Opinion
No. 1076 C.D. 2011
06-05-2012
Thomas Johnson, Appellant v. David A. Varano, John Doe and GoodSource
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Thomas Johnson (Johnson) appeals from the May 10, 2011, order of the Court of Common Pleas of Northumberland County (trial court), denying his petition to proceed in forma pauperis and dismissing his complaint against GoodSource Solutions, Inc. (GoodSource) as frivolous. We affirm.
The following facts are garnered from the original record, a prior, unpublished decision of this Court, and the trial court's statement in lieu of formal opinion. Johnson had been incarcerated at the State Correctional Institution (SCI)-Coal Township. On May 1, 2009, the menu at SCI-Coal Township reflected an evening meal consisting of steak and cheese hot pockets, a beef product. After he began eating his meal, Johnson, a Muslim, felt ill and discovered that he had consumed a ham and cheese hot pocket, a pork product. Being of the Muslim faith, Johnson considers consumption of pork a violation of Muslim law. Johnson immediately informed the kitchen supervisor that the hot pocket he received was made from pork and he received a new tray. However, this new tray also contained a ham and cheese hot pocket. Johnson and other Muslim inmates questioned the kitchen staff about the lack of a sign on the serving window that pork products were being served, which was the normal procedure, and the kitchen staff responded that they intended to serve steak and cheese hot pockets, not ham and cheese.
Johnson v. Varano, Pa. Cmwlth., No. 714 C.D. 2010, filed March 9, 2011.
Johnson has since been transferred to SCI-Forest.
Johnson filed a grievance with the officials at SCI-Coal Township. A grievance officer denied the grievance, indicating that prison's food service department did not purposely or intentionally serve Johnson a hot pocket with pork. The grievance officer noted that several ham and cheese hot pockets were improperly packaged in a box of steak and cheese hot pockets. Johnson appealed, but David A. Varano (Varano), the Superintendent at SCI-Coal Township, refused to take any action other than addressing the issue with the vendor, GoodSource. Similar to the grievance officer, the Superintendent indicated that the hot pockets were not packaged properly by the manufacturer.
Johnson thereafter filed a complaint with the trial court naming Varano, the kitchen supervisory staff at SCI-Coal Township, and GoodSource as defendants. Johnson also filed a petition to proceed in forma pauperis. Johnson alleged that the defendants' acts, or lack thereof, resulted in a violation of his constitutional right to freedom of religion under the First Amendment to the United States Constitution. Johnson also alleged that the actions of GoodSource, or the lack thereof, "constitutes a state tort claim." (Complaint at Paragraph 34.) Johnson sought both compensatory and punitive damages from the defendants. Initially believing that Johnson was proceeding under federal law, the trial court issued an order dated January 29, 2010, concluding that it was not an appropriate forum and directing Johnson to file his complaint in federal court.
However, by order dated March 17, 2010, the trial court granted a motion for reconsideration filed by Johnson, concluding that it did in fact have jurisdiction because a claim under 42 U.S.C. §1983 may be brought in state court. Nevertheless, in this same order, the trial court concluded that further review of Johnson's complaint required dismissal under Pa. R.C.P. No. 240(j) as a frivolous action. The trial court held that even if Johnson had set forth the requisite elements to state a claim under 42 U.S.C. §1983, an isolated incident whereby Johnson was inadvertently exposed to, and consumed, pork at one meal did not raise a question of constitutional proportion. Johnson appealed to this Court.
Pa. R.C.P. No. 240(j) provides as follows:
If, simultaneous with the commencement of an action or proceeding...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...if the allegation of poverty is untrue or if it is satisfied that the action...is frivolous.
In an unpublished opinion filed March 9, 2011, this Court affirmed the trial court's order insofar as it dismissed the complaint against Varano and the kitchen supervisory staff at SCI-Coal Township, but vacated the order insofar as it dismissed the complaint against GoodSource and remanded the matter to the trial court for a determination of whether Johnson's complaint stated a cause of action in tort against GoodSource. Following remand, the trial court issued an order dated May 10, 2011, again dismissing Johnson's complaint as frivolous under Pa. R.C.P. No. 240(j). The trial court concluded that the allegations against GoodSource were insufficient to state a valid claim, i.e., they had no arguable basis either in law or fact. The trial court noted that the single-incident rationale applied to Varano and the kitchen supervisory staff also applied to GoodSource and, further, that Johnson failed to aver any facts in his complaint that GoodSource had any knowledge that its products were being served in a Pennsylvania prison or that Johnson was a foreseeable party. Johnson filed a notice of appeal with the trial court.
Johnson v. Varano, No. 714 C.D. 2010, filed March 9, 2011.
The trial court thereafter issued a statement in lieu of formal opinion further expounding upon its reasons for dismissing Johnson's complaint against GoodSource as frivolous. The trial court explained that while Johnson asserted that GoodSource knew or should have known that the hot pockets were either mislabeled or packaged incorrectly, he averred no facts in his complaint to support these assertions. Additionally, the trial court noted that the cause of Johnson's purported illness would require expert testimony and that Johnson did not aver any facts to support a causal link between any illness and a defect in GoodSource's distribution or delivery of the hot pockets to a Pennsylvania prison. Further, the trial court indicated that it was unclear from Johnson's complaint whether GoodSource was the manufacturer of the hot pockets, since Johnson only pled that GoodSource had a contract with the prison to provide food.
On appeal to this Court, Johnson argues that the trial court erred in dismissing his complaint against GoodSource as frivolous under Pa. R.C.P. No. 240(j). We disagree.
Our scope of review of the trial court's decision is limited to a determination of whether constitutional rights were violated, or whether the trial court abused its discretion or committed an error of law. Brown v. Beard, 11 A.3d 578 (Pa. Cmwlth. 2010), appeal denied, ___ Pa. ___, ___ A.3d ___ (No. 559 WAL 2011, filed March 19, 2012).
As noted above, Pa. R.C.P. No. 240(j) permits a court to dismiss any action that is frivolous. The comments to this rule provide that a frivolous action or proceeding is one that lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319 (1990) (a complaint alleging that prison officials violated an inmate's Fourteenth Amendments rights by transferring him to a less desirable cell house was frivolous); Robinson v. Pennsylvania Board of Probation and Parole, 525 Pa. 505, 582 A.2d 857 (1990) (an appeal filed nine months after the appeal period had expired and containing no justification for its untimeliness was frivolous). Additionally, this Court has previously held that an action is frivolous under Pa. R.C.P. No. 240(j), if, on its face, it does not set forth a valid cause of action. Bailey v. Wakefield, 933 A.2d 1081 (Pa. Cmwlth. 2010) (a complaint in mandamus which sought to direct prison officials to perform discretionary acts was frivolous); Gay v. Pines, 835 A.2d 402 (Pa. Cmwlth. 2003) (a mandamus complaint that failed to plead any facts or cite any law that established a duty on the named defendants was frivolous).
In the present case, Johnson sets forth the following allegations against GoodSource:
7. Defendant(s), [sic] GoodSource is contracted to the Pa. Dept. of Corrections to provide food for service to state prisoners.(Johnson's Complaint at Paragraphs 7, 22-24, 28-29.)
...
22. Defendant GoodSource by and through its President and CEO: Craig Shugert is responsible for the content of its food stuffs.
23. Defendants [sic] GoodSource by and through its CEO knew or should have known that they mis-labeled or mis-packaged some of its beef hot pockets as pork.
24. Defendant GoodSource, by and through its CEO should have notified all of its customers that it had mis-labeled or mis-packaged some of its pork hot pockets as beef.
...
28. The acts or lack thereof on the part of GoodSource did violate this Plaintiff's U.S. Constitutional rights under the First Amendment freedom of religion.
29. The acts or lack thereof on the part of GoodSource caused this Plaintiff to violate Muslim law.
As we noted in our previous remand decision, it appears that Johnson is alleging a tort claim against GoodSource founded on negligence. The basic elements of any negligence action are: 1) the existence of a duty on the part of the defendant; 2) a breach of that duty; 3) a causal connection between the breach and an injury to the plaintiff; and 4) actual damages. Wilson v. Philadelphia Housing Authority, 735 A.2d 172 (Pa. Cmwlth. 1999). Our Supreme Court has described the duty of care owed to a plaintiff as the primary element of any negligence action. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270 (2005). The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Id.
Moreover, section 402B of the Restatement (Second) of Torts addresses a seller's misrepresentation to a consumer, and states:
One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though (a) it is not made fraudulently or negligently, and (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.Restatement (Second) of Torts §402B.
We agree with the trial court that Johnson's complaint failed to plead sufficient facts to support a state tort claim. Initially, we note that Johnson's complaint fails to assert that GoodSource is the manufacturer of hot pockets or that GoodSource was responsible for the actual packaging of the hot pockets. Additionally, Johnson's complaint failed to aver any facts to support his allegation that GoodSource knew or should have known that the hot pockets were mislabeled or packaged incorrectly or to establish a causal link between GoodSource and his purported illness in 2009. Indeed, as the trial court noted, it is unclear how Johnson would be able to establish a causal connection without expert testimony or establish that the hot pockets were mislabeled or packaged incorrectly when presumably they were no longer in the packaging by the time he received them. Furthermore, as the trial court noted in its May 10, 2011, order, Johnson failed to aver any facts in his complaint that he was a foreseeable party that would be consuming hot pockets. Thus, the trial court did not err in dismissing Johnson's complaint against GoodSource as frivolous under Pa. R.C.P. No. 240(j).
Johnson attached a label from a box of hot pockets to his brief to this Court. However, this label was not attached to Johnson's original complaint and, hence, will not be considered by this Court. Dwight v. Girard Medical Center, 623 A.2d 913 (Pa. Cmwlth. 1993) (appellate court is bound by certified record on appeal and may not consider auxiliary information appended to a brief). Even if we were to consider the same, we note that the label only identifies GoodSource as the distributor, not the manufacturer, of the hot pockets. --------
Accordingly, the order of the trial court is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 5th day of June, 2012, the order of the Court of Common Pleas of Northumberland County, dated May 10, 2011, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge