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 order4of 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.
2

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 

immunity6because 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).
3

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.
4

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. 
5

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.
6

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 defendants9as 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...)
7

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...)
8

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.
9

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.)
10

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).
11

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).
12

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.
13

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 
14

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.
15

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 
16

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 
17

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.
18

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 medicalprofessional 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.
19

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.
20

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 
21

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 194520 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.
22

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.
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 :

O R D E R

AND NOW, this 5

th 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 Plan1relating 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.)
PAM - 2

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 - 3

(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 - 4

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 - 5

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 - 6

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 - 7

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