D. Barnes v. PA DOC ( 2014 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Derrick Barnes, :
: No. 243 C.D. 2014
Appellant : Submitted: June 27, 2014
:
v. :
:
Pennsylvania Department of :
Corrections :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: July 22, 2014
Derrick Barnes appeals, pro se, from the September 12, 2013, judgment
entered by the Court of Common Pleas of the 37th Judicial District, Forest County
Branch (trial court), in favor of Barnes and against the Pennsylvania Department of
Corrections (DOC) in the amount of $50.00 plus the costs of suit.1 We dismiss
Barnes’ appeal.
Barnes filed a civil action against DOC alleging that DOC damaged
and/or lost various items of Barnes’ personal property while he was incarcerated.
1
Although the trial court used the word “verdict” instead of the word “judgment” in its
order, it is evident that the trial court intended to enter judgment on the jury’s verdict, thereby
rendering it final and appealable under Pa. R.A.P. 301 and 341. The trial court stated, “[U]pon
consideration of the verdict returned by the jury in this matter, . . . a verdict is hereby entered in
favor of the Plaintiff, Derrick Barnes, and against the Defendant, [DOC], in the amount of $50.00
together with the costs of suit.” The prothonotary docketed the order on September 12, 2013.
Following a jury trial on September 11, 2013, the jury awarded Barnes $100.00 in
damages but found Barnes 50% contributorily negligent, thereby reducing the award
to $50.00 plus the costs of suit. The trial court entered judgment on September 12,
2013. On October 3, 2013, Barnes timely appealed to the Pennsylvania Superior
Court, which transferred the matter to this court for disposition.
In his Pa. R.A.P. 1925(b) statement of errors complained of on appeal
filed with the trial court, Barnes alleged that the trial court erred in instructing the
jury on the issue of contributory negligence. Barnes, however, has abandoned this
issue in his brief to this court. Therefore, it is waived. See Commonwealth v. Boxley,
948 A.2d 742, 749 n.7 (Pa. 2008) (refusing to address a claim that appellant raised
before the trial court but abandoned in his appellate brief).
Before this court, Barnes raises only one issue: whether the trial court
erred in failing to order DOC to pay Barnes’ civil damage award within 30 days of
the verdict. However, Barnes did not include this issue in his Pa. R.A.P. 1925(b)
statement, and the trial court did not address it. Thus, this claim is also waived. See
Pa. R.A.P. 1925(b)(4)(vii) (stating that issues not included in a Pa. R.A.P. 1925(b)
statement are waived).2
2
Even if this claim were not waived, we note that Barnes’ filing of the instant appeal
divested the trial court of jurisdiction to amend its September 12, 2013, judgment. See Section 5505
of the Judicial Code, 42 Pa. C.S. §5505 (“Except as otherwise provided or prescribed by law, a
court upon notice to the parties may modify or rescind any order within 30 days after its entry . . . if
no appeal from such order has been taken or allowed.”).
2
Accordingly, because there are no properly preserved issues for this
court’s review, we dismiss Barnes’ appeal. See Commonwealth v. Hardy, 918 A.2d
766, 771 (Pa. Super. 2007); Pa. R.A.P. 2101.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
3
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Derrick Barnes, :
: No. 243 C.D. 2014
Appellant :
:
v. :
:
Pennsylvania Department of :
Corrections :
ORDER
AND NOW, this 22nd day of July, 2014, we hereby dismiss Derrick
Barnes’ appeal from the September 12, 2013, judgment entered by the Court of
Common Pleas of the 37th Judicial District, Forest County Branch.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge