# Freach v. Commonwealth > Supreme Court of Pennsylvania · February 28, 1977 · 471 Pa. 558 URL: https://www.frixlaw.com/law-library/cases/9747613 ## Case - **Full name:** Gail FREACH, Administratrix of the Estate of Paul J. Freach, Deceased, Et Al., Appellants, v. COMMONWEALTH of Pennsylvania Et Al. Gail FREACH, Administratrix of the Estate of Paul J. Freach, Deceased, Et Al., Appellants, v. John P. SHOVLIN Et Al. - **Court:** Supreme Court of Pennsylvania - **Decided:** February 28, 1977 - **Citations:** 471 Pa. 558; 370 A.2d 1163; 1977 Pa. LEXIS 611 - **Precedential status:** Published - **Opinion:** Concurring in part by Roberts - **Judges:** Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino - **Cited by:** 82 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/9747613 ## How later opinions describe it (automated extraction) - holding pleadings sufficient where complaint alleges hospital employees did not properly treat and unlawfully released a patient who had murdered and molested children and who upon release was employed as a special policeman and murdered two children ## Opinion text ROBERTS, Justice, concurring and dissenting. I cannot agree with the majority that the doctrine of sovereign immunity bars suit against the Commonwealth in this case. Nor can I agree that section 603 of the Mental Health and Mental Retardation Act of 1966 1 was not intended to authorize suits against the Commonwealth. Like the majority, however, I conclude the four “high public officials” 2 are subject to liability for acts *572 done pursuant to the Mental Health and Mental Retardation Act of 1966 3 which are in bad faith, false, corrupt, malicious, or without reasonable cause. I also agree that the Commonwealth Court should retain jurisdiction over the entire case. I I dissent from the majority’s decision to uphold the defense of sovereign immunity, in part I of its opinion, for the reasons set forth in my dissenting opinions in Sweigard v. Department of Transportation, 454 Pa. 32, 35 , 309 A.2d 374, 377 (1973) (joined by Nix and Manderino, JJ.) and Brown v. Commonwealth, 453 Pa. 566, 577 , 305 A.2d 868, 871 (1973) (joined by Nix and Manderino, JJ.) and in Mr. Justice Nix’s dissenting opinion in Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 187 , 301 A.2d 849, 853 (1973) (joined by Roberts, J.). Sovereign immunity is a judicially created anachronism which should be judicially abolished. I cannot agree with the majority that the doctrine of sovereign immunity is constitutionally mandated. The Constitution provides: “All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have a remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may direct.” Pa.Const. art. I, § 11. This section, which guarantees every person a remedy for injuries done to him, does not adopt the doctrine of sovereign immunity. See Brown v. Commonwealth, 453 Pa. 566, 580 , 305 A.2d 868, 875 *573 (1973) (dissenting opinion of Manderino, J.). As Mr. Justice Nix has stated: “The Constitution is . neutral — it neither requires nor prohibits sovereign immunity. The framers of the Constitution accepted the then prevalent concept of sovereignty to include immunity from suit, and attempted through this section to implement the power of the State to consent to actions brought against it. . In my judgment it is an unwarranted conclusion to assume from the grant of the power of consent to the legislative branch [to consent to suits against the Commonwealth] that this was implicitly an abrogation of the court’s traditional powers to abolish common law principles when they no longer meet the needs of the time.” Biello v. Pennsylvania Liquor Control Board, 454 Pa. at 189, 301 A.2d at 854 (dissenting opinion of Nix, J., joined by Roberts, J.). Nor can I agree with the majority that section 603 of the Mental Health and Mental Retardation Act of 1966 4 does not authorize suits against the Commonwealth. 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.” By enacting this section the Legislature directed that the Commonwealth may be sued in cases which fall outside the limited immunity provided in this section. See Pa. *574 Const, art. I, § 11. The statutory grant of limited immunity presupposes abrogation of the absolute immunity which existed at common law. As the majority states in Part II of its opinion: “Although this language appears to grant or create, rather than to deny or waive, immunity from suits, its clear negative implication is that any person acting pursuant to the provisions of the act may be held liable for conduct which is lacking in good faith or is false, corrupt, malicious, or without reasonable cause.” This liability, created for acts outside the scope of the immunity provided, applies to “persons” as well as “governmental” bodies. The majority concludes, however, that by “governmental” the Legislature intended only to refer to governmental bodies other than the Commonwealth. I see no basis for such a distinction. When the statute was enacted both the Commonwealth and other governmental bodies were immune from suit. Not until six years later was the immunity of political subdivisions and governmental bodies other than the Commonwealth abrogated. See Ayala v. Philadelphia Board of Education, 453 Pa. 584 , 305 A.2d 877 (1973). Unless the purpose of section 603 of the act was to consent to suit, the reference to governmental bodies would have been meaningless. 5 I conclude that when the Legislature referred to governmental bodies, it meant all governmental bodies. 6 Therefore, section 603 constitutes a consent to sue the Commonwealth. *575 II Although I find it more difficult to determine whether section 603 was intended to supplant official immunity than whether it was intended to supplant sovereign immunity, I conclude that section 603 was intended to authorize suits against high public officials. The reference to governmental bodies in section 603 includes only bodies which had absolute immunity at the time section 603 was enacted. The reference to persons, on the other hand, includes both high public officials, who have absolute immunity at common law, and individuals not protected by such immunity. Because section 603 would provide immunity for some individuals who were not immune at common law, it is less apparent that the Legislature intended for the immunities provided in section 603 to supplant the common law immunity enjoyed by high public officials. 7 Commentators differ widely on how broad the immunity extended to public officials should be, compare 3 K. Davis, Administrative Law Treatise §§ 26.01-26.07 (1958) with W. Prosser, Torts § 132 (4th ed. 1971), but agree that some form of immunity is necessary: “The complex process of legal administration requires that officers shall be charged with the duty of making decisions, either of law or of fact, and acting in accordance with their determinations. Public servants would be unduly hampered and intimidated in the discharge of their duties, and an impossible burden would fall upon all our agencies of government if the immunity to private liability were not extended, in some reasonable degree, to those who act improperly, or exceed the authority given.” W. Prosser, Torts § 132, at 987 (4th ed. 1971). Professor Jaffee has suggested that the scope of immunity *576 granted to public officials should be determined by balancing “ . . . the character and severity of the plaintiff’s injury, the existence of alternative remedies, the capacity of a court or jury to evaluate the propriety of the officer’s action, and the effect of liability whether of the officer or the treasury on effective administration of law.” L. Jaffee, Judicial Control of Administrative Action 241 (1965); accord, Restatement (Second) of Torts § 895D, Comment f (Tent. Draft No. 19,1978). Of course, the Legislature has authority to establish the scope of official immunity. The grant of immunity in section 603 implies that public officials may be held liable for conduct which is in bad faith, malicious, or without reasonable cause. I conclude that this was what the Legislature intended. The balance struck by this section is reasonable and supports the conclusion that the Legislature intended the immunities provided by this section to substitute for the common law immunity. The constitutional policy in favor of providing a remedy, see Pa.Const. art. I, § 11, lends further support to the conclusion that the limited immunity provided in section 603 supplants the common law official immunity. Given the still extant doctrine of sovereign immunity, individuals would have no remedy for tortious conduct by high public officials if common law official immunity applies. Accordingly, I agree with the majority that the Commonwealth Court order sustaining preliminary objections by the four defendants found to be high public officials should be reversed. Ill Because I agree with the majority that preliminary objections should not have been sustained as to the four *577 “high public officials,” I also agree the Commonwealth Court should retain jurisdiction of the entire case. I would reverse the order of the Commonwealth Court in both No. 356 and No. 357, and remand for trial against all defendants. NIX and MANDERINO, JJ., join in this opinion. . Act of October 20, 1966, P.L. 96, § 603, 50 P.S. § 4603 (1969). . The four officials are the superintendent of Fairview State Hospital, the superintendent of the parole division of the Board of *572 Probation and Parole, and the district attorney and assistant district attorney of Delaware County. . 50 P.S. § 1401 et seq. (1969). . Id. § 4603. . See 1 Pa.C.S.A. § 1922 (1976): “In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions may be used. (2) That the General Assembly intends the entire statute to be effective and certain.” . See id. § 1903(a): “Words and phrases shall be construed . according to their common and approved usage.” . See id. § 1921(c)(3, 4, 6) (Supp.1976). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747613. Public record. Not legal advice.