           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bruce A. Casteel and Joy R. Casteel, :
Individually and as Administrators of :
Carly A. Miller, Deceased             :
                                      :
              v.                      :
                                      :
Lonny Tinkey; George Lepley;          :
John W. Benford and Shirley A         :
Benford, husband and wife;            :
Shirjon Inc., t/d/b/a Laurel          :
Mountain Inn; the Commonwealth of :
Pennsylvania; the Pennsylvania        :
Department of Health; and the         :
Pennsylvania Advisory Counsel on :
Civil Drug and Alcohol Abuse          :


Bruce A. Casteel and Joy R. Casteel, :
Individually and as Administrators of :
Carly A. Miller, Deceased             :
                                      :
             v.                       :
                                      :
Commonwealth of Pennsylvania          :
Department of Corrections             :

Appeal of: Bruce A. Casteel and       :
Joy R. Casteel, Individually and as   :
Administrators of Carly A. Miller,    : No. 1881 C.D. 2014
Deceased                              : Submitted: November 16, 2015
BEFORE:         HONORABLE DAN PELLEGRINI, President Judge1
                HONORABLE MARY HANNAH LEAVITT, Judge2
                HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION BY
PRESIDENT JUDGE PELLEGRINI3                          FILED: December 5, 2016


                Bruce A. Casteel and Joy R. Casteel (Appellants), individually and as
Administrators of the estate of Carly A. Miller, deceased (Decedent), appeal from the
April 28, 2010 order4 of the Court of Common Pleas of Somerset County (trial court)
granting the motion for summary judgment filed by the Commonwealth of
Pennsylvania, the Pennsylvania Department of Health (DOH), the Pennsylvania
Advisory Council on Drug and Alcohol Abuse (Advisory Council), and the
Pennsylvania Department of Corrections (DOC) (collectively, the Commonwealth) to
the consolidated complaints filed by Appellants on July 14, 1995, and September 6,
1996.5



       1
         This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.

       2
        This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.

       3
           This case was assigned to the authoring judge on October 31, 2016.

       4
        This order of the trial court was made final by order dated October 2, 2014. Therefore, the
appeal was timely as it was filed on October 10, 2014.

       5
         The July 14, 1995 complaint named all defendants other than the DOC, which was named
as a defendant in the September 6, 1996 complaint. The trial court consolidated the complaints on
January 13, 1997.
                                                I.
              The overarching issue in this case is whether Decedent’s estate can bring
an action against the Commonwealth under the medical profession exception to
immunity6 because the person responsible for Decedent’s death for driving while
intoxicated did not receive treatment for alcohol abuse as provided for in the Drug
and Alcohol Abuse Control Act (Act), Act of April 14, 1972, P.L. 221, No. 63, as
amended, 71 P.S. §§ 1690.101 – 1690.115 while in the County jail. A subsidiary
issue is whether employees of the County and its contractors are state agents when
implementing the plan at the local level provided for in the Act.


              The Act provides that the DOH (Department of Drug and Alcohol
Programs) shall have the power:

              (1) To develop and adopt a State plan for the control,
              prevention, intervention, treatment, rehabilitation, research,
              education and training aspects of drug and alcohol abuse


       6
         The act commonly referred to as the Pennsylvania Sovereign Immunity Act (Sovereign
Immunity Act), 42 Pa.C.S. §§ 8521-8528, waives sovereign immunity as a bar to actions against the
Commonwealth for damages arising out of a negligent act where the damages would be recoverable
under common law or statute and the negligent act falls within one of the nine enumerated
exceptions set forth at § 8522(b). See 42 Pa.C.S. § 8522(a). Pursuant to Section 8522(b) of the
Sovereign Immunity Act, liability may be imposed on a Commonwealth party for claims of
damages caused by:

              (2) Medical-professional 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.

42 Pa.C.S. § 8522(b)(2).




                                                2
              and dependence problems. The State plan shall include, but
              not be limited to, provisions for:

                     (xv) Treatment and rehabilitation services for
              male and female juveniles and adults who are charged
              with, convicted of or serving a criminal sentence for any
              criminal offense under the laws of this Commonwealth.
              . . . These services shall include, but are not limited to,
              emergency medical services, inpatient services and
              intermediate care, rehabilitative and outpatient services.


Section 2301-A of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177,
added by the Act of July 9, 2010, P.L. 348, as amended, 71 P.S. § 613.1(1)(xv).7
(Emphasis added.)


              Counties that wish to receive state and federal funding for treatment and
prevention efforts are required by the State Plan to designate single county authorities
(SCAs) to be responsible for program planning and the administration of federal and
state-funded grants and contracts. (R.R. at 160-69.) Counties are granted flexibility
in how they choose to administer programs by allowing for the establishment of a
public entity within its local government structure, a private non-profit body, or an
entity under the auspices of the county mental health/mental retardation programs.
Id. at 161. Most services are provided by independent facilities under contract with
the SCAs.     Id.   Here, Somerset County created Somerset SCA, which, in turn,
contracted with Twin Lakes Center for Drug and Alcohol Rehabilitation (Twin
Lakes), a private entity, to provide drug and alcohol treatment services.

       7
         The Advisory Council was established by Section 3 of the Act, 71 P.S. § 1690.103, and
requires the DOH to seek written advice from the Advisory Council in the development and
implementation of the State Plan and related matters.




                                              3
              The applicable State Plan “contains requirements that become legally
binding through incorporation into contracts between the DOH’s Office of Drug and
Alcohol Programs (ODAP) and the Single County Authorities (SCAs).” Id. at 159.
Additionally, as part of its “Statement of Policy” for “Single County Authority,” the
State Plan provides:

              This Chapter is intended to establish a statewide system of
              agencies which shall have the responsibility for assisting the
              Department in planning for community-based services. It is
              the position of the Department that no central authority can
              determine precisely what services are necessary in each of
              the 67 counties of this Commonwealth. Consequently, the
              emphasis in this State Plan is on the establishment of
              community-based drug and alcohol prevention, intervention
              and treatment services. The State Plan allows for the
              formation of SCAs to provide services and receive funding,
              and provides the exclusive options for their organizational
              structures.


Id. at 162.    Further, Somerset SCAs’ Plan includes an “Organizational Chart”
showing the Commonwealth in the highest position, superior to the Somerset County
Commissioners and the Somerset SCA Director thereunder. Id. at 173.


              There is also a separate provision for individuals who are incarcerated.
Section 6 of the Act, entitled “Drug or alcohol abuse services in correctional
institutions, juvenile detention facilities and on probation and parole,” provides:

              (a) The services established by this act shall be used by the
              Department of Corrections and the Department of
              Public Welfare for drug and alcohol abusers or drug and
              alcohol dependent offenders, including juveniles, placed on
              work release, probation, parole, or other conditional release.


                                            4
              The department shall coordinate the development of and
              encourage State and appropriate local agencies and
              departments including the Department of Corrections and
              Board of Probation and Parole, pursuant to the State plan, to
              establish community based drug and alcohol abuse
              treatment services and of drug and alcohol abuse treatment
              services in State and county correctional institutions.

              Medical detoxification and treatment shall be provided
              for persons physically dependent upon alcohol or
              controlled substances at correctional institutions and
              juvenile detention facilities or in available appropriate
              medical facilities.


71 P.S. § 1690.106(a). (Emphasis added.)


                                                II.
                                                A.
              The facts underlying Appellants’ complaint are not in dispute and may
be summarized as follows. Having caused a very serious motor vehicle accident in
Somerset County in 1993, Lonny Tinkey (Tinkey) was charged with a number of
misdemeanors and summary offenses.               He was sentenced by the trial court in
February 1994 to a sentence in the Somerset County Jail of three to 23 months.8
Upon recommendation of the Somerset County District Attorney and the Somerset
County Adult Probation Department, the sentencing court issued a work-release order
under which Tinkey would be allowed to maintain his employment at Hidden Valley
Ski Resort, subject to certain conditions. Among other things, defendant Tinkey

       8
         The Somerset County Jail is a county correctional facility operated by Somerset County, as
distinguished from a State Correctional Institution, operated by the Pennsylvania Department of
Corrections.




                                                5
agreed to “refrain from all use of alcohol and drugs” while on work-release. (R.R. at
151.) The trial judge specified that “[t]he defendant will obtain a drug and alcohol
evaluation and successfully complete any recommendations for counseling and
treatment, at the defendant’s expense.” (R.R. at 101.)


               On March 23, 1994, while on work-release, Tinkey consumed beer that
he allegedly purchased from defendant Shirjon, Inc., trading and doing business as
Laurel Mountain Inn (Laurel Mountain Inn), borrowed the truck of defendant George
Lepley, and, while driving under the influence, struck and killed Carly Miller and her
friend, Stacy Overton, as they walked along State Route 601. On December 7, 1994,
Tinkey was sentenced to 14 years’ imprisonment in a state correctional facility
following his conviction of homicide by vehicle while driving under the influence.
(Trial court op. at 2.)


                                                 B.
               Appellants filed complaints asserting wrongful death and survival
actions against the above-named private defendants9 as well as the Commonwealth.
As against the Commonwealth, in Count IV of the Complaint, they allege that the Act
requires that medical treatment be provided to persons dependent upon alcohol or
controlled substances at correctional institutions and other facilities.10 71 P.S. §


       9
         The claims against the private defendants set forth in Counts I, II and III of the Complaint
are no longer at issue.

       10
          Section 6 of the Act, entitled “Drug or alcohol abuse services in correctional institutions,
juvenile detention facilities and on probation and parole,” provides, in relevant part:

(Footnote continued on next page…)

                                                  6
1690.106(a). Specifically, they contend the Act mandates that the DOH develop a
state plan for such treatment, which shall include emergency medical services,
inpatient services, intermediate care, rehabilitation and outpatient services. 71 P.S. §
613.1(1)(xv). They contend through the establishment of the Advisory Council that
the Commonwealth retained final authority for implementation of and compliance
with the Act. 71 P.S. § 1690.103.


              Because Tinkey was never evaluated, treated or provided with
rehabilitation services for his alcohol dependency and alcohol-related offenses when
he was in the Somerset County jail, Appellants contend that was a “treatment
decision” of the Commonwealth, its agencies, its health care employees and its
related health care personnel.           According to Appellants, the Commonwealth
defendants’ failure to comply with the Act constitutes negligence per se and makes
the Commonwealth liable to them for injuries they sustained. The Commonwealth
then filed an answer and new matter11 asserting that they had no duty to Appellants
and raising sovereign immunity as an affirmative defense.

(continued…)

              Medical detoxification and treatment shall be provided for persons
              physically dependent upon alcohol or controlled substances at
              correctional institutions and juvenile detention facilities or in
              available appropriate medical facilities.

71 P.S. § 1690.106(a).

       11
          The Commonwealth initially filed preliminary objections to the complaint that contended,
among other things, sovereign immunity. Appellants objected, claiming, in part, that the
Commonwealth defendants improperly raised the defense of sovereign immunity in preliminary
objections rather than in new matter. The trial court agreed and dismissed the preliminary
objections without opinion. The Commonwealth defendants then filed an answer and new matter
(Footnote continued on next page…)

                                                7
                                                 C.
               After conducting discovery, the Commonwealth filed a motion for
summary judgment contending that the Appellants could not demonstrate that any of
the Commonwealth defendants owed them, or Decedent, any duty. It also contended
that Appellants failed to demonstrate that they fell within the medical-professional
exception to immunity because they failed to establish that: (1) they had a cause of
action for which there was recovery under common law or statute; and (2) the
negligent act was one for which immunity has been specifically waived. As to the
first prong, the Commonwealth contended that there existed no common law cause of
action for failure to provide treatment and no statutory cause of action because the
Act does not create a private cause of action if any provision of the Act was not
followed. It also alleged that the DOH and Advisory Council have no duty under the
Act to make individual treatment decisions with regard to alcohol dependency.




(continued…)

raising sovereign immunity as an affirmative defense. In this appeal, Appellants argue that because
another trial judge “rejected” the Commonwealth defendants’ sovereign immunity argument when it
dismissed the Commonwealth defendants’ preliminary objections, the trial court’s subsequent
consideration of that issue in granting summary judgment is barred by the law of the case doctrine.
“The law of the case doctrine refers to a family of rules which embody the concept that a court
involved in the later phases of a litigated matter should not reopen questions decided by another
judge of that same court….” Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). In Goldey
v. Trustees of the University of Pennsylvania, 675 A.2d 264 (Pa. 1996), our Supreme Court
explained that “[w]here the motions differ in kind, as preliminary objections differ from motions for
judgment on the pleadings, which differ from motions for summary judgment, a judge ruling on a
later motion is not precluded from granting relief although another judge has denied an earlier
motion.” Id. at 267. Because the motions fall squarely within the court’s holding in Goldey, the
doctrine of law of case does not apply.




                                                 8
             The Commonwealth further argued that even if there was a common law
action or a statutory cause of action, the alleged negligent acts did not fall within the
medical-professional exception to sovereign immunity because Appellants have not
alleged negligence of any health care employee of the named Commonwealth
agencies or any health care personnel. Instead, the time that they allege that Tinkey
was entitled to alcohol treatment was when he was in the custody of the County, not
the Commonwealth facility. In any event, the Commonwealth contended that claims
against the facilities for institutional or administrative negligence are not
encompassed within this exception to sovereign immunity.


             In response to the summary judgment motion, Appellants argued that the
Commonwealth defendants have a mandatory duty under the Act to provide drug and
alcohol treatment services to all inmates across the Commonwealth. Appellants
contended that the Act, through its State Plan, created a statewide system of SCAs
and/or private entities, and that every SCA or private entity was required to
implement the State Plan via direct contracts with the DOH.                 According to
Appellants, if a county did not create an SCA or contract with another entity to
provide services, the DOH obtained services for that area directly by contracting with
an entity to provide the same. Appellants maintained that the Commonwealth turned
to the Somerset County Single County Authority (Somerset SCA), which contracted
with Twin Lakes to carry out the mandatory requirements of the DOH’s State Plan12
and the express statutory language of the Act. Accordingly, Appellants argued that

      12
           The Pennsylvania State Plan for the Control, Prevention, Intervention, Treatment,
Rehabilitation, Research, Education and Training Aspects of Drug and Alcohol Abuse and
Dependence Problems - State Fiscal Year 1993/94. (R.R. at 158-69.)




                                             9
the Somerset SCA and Twin Lakes were agents of the Commonwealth, subjecting
them to both the protections and immunities waived under the Sovereign Immunity
Act.


                                                 D.
               Following oral argument, the trial court issued a memorandum and order
dated April 28, 2010, granting the Commonwealth defendants’ summary judgment
motion.13 The trial court rejected Appellants’ assertion that the medical-professional
exception to sovereign immunity, relating to damages caused by “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,”
42 Pa.C.S. § 8522(b)(2), applied in this case.


               Initially, the trial court observed that Appellants had not sued a
Commonwealth party who is a doctor, dentist, nurse or related health care person.
Thus, the only portion of the medical-professional liability exception potentially
applicable was whether the alleged damages were caused by “acts of health care
employees of Commonwealth agency medical facilities or institutions.” (Trial court
op. at 6.) The trial court also assumed, for purposes of its analysis, that Twin Lakes


       13
           “Summary judgment is appropriate only where the record clearly demonstrates that there
is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.
An appellate court may reverse a grant of summary judgment if there has been an error of law or an
abuse of discretion. The issue as to whether there are genuine issues as to any material fact presents
a question of law; thus, on that question, our standard of review is de novo and our scope of review
is plenary.” Shedden v. Anadarko E. & P. Co., L.P., 136 A.3d 485, 489 (Pa. 2016) (internal
citations omitted).




                                                 10
employed “health care employees” as contemplated by the medical-professional
liability exception. However, the trial court indicated that employees of Twin Lakes
were the only relevant health care employees involved in this case, and stated that
they were not employed by the Commonwealth.


               The trial court determined that Twin Lakes was not a Commonwealth
agency, and that it was under contract with Somerset SCA, “an agency of Somerset
County, a local agency.” Id. at 8. The trial court stated that there was no way to
impute such an entity’s acts or omissions to the Commonwealth, nor was there an
exception that would subject the Commonwealth defendants to liability even if
liability could be imputed.          Thus, the trial court held that the Commonwealth
defendants were entitled to sovereign immunity. After all claims against all parties
had been disposed of, Appellants filed a timely appeal with this Court challenging the
entry of summary judgment in favor of the Commonwealth defendants.


                                                 III.
               On appeal, Appellants argue, inter alia, that the trial court erred by
ignoring disputed issues of material fact as to whether Somerset SCA acted as a
surrogate or agent of the Commonwealth.14 Appellants argue that, under the Act, the
Commonwealth had a mandatory duty to provide drug and alcohol treatment and
services to Tinkey, that Somerset SCA and Twin Lakes were acting as agents of the

       14
         Appellants also argue that the trial court should be reversed on public policy grounds.
However, it is well settled that, in light of the legislature’s clear intent to insulate government from
exposure to tort liability, the exceptions to sovereign immunity must be strictly construed and
narrowly interpreted. See, e.g., Stein v. Pennsylvania Turnpike Commission, 989 A.2d 80, 84-85
(Pa. Cmwlth. 2010); Crockett v. Edinboro University, 811 A.2d 1094, 1096 (Pa. Cmwlth. 2002).




                                                  11
Commonwealth with respect to the same, and that the failure to provide evaluation
and treatment services to Tinkey constitutes negligence per se.


                                                 A.
               Before addressing the issue of whether Somerset SCA and Twin Lakes
were acting as agents of the Commonwealth and that conduct falls within the
medical-professional exception to liability, it is necessary to address the
Commonwealth’s argument that Appellants have failed to make out a common law
cause of action against the Commonwealth or that immunity has been waived for acts
of third parties.15


               In order to maintain an action against a commonwealth party, a plaintiff
must establish that he or she has a statutory cause of action or that it was one
maintainable at common law. Peak v. Petrovich, 636 A.2d 1248 (Pa. Cmwlth. 1994).
An action is deemed to be maintainable at common law if it existed at English common
law or in statutes in force in Pennsylvania on May 17, 1776. See 1 Pa. C.S. § 1503.
The most frequent common law cause of action brought against a governmental party is
negligence. To establish common law negligence, the following elements must be
generally met:



       15
           Even though the cause of action did not exist at common law, an action can still be
brought against the governmental entity if there is a cause of action created by statute that allows
the plaintiff to maintain the action, e.g., wrongful death. In any event, unless specifically waived
within the enabling legislation, the negligent conduct has to fall within one of the exceptions to
immunity. Appellants do not contend that there is a cause of action created by the Act, only that its
purported failure to provide treatment authorized by the Act was negligence per se.




                                                 12
             1. A duty or obligation recognized by the law, requiring the
             actor to conform to a certain standard of conduct, for the
             protection of others against unreasonable risks;

             2. A failure on his part to conform to the standard required;

             3. A reasonably close causal connection between the conduct
             and the resulting injury;

             4. Actual loss or damage resulting to the interests of another.


Farber v. Engle, 525 A.2d 864, 867 (Pa. Cmwlth. 1987). The Commonwealth contends
that Appellants failed to show that it had a duty to the Appellants or that its conduct
caused the accident.


             Assuming (1) that under the Act, Tinkey has to be provided with
treatment; (2) that the trial judge’s order granting him work-release with the caveat that
he receive alcohol treatment did not satisfy or at least relieve the County’s obligation to
provide treatment while in the County jail; and (3) that a commonwealth party was
negligent, negligence has not been made out because the Commonwealth has breached
no duty to Appellants. The Act provides that individuals who are incarcerated with
drug or alcohol problems are to receive treatment. If Tinkey did not receive treatment
while incarcerated, he could possibly bring an action for the prison authorities to
provide him with such treatment.        However, the failure to receive treatment or
inadequate treatment does not make the Commonwealth liable to third parties even if
negligence can be shown.


             Any purported negligence in not providing Tinkey treatment is not
maintainable because it falls within the public duty doctrine. This doctrine provides


                                            13
that a plaintiff, when alleging some negligent performance of a governmental activity,
has the burden to show that the government owed a duty to the plaintiff and not solely
for the benefit of the general public when performing the activity in question. If the
activity is designed solely for the benefit of the general public, even though it is
foreseeable that the negligence of the governmental entity will then cause harm to the
plaintiff, the action fails for lack of legal duty owed to the plaintiff. Thomas v. City of
Philadelphia, 574 A.2d 1205 (Pa. Cmwlth. 1990). This doctrine covers both when the
commonwealth party negligently fails to undertake some sort of action, and when it
undertakes an action but does so negligently. Negligently undertaken activities that
have been held to be a public duty and, therefore, not actionable include:

             • extinguishing fires and saving property. Fire Ins. Patrol v.
             Boyd, 15 A. 553 (Pa. 1888); Zern v. Muldoon, 516 A.2d 79
             (Pa. Cmwlth. 1986).

             • providing police protection to any particular person.
             Agresta v. City of Philadelphia, 631 A.2d 772 (Pa. Cmwlth.
             1993), overruled in part by City of Philadelphia Police
             Department v. Gray, 633 A.2d 1090 (Pa. 1993); Morris v.
             Musser, 478 A.2d 937 (Pa. Cmwlth. 1984); Melendez by
             Melendez v. City of Philadelphia, 66 A.2d 1060 (Pa. Super.
             1983); Chapman v. City of Philadelphia, 434 A.2d 753 (Pa.
             Super. 1981).

             • negligently investigating of criminal activity by police.
             Murphy v. City of Duquesne, 898 A.2d 676 (Pa. Cmwlth.
             2006).


             Because the duties under the Act are “public duties,” any purported
negligence in not providing treatment is not actionable even if it falls within this
medical-professional exception to immunity.



                                            14
                                         B.
            Even assuming that it had a cognizable duty to Decedent and was
negligent in not providing Tinkey with alcohol treatment and that conduct fell within
the medical-professional exception, the Commonwealth still would be immune
because it can only be liable for injuries caused by its employees and not of third
parties.


            In Moore v. Commonwealth, Department of Justice, 538 A.2d 111 (Pa.
Cmwlth. 1988), we addressed an allegation that injuries occurred to a person due to
the negligence of commonwealth medical-professionals in releasing a prisoner. In
that case, Moore had been a witness to an armed robbery and was prepared to testify
against the actor when the actor pled guilty and was sentenced to a state correctional
facility. After the actor had served ten months of his sentence, he was approved by
prison officials for a two-day home furlough. The actor failed to return to prison and
one month later shot Moore, causing Moore to suffer paraplegia and loss of hearing.
Moore filed complaints against the Commonwealth and the individual defendants
alleging that defendants were negligent in approving the furlough and in failing to
properly diagnose, treat or recognize the actor’s psychiatric condition, and that
conduct fell within the medical-professional exception.


            Rejecting Moore’s contention that the allegations against the
Commonwealth fell within the waiver of immunity for medical-professional liability,
we stated “[t]he Pennsylvania Supreme Court has recently declared that the General
Assembly has not waived the immunity of the ‘Commonwealth or its local agencies’
for harm caused by third persons ‘in any of the eight [immunity] exceptions.’” Id. at



                                         15
113 (quoting Chevalier v. City of Philadelphia, 532 A.2d 411, 413 (Pa. 1987)). See
also Johnson v. Southeastern Pennsylvania Transportation Authority, 532 A.2d 409
(Pa. 1987).


              In this case, even if the failure to provide alcohol treatment fell within
the medical-professional exception and there was a duty to Decedent, the
Commonwealth has not waived immunity for the acts of third parties – in this case,
Tinkey’s driving while intoxicated.


                                          IV.
                                           A.
              Not only was there no duty to Decedent, and immunity for injuries
caused by third parties has not been waived even when the negligence falls within
one of the exceptions to immunity, Appellants’ allegation that the Commonwealth
was negligent because it failed to provide Tinkey with alcohol treatment as provided
for in the Act cannot be maintained because that conduct does not fall within the
medical-professional exception to immunity.


              Relying on Goryeb v. Department of Public Welfare, 575 A.2d 545 (Pa.
1990), Appellants, however, contend that the Act makes failure to provide alcohol
treatment negligence per se and immunity was waived because it must be read in pari
materia with the medical-professional exception to sovereign immunity. In Goryeb,
the appellants filed suit against a state hospital, the Commonwealth, the Department
of Public Welfare, and a hospital physician, alleging that they were grossly negligent




                                           16
and committed willful misconduct when they discharged a psychiatric patient who
they knew or should have known presented a danger to himself and others.


                The applicable statutory scheme, set forth in Section 114 of the Mental
Health Procedures Act,16 provided:

                (a) In the absence of willful misconduct or gross negligence,
                a county administrator, a director of a facility, a physician, a
                peace officer or any other authorized person who
                participates in a decision that a person be examined or
                treated under this act, or that a person be discharged, or
                placed under partial hospitalization, outpatient care or leave
                of absence, or that the restraint upon such person be
                otherwise reduced, or a county administrator or other
                authorized person who denies an application for voluntary
                treatment or for involuntary emergency examination and
                treatment, shall not be civilly or criminally liable for such
                decision or for any of its consequences.


50 P.S. § 7114 (emphasis added). Referencing the rules of statutory construction, the
court, in Goryeb, interpreted the medical exception to sovereign immunity together
with the Mental Health Procedures Act, and reasoned as follows:

                Applying the pertinent rules of statutory construction to the
                case sub judice leads to the inescapable conclusion that the
                relevant medical exception to the Sovereign Immunity Act
                must be read in conjunction with, and as limited by, the
                relevant immunity section of the Mental Health Procedures
                Act. This conclusion is reinforced by the provisions of
                Section 4(a) of Act 1978, Sept. 28, P.L. 788, No. 152,
                which was adopted in conjunction with 1 Pa.C.S. § 2310

      16
           Act of July 9, 1976, P.L. 817, as amended, 50 P.S. § 7114.




                                                 17
            and the former 42 Pa.C.S. § 5110, the predecessor of the
            current Sovereign Immunity Act. Section 4(a) lists certain
            statutes, including, inter alia, the Mental Health Procedures
            Act, which either affect or are affected by the Sovereign
            Immunity Act. The affected statutes “are repealed insofar
            as they waive or purport to waive sovereign immunity
            inconsistent with this act, but are saved from repeal insofar
            as they provide defenses or immunities from suit.” Since
            the Sovereign Immunity Act contains a medical-
            professional liability exception, it is not inconsistent with
            the immunity section of the Mental Health Procedures Act,
            i.e. 50 P.S. § 7114; therefore, the latter statute has not been
            repealed. Indeed, by applying the second portion of the
            above-quoted language, it is clear that the legislative intent
            is to provide the Commonwealth with the additional
            protections of 50 P.S. § 7114, i.e. no civil or criminal
            liability except in a case of willful misconduct or gross
            negligence.

            Accordingly, by construing the two statutes in pari materia,
            as we are constrained to do, the following rule emerges.
            When a Commonwealth party participates in a decision that
            a person be examined, treated or discharged pursuant to the
            Mental Health Procedures Act, such a party shall not be
            civilly or criminally liable for such decision or for any of its
            consequences except in the case of willful misconduct or
            gross negligence. Conversely, and most importantly to the
            instant case, a Commonwealth party participating in a
            decision to examine, treat or discharge a mentally ill
            patient within the purview of the Mental Health Procedures
            Act who commits willful misconduct or gross negligence
            can be liable for such decision.


575 A.2d at 548-49 (emphasis added) (footnotes omitted). The court noted that a
“Commonwealth party” is defined as “a Commonwealth agency and any employee
thereof, but only with respect to an act within the scope of the employee’s office or
employment.” 42 Pa.C.S. § 8501.




                                          18
              Appellants argue that, like the statute at issue in Goryeb, the Act does
not conflict with the Sovereign Immunity Act and does not preclude a suit for
negligence.     However, Appellants overlook the significant fact that, unlike the
Medical Health Procedures Act, the Act does not authorize suit nor does it contain
any language extending the limited waiver of sovereign immunity provided by the
medical-professional exception at § 8522(b)(2).              Mindful that the exceptions to
sovereign immunity must be strictly construed and narrowly interpreted, Stein, and
absent any language in the Act that expands the waiver of sovereign immunity, we
necessarily conclude that the Appellants’ argument in this regard also fails.


                                                B.
              Central to Appellants’ arguments is that the SCA and its contractors are
agents of the commonwealth in carrying out any responsibilities under the Act. That
is important because the medical-professional liability exception waives immunity for
a commonwealth party for “acts of health care employees of the commonwealth
agency, medical facility or institutions or by a commonwealth party17 who is a doctor,

       17
          42 Pa.C.S. § 8522 provides that the protection of sovereign immunity is available to all
commonwealth parties. A commonwealth party is defined as “a commonwealth agency and
employee, but only with respect to an act within the scope of his office or employment.” 42 Pa.C.S.
§ 8501. After that, to determine what is a commonwealth party requires going from defined term to
term. Under 42 Pa.C.S. § 102, a commonwealth agency is defined as “[a]n executive agency or
independent agency.” Agencies are classified as “executive” if they are under the supervision and
control of the Governor and, if they are not, as “independent.” Id. Both of these types of agencies
are expressly defined as including entities such as boards, commissions, authorities and other
agencies “of the Commonwealth government.” Id. “Commonwealth government” is, in turn,
defined as encompassing “the departments, boards, commissions, authorities and officers and
agencies of the commonwealth, but the term does not include any political subdivision, municipal
or other local authority, or any officer or agency of any such political subdivision or local
authority.” Id.




                                                19
dentist, nurse or related health care personnel.” 42 Pa.C.S. § 8522(b)(2). There is no
corresponding exception for local agencies. Again, assuming the purported negligent
conduct otherwise falls within the medical-professional exception, nothing in the Act
makes the SCA and its contractors agents of the commonwealth in carrying out any
duties assigned to it by the Act.


             The Act required the DOH to create a State Plan. Counties that wish to
receive state and federal funding for treatment and prevention efforts are required by
the State Plan to designate SCAs to be responsible for program planning and the
administration of federal and state-funded grants and contracts. (State Plan, Ch. 1,
Single County Authority Requirements, R.R. at 160-69.)           Counties are granted
flexibility in how they choose to administer programs by allowing for the
establishment of either a public entity within its local government structure, a private
non-profit body, or an entity under the auspices of the county mental health/mental
retardation programs. (R.R. at 161.) Most services are provided by independent
facilities under contract with the SCAs. (Id.) Somerset County created the SCA, a
county authority, which, in turn, contracted with Twin Lakes, a private entity, to
provide drug and alcohol treatment. Nothing in this Act makes SCA or Twin Lakes
agents of the Commonwealth in carrying out their responsibilities.


             Moreover, to be a commonwealth agency, the entity must have been
created by the Commonwealth. See, e.g., Rawlings v. Bucks County Water and Sewer
Authority, 702 A.2d 583, 587 (Pa. Cmwlth. 1997). In Rawlings, we held that the
Bucks County Water and Sewer Authority was not entitled to sovereign immunity. In
so holding, we reasoned that whereas the legislature was clear to designate agencies



                                          20
organized under the Second Class Cities Port Authority Act18 and the Housing
Authority Law19 as Commonwealth agencies, the legislature clearly intended that
entities created pursuant to the former Municipality Authorities Act of 1945 20 would
be deemed local agencies with the same immunity as the municipalities that created
them.


                  The SCA was created by Somerset County, not the state, and is a county
authority.       Rawlings.      As a county agency, the SCA and its agents are not
commonwealth parties authorized to exercise the public powers of the
Commonwealth.


                  Moreover, the medical-professional exception to sovereign immunity at
42 Pa.C.S. § 8522(b)(2) applies to “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,” and a Commonwealth party is defined
as “a Commonwealth agency and any employee thereof, but only with respect to an
act within the scope of the employee’s office or employment.” 42 Pa.C.S. § 8501.
As the trial court correctly observed, neither the employees of Twin Lakes nor the
employees of the SCA are Commonwealth health care employees as contemplated by



        18
             Act of April 6, 1956, P.L. (1955) 1414, as amended, 55 P.S. §§ 551-563.5.

        19
             Act of May 28, 1937, P.L. 955, as amended, 35 P.S. §§ 1541-1568.1.

        20
          Act of May 2, 1945, P.L. 382, as amended, 53 P.S. §§ 301-322, repealed by Section 3 of
the Act of June 19, 2001, P.L. 287.




                                                   21
the Sovereign Immunity Act. Thus, Appellants cannot establish that an exception to
sovereign immunity applies in this case.21


               Accordingly, for all of the foregoing reasons, we affirm.



                                                 ________________________________
                                                 DAN PELLEGRINI, President Judge




       21
          Appellants also argue that the trial court erred in ignoring the existence of disputed facts.
Specifically, Appellants cite an organizational chart that purportedly demonstrates that the
Commonwealth controls the treatment to be given under the State Plan and testimony related to
Commonwealth funding and control of the SCA.

        However, contrary to Appellants’ assertion, the trial court’s decision reflects that it applied
the appropriate standard of review and, consequently, rejected Appellants’ assertion that these facts,
to the extent they were disputed, were material to the elements of the cause of action or the defenses
presented.



                                                  22
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bruce A. Casteel and Joy R. Casteel, :
Individually and as Administrators of :
Carly A. Miller, Deceased             :
                                      :
              v.                      :
                                      :
Lonny Tinkey; George Lepley;          :
John W. Benford and Shirley A         :
Benford, husband and wife;            :
Shirjon Inc., t/d/b/a Laurel          :
Mountain Inn; the Commonwealth of :
Pennsylvania; the Pennsylvania        :
Department of Health; and the         :
Pennsylvania Advisory Counsel on :
Civil Drug and Alcohol Abuse          :


Bruce A. Casteel and Joy R. Casteel, :
Individually and as Administrators of :
Carly A. Miller, Deceased             :
                                      :
             v.                       :
                                      :
Commonwealth of Pennsylvania          :
Department of Corrections             :

Appeal of: Bruce A. Casteel and       :
Joy R. Casteel, Individually and as   :
Administrators of Carly A. Miller,    : No. 1881 C.D. 2014
Deceased                              :

                                      ORDER

            AND NOW, this 5th day of December, 2016, the order of the Court of
Common Pleas of Somerset County is affirmed.


                                          ________________________________
                                          DAN PELLEGRINI, President Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Bruce A. Casteel and Joy R. Casteel,    :
Individually and as Administrators of   :
Carly A. Miller, Deceased               :
                                        :   No. 1881 C.D. 2014
            v.                          :
                                        :   Submitted: November 16, 2015
Lonny Tinkey; George Lepley;            :
John W. Benford and Shirley A.          :
Benford, husband and wife;              :
Shirjon Inc., t/d/b/a Laurel Mountain   :
Inn; the Commonwealth of                :
Pennsylvania; the Pennsylvania          :
Department of Health; and the           :
Pennsylvania Advisory Council on        :
Civil Drug and Alcohol Abuse            :
                                        :
Bruce A. Casteel and Joy R. Casteel,    :
Individually and as Administrators of   :
Carly A. Miller, Deceased               :
                                        :
            v.                          :
                                        :
Commonwealth of Pennsylvania            :
Department of Corrections               :
                                        :
Appeal of: Bruce A. Casteel and         :
Joy R. Casteel, Individually and as     :
Administrators of Carly A. Miller,      :
Deceased
BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge


DISSENTING OPINION
BY JUDGE McCULLOUGH                                     FILED: December 5, 2016


             Because I believe that Bruce A. Casteel and Joy R. Casteel
(Appellants) have raised genuine issues of material fact relating to: the duties of
Defendants Pennsylvania Department of Health (DOH), the Pennsylvania
Advisory Council on Drug and Alcohol Abuse (Advisory Council), and the
Pennsylvania Department of Corrections (DOC) under the Pennsylvania Drug and
Alcohol Abuse Control Act (Act), Act of April 14, 1972, P.L. 221, as amended, 71
P.S. §§1690.101–1690.115; whether Somerset County Single County Authority
(Somerset SCA) and Twin Lakes Center for Drug and Alcohol Rehabilitation
(Twin Lakes) were agents of the Commonwealth; and the application of the
medical-professional exception to sovereign immunity, I respectfully dissent.
             Specifically, while I concur with the Majority insofar as it affirms the
order of the Court of Common Pleas of Somerset County (trial court) granting
summary judgment in favor of Defendant Commonwealth of Pennsylvania, I
respectfully dissent insofar as the Majority affirms the trial court’s order granting
summary judgment in favor of the remaining Defendants.
             As the Majority aptly notes, the DOH, acting in accordance with
section 4(a)(14) of the Act, 71 P.S. §1690.104(a)(14), developed and adopted a
State Plan1 relating to the medical treatment to be provided to persons dependent

      1
         The Pennsylvania State Plan for the Control, Prevention, Intervention, Treatment,
Rehabilitation, Research, Education and Training Aspects of Drug and Alcohol Abuse and
Dependence Problems - State Fiscal Year 1993/94. (R.R. at 158-69.)
upon alcohol or controlled substances at correctional institutions and other
facilities. Indeed, the General Assembly has mandated DOH to develop a state
plan for the provision of such treatment, which shall include emergency medical
services, inpatient services, intermediate care, rehabilitation, and outpatient
services. See Section 2301-A of the Act of April 9, 1929, P.L. 177, added by the
Act of July 9, 2010, P.L. 348, 71 P.S. §613.1(1)(xv), formerly 71 P.S.
§1690.104(a)(14). Section 6 of the Act, entitled “Drug or alcohol abuse services in
correctional institutions, juvenile detention facilities and on probation and parole,”
provides, in relevant part:
          Medical detoxification and treatment shall be provided for
          persons physically dependent upon alcohol or controlled
          substances at correctional institutions and juvenile detention
          facilities or in available appropriate medical facilities.

71 P.S. §1690.106(a).
             Counties that wish to receive state and federal funding for treatment
and prevention efforts are required by the State Plan to designate SCAs to be
responsible for program planning and the administration of federal and state
funded grants and contracts. (Reproduced Record (R.R.) at 160-69.) These SCAs
then implement the State Plan via direct contracts with DOH. In order to obtain
this funding, Somerset County designated Somerset SCA as the party responsible
for program planning and the administration of state and federal grants and
contracts. Somerset SCA, in turn, contracted with Twin Lakes to provide the
required drug and alcohol treatment services.
             The primary dispute between the parties at oral argument on the
summary judgment motion was whether a genuine issue of material fact existed as
to whether Somerset SCA and Twin Lakes were agents of the Commonwealth.

                                      PAM - 2
(R.R. at 3, 9-11, 14-15, 18-19, 23-24.) In resolving this motion, the trial court
determined that Twin Lakes and Somerset SCA were not Commonwealth agencies.
However, in reaching this determination, the trial court overlooked the significance
of the relationship between DOH and Somerset SCA. In this regard, the trial court
acknowledged that it did not have any enabling legislation before it, but that it
relied exclusively on Somerset SCA’s Plan, entitled “Drug and Alcohol
Commission of Somerset County Plan for Services,” in which Somerset SCA
declared itself a county agency. Nevertheless, Somerset SCA’s statement in its
own Plan that it is a local agency is not determinative of whether Somerset SCA
constitutes a Commonwealth agency for the purpose of sovereign immunity. In
fact, in determining an entity’s status, our court has recognized that an entity may
be considered a Commonwealth agency for one purpose, but a local agency for
another. See, e.g., City Council of City of Philadelphia v. Greene, 856 A.2d 217
(Pa. Cmwlth. 2004).
             In Greene, a housing authority was authorized by its enabling
legislation and other portions of the statute to exercise the “public powers of the
Commonwealth,” and was permitted to act as an “agent of the State or any of its
instrumentalities.”   Id. at 220.   The authority argued that because it was a
Commonwealth agency for the purpose of sovereign immunity, it was also a
Commonwealth agency for the purpose of jurisdiction. We noted, however, that
an entity may be recognized as a local agency for the purpose of jurisdiction, but
as a Commonwealth agency for the purpose of sovereign immunity. In making the
determination of whether an agency is subject to sovereign immunity, which is
meant to protect the Commonwealth purse, we must consider:

             whether the particular enabling statute grants authority
             to exercise the public powers of the Commonwealth as
                                     PAM - 3
             agent thereof, as well as to the source of the agency’s
             creation, control, and funding.

Id. at 221-22 (emphasis added).
             In contrast, a review of whether an agency was subject to our
jurisdiction focused on the scope of operation and whether there was a statewide
interest in a consistent resolution of legal issues impacting the agency in question.
Concluding that there was no need for uniform statewide resolution of issues
involving the power and duties of this local housing authority that operated
exclusively within the city, we determined that the housing authority was a local
agency for purposes of jurisdiction. Notably, we recognized that the analysis of
whether an entity is a Commonwealth agency or local agency necessarily depends
upon the agency or entity involved and the particular purpose at issue. See also
Al-Athariyyah v. Wilkes-Barre Housing Authority (Pa. Cmwlth., No. 385 C.D.
2009, filed December 22, 2009), slip op. at 8 (noting that “an entity’s status can
vary depending on the issue for which the determination is made.”).
             Contrary to the above, in the present case, there clearly is a need for
uniform statewide resolution of the issues involving the powers and duties of this
agency, as such are derived directly from DOH, which has direct responsibility to
ensure the services and funds are provided throughout the Commonwealth.
             Moreover, here, the trial court found the following pertinent facts
based upon the deposition testimony of Hector Gonzalez (Gonzalez) of DOH,
Department of Drug and Alcohol Programs: DOH contracted with Somerset SCA
to carry out the mandates of the Act, including the provision for drug and alcohol
prevention and treatment rehabilitation services; the Commonwealth does not
provide any of those services directly; the Commonwealth simply allocates funds
for the delivery of drug and alcohol services; and, in Somerset County, all
                                      PAM - 4
treatment services are provided by Twin Lakes, which contracted with Somerset
SCA to do so. However, Gonzalez also testified that the State Plan provides a
chapter setting out the options for the structure and organization of the SCA, that
DOH was responsible for ensuring that drug and alcohol services, and allocation of
funds for the same, were provided to the citizenry throughout the Commonwealth,
and that DOC and the Department of Public Welfare were responsible for ensuring
that the requirements of the statute were implemented.2 (R.R. at 266.)
                Most importantly, according to Gonzalez, if a county does not create
an SCA or contract with another entity to provide the drug and alcohol treatment
services required by the Act, DOH would request proposals and directly obtain a
provider to render services in that geographical area. Gonzalez further testified
the specific requirements of the treatment services are set forth in the contracts
between DOH and the SCAs. Beyond the general language of the Act and the
chapter regarding the SCAs structure set forth in the State Plan, Gonzalez stated
that it would be the direct contracts between the SCAs and the DOH that would
lay out exactly what the SCAs had to do. (R.R. at 262-76.)
                Moreover, the applicable State Plan “contains requirements that
become legally binding through incorporation into contracts between the DOH’s
Office of Drug and Alcohol Programs (ODAP) and the Single County
Authorities (SCAs).” (R.R. at 159) (emphasis added). Additionally, as part of its
“Statement of Policy” for “Single County Authority,” the State Plan states:

                This Chapter is intended to establish a statewide system
                of agencies which shall have the responsibility for
                assisting the Department in planning for community-

       2
            The Department of Public Welfare is now known as the Department of Human
Services.
                                       PAM - 5
            based services. It is the position of the Department that
            no central authority can determine precisely what
            services are necessary in each of the 67 counties of this
            Commonwealth. Consequently, the emphasis in this
            State Plan is on the establishment of community-based
            drug and alcohol prevention, intervention and treatment
            services. The State Plan allows for the formation of
            SCAs to provide services and receive funding, and
            provides the exclusive options for their organizational
            structures.

Id. at 162 (emphasis added).
            Further, Somerset SCA’s Plan includes the following “Organizational
Chart,” showing the Commonwealth in the highest position, superior to the
Somerset County Commissioners and the Somerset SCA Director thereunder:




                                    PAM - 6
Id. at 173.
              In sum, a review of the Act, State Plan, Somerset SCA’s Plan, and the
testimony of Gonzalez show that a genuine issue of material fact exists as to
whether the Somerset SCA and/or Twin Lakes were operating as agents of the
Commonwealth. Further, absent review of the enabling legislation and the specific
contract between DOH and Somerset SCA, a genuine issue of material fact exists
as to the agency relationship between Somerset SCA and the Commonwealth and
the amount of control that the Commonwealth exerts over Somerset SCA.
              For these reasons, I would reverse the trial court’s order entering
summary judgment in favor of Defendants DOH, Advisory Council, and DOC, and
remand for further proceeding relating to these Defendants.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                     PAM - 7
