IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Quentin Johnson, :
Appellant :
:
v. :
:
Pennsylvania Department of :
Corrections of the Commonwealth of :
Pennsylvania; Gregory A. Fabrizio, :
Facility Safety Manager; Charles : No. 981 C.D. 2022
Fabian, Facility Maintenance Manager : Submitted: July 14, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: October 6, 2023
Quentin Johnson (Johnson) appeals, pro se, from the Schuylkill County
Common Pleas Court’s (trial court) August 22, 2022 order dismissing his complaint
(Complaint) against the Pennsylvania Department of Corrections of the
Commonwealth of Pennsylvania (DOC), DOC Facility Safety Manager Gregory A.
Fabrizio (Fabrizio), and DOC Facility Maintenance Manager Charles Fabian
(Fabian) (collectively, also DOC) as frivolous pursuant to Pennsylvania Rule of
Civil Procedure (Civil Rule) 240(j)(1), Pa.R.Civ.P. 240(j)(1). Johnson presents one
issue for this Court’s review: whether the trial court erred by determining that his
Complaint failed to state a claim upon which relief can be granted and, thus, was
wholly frivolous. After review, this Court vacates and remands.
Johnson is currently incarcerated at the State Correctional Institution at
Mahanoy (SCI-Mahanoy).1 On or about July 5, 2022, Johnson filed the Complaint,
pro se, in the trial court seeking damages for low back and knee injuries he claims
to have sustained when he fell on a wet, slippery concrete floor in the dayroom of
SCI-Mahanoy’s JB housing unit (JB Unit) on or about October 2021. See Johnson
Br. Ex. B (Complaint) ¶¶ 8-9, 13-15; see also Complaint ad damnum clause. In his
Complaint, Johnson attributed the water on the floor to DOC’s negligence and
carelessness in failing to repair a leaking roof and/or taking precautions to prevent
injury. See id. ¶¶ 5-7, 12. Also on July 5, 2022, Johnson filed an Application for
Leave to Proceed In Forma Pauperis (IFP Application).
On August 22, 2022, the trial court dismissed the Complaint pursuant
to Civil Rule 240(j)(1) and denied Johnson’s IFP Application. See Johnson Br. Ex.
A (Trial Ct. Order) at 1-2. On September 12, 2022, Johnson appealed to this Court.2
On October 27, 2022, the trial court ordered Johnson to file a Concise Statement of
Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate
Procedure (Appellate Rule) 1925(b) (1925(b) Statement). See Original Record
(O.R.) Item 6. On November 9, 2022, Johnson filed his 1925(b) Statement. See
O.R. Item 7. On January 27, 2023, the trial court issued its opinion pursuant to
Appellate Rule 1925(a) (1925(a) Opinion). See O.R. Item 9. By March 21, 2023
letter, DOC’s Office of General Counsel notified this Court that DOC “will not
participate in this appeal as the matter was dismissed by the [trial court] prior to
service.” March 21, 2023 Non-Participation Letter at 1.
1
See www.inmatelocator.cor.pa.gov (last visited Sept. 13, 2023).
2
“Our scope of review is limited to determining whether constitutional rights have been
violated, whether the trial court abused its discretion, or whether the trial court committed an error
of law.” Mohica v. SCI-Mahanoy Sec., 224 A.3d 811, 812 n.2 (Pa. Cmwlth. 2020) (quoting
Lichtman v. Glazer, 111 A.3d 1225, 1227 n.4 (Pa. Cmwlth. 2015)).
Johnson filed an IFP Application in this Court, which this Court granted on November 4,
2022.
2
Initially, “[Civil] Rule 240 provides for a procedure by which a person
who is without the financial resources to pay the costs of litigation may proceed [in
forma pauperis].” Ocasio v. Prison Health Servs., 979 A.2d 352, 354 (Pa. Super.
2009). Civil Rule 240(j)(1) provides, in relevant part:
If, simultaneous with the commencement of an action or
proceeding or the taking of an appeal, a party has filed a
petition for leave to proceed in forma pauperis, the court
prior to acting upon the petition may dismiss the action,
proceeding[,] or appeal . . . if it is satisfied that the action,
proceeding or appeal is frivolous.
Note: A frivolous action or proceeding has been
defined as one that “lacks an arguable basis either
in law or in fact.” Neitzke v. Williams, 490 U.S.
319, [326] . . . (1989).
Pa.R.Civ.P. 240(j)(1) (italics omitted). “An action is frivolous under [Civil Rule
240(j)] if, on its face, it does not set forth a valid cause of action[.]” Bennett v.
Beard, 919 A.2d 365, 367 (Pa. Cmwlth. 2007) (quoting McGriff v. Vidovich, 699
A.2d 797, 799 (Pa. Cmwlth. 1997)).
Here, Johnson asserted a negligence claim against Fabrizio and Fabian
in their official capacity, and DOC as respondeat superior. This Court has
explained:
Pursuant to [a]rticle [I], [s]ection 11 of the Pennsylvania
Constitution, the General Assembly declared that ‘the
Commonwealth, [PA. CONST. art. I, § 11,] 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.’
1 Pa.C.S. § 2310.
Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017) (footnote omitted).
This Court determines whether a Commonwealth
employee is protected by sovereign immunity by
considering “whether the . . . employee was acting within
3
the scope of his or her employment; whether the alleged
act which causes injury was negligent and damages would
be recoverable but for the availability of the immunity
defense; and whether the act fits within one of the [10]
exceptions to sovereign immunity.”[3]
Id. at 122 (quoting La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992));
see also Section 8522 of the Judicial Code, 42 Pa.C.S. § 8522, commonly known as
the Sovereign Immunity Act (Act).
Thus, “[t]o impose liability on a Commonwealth party, (1)
the alleged negligent act must involve a cause of action
that is recognized at common law or by a statute, and (2)
the case must fall within one of [the] exceptions to
sovereign immunity listed in Section 8522(b)” of [the
Act]. Bufford v. Pa. Dep’t of Transp., 670 A.2d 751, 753
(Pa. Cmwlth. 1996) (citing 42 Pa.C.S. § 8522(b)).
[Johnson], therefore, bore the “initial burden” of setting
forth a claim for negligence against [DOC] where
damages would be recoverable under the common law or
a statute creating a cause of action. LaChance v. Michael
Baker Corp., 869 A.2d 1054, 1057 (Pa. Cmwlth. 2005), as
amended (Feb. 10, 2005); see also Williams v. Phila.
Hous. Auth., 873 A.2d 81, 85 (Pa. Cmwlth. 2005) (“The
threshold question in a case of . . . sovereign immunity is
whether [Johnson] would have an action in damages at
common law or statute if [DOC] could not claim the
defense of governmental or sovereign immunity.”).
Young v. Wetzel, 260 A.3d 281, 289 (Pa. Cmwlth. 2021) (footnotes omitted).
In order to satisfy the first immunity waiver requirement, there must be
a cause of action involving a Commonwealth employee’s negligence recognized at
common law or by statute. See Young. This Court has explained: “To state a
negligence claim, ‘the plaintiff must demonstrate that the defendant owed a duty of
3
Acts by a Commonwealth party for which liability may be imposed relate to: (1) vehicle
liability; (2) medical-professional liability; (3) care, custody, and control of personal property; (4)
Commonwealth real estate, highways, and sidewalks; (5) potholes and other dangerous conditions;
(6) care, custody, and control of animals; (7) liquor store sales; (8) National Guard activities; (9)
toxoids and vaccines; and (10) sexual abuse. See Section 8522(b) of the Judicial Code, 42 Pa.C.S.
§ 8522(b).
4
care to the plaintiff, the defendant breached that duty, the breach resulted in injury
to the plaintiff, and the plaintiff suffered an actual loss or damage.’” Id. at 289
(quoting Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998)). “The [] duty of care a
Commonwealth agency owes to those using its real estate[] is such as to require that
the condition of the property is safe for the activities for which it is regularly used,
intended to be used[,] or reasonably foreseen to be used.” Snyder v. Harmon, 562
A.2d 307, 312 (Pa. 1989).
In the Complaint, Johnson claimed that DOC and its employees,
Fabrizio and Fabian, owed him a duty of care, that they breached their duty by failing
to inspect, maintain, and repair the roof over the JB Unit under their care, custody
and control, that said roof leaked water, which made the floor wet and slippery, and
that he was injured and sustained damages as a result. Because Johnson pled a cause
of action recognized at common law or by a statute, he met the first immunity waiver
requirement.
In order to satisfy the second immunity waiver requirement, the action
must fall within one of the exceptions listed in Section 8522(b) of the Act. See
Young. Here, Johnson alleged in the Complaint that the water pooled on the floor of
SCI-Mahanoy’s JB Unit, which was under DOC’s care, custody, and control.
Section 8522(b)(4) of the Act expressly waives sovereign immunity for negligence
claims against Commonwealth employees relative to, inter alia, “Commonwealth
real estate . . . -- A dangerous condition of Commonwealth agency real estate . . . ,
including Commonwealth-owned real property[.]” 42 Pa.C.S. § 8522(b)(4).
Because the General Assembly’s intent in the Act is to shield
government from liability except as specifically provided in the statutes, see U.S.
Venture, Inc. v. Commonwealth, 255 A.3d 321 (Pa. 2021), “the exceptions to
sovereign immunity must be strictly construed and narrowly interpreted[.]” Casteel
v. Tinkey, 151 A.3d 261, 273 (Pa. Cmwlth. 2016). “In construing the real estate
5
exception, Pennsylvania courts have held that the ‘dangerous condition must derive,
originate from, or have as its source the Commonwealth realty.’” Hall v. Sw. Pa.
Water Auth., 87 A.3d 998, 1000 (Pa. Cmwlth. 2014) (quoting Snyder, 562 A.2d at
311). “[T]he focus must be on whether there is proof of a defect in the real property
itself.” Nardella v. Se. Pa. Transp. Auth., 34 A.3d 300, 304 (Pa. Cmwlth. 2011).
This Court has explained:
The test for determining whether the real estate exception
applies to remove sovereign immunity is as follows:
[A] claim for damages for injuries caused by a
substance or an object on Commonwealth real
estate must allege that the dangerous condition
derived, originated or had as its source the
Commonwealth realty itself, if it is to fall within
the . . . Act’s real estate exception. . . . In other
words, assuming all other requirements of the
statutory exception at [Section 8522(b)(4) of the
Act] are met, the Commonwealth may not raise
the defense of sovereign immunity when a
plaintiff alleges, for example, that a substance
or an object on Commonwealth realty was the
result of a defect in the property or in its
construction, maintenance, repair[,] or design.
Jones v. S[e.] P[a.] Transp[.] Auth[.], . . . 772 A.2d 435,
443-[]44 ([Pa.] 2001) (internal citations, alterations, and
quotation marks omitted). For an injury to be caused by a
“dangerous condition of the real estate” and fall within the
real estate exception, the actual defect or flaw in the real
estate itself must cause the injury, not some substance on
the real property such as ice, snow, grease, or debris,
unless such substances are there because of a design or
construction defect.
Raker v. Pa. Dep’t of Corr., 844 A.2d 659, 662 (Pa. Cmwlth. 2004) (emphasis
added).
6
Here, Johnson averred:
[Johnson’s] slip and fall accident was caused exclusively
and solely by [DOC’s] negligence and carelessness in that:
(a) [DOC] caused or permitted an unreasonable risk of
injury to [Johnson] by failing to repair the leaky roof that
caused water to dangerously pool or collect onto the floor
of [the] JB Unit;
(b) [D]espite recognizing the need for roofing repairs,
[DOC] failed to mitigate the dangerous condition posed by
the wet slippery concrete floor that existed when the roof
leaked water onto the floor of [the] JB Unit; and
(c) [DOC] failed to take precautionary measures despite
being on notice of the danger that the wet floor posed to
[Johnson], other inmates, and staff walking on the wet
floor of [the] JB Unit at SCI-Mahanoy.
Complaint ¶ 12.
In its August 22, 2022 order, the trial court denied Johnson’s IFP
Application and dismissed the Complaint, declaring:
The test to determine if the Commonwealth is protected
from liability by sovereign immunity for a negligent act is
whether the Commonwealth employees were acting
within the scope of their employment; “the alleged act
which cause[d] the injury was negligent and damages
would be recoverable but for the availability of the
immunity defense”; and “the act fits within one of the . . .
exceptions to sovereign immunity[.]”[] See Garcia [v.
Howell, (Pa. Cmwlth. No. 800 C.D. 2018, filed Aug. 23,
2019)].[4] The exception to the immunity defense as set
forth in [Section 8522 of the Act] do[es] not apply to a
slip and fall in the [JB Unit] of . . . SCI-Mahanoy.
Trial Ct. Order at 1-2 (emphasis added).
4
This Court’s unreported memorandum opinions may be cited “for [their] persuasive
value, but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a). Garcia was cited for its persuasive value.
7
However, in Berhane v. Southeastern Pennsylvania Transportation
Authority, 646 A.2d 1268 (Pa. Cmwlth. 1994), this Court reversed the trial court’s
grant of summary judgment where the plaintiff alleged that she was injured when
she slipped and fell on “water accumulated because of a faulty design or maintenance
over the areas directly over the subway stairway and landing so that there was water
seepage and leakage into the stairway and landing.” Id. at 1269 (quotation marks
omitted). The Berhane Court held:
[W]e will permit the imposition of liability if there is an
allegation and proof that the substance on the . . . real
estate was caused to be on the real estate because of an
improper design, construction, deterioration, or inherent
defect of the real estate itself. In those cases, the
dangerous condition emanates from the real estate itself.
Under such circumstances, a jury could find that the
dangerous condition derived or originated from and had as
its source the reality.
Id. at 1270 (quoting Finn v. City of Phila., 645 A.2d 320, 325 (Pa. Cmwlth. 1994),
aff’d, 664 A.2d 1342 (Pa. 1995)). “This case fits squarely into that portion of the
language quoted above which permits the imposition of liability where there is an
allegation that the presence of the water was caused by improper design and
maintenance of the real estate itself.”5 Berhane, 646 A.2d at 1270.
5
Notably, in its 1925(a) Opinion, the trial court stated:
Upon further review[,] we recognize that the [August 22, 2022]
order was incorrect, in that [Johnson] did allege that he slipped and
fell on a wet floor at the J[]B[] Unit . . . [and] that the defect was
caused by a leaky roof causing water to dangerously pool or collect
onto the floor . . . . This [trial c]ourt mistakenly overlooked that
fact, and . . . should have granted the [IFP Application] . . .
pursuant to Raker v. P[ennsylvania] Department of Corrections, 844
A.2d 659 (Pa. Cmwlth. 2004) . . . . [T]he case should be remanded
to the [trial court] so that the [trial c]ourt may grant [Johnson’s IFP
Application].
O.R. Item 9 (1925(a) Op.) at 1-2 (emphasis added).
8
Based on this Court’s review, Johnson’s Complaint included all of the
elements for a negligence claim (i.e., duty, breach, causation, and damages) against
DOC, Fabrizio, and Fabian, and he pled his action such that it could fall under
Section 8522(b)(4) of the Act as “[a] dangerous condition of Commonwealth agency
real estate” (i.e., water caused by a leaking roof). 42 Pa.C.S. § 8522(b)(4). Thus, it
appears that Johnson could satisfy the immunity waiver requirements.
Because Johnson pled a viable negligence claim, his Complaint was not
frivolous,6 and the trial court erred by denying Johnson’s IFP Application and
dismissing Johnson’s Complaint pursuant to Civil Rule 240(j)(1). Accordingly, the
trial court’s order is vacated, and the matter is remanded to the trial court for further
proceedings consistent with this Opinion.
_________________________________
ANNE E. COVEY, Judge
6
Importantly, whether the roof’s design, construction, repair, and/or maintenance caused
water to leak onto the JB Unit floor, whether DOC or its employees were negligent, whether their
negligence caused Johnson’s injuries, and whether Johnson sustained damages and the amount
thereof, are facts Johnson must now prove in proceedings before the trial court.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Quentin Johnson, :
Appellant :
:
v. :
:
Pennsylvania Department of :
Corrections of the Commonwealth of :
Pennsylvania; Gregory A. Fabrizio, :
Facility Safety Manager; Charles : No. 981 C.D. 2022
Fabian, Facility Maintenance Manager :
ORDER
AND NOW, this 6th day of October, 2023, the Schuylkill County
Common Pleas Court’s (trial court) August 22, 2022 order is vacated, and the matter
is remanded to the trial court for further proceedings consistent with this Opinion.
Jurisdiction is relinquished.
_________________________________
ANNE E. COVEY, Judge