(dissenting):
I respectfully dissent inasmuch as I believe the substantive law of Pennsylvania dictates a conclusion as to defendants’ liability contrary to that reached by the majority.
Insofar as diversity is the jurisdictional basis in this action, we are required to follow state law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Although the doctrine of immunity may be under attack in Pennsylvania and immunity has been withdrawn from governmental units, municipal corporations and quasi-corporations, Ayala v. Philadelphia Board of Public Educ., 453 Pa. 584, 305 A.2d 877 (1973), it nevertheless remains that state’s law that employees of Pennsylvania may, under certain circumstances, be immune from liability. Brungard v. Hartman, 12 Pa.Cmwlth. 477, 315 A.2d 913 (1974); Dubree v. Commonwealth of Pennsylvania, 8 Pa.Cmwlth. 567, 303 A.2d 530 (1973); Ammlung v. City of Chester, 224 Pa.Super. 47, 302 A.2d 491 (1973). See Daye v. Commonwealth of Pennsylvania, 483 F.2d 294, 299 (3d Cir. 1973) (applying Pennsylvania law). I believe those circumstances giving rise to immunity are present in this case. Accordingly, I would give effect to the doctrine of conditional immunity for lower level officials or employees of the Commonwealth, even though I would be inclined to hold the defendants liable were I presented with this issue on a de novo basis and was not bound by the prevailing substantive law of Pennsylvania. Where the state courts and the state legislature *337have declined to revise state law granting conditional immunity, the federal courts may not do so in a case based on federal diversity jurisdiction. Daye, 483 F.2d at 299. Cf. Harris v. Pennsylvania Turnpike Comm’n, 410 F.2d 1332 (3d Cir. 1969).
I agree with the majority’s characterization of the defendant doctors as lower level state employees. Characterized as such, as I read the governing Pennsylvania cases, the defendants are entitled to conditional immunity if they were acting within the scope of their authority and if their alleged negligent conduct was not intentionally malicious, wanton or reckless. Burton v. Fulton, 49 Pa. 151 (1865); Yealy v. Fink, 43 Pa. 212 (1862); Dubree v. Commonwealth of Pennsylvania, supra. See Daye v. Commonwealth of Pennsylvania, supra (where this Court affirmed the continued application of Pennsylvania’s doctrine of immunity for state officials and employees). As the plaintiff has failed to allege or prove that the defendants’ conduct was intentionally malicious, wanton or reckless in their medical treatment of him, I believe that this Court is obliged to reverse the district court’s determination of liability inasmuch as Pennsylvania law provides that the defendants are still cloaked with conditional immunity.1 The allegations in this complaint of simple negligence and the failure by the district court to find that the defendants’ conduct was intentionally malicious, wanton or reckless are insufficient bases on which the defendants, as employees of the Commonwealth, may be found liable. Brungard v. Hartman, 315 A.2d at 914-915; Dubree v. Commonwealth of Pennsylvania, 303 A.2d at 534.
Despite the consistent expressions of the Pennsylvania courts that low-level public employees2 are to be afforded conditional immunity, the majority, without citation of any Pennsylvania precedent, contends that “as low officials who failed to perform a non-discretionary act, the defendants are not to be judged by the ‘reckless, wanton or malicious’ standard, but by the standard of negligence used in malpractice actions generally in Pennsylvania.” (Majority Opinion at 335) (footnote omitted). The majority’s formula of liability includes as an essential ingredient the additional characterization of a “ministerial-discretionary” distinction. I believe, as does the majority, that this distinction is neither helpful nor controlling in the determination of conditional immunity under Pennsylvania law. (Accord, Majority Opinion at 335 n. 4). Yet, the majority finds it necessary to accept this distinction in order to support its theory of public employee liability. Simple negligence, the majority states, is sufficient to hold these employees liable because the defendants had a non-discretionary duty to comply with an 1829 statute3 *338and they failed to perform that non-discretionary act. In essence, the majority is of the view that these defendants were negligent as a matter of law and that because their negligence per se was found by the district court to be a substantial factor in causing plaintiff’s injury, the defendants were correctly held to be liable.
Even if I were to agree with the majority’s theory of liability and non-immunity (and I do not agree for the reasons expressed above), nevertheless I would still reverse thé district court’s judgment as I find no evidence in the record which supports the liability of the defendants for having violated a statutory duty.
The defendants’ violation of a statute, constituting negligence per se, cannot support the imposition of liability upon the defendants unless the violation of that statute proximately caused the injury sustained by the plaintiff. Wisniewski v. Chestnut Hill Hospital, 403 Pa. 610, 170 A.2d 595 (1961); Shakley v. Lee, 368 Pa. 476, 84 A.2d 322, 323 (1951). Where the critical facts, including those of causal connection are in dispute, as they are here, “proximate cause” is to be determined by the fact-finder — here the district court judge. See W. Prosser, Law of Torts, § 52 (3d ed. 1964). Compare Schreffler v. Birdsboro Corp., 490 F.2d 1148 (3d Cir. 1974) (applying Pennsylvania law); Liney v. Chestnut Motors, Inc., 421 Pa. 26, 218 A.2d 336 (1966). Although the trial judge concluded that the violation of the statute was a “substantial factor” in causing the plaintiff’s injury, there is a total absence of any evidence in the record below to support a finding that the statutory violation was a proximate cause of the plaintiff’s injury.4
The pertinent portion of the statute on which the majority relies in affirming the district court’s judgment, involves the obligation of the defendant doctors to record their medical observations of the prisoner and to inform the warden if the physician believes the prisoner’s health is affected by the prisoner’s routine. In the record below there is no evidence of:
(a) the relationship, if any, of the medical work release to the statute claimed by the majority to have been violated by the defendants;
(b) whether or not entries were made by the defendants in the journal directed to be kept;
(c) whether the warden was informed by the defendants — or if and when he consulted the medical journal;
(d) whether the statutory procedures were followed at any time;
(e) the relationship of the statutory procedures to the administrative rule requiring 15 inmates to be in need of an orthopedic specialist before such a specialist could be brought into the prison;
(f) when or if the next meeting of inspectors (now the Board of Trustees) would take place;
(g) the effect upon the prisoner’s injury of defendants’ alleged failure to comply with the statute (apart from the failure to execute a medical work release).
In short, there is no competent evidence in the record to supply the necessary causal nexus between the purported violation of 61 P.S. § 372 and the injury suffered by the plaintiff.
*339Further, the only evidence in the record pertaining to an action of a prison physician which would directly affect the prisoner’s daily routine (without hospitalizing the prisoner), was the evidence of the doctors’ failure to issue a medical release5 excusing the plaintiff from work. However, as noted, no proof was submitted and the record is silent, as to the relation, if any, between the defendants’ failure to execute a medical release, the defendants’ obligation under the pertinent portion of the statute involved here, and the proximate cause of the injury suffered by plaintiff.
Confronted then, as I am, with an absence of evidence pertaining to the 1829 statute, and being unwilling to accept the premise that a violation of that statute must of necessity constitute the proximate cause of any injury suffered by a prisoner who was improperly treated by prison physicians, I believe that the theory on which the majority affirms defendants’ liability is untenable here.
Furthermore, I .believe that defendants’ violation of the statute, (if in fact such a violation occurred), constituting negligence as a matter of law, does not, of and by itself, supply the essential willfulness or wantonness precluding a defense of conditional immunity. E. g., Gulf, M. & O. R. Co. v. Freund, 183 F.2d 1005 (8th Cir. 1950), cert. denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950) (applying Illinois law). I believe that defendants’ violation of the statute involved here, may result in a characterization of their conduct as being negligent with all the effects of common law negligence, but with no greater effects. See W. Prosser, Law of Torts, § 35 at 202 (3d ed. 1964). Consequently, their negligence as a matter of law is not of the magnitude required to hold them to be liable as employees of the Commonwealth.
Accordingly, I would reverse the judgment of the district court which holds the defendant doctors liable as: (1) the plaintiff has failed in his proofs to surmount the defense of conditional immunity which shields the defendants; and (2) even if the majority is correct in its interpretation of Pennsylvania law, the plaintiff has failed to establish “ordinary negligence” proofs sufficient to impose liability upon the defendants.
. Pennsylvania law with regard to the individual liability of employees of the Commonwealth (state highway officials) was set forth in Dubree v. Commonwealth of Pennsylvania, 8 Pa.Cmwlth. at 574-575, 303 A.2d at 534:
To place liability upon a public official who is not a high public official, therefore, it is merely necessary to show that the officer concerned was not acting within the scope of his authority, and that the conduct complained of was intentional, as well as malicious, wanton or reckless. He may escape liability, however, if he did act within the scope of his authority and if his negligent conduct was not intentionally malicious, wanton or reckless.
. Burton, supra, involved members of a school board who were held conditionally immune from liability for having removed a teacher from her position; Yealy, supra, involved two highway supervisors who were held immune from liability when a bridge they constructed diverted water from a downstream mill; Brungard, supra, involved a college professor who was held immune from liability for an explosion in a laboratory classroom; Dubree, supra, involved the following state highway employees, all of whom were held to be conditionally immune from liability in a wrongful death action based on allegations that the defendants had removed a bridge and had not given warnings of the excavation: a District Engineer; an Assistant District Engineer; a Superintendent of the Maintenance Department; an Assistant Superintendent of the Maintenance Department; and two Foremen.
. ' 61 P.S. § 372 in pertinent part provides:
The [prison] physician shall inquire into the mental as well as the bodily *338state of every prisoner, and when he shall have reason to believe that the mind or body is materially affected by the discipline, treatment, or diet, he shall inform the warden thereof, and shall enter his observation on the journal hereinafter directed to be kept, which shall be an authority for the warden for altering the discipline, treatment or diet of any prisoner, until the next meeting of the inspectors, who shall inquire into the case and make orders accordingly.
. This conclusion is found in Conclusions of Law 10 through 12 of the district court’s opinion. Although denominated a Conclusion of Law, a finding of proximate cause in the instant context is properly a finding of fact. See Kridler v. Ford Motor Co., 422 F.2d 1182, 1185 (3d Cir. 1970) (applying Pennsylvania law); Anderson v. Bushong, 404 Pa. 382, 391, 171 A.2d 771, 775 (1961). Findings of fact are not to be set aside unless clearly erroneous, F.R.Civ.P. 52(a), Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972), and thus cannot stand in the absence of an evidential basis. Thornton v. United States, 493 F.2d 164, 167 (3d Cir. 1974).
. The district court treated the failure of the defendants to execute a medical release separately from the failure of the defendants to comply with 61 P.S. § 372. In Conclusion of Law 9, the district court held that the failure of the physicians to execute a medical release breached a duty owed to the plaintiff and that the negligence resulting therefrom was a substantial factor in causing the plaintiffs fracture to heal improperly. In any event, as I read the majority opinion, it does not rely upon the failure of the defendants to issue a medical release as a basis for affirming liability.