A.P. Pew v. Lt. J. Doe

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alfonso Percy Pew, :
Appellant :
:
v. : No. 530 C.D. 2020
: Submitted: September 3, 2021
Lt. John Doe, et al. :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE, BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: March 14, 2022
Alfonso Percy Pew (Pew), pro se, appeals the April 21, 2020 Order of the
Court of Common Pleas of Clearfield County (trial court) sustaining the preliminary
objections (POs) of numerous employees, including John and Jane Does, of the
Department of Corrections (DOC) at the State Correctional Institutions (SCI) at
Houtzdale (SCI-Houtzdale) and at Rockview (SCI-Rockview), as well as Secretary
of Corrections John E. Wetzel, other statewide DOC officials, and Governor Tom
Wolf (collectively, Defendants), and dismissing Pew’s pro se “Supplemental
Complaint.”2 Pew argues that the trial court erred in sustaining the POs and
dismissing his litigation, citing service and procedural issues, and legal errors in the
trial court’s treatment of Pew’s pleadings and the trial court’s conclusions that,
1
This case was reassigned to the opinion writer on January 4, 2022, which was before
January 7, 2022, when Judge Cohn Jubelirer became President Judge.
2
DOC was not named a defendant. Pew further named various third parties that provided
medical, food, telecommunications, and mail services at SCI-Rockview in the Supplemental
Complaint.
among other things, Pew failed to properly serve Defendants and that Defendants
were entitled to sovereign immunity for claims raised under 42 U.S.C. § 1983(Section 1983) (relating to violations of civil rights). Because our review of the
record in this matter reveals confusion regarding what complaints and claims were
before the trial court and what documents were served or not served, both of which
hindered the parties’ ability to respond to the pleadings, we vacate the trial court’s
Order and remand for further proceedings.
I. BACKGROUND
A. The Complaints and Filings
On May 29, 2018, Pew filed a Civil Complaint (Original Complaint) with the
trial court, naming 24 defendants, including John and Jane Does, who were statewide
officials of or employed by DOC at SCI-Houtzdale, Governor Wolf, and the
company that provides medical care at the prison. The Original Complaint, brought
pursuant to Section 1983, averred violations of Pew’s constitutional rights under the
First, Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States
Constitution3 arising from Pew’s incarceration at SCI-Houtzdale. (Original Record
(O.R.) Item 2.) Pew further asserted that his rights under various sections of article
I of the Pennsylvania Constitution were violated.4 Finally, Pew alleged violations
of his rights under the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA),5 the Religious Freedom Protection Act (RFPA),6 and the Americans with
Disabilities Act of 1990.7
3
U.S. CONST. amends. I, IV, V, VIII, and XIV.
4
PA. CONST. art. I.
5
42 U.S.C. §§ 2000cc-2000cc-5.
6
Act of December 9, 2002, P.L. 1701, 71 P.S. §§ 2401-2408.
7
42 U.S.C. §§ 12101-12213.
2
Sometime prior to August 2018, Pew was transferred from SCI-Houtzdale to
SCI-Rockview, which is located in Centre County. Pew filed a “Motion to
Commence Lawsuit and Motion for Order of Sheriff’s Office to Serve the [Original]
Complaint on John Doe Lt[.] et al[.] at SCI[-]Houtzdale,” which the trial court
received on September 13, 2018. (Id., Item 5.) The trial court, on September 14,
2018, directed the Clearfield County Prothonotary (Prothonotary) to transfer the
Original Complaint to the Court of Common Pleas of Centre County (Centre County
Court). (Id., Item 6.) After a hearing before the Centre County Court, the matter
was returned to the trial court because the alleged wrongful acts happened at SCI-
Houtzdale in Clearfield County. (Trial Court Opinion (Op.) at 1, O.R. Item 40.) The
trial court never ruled on the September 2018 motions, one of which sought to have
the Sheriff serve the Original Complaint.
On March 27, 2019, the trial court received a Motion to File a Supplemental
Complaint, in which Pew claimed that his transfer to SCI-Rockview had been
retaliatory and sought to add claims arising from his time at SCI-Rockview. (Id.,
Item 8.) The trial court denied this motion, noting and ordering as follows:
1. Despite [Pew’s] Complaint being filed on May 29, 2018[, Pew] has
never had the Complaint properly served on the Defendants by the
Sheriff;
2. [Pew] has made it a practice to file various motions and apparently
never provides certified copies or any copies to [DOC;]
3. The Court is unwilling to take any further steps in this case until
[Pew] properly, pursuant to the Rules of Civil Procedure, serves . . .
DOC[ and ;]
4. Once [] DOC is properly served and responds with a pleading or
other legal document [Pew,] if he so wishes, can file a Motion to
File an Amended Complaint.
3
(Id., Item 9.) After filing a motion for clarification regarding whether he was
permitted to serve Defendants by certified mail and, if not, a request that the trial
court order the Sheriff to serve the Original Complaint, which the trial court denied,
Pew filed a Praecipe to Reinstate the Complaint on May 16, 2019, and paid the
required service fee. (Id., Items 12-16.) Per a June 4, 2019, Sheriff’s Return, the
Original Complaint was served at SCI-Houtzdale by handing it to a SCI-Houtzdale
employee. (Id., Item 17.)
On July 22, 2019, Defendants, through counsel (Counsel) from the
Pennsylvania Office of Attorney General (OAG), filed a Motion for an Extension to
Respond to the Complaint, which the certificate of service indicated was served on
Pew at SCI-Rockview. (Id., Item 18.) The trial court granted the requested relief by
order dated July 23, 2019, giving Defendants until August 23, 2019, to respond. (Id.,
Item 19.) Pew filed, on July 30, 2019, a second Motion to file a Supplemental
Complaint and a response to Defendants’ previously granted extension request,
which included a proof of service on Defendants’ Counsel. (Id., Item 21.) The trial
court construed the motion as a “Motion to File an Amended Complaint,” and, by
order dated July 29, 2019, granted the Motion, authorized service to Defendants’
Counsel by regular mail by August 15, 2019, and gave Defendants until October 14,
2019, to file an answer or otherwise respond. (Id., Item 22.)
Pew filed a Supplemental Complaint on August 7, 2019, and a proof of service
indicating that the Supplemental Complaint was served by First-Class Mail on
Defendants’ Counsel, the Prothonotary, and DOC. (Id., Items 23-24.) In the
Supplemental Complaint’s jurisdictional statement, Pew explained that it was “a
‘Supplemental Jurisdiction’ Complaint under [Section] 1983” over which the trial
court had jurisdiction because the claims were “so related to the claims in the action
4
within [the trial court’s] original jurisdiction that they form part of the same case or
controversy . . . .” (Supplemental Complaint (Suppl. Compl.) at 3.) Pew maintained
that the trial court already had jurisdiction over the claims arising from his treatment
at SCI-Houtzdale and that the Supplemental Complaint was adding alleged
violations of his constitutional rights at SCI-Rockview that had arisen since his
transfer, which the trial court could also review.
Between the Original Complaint and Supplemental Complaint, Pew averred
numerous violations of Pew’s constitutional and statutory rights, including the
following.8 Pew’s religion has dietary, grooming, and clothing restrictions, as well
as ceremonial worship needs, for which he had sought accommodations from both
SCI-Houtzdale and SCI-Rockview. (Original Complaint (Orig. Compl.) ¶¶ 38-46;
Suppl. Compl. ¶¶ 1-6.) Those accommodations were either granted and then stopped
(SCI-Houtzdale) or denied outright (SCI-Rockview), while other religions’
restrictions were accommodated, resulting in discrimination between the religions.
(Orig. Compl. ¶¶ 40-41, 46-47; Suppl. Compl. ¶¶ 7-9, 11.) The failure to provide
these accommodations has resulted in Pew being unable to practice his religious faith
in violation of his constitutional and statutory rights, as well as causing physical
damage to his health. (Orig. Compl. ¶¶ 42, 47-49, 63-64; Suppl. Compl. ¶ 3 & 3-
4.) Pew alleged violations of his constitutional rights through the prohibitions
against his receiving various publications and books, which affected his mental
health, and refusals to compensate Pew for the rejected materials. (Orig. Compl.
¶¶ 32-37, 61-62; Suppl. Compl. ¶¶ 14-17 & 4-5.) Pew averred that he was denied
adequate medical and dental care because he was not provided treatment for mental
8
Unless otherwise noted, the allegations were made about both SCI-Houtzdale and SCI-
Rockview.
5
and physical health issues, as well as fixtures for some of Pew’s teeth. (Orig. Compl.
¶¶ 50-52, 55-60; Suppl. Compl. ¶¶ 44-45 & 15.)
As to SCI-Houtzdale, Pew averred that he, but not other inmates, was deprived
of showers following gym sessions, which resulted in his becoming infected, and
reinfected, with scabies, as well as having to suffer unhygienic conditions. (Orig.
Compl. ¶¶ 28-31.) He further alleged he was held in a “torture cell” or “P.O.C. [9]
camera cell” that lacked the furnishing that other cells had, was denied exercise that
was needed to treat his hypertension, was forced to wear used clothing, and was
being improperly housed for extensive periods of time in solitary confinement,
which was inconsistent with Pew’s mental health classification. (Id. ¶¶ 65, 68-75.)
As to SCI-Rockview, Pew alleged that the presence of asbestos in certain units
was fraudulently concealed and that a data breach occurred in April 2018, in which
sensitive data like social security numbers and personal financial information was
disclosed, without Pew being advised of the data breach. (Suppl. Compl. ¶¶ 36-38
& 12-13.) Pew averred that the practices of blocking his outgoing mail, particularly
those which related to his inmate complaints, and opening mail outside Pew’s
presence, photocopying, seizing, and then, after a period of time, destroying Pew’s
original legal mail and non-legal mail, as well as excessively delaying delivery of
mail, losing mail, and failing to place time and date stamps on incoming mail,
violates his constitutional rights. (Id. ¶¶ 18-20, 23-35 & 7, 10-12.) Finally, Pew
maintained that the vendor responsible for supplying the commissary was not
complying with its contract because the commissary is not adequately stocked with
many items, such as medical supplies like “Halls,” which Pew claimed to need when
he is ill. (Id. ¶¶ 39-43 & 13-14.)
9
There is no indication in the record what “P.O.C.” represents.
6
In addition, Pew pleaded that he had exhausted his administrative remedies
and attached Grievance Forms to both the Original Complaint and Supplemental
Complaint. For these violations, Pew requested declaratory judgment, injunctive
relief, and various forms of money damages.
Although given until October 14, 2019, to respond, Defendants did not file
any responsive pleading by that date. Thereafter, Pew signed a “Certification that a
Written Notice of Intention to File the Praecipe for Entry of Judgment for Failure to
Plead,” which was mailed to the trial court on November 14, 2019. (O.R. Item 30.)
Pew also mailed two Notices of Praecipe to Enter Judgment by Default on,
respectively, November 14, 2019, and November 25, 2019, seeking that judgment
be entered on the Original and Supplemental Complaints based on Defendants’
failure to timely file a responsive pleading. (Id., Items 28-29.) All three documents
were signed by Pew, used the caption for this matter, and included proofs of service
on Defendants’ Counsel, but the envelopes themselves used the name of another
inmate at SCI-Rockview for the return address. (Id., Items 28-30.) Per the docket
and date stamps on the documents, they were marked as received by the trial court
on December 23, 2019. (Id.)
Defendants filed a Motion for Extension of Time to Respond to the Amended
Complaint (Motion for Extension), dated December 4, 2019, which was marked filed
on December 11, 2019. (Id., Item 25.) Per the certificate of service, the Motion for
Extension was mailed to Pew at SCI-Houtzdale. (Id.) The impetus for this filing
was an inquiry, prompted by the trial court, from the Court Administrator to DOC’s
legal department regarding the receipt of the Supplemental Complaint, which
Defendants’ Counsel denied receiving. (Trial Court’s Order, December 17, 2019
¶¶ 7-8, O.R. Item 27.) The trial court set the inquiry in motion because it appeared
7
to the trial court that Pew’s November 2019 Default Judgment documents had been
sent to the trial court directly by an inmate at “SCI Benner,”10 and not Pew, which
the trial court found “unusual.” (Id. ¶¶ 3, 5.) The trial court then reviewed the
record, and observing that those documents had not been filed by the Prothonotary
and that no POs had been filed, “believe[ed] something was amiss.” (Id. ¶¶ 6-7.)
The Court Administrator then sent a copy of the Supplemental Complaint to
Counsel. (Id. ¶ 7.) The trial court, by order dated December 17, 2019, granted the
Motion for Extension, gave Defendants 60 days to file POs, and indicated that no
default judgment would be entered and those documents would be filed for appellate
purposes only. (Id. ¶¶ 10-11.)
Pew filed objections to the trial court’s December 17, 2019 order, along with
a memorandum of law in support, on January 14, 2020. (O.R. Items 31-32.)
Therein, Pew argued he never received Defendants’ Motion for Extension, which
had been granted in the December 17, 2019 order, and reiterated his entitlement to a
default judgment. (Id., Item 31.) Pew attached cash slips showing monies deducted
from his inmate account to mail the Supplemental Complaint to Defendants’
Counsel, the Prothonotary, and DOC. (Id., Item 32.) The trial court dismissed these
objections on February 3, 2020. (Id., Item 33.)
Despite the 60-day deadline set forth in the December 17, 2019 order, which
required the filing of the POs by February 18, 2020, Defendants filed their POs to
the “Amended Complaint” on March 30, 2020. (Id., Item 34.) Although Pew is
listed as a “CC:” recipient on a cover letter for the POs, there was no specific address
noted for him or certificate of service attached thereto. (Id.) Defendants asserted
that the “Amended Complaint” should be dismissed with prejudice because Pew
10
The return address used was 1 Rockview Place, P.O. Box A, Bellefonte, PA 16823,
which is the address for SCI-Rockview.
8
failed to properly serve OAG as required by Section 8523(b) of the Judicial Code,
42 Pa.C.S. § 8523(b), and Pennsylvania Rule of Civil Procedure 422(a), Pa.R.Civ.P.
422(a).11 Defendants argued that they were immune from suit because Pew failed to
aver that the acts complained of fell within one of the exceptions to sovereign
immunity as set forth in Section 8522 of the Sovereign Immunity Act, 42 Pa.C.S.
§ 8522.12 Finally, they asserted that “the crux of [Pew’s] claims was broad and
baseless.” (POs ¶ 10.)
Pew filed no response to the POs. Instead, on April 7 and 8, 2020, Pew
mailed various motions, seeking default judgment and sanctions, claiming not to
have received any response to the Original and Supplemental Complaints from
Defendants, including any POs that had been due in February 2020. (O.R. Items 35-
11
Section 8523(b) of the Judicial Code provides that “[s]ervice of process in the case of an
action against the Commonwealth shall be made at the principal or local office of the
Commonwealth agency that is being sued and at the office of the Attorney General.” 42 Pa.C.S.
§ 8523(b). Rule 422(a) states that
[s]ervice of original process upon the Commonwealth or an officer of the
Commonwealth, or a department, board, commission or instrumentality of the
Commonwealth, or a member thereof, shall be made at the office of the defendant
and the office of the attorney general by handing a copy to the person in charge
thereof.
Pa.R.Civ.P. 422(a).
12
Pursuant to Section 8522(a) of what is commonly known as the Sovereign Immunity
Act, the General Assembly waived sovereign immunity “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” where one of the exceptions to subsection (b) applies. 42 Pa.C.S. § 8522(a). Section
8522(b) provides that “[t]he following acts by a Commonwealth party may result in the imposition
of liability on the Commonwealth and the defense of sovereign immunity shall not be raised for
damages caused by:” (1) vehicle liability; (2) medical-professional liability; (3) care, custody or
control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes
and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8)
National Guard activities; (9) toxoids and vaccines; and (10) sexual abuse. 42 Pa.C.S. § 8522(b).
9
36.) The trial court denied these motions on April 15, 2020, because, the trial court
reasoned, Defendants were not required to file anything pending the trial court’s
disposition of their POs. (Id., Item 37.) On April 14, 2020, Pew mailed a Motion
for Injunctive Protection Order, which was docketed on, and denied by, the trial
court on April 20, 2020. (Id., Items 38-39.) On April 20, 2020, Pew filed an affidavit
indicating he had not received Defendants’ Motion for Extension or the POs at SCI-
Rockview. (Id., Item 41.) This affidavit was stamped received by the trial court on
April 24, 2020.
B. The Trial Court’s Opinion and Pew’s Responses
On April 21, 2020, the trial court issued an opinion and order (Opinion),
sustaining Defendants’ POs and dismissing the Supplemental Complaint with
prejudice. Throughout the Opinion, the trial court referred to Pew’s second pleading
as both an “Amended Complaint” and a “Supplemental Complaint” and generally
referenced allegations from both the Original Complaint and Supplemental
Complaint. The trial court summarized Pew’s Complaints as alleging that: “he was
denied showers; denied publications; denied new, never worn under[]garments;
denied homeopathic medicine; denied medical treatment; denied religious
accommodations; and denied vegan meals.” (Trial Court Op. at 1-2.) The trial court
further stated that Pew alleged: “exposure to asbestos; being held in a torture cell
for two days;[13] not having items in stock at the commissary; and lost, slow, and
disorganized mail.” (Id. at 2.)
13
The trial court concluded that the “torture cell” was Pew’s characterization of his housing
in the Diversionary Treatment Unit, a psychological observation cell, where Pew was temporarily
held due to his mental health. (Trial Court Op. at 5.)
10
Turning to the POs, the trial court ruled as follows. On the issue of service,
the trial court found that Pew failed to serve OAG as required because the action
was filed against a “Commonwealth Party,” which, pursuant to Section 8501 of the
Judicial Code, 42 Pa.C.S. § 8501, includes DOC and its employees when they act
within the scope of their employment.14 (Id.) The trial court held that “[t]he
[O]riginal [C]omplaint filed by [Pew] was served by the Sheriff’s Office on SCI-
Houtzdale, even though it was not a party to the action,” “[n]one of the [24]
defendants seem to have been served the [O]riginal [C]omplaint, and no proof of
service was provided,” and that the Original Complaint “was never served on the
[OAG].” (Id. at 3.) Further, the trial court pointed out that “[t]he Proof of Service
filed by [Pew] for the Supplemental Complaint only listed three individuals, one of
which was the Prothonotary’s Office, and one being [DOC],” with neither OAG nor
any of the individual defendants being served with that complaint. (Id.) Therefore,
the trial court concluded that Pew failed to comply with the service requirements and
sustained this PO. (Id. & Order.)
As for the PO based on sovereign immunity, the trial court held that Pew’s
claims were legally insufficient because the claims against Defendants involved
actions within the scope of their employment and, therefore, Pew could only prevail
if he established that his claims fell within one of the exceptions to sovereign
immunity, and he had not. It further determined that the allegations in the Original
Complaint and Supplemental Complaint indicated that the wrongful conduct was
intentional, not negligent, which was another reason why sovereign immunity was
14
Section 8501 of the Judicial Code defines “Commonwealth party” 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.
11
applicable. Therefore, the trial court found all Defendants immune from suit and
sustained this PO. (Id. at 4-5 & Order.)
Finally, the trial court addressed Defendants’ assertion that all of Pew’s claims
were “broad and baseless” and, therefore, legally insufficient. (Id. at 5.) Reviewing
a handful of Pew’s allegations, such as the claimed use of a “torture cell” that
appeared to be the psychological observation cell and lack of certain furniture, the
denial of publications, and failure “to offer certain snacks in the commissary,” the
trial court agreed with Defendants that these claims were legally insufficient. (Id. at
5-6.) The trial court further agreed with Defendants that Pew’s other claims, which
were like the specifically addressed claims, were “broad and baseless.” (Id. at 7.)
The trial court did not specifically address Pew’s claims regarding the refusal to
provide religious accommodations, lack of proper medical and dental care, and
interference with his mail – particularly his legal mail. Based on sustaining these
POs, the trial court held that the “Complaint cannot stand.” (Id.)
On April 24, 2020, Pew filed a Motion to Vacate and Set Aside Judgment
(Motion to Vacate) the April 21, 2020 Order. (O.R. Item 42.) Therein, Pew argued
that he never received Defendants’ Motion for Extension or the POs and supporting
brief, which he claimed were not supported by certificates or other proofs of service.
Therefore, Pew asserted, he had no opportunity to respond to the POs. He further
argued that proper service of the Original Complaint and Supplemental Complaint
was made, as reflected by the proofs of service filed with the Prothonotary. Pew
contends that Sheriff’s service of the Original Complaint on SCI-Houtzdale
employees who were named as Defendants at their place of business was proper and
that no service on OAG was necessary because those Defendants were not statewide
or Commonwealth employees. According to Pew, service of the Supplemental
12
Complaint by First-Class Mail to Defendants’ Counsel was proper and in accordance
with the trial court’s July 29, 2019 order. Additionally, Pew contended that state
sovereign immunity is not available to employees in Section 1983 claims asserting
violations of federal constitutional rights, and, therefore, the trial court erred in
finding those claims barred. Finally, Pew asserted that his claims were not baseless
and that, together, the Original Complaint and Supplemental Complaint set forth
valid claims.
Pew also objected to the April 15 and 20, 2020 orders, and sent an “Open
Letter on Record to Prothonotary, Judge, Deputy Attorney General” (Open Letter)
on April 30, 2020, which were stamped filed on May 8, 2020. (Id., Item 43.)
Therein, Pew reiterated that he had not received the Motion for Extension, POs, and
supporting brief and there was no evidence of service being made on Pew. In the
Open Letter, Pew indicated he had received the POs from the Prothonotary on April
29, 2020, which was the first time he had received the POs, and that neither a brief
in support nor a proof of service on Pew were included. (Id.)
The trial court considered the Motion to Vacate as a Motion to Reconsider the
April 21, 2020 Order sustaining the POs, and noted Pew’s other filings. The trial
court issued a May 7, 2020 Order stating, in pertinent part:
E. The Court notes that one of the issues raised by [Pew] is [that] he
never received the [POs] filed by . . . Defendants. The Court notes and
the record reflects that the [Pew] attempted on several occasions to take
a default judgment against the Defendants. Procedural information
concerning [Pew’s] attempts to take default judgment is set forth in this
Court’s Order of December 17, 2019.
F. The said Order of December 17, 2019[,] provided [] Defendant[s]
. . . with a 60[-]day deadline to file [POs] to [Pew’s] Amended
Complaint.
13
G. The 60[-]day deadline . . . would be Saturday, February 15, 2020.
As Monday, February 17, 2020[,] was a holiday (Presidents Day)[,] the
. . . deadline to file [][POs] was Tuesday, February 18, 2020. A review
of the record indicates that the Defendants’ [POs] were actually filed
March 30, 2020. Attached to the [POs] is a letter dated February 4,
2020[,] from [Defendants’ Counsel] to . . . [the] Clearfield County
Prothonotary. The Court notes that the [POs] on page 3 were dated
February 4, 2020.
H. The Court is unaware of why the . . . [POs] dated February 4, 2020[,]
were filed with the record on March 30, 2020. The filing stamp
indicates “No cc.” This means the Prothonotary did not send certified
copies to either [Pew] or [Defendants’ Counsel]. However, the Court
must assume that [Pew] received a copy of [] Defendants’ [POs].
I. [Pew] was well aware of the 60[-]day deadline for the filing of []
Defendants’ [POs]. There is little doubt in the Court’s mind that if
[Pew] had not received a copy of the [POs] by the deadline of February
18, 2020[,] that subsequent to February 18, 2020[, Pew] would again
have attempted to take a default judgment against the Defendants. As
the record indicates, no attempt at taking a default judgment was made
between February 18, 2020[,] and March 30, 2020. As such[,] the Court
believes it is perfectly logical to assume that [Pew] did indeed receive
a copy of the [POs].
J. Reference is made [to] paragraphs 1 and 2 of [Pew’s] “Open Letter
. . . .” Therein from what the Court presumes was April 29, 2020[, Pew]
indicates he never received a copy of [] Defendants’ [POs]. The Court
notes that a copy of the [POs] [was] sent to [Pew] by the Prothonotary’s
Office at the direction of this Court, due to [Pew’s] continual
indications that he had not received a copy of [] Defendants’ [POs].
Although the Court, as noted, believes that [Pew] has indeed received
a copy of [] Defendants’ [POs], an additional copy was mailed to him
as a courtesy by the Prothonotary.
(Id., Item 44.)
Pew appealed to this Court, and filed, at the trial court’s direction, a Statement
of Errors Complained of on Appeal (Statement) pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b), Pa.R.A.P. 1925(b). (Id., Item 48.) In the Statement,
Pew reiterated the arguments he made in his Motion to Vacate, as well as argued
14
that the trial court erred by: treating the Supplemental Complaint as an Amended
Complaint; by applying the wrong standard for reviewing the denial of publications;
not addressing Pew’s other constitutional claims; and failing to acknowledge in its
opinion that the Supplemental Complaint’s proof of service, in fact, reflected service
on Defendants’ Counsel. The trial court issued a letter that it would not be filing a
responsive opinion. (Id., Item 51.)
II. DISCUSSION
A. Parties’ Arguments
On appeal, Pew argues15 that the trial court erred in sustaining the POs. In
particular, Pew asserts that he was not served with the POs and Motion for
Extension, thereby depriving him of the ability to respond to Defendants’ claims and
due process. Pew also challenges the trial court’s dismissal of the litigation based
on its conclusion that he inadequately served Defendants, which he asserts was
legally incorrect. Pew further argues that the trial court erred in treating the
Supplemental Complaint as an Amended Complaint and in applying the doctrine of
state sovereign immunity to federal constitutional claims under Section 1983.16
Defendants argue that Pew’s pleadings, the Original Complaint and
Supplemental Complaint, were not properly served. They further assert that the trial
15
Defendants argue that Pew’s brief contains no substantive discussion of the merits of his
claims and, as such, he has waived his claims on appeal. However, although not artfully drafted,
Pew incorporates the arguments set forth in his Statement into his brief by referencing that
Statement and attaching the Statement to his brief. (Pew’s Brief (Br.) at 1.) Cognizant that “this
Court is generally inclined to construe pro se filings liberally,” we will not find waiver because
“we are able to discern the legal issues raised” through Pew’s incorporation of the Statement.
Smithley v. Unemployment Comp. Bd. of Rev., 8 A.3d 1027, 1029 n.6 (Pa. Cmwlth. 2010).
16
Pew makes additional arguments regarding other aspects of the trial court’s handling of
the underlying litigation and how this Court should have appointed counsel to assist him in this
litigation. However, due to our disposition, we do not address these arguments further.
15
court did not err in treating the Supplemental Complaint as an Amended Complaint,
which they contend rendered Pew’s Original Complaint “inoperative.” (Defendants’
Brief (Br.) at 13.) Defendants argue that, even if the alleged procedural and technical
defects were not present, Pew’s state claims are barred because they are all entitled
to sovereign immunity because they are Commonwealth officials and employees.
Finally, Defendants assert that the trial court properly dismissed Pew’s constitutional
claims because, although not specifically addressed by the trial court, the claims are
legally insufficient.17
B. Analysis
Our “review of a trial court’s order sustaining preliminary objections and
dismissing a complaint is limited to a determination of whether that court abused its
discretion or committed an error of law.” Petty v. Hosp. Serv. Ass’n of Ne. Pa., 967
A.2d 439, 443 n.7 (Pa. Cmwlth. 2009). In considering preliminary objections, the
court must consider as true all well-pleaded relevant and material facts and should
only sustain the preliminary objections where they are clear and free from doubt.
McGriff v. Pa. Bd. of Prob. & Parole, 809 A.2d 455, 458 (Pa. Cmwlth. 2002). This
“review raises a question of law as to which our standard of review is de novo and
our scope of review is plenary.” Petty, 967 A.2d at 443 n.7.
However, our review in this matter is hindered by its procedural history, which
may be best described as a quagmire. Both Pew and Defendants raise issues relating
to the confusing procedural history, such as how pleadings and motions were
allegedly served or not served, and how various pleadings were characterized by the
17
We note that Defendants’ brief to this Court asserts reasons and argument beyond that
found in their POs, which was two pages in length and not accompanied by a memorandum of law
or any legal argument as to why Pew’s claims were legally insufficient beyond that they were
“broad and baseless.” (O.R. Item 34.)
16
trial court. Issues regarding service implicate the ability of an opposing party to
timely and appropriately respond to a pleading or motion, and issues regarding the
characterization of the pleadings implicate what claims must be answered or
challenged by preliminary objections.
First, there are questions regarding whether the Original and Supplemental
Complaints were properly served on Defendants, DOC, and OAG, thereby
potentially hindering Defendants’ ability to file POs to both the Original and
Supplemental Complaints, if both were implicated. The record shows that Pew had
the Sheriff serve the Original Complaint on the SCI-Houtzdale Defendants at their
place of employment, which he argues was proper service. However, the record
does not appear to indicate that any other service of the Original Complaint was
effectuated. As for the Supplemental Complaint, the proof of service indicates that
the Supplemental Complaint was served by mailing it to Defendants’ Counsel, who
is a Deputy Attorney General with OAG, the Prothonotary, and DOC, as it appears
was permitted by the trial court’s July 29, 2019 order.
The trial court sustained Defendants’ PO based on improper service, holding
that the Sheriff’s service on SCI-Houtzdale was insufficient as to everyone because
the institution was not a named defendant. (Trial Court Op. at 3.) While not stating
that Pew’s litigation was dismissed solely on this basis, it was one of the reasons
cited for the trial court’s ultimate determination. (Id. at 7.) However, the lack of
proper service does not justify the dismissal of a complaint, it only requires that
proper service be effectuated. City of Philadelphia v. Berman, 863 A.2d 156, 160
(Pa. Cmwlth. 2004). Therefore, to the extent service was not proper, all that is
required is for Pew to properly serve the relevant pleadings on the Defendants, which
he will be required to do on remand.
17
Second, Pew raises service issues regarding Defendants’ Motion for
Extension and the POs themselves, which he claims never to have received, pointing
out that the former was not served on him at SCI-Rockview and the latter did not
include a certificate of service. Pew contends that many of Defendants’ filings do
not include certificates of service that show service on him at SCI-Rockview.18 Pew
argues that because he was not served with those documents, he could not object to
the Motion for Extension by establishing that he properly served the Supplemental
Complaint (the basis for the extension), or respond to the POs prior to the trial court
sustaining them and dismissing the matter.
The trial court based its rejection of Pew’s assertion that he did not receive
the POs on an assumption that Pew received the POs because, if not, he would have
filed for default judgment before March 30, 2019, the date the POs were filed. (Trial
Court May 7, 2020 Order ¶¶ H-I.) The trial court reasoned that because Pew had
sought that relief in the past, he would have done so in this instance. However, while
not filed by March 30, 2019, Pew did seek default judgment and other relief in early
April 2019, citing Defendants not filing POs or an answer to the Original and
Supplemental Complaints. It is unclear why Pew would have filed a request for
default judgment, rather than a response to the POs, if he had received the POs.
Further, the trial court’s own characterization of Pew’s prolific filing history could
raise an assumption opposite that made by the trial court because it shows that Pew
was actively litigating these Complaints. Finally, the POs did not include a
18
A review of Defendants’ filings reflect that while three filings included a certificate of
service, the POs simply included a cover letter, dated February 4, 2020, that listed Pew as a “CC:”
recipient. (O.R. Items 18, 20, 25, 34.) Of those that contained a certificate of service, only the
July 2019 Motion for Extension of Time to the Original Complaint used Pew’s address at SCI-
Rockview, the others, including the Motion for Extension, used SCI-Houtzdale as Pew’s address.
(Id., Items 18, 20, 25.)
18
certificate of service, only a cover letter listing Pew as a “CC:” recipient, without
identifying a specific address for Pew. (O.R. Item 34.) The lack of an address is
important because the last document filed by Defendants that contained a certificate
of service, the Motion for Extension (which Pew also claimed not to have received),
was allegedly served on Pew at SCI-Houtzdale in December 2019, where he was no
longer an inmate, despite their having served Pew at SCI-Rockview with their first
extension request in July 2019. (Id., Items 20, 25.) The trial court did not appear to
consider any of these factors in assuming that Pew had to have received the POs.
Upon review, it is not clear to this Court that the record supports the assumption
made by the trial court that Pew did receive the POs and did not file a response.
Absent service of the POs on Pew, he was not provided the opportunity to respond
to the POs and raise legal and factual arguments in opposition thereto prior to the
trial court ruling on the POs. Therefore, a remand is appropriate to allow Pew to do
so.
Finally, there are questions about whether Pew filed a Supplemental
Complaint or an Amended Complaint and whether, as Pew contends, the trial court
erred in treating his second pleading as an Amended Complaint. While an “amended
complaint” supplants an original complaint and renders that complaint inoperable,
as Defendants argue, a “supplemental complaint” supplements an original complaint
by adding claims and does not render that complaint inoperable. See Township of
Chester v. Stapleton, 456 A.2d 673, 675 (Pa. Cmwlth. 1983) (explaining the
difference between supplemental and amended complaints). Pennsylvania Rule of
Civil Procedure 1033(a),19 Pa.R.Civ.P. 1033(a), contemplates amending pleadings
19
Rule 1033(a) provides:
(Footnote continued on next page…)
19
to encompass additional facts and causes of action based on events that occurred
after the filing of an initial complaint.
Reviewing the two Complaints, Pew filed the Supplemental Complaint to add
claims arising out of alleged wrongful conduct that occurred following his transfer
to SCI-Rockview to his existing Section 1983 action with the trial court, which was
based on events that occurred at SCI-Houtzdale. It does not appear that Pew was
abandoning the claims in the Original Complaint, but attempting to include later
arising claims that Pew maintained were related. Thus, that filing would be better
characterized as a supplemental complaint that did not render the original complaint
inoperable. Township of Chester, 456 A.2d at 675. Despite Pew’s request to file a
Supplemental Complaint, the trial court gave him leave to file an “Amended
Complaint” and a new date for Defendants to file a responsive pleading. (Trial Court
July 29, 2019 Order.) The trial court’s characterization of Pew’s filing, not as a
Supplemental Complaint as he requested, but instead as an “Amended Complaint”
appears to have also led Defendants to file POs only to the claims in the
Supplemental Complaint.
Notwithstanding its own characterization of Pew’s second pleading as an
Amended Complaint in its July 29, 2019 Order, and the limited nature of
Defendants’ POs, the trial court’s opinion reflects confusion regarding what
Complaints and claims the trial court considered. The trial court referred to Pew’s
A party, either by filed consent of the adverse party or by leave of court, may at any
time change the form of action, add a person as a party, correct the name of a party,
or otherwise amend the pleading. The amended pleading may aver transactions or
occurrences which have happened before or after the filing of the original pleading,
even though they give rise to a new cause of action or defense. An amendment may
be made to conform the pleading to the evidence offered or admitted.
Pa.R.Civ.P. 1033(a).
20
second pleading as both a “Supplemental” and “Amended” Complaint throughout
its opinion, and described some, but not all, of the factual allegations set forth in
both Complaints. (Trial Court Op. at 1-2.) However, the trial court made no
reference to Section 1983, the various constitutional provisions Pew alleged were
violated, or Pew’s statutory claims under the RLUIPA and RFPA, all of which were
referenced in the Original Complaint and were related to at least some of the factual
allegations described by the trial court. Further, the trial court applied Defendants’
POs, which were filed only to the Supplemental Complaint, to the factual allegations
that were contained in the Original Complaint to find that those allegations should
be dismissed as “broad and baseless.” (Id. at 6-7.) Given the confusion in how the
trial court characterized and treated Pew’s Supplemental Complaint, and which
complaint or complaints Defendants should have filed responses to, a remand is
necessary to provide them an opportunity to respond to all of Pew’s allegations.
III. CONCLUSION
In summary, the record and the parties’ arguments raise numerous questions
of when and what was properly served, and the trial court’s opinion lacks clarity
regarding what type of complaint was filed and what claims had to be addressed by
Defendants in their responsive pleadings and the trial court. Under these
circumstances, we vacate the trial court’s April 21, 2021 Order and remand for the
effectuation of proper service on all Defendants by Pew, for Defendants to be given
the opportunity to file POs to the Original Complaint and the Supplemental
Complaint (thereby allowing them to raise specific POs to the combined allegations),
21
and for Pew to be given an opportunity to respond to the POs, which he claims he
was denied.
_____________________________________
RENÉE COHN JUBELIRER, Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alfonso Percy Pew, :
Appellant :
:
v. : No. 530 C.D. 2020
:
Lt. John Doe, et al. :
ORDER
NOW, March 14, 2022, the April 21, 2020 Order of the Court of Common
Pleas of Clearfield County, entered in the above-captioned matter, is VACATED,
and this matter is REMANDED for further proceedings in accordance with the
foregoing opinion.
Jurisdiction relinquished.
__________________________________________
RENÉE COHN JUBELIRER, Judge