J-S63029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DENNIS MCKEITHAN                        :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 CASEY N. THORALEY, MUHAMMAD G.          :   No. 646 WDA 2018
 NAJI                                    :

                  Appeal from the Order January 31, 2018
     In the Court of Common Pleas of Clearfield County Civil Division at
                            No(s): 2018-9-MD


BEFORE:    OTT, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                        FILED OCTOBER 18, 2018

     Dennis McKeithan (Appellant) appeals pro se from the order dismissing

his petition for writ of habeas corpus (petition). Upon review, we reverse and

remand.

     Appellant is incarcerated.     Appellant filed his petition naming as

defendants, Dr. Muhammad G. Naji and Physician’s Assistant, Casey N.

Thoraley (Appellees).   Appellees are medical providers at SCI Houtzdale.

Appellant asserted that upon being transferred from SCI Albion to SCI

Houtzdale, Appellees refused to treat his chronic eczema in the manner he

had been treated during the prior 10 years, and sought “reinstatement of his

longstanding treatment for his eczema skin disease.”

     On January 31, 2018, the trial court dismissed Appellant’s petition as

frivolous. The order states:


____________________________________
* Former Justice specially assigned to the Superior Court.
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              NOW, this 31st day of January, 2018, the Court being in
       receipt of Plaintiff’s Petition for Writ of Habeas Corpus and
       Exhibits, as well as Petition to Proceed in Forma Pauperis; Plaintiff
       being an inmate at SCI Houtzdale and has brought this action
       against SCI Houtzdale Dr. Muhammad G. Naji and Physician’s
       Assistant Casey N. Thoraley alleging inadequate medical care; the
       Plaintiff having failed to attach or provide the required Certificate
       of Merit for violation of medical standard of care; it is the ORDER
       of this Court that the Plaintiff’s Petition be and is hereby
       DISMISSED, with prejudice, as frivolous pursuant to Pa.R.C.P.
       240(j).

Order, 1/31/18.

       Appellant filed this appeal.1 He raises the following issues:

       1. Whether [the] Common Pleas judge was in error in denying
          [Appellant’s] petition for habeas by dismissal without a hearing
          on facts and evidence presented in habeas petition?

       2. Did [Appellant] present a claim for which relief could be
          granted?

       3. Whether the Common Pleas judge abused his discretion.

Appellant’s Brief at 5.

       Appellant argues that upon being transferred from SCI Albion to SCI

Houtzdale in July of 2017, the medical professionals at SCI Houtzdale – the

Appellees – refused to facilitate the medical “treatment plan” for his eczema,



____________________________________________


1 Although the appeal is time-stamped March 26, 2018, Appellant indicated
on the Notice of Appeal that he mailed it on February 22, 2018. Therefore,
consistent with the prisoner mailbox rule, we deem the appeal timely. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (appeal by a pro
se prisoner is deemed filed on date the prisoner deposits the appeal with
prison authorities and/or places it in the prison mailbox).




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i.e., a monthly bottle of ammonium lactate lotion, which prison medical staff

had provided to Appellant at SCI Albion since September of 2007.             See

Appellant’s Brief at 6-8.2      Appellant asserts that prior to his arrival at SCI

Houtzdale, the treatment “was ordered 6 months at a time, where every 30

days [he] would exchange an empty bottle for a new one.”            Id. at 6. He

claims that upon being transferred to SCI Houtzdale, “he was told that medical

discontinued his treatment.” Id. at 7. Appellant then “put in a request to

medical” but was told “we didn’t write that order.” Id. Appellant avers that

thereafter, Appellees told him “this is Houtzdale” and they would not “re-order

treatment for his eczema.” Id.

        At the outset, we note that although the trial court on May 16, 2018

ordered Appellant to file a Rule 1925(b) concise statement of matters

complained of on appeal, and Appellant complied, the trial court inexplicably

responded by correspondence to this Court dated June 11, 2018, stating that

“I am writing to advise that I will be submitting no further Opinion in this

matter.” The record does not contain any opinion by the trial court.          The

remedy for a trial court’s non-compliance with Pa.R.A.P. 1925(a) is remand to

the trial court with directions that an opinion be prepared and returned to the

appellate court.     See Commonwealth v. Hood, 872 A.2d 175, 178 (Pa.

Super. 2005) (citation omitted). The absence of a trial court opinion “poses


____________________________________________


2   Appellees have not filed a responsive brief.


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a substantial impediment to meaningful and effective appellate review,” and

is critical to this Court’s “thorough and proper review on appeal.”

Commonwealth v. McBride, 957 A.2d 752, 758 (Pa. Super. 2008).

      Here, Appellant challenges the trial court’s order which dismissed his

petition for failing to attach a certificate of merit and being frivolous. Order,

1/31/18. Pennsylvania Rule of Civil Procedure 1042.3 requires a plaintiff to

file a certificate of merit in a professional liability action in which it is alleged

that a licensed professional deviated from the acceptable standard of care.

See Anderson v. McAfoos, 57 A.3d 1141, 1153 (Pa. 2012). In this case,

Appellant did not file a complaint alleging professional liability. Rather, he

filed a writ of habeas corpus alleging that he received inadequate medical care

that was “in violation of and subject[ed Appellant] to cruel and unusual

treatment in violation of the 8th Amend[ment].”                Petition, 12/28/17.

Appellant did not seek damages.        His petition clearly requested injunctive

relief, specifically, “an injunction ordering the reinstatement of petitioner’s

long standing treatment for his eczema skin disease.”                See id.      In

Commonwealth ex rel. Bryant v. Hendrick, 280 A.2d 110 (Pa. 1971), our

Supreme Court extended the writ’s scope to allow it to be employed to secure

relief from prison conditions constituting cruel and unusual punishment. Id.

at 112-13. Regarding such a claim:

      To succeed, a claim that prison conditions violate the Eighth
      Amendment must satisfy both an objective and subjective
      requirement—the conditions must be “sufficiently serious” from an
      objective point of view, meaning that they involve denial of the

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      minimum civilized measure of life’s necessities, and the plaintiff
      must demonstrate that prison officials acted subjectively with
      “deliberate indifference.” Farmer [v. Brennan, 511 U.S. 825,
      832 (1994)]; Rhodes [v. Chapman, 452 U.S. 337, 347 (1981)].
      Deliberate indifference exists if an official “knows of and
      disregards an excessive risk to inmate health or safety; the official
      must both be aware of facts from which the inference could be
      drawn that a substantial risk of serious harm exists, and he must
      also draw the inference.” Farmer, 511 U.S. at 837.

Neely v. Department of Corrections, 838 A.2d 16, 20 n.6 (Pa. Cmwlth.

2003).

      Instantly,   rather   than   making   a   finding   regarding   deliberate

indifference, the trial court concluded that Appellant’s petition was “frivolous

pursuant to Pa.R.C.P. 240(j).”     Rule 240 addresses in forma pauperis status

and states:

      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
      the allegation of poverty is untrue or if it is satisfied that the
      action, proceeding or appeal is frivolous.

Pa.R.C.P. 240.     Our review of the record reveals no basis upon which to

conclude that Appellant’s action is or is not frivolous. Appellees have filed no

pleadings and the trial court did not schedule or hear argument or conduct an

evidentiary hearing.

      Based on the foregoing, we reverse the trial court’s order. Appellant

was not required to attach or provide a certificate of merit to his petition for

writ of habeas corpus. Appellees have not filed any pleadings or otherwise

responded to Appellant’s petition. The record is devoid of any pleadings or

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evidence to indicate whether or not Appellant’s action is frivolous, whether his

condition is “sufficiently serious,” and whether Appellees demonstrated

“deliberate indifference.”   As noted, the trial court failed to author a Rule

1925(a) opinion. Accordingly, we remand for further proceedings consistent

with this memorandum. Appellees shall have the opportunity to respond to

Appellant’s petition, and the trial court may conduct an evidentiary hearing

and/or argument.    In the event that either party seeks to appeal the trial

court’s disposition following remand, such appeal shall be taken to the

Commonwealth Court, which is the proper court for the appeal of a trial court’s

disposition of an inmate claim of inadequate medical care.          See, e.g.,

Williams v. Syed, 782 A.2d 1090 (Pa. Cmwlth. 2001); Kretchmar v.

Department of Corrections, 831 A.2d 793 (Pa. Cmwlth. 2003). Finally, if

an appeal is taken, we emphasize that the trial court shall, if the reasons for

its decision are not clearly of record, file a Pa.R.A.P. 1925 opinion to ensure

meaningful and effective appellate review.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/18/2018


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