# Moore v. PA. DEPT. OF JUSTICE > Commonwealth Court of Pennsylvania · February 25, 1988 · 114 Pa. Commw. 56 URL: https://www.frixlaw.com/law-library/cases/9696789 ## Case - **Full name:** Joseph P. Moore, III, Appellant v. Commonwealth of Pennsylvania, Department of Justice, Now Office of General Counsel, Appellee; Joseph P. Moore, III, Appellant v. Lawrence Reid, Francis Dillman and Counselor Zelles, Appellees; Joseph P. Moore, III, Appellant v. Julius T. Cuyler, Appellee - **Court:** Commonwealth Court of Pennsylvania - **Decided:** February 25, 1988 - **Citations:** 114 Pa. Commw. 56; 538 A.2d 111; 1988 Pa. Commw. LEXIS 318 - **Precedential status:** Published - **Opinion:** Concurrence by Palladino - **Judges:** Crumlish, Craig, MacPhail, Colins, Palladino - **Cited by:** 48 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9696789 ## Opinion text Concurring Opinion by Judge Palladino: This excellent majority opinion reaches a result in which I fully concur, but I am constrained to write a concurring opinion because of my concern with the majority’s attempt to distinguish Allentown State Hospital v. Gill, 88 Pa. Commonwealth Ct. 331 , 488 A.2d 1211 (1985). The effort to distinguish it reaffirms this court’s decision in Gill , and with that I cannot agree. I believe the holding in Gill has been effectively reversed by recent decisions of our Supreme Court. In Gill , the plaintiff brought suit against a state mental hospital and three of its doctors for injuries she incurred as the result of an assault by Arthur Metzer, a former patient of the hospital. Ms. Gill filed a complaint in trespass alleging the hospital and doctors had negligently released and supervised Mr. Metzer. The hospital and doctors raised sovereign immunity as an affirmative defense, and then sought judgment on the pleadings, asserting that immunity barred the suit. We affirmed the common pleas court’s denial of judgment on the pleadings, holding that sovereign im *71 munity had been statutorily waived by 42 Pa. C. S. §8522(b)(2). We quoted the following language from section 8522: Section 8522 provides as follows: Liability Imposed—The General Assembly, pursuant to Section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity. (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. Based on this language, the Gill court concluded that the legislature had waived the immunity of the sovereign in cases where the acts of a third party caused the harm complained of. When faced with the same issue, although with a different exception; in Mascaro v. Youth Study Center, *72 89 Pa. Commonwealth Ct. 388 , 492 A.2d 786 (1985), rev'd, 514 Pa. 351 , 523 A.2d 1118 (1987), this court relied on Gill for the proposition that the General Assembly intended the real property exception “to waive immunity in all cases where the agency’s negligent care, custody and control of real property resulted in injuries to others for which damages are recoverable under the common law.” 89 Pa. Commonwealth Ct. at 395 , 492 A.2d at 789 . This court then went on to state: The recent case of Allentown State Hospital v. Gill, 88 Pa. Commonwealth Ct. 331 , 488 A.2d 1211 (1985), in which a suit was brought by third persons injured by a mental patient, who the plaintiffs alleged had been negligently released from custody by Commonwealth health employees and agencies, is consistent with our present holding. The Commonwealth defendants contended that 42 Pa.C.S. §8522(b)(2), waiving the Commonwealth’s sovereign immunity as a bar to actions for damages arising out of negligent acts of Commonwealth health care employees or institutions, was intended to confer the right to recover damages only upon direct consumers of the services of Commonwealth health care employees and institutions. We held in Gill that the legislature, having limited the waiver to damages recoverable at common law intended to extend the right to recover to all persons, including the plaintiffs in this case, whose damages would be recoverable under the common law. As we have earlier noted, the Act under consideration in the instant case similarly limits and, in so limiting, extends its waiver to all cases where damages are recoverable at common law. Id., 492 A.2d at 789-90 . *73 The Supreme Court reversed. In reversing, the court highlighted the language of 42 Pa. C. S. §8541 as follows: Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. 514 Pa. at 361 , 523 A.2d at 1123 . After noting that exceptions must be narrowly interpreted, the court went on to státe: “Acts of others . . . are. specifically excluded in the general immunity section (42 Pa. C. S. §8541), and are nowhere discussed in the eight exceptions. On this basis alone, we must conclude that any harm that others cause may not be imputed to the local agency or its employees.” 514 Pa. at 362 , 523 A.2d at 1124 (emphasis in original). The Supreme Court reinforced this holding in Chevalier v. City of Philadelphia, 516 Pa. 316, 319 , 532 A.2d 411, 413 (1987), wherein the court stated: In Mascaro, we held that the Tort Claims Act, specifically 42 Pa.C.S. §8541, clearly precludes the imposition of liability on the Commonwealth or its local agencies for the acts of third parties, and the Legislature has not seen fit to waive immunity for such actors or their acts in any of the eight exceptions. Since Appellees injuries were caused by the criminal acts of a third party, the City is insulated from all liability for the harm caused by such a party. Because of the clarity of these Supreme Court mandates, I object to an attempt to distinguish Gill . The majority makes a distinction based on fine points of causation. Although the Mascaro Supreme Court decision does contain some discussion of intervening and super *74 seding causes, I believe that this discussion is dicta. The holdings of Mascaro and Chevalier are clear, and it cannot be reasonably argued that Gill correctly states the law of Pennsylvania. Accordingly, I would recognize that Gill is no longer a precedent in this Commonwealth, and make clear that a complaint based on Gill cannot survive Supreme Court review. Judge Craig joins in this concurring opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9696789. Public record. Not legal advice.