T.A. Harris v. PA DOC ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Terrence Andrew Harris, :
Appellant :
:
v. : No. 1199 C.D. 2021
: Submitted: February 17, 2023
Pennsylvania Department :
of Corrections, et al. :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: November 8, 2023
Terrence Andrew Harris (Harris), an inmate incarcerated at the State
Correctional Institution at Somerset (SCI-Somerset), appeals, pro se, from the Order
entered in the Court of Common Pleas of Somerset County (trial court) on
September 28, 2021, sustaining in part and overruling in part the Department of
Corrections, et al.’s1 (collectively, Appellees) preliminary objections (POs) to
Harris’s Complaint and dismissing Harris’s Complaint as sovereign immunity bars
Harris’s causes of action against Appellees. After review, we affirm.
1
Harris named the following as defendants in his Complaint: Pennsylvania Department of
Corrections Secretary John E. Wetzel and Staff; Director of the Office of Special Investigations
and Intelligence – Unknown and Staff Chief; Secretary’s Office of Inmate Grievance and Appeals
– Dorina Varner and Staff; Assistant Chief Grievance Officer Keri Moore and Staff; SCI-Somerset
Facility Manager/Superintendent Melissa R. Hainsworth (Superintendent); SCI-Somerset Facility
Grievance Coordinator Allen Joseph; SCI-Somerset Facility Grievance Coordinator Christie L.
Schenck; SCI-Somerset Grievance Officer/B&C Unit Manager Eric Frazier (Unit Manager); SCI-
Somerset Head of Internal Security Captain Brothers (Security Captain) and Staff; Major Price;
Mrs. Pyle; Corrections Emergency Response Team (CERT) – All Staff Present and in Leadership
of such during this time. (Complaint (Compl.) at 2.)
I. BACKGROUND
Harris filed the Complaint with the trial court in March 2018, listing 40 causes
of action against Appellees, including “civil rights/criminal injustices &
violations[;]” “failure to properly investigate inmate grievances[;]” annoyance,
anxiety, emotional distress, false security, harassment, mental anguish, profane
abuse, psychological distress[;]” “violation of 28 U.S.C. § 1983, § 1986, &
§ 1987[;]” and “conduct unbecoming under color of law or in personal capacity[.]”
(Complaint (Compl.) at 19.)2 Appellees removed the case to federal court, and the
United States District Court for the Western District of Pennsylvania (district court)
dismissed the entire Complaint. Harris v. Pa. Dep’t of Corr. (W.D. Pa., No. 3:18-
cv-99, filed June 26, 2019). The Third Circuit affirmed in part, vacated in part, and
remanded for the district court to consider whether to exercise its supplemental
jurisdiction over two of Harris’s state law claims: (1) deprivation of lawful property
and loss of use; and (2) theft of property. Harris v. Wetzel (3d Cir., No. 19-2582,
filed July 30, 2020), 2020 WL 4362113 (per curiam). Upon remand, the district
court declined to exercise its supplemental jurisdiction and transferred the matter to
the trial court for the purposes of addressing only the two state law claims. Harris
v. Pa. Dep’t of Corr. (W.D. Pa., No. 3:18-cv-99, filed Aug. 26, 2020), Original
Record (O.R.) Item 19. As a result, relevant here are only Harris’s claims for
“deprivation of lawful property & loss of use”3 and “theft of property.”4 (Compl. at
19.)
Notwithstanding that the Third Circuit limited Harris’s suit to his two state
law claims, Harris’s factual allegations in his Complaint encompass all 40 of his
2
Harris’s Complaint is not comprised of individually numbered paragraphs. Thus, we cite
to the page of the Complaint, as reflected by the handwritten numbering provided by Harris.
(Footnote continued on next page…)
2
claims. As such, we reiterate that we are constrained by the Third Circuit to consider
the factual allegations in the context of Harris’s two state law claims of deprivation
of property and loss of use and theft of property.
Harris avers that “[o]n three [] separate dates, Correctional Emergency
Response Team(s), a.k.a. (CERT), [] subjected the entire [SCI-]Somerset to
emergency lockdowns[,]” during which time his cell was searched. (Compl. at 15.)
In the first search, Harris avers guards confiscated “legal paper exhibits/personal
credentials,” issued Harris a misconduct for possessing such material as “contraband
and implements of escape[,]” and gave Harris a 30-day cell restriction and 6-month
commissary restriction. (Id.) In the second search, Harris asserts “there w[ere] no
notable violations other than the removal of excess items without a confiscation slip
being written[.]” (Id.) In the third search, Harris contends he experienced “a
massive retaliatory search[.]” (Id.) During the strip-down portion of the search,
Harris alleges he was “verbally assaulted with very unkind language, degraded for
[his] physical size and appearance, harassed for having a good supply of
commissary, and was asked very inappropriate question[s] unrelated to the search at
hand, all whil[]e standing nude and without [his] eyeglasses on.” (Id.) Further,
Harris alleges he was handcuffed, removed from his cell, and told to look at the floor
and stand for over an hour. (Id.) According to the Complaint, during this time Harris
heard two guards discuss his food supply, so he glanced into the cell and saw two
guards eating his “Hershey’s chocolate bar and vanilla cookies[.]” (Id.) When the
guards saw Harris “peeking[,]” he contends he was “verbally attacked” and moved
3
This claim is listed as cause of action 11 in the Complaint. Count 11 was asserted against
Superintendent, Unit Manager, Security Captain, and CERT. (Compl. at 20-21.)
4
This claim is listed as cause of action 33 in the Complaint. Count 33 was asserted only
against CERT. (Compl. at 21.)
3
to a spot where he could no longer see the guards inside his cell. (Id.) Once the
search was complete, Harris avers he was uncuffed and escorted back to his cell
where he saw “a rather full and large bag of confiscated items . . . of which [he]
could easily see was the vast majority of [his] non-perishable food/commissary,
which was legally purchased and stored in [his] foot locker at [the] time.” (Id. at
16.) Harris includes a list of confiscated items, which is included on page 29c of his
Complaint. Harris estimates the value of the confiscated items was $47.44, listing
the Hershey’s chocolate bar as being worth $0.86 and the vanilla cookies as being
worth $1.22. (Id. at 29c.) Harris states he did not receive a confiscation slip for the
third search, which is required for all confiscations when items are removed for any
reason. (Id. at 16.) Harris asserts he exhausted the internal grievance process. (Id.
at 8, 16.)
Harris seeks “actual cost/loss of property,” damages for “legal time,
preparation of documents, cost(s) of filing,” and “exemplary, punitive,
emotional/mental/physically traumatic damages.” (Id. at 30.) He also requests that
the Court “issue judicial corrective orders, cease and desist orders, civil and criminal
sanctions, administrative training and/or firing recommendations, and all other relief
as deemed appropriate,” including “prospective relief, preliminary relief, permanent
relief, exemplary relief, special relief, relevant relief, customary monetary relief,
injunctive and declaratory relief, punitive relief, actual relief, administrative
sanctions, criminal charges, civil liberties re-edu[ca]tion and training, et al.” (Id. at
31.)
Appellees filed POs asserting, inter alia, Harris’s Complaint should be
dismissed for failure to state a claim upon which relief may be granted (demurrer)
4
because Appellees are immune from suits alleging negligent or replevin acts.5 (POs
¶¶ 18; Brief in Support of POs at 7-8.)6 Following briefing and argument, the trial
court issued a Memorandum and Order on September 28, 2021 (Memo. & Order).
As to Appellees’ demurrer, the trial court explained that, while sovereign immunity
is generally pleaded as an affirmative defense, when on the face of a complaint the
cause of action does not fall into an exception to sovereign immunity, it is
appropriate to decide the issue on a preliminary objection. (Memo. & Order at 10.)
The trial court stated that Appellees are Commonwealth parties for the purposes of
sovereign immunity as they are employees of a Commonwealth agency, the
Department of Corrections (DOC), and acted within the scope of their employment
during the incidents in question. (Id. at 10-11.) The trial court found the facts alleged
by Harris to be analogous to those in Williams v. Pennsylvania Department of
Corrections. (Pa. Cmwlth., No. 695 M.D. 2016, filed September 11, 2017), in which
this Court, acting in its original jurisdiction, sustained preliminary objections by
DOC respondents on the basis of sovereign immunity in an action for replevin
brought by an inmate seeking to recover damages for items that were confiscated.7
5
Appellees also filed POs asserting that the Complaint violated Pennsylvania Rule of Civil
Procedure 1028(a)(2) and (3), Pa.R.Civ.P. 1028(a)(2), and (3), respectively, as it included
scandalous or impertinent matter, and was insufficiently pled. (POs ¶¶ 20-21.) The trial court
sustained the PO pursuant to Rule 1028(a)(2) as to all Appellees except CERT. (Memorandum &
Order at 5-9.) It overruled the PO asserting the Complaint was frivolous. (Id. at 15-17.)
Nonetheless, as discussed more fully below, the trial court dismissed the Complaint upon
sustaining the demurrer. (Id. at 9-15.) As the demurrer on the basis of sovereign immunity is
dispositive, we focus on that issue.
6
The POs and Brief in Support of POs may be found in the Original Record as Items 26
and 27.
7
While not binding, unreported panel decisions of this Court may be considered persuasive
authority pursuant to Rule 126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P
126(b)(1), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a).
5
(Memo. & Order at 12.) Further, the trial court reasoned Harris did not allege
negligent acts, rather he alleged intentional acts, which do not fall into the exceptions
to sovereign immunity enumerated in Section 8522(b) of the Judicial Code, 42
Pa.C.S. § 8522(b), commonly known as the Sovereign Immunity Act. (Memo. &
Order at 13-14.) As such, the trial court concluded sovereign immunity barred
Harris’s claims against all Appellees and dismissed Harris’s Complaint. (Id. at 15 &
Order page.) Harris filed a timely notice of appeal.
II. DISCUSSION
On appeal, Harris argues the trial court erred in dismissing his Complaint on
sovereign immunity grounds because he averred negligent conduct on the part of all
Appellees. Harris also addresses the other POs, asserts a number of other arguments,
and makes a number of allegations not pertinent to the two state law claims before
the Court. Appellees respond that the trial court correctly determined Appellees are
Commonwealth employees who acted within the scope of their employment, Harris
alleged intentional wrongdoing, and intentional torts are protected by sovereign
immunity. Further, Appellees contend that Harris failed to address the trial court’s
sovereign immunity analysis pertaining to his two state law claims and instead he
focused on the other claims that the federal courts dismissed. Thus, Appellees assert
the trial court appropriately dismissed the Complaint.
“In an appeal from a trial court order sustaining preliminary objections and
dismissing a complaint, our scope of review is to determine whether an error of law
was committed, or an abuse of discretion occurred.” In re Est. of Bartol, 846 A.2d
209, 213 (Pa. Cmwlth. 2004) (citation omitted). Further, “we must . . . keep in mind
that preliminary objections admit as true all well-pled facts and inferences
reasonably deducible therefrom, but not conclusions of law.” Id. (citation omitted).
6
“When ruling on preliminary objections, this Court shall sustain such objections and
dismiss the action only in cases that are clear and free from doubt that the law will
not permit recovery.” DeHart v. Horn, 694 A.2d 16, 16 (Pa. Cmwlth. 1997).
In Paluch v. Pennsylvania Department of Corrections, we explained the
applicability of sovereign immunity as follows:
Sovereign immunity acts as a bar to suits against Commonwealth
parties, including its officials and employees acting within the scope of
their duties. 1 Pa.C.S. § 2310. Establishing a limited list of exceptions
to immunity, the General Assembly adopted what is commonly referred
to as the Sovereign Immunity Act, 42 Pa.C.S. §§ 8501-8502, 8521-
8527. Section 8522 of the Sovereign Immunity Act waives “immunity
as a bar to an action against Commonwealth parties, for damages
arising out of a negligent act where the damages would be recoverable
under the common law or a statute creating a cause of action if the
injury [was] caused by a person not having available the defense of
sovereign immunity,” for specifically enumerated categories of acts. 42
Pa.C.S. § 8522. A “Commonwealth party” is defined in Section 8501
as “[a] Commonwealth agency and any employee thereof, but only with
respect to an act within the scope of his office or employment.” 42
Pa.C.S. § 8501. Thus, when an employee of a Commonwealth agency
. . . is acting within the scope of his or her duties, the employee is
shielded by the doctrine of sovereign immunity from liability for tort
claims arising from negligent acts that do not fall within the statutory
exceptions listed in Section 8522(b) of the Sovereign Immunity Act. 1
Pa.C.S. § 2310; 42 Pa.C.S. § 8522(a)-(b). Sovereign immunity is not
waived for intentional acts committed by a Commonwealth
employee acting within the scope of his or her employment. La
Frankie v. Miklich, . . . 618 A.2d 1145, 1149 ([Pa. Cmwlth.] 1992).
Paluch, 175 A.3d 433, 437-38 (Pa. Cmwlth. 2017) (emphasis added). Thus, to
determine whether a Commonwealth employee is protected from liability under
sovereign immunity, we must consider “whether the Commonwealth employee was
acting within the scope of [their] employment; whether the alleged act which causes
injury was negligent and damages would be recoverable but for the availability of
7
the immunity defense; and whether the act fits within one of the nine exceptions to
sovereign immunity.” La Frankie, 618 A.2d at 1149. One of the exceptions to
sovereign immunity is for “damages caused by . . . [t]he care, custody[,] or control
of personal property in the possession or control of Commonwealth parties.” 42
Pa.C.S. § 8522(b)(3).
As the thoughtful opinion authored by President Judge D. Gregory Geary
explains:
[DOC] is a Commonwealth agency for the purposes of sovereign
immunity. Further, all other [Appellees] are “Commonwealth
parties[,”] as they are employees of [DOC]. An employee’s conduct is
within the scope of his or her employment when: “(a) it is of the kind
he is employed to perform; (b) it occurs substantially within the
authorized time and space limits; [and (c)] it is actuated, at least in part,
by a purpose to serve the master.” Butler v. Flo-Ron Vending Co., 557
A.2d 730, 736 (Pa. Super. 1989) (quoting Restatement (Second) of
Agency § 228 [Am. Law Inst. 1958]). Here, it is clear that all
[Appellees] were acting within the scope of their employment at
[DOC]. Superintendent [] and Unit Manager [] evaluated [Harris’s]
grievance, which is an administrative duty falling within the scope of
their employment. The CERT officers acted within the scope of their
employment when they conducted emergency cell searches to maintain
order and security in the prison. As such, all named [Appellees] to
[Harris’s] civil action are immune from damages arising out of
negligent acts, unless an exception to sovereign immunity applies.
....
The two [state law] causes of action filed by [Harris] in the instant case
were founded upon the wrongful taking and detention of his personal
property, which was confiscated from his prison cell by unnamed and
unidentified CERT guards of SCI-Somerset. . . .
Here, [Harris] fails to allege any negligent act committed by the CERT
guards during the searches of his prison cell at SCI-Somerset. [Harris]
details how his cell was searched three [] times, alleges that the CERT
guards ate some of his food during the third search, and describes how
they confiscated additional food and commissary items. Assuming
8
[Harris’s] allegations are true, the CERT guards’ actions of eating and
confiscating [Harris’s] food/commissary items were intentional, and
not negligent acts. When an employee of a Commonwealth agency is
acting within the scope of his or her duties, the Commonwealth
employee is protected by sovereign immunity for the imposition of
liability for intentional tort claims. La Frankie . . . , 618 A.2d [at] 1149
. . . (citing Yakowicz v. McDermott, 548 A.2d 1330 (Pa. 1998)).
Intentional tort claims are barred by sovereign immunity and the
exception to sovereign immunity under Section 8522(b)(3) for damages
to personal property does not apply to intentional damage to personal
property. Williams v. Stickman, 917 A.2d 915, 918 (Pa. Cmwlth. 2007).
The proper test to determine if a Commonwealth employee is protected
from liability pursuant to 42 Pa.C.S. § 8522 is to consider whether the
Commonwealth employee was acting within the scope of his or her
employment; whether the alleged act which causes injury was negligent
and damages would be recoverable but for the availability of the
immunity defense; and whether the act fits within one of the exceptions
to sovereign immunity. La Frankie, 618 A.2d at 1149. Here, it is clear
[DOC] is a Commonwealth agency and the CERT guards are
Commonwealth employees. Thus, the CERT guards are only liable if
their actions were outside the scope of their employment. . . . A search
of an inmate’s cell by the CERT guards certainly falls within the scope
of their employment, as it is the kind of work they are employed to
perform, it occurs at the prison where they are assigned to work, and it
is necessary to maintain order and security within the prison.
The CERT guards’ actions during searches of [Harris’s] cell were
intentional, not negligent, and occurred within the scope of their
employment. . . . [Harris] asserts that the “care, custody, and control"
exception to sovereign immunity applies as to the CERT guards,
pursuant to 42 Pa[]C.S.[] § 8522(b)(3). However, [Harris’s] factual
summation pleads intentional, rather than negligent acts, committed by
the CERT guards. The alleged acts committed by the CERT guards of
eating [Harris’s] commissary and seizing [Harris’s] belongings as
contraband during emergency cell searches were intentional acts.
These acts do not fit within one of the exceptions to sovereign
immunity, as they are not a product of negligence, and therefore suit is
barred against these unnamed and unidentified CERT guard
[Appellees].
There is a much simpler argument which bars [Harris’s] claims against
the other named [Appellees]. In DuBree v. Commonwealth, the
9
Pennsylvania Supreme Court opined that individual public employees
are not vicariously liable for the actions of subordinates merely because
the subordinate is in the employee’s chain of command. 393 A.2d 293(Pa. 1978). The facts must indicate that each defendant’s conduct is
actionable. Id. In the instant matter, [Harris] pleaded specific facts
relating to the care, custody, and control of [Harris’s] property only by
. . . [CERT]. . . . [Harris] pleaded that his legal papers, credentials, and
a large majority of his non-perishable food/commissary [were]
confiscated from him by CERT guards without a confiscation slip ever
being provided. . . . [Harris’s] Complaint fails to identify any of the
other [Appellees] as having personal responsibility or involvement in
the loss of or damage to his property. Thus, the care, custody, and
control exception to sovereign immunity does not apply, and suit is
barred against all other named and identified [Appellees].
(Trial Ct. Op. at 10-11, 12, 13-15.)
We agree with the trial court’s reasoning pertaining to the confiscation of
Harris’s papers, credentials, and bag of commissary items during the emergency
searches conducted throughout SCI-Somerset, but there is a question of fact as to
whether the CERT guards acted within the scope of their employment when they
allegedly ate Harris’s chocolate bar and cookies during the third search. “[W]here
more than one inference may be drawn from the facts, the issue of whether an
employee was acting within the scope of employment is for the [fact finder].”
Justice v. Lombardo, 208 A.3d 1057, 1068 (Pa. 2019). Further,
the fact that an act is done in an outrageous or abnormal manner has
value in indicating that the servant is not actuated by an intent to
perform the employer's business. . . . In such cases, the facts may
indicate that the servant is merely using the opportunity [a]fforded by
the circumstances to do the harm, and is therefore acting outside the
scope of employment.
Id. at 1073 (citation and internal quotation marks omitted). Arguably, the CERT
guards’ alleged conduct of eating Harris’s chocolate bar and cookies during the third
search was not actuated by an intent to perform CERT’s business, but rather
10
amounted to an opportunity to cause harm afforded by the circumstances of the
search. Accordingly, the trial court erred in sustaining Appellees’ PO as it related to
Harris’s state law claims pertaining to the CERT guards allegedly consuming
Harris’s food because it is a question of fact whether the CERT guards were acting
within the scope of their employment while doing so.
However, the trial court’s error is harmless as Harris’s remaining state law
claims pertaining to the consumption of the chocolate bar and cookies equate to an
amount in controversy of $2.08. Section 6601 of the Prison Litigation Reform Act
(PLRA) states that a frivolous claim is one that is “[l]acking an arguable basis either
in law or in fact.” 42 Pa.C.S. § 6601. In Williams v. Beard, 67 A.3d 182, 184 (Pa.
Cmwlth. 2013), this Court rejected a federal paradigm that compares the actual
amount in controversy to the filing fees to conclude whether a claim is frivolous
under the Federal Prison Litigation Reform Act, 28 U.S.C. § 1915. We reasoned the
PLRA definition of frivolous is not as broad as its federal counterpart. Id. Yet, we
stated that “[w]e do not interpret the [PLRA] as requiring our courts to waste time
on nonsense, such as a suit to recover the value of a lost pack of gum.” Id. In that
case, we held the value of the allegedly lost footlocker, which was $71.47, while
“not of great value” was not “trivial” either. Id. However, “we d[id] not rule out the
possibility that a suit seeking monetary compensation so trifling as to render the
claim devoid of genuine merit, or to give rise to an inference that it is brought simply
for purposes of harassment, may well be deemed frivolous under our [PLRA].” Id.This is such a case. While we acknowledge that commissary items are extremely
valuable to prisoners and sympathize with Harris that some of his commissary items
were wrongly consumed by CERT guards, under the circumstances we decline to
remand this issue because the amount in controversy is “trifling” compared to the
11
costs of a remand and litigating the two state law claims for those limited items.8
Accordingly, we affirm.9
__________________________________________
RENÉE COHN JUBELIRER, President Judge
8
“[T]his Court may affirm on grounds different than those relied upon by the [trial] court
. . . if such grounds for affirmance exist.” Motor Coils MFG/WABTEC v. Workers' Comp. Appeal
Bd. (Bish), 853 A.2d 1082, 1087 n. 9 (Pa. Cmwlth. 2004).
9
Due to our ruling, we need not reach Harris’s remaining arguments.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Terrence Andrew Harris, :
Appellant :
:
v. : No. 1199 C.D. 2021
:
Pennsylvania Department :
of Corrections, et al. :
ORDER
NOW, November 8, 2023, the Order of the Court of Common Pleas of
Somerset County, dated September 28, 2021, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge