IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Randy F. Anderson, :
Appellant :
:
v. :
:
Pennsylvania Department of : No. 50 C.D. 2022
Corrections and Kim Smith : Submitted: April 14, 2023
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: August 3, 2023
Randy F. Anderson (Anderson) appeals, pro se, the October 7, 2021
order of the Court of Common Pleas of the 37th Judicial District of Pennsylvania,
Forest County Branch (trial court). The trial court sustained a preliminary objection
(Preliminary Objection) in the nature of a demurrer based on sovereign immunity1
filed on behalf of the Pennsylvania Department of Corrections (Department) and
Kim Smith (Smith) (collectively, Appellees) to Anderson’s pro se “Complaint In
Tort (as Amended) Establishing Negligence, Carelessness, and Recklessness Upon
Defendant(s)” (Amended Complaint). Upon review, we reverse and remand for
further proceedings.
1
On June 7, 2021, the Pennsylvania Department of Corrections (Department) filed two
preliminary objections to Anderson’s pro se “Complaint In Tort (as Amended) Establishing
Negligence, Carelessness, and Recklessness Upon Defendant(s)” (Amended Complaint). See
Preliminary Objections to Complaint, filed June 7, 2021. The first of the two preliminary
objections sought dismissal of the Amended Complaint based on lack of jurisdiction resulting from
improper service of process. See id. The trial court overruled this first preliminary objection by
order dated August 26, 2021. See Trial Court Order dated August 26, 2021. The trial court then
heard argument on and filed an order sustaining the Department’s second preliminary objection, a
demurrer based on sovereign immunity, from which order Anderson now appeals in the instant
matter. See Trial Court Order dated Oct. 7, 2021.
Anderson, an inmate at State Correctional Institution at Forest (SCI-
Forest), wears orthopedic boots to accommodate a deformity of his feet.2 See
Amended Complaint at 4-5.3 After a random search of his cell uncovered
contraband, prison officials placed Anderson in SCI-Forest’s Restricted Housing
Unit (RHU). See id. As part of standard prison transfer procedures, Anderson was
required to forfeit his regular clothes and orthopedic boots and wear a jump suit and
slip-on shoes during his stay in the RHU. See id. Anderson claims that, although
he received his regular clothes back, his orthopedic boots were never returned to him
following his release from the RHU. See id. at 5. Anderson believes that an
unidentified prison employee or inmate worker stole his orthopedic boots while he
was temporarily housed in the RHU, and he relayed this theory to prison authorities
on multiple occasions. See id.
Anderson filed and prosecuted to final review a grievance regarding the
missing orthopedic boots. See Amended Complaint at 6-8 & Exhibits. Department
officials provided Anderson with a new pair of boots, which he alleges were regular,
non-orthopedic boots that did not fit him properly and caused his feet to blister. See
id. On January 19, 2018, Anderson requested a new pair of orthopedic boots from
Department officials by filing an inmate’s request to staff member. See id. A
2
Anderson requires orthopedic boots because he “was on[c]e electrocuted with such force
that it blew his toes off of his left foot, and ½ of his heel on his right foot.” Amended Complaint
at 5 (internal quotation marks omitted).
3
We observe that Anderson filed only the first three pages of the Amended Complaint on
April 12, 2019, with the intent that those three pages would replace the first three pages of the
Petition for Review previously filed in this Court (Petition for Review) as discussed infra. See
Letter to Prothonotary/Clerk of Courts dated April 8, 2019, attached to Amended Complaint.
Accordingly, we treat the first three pages of the Amended Complaint and pages 4-10 and the
exhibits to the Petition for Review collectively as the Amended Complaint. See Pa.R.Civ.P. 126
(providing that the Pennsylvania Rules of Civil Procedure are to be liberally construed and that
“[t]he court at every stage of any . . . action or proceeding may disregard any error or defect of
procedure which does not affect the substantial rights of the parties”).
2
grievance coordinator responded to Anderson’s request, explaining that he had
already received a new pair of boots. See id. On February 10, 2019, Anderson sent
another request for new “medical boots,” which request the grievance coordinator
forwarded to the Medical Department at SCI-Forest. See id. On February 14, 2019,
Smith advised Anderson that he was not entitled to receive a new pair of boots as
requested, as he had already received an appropriate pair of boots. See id.
On February 27, 2019, Anderson filed a pro se Petition for Review with
this Court. See Anderson v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 120 M.D. 2019)
(Prior Case). The Petition for Review alleged that, as a result of Appellees’
negligence, he now has improper footwear that allows him to walk for only short
periods of time and otherwise causes injury to his foot. See Petition for Review at
8. The Petition for Review effectively sought mandamus relief requiring the
Department to provide Anderson with a new pair of orthopedic boots. See id. at 9.
The Petition for Review also sought a declaration that the Department and Smith
violated his rights, as well as nominal and compensatory damages for the loss of the
boots and the resulting harm. See Petition for Review at 9. Determining it lacked
jurisdiction over the claims in the Petition for Review, this Court transferred the
matter to the trial court on March 5, 2019. See Prior Case Order dated March 5,
2019.
On April 12, 2019, Anderson filed the Amended Complaint in the trial
court. Appellees thereafter filed the Preliminary Objection, which argued that the
claims of the Amended Complaint were barred by sovereign immunity. On October
7, 2021, the trial court sustained the Preliminary Objection and dismissed the
Amended Complaint with prejudice (Dismissal Order). The trial court explained the
dismissal as follows:
3
[Anderson] claims that his property was lost or stolen by
Department [] employees. However, the only named
[Appellees] are the [] Department [] and [] Smith.
[Anderson] does not allege that the Department [] itself
stole or misplaced his orthopedic boots. [] Smith is named
as a defendant solely due to her position as Corrections
Health Care Administrator. [Anderson] made no
allegation that either of these named [Appellees]
misplaced his property and presented no facts as to how
these [Appellees] were allegedly acting outside the scope
of their duties. This claim is barred by sovereign
immunity as [Appellees] are not liable for alleged
negligence or intentional tort solely due to their positions
and when neither [Appellee] acted outside the scope of
their [sic] duties.
Trial Court Memorandum Opinion Pursuant to Pa.R.A.P. 1925(b) (Trial Court
Opinion) at 2 (pagination supplied).
On October 19, 2021, Anderson filed an “appeal” of the Dismissal
Order, which the trial court treated as a timely filed motion for reconsideration. See
Trial Court Opinion at 2. Following the trial court’s denial of the motion for
reconsideration, Anderson timely appealed to this Court. See id.
On appeal,4 Anderson argues that the trial court erred by sustaining the
Preliminary Objection because the claims of the Amended Complaint are not barred
by sovereign immunity. See Anderson’s Amended Br. at 1, 6-9. Specifically,
Anderson argues that Smith is not named solely by virtue of being in the chain of
command at SCI-Forest, but instead was the actual individual who denied his request
for replacement orthopedic boots. See id. at 7. He also claims that sovereign
immunity is waived in this matter because the Amended Complaint sets forth alleged
4
Where a trial court dismisses a complaint as a result of preliminary objections, this Court’s
review is limited to determining whether the trial court committed an error of law or an abuse of
discretion. Brown v. Wetzel, 179 A.3d 1161, 1164 n.2 (Pa. Cmwlth. 2018).
4
negligence pertaining to the deprivation of his non-contraband personal property that
was in the care or control of Appellees. See id. at 8-9. We agree.
Section 2310 of the Pennsylvania Consolidated Statutes, 1 Pa.C.S. § 2310,
provides:
Pursuant to section 11 of [a]rticle 1 of the Constitution of
Pennsylvania, it is hereby declared to be the intent of the
General Assembly that the Commonwealth, and its
officials and employees acting within the scope of their
duties, shall continue to enjoy sovereign immunity and
official immunity and remain immune from suit except as
the General Assembly shall specifically waive the
immunity. When the General Assembly specifically
waives sovereign immunity, a claim against the
Commonwealth and its officials and employees shall be
brought only in such manner and in such courts and in such
cases as directed by the provisions of Title 42 . . . .
1 Pa.C.S. § 2310. Thus, under the doctrine of sovereign immunity, “[t]he
Commonwealth is immune from suit in tort, and this immunity extends to employees
of the Commonwealth who are not high public officials . . . when they act within the
scope of their employment and not in an intentionally malicious, wanton or reckless
manner.” McCool v. Dep’t of Corr., 984 A.2d 565, 570 (Pa. Cmwlth. 2009) (quoting
Walter v. Com., 350 A.2d 440, 442 (Pa. Cmwlth. 1976)) (internal brackets and
quotation marks omitted). Further, an action for intentional misconduct is barred by
sovereign immunity where a Commonwealth actor acted within the scope of his
employment. See La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992).
“To be within the scope of employment, the conduct must be of the same general
nature as that authorized or incidental to the conduct authorized, occurring
5
substantially within the authorized time, and done to serve the employer.” Robertson
v. Zaken (Pa. Cmwlth., No. 111 C.D. 2019, filed Dec. 22, 2021),5 slip op. at 9.
Sovereign immunity may be waived, however. As this Court has
explained:
[a] party may proceed against a Commonwealth agency if
it can establish that damages would have been recoverable
under common law (or a statute creating a cause of action)
had the injury been caused by a defendant not protected by
sovereign immunity. 42 Pa.C.S. § 8522(a). Additionally,
the alleged negligent act must fall within one of the
specifically enumerated exceptions provided by the
legislature.
McCool, 984 A.2d at 570 (quoting LaChance v. Michael Baker Corp., 869 A.2d
1054, 1057 (Pa. Cmwlth. 2005)). Regarding enumerated exceptions, the General
Assembly has waived sovereign immunity for Commonwealth parties for claims
involving: (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. See 42 Pa.C.S. § 8522(b).
The instant matter concerns the third enumerated exception to
sovereign immunity, which relates to the care, custody, or control of personal
property. See 42 Pa.C.S. § 8522(b)(3). Regarding this exception, this Court has held
that sovereign immunity does not apply to cases where a prisoner sets forth a
negligence claim for damages to his personal property caused by the care, or lack
5
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), unreported panel decisions of this Court issued after January 15, 2008, may be
cited for their persuasive value.
6
thereof, of the property while in the possession of Commonwealth parties. See
Williams v. Stickman, 917 A.2d 915, 918 (Pa. Cmwlth. 2007). In Williams, prison
officials took possession of a prisoner’s television while the prisoner spent time in
the RHU. See id. at 916-17. The television had been in good working condition
when it went into the prison officials’ possession. See id. at 916. Upon the return
of his television after his release from the RHU, the prisoner discovered that the
television was damaged and no longer working properly. See id. at 916-17. The
prisoner brought an action against multiple prison employees. See id. at 917. The
trial court dismissed the action as frivolous, reasoning that the prison employees
were protected by sovereign immunity. See id. The trial court further found that the
exception set forth in 42 Pa.C.S. § 8522(b)(3) did not apply to injuries to personal
property held by the Commonwealth itself, but instead applied only where property
held by the Commonwealth causes injury to persons or other property. See id. This
Court reversed, finding instead that the plain language of Section 8522(b)(3)
prevents state employees from raising sovereign immunity as a defense in such a
case. See Williams, 917 A.2d at 918; see also Payne v. Whelan (Pa. Cmwlth., No.
2100 C.D. 2014, filed Aug. 20, 2015) (following Williams in disallowing application
of sovereign immunity to a case involving damage to a prisoner’s personal property
while in the possession of prison authorities).
The instant matter is informed by Williams. Here, prison officials
confiscated Anderson’s personal property during his time in the RHU. Upon his
release from the RHU, Anderson’s property was missing. The Amended Complaint
sets forth a claim sounding in negligence seeking recovery of damages caused by
Appellees’ care of Anderson’s orthopedic boots while in the possession of
Appellees. See Amended Complaint (Petition for Review) at 4-9 (claiming that
7
Anderson’s boots were in Appellees’ custody during his time in the RHU and were
thereafter missing through Appellees’ negligence when he was returned to his
regular housing unit). The only appreciable distinction between the instant case and
Williams is that Williams’s television was present and damaged, whereas the boots
in question in this matter are missing. For all intents and purposes, the loss of boots
in the instant matter equates to the total destruction of the property. The Amended
Complaint contends this loss was occasioned by Appellees’ collective negligence.
See id. As such, the negligence claim fits within the enumerated care, custody, or
control of personal property exception to sovereign immunity. See 42 Pa.C.S. §
8522(b); Williams. Therefore, the trial court erred by sustaining the Preliminary
Objection and dismissing the Amended Complaint for this reason. Accordingly, we
reverse the trial court’s order and remand the matter for further proceedings.
Further, while the trial court’s order purports to dismiss the entire
Amended Complaint, the Trial Court Opinion does not address the constitutional
claims raised, the existence of which Appellees acknowledge.6 As a result, those
claims remain viable and should be addressed on remand.7
6
See Appellees’ Br. at 4, 13-20.
7
The Court acknowledges that Anderson filed a document titled “Affidavit of Notice of
Default” (First Affidavit) on June 23, 2023, and another document titled “Second Affidavit of
Default § 26.22 Ten Day Notice of Default” (Second Affidavit) on July 25, 2023. Anderson filed
the First Affidavit apparently in response to this Court’s April 17, 2023 order directing that the
matter be decided on briefs, without oral argument. See First Affidavit. Anderson filed the Second
Affidavit apparently as a result of having received no response to the First Affidavit. See Second
Affidavit. Upon review, the Court discerns no request for additional cognizable relief within either
the First Affidavit or the Second Affidavit. Therefore, to the extent the First Affidavit or the
Second Affidavit attempt to raise any claims and/or arguments that would require disposition by
this Court, such claims and/or arguments are dismissed as indiscernible.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Randy F. Anderson, :
Appellant :
:
v. :
:
Pennsylvania Department of : No. 50 C.D. 2022
Corrections and Kim Smith :
PER CURIAM
ORDER
AND NOW, this 3rd day of August, 2023, the October 7, 2021 order of
the Court of Common Pleas of the 37th Judicial District of Pennsylvania, Forest
County Branch (trial court), is REVERSED, and the case is REMANDED to the trial
court for further proceedings.
Jurisdiction is relinquished.