        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Owens,                              :
                                           :
                    Appellant              :
                                           :   No. 2624 C.D. 2015
             v.                            :   Submitted: August 19, 2016
                                           :
Commonwealth of PA,                        :
Department of Corrections                  :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                  FILED: September 23, 2016


             This matter is an appeal from an order of the Court of Common Pleas
of Schuylkill County (trial court) dismissing a pro se action filed by Steven Owens
(Inmate), an inmate incarcerated in the State Correctional Institution (SCI) at
Mahanoy (SCI-Mahanoy), against the Department of Corrections (DOC) and ten
other defendants. The trial court dismissed the action in its entirety sua sponte as
frivolous pursuant to Rule 240(j)(1) of the Pennsylvania Rules of Civil Procedure.
For the reasons set forth below, we reverse the trial court’s dismissal of Inmate’s
claims against three of the defendants and remand the claims against those
defendants for further proceedings. With respect to the other eight defendants, we
affirm the trial court’s dismissal of the complaint against them, but on grounds
different from those relied on by the trial court.
             On October 2, 2015, Inmate filed a petition to proceed in forma
pauperis and a complaint seeking damages for the loss of his “brand new
Timberland boots.” (Complaint ¶¶23-35, 53-68.) Inmate named as defendants
DOC, the Commonwealth, the correctional facility SCI-Mahanoy, and eight DOC
employees, SCI-Mahanoy corrections officers D. Rakus, Sergeant Shuluga, and
Lieutenant W. Wagner, SCI-Mahanoy Superintendent John Kerestes, SCI-
Mahanoy Deputy Superintendents Hugh Beggs and Michael Vuksta, SCI-Mahanoy
Unit Manager Muick, and DOC Chief Grievance Officer Dorina Varner.1 (Id. ¶¶4-
14.)
             In his complaint, Inmate alleges that he was transferred from SCI-
Smithfield to SCI-Mahanoy on October 24, 2014 and that the property inventory
from that transfer shows that he had the boots when he arrived at SCI–Mahanoy.
(Complaint ¶¶17-22 & Ex. A.) Inmate alleges that the boots were in his possession
until February 7, 2015, when he was transferred to the SCI-Mahanoy Restricted
Housing Unit (RHU), that defendants Rakus and Shuluga secured his cell and
packed his belongings, and that the boots were missing on February 26, 2015,
when Inmate, while still in the RHU, was first permitted to inspect those
belongings and an inventory was done. (Id. ¶¶23-33 & Ex. B.) Inmate filed a
grievance seeking return of the boots if they were found or the $92.65 cost of the
boots if they were not found. (Id. ¶35 & Ex. C.)          Inmate alleges that defendant
Wagner denied his grievance, that he appealed the denial through all stages of the
grievance appeal process, and that defendants Kerestes and Varner denied those
appeals. (Id. ¶¶38, 42-43, 45, 47 & Exs. E-J.)
1
  The full names of defendants Rakus, Shuluga, Wagner, and Muick do not appear in the
complaint or elsewhere in the record. Defendant Varner is named in the Complaint as “Dorina
Verna,” but the documents attached to the Complaint indicate that her name is Varner.


                                            2
             On October 19, 2015, before service on any defendant was permitted,
the trial court denied the petition to proceed in forma pauperis and dismissed the
complaint as frivolous, on the ground that the action was barred in its entirety by
sovereign immunity because Inmate’s claims did not fall within any of the
exceptions to sovereign immunity under 42 Pa. C.S. § 8522(b). (10/19/15 Trial
Court Order; Trial Court Opinion.) Inmate timely appealed the dismissal to this
Court. Our review of the trial court’s sua sponte dismissal of this action is plenary.
McCool v. Department of Corrections, 984 A.2d 565, 568 n.4 (Pa. Cmwlth. 2009).
             Under Rule of Civil Procedure 240(j)(1), where “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.” Pa. R.C.P. No. 240(j)(1). In addition, a
trial court may dismiss an inmate’s action against prison officials “at any time,
including prior to service on the defendant, if the court determines” that the action
“is frivolous or malicious or fails to state a claim upon which relief may be granted
or the defendant is entitled to assert a valid affirmative defense, including
immunity, which, if asserted, would preclude the relief.” 42 Pa. C.S. § 6602(e).
The trial court, however, erred in concluding that Inmate’s claims are barred in
their entirety by sovereign immunity.
             Suits against the Commonwealth and its agencies and employees are
barred by sovereign immunity except to the extent that the General Assembly has
specifically waived that immunity. 1 Pa.C.S. § 2310; Tork-Hiis v. Commonwealth,
735 A.2d 1256, 1258 (Pa. 1999); Russo v. Allegheny County, 125 A.3d 113, 116
(Pa. Cmwlth. 2015). Section 8522 of the Judicial Code grants a limited waiver of
sovereign immunity for negligence claims against Commonwealth agencies and


                                          3
employees where the claim is one for which damages would be recoverable against
a non-government defendant and the negligent act falls within one of the nine
categories for which sovereign immunity is waived by Section 8522(b). 42 Pa.
C.S. § 8522(a); Dean v. Department of Transportation, 751 A.2d 1130, 1132 (Pa.
2000); McCool, 984 A.2d at 570.
            Inmate argues that his complaint alleges a claim that falls within the
care, custody or control of personal property exception to sovereign immunity set
forth in Section 8522(b)(3). We agree. Section 8522(b)(3) waives sovereign
immunity

            for damages caused by:
                         *             *                *
            (3) Care, custody or control of personal property.--The care,
            custody or control of personal property in the possession or
            control of Commonwealth parties, including Commonwealth-
            owned personal property and property of persons held by a
            Commonwealth agency, except that the sovereign immunity
            of the Commonwealth is retained as a bar to actions on claims
            arising out of Commonwealth agency activities involving the
            use of nuclear and other radioactive equipment, devices and
            materials.
42 Pa. C.S. § 8522(b)(3) (emphasis added). Claims by an inmate for loss of his
personal property while it was under the care, custody or control of prison
employees are claims for damages caused by the care of personal property in the
possession or control of Commonwealth parties. Williams v. Stickman, 917 A.2d
915, 918 (Pa. Cmwlth. 2007); see also Palmer v. Doe, (Pa. Cmwlth., No. 2451
C.D. 2015, filed May 5, 2016), slip op. at 8-9, 2016 WL 2587417 at *3-*4;
Samuels v. Walsh, (Pa. Cmwlth., No. 318 C.D. 2014, filed Nov. 17, 2014), slip op.




                                        4
at 4-6, 2014 WL 10298879 at *2-*3.2 Therefore, as defendants acknowledge in
their brief, actions for damages based on negligence in the prison employees’
handling of an inmate’s personal property that is under their care, custody or
control are not barred by sovereign immunity. Williams, 917 A.2d at 918; Palmer,
slip op. at 8-9, 2016 WL 2587417 at *3-*4; Samuels, slip op. at 4-6, 2014 WL
10298879 at *2-*3.3
               Inmate’s complaint alleges that defendants Rakus and Shuluga, DOC
employees, secured his cell and packed his belongings when he was transferred to
the RHU and alleges that his boots were lost after defendants Rakus and Shuluga
undertook this responsibility for care of Inmate’s personal property. (Complaint
¶¶23-31, 53-54, 61, 63-65.) Such allegations are sufficient to state a cause of
action against defendants Rakus and Shuluga, and defendant DOC as their
employer, for damages caused by negligence in the care, custody or control of
personal property that is not barred by sovereign immunity. Williams, 917 A.2d at
916-18 (reversing dismissal of claim for negligent damage to inmate’s television
while in prison officials’ possession); Palmer, slip op. at 9-11, 2016 WL 2587417
at *4-*5 (reversing dismissal of negligence claim for loss of inmate’s desk lamp

2
  Palmer, Samuels, and Roman v. Swartz, (Pa. Cmwlth., No. 1243 C.D. 2012, filed May 15,
2013), 2013 WL 3982813, Mercaldo v. Kauffman, (Pa. Cmwlth., No. 1333 C.D. 2015, filed
March 31, 2016), 2016 WL 1259563, and Fauber v. Fetterolf, Harlow & Wetzel, (Pa. Cmwlth.,
No. 1856 C.D. 2013, filed June 18, 2014), 2014 WL 2804348, discussed below, are unreported
decisions. These decisions are therefore not binding precedent, but are considered by the Court
for their persuasive value. 210 Pa. Code § 69.414(a).
3
  The trial court based its conclusion that the personal property exception did not apply on this
Court’s statement in Pennsylvania State Police v. Klimek, 839 A.2d 1173 (Pa. Cmwlth. 2003)
that the personal property itself must cause and not merely facilitate the injury. That requirement,
however, exists only where the plaintiff seeks damages for an injury separate and distinct from
the property in the Commonwealth’s care, custody or control and has no applicability where, as
here, the injury is the loss of the personal property itself. Williams, 917 A.2d at 918 n.2.


                                                 5
and typewriter ribbons that prison officials failed to secure when inmate was
placed in RHU); Samuels, slip op. at 7-10, 2014 WL 10298879 at *4-*5 (reversing
dismissal of negligence claim for loss of inmate’s legal documents and other
personal property that prison officials failed to secure when inmate was placed in
RHU). Indeed, this case is virtually indistinguishable from the claims in Palmer
and Samuels that this Court held were not barred by sovereign immunity.
             Defendants argue that the trial court’s dismissal of Inmate’s complaint
can be sustained on the ground that Inmate asserts an intentional tort. Intentional
tort claims are barred by sovereign immunity and the exception to sovereign
immunity under Section 8522(b)(3) for damage to personal property does not apply
to intentional damage to personal property. Williams, 917 A.2d at 917; La Frankie
v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992) (en banc); see also Roman v.
Swartz, (Pa. Cmwlth., No. 1243 C.D. 2012, filed May 15, 2013), slip op. at 4-5,
2013 WL 3982813 at *2-*3. Inmate’s complaint, however, does not plead an
intentional tort claim. Rather, it alleges that defendants’ conduct that caused the
loss of his boots was negligent, and does not make any allegations that defendants
intentionally seized the boots as contraband or intentionally lost or destroyed the
boots. (Complaint ¶¶23-31, 53-54, 58-59, 61, 63-65.) Because Inmate’s complaint
states negligence claims against defendants DOC, Rakus, and Shuluga for the loss
of Inmate’s boots that are not barred by sovereign immunity, the trial court erred in
dismissing the action in its entirety.
             The fact that this action is not wholly frivolous and cannot be
dismissed in its entirety at this stage of the proceedings does not mean that it must
proceed as to all eleven defendants or on all claims for relief pleaded by Inmate. A
court may properly dismiss as frivolous claims that are legally insufficient or are


                                         6
against defendants as to whom the complaint fails to state any cause of action, even
if the complaint is not barred in its entirety. Williams, 917 A.2d at 917-18; Palmer,
slip op. at 5-15, 2016 WL 2587417 at *3-*6. This Court may affirm a lower
court’s dismissal of a claim on grounds different from those relied on by the trial
court. McCool, 984 A.2d at 570-72; Guy M. Cooper, Inc. v. East Penn School
District, 903 A.2d 608, 618 n.9 (Pa. Cmwlth. 2006).
             In addition to his claim for the loss of his boots, Inmate asserts a claim
that defendants improperly investigated and handled his grievance concerning the
missing boots and a claim for punitive damages. (Complaint ¶¶35-50, 57, 68(C).)
Both of these claims were properly dismissed as frivolous. The providing of a
prison grievance system does not confer constitutional rights on inmates
concerning the handling of grievances and no cause of action exists for improper
investigation or handling of an inmate grievance. Samuels, slip op. at 11-12, 2014
WL 10298879 at *6; Burnside v. Moser, 138 Fed. Appx. 414, 416 (3d Cir. 2005);
Wilson v. Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997), aff’d without op., 142 F.3d
430 (3d Cir. 1998). The law is also clear that the General Assembly’s waiver of
sovereign immunity applies only to claims for compensatory damages and that
claims for punitive damages against the Commonwealth and its agencies and
employees are barred.       42 Pa. C.S. § 8528(c); Feingold v. Southeastern
Pennsylvania Transportation Authority, 517 A.2d 1270, 1276-77 & n.8 (Pa. 1986).
             Inmate’s claims against defendants Commonwealth, SCI-Mahanoy,
Kerestes, Beggs, Vuksta, Wagner, Muick, and Varner are likewise frivolous. The
waiver of sovereign immunity in Section 8522 of the Judicial Code applies only to
claims against Commonwealth agencies and employees, and does not waive the
immunity of the Commonwealth itself. 42 Pa. C.S. §§ 8501, 8522; Tork-Hiis, 735


                                          7
A.2d at 1258; Russo, 125 A.3d at 118; Hall v. Acme Markets, Inc., 532 A.2d 894,
897 (Pa. Cmwlth. 1987). Inmate’s claims against defendant Commonwealth are
therefore barred by sovereign immunity, notwithstanding the personal property
exception to sovereign immunity in Section 8522(b)(3). With respect to defendant
SCI-Mahanoy, Inmate has not alleged that it is anything other than the physical
correctional facility itself. (Complaint ¶6.) Inmate’s complaint thus does not
establish that this defendant is an entity capable of being sued or that it constitutes
an agency of the Commonwealth as to which sovereign immunity has been waived.
In addition, Inmate alleges that all of the individuals on whose acts his claims are
predicated are employees of defendant DOC. (Id. ¶¶7-15.) It is thus defendant
DOC, not SCI-Mahanoy, that is the proper defendant.
             The complaint’s allegations concerning the individual defendants
other than defendants Rakus and Shuluga are insufficient to state any cause of
action against them. Inmate does not allege that defendants Kerestes, Beggs,
Vuksta, Wagner, Muick, or Varner had any involvement in securing his personal
property when he was transferred to the RHU or that any of these defendants
handled or inspected his belongings. The only conduct of defendants Kerestes,
Beggs, Vuksta, Wagner, Muick, or Varner set forth in the complaint concerns the
handling of Inmate’s grievance and these individuals’ role in investigating what
had happened to the boots after they were lost. (Complaint ¶¶34, 38-41, 43-44, 46-
49.) As is explained above, there is no cause of action for improper investigation
or handling of an inmate grievance. While Inmate also alleges that “defendants”
are responsible for the acts of their subordinates that caused loss of the boots (id.
¶¶58-59), these general allegations do not state a valid cause of action against
defendants Kerestes, Beggs, Vuksta, Wagner, Muick, or Varner. Public employees


                                          8
are liable only for their own actionable conduct and are not vicariously liable for
the acts of their subordinates. DuBree v. Commonwealth, 393 A.2d 293, 295 (Pa.
1978); Mercaldo v. Kauffman, (Pa. Cmwlth., No. 1333 C.D. 2015, filed March 31,
2016), slip op. at 9-10, 2016 WL 1259563 at *4; Fauber v. Fetterolf, Harlow &
Wetzel, (Pa. Cmwlth., No. 1856 C.D. 2013, filed June 18, 2014), slip op. at 6, 2014
WL 2804348 at *3. Accordingly, the trial court’s dismissal of the complaint as to
these six individual defendants was proper because Inmate has failed to state a
claim against them on which relief may be granted.
             For the foregoing reasons, we affirm the trial court’s dismissal of
Inmate’s claims against defendants Commonwealth, SCI-Mahanoy, Kerestes,
Beggs, Vuksta, Wagner, Muick, and Varner, and reverse the trial court’s dismissal
of Inmate’s compensatory damages claim against defendants DOC, Rakus, and
Shuluga for the loss of his boots. We remand this matter to the trial court for
further proceedings consistent with this opinion on Inmate’s compensatory
damages claim against defendants DOC, Rakus, and Shuluga relating to the loss of
the boots.




                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge




                                        9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Owens,                              :
                                           :
                  Appellant                :
                                           :   No. 2624 C.D. 2015
            v.                             :
                                           :
Commonwealth of PA,                        :
Department of Corrections                  :


                                   ORDER


            AND NOW, this 23rd day of September, 2016, the Order of October
19, 2015 of the Court of Common Pleas of Schuylkill County is AFFIRMED IN
PART and REVERSED IN PART.                Said Order is AFFIRMED insofar as it
dismissed Appellant’s claims against defendants Commonwealth of Pennsylvania,
SCI-Mahanoy, Kerestes, Beggs, Vuksta, Wagner, Muick, and Varner. Said Order
is REVERSED insofar as it dismissed Appellant’s compensatory damages claim
against defendants Department of Corrections, Rakus, and Shuluga for the loss of
his boots, and this matter is remanded to the Court of Common Pleas of Schuylkill
County for further proceedings on that claim against defendants Department of
Corrections, Rakus, and Shuluga in accordance with the foregoing opinion.
            Jurisdiction relinquished.


                                         ____________________________________
                                         JAMES GARDNER COLINS, Senior Judge
