IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sidney Martin, :
Appellant :
:
v. : No. 96 C.D. 2020
: Submitted: September 18, 2020
Michael Harlow, Linda Traut, :
Michelle Wagner, and Dorina :
Varner, are sued in their :
Individual and official capacities :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: April 30, 2021
Appellant Sidney Martin (Martin) appeals, pro se, from an order of the
Court of Common Pleas of Erie County (trial court), dated December 9, 2019.
The trial court granted the motion for summary judgment filed by Michael Harlow,
Linda Traut, Michelle Wagner, and Dorina Varner (collectively, Appellees),
thereby dismissing a complaint filed by Martin. For the reasons discussed below,
we affirm in part, reverse in part, and remand for further proceedings.
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
On April 5, 2013, Martin, an inmate then housed at the State Correctional
Institution at Albion (SCI-Albion),2 filed a complaint (Complaint) with the trial court
sounding in negligence against Appellees in their individual and official capacities.3
Martin alleged that he suffered personal injuries when he contracted food poisoning
from eating improperly cooked chicken as part of his dinner served at SCI-Albion
on November 20, 2012.4 (Complaint ¶¶ 9-37.) Martin averred that, at the time in
question, he cut into his chicken and noticed that the inside was “extremely red.”
(Id. ¶ 12.) Martin showed a correctional officer, identified as Correctional Officer
Hall, who directed Martin to get another tray. (Id. ¶ 13.) Martin further alleged that
the second piece of chicken “wasn’t much better,” but he “tried to eat the parts that
appeared to be cooked.” (Id. ¶¶ 14-15.) Martin claimed that he became sick within
an hour of consuming the chicken and that he experienced persistent and fluctuating
It appears from a letter Martin filed in this Court and Appellees’ brief that Martin is now
2
housed at the State Correctional Institution at Forest in Marienville.
3
Appellees are four Pennsylvania Department of Corrections (DOC) officials: Michael
Harlow is the Superintendent of SCI-Albion; Linda Traut is the Food Service Manager of
SCI-Albion; Michelle Wagner is a Unit Manager at SCI-Albion; and Dorina Varner is the
Chief Grievance Officer at DOC.
4
In the Complaint, Martin characterized his illness as a “food intolerance reaction,” “food
poisoning,” “enteritis,” and “gastroenteritis.” (Complaint ¶¶ 16, 31, 49, 59, 64, 66-67, 69, 75.) He
specifically alleged that he received an initial diagnosis of “‘enteritis’ also called ‘gastroenteritis,’”
and that gastroenteritis is a type of food poisoning. (Id. ¶¶ 66, 69.) Notably, Exhibit 3 attached to
the Complaint contains an “Exhibit A,” titled “Inmate’s Request to Staff Member,” dated
December 3, 2012, and marked as “Received in Medical” on December 5, 2012. Therein, Martin
identified his illness in yet another way, “salmonella food poisoning,” and asked about “how long
the salmonella bacteria stays in a person’s body.” (Id., Ex. 3.) In the response section of the form,
dated December 12, 2012, Daniel Telega, PA-C, wrote that Martin was “not diagnosed with
salmonella” and that “[t]he initial diagnosis was ‘enteritis[.’]” (Id.) The response section also
indicated that a stool culture had not been placed in Martin’s chart yet and that Martin would be
notified if the results were abnormal. (Id.)
2
symptoms over the course of the following eight days, resulting in four trips to the
medical department during that time.5 (Id. ¶¶ 16-37.)
Martin claimed that Appellees generally had a duty to take reasonable care of
him and not feed him contaminated food, they breached their duty to him, this breach
caused him harm, and he “suffered personal injury damage as a result of consuming
poisonous food.”6 (Id. ¶¶ 79-81, 84.) Notably, with respect to Traut in particular,
Martin further averred that she is “responsible for the operation of SCI-Albion’s
kitchen, the food served in that kitchen, [and] the welfare and safety of the prisoners
and employees who eat the food from that kitchen.” (Id. ¶ 5.) He also alleged that
Traut “has a duty to conduct daily oversight of the employees’ routine monitoring
of cooking temperatures using appropriate temperature measuring devices[,] . . . to
ensure the employees are properly cooking potentially hazardous food, and are being
particularly careful in cooking those foods known to cause severe foodborne illness
and death.” (Id. ¶ 63.) Relatedly, Martin claimed that the chicken he consumed was
not cooked to the appropriate internal temperature, that the utensils and equipment
used to cook the chicken were not cleaned properly, and that prisoners were rushed
to cook the food within a certain timeframe. (Id. ¶¶ 53-56.) Martin sought
compensatory damages in the amount of $5,500, among other relief. (Id. ¶ 88.)
Ultimately, Appellees filed a motion for summary judgment and supporting
brief. Therein, Appellees asserted that they were entitled to immunity pursuant to
5
In the Complaint, under the heading “Exhaustion of Administrative Remedies,”
Martin alleged that he filed a grievance regarding the incident, which was denied or dismissed at
all levels by Wagner, Harlow, and Varner. (Complaint ¶¶ 41-48 and attached Exs. 1-8.)
Martin alleged in the Complaint various improprieties with respect to all four Appellees’
involvement in the handling of his grievance. (Id. ¶¶ 51-53, 57-59, 62, 64-65, 70-77.)
6
Martin also included one paragraph in his Complaint asserting that Appellees
“have violated 42 [Pa. C.S. §] 8550 willful misconduct.” (Complaint ¶ 78.)
3
what is commonly referred to as the Sovereign Immunity Act (Act), 42 Pa. C.S.
§§ 8521-8528. Appellees further argued that Martin had failed to adduce evidence
sufficient to show that there was a genuine issue of material fact for trial with respect
to his negligence claim (particularly the element of causation), because there was no
evidence to establish that he ate chicken and became sick with “[s]almonella.”
(Appellees’ Motion for Summary Judgment, 10/15/2019, at 2.) Appellees argued
that, on the contrary, evidence established that Martin did not have salmonella or
any other abnormal condition, and that he was never determined to have salmonella
or “other [f]ood [p]oisoning.”7 (Id. at 2-3.) Appellees also argued that the case
should be dismissed as to Wagner, Harlow, and Varner, as Traut was the only
individual alleged to have any involvement in food service.
Martin thereafter filed a response to Appellees’ motion for summary judgment
in which he essentially argued that, inter alia, he had asserted a viable
negligence claim against Appellees and that there were disputed material facts that
needed to be resolved by a jury. In so doing, Martin emphasized that there was
evidence demonstrating that he was diagnosed with “enteritis” or “gastroenteritis,”
7
In support of their motion, Appellees attached several exhibits, including a report issued
by BioReference Laboratories, dated December 17, 2012. The report indicated that a stool sample
from Martin, which was collected and received on December 13, 2012, had “normal enteric flora”
and was “negative for salmonella, shigella, e.coli 0157, campylobacter and yersinia sp.”
(Appellees’ Motion for Summary Judgment, Ex. B.) Also among the exhibits, however, was the
“Inmate’s Request to Staff Member” indicating that Martin was initially diagnosed with
“enteritis,” as discussed in footnote 4. (See Appellees’ Motion for Summary Judgment, Ex. A.)
Additionally, Appellees appended other “progress notes” concerning Martin’s visits to the medical
department from November 21, 2012, to January 17, 2013, which detail the various symptoms
Martin was experiencing and treatment he received during that time. (Appellees’ Motion for
Summary Judgment, Ex. C.) A progress note dated November 28, 2012, provides that Martin was
experiencing “persistent diarrhea [indiscernible] eating ‘chicken’” and notes “enteritis” as an
apparent assessment. (Id.)
4
which is a type of food poisoning, and his lab work was conducted weeks after the
incident, at which point his illness had resolved.
By order dated December 9, 2019, the trial court granted Appellees’
motion for summary judgment and dismissed Martin’s Complaint on two
separate bases: (1) there were no “factual allegations or inferences therefrom”
establishing that any of Appellees engaged in any conduct causing harm to Martin;
and (2) “on the basis of what is alleged in [Martin’s] Complaint,” Appellees were
protected by sovereign immunity, as none of the exceptions were “factually
supported in this case.” (Trial court order, 12/9/2019.) This appeal followed.8
On appeal,9 Martin argues that the trial court erred in granting Appellees’
motion for summary judgment and in particular concluding that sovereign immunity
applies, because he has established a common law cause of action in negligence
against each Appellee.10 Further, with respect to the exceptions to sovereign
8
Martin originally appealed to the Superior Court, which transferred the matter to this
Court.
9
This Court’s review of a trial court’s order granting a motion for summary judgment is
limited to considering whether the trial court erred as a matter of law or abused its discretion.
Manley v. Fitzgerald, 997 A.2d 1235, 1238 n.2 (Pa. Cmwlth. 2010). A court may grant a motion
for summary judgment only when there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Id. The right to judgment must be clear and free from
doubt. Allen v. Mellinger, 625 A.2d 1326, 1327-28 (Pa. Cmwlth. 1993), appeal denied, 644 A.2d
738 (Pa. 1994). In reviewing the granting of a motion for summary judgment, this Court must
“view the record in the light most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved against the moving party.”
Pappas v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001), cert. denied, 536 U.S. 938 (2002).
10
In his brief to this Court, Martin also presents arguments regarding his entitlement to
relief upon various other legal claims not based on negligence. Aside from one paragraph in the
Complaint asserting that Appellees “have violated 42 [Pa. C.S. §] 8550 willful misconduct,”
Martin only pled a negligence cause of action. Thus, our review here is limited to whether the trial
court erred in granting summary judgment as to a claim based in negligence only. Furthermore,
as to Martin’s reliance on Section 8550 of the Judicial Code, we note that Section 8550 may be
5
immunity, Martin appears to argue that his claim falls under the “personal property”
exception set forth in Section 8522(b)(3) of the Act11 on the basis that he, as a
prisoner, is the personal property of the Commonwealth. Martin also argues that
there are material facts in dispute rendering the grant of summary judgment in
Appellees’ favor improper.
In response, Appellees argue that Martin failed to adduce sufficient
evidence that he suffered “salmonella food poisoning.” (Appellees’ Brief at 11.)
Appellees contend that Martin offers nothing more than a self-diagnosis of
salmonella and speculation that undercooked chicken caused his illness based upon
the temporal relationship between his consumption of the chicken and the illness,
which is insufficient to establish a prima facie case of negligence. In support
of their position, Appellees rely upon, inter alia, Rogers v. City of Philadelphia
(Pa. Cmwlth., No. 2678 C.D. 2015, filed November 30, 2016),12 providing that
“[a] plaintiff cannot survive summary judgment when mere speculation would be
required for the jury to find in plaintiff’s favor” and that “there must be evidence
upon which logically its conclusion [that a defendant’s negligence caused the
plaintiff’s injury] must be based.” Id., slip op. at 11-12 (quoting Krauss v. Trane
U.S. Inc., 104 A.3d 556, 568 (Pa. Super. 2014)). Appellees also reiterate that the
invoked to waive official immunity under certain circumstances, but only in an “action against a
local agency or employee thereof.” 42 Pa. C.S. § 8550 (emphasis added). Thus, Section 8550 does
not apply to DOC or its employees.
11
Section 8522(b)(3) of the Act provides, in relevant part, that the Commonwealth may be
held liable “and the defense of sovereign immunity shall not be raised to claims for damages caused
by: . . . [t]he care, custody or control of personal property in the possession or control of
Commonwealth parties, including Commonwealth-owned personal property and property of
persons held by a Commonwealth agency.” 42 Pa. C.S. § 8522(b)(3).
12
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), an unreported opinion of the Court filed after January 15, 2008, may be cited
only “for its persuasive value, but not as binding precedent.”
6
evidence of record demonstrates that Martin did not have salmonella and, thus,
no reasonable juror could conclude that he suffered food poisoning as a result of the
chicken he ate at SCI-Albion.
Appellees further argue that, even assuming that Martin demonstrated that he
suffered food poisoning as a result of food served at SCI-Albion, Martin’s claim still
fails on sovereign immunity grounds. Appellees contend that Martin did not allege
or demonstrate that any of Appellees were involved in the food poisoning incident.
Appellees add that Commonwealth employees “are liable only for their own
actionabl[e] conduct and are not vicariously liable or legally responsible for the acts
of their subordinates,” and that “there is no cause of action related to a defendant’s
alleged mishandling of an investigation or processing of a prison grievance
after the fact.” (Appellees’ Brief at 12-13 (citing Martin v. Clark (Pa. Cmwlth.,
No. 74 C.D. 2018, filed July 27, 2018), slip. op. at 3-5)). Appellees also contend
that Martin fails to articulate which of the enumerated exceptions to sovereign
immunity applies to this case.13
Pursuant to the Act, “[s]overeign immunity is only waived for damages
arising out of a negligent act where the common law or a statute would permit
recovery if the injury were caused by a person not protected by sovereign immunity
and the cause of action falls under one of the specifically enumerated exceptions to
immunity.” Page v. City of Philadelphia, 25 A.3d 471, 475 (Pa. Cmwlth. 2011),
appeal denied, 40 A.3d 124 (Pa. 2012). In order to establish a common law
negligence claim for purposes of meeting the threshold requirement for a waiver of
sovereign immunity, Martin is required to prove the following
13
Notwithstanding the above, Appellees acknowledge that the personal property
exception to sovereign immunity is the only exception that arguably applies to this matter.
(Appellees’ Brief at 10-11.)
7
elements: “(1) [Appellees’] duty or obligation recognized by law; (2) a breach of
that duty; (3) a causal connection between [Appellees’] conduct and the resulting
injury; and (4) actual damages.” Id. (citing Talarico v. Bonham, 650 A.2d 1192,
1195-96 (Pa. Cmwlth. 1994)).
Preliminarily, we observe that the first basis upon which the trial court granted
Appellees’ motion for summary judgment was that there were “no factual allegations
or inferences therefrom” establishing that any of Appellees engaged in conduct
causing harm to Martin. (Trial court order, 12/9/2019.) As noted, the crux of
Martin’s claim is that he contracted food poisoning caused by eating undercooked
chicken that was served to him for dinner at SCI-Albion. Upon review, we agree
that Martin does not allege how Harlow, the Superintendent of SCI-Albion; Wagner,
a Unit Manager at SCI-Albion; and Varner, the Chief Grievance Officer of DOC,
had any involvement in the alleged food poisoning incident.14 Thus, we conclude
that the trial court did not err to the extent that it granted summary judgment in favor
of those Appellees.
14
To the extent that Martin is claiming that Harlow is liable based solely on his supervisory
position as Superintendent of SCI-Albion, we note that “[a] negligence action may not lie against
a public official if there is no averment that the individual committed a wrongful act in his official
capacity or by his personal action, and the action is solely predicated upon a theory of respondeat
superior.” Payne v. Whalen (Pa. Cmwlth., No. 587 C.D. 2018, filed April 25, 2019), slip. op. at 11
(citing Witt v. Dep’t of Banking, 409 A.2d 932, 934 (Pa. Cmwlth. 1980), aff’d per
curiam, 425 A.2d 374 (Pa. 1981)), appeal denied, 223 A.3d 1288 (Pa. 2020). We further note that,
insofar as there are allegations in the Complaint concerning Harlow, Wagner, Varner, and Traut
pertaining to the handling of his grievance after the food poisoning incident, this Court has
observed that “there is no cause of action for the mishandling of an inmate’s grievance.”
White v. Walter (Pa. Cmwlth., No. 1341 C.D. 2019, filed February 9, 2021), slip. op. at 12-13
(further explaining that, “[t]herefore, to the extent that [the inmate’s c]omplaint can be understood
to assert that . . . DOC [o]fficials negligently handled his grievance . . . [the complaint] failed to
state a claim upon which relief could be granted”).
8
With respect to Appellee Traut, however, we note the following.
First, Appellees did not argue in their motion that summary judgment should be
granted in favor of Traut on the basis that there were no allegations or inferences
therefrom establishing that she engaged in any conduct causing harm to Martin.
Indeed, Appellees conceded that Traut was the only named party who had
involvement in food service and, thus, asked for the case to be dismissed against
only the other Appellees based on their lack of involvement. Thus, the trial court’s
grant of summary judgment in favor of Traut on the grounds that there were no
factual allegations or inferences therefrom establishing that she engaged in any
conduct causing harm to Martin was done sua sponte. We observe that
“it is inappropriate for a trial court to grant summary judgment for reasons addressed
sua sponte.” Yount v. Pa. Dep’t of Corr., 966 A.2d 1115, 1119 (Pa. 2009).
“For a trial court to raise an argument in favor of summary judgment sua sponte and
grant summary judgment thereon risks depriving the court [of] the benefit of
advocacy on the issue, and depriving the parties [of] the opportunity to be heard.”
Id.
Further, Martin alleged that Traut, as the Food Service Manager of
SCI-Albion, is responsible for the operation of its kitchen, the food served there,
and “the welfare and safety of the prisoners and employees who eat the food from
that kitchen.” (Complaint ¶ 5.) Martin further alleged that Traut “has a duty to
conduct daily oversight of the employees’ routine monitoring of cooking
temperatures using appropriate temperature measuring devices[,] . . . to ensure the
employees are properly cooking potentially hazardous food, and are being
particularly careful in cooking those foods known to cause severe foodborne illness
and death.” (Id. ¶ 63.) Martin also averred that the chicken he consumed was not
9
cooked to the appropriate internal temperature, that the utensils and equipment used
to cook the chicken were not cleaned properly, and that prisoners were rushed to
cook the food within a certain timeframe. (Id. ¶¶ 53-56.) Based on the precise nature
of Appellees’ argument raised in their motion for summary judgment, the allegations
set forth in the Complaint, and the standards governing summary judgment, we
conclude that the trial court erred insofar as it held that there are no “factual
allegations or inferences therefrom” establishing that Traut engaged in any conduct
which caused harm to Martin.15 (Trial court order, 12/9/2019.)
Additionally, while Appellees reiterate their argument that Martin has failed
to adduce evidence that he suffered from “salmonella” or “food poisoning” from
eating chicken at SCI-Albion beyond a self-diagnosis and the timing of his
consumption and the illness, there is evidence in the record to support that Martin
experienced symptoms of an illness following his consumption of the chicken and
that he received a diagnosis of “enteritis” in the days following the incident,
15
Insofar as Appellees argue before this Court that Martin failed to adduce evidence of
Traut’s involvement, they did not present this argument in their motion for summary judgment,
and the trial court did not grant the motion on this basis. Again, Appellees conceded that Traut
was the only named party who had involvement in food service and, thus, did not ask for the case
to be dismissed against her on the basis that there were no allegations—or that there was a lack of
evidence—establishing her involvement as they did with respect to the other Appellees.
Given that Martin was not afforded sufficient notice of the issue and a full and fair opportunity to
respond appropriately to such a claim below, we decline to affirm on the basis of that contention
here. See Shamis v. Moon, 81 A.3d 962, 970 (Pa. Super. 2013) (“[S]ince a trial court cannot ‘raise
an argument in favor of summary judgment sua sponte and grant summary judgment thereon,’
it would appear as if this Court—also—cannot affirm a trial court’s grant of summary judgment
upon an argument that was never raised in support of the summary judgment motion. We could
not do so, as this would cause us to affirm on grounds that are not ‘supported by the record.’”)
(internal citation and emphasis omitted); see also Pa. R.C.P. No. 1035.3(e)(1) (providing that,
at any time prior to trial, a court can rule “upon a motion for summary judgment without written
responses or briefs if no party is prejudiced,” and that “[a] party is prejudiced if he or she is not
given a full and fair opportunity to supplement the record and to oppose the motion”).
10
as explained above. Viewing this evidence and the rest of the record in the light
most favorable to Martin as the non-moving party, we disagree with Appellees that,
at this point, there is no genuine issue of material fact as to causation, particularly
on the asserted grounds that Martin did not show that he suffered from an illness
specifically identified as “salmonella” or “food poisoning.”
Having concluded that the trial court erred with respect to its holding
regarding Martin’s common law negligence claim as asserted against Traut, we turn
to the second requirement that must be met for immunity to apply: satisfaction of
one of the exceptions enumerated in Section 8522(b) of the Act. On this point, the
trial court concluded that none of the exceptions to sovereign immunity were
“factually supported.” (Trial court order, 12/9/2019.) Appellees acknowledge
potential application of the personal property exception but offer little discussion
beyond that acknowledgement.16 Martin seems to argue that it applies because he is
the personal property of the Commonwealth by virtue of his status as a prisoner,
though the Court has already rejected “out of hand” the contention that a prisoner’s
status makes him the personal property of the Commonwealth for purposes of
Section 8522(b)(3) of the Act. Gallagher v. Bureau of Corr., 545 A.2d 981, 984
(Pa. Cmwlth. 1988) (en banc), appeal denied, 554 A.2d 511 (Pa. 1989).
16
In their motion for summary judgment and brief in support, Appellees likewise
acknowledged that the personal property exception was the only possible exception applicable
herein. While Appellees did state in their supporting brief that Martin’s claims did not fall within
the exception for the reasons argued in the brief, as noted, those arguments concerned Martin’s
alleged failure to adduce sufficient evidence of causation as well as Harlow’s, Wagner’s, and
Varner’s lack of involvement in the food poisoning incident. To the extent that the trial court held
that none of the exceptions were “factually supported” based upon its determination that none of
Appellees were involved in the food poisoning incident, we again conclude that the trial court’s
holding was in error as applied to Traut for the reasons previously discussed.
11
As noted above, Section 8522(b)(3) of the Act waives sovereign immunity
for “claims for damages caused by . . . [t]he care, custody or control of personal
property in the possession or control of Commonwealth parties, including
Commonwealth-owned personal property and property of persons held by a
Commonwealth agency.” Generally speaking, it stands to reason that the food
served by a state correctional institution to inmates housed in that facility may well
constitute personal property of DOC. Furthermore, Martin claims that Traut, as the
Food Service Manager of SCI-Albion, was responsible for the operation of
SCI-Albion’s kitchen and had a duty to ensure that the employees properly handled
and prepared potentially hazardous food, including the allegedly undercooked
chicken that Martin claims caused him to become ill with food poisoning.
Appellees, therefore, have not established that the exception to sovereign immunity
set forth in Section 8522(b)(3) of the Act is inapplicable, because, given that genuine
issues of material fact exist, they have not established that Traut’s “care, custody or
control” of DOC’s “personal property,” i.e., the chicken, did not cause damage to
Martin in the form of food poisoning. See 42 Pa. C.S. § 8522(b)(3). Thus, the trial
court erred in granting summary judgment on this basis as to Traut.
For the foregoing reasons, we hold that the trial court properly granted
summary judgment in favor of Appellees Harlow, Wagner, and Varner, and thus we
affirm the trial court’s order as it pertains to those Appellees. Conversely, we hold
that the trial court erroneously granted summary judgment in favor of Appellee
Traut, and thus we reverse the trial court’s order as it pertains to her. We remand
the matter for further proceedings consistent with this opinion.
P. KEVIN BROBSON, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sidney Martin, :
Appellant :
:
v. : No. 96 C.D. 2020
:
Michael Harlow, Linda Traut, :
Michelle Wagner, and Dorina :
Varner, are sued in their :
Individual and official capacities :
ORDER
AND NOW, this 30th day of April, 2021, the order of the Court of Common
Pleas of Erie County (trial court), dated December 9, 2019, is hereby AFFIRMED,
in part, and REVERSED, in part, and the matter is REMANDED to the trial court
for further proceedings consistent with the accompanying opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge