            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Francis Harris,                      :
                 Appellant           :
                                     :
          v.                         : No. 1061 C.D. 2017
                                     : Submitted: January 12, 2018
PA Department of Corrections, et al. :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY
SENIOR JUDGE PELLEGRINI                                       FILED: January 31, 2018


               Francis Harris (Harris) appeals, pro se, the Court of Common Pleas of
Greene County’s (trial court) order retransferring his action back to this Court
because the trial court concluded that it lacked original jurisdiction to decide the
only remaining count raised against the Pennsylvania Department of Corrections
and a number of its employees and agents (collectively, the Department), which
relates to an alleged violation of Section 202 of the Americans with Disabilities
Act (ADA).1



      1
          Title II of the ADA, 42 U.S.C. § 12132, provides:

               [N]o qualified individual with a disability shall, by reason of such
               disability, be excluded from participation in or be denied the
               benefits of the services, programs, or activities of a public entity,
               or be subjected to discrimination by any such entity.
               The pertinent facts, as alleged, are as follows.2 Harris is currently
incarcerated for a capital crime at the State Correctional Institution at Greene (SCI-
Greene) and has been diagnosed with plantar fasciitis, a medical condition that
causes him to experience foot pain.3 While other inmates experiencing similar
problems are provided with orthotic shoes or given permission to order Timberland
boots, Harris was denied such shoes and the Timberland boots he was eventually
permitted to order were overpriced and later confiscated from him. Because his
plantar fasciitis causes him to experience pain in the morning, Harris also alleges
that the Department failed to accommodate his medical condition when refusing to
provide him with a medical permission slip allowing him to go to “afternoon yard”
as opposed to “morning yard.”


               Significantly, Harris originally filed a petition with this Court, but we
transferred it to the trial court because he sought money damages, giving the trial
court original jurisdiction. See Fawber v. Cohen, 532 A.2d 429, 432-33 (Pa.
1987); see also Balshy v. Rank, 490 A.2d 415 (Pa. 1985).


               After the matter was transferred, Harris asserted that the Department’s
conduct in preventing him from purchasing boots and failing to provide him with
orthotic shoes to alleviate the pain from his plantar fasciitis constituted cruel and

       2
         A fuller description of the underlying facts is provided in this Court’s previous decision,
Harris v. Pennsylvania Department of Corrections (Pa. Cmwlth., No. 2083 C.D. 2016, filed May
17, 2017) 2017 WL 2153712 (hereinafter, Harris I).

       3
        Plantar fasciitis is inflammation in the sole of the foot. Fasciitis and Plantar, Stedman’s
Medical Dictionary, 567 & 1210 (25th ed. 1990).




                                                 2
unusual punishment under the Eighth Amendment to the United States
Constitution;4 his equal protection rights were violated because he was treated
differently than other inmates who had plantar fasciitis; the Department’s failure to
permit him to go to “afternoon yard” violated the ADA; the seizing of his boots
constituted unlawful retaliation and theft by deception; and the Department’s
treatment of his condition constituted medical malpractice and negligence. Harris
requested an order directing the Department to adhere to the approved medical
plan to treat his plantar fasciitis, costs associated with the filing of this lawsuit, as
well as an award of $97,000 in punitive damages.


                  Before the Department filed a responsive pleading, the trial court
dismissed Harris’s petition for failure to state a claim on which relief may be
granted.5 On appeal, we affirmed the trial court’s order with the exception of


        4
            As noted in this Court’s previous opinion:

                  The facts pled in Harris’s Petition give rise to an action under 42
                  U.S.C. § 1983. To state a claim under Section 1983, a plaintiff
                  must 1) allege a violation of rights secured by the United States
                  Constitution and/or the laws of the United States, and 2) show that
                  the alleged deprivation was committed by a person acting under
                  color of state law. Anelli v. Arrowhead Lakes Community
                  Association, Inc., 689 A.2d 357 (Pa. Cmwlth. 1997). Pursuant to
                  the Eighth Amendment, U.S. Const. amend. VIII, “excessive bail
                  shall not be required, nor excessive fines imposed, nor cruel and
                  unusual punishments inflicted.”

Harris I, slip op. at 5 n.7.

        5
         See Section 6602(e)(2) of the Prison Litigation Reform Act (PLRA), Act of June 18,
1998, P.L. 640, No. 84, as amended, 42 Pa.C.S. § 6602(e)(2), which provides:

(Footnote continued on next page…)

                                                  3
Harris’s ADA claim, which we reversed and remanded to the trial court for the
Department to file a responsive pleading.


              On remand, the trial court ordered the Department to file a responsive
pleading to the remaining ADA claim. Notwithstanding, the Department filed a
motion to transfer asserting that the trial court lacked original jurisdiction to decide
the matter.     On July 5, 2017, the trial court issued an order granting the
Department’s motion, concluding that Harris’s remaining ADA count falls within
this Court’s exclusive jurisdiction because he sought a writ of mandamus in
addition to money damages.6 This appeal followed.

(continued…)

              Notwithstanding any filing fee which has been paid, the court shall
              dismiss prison conditions litigation at any time, including prior to
              service on the defendant, if the court determines . . . [t]he prison
              conditions litigation 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.

       6
          Section 761 of the Judicial Code establishes this Court’s original jurisdiction and
provides, in pertinent part:

              (a) General Rule.--The Commonwealth Court shall have original
              jurisdiction of all civil actions or proceedings:

                      (1) Against the Commonwealth government, including any
              officer thereof, acting in his official capacity, except:

                                             ***

                            (v) actions or proceedings in the nature of trespass
              as to which the Commonwealth government formerly enjoyed
              sovereign or other immunity and actions or proceedings in the
(Footnote continued on next page…)

                                               4
                When a court lacks jurisdiction over a matter, Section 5103(c) of the
Judicial Code provides for transfer to the proper tribunal. 42 Pa.C.S. § 5103(c).
Specifically,

                If an appeal or other matter is taken to, brought in, or
                transferred to a division of a court to which such matter is
                not allocated by law, the court shall not quash such
                appeal or dismiss the matter, but shall transfer the record
                thereof to the proper division of the court, where the
                appeal or other matter shall be treated as if originally
                filed in the transferee division on the date first filed in a
                court or magisterial district.


Id. Notwithstanding, it is improper for a trial court to “retransfer” a matter back to
this Court if we originally transferred the matter to the trial court for jurisdictional
reasons. For example, in Rank v. Balshy, 475 A.2d 182 (Pa. Cmwlth. 1984), aff’d,
490 A.2d 415 (Pa. 1985), this Court originally transferred a matter to the common
pleas court for jurisdictional reasons, but the matter was transferred back to this
Court after the common pleas court also concluded that it lacked jurisdiction. On
appeal, we once again transferred the matter back to the trial court, noting:


(continued…)

                nature of assumpsit relating to such actions or proceedings in the
                nature of trespass.

                                              ***

                (c) Ancillary matters.--The Commonwealth Court shall have
                original jurisdiction in cases of mandamus . . . .

42 Pa.C.S. § 761.




                                                5
             It is unfortunate that the Plaintiff-Petitioner is the victim
             of this procedural football but this Court must very
             carefully scrutinize cases alleged to be in its original
             jurisdiction because we are ill-equipped from the
             standpoint of personnel and physical facilities to engage
             in the trial of cases, especially those where a jury must be
             impanelled [sic]. While we respect and hold in highest
             regard the common pleas trial courts in the
             Commonwealth, we believe that an order of this Court
             which has not been appealed should be enforced
             rather than reviewed by a court of common pleas.


Id. at 185 (emphasis added). On appeal, our Supreme Court affirmed this Court’s
decision to once again transfer the matter back to the trial court, stating:

             We disapprove the practice of Courts of Common Pleas
             refusing jurisdiction and attempting to “retransfer”
             matters to Commonwealth Court. The proper practice in
             cases such as this one would be for Common Pleas Court
             to dismiss the action and for the parties to take an appeal.


Balshy v. Rank, 490 A.2d 415, 416 (Pa. 1985); see also City of Philadelphia v.
Philadelphia Parking Authority, 798 A.2d 161, 170 n.8 (Pa. 2002) (Saylor, J.,
concurring) (“We note, however, that the Court’s comments in Balshy were
directed to the practice of ‘retransfer’ by courts of common pleas to the
Commonwealth Court, which has appellate jurisdiction over them.”).


             Simply put, while the trial court may disagree with this Court’s
original transfer order or how we interpreted Harris’s action against the
Department, it is nonetheless obligated to follow that order.




                                           6
               In any event, the trial court has original jurisdiction to decide Harris’s
remaining ADA claim because he is seeking, among other things, money
damages.7 Pursuant to 42 Pa.C.S. § 761(a), this Court has original jurisdiction over
civil actions or proceedings:

               (1) Against the Commonwealth government, including
               any officer thereof, acting in his official capacity, except:

                                              ***

                     (v) actions or proceedings in the nature of trespass
               as to which the Commonwealth government formerly
               enjoyed sovereign or other immunity and actions or
               proceedings in the nature of assumpsit relating to such
               actions or proceedings in the nature of trespass.


42 Pa.C.S. § 761(a)(1)(v). Examining this Section, our Supreme Court has held:

               [T]he clear intent of the General Assembly is that actions
               against the Commonwealth or its officers acting in their
               official capacity for money damages based on tort
               liability are outside the original jurisdiction of the
               Commonwealth Court and are properly commenced in
               the Courts of Common Pleas.


Balshy, 490 A.2d at 420-21.


       7
          In its brief, the Department also contends that this Court has original jurisdiction over
Harris’s ADA claim because the Department’s Secretary, John Wetzel (Secretary Wetzel), is
named as a party in this matter. However, Harris’s complaint does not allege specific
wrongdoing by Secretary Wetzel nor does he allege the existence of a statewide policy causing
his alleged mistreatment. Accordingly, a statewide official is not an indispensable party in this
matter. See Miles v. Beard, 847 A.2d 161, 164 (Pa. Cmwlth. 2004).



                                                7
            Here, it is clear that Harris’s ADA claim falls within Section
761(a)(1)(v) because he is seeking money damages under a statutory provision
and, accordingly, his ADA claim constitutes an action in tort.       See Hill v.
Pennsylvania Department of Environmental Protection, 679 A.2d 773 (Pa. 1996)
(holding that an employment discrimination complaint for money damages under
various statutes, including provisions of the ADA, falls within 42 Pa.C.S. §
761(a)(1)(v)). While Harris may also be seeking mandamus relief, our Supreme
Court has made clear that this does not operate to transform a trial court’s
jurisdiction as it would arguably permit forum shopping through pleading. See
Stackhouse v. Commonwealth, 832 A.2d 1004, 1008-09 (Pa. 2003).


            Accordingly, we reverse the trial court’s order granting the
Department’s motion to transfer and remand the matter to the trial court for the
Department to file a responsive pleading to Harris’s remaining ADA claim.



                                     ___________________________________
                                     DAN PELLEGRINI, Senior Judge




                                       8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Francis Harris,                      :
                 Appellant           :
                                     :
          v.                         : No. 1061 C.D. 2017
                                     :
PA Department of Corrections, et al. :




                                     ORDER


             AND NOW, this 31st day of January, 2018, it is hereby ordered that
the Court of Common Pleas of Greene County’s (trial court) order in the above-
captioned matter is reversed and the matter is remanded to the trial court for further
proceedings consistent with this opinion.


             Jurisdiction relinquished.



                                          ___________________________________
                                          DAN PELLEGRINI, Senior Judge
