HomeMy WebLinkAbout94-6706 CivilDENNIS KENNEDY, : IN THE COURT OF COMMON PLEAS OF
HELEN M. COX, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :
:
v. : CIVIL ACTION - LAW
:
CUMBERLAND-PERRY ASSOCIATION :
OF RETARDED CITIZENS, PEGGY :
[MARGARITE] WHITE, JAMES :
GURRERI, PAUL STENGEL, CAROL :
FIRENZ, SHIRLEY KNOX, VICKI :
DELILLIS, JOYCE CROFT, :
CAPELLINE PIVORNIC, DAVID :
SIPHER, ED TIMBRELL, :
JEFFREY DEKEMAN/DYKEMAN/ :
HECKMAN, ED STEMME, :
DEPARTMENT OF PUBLIC WELFARE, :
Defendants : NO. 94-6706 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
DEPARTMENT OF PUBLIC WELFARE
BEFORE SHEELY, P.J., HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this %~ day of May, 1995, after careful
consideration of the Department of Public Welfare's preliminary
objections in the nature of a demurrer to Plaintiffs' complaint,
and for the reasons stated in the accompanying Opinion, the
preliminary objections are SUSTAINED and the complaint is DISMISSED
as to Defendant Department of Public Welfare.
BY THE COURT,
J~We~ley Ofer~., 5.
William C. Hodgson, Esq.
229 Walnut Street
Newport, PA 17074
Attorney for Plaintiffs
James R. Moyles, Esq.
Senior Deputy Attorney General
Torts Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
Attorney for Department of
Public Welfare, Defendant
William A. Addams, Esq.
28 South Pitt Street
Carlisle, PA 17013
Attorney for Cumberland-Perry
Association of Retarded Citizens,
James Gurreri, Carol Firenz,
Shirley Knox, Vicki Delillis,
Capelline Pivornic, Peggy White,
Paul Stengel, Joyce Croft,
David Sipher, Ed Timbrell,
Jeffrey Dekeman/Dykeman/Heckman, and
Ed Stemme
Defendants
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DENNIS KENNEDY, : IN THE COURT OF COMMON PLEAS OF
HELEN M. COX, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :
:
v. : CIVIL ACTION - LAW
:
CUMBERLAND-PERRY ASSOCIATION :
OF RETARDED CITIZENS, PEGGY :
[MARGARITE] WHITE, JAMES :
GURRERI, PAUL STENGEL, CAROL :
FIRENZ, SHIRLEY KNOX, VICKI :
DELILLIS, JOYCE CROFT, :
CAPELLINE PIVORNIC, DAVID :
SIPHER, ED TIMBRELL, :
JEFFREY DEKEMAN/DYKEMAN/ :
HECKMAN, ED STEMME, :
DEPARTMENT OF PUBLIC WELFARE, :
Defendants : NO. 94-6706 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
DEPARTMENT OF PUBLIC WELFARE
BEFORE SHEELY, P.J., HOFFER and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J.
This is an action for damages filed by Plaintiffs arising out
of alleged harm suffered by Dennis Kennedy while he resided in
various group homes operated by Defendant Cumberland-Perry
Association of Retarded Citizens (C-PARC). Presently before the
Court are preliminary objections in the nature of a demurrer of
Defendant Department of Public Welfare (Defendant-Public Welfare)
to Plaintiffs' complaint. For the reasons stated in this Opinion,
the preliminary objections will be sustained.
NO. 94-6706 CIVIL TERM
The facts as averred in Plaintiffs' complaint~ may be
summarized as follows: Plaintiff Dennis Kennedy (Plaintiff-
Kennedy) is an adult individual with an address of Selinsgrove
Center, Box 500, Selinsgrove, Snyder County, Pennsylvania.
Plaintiff Helen Cox (Plaintiff-Cox) is an adult individual with an
address of R.D. 4, Box 173, Newport, Perry County, Pennsylvania,
and is the mother of Dennis Kennedy. Defendant-Public Welfare is
a Department of the Commonwealth of Pennsylvania with a business
address of 305 Health and Welfare Building, Harrisburg, Dauphin
County, Pennsylvania.
The incidents giving rise to this action allegedly took place
from September 1980 through 1992. During this period, Plaintiff-
Kennedy, who suffers from some sort of mental deficiency,2 resided
in group homes operated by C-PARC.
The incidents for which Plaintiffs seek damages are sexual in
nature. It is alleged that sometime during his first stay at a
group home operated by C-PARC, to which he was admitted in the fall
~ Plaintiffs filed an amended complaint on February 22, 1995,
apparently in response to preliminary objections filed by other
defendants in this case. See Pa. R.C.P. 1028(c)(1). The
allegations against Defendant-Public Welfare are the same in both
the original complaint, to which the instant objections are
directed, and the amended complaint. In this Order and Opinion of
Court, the Court has used the caption of the praecipe for a writ of
summons by which the action was commenced.
2 The exact nature of Plaintiff Dennis Kennedy's condition is
not fully evident from the complaint; the complaint indicates that
he has been diagnosed as being mildly to moderately retarded. See
Plaintiffs' Complaint, paragraphs 34, 40.
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NO. 94-6706 CIVIL TERM
of 1980, Plaintiff-Kennedy was molested and possibly sexually
assaulted by a female staff member.3 A second incident allegedly
occurred after Plaintiff-Kennedy was moved to another group home,
also operated by C-PARC, in December 1981. According to
Plaintiffs, shortly after this move, Plaintiff-Kennedy observed a
male staff member molesting a female resident.4 In October 1989,
Plaintiff-Kennedy was moved to a third group home, also operated by
C-PARC, where it is alleged he encountered a male staff member who
came to work cross-dressed.~ Throughout this entire period,
beginning with the first incident, it is alleged that Plaintiff-
Kennedy displayed various episodes of inappropriate behavior that
was sexual in nature and that was not properly addressed by C-PARC
staff members.
With regard to the first two incidents, it is alleged that
Plaintiff-Cox was not informed of them at the time they occurred.
She claims she first learned of the incident in which her son was
allegedly molested on Thanksgiving weekend, 1992-, when she was told
of the occurrence by him.
With regard to specific allegations directed to Defendant-
Public Welfare, it is alleged that Defendant "is and was the
inspector, and/or licenser, and/or regulator of at least one of the
See Plaintiffs' Complaint, paragraphs 36-43.
Plaintiffs' Complaint, paragraph 48.
5 Plaintiffs' Complaint, paragraph 56.
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NO. 94-6706 CIVIL TERM
group homes and the employees of C-PARC during the time when at
least one of the tortious acts of gross negligence against
Plaintiff Dennis Kennedy took place.''6 Accordingly, Plaintiffs
claim that Defendant-Public Welfare was grossly and ordinarily
negligent for its inappropriate regulation of the C-PARC group
homes in which the alleged improper conduct took place.7
Plaintiffs initiated this action by filing a praecipe for a
writ of summons on March 23, 1994. This was followed by a
complaint filed by Plaintiffs on January 17, 1995. Defendant-
Public Welfare filed preliminary objections to Plaintiffs'
complaint on January 31, 1995. Plaintiffs filed an amended
complaint on February 22, 1995.8
Defendant-Public Welfare's preliminary objections are in the
nature of a demurrer, contending that no cause of action against it
exists for negligent licensing, inspection and/or regulation
because of sovereign immunity. Therefore, Defendant-Public Welfare
requests that we strike from the complaint the allegations with
regard to it.
Initially, we note that the defense of sovereign immunity is
an affirmative defense which is most appropriately raised in new
Plaintiffs' Complaint, paragraph 25.
Plaintiffs' Complaint, paragraph 77.
See note 1 supra.
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NO. 94-6706 CIVIL TERM
matter.9 However, the right to challenge the use of a preliminary
objection to raise the issue is waived when a plaintiff fails to
file a preliminary objection to a defendant's preliminary
objection. CSX Transportation, Inc. v. Frantz Construction, 157
Pa. Commw. 620, 623 n.1, 630 A.2d 932, 934 n.1 (1993). Therefore,
we will proceed to address Defendant's demurrer on the merits.
With respect to a demurrer, it has been said that "[a]
demurrer admits all well-pleaded material facts in the pleading
which it attacks, as well as all inferences which may reasonably be
deduced therefrom." International Association of Firefighters v.
Loftus, 80 Pa. Commw. 329, 333, 471 A.2d 605, 607 (1984).
"Preliminary objections in the nature of a demurrer ... will be
sustained only when it appears with certainty that the law permits
no recovery under the facts pled, and any doubts in the
determination should be resolved by overruling the objections."
Paone v. City of Scranton, 9 D. & C.4th 115, 117 (Montgomery Co.
1991); see Department of Transportation v. Bethlehem Steel Corp.,
33 Pa. Commw. 1, 11, 380 A.2d 1308, 1313 (1977). "[A] demurrer
will not be sustained on the ground that a pleading is not
sufficiently specific .... " 2 Goodrich-Amram 2d §1017(b):27, at
272 (1991). And, "[i]f any part of a pleading states a sufficient
cause of action, the demurrer to the pleading must be overruled."
2 Anderson, Pennsylvania Civil Practice ~1017.180, at 579 (1976).
9 Pa. R.C.P. 1030.
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NO. 94-6706 CIVIL TERM
Agencies of the Commonwealth of Pennsylvania enjoy sovereign
immunity from suit as provided for in 1 Pa. C.S. ~2310.~°
Pursuant to section 11 of Article I of
the Constitution of Pennsylvania, it is hereby
declared to be the intent of the General
Assembly that the Commonwealth, and its
officials and employees acting within the
scope of their duties, shall continue to enjoy
sovereign and official immunity and remain
immune from suit except as the General
Assembly shall specifically waive the
immunity. When the General Assembly
specifically waives sovereign immunity, a
claim against the Commonwealth and its
officials and employees shall be brought only
in such manner and in such courts and in such
cases as directed by the provisions of Title
42 ... unless otherwise specifically
authorized by statute.~
Section 8521 of Title 42 provides, in pertinent part, as
follows:
(a) General rule.-- Except as otherwise
provided in this subchapter, no provision of
this title shall constitute a waiver of
sovereign immunity for the purpose of 1 Pa.
C.S. §2310 (relating to sovereign immunity
reaffirmed; specific waiver) or otherwise.~2
Exceptions to sovereign immunity are provided for in §8522 of
Title 42:
(a) Liability imposed.-- The General
Assembly, pursuant to section 11 of Article I
of the Constitution of Pennsylvania, does
Act of September 28, 1978, P.L. 788, ~1, 1 Pa. C.S. ~2310.
Id.
~2 Act of October 5, 1980, P.L. 693, §221(1), 42 Pa. C.S.
~8521.
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NO. 94-6706 CIVIL TERM
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 the 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.~3
The nine specific areas in which state agency liability may
result are (1) vehicles; (2) medical-professional matters; (3)
care, custody, or control of personal property; (4) Commonwealth
real estate, highways and sidewalks; (5) potholes and other
dangerous roadway conditions; (6) care, custody or control of
animals; (7) liquor store sales; (8) National Guard activities; and
(9) toxoids and vaccines.~4
With regard to the present case, the medical-professional
liability exception is the only one with possible relevancy. That
exception provides:
(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
~3 Act of October 5, 1980, P.L. 693, §221(1), 42 Pa. C.S.
58522.
~4 Act of October 5, 1980, P.L. 693, 5221(1), as amended, 42
Pa. C.S. 58522(b) (1994 Supp.).
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NO. 94-6706 CIVIL TERM
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.
The legislative history of the Sovereign Immunity Act lists
ten specific areas in which a waiver of sovereign immunity was
rejected. See Report of the Joint State Government Commission on
Sovereign Immunity, May 1978, at 15-16. Among the ten items
rejected were improper licensing or delay in granting of licenses,
permits, etc., and the failure to inspect or improper inspection.
Id.
The Commonwealth Court addressed the issue of licensing with
regard to §8522(b) of the Sovereign Immunity Act of Title 42 in CSX
Transportation, Inc. v. Frantz Construction, 157 Pa. Commw. 620,
630 A.2d 932 (1993). In CSX, the plaintiff alleged that DER failed
to properly regulate the defendant. In holding that the plaintiff
failed to state a claim against DER which fell within the real
estate exception to sovereign immunity, the Court observed that
"[t]he mere fact that certain property or operations are subject to
licensing and inspection by a Commonwealth agency is not, in and of
itself, sufficient to state a claim cognizable under Section
8522(b)." CSX Transportation, Inc. v. Frantz Construction, 157 Pa.
Commw. 620, 626, 630 A.2d 932, 935 (1993), quoting Snyder v.
Harmon, 102 Pa. Commw. 519, 525, 519 A.2d 528, 531 (1986), rev'd on
other grounds, 522 Pa. 424, 562 A.2d 307 (1989).
8
NO. 94-6706 CIVIL TERM
In the present case, there is no allegation in Plaintiffs'
complaint that any of the employees committing the allegedly
tortious acts were employees of the State. Moreover, the only
allegations leveled at Defendant-Public Welfare are that it was
negligent in its licensing and regulation of the group homes in
which Plaintiff-Kennedy was housed. Since the State has not waived
sovereign immunity with regard to licensing and regulation,
Plaintiffs have failed to state a claim which falls within an
exception to sovereign immunity.
ORDER OF COURT
AND NOW, this %~ day of May, 1995, after careful
consideration of the Department of Public Welfare's preliminary
objections in the nature of a demurrer to Plaintiffs' complaint,
and for the reasons stated in the accompanying Opinion, the
preliminary objections are SUSTAINED and the complaint is DISMISSED
as to Defendant Department of Public Welfare.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
William C. Hodgson, Esq.
229 Walnut Street
Newport, PA 17074
Attorney for Plaintiffs
9
NO. 94-6706 CIVIL TERM
James R. Moyles, Esq.
Senior Deputy Attorney General
Torts Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
Attorney for Department of
Public Welfare, Defendant
William A. Addams, Esq.
28 South Pitt Street
Carlisle, PA 17013
Attorney for Cumberland-Perry
Association of Retarded Citizens,
James Gurreri, Carol Firenz,
Shirley Knox, Vicki Delillis,
Capelline Pivornic, Peggy White,
Paul Stengel, Joyce Croft,
David Sipher, Ed Timbrell,
Jeffrey Dekeman/Dykeman/Heckman, and
Ed Stemme
Defendants
: rc
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