distinguish Moser, stating:

The institution itself, in that case, had absolutely nothing to do with the treatment rendered to the Plaintiff. In this case, however, it was the healthcare decision of [the Center’s] administrators relating to its policies which formulate the basis of [Respondents’] claims. Indeed, Moser ... specifically stands for the proposition that medical facilities run by the Commonwealth are liable under a respondeat superior/vicarious liability [theory] for the negligence of their healthcare employees.... This is exactly what is' alleged in this case and requires this Honorable Court to uphold the Trial Court’s denial of the ... Center’s Motion for Summary Judgment.

Appellees’ Brief at 11 (citations omitted) (emphasis added).

Parents’ argument fails for two reasons: first, it overlooks the fact that the trial court has already dismissed their vicarious liability claim (Count V); and, second, regardless of whether Muthersbaugh is a “health care employee” who falls within the medical-professional liability exception to sovereign immunity, the averments in Counts I, II, III, and TV do not focus upon his actions. Rather, they focus upon the alleged institutional, administrative negligence of the Center. Under Moser, the Center is immune from suit with respect to these allegations.¹¹

Accordingly, the order of the trial court denying the Center’s motion for summary judgment is reversed.

ORDER

AND NOW, this 12th day of March, 2004, the order of the Court of Common Pleas of Berks County dated July 7, 2003, in the above-captioned matter, is hereby reversed.

1 . Dashner is a moderately retarded man in his early thirties who has resided at the Center since 1991.

2 . Moatz is also a moderately retarded man in his early thirties, who resided at the Center from 1989 until June 2002.

3 . As a Residential Services Aide, Muthers-baugh's job duties included: (1) carrying out routine medical procedures, such as measuring temperatures, administering enemas, and providing external treatments and first aid, under the supervision of licensed personnel; (2) completing progress reports for assigned patients and documenting his assigned health care tasks; (3) providing emergency care until the arrival of medical staff; and (4) assisting in the establishment of recreational and social activities designed to enhance the personal growth and general health status of the Center's patients. Reproduced Record at 275a (R.R.-).

4 .In Counts I and II of the Complaint, Parents alleged that the Center was liable for the following:

(a) Failing to conduct adequate background checks and/or evaluations on its employees such as Craig Muthersbaugh;

(b) Failing to adequately investigate the qualifications of Craig Muthersbaugh prior to his hiring and/or thereafter;

(c) Failing to warn [Parents] about the violent and dangerous propensities of Craig Muth-ersbaugh when it knew or should have known of said propensities;

(d) Failing to place [Parents’] Dependents in a place where they would be free from the abuse of Craig Muthersbaugh;

(e) Failing to enact and/or enforce proper and adequate procedures which would have prevented Craig Muthersbaugh’s abuse of [Parents’] Dependents;

(f) Failing to adequately address and investigate the improper relationships between [Parents’] Dependents and Craig Muthers-baugh when its supervisors and/or other employees knew or should have known of said improper relationships;

(g) In allowing one of its employees, Craig Muthersbaugh, to abuse his position of power and trust by initiating and/or conducting an improper relationship with [Parents'] Dependents on the premises of Hamburg Center;

(h) In disregarding the welfare of [Parents’] Dependents as their patients after the initiation of the improper relationship that Craig Muthersbaugh initiated when they knew or should have known of said relationship;

(i) In failing to take all necessary steps to separate [Parents’] Dependents and Craig Muthersbaugh after they knew or should have known of the improper relationship that existed;

(j) Failing to provide a safe treatment facility for [Parents'] Dependents.

R.R. at 1 la-12a.

5 . In Counts III and IV of the Complaint, Parents alleged that the Center was liable for the following:

(a) Failing to exercise reasonable care in selecting, hiring, retaining, screening, monitoring, supervising and/or evaluating the personnel who actually provided healthcare services to [Parents'] Dependents, including but not limited to Craig Muthersbaugh;

(b) Failing to conduct an adequate background check and/or evaluation prior to the hiring of Craig Muthersbaugh;

(c) Failing to adequately investigate the qualifications of Craig Muthersbaugh prior to his hiring;

(d) Retaining Craig Muthersbaugh after it knew or should have known of his improper conduct with regard to [Parents’] Dependents;

(e) Failing to take the steps necessary to protect [Parents'] Dependents from Craig Muthersbaugh after it knew or should have known of Craig Muthersbaugh’s improper conduct and/or relationship with [Parents’] Dependents.

R.R. at 15a.

6 . Counts VII, VIII, IX, X, XIII, XIV, XV, and XVI were deleted by stipulation of the parties on March 7, 2001.

7 . The trial court granted the Center's motion for summary judgment on Counts V, VI, XI, and XII, noting that those claims were barred by sovereign immunity.

8 . Act of October 20, 1966, Special Sess., P.L. 96, 50 P.S. § '4603.

9 .The trial court also stated that the Center's "failure to produce evidence” issue was waived since it had not been raised properly in the Center's brief in support of summary judgment. Nevertheless, the trial court stated that it had reviewed the evidence and believed that Parents produced sufficient evidence to overcome the Center’s motion for summary judgment.

10 . It states:

(b) Acts which may impose liability. — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:

(2) Medical-professional liability. — Acts of health care employees of Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, dentist, nurse or related health care personnel.

42 Pa.C.S. § 8522(b)(2).

11 . Because we find that all of the remaining Counts of the Complaint are barred by sovereign immunity, we need not consider the Center's second issue: whether Parents failed to produce evidence essential to their cause of action, including evidence of gross negligence or incompetence as required by Section 603 of the Mental Health Act. As this Court has noted previously, "Section 603, instead of waiving sovereign immunity, actually provides an additional immunity to state agencies and their employees acting pursuant to the [Mental Health Act].” Heifetz v. Philadelphia State Hospital, 22 Pa.Cmwlth. 325, 348 A.2d 455, 457 (1975). The limited waiver provisions of Section 603 would permit an action against individual officials and employees for civil rights violations or common law torts. See, e.g., Rhines v. Herzel, 481 Pa. 165, 392 A.2d 298 (1978) (permitting wrongful death action against individually named hospital personnel whose conduct was grossly negligent or malicious and lacking in good faith). Here, however, the averments of Parents' Complaint are all based upon the alleged institutional, administrative negligence of the Center, not any of its individual employees.