L. May v. J. Doe, PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Landon May, :
Appellant :
:
v. :
:
Jane Doe, Pennsylvania : No. 649 C.D. 2021
Department of Corrections : Submitted: September 17, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY
JUDGE COVEY FILED: February 17, 2022
Landon May (May) appeals pro se from the Centre County Common
Pleas Court’s (trial court) February 8, 2021 order2 sustaining the Pennsylvania
Department of Corrections’ (DOC) Preliminary Objections (Preliminary Objections)
to May’s pro se Complaint (Complaint), dismissing the Complaint and granting him
30 days to amend the Complaint. May presents three issues for this Court’s review:
(1) whether the fact that DOC addressed his grievance prevents DOC from
demurring to his Complaint; (2) whether the trial court erred by not accepting all
well-pleaded facts averred in the Complaint as true; and (3) whether the trial court
erred by concluding that DOC could not be liable to May when it neglected to deliver
his properly addressed mail. After review, this Court quashes May’s appeal.
May is currently incarcerated at State Correctional Institution (SCI)-
Phoenix. See Complaint ¶1. On January 27, 2020, May, “acting through an agent,
1
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
2
The trial court’s order incorrectly identified the date as February 8, 2020.
caused an order for seven books [(Order)] to be shipped” to DOC’s Security
Processing Center (SPC) from Thriftbooks.com. Complaint ¶6. Documents
attached to the Complaint reflect that the Order was placed by the holder of an email
account identified as Jessica Johnson. See Complaint Exs. A-1, A-2, B. The Order
totaled $33.21. See Complaint ¶7. On February 5, 2020, an SPC agent received one
part of the Order. See Complaint ¶8; see also Complaint Exs. A-1, C-1. On February
6, 2020, an SPC agent received the remainder of the Order. See Complaint ¶9; see
also Complaint Exs. A-2, C-2. On February 12, 2020, May received two of the
seven books in the Order. See Complaint ¶10. May has not received the rest of the
Order. See Complaint ¶11.
On February 24, 2020, May filed a grievance with DOC (Grievance)
seeking delivery of the remaining five books or reimbursement therefor, i.e., $25.28.
See Complaint ¶13; see also Complaint Ex. D. On March 10, 2020, DOC denied the
Grievance, see Complaint ¶15, explaining:
After checking the tracking from the SPC, [SPC] ha[s]
only processed [two] books for you since [January 29,
2020]. The mailroom received those books on [February
11, 2020,] and they were sent to the unit you are located
[sic] on [February 12, 2020]. We have not received
anything else for you. The mailroom did not misplace
your publications.
Complaint Ex. E. On March 19, 2020, May appealed to SCI-Phoenix Superintendent
K. Jaime Sorber (Sorber). See Complaint ¶16; see also Complaint Ex. F.
On April 10, 2020, Sorber denied the appeal, see Complaint ¶18, but
nevertheless admitted:
I am in receipt of your [G]rievance appeal in which you
state 7-books were purchased through thrift[]books.com[.]
You state you only received 2 of the books. You are
asking for the books to be found or the money to
repurchase.
2
Upon review of all available information, I find that your
books were delivered to the [SPC]. Unfortunately, with a
high volume of books and magazines to process, it causes
a delay in receiving such items. Once the mailroom
receives your book [sic] from SPC, it will be processed the
same day and sent to the housing unit you are assigned to.
Complaint Ex. G (emphasis added). On April 17, 2020, May appealed to DOC’s
Secretary’s Office of Inmate Grievances and Appeals (Appeals Office), noting that
Sorber had admitted to receiving the books, and referencing enclosed receipts and
United States Postal Service (USPS) tracking documents/proofs-of-delivery. See
Complaint ¶19; see also Complaint Ex. H. Despite Sorber’s acknowledgment that
the books had been delivered to SPC, and the existence of the USPS tracking
documents, on June 22, 2020, the Appeals Office denied May’s appeal, see
Complaint ¶20, stating that “[r]eview of the record finds that the responses provided
to you appropriately addressed your concerns. Records reflect that the items the
SPC received were forwarded to the facility for review/distribution. Records reflect
that the SPC only received the two books that you received.” Complaint Ex. I
(emphasis added).
On August 17, 2020, May filed the Complaint in the trial court against
Jane Doe3 and DOC (collectively, DOC) seeking an injunction directing DOC to
locate and deliver his property, or in the alternative, $25.28 in compensatory
damages, and costs.4 On October 30, 2020, DOC filed the Preliminary Objections
3
Jane Doe is an unidentified DOC employee who is charged with managing/supervising
the SPC. See Complaint ¶2.
4
In Pennsylvania, a tort law remedy is available for the possession
and/or destruction of non-contraband personal property [by DOC]
by virtue of [S]ection 8522(b)(3) of what is commonly referred to
as the Sovereign Immunity Act, which waives immunity for
negligent acts concerning “[t]he care, custody or control of personal
property in the possession or control of Commonwealth [of
Pennsylvania (Commonwealth)] parties, including . . . property of
3
in the nature of a demurrer, wherein it alleged that the Complaint should be
dismissed because it was legally insufficient pursuant to Pennsylvania Rule of Civil
Procedure 1028(a)(4). On February 8, 2021, the trial court sustained the Preliminary
Objections, dismissed the Complaint, and permitted May to file an amended
complaint within 30 days. The trial court reasoned that because May did not pay for
the books, the Complaint did not establish actual loss or damages necessary to prove
negligence. Rather than file an amended complaint, May appealed to this Court.
Preliminarily, this Court must address whether the trial court’s
February 8, 2021 order is an appealable order. Generally, only final orders are
appealable. See Pennsylvania Rule of Appellate Procedure (Rule) 341(a), Pa.R.A.P.
341(a). Pursuant to Rule 341(b)(1), (3), a final order is any order that “disposes of
all claims and of all parties[,]” or “is entered as a final order . . . .” Pa.R.A.P.
341(b)(1), (3). This Court has declared that “[a]n order that sustains preliminary
objections, but with leave to file an amended complaint, is generally considered to
be interlocutory and not a final, appealable decree.” Hionis v. Concord Twp., 973
A.2d 1030, 1034 (Pa. Cmwlth. 2009);5 see also Mier v. Stewart, 683 A.2d 930 (Pa.
Super. 1996) (order dismissing complaint without prejudice and affording plaintiff
30 days to file an amended complaint was not a final order); cf. Sklaroff v. Abington
Sch. Dist. (Pa. Cmwlth. No. 2134 C.D. 2016, filed May 23, 2017) (order sustaining
preliminary objections and dismissing complaint without prejudice was not a final
order); Horan v. Newingham (Pa. Cmwlth. No. 2622 C.D. 2015, filed Oct. 24, 2016),
persons held by a Commonwealth agency[.]” 42 Pa.C.S. §
8522(b)(3)[.]
Shore v. Pa. Dep’t of Corr., 168 A.3d 374, 385 n.6 (Pa. Cmwlth. 2017).
5
In Hionis, the trial court’s order sustained preliminary objections and granted the plaintiff
an opportunity to amend his complaint. However, the plaintiff wished to pursue an immediate
appeal rather than amend his complaint. This Court held that because, inter alia, the order
permitted the plaintiff an opportunity to amend his complaint and, thus, did not dispose of “all
claims[,]” the trial court’s order was not a final order. Id. at 1035 (quoting Pa.R.A.P. 341(b)(1)).
4
slip op. at 6 (“Both [the Commonwealth] Court and the Superior Court have held
that an order sustaining preliminary objections, but granting leave to file an amended
complaint, is not a final order for purposes of pursuing an appeal[.]”); Lichtman v.
Hodge (Pa. Cmwlth. No. 1563 C.D. 2017, filed Sept. 13, 2018) (finding that the trial
court’s order was a final appealable order because although the trial court did not
dismiss the complaint with prejudice, the trial court did not grant plaintiff leave to
amend the complaint); Schneller v. Prothonotary of Montgomery Cnty. (Pa. Cmwlth.
No. 1316 C.D. 2016, filed Sept. 12, 2017) (disagreeing with the trial court’s assertion
that its order was not final, and concluding that the trial court’s order was a final
appealable order because, although the order did not specify whether the complaint
was dismissed, or dismissed with or without prejudice, the order did not grant the
plaintiff leave to amend).6
Here, the trial court sustained the preliminary objections, dismissed
May’s Complaint, and granted him 30 days to file an amended complaint.
Accordingly, the trial court’s order, which dismissed May’s Complaint, is
interlocutory and not a final appealable order.7
For all of the above reasons, May’s appeal is quashed.
_________________________________
ANNE E. COVEY, Judge
6
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent. Lichtman, Schneller, Sklaroff, and Horan
are cited for their persuasive value.
7
The Hionis Court instructed that, in accordance with Ayre v. Mountaintop Area Joint
Sanitary Authority, 427 A.2d 1294 (Pa. Cmwlth. 1981), “a plaintiff who chooses not to file an
amended complaint may appeal by filing a praecipe with the trial court to dismiss the original
complaint with prejudice.” Hionis, 973 A.2d at 1035-36. “By filing a praecipe with the [trial]
court to issue a final, appealable order, the litigant can obtain appellate review . . . .” Id. at 1036.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Landon May, :
Appellant :
:
v. :
:
Jane Doe, Pennsylvania : No. 649 C.D. 2021
Department of Corrections :
ORDER
AND NOW, this 17th day of February, 2022, Appellant Landon May’s
appeal is quashed.
_________________________________
ANNE E. COVEY, Judge