Freach v. Commonwealth

354 A.2d 908, 23 Pa. Commw. 546, 1976 Pa. Commw. LEXIS 967

• Court: Commonwealth Court of Pennsylvania
• Decided: March 4, 1976
• Docket: Nos. 1411 and 1412 C.D. 1974
• Status: Published

Opinions

Opinion by

Judge Wilkinson,

This decision concerns two trespass actions within our original jurisdiction arising out of the sexual assault and killing of two minors, Paul J. Freach and Edmund J. Keen, in Scranton on November 1, 1973, alleged to have been committed by one William Wright. Almost ten years earlier, on January 28, 1964, the Court of Common Pleas of Delaware County found Wright to be mentally ill and of criminal tendency and ordered him committed to Farview State Hospital for treatment until further order of court. At the time, the State Board of Probation and Parole had also filed a warrant with the hospital to commit and retain Wright for a parole violation subject to further Board order.¹ However, on June 15, 1973, Wright was released from Farview on a long-term leave of absence, with all supervision and treatment being terminated in August of 1973. Wright lived and worked in the Scranton area, being employed by Northeast Vector Control Association, a nonprofit organization, and also by the City of Scranton as a special policeman and patrolman for which position he was issued a badge. He also managed to gain possession of a .25 caliber pistol. It is contended that Wright utilized the badge, the police powers conferred upon him, his employment, and the pistol to allegedly attack and slay the minor decedents.

Plaintiffs, as parents and representatives of the estates of the minor decedents, have filed two complaints in trespass at Nos. 1411 and 1412 C. D. 1974, against the Commonwealth, certain of its agencies, officials and employees, and against others,² averring that they wrongfully allowed Wright the opportunity to acquire and retain the badge, police powers, employment, and pistol, thereby proximately causing the assault and death of the minor decedents. Specifically, plaintiffs allege that defendants knew, or should have known, of the extreme mental instability and criminal propensity of Wright, particularly toward children,³ and of the outstanding court order and Board of Probation and Parole detainer precluding his release from Farview until further orders by those bodies; and that despite such knowledge, defendants did one or more of the following: permitted the continued release of Wright from confinement, failed to properly transmit information and warnings regarding his prior legal and medical status, failed to provide and terminated proper supervision and control over him, and failed to render and terminated proper treatment of his mental infirmities.

Presently before this Court are preliminary objections of the Commonwealth, its agencies, officials and employees, grounded upon soverign, absolute and conditional immunity. Also before us are preliminary objections of Northeast Vector Control Association and two of its employees, named as defendants herein, challenging this Court’s jurisdiction over entities and individuals not agencies or officers of the Commonwealth.

Initially we reject plaintiffs’ contention that Section 603 of the Mental Health and Mental Retardation Act of 1966, Act of October 20, 1966, Special Sess. No. 3, P.L. 96, as amended, 50 P.S. §4603,⁴ constitutes a waiver of immunity from tort liability enjoyed by the Commonwealth, its officials and employees. We recently declined an identical argument in Heifetz v. Philadelphia State Hospital, 22 Pa. Commonwealth Ct. 325, 348 A.2d 455 (1975), and need not repeat our rationale. Thus, immunity is properly raised in the instant controversy.

As to the Commonwealth, the Department of Welfare, Farview State Hospital, the Board of Probation and Parole, and the Bureau of Correction, we are required to sustain their preliminary objections. Pa. Const, art. I, §11; Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973); McCoy v. Commonwealth, 9 Pa. Commonwealth Ct. 107, 305 A.2d 746 (1973), aff’d per curiam, 457 Pa. 513, 326 A.2d 396 (1974). The complaint against them must, therefore, be dismissed.

As to defendants Burke, McEwen, and Hughes, who are alleged to have acted at all times within their official capacities as, respectively, the Superintendent of the Parole Division of the Board of Probation and Parole, and the District Attorney and the Assistant District Attorney of Delaware County, we hold them to be high public officials of the Commonwealth and thus absolutely immune from liability. See DuBree v. Commonwealth, 8 Pa. Commonwealth Ct. 567, 303 A.2d 530 (1973). In so doing, we find such defendants acted within the scope of their authority and reject plaintiffs’ contentions to the contrary. Although plaintiffs have generally averred that the conduct of these defendants fell outside the bounds of authority, their specific factual allegations fail to so indicate.

As to defendant Shovlin, who is sued both in his capacity as Superintendent of Farview State Hospital and as a physician, we have carefully examined plaintiffs’ complaint and are satisfied that it fails to allege any facts that Shovlin acted in any capacity other than as Superintendent. Moreover, we are satisfied that the complaint fails to establish that Shovlin’s actions were without his authority as Superintendent. Accordingly, he is likewise protected by absolute immunity. McCoy, supra. We must, therefore, also dismiss the complaint against defendants Burke, McEwen, Hughes, and Shovlin.

As to the remaining State employees named as defendants herein, we hold that they are not “officers” of the Commonwealth and thus not within our original jurisdiction. Forney v. Harrisburg State Hospital, 18 Pa. Commonwealth Ct. 17, 336 A.2d 709 (1975). Consequently, although they may be conditionally immune from liability,⁵ see DuBree, supra, we lack authority to so determine and must transfer the case to a court of proper jurisdiction. Forney, supra. Similarly, we lack jurisdiction over Northeast Vector Control Association, its two employees and all other defendants not alleged to be agencies or officers of the Commonwealth and must likewise transfer. Id.; Hart v. Spectrum Arena, Inc., 15 Pa. Commonwealth Ct. 584, 329 A.2d 311 (1974).

Accordingly, we enter the following

Order

Now, March 4, 1976, the preliminary objections of the Commonwealth and the various agencies thereof listed as defendants at No. 1411 C. D. 1974, are hereby sustained and plaintiffs’ complaint is dismissed.

It is further ordered that the preliminary objections of defendants Shovlin, Burke, McEwen and Hughes, at No. 1412 C. D. 1974, are hereby sustained and plaintiffs’ complaint as to those defendants is dismissed.

It is further ordered, pursuant to Section 503 (b) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P. L. 673, as amended, 17 P. S. §211.503 (b), that the causes of action against the remaining defendants listed at No. 1412 C. D. 1974, shall be and are hereby transferred to the Court of Common Pleas of Lackawanna County unless, within 30 days hereof, the parties to those actions notify the Chief Clerk of an agreement that the actions be transferred to a different court of proper jurisdiction in which case they shall be transferred to the agreed upon court.

The Chief Clerk shall certify to the Prothonotary of the court to which these actions are transferred a photocopy of the docket entries in this Court at No. 1412 C. D. 1974, and shall transmit to him the record thereof.

1 . On March 5, 1955, when he was 16 years of age, Wright was convicted of the murder of his great aunt and sentenced to a term of 20 years in prison. However, he was paroled on March 13, 1963.

2 . Specifically, the defendants at No. 1411 C.D. 1974 are the Commonwealth, the Department of Welfare, Farview State Hospital, the Board of Probation and Parole, and the Bureau of Correction. At No. 1412 C. D. 1974, the defendants are the Superintendent of Farview State Hospital, the Superintendent of the Parole Division of the Board of Probation and Parole, the District Attorney and Assistant District Attorney of Delaware County, various staff doctors and employees of Farview State Hospital, various parole agents of the Commonwealth, miscellaneous employees of the Commonwealth, the City of Scranton, its Superintendent of Police and his Chief Clerk, Northeast Vector Control Association and two of its employees, Wright, and various individuals whose names are unknown.

3 . Plaintiffs allege that on March 3,1964, Wright was indicted but not prosecuted for indecently assaulting an 11-year-old Delaware County girl; and that in 1965, while at Farview, he confessed to the 1954 killing of a four-year-old Delaware County boy but for which he was not prosecuted.

4 . Section 603 provides:

“No person and 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.”

5 . Plaintiffs argue, however, that such immunity has been lost, pointing to allegations in their complaint which assert that the actions of such defendants were outside the scope of authority and/or committed in an intentionally malicious, wanton and reckless manner.