               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown,                             :
                          Appellant      :
                                         :
            v.                           :
                                         :
John Wetzel, Douglas R. Sampsel,         :
M.C. Garman, Steven Glunt,               :
Jeffrey Rackovan, Samuel Condo,          :
Heather Haldeman, Eric Tice,             :
Dorina Varner, Keri Moore,               :   No. 114 C.D. 2017
SCI Rockview Administration              :   Submitted: October 27, 2017


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
JUDGE COVEY                                  FILED: February 6, 2018

            Lamar Brown (Brown) appeals from the Centre County Common Pleas
Court’s (trial court) October 4, 2016 order sustaining the preliminary objections filed
by Pennsylvania Department of Corrections (DOC) Secretary John Wetzel (Secretary),
the Secretary’s Office of Inmate Grievances and Appeals Hearing Examiners Dorina
Varner (Varner) and Keri Moore (Moore), State Correctional Institution at Rockview
(SCI-Rockview) employees Douglas Sampsel (Sampsel), Heather Haldeman and Eric
Tice, SCI-Rockview Superintendents Steven Glunt and Mark Garman (Garman), SCI-
Rockview Facility Grievance Coordinator Jeffrey Rackovan, Brown’s Unit Manager
Samuel Condo, and SCI-Rockview Administration generally (collectively, Wetzel)
(Preliminary Objections) to the Complaint filed by past and current SCI-Rockview
inmates Brown, Warren Evans, Joel Daniels, Ernest Norris, Rashan Mickens, and
Shawn Johnson (collectively, Inmates) against Wetzel (Complaint) and dismissing all
claims pertaining to Brown. Essentially, there are two issues before this Court: (1)
whether the trial court properly dismissed Brown’s Section 1983 of the United States
Code, 42 U.S.C. § 1983 (Section 1983), Eighth Amendment conditions of confinement
claim because he did not suffer an injury; and, (2) whether the trial court properly
dismissed Brown’s negligence and fraud claims based on sovereign immunity. 1 After
review, we affirm.
              Brown is currently incarcerated at SCI-Rockview. On March 16, 2016,
Inmates filed the Complaint alleging that, as a result of DOC’s administration failing
to act on the knowledge of the existence of asbestos within the facility, one or more
Inmates were exposed to asbestos at some point between October 2014 and March 2016
while being confined at SCI-Rockview. Inmates demanded compensatory damages in
the amount of $500,000.00 for each Inmate and other individuals to whom the
allegations of the Complaint pertained, as well as punitive damages in an amount to be
determined for each Inmate and other similarly-situated SCI-Rockview inmates. On
April 12, 2016, Wetzel filed Preliminary Objections to Inmates’ Eighth Amendment
constitutional claim, negligence claim and fraud claim. The trial court held a hearing
on August 4, 2016.
              On October 4, 2016, the trial court sustained the Preliminary Objections
to the Complaint and dismissd all claims pertaining to Brown. Brown filed a Notice of
Appeal (Appeal) with the trial court on November 2, 2017. The Appeal was received



       1
         Brown’s Statement of Questions Involved contains seven issues: (1) whether the trial court
erred by sustaining Wetzel’s preliminary objection to Brown’s Eighth Amendment conditions of
confinement claim; (2) whether DOC’s policies, regulations and Code of Ethics are part of DOC
employees’ scope of employment (Scope of Employment); (3) whether Scope of Employment
includes both permissible and impermissible actions; (4) whether the existence of asbestos in a
housing unit causes a substantial risk of harm; (5) whether injury is required to proceed on a
substantial risk of harm claim; (6) “what is the [Scope of Employment;]” and (7) whether the
substantial risk of harm is determined by the risk of harm or the actual injury. Brown Br. at 9.
Because these issues are subsumed in the analysis of the above-stated issues, we have combined them.


                                                 2
in the Pennsylvania Superior Court on November 23, 2016 and, by January 31, 2017
order, was transferred to this Court.2
              Inmates filed their “civil rights action . . . under [Section 1983] for []
deliberate indifference to the continued exposure of asbestos[.]” Complaint at 1.
              In determining whether a plaintiff has stated a cognizable
              cause of action under [S]ection 1983, the inquiry must focus
              on whether two essential elements are met: (1) whether the
              complained of conduct was committed by a person acting
              under color of state law; and (2) whether the conduct
              deprived a person of rights, privileges, or immunities secured
              by the Constitution or the laws of the United States.

Flagg v. Int’l Union, Sec., Police, Fire Prof’ls of Am., Local 506, 146 A.3d 300, 305
(Pa. Cmwlth. 2016). In Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996), our Supreme
Court held that “asymptomatic pleural thickening[3] is not a compensable injury which
gives rise to a cause of action. . . . [The a]ppellants are not precluded from subsequently
commencing an action for an asbestos related injury when symptoms develop and
physiological impairment begins.” Id. at 237. Further, “it is the general rule of this
Commonwealth that there can be no recovery of damages for injuries resulting from


              2
                 ‘Where a [trial court] dismisses a complaint based on preliminary
              objections, this Court’s review is limited to determining whether the
              trial court committed an error of law or an abuse of discretion.’ When
              considering preliminary objections, we must accept as true all well-
              pleaded material facts alleged in the complaint and all reasonable
              inferences deducible therefrom. A preliminary objection should be
              sustained only in cases when, based on the facts pleaded, it is clear and
              free from doubt that the facts pleaded are legally insufficient to
              establish a right to relief. Because a preliminary objection in the nature
              of a demurrer presents a question of law, this Court’s standard of
              review of a court of common pleas’ decision to sustain a demurrer is
              de novo and the scope of review is plenary. Similarly, whether
              immunity applies is a question of law subject to our de novo review.
Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017) (citations omitted) (quoting Kittrell v.
Watson, 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014)).
      3
        Asymptomatic pleural thickening is scarring of the lungs caused by asbestos exposure.
                                                  3
fright or nervous shock or mental or emotional disturbances or distress unless they are
accompanied by physical injury or physical impact.” Id. at 238. In the instant case,
Brown alleged no physical injury.
               Brown first argues that the trial court erred by dismissing his Eighth
Amendment conditions of confinement claim on the basis that he did not suffer an
injury. Specifically, Brown asserts that the Prison Litigation Reform Act (PLRA), 42
U.S.C. § 1997e(e), does not bar compensation for the actual increased risk of
contracting an asbestos-related disease, see Herman v. Holiday, 238 F.3d 660 (5th Cir.
2001), and serious damage to a prisoner’s future health is actionable pursuant to
Farmer v. Brennan, 511 U.S. 825 (1994), and Helling v. McKinney, 509 U.S. 25 (1993).
We disagree.
               Section 1997e(e) of the PLRA provides, in relevant part: “No [f]ederal
civil action may be brought by a prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in custody without a prior
showing of physical injury . . . .” 42 U.S.C. § 1997e(e). In Herman, the United States
(U.S.) Fifth Circuit Appeals Court held: “The prohibitive feature of [Section] 1997e(e)
[of the PLRA], requiring physical injury before recovery, does not apply in the context
of requests for declaratory or injunctive relief sought to end an allegedly
unconstitutional condition of confinement.” Herman, 238 F.3d at 665 (emphasis
added). Because Inmates in the instant case do not seek declaratory or injunctive
relief,4 but rather compensatory and punitive damages, Herman is inapposite. In
Farmer, the U.S. Supreme Court held: “[A] prison official may be held liable under the

       4
          Although Inmates aver in the Complaint’s “Preliminary Statement” that they are seeking
“declaratory, and injunctive relief,” injunctive relief is not otherwise mentioned therein. Complaint
at 1. Further, the Complaint’s “RELIEF” includes “[a] declaratory judgment that the acts and
omissions alleged [t]herein violate both [Inmates’] state law tort rights and their constitutional
rights[;]” however, such is not preventive relief. Complaint at 9. Further, because asbestos exposure
without physical injury does not give rise to a cause of action, see Flagg, there can be no constitutional
deprivation.
                                                    4
Eighth Amendment for denying humane conditions of confinement only if he knows
that inmates face a substantial risk of serious harm and disregards that risk by failing
to take reasonable measures to abate it.” Id. at 847. However, as in Herman, the
Farmer holding was rendered in the context of preventing harm, i.e., injunctive relief,
not an action for monetary damages. Finally, the U.S. Third Circuit Appeals Court
held:

             In Helling, the [U.S.] Supreme Court held that an inmate may
             recover injunctive relief in a [S]ection 1983 action based on
             exposure to environmental [tobacco smoke], i.e., second-
             hand, cigarette smoke in the absence of present physical
             injury. See [Helling,] 509 U.S. at 33-35 . . . . The Court
             reasoned that ‘[i]t would be odd to deny an injunction to
             inmates who plainly proved an unsafe, life-threatening
             condition in their prison on the ground that nothing yet had
             happened to them.’ Id. at 33 . . . . The Court did not address
             the availability of damages in such cases . . . . See Fontroy
             v. Owens, 23 F.3d [63,] 66 [(3rd Cir. 1994) (Fontroy I)]
             (‘Thus the Supreme Court did not have occasion to
             comment on the request for damages by a plaintiff who
             alleged only risk of future injury.’). More importantly, the
             Helling Court’s reasoning concerning injunctive relief does
             not translate to a claim for monetary relief. The Court’s
             statement that it would be odd to deny an inmate an
             injunction against future harm until that harm actually
             occurred sheds no light on the availability of monetary
             damages to redress past wrong.

Fontroy v. Owens, 150 F.3d 239, 243 (3rd Cir. 1998) (Fontroy II) (footnote omitted;
emphasis added). The Fontroy II Court concluded: “Helling d[id] not create a federal
rule that would provide [] a cause of action under [Section 1983].” Id. Because Inmates
are not seeking to prevent future harm, but rather are seeking damages for risk of harm,
the trial court properly dismissed Brown’s Eighth Amendment conditions of
confinement claim on the basis that he did not suffer an injury as required under the
PLRA.



                                           5
            Brown next contends that the trial court erred by dismissing his negligence
and fraud claims based on sovereign immunity. We disagree.

            Pursuant to Article 1, Section 11 of the Pennsylvania
            Constitution, the General Assembly declared that ‘the
            Commonwealth, and its officials and employees acting
            within the scope of their duties, shall continue to 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. This
            Court has held that ‘when an employee of a
            Commonwealth agency was acting within the scope of his
            or her duties, the Commonwealth employee is protected
            by sovereign immunity from the imposition of liability for
            intentional tort claims.’ La Frankie v. Miklich, . . . 618
            A.2d 1145, 1149 ([Pa. Cmwlth.] 1992). This Court
            determines whether a Commonwealth employee is protected
            by sovereign immunity by considering ‘whether the . . .
            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.’ Id.

Minor, 155 A.3d at 121-22 (footnote omitted; emphasis added).
            Brown asserts that his negligence claim falls under the real estate
exception to sovereign immunity.

            Under the real estate exception contained in Section
            8522(b)(4) of the Judicial Code, a Commonwealth agency is
            liable where the plaintiff’s injuries are caused by ‘[a]
            dangerous condition of Commonwealth agency real estate.’
            42 Pa.C.S. § 8522(b)(4). In Snyder v. Harmon, . . . 562 A.2d
            307, 311 ([Pa.] 1989), our Supreme Court clarified that
            liability against a governmental entity is predicated on proof
            that a condition of governmental realty itself, deriving,
            originating from, or having realty as its source, caused
            plaintiff’s injuries. Snyder, . . . 562 A.2d at 311. If the
            dangerous condition ‘merely facilitates an injury to be
            caused by the acts of other persons, the defect or dangerous
            condition is not actionable.’ Williams [v. Phila. Hous.


                                          6
            Auth.], 873 A.2d [81,] 87 [(Pa. Cmwlth. 2005)] (citations
            omitted).

Thorton v. Phila. Hous. Auth., 4 A.3d 1143, 1148-49 (Pa. Cmwlth. 2010) (emphasis
added). Here, we do not reach the dispositive issue of whether a dangerous condition
caused or facilitated an injury because Brown has alleged no injury. Accordingly, the
preliminary objection as to Brown’s negligence claim was properly sustained.
            Relative to his fraud claim, Brown alleges that “Sampsel, Garman, Moore
and Varner falsified allegations in their grievance and grievance appeal responses to
[Inmates’] grievances and grievance appeals,” Complaint at 8, ¶62, thereby violating
DOC’s Code of Ethics. See Complaint at 8, ¶63. Brown maintains that because those
individuals violated the Ethics Code, they were not acting within the scope of their
employment. Whether Sampsel, Garman, Moore and Varner violated the Ethics Code
is not dispositive of whether sovereign immunity applies. “[S]ince [Inmates’] cause of
action emanates from intentional tort claims and [Sampsel, Garman, Moore and Varner
are] Commonwealth employee[s], the only question to be resolved to determine if
immunity attaches is whether [they were] acting within the scope of [their] duties”
when they completed their grievance and grievance appeal responses. La Frankie, 618
A.2d at 1149. Because Brown did not allege that Sampsel, Garman, Moore and Varner
were acting outside the scope of their employment, the trial court properly sustained
the preliminary objection to Brown’s fraud claim based on sovereign immunity.
            For all of the above reasons, the trial court’s order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown,                            :
                         Appellant      :
                                        :
            v.                          :
                                        :
John Wetzel, Douglas R. Sampsel,        :
M.C. Garman, Steven Glunt,              :
Jeffrey Rackovan, Samuel Condo,         :
Heather Haldeman, Eric Tice,            :
Dorina Varner, Keri Moore,              :   No. 114 C.D. 2017
SCI Rockview Administration             :




                                     ORDER

            AND NOW, this 6th day of February, 2018, the Centre County Common
Pleas Court’s October 4, 2016 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
