S. Austin v. Corrections Officer Hammers

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shawn Austin :
:
v. :
:
Corrections Officer Hammers, : No. 1494 C.D. 2021
Appellant : Submitted: February 10, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: June 21, 2023
Corrections Officer Hammers (Hammers) appeals from the September
28, 2021, order of the Court of Common Pleas of Centre County (trial court). The
trial court denied Hammers’s motion for judgment on the pleadings on the basis that
Hammers failed to establish eligibility for sovereign immunity from the action filed
against him by Shawn Austin (Austin). Upon review, we quash Hammers’s appeal
because the trial court’s interlocutory order is not an appealable collateral order.
I. Factual & Procedural Background
On June 29, 2020, Austin, an inmate at the State Correctional Institution
at Benner Township (SCI-Benner), filed a complaint against Hammers in the trial
court. Reproduced Record (R.R.) at 3a-5a. Austin stated that the Department of
Corrections (DOC) has a policy allowing inmates up to four boxes of personal non-
contraband property, along with one additional box for legal materials, if they are
granted permission. Id. at 3a. At some point in 2018, Austin was transferred to SCI-
Benner’s restricted housing unit (RHU). Id. He asserted that he packed his property
before being transferred and it was within the DOC’s rules. Id. However, Austin
alleged that during the transfer, Hammers “unpacked, searched, and repacked my
property in a haphazard, reckless, and/or otherwise negligent manner.” Id. The
result was that Austin’s belongings appeared to be over the permissible property
limit. Id. According to Austin, Hammers then ordered Austin to sign a property
sheet for the remaining property under what Austin perceived to be a threat of
disciplinary action against him. Id. Austin alleged that the “excess” property was
subsequently confiscated and destroyed. Id. at 3a-4a.
Austin stated that after the incident, he filed a grievance in July 2018,
which was denied. R.R. at 4a. He then filed his complaint in the trial court alleging
that Hammers negligently handled his personal property.1 Id. at 4a. Hammers filed
preliminary objections and a brief in support thereof, asserting that although Austin’s
complaint was “couched” as sounding in negligence, his damages resulted from
Hammers’s intentional seizure of Austin’s “excess” property within the scope of
Hammers’s duties and the DOC’s policy. Id. at 7a-8a & 12a-14a. Hammers
therefore averred that sovereign immunity protected him against Austin’s lawsuit.
Id. Austin responded in his brief that he alleged negligent conduct on Hammers’s
part; therefore, sovereign immunity was not available to Hammers. Id. at 18a-19a.
On November 10, 2020, the trial court issued a decision and order
overruling Hammers’s preliminary objection asserting sovereign immunity. R.R. at
1
Austin also asserted that the destruction of books and pictures in his property violated his
First Amendment rights under the United States Constitution. See U.S. Const. amend. I. R.R. at
4a. Given our disposition to quash Hammers’s appeal, we do not reach or address that claim.
2
27a. The trial court concluded that Austin’s claims “stemmed from the alleged
haphazard re-packing of his property,” which sounded in negligence, and not from
Hammers’s intentional implementation of the DOC policy. Id. According to the
trial court, Hammers’s confiscation and subsequent destruction of Austin’s property
may have been intentional, “but it was the result of [Hammers’s] alleged negligence”
in repacking Austin’s property. Id. The trial court acknowledged that full discovery
might validate Hammers’s position, but based on Austin’s complaint alone, the trial
court “could not say with certainty that [Austin’s] claims are barred by sovereign
immunity,” which does not shield government actors from liability for damage
caused by negligent acts. Id.
On November 30, 2020, Hammers filed an answer denying the
allegations in Austin’s complaint and maintaining that sovereign immunity applies
in this matter. R.R. at 30a-31a.2 In August 2021, Hammers filed the motion for
judgment on the pleadings that underlies this appeal. Id. at 83a-86a. The motion
reiterated Hammers’s assertion that the damages Austin alleges resulted from
Hammers’s intentional implementation of the DOC policy rather than any negligent
action on Hammers’s part. Id. at 84a-85a. Austin replied in his brief that his case is
based on allegations of Hammers’s negligence in unpacking and repacking the
2
In new matter, Hammers claimed that Austin failed to exhaust his administrative
remedies. R.R. at 32a-33a. Hammers asserted that although Austin appealed his grievance to the
final review process, it was not decided on the merits but was dismissed as procedurally defective
for failure to attach the property confiscation slip from the incident; therefore, Austin was bound
to complete the grievance process to a final merits determination before he could proceed to the
trial court. Id. Austin requested that this new matter be quashed because SCI-Benner’s library
copier was broken and he did not feel comfortable submitting his only copy of the document when
prison authorities surely had access to it already. Id. at 81a-82a. The trial court declined to quash
Hammers’s exhaustion defense and Austin filed an answer reiterating his explanation. R.R. at
80a-82a. The issue appears to remain pending with the trial court.
3
property rather than any subsequent intentional conduct in confiscating and
destroying it. Id. at 93a-95a.
On September 28, 2021, the trial court issued an order denying
Hammers’s motion for judgment on the pleadings. R.R. at 98a. The trial court
explained that Hammers’s assertions and arguments in the motion were “virtually
identical” to those he raised in his preliminary objections and, based on its opinion
in that matter, the court was denying the motion for the same reasons. Id. Hammers
appealed to this Court. In a statement pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a), Pa.R.A.P. 1925(a), the trial court relied on its previous decisions
and orders as the expression of its reasoning. R.R. at 104a.
II. Discussion
Prior to considering the merits, we must address the appealability of the
trial court’s order. A trial court’s order denying a motion for judgment on the
pleadings is interlocutory and generally is not appealable to this Court unless the
appellant receives permission or the order being appealed is determined to be
collateral to the underlying cause of action and therefore appealable by right. See
County of Butler v. Local 585, Serv. Emps. Int’l Union, AFL-CIO, 631 A.2d 1389,
1392 n.1 (Pa. Cmwlth. 1993).
Pennsylvania Rule of Appellate Procedure 313(b) vests appellate courts
with jurisdiction to consider an otherwise interlocutory order if the order meets
certain criteria and can be deemed collateral. See Pa. R.A.P. 313; Brooks v. Ewing
Cole, Inc., 259 A.3d 359, 364 (Pa. 2021). Rule 313 provides:
(a) General rule. An appeal may be taken as of right from
a collateral order of a trial court or other government unit.
4
(b) Definition. A collateral order is an order separable
from and collateral to the main cause of action where the
right involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably
lost.
Pa.R.A.P. 313. The recognized three-part test, which tracks the language of Rule
313(b), is that a non-final order will be appealable as collateral if “(1) it is separable
from and collateral to the main cause of action; (2) the right involved is too important
to be denied review; and (3) the question presented is such that if review is postponed
until final judgment in the case, the claimed right will be irreparably lost.” Brooks,
259 A.3d at 370. The collateral order doctrine is construed narrowly, and all three
prongs must be met. Id. Due to the jurisdictional nature of the collateral order
doctrine, courts may raise it sua sponte. Id.
The Commonwealth and its officials and employees acting within the
scope of their duties enjoy sovereign immunity from suit except where such
immunity is specifically waived. 1 Pa.C.S. § 2310. Because the right to assert
sovereign immunity is “fundamental” and nonwaivable, courts must strictly construe
the statutory exceptions. Id.; Brooks, 259 A.3d at 371. At issue here is whether
Hammers’s actions while handling Austin’s property meet the exception permitting
a suit for damages caused by negligence in “[t]he care, custody or control of personal
property in the possession or control of Commonwealth parties, including . . . [the]
property of persons held by a Commonwealth agency[.]” 42 Pa.C.S. § 8522(b)(3).
Our Supreme Court concluded in Brooks that “the right to a sovereign
immunity defense is too important to evade review before final judgment” and that
the right would be irreparably lost if appellate review was postponed until after a
final judgment by the trial court. 259 A.3d at 372-75. Here, therefore, the trial
court’s order denying Hammers’s motion for judgment on the pleadings asserting
5
sovereign immunity meets the second and third prongs of the collateral order
doctrine. Thus, whether the trial court’s order in this case is appealable depends on
whether it is separable from the merits of the underlying dispute so as to satisfy the
first prong of the collateral order doctrine. Specifically, we must determine whether,
on the basis of the pleadings alone, Hammers has established his right to sovereign
immunity because Austin’s allegations concerning Hammers’s actions sounded in
intentional torts.
An order is separable from the main cause of action if “it can be
resolved without an analysis of the merits of the underlying dispute” and if it is
“entirely distinct from the underlying issue in the case.” Brooks, 259 A.3d at 372.
In Commonwealth v. Blystone, 119 A.3d 306, 312 (Pa. 2015), our Supreme Court
characterized the quality of separability as requiring the order being appealed to be
“entirely” and “conceptually” distinct from the underlying merits of the case.
Specifically, where an order denying an immunity defense indicates that genuine
issues of fact remain at issue concerning the validity of the defense, as opposed to a
purely legal determination, then the order will not be separable and appealable.
Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 432 & n.11 (Pa. 2006) (adopting
the United States Supreme Court’s “distinction between summary judgment orders
reflecting legal versus factual determinations” in Johnson v. Jones, 515 U.S. 304(1995) as it is “consistent with the ‘separateness’ element of the collateral order
doctrine”).
In Brooks, the plaintiff sued Philadelphia’s family court division for a
personal injury she sustained at the family court building. 259 A.3d at 361. The
family court division asserted in a motion for summary judgment that although it
was a Commonwealth entity entitled to sovereign immunity, it was not a
6
“Commonwealth party” within the meaning of the Sovereign Immunity Act, 42
Pa.C.S. §§ 8501-8564; therefore, any exceptions waiving sovereign immunity did
not apply. Id. The trial court denied the family court division’s motion. Id. at 362.
This Court concluded that the specific question on appeal, whether the family court
was a “Commonwealth party” subject to the exceptions, was separable from the
underlying matter because its resolution did not require factfinding or consideration
of the merits of the plaintiff’s negligence claim. Id. at 364. Although our Supreme
Court reversed as to the third part of the collateral order test, it agreed with this Court
as to separability. Id. at 371-72.3
By contrast, in Strain v. Simpson House, 690 A.2d 785 (Pa. Cmwlth.
1997), Strain, a nurse, brought a wrongful discharge claim against her former
employer, Simpson House. Id. at 786. The Bureau of Professional and Occupational
Affairs (Bureau) appealed a trial court’s order granting Strain the ability to subpoena
Bureau documents concerning the Bureau’s investigation of her after a co-worker
filed a complaint against her. Id. at 786-87. We concluded that the documents at
issue were entwined with the merits of the underlying dispute, in which Strain
asserted that the complaint lodged against her was false and retaliatory. Id. at 789.
We therefore deemed the order granting the subpoenas not separable for purposes of
the collateral order doctrine. Id.; see also Gamble v. Pa. Tpk. Comm’n, 578 A.2d
1366, 1358 (Pa. Cmwlth. 1990) (holding that motions to disqualify opposing counsel
are not separable or collateral because they generally require examination of the
merits of the underlying litigation).
3
We acknowledge the discussion in Brooks concluding that orders denying immunity are
ordinarily appealable. See 259 A.3d at 373-74. However, where a trial court’s order reflects that
factual issues remain concerning the propriety of an immunity defense, the order will not be
separable and collateral. Pridgen, 905 A.2d at 432 & n.11.
7
Here, Hammers’s statement of jurisdiction asserts that the trial court’s
order is appealable, citing Rule 313 and Brooks. Hammers’s Br. at 1. Beyond that,
the parties have not specifically briefed appealability, but as noted, courts may raise
the issue sua sponte. Hammers reiterates that his actions were intentional and within
his official duties to carry out the DOC’s property policy; therefore, he asserts that
sovereign immunity bars Austin’s suit against him. This implies a position that no
further inquiry is needed and that the trial court’s order is immediately appealable.
Id. at 7. Austin responds that sovereign immunity is not available to Hammers
because the complaint alleged that Hammers repacked his property in a “careless,
negligent, haphazard manner” that led directly to confiscation and destruction of
whatever property that did not fit back into the boxes after Hammers unpacked them.
This implies a position that further factfinding is warranted and that the trial court’s
order is not immediately appealable. Austin’s Br. at 2-4.
The separability analysis set forth in Brooks is straightforward, and
sovereign immunity with regard to inmate property disputes has often been
addressed. In Williams v. Stickman, 917 A.2d 915 (Pa. Cmwlth. 2007), an inmate
asserted that his television set was damaged while in the possession of corrections
officers. The trial court dismissed Williams’s complaint based on its view that the
personal property exception applies only when personal property held by a
governmental entity or employee causes injury to other persons or property. Id. at
917. We disagreed, concluding that the exception’s plain language encompassed
Williams’s claim asserting negligence by the corrections officers in control of his
property. Id. at 917-18 (stating that “here, the injury is the loss of the property
itself”). Sovereign immunity was therefore not available to the defendants. Id.8
In Payne v. Whalen (Pa. Cmwlth., No. 2100 C.D. 2014, filed Aug. 20,
2015), 2015 WL 5457835 (unreported),4 Payne asserted that prison employees lost
his family photos. We concluded that the matter sounded in negligence, and
sovereign immunity was not available because Payne sufficiently pleaded that prison
employees had a duty to care for inmate property in their possession, that the
employees breached that duty, and that the breach resulted in his loss and damages.
Id., slip op. at 10-11, 2015 WL 5457835, at *5.
In Owens v. Commonwealth (Pa. Cmwlth., No. 2624 C.D. 2015, filed
Sept. 23, 2016), 2016 WL 5335684 (unreported), Owens alleged that prison
employees who packed his belongings lost a pair of his boots. Id., slip op. at 2, 2016
WL 5335684, at *1. The prison employees argued that Owens’s complaint pleaded
an intentional tort, but we disagreed, finding the complaint clearly stated a cause of
action rooted in negligence. Id., slip op. at 4-6, 2016 WL 5535684, at *2-*3. We
therefore denied the prison employees’ assertion of sovereign immunity, citing two
“virtually indistinguishable” cases where inmates sufficiently asserted negligence
claims concerning prison employees’ negligent handling of their property. Id., slip
op. at 4-6, 2016 WL 5535684, at *2-3 (citing Palmer v. Doe (Pa. Cmwlth., No. 2451
C.D. 2015, filed May 5, 2016), slip op. at 8-9, 2016 WL 2587417 at *3-*4 and
Samuels v. Walsh (Pa. Cmwlth., No. 318 C.D. 2014, filed Nov. 17, 2014), slip op. at
4-6, 2014 WL 10298879 at *2-*3).
Hammers relies on several cases for his position that Austin’s
negligence claims are pretextual and do not fit within the personal property
exception to sovereign immunity. Hammers’s Br. at 10. In Paluch v. Department
of Corrections, 175 A.3d 433 (Pa. Cmwlth. 2017), the inmate alleged intentional
4
This Court’s unreported memorandum opinions issued after January 15, 2008, may be
cited for their persuasive value. 210 Pa. Code § 69.414(a).
9
destruction of his property by prison personnel but asserted that the negligence arose
when prison personnel failed to advise him of their intent to confiscate his property.
Id. at 441. This Court found the essence of Paluch’s claims sounded in intentional
tort and allowed the defendants to assert sovereign immunity. Id.Hammers next cites Goodley v. Folino (Pa. Cmwlth., No. 2376 C.D.
2010, filed July 22, 2011), 2011 WL 10858491 (unreported). Goodley alleged
negligent damage to his personal property by prison personnel. Id., slip op. at 3,
2011 WL 10858491, at *1. However, we concluded that the facts as pleaded did not
sound in negligence, but rather the allegation that prison personnel had intentionally
and deliberately seized and confiscated Goodley’s property as contraband; therefore,
sovereign immunity was appropriate. Id., slip op. at 7-8, 2011 WL 10858491, at *4.
Hammers also relies on Price v. Simcox (Pa. Cmwlth., No. 307 C.D.
2017, filed Sept. 28, 2017), 2017 WL 4287870 (unreported), where Price asserted
that prison employees took books from his property boxes while he was relocated
due to an asbestos issue at his facility. Id., slip op. at 1-2, 2017 WL 4287870, at *1.
Like the inmates in Paluch and Goodley, Price alleged negligence on the part of the
prison employees in possession of his property, but the trial court concluded that the
facts as alleged sounded in the intentional tort of conversion and allowed the prison
employees to assert sovereign immunity. Id., slip op. at 3, 2017 WL 4287870, at *1.
This Court affirmed, agreeing with the trial court’s reasoning. Id., slip op. at 4, 2017
WL 4287870, at *3.
Here, in the context of Hammers’s motion for judgment on the
pleadings, the trial court could only consider the facts in Austin’s complaint to
determine whether his claims sounded in negligence or intentional tort. See Holt v.
Nw. Pa. Training P’ship Consortium, Inc., 694 A.2d 1134, 1138 n.8 (Pa. Cmwlth.
10
1997). The trial court concluded that the complaint raised a question of fact as to
the nature of Hammers’s actions, stating: “It may be that discovery would
demonstrate that the re-packaging of [Austin’s] property was undertaken in an
intentional, deliberate manner.” R.R. at 26a n.1. Moreover, the propriety of
sovereign immunity here is inextricably related to the merits of Austin’s case. Thus,
we cannot say that Hammers’s claim of sovereign immunity “can be resolved
without an analysis of the merits of the underlying dispute” or that it is “entirely
distinct from the underlying issue in the case.” Brooks, 259 A.3d at 372. The issue
of Hammers’s right to claim sovereign immunity is therefore not separable from
Austin’s underlying claims. Accordingly, the trial court’s interlocutory order
denying Hammers’s motion for judgment on the pleadings is not collateral and not
appealable.
III. Conclusion
For the foregoing reasons, the trial court’s interlocutory order denying
Hammers’s motion for judgment on the pleadings is not an appealable collateral
order. Therefore, this appeal is quashed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shawn Austin :
:
v. :
:
Corrections Officer Hammers, : No. 1494 C.D. 2021
Appellant :
ORDER
AND NOW, this 21st day of June, 2023, Corrections Officer
Hammers’s appeal of the interlocutory September 28, 2021, order of the Court of
Common Pleas of Centre County is QUASHED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge