Opinion
No. 1557 C.D. 2013
03-07-2014
John Scott, Appellant v. Commonwealth of Pa., Dept. of Corrections, C.O. Prits
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Appellant John Scott (Scott), pro se, appeals from two orders of the Court of Common Pleas of Somerset County (trial court). The trial court's orders (1) sustained preliminary objections filed by the Department of Corrections (DOC) in response to a pleading Scott captioned as a "Petition for Review" (the Complaint), and (2) denied Scott's motion to amend the Complaint. We vacate the trial court's orders and remand the matter to the trial court for further proceedings.
Scott filed the Complaint with the trial court on or about January 4, 2012. In the Complaint, Scott averred that he had been incarcerated at a correctional institution within the State of Michigan in March 2010 when his radio was stolen from his cell. (Complaint ¶ 4.) The authorities in Michigan provided him with another radio to use until his was recovered. (Complaint ¶ 5.) The Complaint appears to indicate that Scott was returned to a Pennsylvania correctional institution—the State Correctional Institution at Somerset (SCI-Somerset) in March 2011. (Complaint ¶ 6.) During the process of returning to SCI-Somerset, he received his own radio and Michigan retained the one it had lent to him. (Id.) It appears that, upon his return to SCI-Somerset, DOC employees took Scott's radio, evaluated it, and returned to him. (Complaint ¶ 7.) Scott averred that Prits, a correctional officer at SCI-Somerset, entered his cell to conduct a search and took his radio to "R&D," where Prits opened and viewed the radio without Scott being present. (Complaint ¶ 8.) Scott averred that Prits returned to Scott's cell and told Scott that he "could let [Prits] have the radio or [Prits] was going to write [Scott] up." (Id.)
Scott averred that Prits filed a misconduct charge against Scott "in order to keep [Scott] from filing a grievance" relating to the radio. (Complaint ¶ 9.) Scott averred that Prits did not follow protocol. (Complaint ¶ 10.) Scott asserted that the proper protocol would have been for Prits to complete the "shake-down," presumably of Scott's cell, and then have Scott accompany Prits to "R&D" where the radio could be examined with Scott present. (Complaint ¶ 11.)
Scott pleaded other facts (not obviously relevant to his claims) concerning Prits' allegedly improper conduct, including that Prits takes a "property book" out of the "property room," (Complaint ¶ 12), and that whenever Prits "feels like it, he randomly pick[s] an inmate and confiscate[s] his property and give[s] it to one of his informants or places [it] somewhere in an area where prison staff is stationed," (Complaint ¶ 13). Scott averred that "[i]t is very convenient for [Prits] to just confiscate the property and give it away because he feels untouchable." (Complaint ¶15.)
Based upon these averments, Scott claims that Prits' act of confiscating his radio constitutes a conversion, which we view as a claim arising under the common law tort of conversion. Initially, it is important to note that Scott did not name Prits as a defendant in the Complaint. Rather, Scott named only the Commonwealth, SCI-Somerset, and Gerald Rozum, the Superintendent of SCI-Somerset, as defendants.
DOC filed preliminary objections in the nature of a demurrer, asserting that Scott failed to state a cause of action for conversion because Prits was acting within the scope of his employment and, consequently, DOC enjoys sovereign immunity from a law suit alleging an intentional tort. DOC also asserted factually that the "altered radio was contraband and that [Scott] had no right to possess the television."
We are uncertain as to what television DOC is referring, as Scott has not pleaded any facts regarding a television. Perhaps DOC meant to refer to the radio at issue.
Although Scott does not raise a claim under 42 U.S.C. § 1983, DOC's other preliminary objections raise a defense to a Section 1983 action with regard to Scott's claims against Superintendent Rozum. DOC asserted that Scott's claim against Rozum would fail under Section 1983, because Scott pleaded no facts indicating that Rozum had any personal involvement in the confiscation (or conversion) of Scott's property. DOC also objected to the Complaint based upon its factual allegation in the preliminary objections that the item taken was contraband. DOC also asserted that Scott's allegations that Prits' conduct violated DOC policies and DOC's Code of Ethics did not create for Scott a viable cause of action, contending that the adoption and execution of DOC policies constitute discretionary acts. Finally, DOC included a preliminary objection asserting that the Complaint did not state a claim under Section 1983 against either the Commonwealth or SCI-Somerset because neither are "persons" for the purpose of Section 1983 claims.
On February 1, 2012, only five days after DOC filed its preliminary objections, the trial court issued an order and memorandum opinion sustaining DOC's preliminary objections. The trial court accepted as fact DOC's averment in the preliminary objections that the radio was contraband. The trial court concluded that the defendants were entitled to sovereign immunity because government employees acting within the scope of their employment enjoy immunity from suit for intentional torts, such as conversion. The trial court also noted that Scott did not plead any facts suggesting Superintendent Rozum was involved in any way with the confiscation of Scott's radio.
On February 8, 2012, Scott filed a document captioned "Motion to Amend [the Complaint] And Brief in Support of Amendment Under Pa. R.Civ.P. 1028(c)(1)." (Motion to Amend (Certified Record Item No. 11).) The text of the document, however, also appears to be a response to DOC's preliminary objections. In this mixed filing, Scott sought to add Prits as a defendant, and, in response to DOC's preliminary objections, provided factual matters relating to some of the grounds DOC identified as a basis for dismissal. For example, Scott responded to DOC's demurrer relating to the failure of Scott to plead facts pertinent to Superintendent Rozum, stating that Rozum was part of the grievance procedure. Scott suggests that, based upon DOC policies, Rozum constituted the "second level" review of his grievance, and, thus, Rozum had knowledge of the alleged conversion. Scott includes other quasi-legal arguments in response to the preliminary objections and added certain factual allegations relative to Prits' alleged conduct: "Prits did act in a reckless manner and in a criminal manner when he took my radio and then made it to appear that the General Electric Super III Radio was altered and tampered with a misconduct that is breaking all rules conduct." (Motion to Amend p.2.)
According to the trial court's docket, Scott filed a notice of appeal with the Superior Court, which was docketed by the trial court on February 10, 2012. Shortly thereafter, the Superior Court, by letter (with a copy to Scott), returned the notice of appeal to the Prothonotary of the Court of Common Pleas of Somerset County because of an issue with the caption. On February 13, 2013, the trial court issued an order denying Scott's motion to amend and dismissing the matter with prejudice. The trial court, rather than permitting Scott to file an amended Complaint, concluded that
We note that the trial court's docket fails to include a reference to this order. Oddly, the copy of the order dated February 13, 2013, denying the motion to amend, appears to have a hand-written note under "distribution" that provides "2-15-12(1) one copy to; John Scott, pro se, Joseph Fulginiti, Esq., Assistant Counsel, PA DOC."
there are no new allegations of fact as to what occurred in the underlying "Petition." The original petition was dismissed based on [DOC]'s demurrer because the actions of the Officer were intentional acts. Certainly, Officer Prits was acting within the scope of his employment as a Corrections Officer in car[ry]ing out a [DOC] policy in confiscating the radio. Inasmuch as [Scott] seeks money damages in conversion, this is a civil action which is barred by sovereign immunity.The trial court also referenced the law commonly referred to as the Prison Litigation Reform Act (Act), which provides for the dismissal of prisoner litigation concerning prison conditions if an inmate fails to avail himself of all administrative remedies. The trial court appears to have raised the Act sua sponte, because we have found no place in DOC's brief addressing the Act. Scott filed an amended notice of appeal on March 8, 2013, and, on March 26, 2013, following correspondence from the Superior Court, Scott filed a second amended notice of appeal. On April 5, 2013, the trial court directed Scott to file a concise statement of errors complained of on appeal.
42 Pa. C.S. §§ 6601-6608. Section 3 of the Act, 42 Pa. C.S. § 6602(e)(2), permits the Commonwealth to raise affirmative defenses that may preclude the grant of relief. The failure to exhaust administrative remedies is such a defense. See Bussinger v. Dyne, 76 A.3d 137 (Pa. Cmwlth. 2013).
Moreover, raising the issue appears premature not only in light of the fact that DOC did not raise the Act, but also because, as an affirmative defense, DOC would properly raise the issue itself in new matter.
On May 6, 2013, the trial court re-issued its February 13, 2013 order and memorandum with corrections to typographical errors.
We believe that the Pennsylvania Rules of Civil Procedure govern the outcome in this matter: "A party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections." Pa. R.C.P. No. 1028(c)(1). In this case, Scott apparently was unaware that, after DOC filed its preliminary objections, he could, within twenty days of receiving the preliminary objections, file an amended complaint as of right. Although we recognize that pro se litigants sometimes make the smooth application of the rules of procedure difficult, in this case we believe that the trial court erred in not granting Scott's motion to amend, because it was filed within the twenty-day period when Scott had a right to amend as of course. Although the motion contained mixed responses and averments, it is clear that Scott intended to amend the Complaint by adding Prits as a defendant. This he had the right to do. He also had a right to add additional factual averments to the original Complaint. We do not believe that his lack of understanding of the rules of procedure should preclude consideration of an amended complaint in this case. Regardless of the manner in which Scott captioned his motion to amend, and despite the mixed averments in the motion, the trial court had the authority either to construe the facts Scott averred in the motion as an actual amendment to the Complaint or to advise Scott that he could file an amended complaint within the period allotted under the rules. The trial court acted with alacrity with regard to DOC's preliminary objections and could have acted with similar speed in an attempt to enable Scott to comply in proper conformity with the rules.
The trial court, upon receiving the motion could have alerted Scott that the form of his pleading was improper. Minimally, we view a certain degree of unfairness by virtue of the simple fact that Scott did request to add Prits as a defendant. Moreover, the trial court's decision sustaining DOC's demurrer in light of Scott's amendment naming Prits as a defendant places the complaint in a different light. As mentioned above, DOC's preliminary objections aver unsubstantiated facts. The trial court accepted these averments of facts, even though courts, in considering preliminary objections, are bound by the averments of fact in the plaintiff's complaint. DOC's allegations of additional facts in its preliminary objections constituted an improper speaking demurrer, and the trial court's acceptance of such was improper. Moreover, under Pa. R.C.P. No. 1028(c)(1), once an amended pleading is submitted, the preliminary objections become moot.
See Mobley v. Coleman, 65 A.3d 1048, 1053 (Pa. Cmwlth. 2013) (reversing trial court order sustaining preliminary objections where trial court looked to facts not pleaded in complaint).
We acknowledge that Scott's statement of errors complained of on appeal specifically includes only the following grounds: (1) the trial court erred because it failed to inform him regarding the proper form for his caption and advise him regarding the correct court procedure; (2) the trial court erred by failing to apprise Scott why his case was not included in (and in fact was removed by DOC from) a matter consolidating fourteen other cases involving alleged thefts by correctional officers of property of inmates returning from correctional facilities in Michigan; (3) the trial court erred by not conducting a hearing; (4) the trial court erred by not informing Scott of the status of the case for over one year, and then providing only notice that the case was dismissed; and, in general, (5) the trial court erred in concluding that sovereign immunity precluded Scott's lawsuit. Based upon the nature of Scott's pleading seeking to add Prits as a defendant and the apparent disregard for Scott's right to file an amended complaint within twenty days of DOC's preliminary objections, we conclude that the relief we are granting is appropriate despite the lack of a specific challenge to the failure to grant Scott's motion to amend, at least in part. --------
With regard to the trial court's conclusions on the merits, the trial court is correct in observing that Commonwealth employees acting within the scope of employment generally enjoy sovereign immunity. LaFrankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992); 1 Pa. C.S. § 2310. "Generally, sovereign immunity protects Commonwealth officials and employees acting within the scope of their duties from civil liability." Kull v. Guisse, 81 A.3d 148, 154 (Pa. Cmwlth. 2013). This protection extends to claims for intentional torts. Id. at 157. Thus, if a plaintiff can demonstrate that factual issues exist regarding the question of whether a Commonwealth employee's actions fall outside the scope of his employment, a jury or fact finder must determine whether the employee was acting within the scope of employment. Additionally, if it is clear that an employee was not acting within the scope of employment, the principles applicable to sovereign immunity no longer apply and the employee becomes subject to individual liability. 1 Pa. C.S. § 2310.
In this case, the trial court should not have accepted as true DOC's factual allegations in its preliminary objections that the radio was contraband. Nor could the trial court accept at face value the proposition that Prits did not "steal" the radio. The question of whether an employee is acting within the scope of employment is a fact-sensitive inquiry. Kull, 81 A.3d at 155. Indeed, our courts have generally concluded that the question of whether an employee was acting within the scope of employment is a question for a jury. Id. Discovery conducted during the course of litigation may ultimately demonstrate that no material issues of fact remain regarding the question of whether Prits was acting within the scope of his employment. The trial court, however, acted prematurely in sustaining DOC's preliminary objections, because the facts Scott has pleaded suggest that Prits did not appropriate the radio for the purpose of serving his employer, but rather for personal reasons. See Sanchez v. Montanez, 645 A.2d 383, 388 (Pa. Cmwlth. 1994).
Based upon the foregoing, we will vacate the trial court's orders sustaining DOC's preliminary objections and denying Scott's motion to amend and remand the matter to the trial court for proceedings consistent with this opinion.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 7th day of March, 2014, the orders of the Court of Common Pleas of Somerset County (1) sustaining the preliminary objections of the Department of Corrections and (2) denying Appellant John Scott's motion to amend are vacated and the matter is remanded to the trial court to permit Scott to file an amended complaint.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge