           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gerald Fox,                                    :
                             Appellant         :
                                               :
              v.                               :    No. 759 C.D. 2017
                                               :    Submitted: February 9, 2018
State Correctional Institution                 :
(SCI) Greene and Warden of                     :
State Correctional Institution                 :
(SCI) Greene, Lewis Folino                     :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: August 22, 2018


              Gerald Fox (Fox) appeals from an order of the Court of Common Pleas
of Greene County (trial court), which granted a motion for summary judgment in
favor of the State Correctional Institution at Greene (SCI-Greene) and its Warden,
Lewis Folino (Folino)1 (collectively, Defendants), and dismissed Fox’s complaint
with prejudice. In so doing, the trial court concluded that sovereign immunity
shielded Defendants from liability for Fox’s negligence complaint stemming from a
physical altercation Fox had with another inmate. For the reasons discussed below,
we now affirm.

       1
          We note that the parties’ briefs indicate two different spellings of Folino’s name. Fox
refers to him as “Lewis,” whereas Defendants refer to him as “Louis.”
             On June 20, 2013, Fox filed with the trial court a complaint alleging
negligence by the Defendants. (Reproduced Record (R.R.) at 10a-17a.) Fox averred
that on March 1, 2010, his cellmate attacked him. (Id. at 11a.) Fox sustained injuries
from this attack when his cellmate bit off a portion of his right ear. (Id.) Fox averred
that, prior to this attack, he requested a transfer to a different cell due to ongoing
problems with his cellmate, but Defendants refused his request. (Id.) Fox alleged
that his injuries resulted from Defendants’ negligence in failing to act to keep Fox
safe from harm. (Id. at 12a.)
             In response to Fox’s complaint, Defendants filed preliminary
objections, raising the affirmative defense of sovereign immunity under
Section 8522 of the Judicial Code, 42 Pa. C.S. § 8522. (Id. at 29a-32a.) The trial
court subsequently ordered briefing on the matter. (Id. at 35a.) By order dated
May 13, 2014, the trial court denied Defendants’ preliminary objections.
(Id. at 48a.) Defendants filed an answer and new matter, denying the material
allegations of Fox’s complaint and asserting that they are immune from suit.
(Id. at 49a-55a.) Fox answered Defendants’ new matter, denying the allegations and
averring that no response was required because Defendants’ assertion of sovereign
immunity was a legal conclusion. (Id. at 58a.)
             On September 29, 2015, Defendants filed a motion for summary
judgment and a brief in support. (Id. at 67a-94a.) Defendants again argued that
sovereign immunity shielded them from liability. (Id.) On October 9, 2015, prior
to Fox filing a response and prior to scheduled oral argument on the summary
judgment motion, the trial court granted Defendants’ motion and dismissed Fox’s
complaint with prejudice. (Id. at 95a.) Fox appealed, and this Court vacated and
remanded the matter back to the trial court. See Fox v. State Corr. Inst. (SCI) Greene


                                           2
(Pa. Cmwlth., No. 561 C.D. 2016, filed Feb. 3, 2017). In so doing, we concluded
that Pa. R.C.P. No. 1035.3 required the trial court to allow Fox to respond to
Defendants’ motion for summary judgment. Further, we also remanded due to the
trial court’s failure to draft an opinion supporting its May 19, 2015 order, as required
by Pa. R.A.P. 1925(a)(1).
              Thereafter, the trial court directed Fox to submit a response to
Defendants’ motion for summary judgment. (Id. at 127a-28a.) After consideration
of the parties’ arguments, the trial court again granted Defendants’ motion for
summary judgment and dismissed Fox’s complaint with prejudice. (Id. at 213a.) In
so doing, the trial court concluded that sovereign immunity bars Fox’s claim.
(Id. at 234a.) Fox again appealed to this Court.
              On appeal,2 Fox argues that the trial court erred in granting Defendants’
motion for summary judgment. Specifically, Fox argues that an exception to
sovereign immunity is applicable to his negligence action, and the trial court erred
in concluding otherwise. Further, Fox claims that the trial court erred in granting




       2
         This Court’s review of a trial court’s order granting a motion for summary judgment is
limited to considering whether the trial court erred as a matter of law or abused its discretion.
Lambert v. Katz, 8 A.3d 409, 413 n.3 (Pa. Cmwlth. 2010). A court may grant a motion for
summary judgment only when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Bronson v. Horn, 830 A.2d 1092, 1094
(Pa. Cmwlth. 2003), aff’d, 848 A.2d 917 (Pa. 2004), cert. denied, 543 U.S. 944 (2004). The right
to judgment must be clear and free from doubt. Id. In reviewing the granting of a motion for
summary judgment, this Court must “view the record in the light most favorable to the non-moving
party, and all doubts as to the existence of a genuine issue of material fact must be
resolved against the moving party.” Pappas v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001), cert.
denied, 536 U.S. 938 (2002).


                                               3
Defendants’ motion for summary judgment because there exists a genuine dispute
of material fact relating to whether Defendants’ conduct constituted negligence.3
               Fox’s argument that there exists a genuine dispute of material fact is
without merit. Fox argues that the Defendants’ alleged negligence is a fact question
for a jury to decide. (Fox’s Br. at 15.) The matter currently before the Court,
however, is whether the trial court properly granted summary judgment on the
ground of sovereign immunity. To this point, Fox has not alleged any genuine
dispute of a material fact as to the defense of sovereign immunity—e.g., that
Defendants acted outside the scope of their employment. After a conscientious
review of the record, the Court perceives no dispute as to the material facts of
Defendants’ sovereign immunity defense.
               As to Fox’s claim that the trial court erred in concluding that
Defendants are entitled to sovereign immunity, “[g]enerally, sovereign immunity
protects Commonwealth officials and employees acting within the scope of their
duties from civil liability.” Kull v. Guisse, 81 A.3d 148, 154 (Pa. Cmwlth. 2013),
appeal denied, 91 A.3d 163 (Pa. 2014). The General Assembly, however, has
waived sovereign immunity in certain limited situations involving negligence of a




       3
         We note that, in his brief, Fox also argues that the trial court erred by granting Defendants’
motion for summary judgment because the trial court had previously denied Defendants’
preliminary objections that raised the same argument. Fox, however, fails to develop this argument
in his brief, and we, therefore, conclude that this issue has been waived. See City of Phila. v.
Berman, 863 A.2d 156, 161 n.11 (Pa. Cmwlth. 2004). Further, even if Fox did not waive this
argument, we note that it is without merit. “Where the motions differ in kind, as preliminary
objections differ from motions for judgment on the pleadings, which differ from motions for
summary judgment, a judge ruling on a later motion is not precluded from granting relief although
another judge has denied an earlier motion.” Garzella v. Borough of Dunmore, 62 A.3d 486, 497
(Pa. Cmwlth.), appeal denied, 72 A.3d 605 (Pa. 2013).

                                                  4
Commonwealth official or employee. 42 Pa. C.S. § 8522. In La Frankie v. Miklich,
618 A.2d 1145 (Pa. Cmwlth. 1992) (en banc), this Court observed:
             [T]he      proper      test     to    determine     if    a
             Commonwealth employee is protected from liability
             pursuant to . . . 42 Pa. C.S. § 8522 is to consider whether
             the Commonwealth employee was acting within the scope
             of his or her employment; whether the alleged act which
             causes injury was negligent and damages would be
             recoverable but for the availability of the immunity
             defense; and whether the act fits within one of the nine
             exceptions to sovereign immunity.

La Frankie, 618 A.2d at 1149. Because of the clear intent to insulate the government
from liability, the exceptions to sovereign immunity are to be strictly construed.
Dean v. Cmwlth., 751 A.2d 1130, 1132 (Pa. 2000). Here, Fox argues that his
negligence claim fits within two separate exceptions to sovereign immunity.
Specifically, Fox argues that his action falls into the “personal property” and
“potholes and other dangerous conditions” exceptions, 42 Pa. C.S. §§ 8522(b)(3)
and (5), respectively.
             The personal property exception to sovereign immunity provides that
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, 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). Fox argues that his status as an inmate at SCI-Greene
causes him to be “in the possession” of the Commonwealth, and that, by extension,
his ear is his personal property, which was damaged while in the possession of the
                                         5
Defendants. (Fox’s br. at 13.) Although Fox cites to no authority in support of this
proposition, this Court has previously ruled on similar claims.
              In    Gallagher      v.   Bureau      of   Correction,      545    A.2d     981
(Pa. Cmwlth. 1988), appeal denied, 554 A.2d 511 (Pa. 1989), an inmate used a cell
door as a ladder to climb into the top bunk of the cell. His cellmate closed the door
on the inmate’s finger, severing it. The inmate filed a negligence action, and a trial
court granted summary judgment to the Commonwealth defendants on the basis of
sovereign immunity. On appeal to this Court, the inmate argued that he “was in the
custody and control of the Commonwealth by virtue of his status as a prisoner,
thereby making himself the personal property of the Commonwealth.” Gallagher,
545 A.2d at 984. We rejected this assertion, opining that the argument “makes no
sense.” Id.
              We affirmed this notion in Abrams v. Juvenile Justice Department,
(Pa. Cmwlth., No. 2167 C.D. 2014, filed Sept. 3, 2015), appeal denied,
130 A.3d 1292 (Pa. 2016).4 In Abrams, a mother filed a negligence action against a
juvenile court for perceived wrongdoings toward her son that led to his inability to
receive a high school diploma. A trial court granted preliminary objections on the
basis of sovereign immunity, and this Court affirmed. On appeal, the plaintiff argued
that the personal property exception to sovereign immunity applied, as her son was
her personal property under the care of the Commonwealth. In rejecting this
argument, we opined:
              Son is a person, not personal property, which is defined as
              “[a]ny movable or intangible thing that is subject to
              ownership and not classified as real property.” In

       4
          Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa.
Code § 69.414(a), an unreported panel decision issued by this Court after January 15, 2008, may
be cited “for its persuasive value, but not as binding precedent.”

                                              6
             [Gallagher], an inmate at a state correctional institute
             argued “that he was in the custody and control of the
             Commonwealth by virtue of his status as a prisoner,
             thereby making himself the personal property of the
             Commonwealth.” We rejected the inmate’s argument in
             Gallagher, and we similarly reject [the plaintiff’s]
             assertion in the present matter.
Abrams, slip op. at 4 (internal citation omitted).
             While our holding in Abrams is not binding, the underlying rationale is
sound and, thus, persuasive in the instant matter. We must strictly construe the
exceptions to sovereign immunity.       Dean, 751 A.2d at 1132. Fox’s preferred
reading of the exception, however, requires this Court to deviate from a strict
construction. While we are sensitive to Fox’s claim, we are nonetheless bound to
narrowly construe the exceptions to sovereign immunity. Such a construction leads
us to conclude that an ear does not qualify as “personal property” for the purposes
of 42 Pa. C.S. § 8522(b)(3).
             Next, Fox argues that his negligence action fits into the “potholes and
other dangerous conditions” exception to sovereign immunity. While Fox clearly
does not allege that a pothole played any part in his injuries, he maintains that
Defendants knew Fox was having problems with his cellmate, yet did nothing about
it. Fox argues that this friction between himself and his cellmate created a dangerous
condition, and the Defendants failed to remedy this situation.
             The potholes and other dangerous conditions exception provides that
the defense of sovereign immunity shall not be raised to claims for damages
caused by:
             A dangerous condition of highways under the jurisdiction
             of a Commonwealth agency created by potholes or
             sinkholes or other similar conditions created by natural
             elements, except that the claimant to recover must
             establish that the dangerous condition created a reasonably

                                           7
             foreseeable risk of the kind of injury which was incurred
             and that the Commonwealth agency had actual written
             notice of the dangerous condition of the highway a
             sufficient time prior to the event to have taken measures to
             protect against the dangerous condition.           Property
             damages shall not be recoverable under this paragraph.

42 Pa. C.S. § 8522(b)(5) (emphasis added). Here, again, Fox cites to no authority to
support his assertion that this exception applies to the instant case. Pointedly, Fox’s
attempt to apply this exception contradicts its plain text, which provides that the
dangerous condition must be “created by natural elements.” Id. Further, we are not
aware of any case in this Commonwealth that would conceivably support Fox’s
assertion. Fox’s claim clearly stems from a condition which, if true, could be
dangerous. Such a dangerous condition, however, is beyond the scope of what the
exception provides. Fox’s attempt to invoke this exception, therefore, is meritless.
We thus conclude that the trial court did not err in dismissing Fox’s claim, as there
is no applicable exception to sovereign immunity under which Fox may pursue his
cause of action.
             Accordingly, the order of the trial court is affirmed.




                                          P. KEVIN BROBSON, Judge




                                          8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gerald Fox,                             :
                          Appellant     :
                                        :
              v.                        :   No. 759 C.D. 2017
                                        :
State Correctional Institution          :
(SCI) Greene and Warden of              :
State Correctional Institution          :
(SCI) Greene, Lewis Folino              :


                                      ORDER


              AND NOW, this 22nd day of August, 2018, the order of the Court of
Common Pleas of Greene County is AFFIRMED.




                                        P. KEVIN BROBSON, Judge
