Summary
In Forney, supra, and more recently in Freach, supra, we dismissed complaints as to defendants found to be officers and "high public officials" of the Commonwealth on the grounds of absolute immunity, while transferring the actions as to other defendants found to be either employees of the Commonwealth or purely private parties.
Summary of this case from Schroeck v. Pennsylvania State PoliceOpinion
March 17, 1975.
Sovereign immunity — Constitution of Pennsylvania, Article I, Section 11 — State hospital — Jurisdiction of the Commonwealth Court of Pennsylvania — Appellate Court Jurisdiction Act of 1970, Act 1970, July 31, P.L. 673 — Statutory construction — Meaning of words — Words and phrases — Officer of the Commonwealth — Employe in public service — Employes of state hospitals — Conditional immunity — Public employes — Loss of immunity.
1. State hospitals are state agencies immune from suit in trespass under Article I, Section 11 of the Constitution of Pennsylvania. [20]
2. The Appellate Court Jurisdiction Act of 1970, Act 1970, July 31, P.L. 673, confers original jurisdiction upon the Commonwealth Court of Pennsylvania in civil actions against the Commonwealth or any officer thereof acting in his official capacity. [20-21]
3. When a word used in a statute is not defined therein, it must be accorded its common and approved usage. [21]
4. Officers of the Commonwealth are persons to whom are delegated some of the sovereign functions of government to be exercised for the public benefit, while employes in public service merely exercise subordinate ministerial functions. [21]
5. Doctors, nurses and non-medical employes of a state hospital are not officers of the Commonwealth, and the Commonwealth Court of Pennsylvania is given no original jurisdiction over civil actions brought against them. [21]
6. Public employes, who are not high public officials, have conditional immunity from tort liability for acts of ordinary negligence when acting within the scope of their authority, but such immunity is lost when their conduct is outside the scope of their authority and is intentional, malicious, wanton or reckless. [21-22]
Submitted on briefs, December 6, 1974, to Judges CRUMLISH, JR., MENCER and BLATT, sitting as a panel of three.
Original jurisdiction, No. 13 Tr. Dkt. 1974, in case of Shirley A. Forney v. Harrisburg State Hospital, Director — Harrisburg State Hospital, Dr. Lebengood, George Madera, Miss Dawson, Jane Doe, Harrisburg Hospital, Dr. Spriggs and Dr. Gustuson. Complaint in trespass in the Court of Common Pleas of Dauphin County seeking damages for personal injuries. Transferred to the Commonwealth Court of Pennsylvania, June 24, 1974. Preliminary objections and new matter filed by defendants. Held: Preliminary objections of Harrisburg State Hospital sustained and complaint dismissed as to said defendant. Case transferred to the Court of Common Pleas of Dauphin County.
Kent H. Patterson, with him Cleckner and Fearen, for plaintiff.
Barry A. Roth, Assistant Attorney General, with him Israel Packel, Attorney General, for defendant State Hospital.
James K. Thomas, with him Joseph P. Hafer, and Metzger, Hafer, Keefer, Thomas and Wood, for defendant Harrisburg Hospital.
Edward E. Knauss, III, for defendants, Lebengood, Madera and Dawson.
Once again we have before us the issue of sovereign immunity. This time the issue is asserted in preliminary objections to a complaint in trespass brought by Shirley A. Forney against the Harrisburg State Hospital, a hospital of the Commonwealth of Pennsylvania, along with some of its employees, and also against the Harrisburg Hospital, a private institution, along with some of its employees. The complaint, having been filed originally in the Court of Common Pleas of Dauphin County, was transferred to this Court in view of the fact that the Commonwealth was a party. The plaintiff claims that she suffered injuries to her face, hands, back, ankle, and feet resulting from having been kicked, having had a door closed on her, and having been burned from scalding water and cigarettes, all while under the defendants' care. She asserts eight counts in tort against the State Hospital and three of its employees, and one count in tort against the private hospital and its employees. Before us now are (1) the preliminary objections of the Commonwealth raising the defense of sovereign immunity as to the allegations against the Harrisburg State Hospital; (2) the new matter raised by the three state hospital employees, insofar as it raises the defense of conditional immunity; and (3) the preliminary objections of the Harrisburg Hospital challenging this Court's jurisdiction over an institution which is not an agent of the Commonwealth.
See the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 Pa.C.S.A. § 211.401 (Supp. 19741975), wherein exclusive jurisdiction for civil actions against the Commonwealth or its agencies is vested in this Court.
Curiously enough the proper procedure by which to raise the defense of immunity from suit is by new matter under Pa. R.C.P. 1030 as it applies to this Court under Rule 119 of the Revised Rules of the Commonwealth Court of Pennsylvania. Most frequently, however, the defense has been raised and treated as preliminary objections as the Harrisburg State Hospital has done here. For the purpose of judicial economy we shall assume that all such defenses are now properly before us.
Inasmuch as we have held, in McCoy v. Liquor Control Board, 9 Pa. Commw. 107, 305 A.2d 746 (1973), aff'd per curiam ___ Pa. ___ 326 A.2d 396 (1974), that state hospitals are among those state agencies immune from suits in tort under Article I, Section 11 of the Pennsylvania Constitution, see, Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A.2d 849 (1973), we must sustain the Commonwealth's preliminary objections, and the complaint as to the Harrisburg State Hospital must, therefore, be dismissed.
A more difficult question is presented concerning whether or not this Court has continuing jurisdiction over any possible remaining causes of action. Our original jurisdiction is defined to include:
"(1) All civil actions or proceedings against the Commonwealth or any officer thereof, acting in his official capacity. . . ." Section 401(a)(1) Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 Pa.C.S.A. § 211.401 (a)(1), (Supp. 1974-1975). (Emphasis added.)
The Harrisburg Hospital, a private institution, clearly falls outside the ambit of our original jurisdiction. As to the state hospital employees, however, we must ask whether or not they are officers of the Commonwealth and thus brought within our original jurisdiction. We think that they are not.
The act fails to define the term "officer" and so it must be accorded its common and approved usage. 1 Pa. C.S. § 1903(a). Our Courts clearly distinguish officers from employees, describing officers generally as those persons to whom are delegated some of the sovereign functions of government, to be exercised by them for the benefit of the public. Employees in public service, on the other hand, merely exercise subordinate ministerial functions. Finley v. McNair, 317 Pa. 278, 176 A. 10 (1935); Hetkowski v. School District of Borough of Dickson City, 141 Pa. Super. 526, 15 A.2d 470 (1940); Kosek v. Wilkes-Barre Township School District, 110 Pa. Super. 295, 168 A. 518 (1933). The complaint here designates the three individual state hospital defendants as a "staff doctor," a "practical nurse," and last a "nonmedical employee." As thus described, therefore, they enjoy none of the characteristics of officers of the Commonwealth and must, therefore, be treated as employees within the meaning of the Appellate Court Jurisdiction Act. We lack jurisdiction, therefore, to rule upon the remaining causes of action asserted against these individual state hospital employees, and must remand the case to the Court of Common Pleas of Dauphin County, which has such jurisdiction. As we said in DuBree v. Commonwealth, 8 Pa. Commw. 567, 303 A.2d 530 (1973) public employees who are not high public officials, as is the case here, have conditional immunity from tort liability for acts of ordinary negligence when acting within the scope of their authority. They lose that immunity, however, when their conduct occurs outside the scope of their authority and is allegedly intentional, malicious, wanton or reckless. See Hart v. Spectrum Arena, Inc., 15 Pa. Commw. 584, 329 A.2d 311 (1974). As we review the allegations of the plaintiff's complaint, we find that two of the individual defendants are alleged in separate counts to have acted beyond the scope of their authority in that they intentionally, willfully and maliciously harmed the plaintiff. As to those counts, the defendants, we think, are not entitled to immunity from suit.
We, therefore, issue the following
ORDER
AND NOW, this 17th day of March, 1975, the preliminary objections of the Harrisburg State Hospital, are hereby sustained and the plaintiff's complaint as to that defendant is dismissed.
It is further ordered that, as to the three individual state hospital employees and the Harrisburg Hospital, pursuant to Section 503 (b) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 Pa.C.S.A. § 211.503 (b) (Supp. 1974-1975) and Pa. R.C.P. 213, the remaining causes of action shall be and they are hereby transferred to the Court of Common Pleas of Dauphin County.
The Chief Clerk shall certify to the Prothonotary of the Court of Common Pleas of Dauphin County a photocopy of the docket entries in this Court of the above matter and transmit to him the record thereof.