Opinion
No. 1243 C.D. 2012
05-15-2013
Ralph Roman, Appellant v. John Swartz and John Dick
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Ralph Roman (Roman), representing himself, appeals an order of the Court of Common Pleas of the 37th Judicial District of Pennsylvania (Forest County Branch) (trial court) that sustained the preliminary objection filed by the Department of Corrections on behalf of the named appellees, John Swartz and John Dick (Appellees), and dismissed Roman's complaint. The trial court determined Roman did not establish how his cause of action fell into one of the enumerated exceptions to sovereign immunity. Roman contends the trial court erred because the personal property exception to sovereign immunity applies to his negligence claim. Discerning no error, we affirm.
Appellees are employees of the Department of Corrections (DOC), State Correctional Institution - Forest. Appellees' first names are not "John." Rather, John Swartz's first name is "Todd," and John Dick's first name is "Robert." Tr. Ct., Slip Op., 8/9/12, at 1 n.2.
Roman is an inmate currently incarcerated at State Correctional Institution - Forest. Roman filed a complaint against Appellees, in their individual capacities, in the trial court seeking monetary damages and asserting one count of negligence. In the complaint, Roman alleged Appellees "entered [his] cell and took direct control and custody of [his] personal property." Original Record (O.R.), Item #1, at 1. Specifically, he claimed Appellees confiscated one .65 ounce pack of Bugler Cigarette Tobacco, eight .65 ounces packs of Kite Cigarette Tobacco, and 11 packs of Newport King Cigarettes (tobacco products) and refused to return them. Roman avers the "failure to return [his] personal property or to compensate [him] for these items constitutes negligence." O.R., Item #1, at 2.
Appellees filed a preliminary objection in the nature of a demurrer asserting Appellees are immune from suit and Roman failed to establish a cause of action for negligence, an intentional tort, or a civil rights claim. The trial court agreed and granted Appellees' preliminary objection and dismissed Roman's complaint. Roman now appeals.
In Pennsylvania, the affirmative defense of sovereign immunity may be raised by preliminary objections in the nature of a demurrer where that defense is "apparent on the face of the pleading." Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). In other words, it must be apparent on the face of the pleading that the cause of action does not fall within any of the statutorily defined exceptions to immunity. Id.
Our review of a trial court's order sustaining preliminary objections is limited to determining whether the trial court erred as a matter of law or abused its discretion. E. Lampeter Twp. v. Cnty. of Lancaster, 696 A.2d 884 (Pa. Cmwlth. 1987). In order for a trial court to sustain preliminary objections, it must appear with certainty the law will not allow recovery; any doubt must be resolved in favor of the non-moving party. Id. All well-pled facts in the complaint, and reasonable inferences arising from those facts, are accepted as true. Id. However, unwarranted inferences, conclusions of law, argumentative allegations or expressions of opinion need not be accepted. Myers v. Ridge, 712 A.2d 791 (Pa. Cmwlth. 1998).
Roman contends the trial court erred in sustaining Appellees' preliminary objection on the ground he did not establish how his cause of action fell within one of the exceptions to sovereign immunity. Roman asserts his negligence action falls within the personal property exception to sovereign immunity. He claims Appellees seized his tobacco products to "verify proof of purchase" but did not return these items or compensate him for their value. Appellant's Br. at 10. By failing to return the tobacco products or compensate him for these items, Roman contends Appellees' actions constitute negligence. Relying on Williams v. Stickman, 917 A.2d 915 (Pa. Cmwlth. 2007), Roman asserts his claim for the "loss" of his tobacco products, which occurred while in the care, custody and control of Appellees, falls within the personal property exception. Appellant's Br. at 9.
"[T]he Commonwealth, and its officials and employees acting within the scope of their duties, shall ... 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. Sovereign immunity is waived in certain limited circumstances. 42 Pa. C.S. §8522. In essence, sovereign immunity may be overcome where the party can establish: (1) a common law or statutory cause of action under which damages could be recoverable if not for the immunity defense, and (2) the alleged negligent act falls within one of the specifically enumerated exceptions provided by the General Assembly. Id.; LaChance v. Michael Baker Corp., 869 A.2d 1054 (Pa. Cmwlth. 2005).
To recover under a claim for negligence, a plaintiff must prove the following elements:
[T]he defendant owed a duty of 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. Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances. The mere occurrence of an accident does not establish negligent conduct. Rather, the plaintiff has the burden of establishing, by a preponderance of the evidence, that the defendant engaged in conduct that deviated from the general standard of care expected under the circumstances, and that this deviation proximately caused actual harm.Martin v. Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (1998) (citations omitted).
The alleged negligent act must fall within one of the specifically enumerated exceptions to sovereign immunity set forth in 42 Pa. C.S. §8522. The exception of relevance here is the personal property exception. 42 Pa. C.S. §8522(b)(3). This exception provides the defense of sovereign immunity shall not be raised to claims for damages caused by the "care, custody or control of personal property in the possession or control of Commonwealth parties." Id. The personal property exception applies to claims made by inmates for negligent damage to inmate personal property while the property is in the possession of Commonwealth parties. Williams.
In Williams, an inmate filed suit when his personal television set was seriously damaged while in the possession of state corrections officers. The inmate alleged negligence and an intentional tort. As for the negligence claim, the inmate set forth a claim for damages to his television set caused by the negligent care of the television set while in the possession of Commonwealth parties. Based on the plain language of Section 8522(b)(3), sovereign immunity did not bar the inmate's claim. However, as for the intentional tort count, sovereign immunity barred the claim because when an employee of a Commonwealth agency acts within the scope of his duties, "the Commonwealth employee is protected by sovereign immunity from the imposition of liability for intentional tort claims." Id. at 917 (quoting La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992)).
The facts in Williams are different than those alleged in Roman's complaint. Roman does not allege any facts to show Appellees acted negligently. Rather, he alleges Appellees intentionally and deliberately entered his cell, confiscated his tobacco products, and refused to return them. Such conduct does not constitute a negligent act within the personal property exception. Indeed, conversion is an intentional tort, and it is distinguished from the tort of negligent disposition, where the disposition or harm to the chattel is not intentional. See 2 Summary of Pennsylvania Jurisprudence 2d §14.3 (2005 ed.). Consequently, Williams does not apply.
Furthermore, employees of the state do not lose their immunity for intentional torts, provided they are acting within the scope of employment. See Williams; La Frankie. Roman did not allege Appellees acted outside the scope of their employment.
Roman maintains Appellees took possession of the tobacco products to verify proof of purchase. Appellees assert they seized the tobacco products as contraband. Regardless of the reason for the taking, Appellees, who are corrections officers, acted within the scope of their duties in entering Roman's cell and removing the tobacco products. Roman does not allege otherwise.
Even if Roman alleged Appellees acted outside the scope of employment, sovereign immunity remains a bar provided the allegations center around their duties or powers as employees. See La Frankie v. Miklich, 618 A.2d 1145 (Pa. Cmwlth. 1992) (despite allegations trooper acted outside his employment, he remained an employee acting within the course and scope of his employment because his duties involved investigation, arresting, and prosecuting cases).
For these reasons, we conclude the trial court properly sustained Appellees' demurrer. Accordingly, we affirm.
To the extent Roman seeks the return of or compensation for his tobacco products, he can file a grievance pursuant to DOC Policy DC-ADM 804. This grievance process is constitutionally adequate. Waters v. Dep't of Corr., 509 A.2d 430 (Pa. Cmwlth. 1986) (providing grievance process is an adequate legal remedy for the denial or destruction of property). --------
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 15th day of May, 2013, the order of the Court of Common Pleas of the 37th Judicial District of Pennsylvania (Forest County Branch) is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge