Dissenting Opinion by
Judge Crumlish, Jr. :I dissent. Article I, Section 11 of the Constitution of Pennsylvania provides in part that “ [s] uits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.” (Emphasis added.) And, as we recently stated in Garrettson v. Commomoealth of Pennsylvania Liquor Control Board, 22 Pa. Commonwealth Ct. 331, 332, 348 A.2d 453, 454 (1975), “[o]ur Supreme Court has repeatedly construed this . . . language as imposing a constitutional bar to suits against the Commonwealth and as reserving to the Legislature the prerogative to determine how and when this bar shall be lifted.” (Citations omitted.)
I am constrained to say that the Legislature has exercised this prerogative by including the proviso in Section 603 of the Mental Health and Mental Retardation Act of 19661 that the normal constitutional immunity (as codified by the language of Section 603 which precedes the proviso) is waived in causes of action based upon gross negligence or incompetence. This is a clear legislative declaration of waiver of immunity as it relates to governmental or non-profit health and welfare organizations. It is precisely the type of legislative action contemplated by Article I, Section 11 whereby the Legislature may waive the immunity of the Commonwealth.
On this basis, I dissent.
Judge Kramer joins in this Dissent.. Act of October 20, 1966, Special Sess. No. 3, P.L. 96, as amended, 50 P.S. §4603.