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J. A03027/02
2002 PA Super 223
F.D.P. AND J.A.P.,
:
IN THE SUPERIOR COURT OF
INDIVIDUALLY AND ON BEHALF OF
:
PENNSYLVANIA
THEIR MINOR DAUGHTER, S.M.P.,
:
Appellants
:
:
v.
:
:
RICHARD ALBERT FERRARA, JR., SILVIA :
FERRARA, INDIVIDUALLY AND AS
:
GUARDIAN OF RICHARD ALBERT
:
FERRARA, JR.; THE INDIANA GUIDANCE :
CENTER INC., AND INDIANA COUNTY
:
GROUP HOMES, INC.,
:
Appellees
:
No. 1195 WDA 2001
Appeal from the Order of June 18, 2001,
in the Court of Common Pleas of Indiana County,
Civil Division, at No(s) 11085 CD 1998
F.D.P. AND J.A.P.,
:
IN THE SUPERIOR COURT OF
INDIVIDUALLY AND ON BEHALF OF
:
PENNSYLVANIA
THEIR MINOR DAUGHTER, S.M.P.,
:
Appellees
:
:
v.
:
:
RICHARD ALBERT FERRARA, JR., SILVIA :
FERRARA, INDIVIDUALLY AND AS
:
GUARDIAN OF RICHARD ALBERT
:
FERRARA, JR., THE INDIANA GUIDANCE :
CENTER, INC., AND INDIANA COUNTY
:
GROUP HOMES, INC.,
:
Appellees
:
:
APPEAL OF: COMMUNITY LIVING AND
:
LEARNING, INC., FORMERLY KNOWN AS :
INDIANA COUNTY GROUP HOMES, INC., :
Appellant
:
No. 1217 WDA 2001
Appeal from the Order Entered June 18, 2001,
in the Court of Common Pleas of Indiana County,
Civil Division, at No(s) 11085 CD 1998

J. A03027/02
BEFORE: DEL SOLE, P.J., BOWES and KELLY, JJ.
***Petition for Reargument Filed July 22, 2002***
OPINION BY BOWES, J.:
Filed: July 8, 2002
***Petition for Reargument Denied September 12, 2002***
¶1
F.D.P. and J.A.P., individually and on behalf of their minor daughter,
S.P. ("Appellants"), filed the appeal at no. 1195 WDA 2001 from the
June 18, 2001 order granting the preliminary objections of the Indiana
County Guidance Center ("Guidance Center"). Community Living and
Learning, formerly known as Indiana County Group Homes, Inc. ("Group
Home") filed the appeal at no. 1217 WDA 2001 from the portion of the same
order that denied its preliminary objections. The trial court certified that
order pursuant to Pa.R.A.P. 341(c). This action involves a tragic incident
that occurred on June 14, 1996, when Richard Albert Ferrara, Jr. ("Ferrara")
sexually molested S.P. We affirm the appeal at 1195 WDA 2001 and quash
the appeal at 1217 WDA 2001.
¶2
On May 29, 1998, Appellants instituted this action by writ of summons
against Ferrara, Sylvia1 Ferrara, both individually and in her capacity as legal
guardian of Ferrara, the Guidance Center, and Group Home. Appellants then
unsuccessfully tried to obtain Ferrara's treatment records from the Guidance
Center prior to filing their complaint. After being ruled to do so, Appellants
filed a complaint that contained the following allegations.

1 In Appellant's complaint and the pleadings filed by the other defendants,
Ms. Ferrara's first name is spelled, "Silvia" which was the spelling used in the
notice of appeal; however, in her answer, Ms. Ferrara spelled her first name,
"Sylvia." We will use the spelling utilized by Ms. Ferrara.
- 2 -

J. A03027/02
¶3
Guidance Center is a non-profit corporation that provides mental
health and mental retardation services in Indiana County. Group Home is a
non-profit corporation that operates a community residential group home for
mental health and mental retardation patients in Indiana County. From
1984 and continuing until the June 14, 1996 incident, Ferrara was a resident
of the group home operated by Group Home in Indiana, Pennsylvania, and
was there pursuant to a voluntary placement agreement. Ferrara had been
placed there by Guidance Center, which served as the base service unit for
Ferrara pursuant to 55 Pa.Code § 4210. Under the Mental Health and
Mental Retardation Act of 1966, 50 P.S. §§ 4101, et seq. (the "MHMR Act"),
local authorities are required to create base service units such as Guidance
Center. As a base service unit, Guidance Center was responsible for
planning a comprehensive treatment program for Ferrara and making
available the necessary services to him on a continuing basis under
55 Pa.Code § 4210.21.
¶4
Pursuant to 55 Pa.Code § 4210.21, Guidance Center, as Ferrara's base
service unit, had the following responsibilities with respect to Ferrara: 1)
facilitate and coordinate his movement from service to service; 2) insure
continuity of care; 3) maintain a continuing relationship with him; 4) provide
an intake study and make recommendations about Ferrara's care; and 5)
develop a comprehensive treatment program for him.
- 3 -

J. A03027/02
¶5
Pursuant to the MHMR Act, local authorities also are empowered to
contract with others for the provision of living arrangements for persons in
need of care, and the Group Home provided for Ferrara's living
arrangements under that agreement with the local authority. Under the
Pennsylvania code of regulations promulgated pursuant to the MHMR Act,
Group Home, as the provider of community living arrangements for Ferrara,
had the responsibility to 1) perform an initial assessment of him to
determine the necessary level of care; 2) develop an individual program plan
for him; 3) review that program every three months; and 4) revise the
program if Ferrara showed no progress toward a goal or if new goals were
required.
¶6
As of the date of the incident in question, Guidance Center and Group
Home knew that Ferrara had "a long-standing history of sexually deviant
behavior including sexual assault of minor children, sexual aggressiveness
towards others, sexual relations in public places; and inappropriate touching
of staff and residents." Complaint, 11/16/00, at 12. On June 14, 1996,
Appellants resided in Rossiter, Pennsylvania, and Ferrara's parents, Mary
and Richard Ferrara, were neighbors of Appellants. Both Mary and Richard
Ferrara were physically and mentally handicapped.
¶7
In the complaint, Appellants alleged, "On June 14, 1996,
Richard A. Ferrara, Jr., was released by the Group Home into the custody of
his aunt, the defendant Sylvia Ferrara, who in turn permitted him to go to
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J. A03027/02
his parents' home on First Street, Rossiter, PA 15722, where he was
unsupervised." Id. at ¶ 14. While at his parents' home, Ferrara lured then
six-year-old S.P. into the basement where he sexually molested her. As a
result, S.P. experienced severe mental, physical, and emotional trauma.
¶8
Appellants alleged in relevant part that Guidance Center breached its
duty of care to Appellants by engaging in the following negligent acts: 1)
failing to provide and arrange for appropriate treatment of Ferrara's sexually
deviant behavior; 2) failing to house him in a more restrictive environment
than Group Home; 3) allowing him to be at his parents' home unsupervised
when it knew or should have known that he would be in contact with young
children; 4) failing to seek or pursue a civil commitment. Id. at ¶ 20.2
¶9
Appellants alleged that Group Home breached its duty of care to
Appellants by engaging in the same negligent acts as well as the following
additional negligent acts: releasing Ferrara into his aunt's custody when it
knew or should have known that he would be in contact with young children
and permitting Ferrara to leave its premises on June 14, 1996. Id. at ¶ 23.
¶10 Sylvia Ferrara filed an answer that contains the following relevant
allegations. First, she asserted that Mary Ferrara was deceased in
June 1996. Second, Sylvia denied that Ferrara was released into her

2 The complaint also contained averments that Guidance Center should have
warned Appellants of Ferrara's propensity for sexual misconduct. However,
as discussed in the text infra, Appellants have abandoned their failure-to-
warn cause of action.
- 5 -

J. A03027/02
custody on June 14, 1996. Specifically, she contended that she notified the
parties with custody of Ferrara not to permit him to return to his parents'
home or to Rossiter. Thus, Ferrara was present in Rossiter without her
knowledge or consent, but rather had been taken by personnel of Group
Home directly to his parents' home. She always demanded that those in
charge of Ferrara's custody keep him under supervision and appropriate care
at the Group Home and she told his mental health supervisors that Ferrara
should not be allowed to stay in his father's custody.
¶11 Guidance Center and Group Home filed preliminary objections on the
ground that Appellants had failed to state a cause of action. In its
preliminary objections, Group Home alleged that it had an agreement with
Sylvia Ferrara whereby it would release Ferrara into her custody for home
visits. Further, Group Home asserted that on June 14, 1996, Ferrara was
released into Sylvia's custody for the purpose of one of those home visits
and that was during such a visit that the minor plaintiff was harmed.
¶12 In response, Appellants filed an amended complaint containing
additional allegations. On June 14, 1996, Appellants were aware that
Ferrara had engaged in the following conduct. In the early and mid-1970s,
he was the subject of allegations that he had engaged in sexually
inappropriate activity with young children in the community of Rossiter. In
1978, he was cited for sexual misconduct with a young child and in lieu of
criminal prosecution, he was sent to a residential facility. In the mid-1980s,
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J. A03027/02
he was suspected of sexually assaulting an eight-year-old girl at a local
church. In the mid-1990s, he was suspected of engaging in sexual relations
with an underage girl on numerous occasions. In countless evaluations
conducted by Guidance Center and Group Home between 1984 and 1996
while Ferrara was a resident at Group Home, he was described as lacking
the ability to control his sexually deviant behavior. In the 1990s, he was
cited for having sexual relations in open public while he was a resident of
Group Home. He was constantly reprimanded for inappropriate sexual
contact with staff members throughout his stay at the Group Home.
¶13 The preliminary objections were renewed, and on May 21, 2001, the
trial court entered an opinion and order granting Guidance Center's
preliminary objections, but denying Group Home's preliminary objections.
The trial court concluded that, based on Sylvia's responsive pleading, there
was an issue as to whether Group Home had released Ferrara directly into
the care of his incompetent father. In addition, the trial court noted that
Appellants had abandoned their claim that Group Home and Guidance Center
had a duty to warn them of Ferrara's propensity to commit sexual
misconduct against minors.
¶14 Appellants and Group Home separately petitioned for an order of
finality pursuant to Pa.R.A.P. 341(c). On June 18, 2001, the court entered
an order determining that an immediate appeal would facilitate resolution of
the entire case and designated the May 21, 2001 order as final under
- 7 -

J. A03027/02
Pa.R.A.P. 341(c). Appellants and Group Home filed the present appeals
from the order.
¶15 Initially, we must address our jurisdiction over these appeals. Under
Pa.R.A.P. 341(b), a final order is defined in relevant part as one that
disposes of all claims and all parties. Herein, as noted, the order dismisses
one, but not all, of the parties. Pa.R.A.P. 341(c) provides that when more
than one claim for relief is presented or when multiple parties are involved,
the trial court "may enter a final order" as to one or more but fewer than
"all of the claims and parties" upon "an express determination that an
immediate appeal would facilitate resolution of the entire case." Pa.R.A.P.
341(c) (emphasis added). Such an order is appealable when entered. Id.
Thus, Rule 341(c) certification, under the clear language of the rule, is
available only to "final" orders disposing of one but fewer than all parties or
causes of action.
¶16 An order denying a party's preliminary objections is and always has
been defined as an interlocutory order. Chase Manhattan Mortgage
Corp. v. Hodes, 784 A.2d 144 (Pa.Super. 2001); Grimme Combustion,
Inc. v. Mergentime Corp., 560 A.2d 793 (Pa.Super. 1989); see also
Shadduck v. Christopher J. Kaclik, Inc., 713 A.2d 635 (Pa.Super. 1998).
An interlocutory order does not place either a party or a claim out of court.
- 8 -

J. A03027/02
Such interlocutory orders are appealable pursuant to 42 Pa.C.S. § 702(b)3
and Pa.R.A.P. 3124 and 1311,5 which relate to appeals from interlocutory
orders by permission. Rule 341(c) was not designed to abrogate this
practice; otherwise, Rules 312 and 1311 would be superfluous. Rather,
certification under Rule 341(c) was designed to allow for an immediate
appeal of a "final" order relating to less than all parties or less than all
claims. In other words, it applies to orders dismissing parties and dismissing
claims.
¶17 Our conclusion in this regard is reinforced by an examination of the
history of Rule 341. Under the previous version of Pa.R.A.P. 341, an order
dismissing one party was considered final as to that party and appealable at
that time. Keech v. Mead Johnson & Co., 580 A.2d 1374
(Pa.Super. 1990). Similarly, an order dismissing one cause of action, as

3 That section provides, "When a court or other government unit, in making
an interlocutory order in a matter in which its final order would be within the
jurisdiction of an appellate court, shall be of the opinion that such order
involves a controlling question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the matter, it shall so state in
such order. The appellate court may thereupon, in its discretion, permit an
appeal to be taken from such interlocutory order."
4 Rule 312 states that an appeal from an interlocutory order may be taken
by permission under Chapter 13 of the Rules of Appellate Procedure.
5 Pa.R.A.P. 1311 provides that an appeal may be taken by permission under
42 Pa.C.S. § 702(b) from any interlocutory order of a lower court. That rule
also sets forth the rules and procedures relating to petitions for permission
to appeal from an interlocutory order.
- 9 -

J. A03027/02
long as the cause of action was separate and distinct from any remaining
causes of action, also was considered final as to that cause of action and
appealable at that time. Motheral v. Burkhart, 583 A.2d 1180 (1990).
Those orders were considered final since they involved dismissal of the
cause of action or of the party, and therefore, they placed the opposing
party out of court as to that party or that cause of action. Rule 341 was
amended so as not to allow piecemeal appeals from these types of "final"
orders dismissing less than all of the parties or less than all of the claims
unless the trial court made the requisite determination under Rule 341(c).
¶18 In the present case, the portion of the order from which Group Home
appeals did not dismiss Group Home; instead, that portion of the order
denied its preliminary objections. An order denying preliminary objections
does not put a litigant out of court as to anything, is not "final," and cannot
be certified under Pa.R.A.P. 341(c). Furthermore, it is not an interlocutory
order appealable as of right under Pa. R.A.P. 311. Since Group Home did
not follow the proper procedure under 42 Pa.C.S. § 702(b) and Pa.R.A.P.
1311 to appeal from that interlocutory order, the appeal at No. 1217 WDA
2001 must be quashed. Commonwealth v. Fleming, 2002 PA Super 56;
Hoover v. Welsh, 615 A.2d 45 (Pa.Super. 1992). We note that the
propriety of that order, as with all interlocutory orders, can be determined
after a final order has been entered in this action and the appropriate appeal
taken.
- 10 -

J. A03027/02
¶19 The remaining appeal, by Appellants, is from an order dismissing a
party and therefore appropriately was certified under Pa.R.A.P. 341(c).6 We
now examine whether Guidance Center properly was dismissed from this
action based on Appellants' failure to state a claim against it. When
reviewing a trial court's order granting preliminary objections in the nature
of a demurrer,
We must accept as true all the well-pleaded material facts set
forth in the complaint and all reasonable inferences deducible
from those facts. Accepting these facts and inferences, we then
determine whether the pleader has failed to state a claim on
which relief may be granted, and we will affirm the grant of a
demurrer only if there is certainty that no recovery is possible.

6 Neither party has raised the propriety of the certification decision.
Compare Pullman Power Products of Canada, Ltd. v. Basic Engineers,
Inc., 713 A.2d 1169, 1173 (Pa.Super. 1998) (party raised propriety of
certification decision; we reversed since trial court did not consider four
factors, which are outlined in official note to Rule 341, in rendering its
certification decision); see Official Note to Rule 341 (trial court should
consider the following factors when determining whether an immediate
appeal of a non-final order would facilitate resolution of the entire case: (1)
whether there is a significant relationship between adjudicated and
unadjudicated claims; (2) whether there is a possibility that an appeal would
be mooted by further developments; (3) whether there is a possibility that
the court or administrative agency will consider issues a second time; [and]
(4) whether an immediate appeal will enhance the prospects of settlement).
In the present case, we conclude that an immediate appeal may enhance
settlement prospects. We also conclude that if we delay determining
whether Guidance Center properly was dismissed, there is a significant risk
of the necessity for costly re-litigation, as the case involves complex issues
of liability based on the actions of third parties. Therefore, we will consider
the propriety of Guidance Center's dismissal. Gustine Uniontown
Associates, Ltd. v. Anthony Crane Rental, Inc., 786 A.2d 246 (Pa.Super.
2001).
- 11 -

J. A03027/02
Solomon v. United States Healthcare System of Pennsylvania , 2002
PA Super 110, 6 (quoting Atkinson v. Evans, 787 A.2d 1033, 1034
(Pa.Super. 2001)).
¶20 Appellants premise liability against Guidance Center upon Restatement
(Second) of Torts § 319, which they ask us to consider in connection with
the duties imposed upon Guidance Center under the MHMR Act. Section 319
states, "One who takes charge of a third person whom he knows or should
know to be likely to cause bodily harm to others if not controlled is under a
duty to exercise reasonable care to control the third person to prevent him
from doing such harm."
¶21 At the onset, we note that as a general rule, there is no duty to control
the conduct of a third party to protect another from harm unless there is a
special relationship between the actor, in this case Guidance Center, and the
third person, in this case Ferrara, that imposes a duty upon the actor to
control the third person's conduct or unless there is a special relation
between the actor and the other, which in this case is S.P., which gives the
other a right to protection. Restatement (Second) of Torts § 315.
¶22 In the present case, there is no special relation between S.P. and
Guidance Center; rather, Appellants assert that there was a special
relationship between Guidance Center and Ferrara that imposed a duty upon
Guidance Center to control Ferrara's conduct pursuant to section 319.
- 12 -

J. A03027/02
¶23 Appellants contend in this case that the duty to control Ferrara's
conduct is imposed under the MHMR Act and regulations promulgated
thereunder inasmuch as they require Guidance Center, as Ferrara's base
unit, to perform certain responsibilities regarding his treatment. They also
observe that Illustration 2 under Restatement (Second) of Torts § 319 is
similar to the situation at issue herein. That illustration states that if the
actor operates a private sanitarium for the insane and through the
negligence of one of the actor's employees, the third party, who is a
homicidal maniac, escapes and attacks the plaintiff, the actor is subject to
liability to the plaintiff.
¶24 Appellants urge us to impose such a duty herein under Restatement
(Second) of Torts § 319. They refer to numerous cases where the
Pennsylvania courts have held that a defendant is subject to liability for the
actions of third parties. We first examine the cases that discuss liability of
doctors and other health care providers for harm caused to third parties by
the actions of their patients.
¶25 We begin our analysis with Emerich v. Philadelphia Center for
Human Development, 554 Pa. 209, 720 A.2d 1032 (1998), where a
majority of our Supreme Court held that a mental health provider was
subject to liability for harm caused to a third party by a patient. In that
case, the patient conveyed a specific threat to harm the third party.
Emerich created a carefully designed and limited cause of action based
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J. A03027/02
upon a failure to warn. Under the majority decision, a failure-to-warn cause
of action will exist only when the mental health patient has conveyed a
specific threat to harm the actual victim. In such a case, the duty of the
mental health care provider is limited to warning the third party of the threat
conveyed by the patient. As noted, Appellants have abandoned this cause of
action because Ferrara did not convey a specific threat to harm S.P.
¶26 Appellants invite us to apply the rationale in a line of cases imposing
liability on a physician for failing to properly advise a patient who has a
communicable disease when the patient relied upon the improper advice and
spread the disease to a third party. DiMarco v. Lynch Homes-Chester
County, Inc., 525 Pa. 558, 583 A.2d 422 (1990); Troxel v. A.I. Dupont
Institute, 675 A.2d 314 (Pa.Super. 1996).
¶27 Those cases again are specifically limited to their circumstances and
impose liability due to the peculiar nature of communicable diseases, which
involve a direct threat to public health. Under the reasoning employed in
those cases, liability is premised upon the physician's awareness that his
advice concerning the communicable disease is directly relevant to its spread
to third parties. Thus, the duty is imposed because "it is imperative that the
physician give his or her patient the proper advice about preventing the
spread of the disease." DiMarco, 583 A.2d at 424. Moreover, those cases
impose the duty pursuant to Restatement (Second) of Torts, § 324A, which
relates to an actor who renders services under conditions where the actor
- 14 -

J. A03027/02
should recognize that the services are necessary for the protection of a third
person. Mental health services are provided for the protection of the
patient. Furthermore, mental health patients do not have a disease that is
communicable to the public nor do they present a peculiar threat to the
public. The reasoning of those cases is not applicable herein.
¶28 We also disagree with Appellants' final contention, which is that a duty
should be imposed under Hutchison v. Luddy, 560 Pa. 51, 742 A.2d 1052
(1999). In that case, our Supreme Court imposed liability on the church
superiors of a priest who engaged in sexual molestation of a parishioner in
circumstances where those superiors had knowledge of the priest's conduct.
In Hutchison, liability clearly was premised upon the master-servant
relationship between the priest and his superiors as well as the special
relationship between the parishioner, on the one hand, and the superiors in
the church, on the other hand.
¶29 Our Supreme Court imposed a duty by applying: 1) the principles
outlined in Restatement (Second) of Torts § 317, which provides that a
master has a duty to control the conduct of his servant under certain
circumstances; and 2) other cases where an employer-employee relationship
existed between the defendant and the third party who caused the plaintiff's
harm and where the plaintiff was in a special relationship with the employer
of the third party, such as where a boy scout master abuses a boy scout or
where a school employee abuses a student.
- 15 -

J. A03027/02
¶30 In the present case, Ferrara and Guidance Center did not have an
employer-employee relationship, and there was no special relationship
between Guidance Center and S.P. S.P. was not a member of a group over
which Guidance Center had control and for which Guidance Center hired
Ferrara. Those two conditions clearly were critical to the imposition of
liability in Hutchison. Also compare Reider v. Martin, 519 A.2d 507
(Pa.Super. 1987) (where landlord undertook contractual obligation to
provide lock to tenants, landlord was subject to liability for harm caused by
third party who entered through unlocked door and attacked tenant).
¶31 Thus, while we agree with Appellants' observation that a variety of
duties have been imposed for the acts of third parties under the case law,
nonetheless, none of those duties is directly applicable in this case.
Furthermore, we note that Pennsylvania courts are reluctant to subject a
person to liability for the acts of a third party in the absence of compelling
circumstances. Indeed, there are a number of cases significantly analogous
to the present one where the courts have refused to impose such liability.
¶32 The case most factually similar to the instant case is Heil v. Brown,
662 A.2d 669 (Pa.Super. 1995).7 In Heil, the mental health patient, such as
Ferrara herein, began treatment under the MHMR Act on a voluntary basis.

7 Allentown State Hospital v. Gill, 488 A.2d 1211 (Pa.Commw. 1985),
upon which Appellants rely, appears to be inconsistent with Heil. We,
however, are bound by Heil. Marks v. Nationwide Insurance Co., 762
A.2d 1098 (Pa.Super. 2000).
- 16 -

J. A03027/02
Defendants in that case included the patient's mental health providers, such
as Guidance Center in this case. In Heil, the patient's conditions worsened,
but when his treating physician and psychiatrist were not available, the
patient's social worker drafted a treatment plan and told the patient to
return to see a psychiatrist. The patient was not committed even though he
appeared very agitated. The following day, the patient experienced a
psychotic episode while driving and drove his car into a police van. A police
officer was injured severely in the accident, and he and his wife instituted an
action against the mental health care providers.
¶33 We affirmed the grant of summary judgment in favor of the
defendants. We held "that mental health professionals do not owe a duty to
protect third parties." Id. at 671 (footnote omitted). We concluded that
liability was not present because there was no relationship between the
mental health providers and the plaintiffs that created any legal obligation
based upon the fact that the harm was not foreseeable. While the
occurrence of a traffic accident due to a psychotic episode is considerably
less foreseeable than the fact that a sexual molester will molest when he
consistently has displayed such behavior, Heil nonetheless supports the
position that a mental health provider owes no duty to protect against the
actions of his patient in the absence of special circumstances such as those
present in Emerich. See also Brisbine v. Outside in School of
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J. A03027/02
Experiential Education, Inc., 2002 PA Super 138; Crosby by Crosby v.
Sultz, 592 A.2d 1337 (Pa.Super. 1991).
¶34 Indeed, in Dunkle v. Food Service East, Inc., 582 A.2d 1342
(Pa.Super. 1990), we held that mental health providers were not liable for
harm caused by an admittedly dangerous patient since the patient had failed
to convey a specific threat of harm against his eventual victim. We stated
that a psychologist or psychiatrist owes no duty to warn "or otherwise
protect" a non-patient where the patient has not threatened to inflict harm
on a particular individual. Id. at 1342. We noted, "To hold otherwise would
not only hinder the psychologist's relationship with the patient and frustrate
the psychologist's ability to properly treat the patient, but additionally, it
would infringe upon the psychologist-patient privilege." Id.8
¶35 Our Supreme Court has delineated the considerations that must be
weighed when we are deciding whether to create a duty. The primary
consideration is simply social policy. In Gardner v. Consolidated Rail
Corp., 524 Pa. 445, 573 A.2d 1016 (1990), our Supreme Court explained:
In determining the existence of a duty of care, it must be
remembered that the concept of duty amounts to no more than

8 We also note that there is a plurality decision of our Supreme Court
discussing the liability of mental health providers to third parties who are
harmed by the actions of their patients. See Althaus v. Cohen, 562 Pa.
547, 756 A.2d 1166 (2000). In that decision by three justices on a six-
justice court with one justice not participating, our Supreme Court held that
a treating psychiatrist or psychologist owes no duty of care to parents of a
child-abuse victim based on allegations that the defendant negligently
treated the child patient. That case was limited in application to patients
who are being treated based upon allegations of child abuse.
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J. A03027/02
"the sum total of those considerations of policy which led the law
to say that the particular plaintiff is entitled to protection" from
the harm suffered. Leong v. Takasaki, 55 Haw. 398, 520 P.2d
758, 764 (1974). To give it any greater mystique would unduly
hamper our system of jurisprudence in adjusting to the changing
times. The late Dean Prosser expressed this view as follows:
These are shifting sands, and no fit foundation. There is a
duty if the court says there is a duty; the law, like the
Constitution, is what we make it. Duty is only a word with which
we state our conclusion that there is or is not to be liability; it
necessarily begs the essential question. When we find a duty,
breach and damage, everything has been said. The word serves
a useful purpose in directing attention to the obligation to be
imposed upon the defendant, rather than the causal sequence of
events; beyond that it serves none. In the decision whether or
not there is a duty, many factors interplay: The hand of history,
our ideas of morals and justice, the convenience of
administration of the rule, and our social ideas as to where the
loss should fall. In the end the court will decide whether there is
a duty on the basis of the mores of the community, "always
keeping in mind the fact that we endeavor to make a rule in
each case that will be practical and in keeping with the general
understanding of mankind."
Id. at 454-55, 573 A.2d at 1020 (quoting Sinn v. Burd, 486 Pa. 146, 164,
404 A.2d 672, 681 (1979)); accord Althaus, supra.
¶36 The following factors, which are derived from the above principles, are
to be applied in determining the existence of a duty: "(1) the relationship
between the parties; (2) the social utility of the actor's conduct; (3) the
nature of the risk imposed and foreseeability of the harm incurred; (4) the
consequences of imposing a duty upon the actor; (5) the overall public
interest in the proposed solution." Brisbine, supra at 17.
¶37 In this case, the social utility of Guidance Center's work weighs heavily
against the finding of a duty. Its statutory obligation is to Ferrara and also
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to provide service to Ferrara in the least restrictive environment possible.
50 P.S. § 7107.9 The consequences of imposing a duty in this case are
grave. Treatment of the mentally ill is not an exact science. If we allow
recovery against mental health and mental retardation providers for harm
caused by their patients except in the clearest of circumstances, we would
paralyze a sector of society that performs a valuable service to those in need
of mental health care. Thus, we decline to impose a duty of ordinary care
under Restatement (Second) of Torts § 319 on providers of mental health
and mental retardation services.
¶38 We next consider Appellants' contention that a duty is created under
the MHMR Act. We begin our analysis with an examination of Goryeb v.
Pennsylvania Department of Public Welfare, 525 Pa. 70, 575 A.2d 545
(1990). See also Sherk v. County of Dauphin, 531 Pa. 515, 614 A.2d
226 (1992) (applying Goryeb). In Goryeb, a dangerous and suicidal
psychiatric patient was released by a state mental institution even though he
should have remained hospitalized under the relevant provisions of the
Mental Health and Procedures Act ("MHPA"), 50 P.S. § 7101, et seq. He
killed his former girlfriend, her current boyfriend, and another person who

9 That section provides, "Individualized treatment plan means a plan of
treatment formulated for a particular person in a program appropriate to his
specific needs. To the extent possible, the plan shall be made with the
cooperation, understanding and consent of the person in treatment, and
shall impose the least restrictive alternative consistent with affording the
person adequate treatment for his condition."
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happened to be in the same home. He then committed suicide. An action
was brought by or on behalf of the shooting victims against the
Commonwealth, the Department of Public Welfare, and a hospital physician.
Plaintiffs alleged in relevant part that the defendants had been grossly
negligent in releasing the patient when they knew that he was a danger to
himself and others. The patient allegedly had received no psychiatric
treatment due to staffing shortages while he was hospitalized.
¶39 The defendants raised the defense of sovereign immunity, the trial
court permitted invocation of that defense, and the Commonwealth Court
reversed. The Supreme Court granted review, concluding first that
sovereign immunity did not apply since an exception to sovereign immunity
exists for medical-professional liability. It then stated specifically that when
a Commonwealth party participates in a decision that a person be examined,
treated, or discharged pursuant to the Mental Health and Procedures Act,
such a party shall be civilly liable for such decision when the party engages
in willful misconduct or gross negligence. In so doing, it relied specifically
upon section 7114 of the Act, which provides:
§ 7114 Immunity from civil and criminal liability
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
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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.
The Goryeb Court concluded that this language must be construed as
creating liability to people harmed when a party commits gross negligence or
willful misconduct in treatment, discharge, or examination of a mentally ill
patient within the purview of the MHPA. It further noted in passing that its
determination that such a duty exists is consistent with Restatement
(Second) of Torts § 319.
¶40 Goryeb is particularly instructive. Indeed, in Emerich, supra, our
Supreme Court cemented the holding in that case, clearly recognizing the
cause of action created in Goryeb as a separate and distinct cause of action
against mental health providers operating pursuant to the provisions of the
MHPA.
¶41 The Goryeb Court grounded its holding that the MHPA creates a cause
of action against mental health providers on the language in section 7114 of
the MHPA, which provides for liability in the case of gross negligence. In the
present case, Ferrara was treated pursuant to the provisions of the MHMR
Act, which contains similar language:
No person and no governmental or recognized nonprofit
health or welfare organization or agency shall be held civilly or
criminally liable for any diagnosis, opinion, report or any thing
done pursuant to the provisions of this act if he acted in good
faith and not falsely, corruptly, maliciously or without reasonable
cause; provided, however, that causes of action based upon
gross negligence or incompetence shall not be affected by the
immunities granted by this section.
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50 P.S. § 4603.
¶42 Given our Supreme Court's treatment of identical language in the
MHPA as creating liability for gross negligence, we believe that the Court
would reach the same result under the MHMR Act. See Rhines v. Herzel,
481 Pa. 165, 392 A.2d 298 (1978) (MHMR Act providers were subject to
liability based upon allegations of gross negligence for death of inpatient in
mental health facility who was killed by inadequately supervised patient with
known homicidal tendencies). Thus, while we reject Appellants' attempt to
create a cause of action for ordinary negligence in this case, it is obvious
that the legislative pronouncement in the MHMR Act allows for recovery in
the case of gross negligence.
¶43 Examining the allegations in the complaint, we conclude that they do
not establish a case of gross negligence. See Albright v. Abington
Memorial Hospital, 548 Pa. 268, 696 A.2d 1159 (1997) (gross negligence
is defined as flagrant and gross deviation from the ordinary standard of care
and where there is no question that gross negligence is not present,
summary judgment may be granted to mental health provider); Willett v.
Evergreen Homes, Inc., 595 A.2d 164 (Pa.Super. 1991) (allegations
against mental health and mental retardation service providers were not
sufficient to establish gross negligence).
¶44 The allegations in the complaint in this case establish that Ferrara
unquestionably had engaged in inappropriate and dangerous sexual conduct
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for years. However, Ferrara participated in home visits for years. The
negligence in this case consisted of his release into the custody of his father,
who was not competent to control his behavior. The complaint indicates
clearly that Sylvia released Ferrara into the father's care. Meanwhile, Sylvia
alleged that Group Home made that decision. Nonetheless, it is apparent
from our reading of the complaint that Guidance Center did not actually
participate in that decision. Furthermore, there no indication that it even
knew that there was a risk that Ferrara would be so released.
¶45 Sylvia admittedly is Ferrara's legal guardian, and there are no specific
allegations in the complaint that Guidance Center would have reason to
know that Ferrara would be released into the custody of his incompetent
father rather than his legal guardian. Instead, while Appellants make a very
general allegation that Guidance Center was negligent in permitting Ferrara
to be in his parents' home, their specific allegation is that Sylvia made that
decision. Complaint, 11/16/00, at ¶ 14.
¶46 Furthermore, in the complaint, there are no clear indications that there
were any incidents of sexual assaults in the neighborhood occurring after
1984. There is an averment that on an unspecified date in the mid-1980s
Ferrara was "suspected" of assaulting a girl at a local church. However,
Appellants failed to indicate that this incident occurred after Ferrara's
voluntary placement and that Ferrara was on a home visit at that time; they
also failed to delineate the factual basis for the suspicion. The purported
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victim remains unnamed, even by initials, and apparently no charges were
brought. In the complaint, Appellants also contend that in the mid-1990s,
Ferrara had sexual relations with an underage girl. Again, there is no
indication that this activity occurred while Ferrara was on a home visit.
¶47 In conclusion, the averments in the complaint, viewed in the light most
favorable to Appellants, establish that Ferrara was not able to control his
behavior. Nonetheless, there is no indication that his competent guardian
could not control his behavior nor is there an indication that Guidance Center
knew that Ferrara would be released to his father instead of his guardian.
The allegations do not establish the existence of a flagrant and gross
deviation from the applicable standard of care. Thus, we affirm the trial
court's refusal to impose liability on Guidance Center in this action.
¶48 The appeal at No. 1195 WDA 2001 is affirmed. The appeal at
No. 1217 WDA 2001 is quashed.
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