Tarantino v. Allentown State Hospital

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Tarantino v. Allentown State Hospital
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Terri Lee Halderman, a Retarded Citizen, by Her Mother and Guardian, Winifred Halderman Larry Taylor, a Retarded Citizen, by His Parents and Guardians, Elmer and Doris Taylor Kenny Taylor, a Minor, a Retarded Citizen, by His Parents and Guardians, Elmer and Doris Taylor Robert Sobetsky, a Minor, a Retarded Citizen, by His Parents and Guardians, Frank and Angela Sobetsky Theresa Sobetsky, a Retarded Citizen, by Her Parents and Guardians, Frank and Angela Sobetsky Nancy Beth Nowman, a Retarded Citizen, by Her Parents and Guardians, Mr. And Ms. Horace Nowman Linda Taub, a Retarded Citizen, by Her Parents and Guardians, Mr. And Mrs. Allen Taub George Sorotos, a Minor, a Retarded Citizen, by His Foster Parents, William and Marion Caranfa, All of the Above Individually and on Behalf of All Others Similarly Situated the Parents and Family Association of Pennhurst Pennsylvania Association for Retarded Citizen, Jo Suzanne Moskowitz, a Minor, by Her Parents and Next Friends, Leonard and Nancy Moskowitz, Robert Hight, a Minor, by His Parents and Next Friends, John and Jeanne Hight, David Preusch, a Minor by His Parents and Next Friends, Calvin and Elizabeth Preusch, and Charles Dinolfi, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Intervenors, United States of America, Plaintiff-Intervenor v. Pennhurst State School & Hospital, Department of Public Welfare of the Commonwealth of Pennsylvania, Frank S. Beal, Secretary of the Department of Public Welfare, Stanley Meyers, Deputy Secretary for Mental Retardation, Department of Public Welfare, Helene Wohlgemuth, Former Secretary, Department of Public Welfare, Aldo Colautti, Executive Deputy Secretary, Department of Public Welfare, Wilbur Hobbs, Deputy Secretary for Southeastern Region, Department of Public Welfare, Russell Rice, Jr., Commissioner of Mental Retardation for Southeastern Region, Department of Public Welfare, C. Duane Youngberg, Superintendent, Pennhurst State School & Hospital, Robert Smilovitz, Former Assistant Superintendent, Pennhurst State School & Hospital, Joseph Foster, Assistant Superintendent, Pennhurst State School & Hospital, Margaret Green, Betty Uphold, Alice Barton, P.E. Klick, Dr. Parocca, Helen Francis, Employees and Agent of Pennhurst State School & Hospital, John Doctor, James Nurse, Jane Aide, Jill Therapist, Richard Roe, Jane Doe, Unknown and Unnamed Staff, Employees and Agents of Pennhurst State School & Hospital, Each Individual Sued Individually and in His or Her Official Capacity, George Hetzger, Joseph Catania, and Roger Bowers, Commissioners for Bucks County, Robert Strebl, Earl Baker and Leo McDermott Commissioners for Chester County, Faith R. Whittlesey, Charles Keller, and William Spingler, Commissioners for Delaware County, A. Russell Parkhouse, Frank W. Jenkins and Lawrence H. Curry, Commissioners for Montgomery County, Mayor Frank L. Rizzo and the City of Philadelphia, as Authorities for Philadelphia County, Peter Bodenheimber, Mental Health/mental Retardation Administration for Bucks County, William A. McKendry Mental Health/mental Retardation Administrator for Chester County, P. Paul Burrichter, Mental Health/mental Retardation Administration for Delaware County, Herman A. Roether, Mental Health/mental Retardation Administration for Montgomery County and Leon Soffer, Mental Health/mental Retardation Administrator for Philadelphia County. Appeal of Pennhurst State School and Hospital, the Department of Public Welfare, Secretary of Public Welfare, the Deputy Secretary of Mental Retardation, the Executive Deputy Secretary of Public Welfare, the Deputy Secretary for Southeast Region, the Commissioner for Mental Retardation for Southeast Region, the Superintendent for Pennhurst State School and Hospital and the Employees and Agents for Pennhurst State School and Hospital, No. 89-1788. Appeal of Commissioners and Mental Health/mental Retardation Administrator of Montgomery County, Pennsylvania, No. 89-1841. Appeal of the Mental Health/mental Retardation Administration and County Council of Delaware County, Pennsylvania, No. 89-1842

Opinion by

Judge Rogers,

Plaintiff Joseph M. Tarantino, administrator of the estate of Janice A. Tarantino, deceased, has filed wrongful death and survival actions against the Commonwealth of Pennsylvania, the Department of Public Welfare and the Allentown State Hospital charging the defendants with negligent and improper treatment of his decedent at Allentown State Hospital. At issue are the defendants’ preliminary objections grounded on sovereign immunity.

The complaint must be dismissed. We may not entertain suits against the Commonwealth and its agencies without the consent of the Commonwealth. Pa. Const. Art. I, §11 (1968); Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179, 301 A. 2d 849 (1973). The Department of Public Welfare and the Allentown State *135Hospital, as defendants, are clearly within the scope of constitutional interdiction. McCoy v. Commonwealth, 9 Pa. Commonwealth Ct. 107, 305 A. 2d 746 (1973), aff'd per curiam, 457 Pa. 513, 326 A. 2d 396 (1974). As we have repeatedly written,1 most recently in Hart v. Spectrum Arena, Inc., 15 Pa. Commonwealth Ct. 584, 329 A. 2d 311 (1974), this court is without power to set aside the Constitution and superior appellate authority.

The defendants’ preliminary objections are sustained and the complaint dismissed.

Williams v. Commonwealth, 12 Pa. Commonwealth Ct. 384, 316 A. 2d 685 (1974); Duquesne Light Company v. Department of Transportation, 6 Pa. Commonwealth Ct. 364, 295 A. 2d 351 (1972).