             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joshua Payne,                                  :
                             Appellant         :
                                               :
              v.                               :   No. 2100 C.D. 2014
                                               :   Submitted: May 22, 2015
Scott Whalen, Adam Shane                       :
Huber, John Doe, Jane Doe                      :


BEFORE: HONORABLE DAN PELLEGRINI, President Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: August 20, 2015

              Appellant Joshua Payne (Payne) appeals, pro se, from an order of the
Court of Common             Pleas of      Cumberland       County (trial       court), dated
October 22, 2014. The trial court sustained preliminary objections filed by Scott
Whalen, Adam Shane Huber, John Doe, and Jane Doe (collectively, Appellees),
thereby dismissing Payne’s complaint with prejudice.                For the reasons stated
below, we reverse.
              On May 1, 2014, Payne, an inmate then housed at the State
Correctional Institution-Camp Hill (SCI-Camp Hill),1 filed a civil complaint
against Appellees in their capacity as corrections officers employed by the


       1
         It appears that Payne is now incarcerated at the State Correctional Institution-Mahanoy
in Frackville, Pennsylvania.
Department of Corrections (DOC). Payne asserted that Appellees were negligent
in handling Payne’s personal property. (Certified Record (C.R.) at 6-11.) Payne
avers that while he was incarcerated at SCI-Camp Hill, Appellees negligently lost
seven hundred family photos that he received in the mail on June 13, 2013. (C.R.
at 52.) Payne also avers that Appellees arbitrarily confiscated inmate mail and
negligently handled mail in disregard of DOC policies and standards. (C.R. at
51-52.) Payne alleges that Appellees are required to act under a code of ethics
which provides that “[t]he personal property of inmates will be handled with
extreme care and disposed of only by properly designated authority in a manner
designated by official [DOC] Policy . . . . [T]heft or abuse of property or
equipment is prohibited.” (C.R. at 51.) Payne alleges that this policy requires
corrections officers to handle inmate property with “extreme care.” (C.R. at 52.)
Payne then alleges that Appellee Whalen ordered Appellee Huber to confiscate all
incoming magazines, books, and pictures.     (Id.)   Payne alleges that Appellee
Whalen’s order to Appellee Huber constituted a violation of the policy, because
Appellee Whalen knew that Appellee Huber “negligently handles” inmate
property. (Id.)
             In his negligence claim, Payne alleges that Appellee Huber
disregarded regulations and procedures by failing to exercise ordinary skill and
knowledge in possessing and storing his property. (Id.) Payne also alleges that
Appellee Whalen acted negligently by allowing Appellee Huber to handle the
property and by allowing the “arbitrary practice” of confiscating inmate books,
magazines, and pictures to continue. (Id.) Last, Payne alleges that Appellees
violated their “contract” by negligently taking custody and control over his




                                       2
property. (C.R. at 53.) Payne requested $12,000 in compensatory damages from
each defendant and $1,000 in punitive damages from each defendant. (Id.)
              On May 27, 2014, Appellees submitted preliminary objections, raising
the affirmative defense of sovereign immunity under Section 8522 of the Judicial
Code, 42 Pa. C.S. § 8522, and asserting the doctrine of lis pendens. (C.R. at
22-44.)     Appellees claimed that Payne alleged facts showing intentional
misconduct, which is barred by sovereign immunity.                  (C.R. at 24.)      In the
alternative, Appellees asserted that even if Payne set forth a cause of action for
negligence, Payne failed to plead facts that fall under the sovereign immunity
exceptions. (Id.) Appellees also asserted that Payne had filed a previous lawsuit in
the United States District Court for the Middle District of Pennsylvania based upon
identical facts against the same defendants.2 (C.R. at 25.) Appellees maintain that
the doctrine of lis pendens applies to protect them from the “harassment and
burden of having to defend several suits involving the same cause of action at the
same time.” (Id.) For those reasons, Appellees requested that the trial court
dismiss Payne’s complaint with prejudice. (C.R. at 22-26.)
       2
         Appellees cite Payne v. Duncan, et. al., Docket No. 3:13-CV-02203 (M.D. Pa.), as the
pending federal case against them. The issues in that case, however, are not the same. In the
federal case, Payne alleges that Unit Manager Scott Whalen and Corrections Officers Duncan,
Ziegler, Huber, and John Doe (collectively, Defendants) lost books and over 300 legal papers,
prevented him from practicing his religion, and engaged in verbal harassment and retaliation
towards him. Not only are the facts different, but the legal arguments and questions of law are
also different. Moreover, by order dated April 23, 2014, the District Judge ordered that
Defendant Whalen and Defendant Huber be dismissed from the complaint entirely and directed
the Clerk of Court to terminate them as parties to that action. Payne v. Duncan, et. al., (M.D.
Pa., No. 3:13-CV-2203, filed Apr. 24, 2014), slip op. at 8. In addition, Payne’s amended
complaint in the matter now before this Court removed Appellee Ziegler and Appellee Duncan
from the action. (C.R. at 51.) As the parties and factual allegations differ, lis pendens is
inapplicable.



                                              3
              On October 22, 2014, the trial court sustained Appellees’ preliminary
objections and dismissed Payne’s complaint with prejudice.3 (C.R. at 62.) Payne
appealed, and, pursuant to Pa. R.A.P. 1925(a), the trial court issued an opinion on
February 9, 2015 (1925(a) Opinion). (C.R. at 81-85.) In the 1925(a) Opinion, the
trial court held that Payne’s pleadings did not state a cause of action upon which
relief can be granted. (C.R. at 84.) The trial court reasoned that Appellees enjoy
the protections of sovereign immunity, and Payne had not met the burden of
proving an exception to sovereign immunity. (C.R. at 84-85.) In doing so, the trial
court relied upon Pyeritz v. Commonwealth, 32 A.3d 687 (Pa. 2011), in stating that
the “personal property exception only allows suit against the Commonwealth for
negligence when the property itself causes physical injury.” (C.R. at 84 (quoting
Pyeritz, 32 A.3d at 696) (Eakin, J., concurring).) The trial court also reasoned that
Payne had not pled how he and Appellees entered into a contract to satisfy his
assumpsit claim. (C.R. at 85.) The trial court, in regards to the assumpsit claim,
stated that it is “inconceivable how any inmate could ever enter into a contract with
a correctional officer working in the scope of his duties.”                (Id. (emphasis in
original).) Payne then petitioned this Court for review.
              On appeal, Payne challenges the trial court’s ruling that sovereign
immunity applies. Thus, we will consider whether the trial court erred in




       3
         The record shows that Payne submitted an amended complaint on May 28, 2014, and
June 10, 2014. (C.R. at 45-50, 51-54.) In sustaining the preliminary objections, the trial court
appears to incorporate the amendments in rendering its decision. (C.R. at 82 n.1.).



                                               4
concluding that an exception to sovereign immunity did not exist and whether it
erred in concluding that Payne did not state an action in assumpsit.4
              This court’s scope of review of a decision by a trial court is limited to
a determination of whether the trial court abused its discretion, committed an error
of law, or whether constitutional rights were violated. Long v. Thomas, 619 A.2d
394, 396 (Pa. Cmwlth. 1992), appeal denied, 631 A.2d 1012 (Pa. 1993). In an
appeal challenging the trial court’s order sustaining preliminary objections, we
must determine “whether on the facts averred, the law states with certainty that no
recovery is possible.” Hawks by Hawks v. Livermore, 629 A.2d 270, 271 n.3 (Pa.
Cmwlth. 1993). In reviewing preliminary objections, only facts that are well pled,
material, and relevant are considered true, and those preliminary objections which
are clear and free from doubt will be sustained. Triage, Inc. v. Dep’t of Transp.,
537 A.2d 903, 907 n.7 (Pa. Cmwlth. 1988).                    Argumentative allegations or
expressions of opinion are not accepted as true. Firing v. Kephart, 353 A.2d 833,
834 (Pa. 1976).
               First, we will address Payne’s argument that the trial court erred in
concluding that sovereign immunity bars his action against Appellees. “Generally,

       4
          Payne also challenges the trial court’s finding of fact number 5, which provides that
“[Payne] has made no accusation that he ever had in his possession the property he alleges was
negligently lost . . . .” (C.R. at 83.) Payne argues that he does not need actual physical
possession of the photos because he received a confiscation slip indicating that the photos were
received in the mail and placed with his property. Payne asserts that the confiscation slip is
sufficient to establish possession. This challenge, however, is not relevant to whether Appellees
enjoy the protections of sovereign immunity. Moreover, for purposes of assumpsit, it would
appear that DOC’s issuance of a confiscation slip would indicate that DOC took possession of
the photos intended for Payne, rather than deliver the photos to Payne. At this stage in the
proceeding, we cannot conclude that Payne cannot establish possession for purposes of his
claims, if required. Accordingly, we will not address this issue.



                                               5
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). This protection extends to
claims for intentional torts. Id. at 157. The General Assembly has provided that
sovereign immunity may be waived in certain limited situations involving
negligence of a 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. Commonwealth, 751 A.2d 1130, 1132 (Pa. 2000).
             Here, the trial court focuses on the personal property exception to
sovereign immunity set forth in Section 8522(b)(3) of the Judicial Code, 42 Pa.
C.S. § 8522(b)(3), and Payne does not contend that any other exception is
applicable. The personal property exception to sovereign immunity provides, in
part:
             (a) Liability imposed  The General Assembly . . . does
             hereby waive . . . sovereign immunity as a bar to an
             action against Commonwealth parties, for damages
             arising out of a negligent act where the damages would
             be recoverable under the common law or a statute
             creating a cause of action if the injury were caused by a

                                          6
             person not having available the defense of sovereign
             immunity.
             (b) Acts which may impose liability  The following
             acts by a Commonwealth party may result in the
             imposition of liability on the Commonwealth and the
             defense of sovereign immunity shall not be raised to
             claims 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 . . . .

42 Pa. C.S. § 8522.
             This case is most analogous to Williams v. Stickman, 917 A.2d 915
(Pa. Cmwlth.), appeal denied, 932 A.2d 1290 (Pa. 2007). In Williams, this Court
held that Section 8522(b)(3) of the Judicial Code provides a remedy for inmates
when a prison official negligently handles personal property. Williams, 917 A.2d
at 918. Williams alleged that, while he was incarcerated in a state correctional
institution, corrections officers took possession of his color television set while it
was in good working condition. A year later, while he was still in restrictive
housing, DOC granted Williams permission to inspect his property, and Williams
found the television to be in good working condition at that time.          In 2004,
Williams again inspected his personal property and discovered that the television’s
picture tube was cracked and the back of the cable converter box was broken.
Williams filed a complaint with the trial court, alleging claims for an intentional
tort and negligence. The trial court subsequently dismissed Williams’s complaint
on the grounds of sovereign immunity. On appeal, this Court ruled that Williams’s


                                          7
intentional tort claim was barred by sovereign immunity, but the negligence claim
was not barred. We explained that “Williams sets forth a claim for damages to his
television set while it was in the possession of Commonwealth parties.” Id. at 918
(emphasis in original). In addition, we noted that the injury claimed by Williams
was the loss of the property itself, and that the property need not be responsible for
or the cause of the alleged injury. Id. at n.2. Thus, we held that an inmate can file
a negligence claim against DOC employees for the negligent damage to or loss of
an inmate’s personal property that was placed in DOC’s care, custody, and control,
and that the claim will not be barred by sovereign immunity. Id. at 918.
             We acknowledge that some case law interprets Section 8522(b)(3) of
the Judicial Code as not waiving sovereign immunity unless the actual property
under the care, custody, or control of the Commonwealth party caused the damage.
See Pa. State Police v. Klimek, 839 A.2d 1173 (Pa. Cmwlth.) (holding that
personal property exception to sovereign immunity did not apply in wrongful death
action where arrestee hung himself because death of arrestee not caused by shoe
lace and condition of prison cell), appeal denied, 857 A.2d 681 (Pa. 2004); Bufford
v. Pa. Dep’t of Transp., 670 A.2d 751 (Pa. Cmwlth. 1996) (holding that personal
property exception does not apply to negligent mismanagement of personal
records); Cmwlth., Dep’t of Envtl. Res. v. Myers, 581 A.2d 696 (Pa. Cmwlth. 1990)
(holding that personal property exception to sovereign immunity was not
applicable because map provided by Department of Environmental Resources that
did not highlight existence of power lines did not cause injury to helicopter pilot
where pilot spraying to control gypsy moth population collided with power lines),
appeal denied, 588 A.2d 915 (Pa. 1991); Suglaski v. Cmwlth., 569 A.2d 1017 (Pa.
Cmwlth. 1990) (holding that personal property exception to sovereign immunity


                                          8
was not applicable where Commonwealth seized funds and failed to place them in
an interest-bearing account because property itself did not cause damage);
DeVeaux by DeVeaux v. Palmer, 558 A.2d 166 (Pa. Cmwlth. 1989) (en banc)
(holding that personal property exception to sovereign immunity did not apply to
breach of settlement agreement in medical malpractice action where Pennsylvania
Medical Professional Liability Catastrophe Loss Fund allegedly interfered with an
annuity because the fund money itself did not cause injury); Kline v. Pa. Mines
Corp.,   547     A.2d   1276    (Pa.    Cmwlth.   1988)    (although    focusing    on
Section 8522(b)(4) of Judicial Code, this Court also discussed Section 8522(b)(3)
of Judicial Code, finding that exception did not apply because Department of
Environmental Resources did not possess control over mine).
               Appellees contend that the trial court correctly concluded that,
because the property at issue—i.e., the photographs—did not cause the damage for
which Payne has brought suit, the personal property exception does not apply. We
disagree. In reaching that conclusion, the trial court relied upon the Supreme
Court’s decision in Pyeritz.           In Pyeritz, our Supreme Court expressly
acknowledged that while it granted review of several issues, including the issue of
“whether the personal property exception to state sovereign immunity, 42 Pa. C.S.
§ 8522(b)(3), applies only if the property in question causes the plaintiff’s injuries,
or does it suffice that plaintiff’s injuries are caused by the Commonwealth’s care,
custody, or control of the property,” it did not reach the issue regarding the
application of the exception because it concluded that the underlying cause of
action—negligent spoliation of evidence—does not exist under Pennsylvania law.
Pyeritz, 32 A.3d 687, 692 n.3 (Pa. 2011). Thus, Pyeritz cannot be interpreted as




                                           9
limiting the personal property exception to sovereign immunity to only those
instances in which the property itself causes damage.
             As discussed above, this Court applied the personal property
exception in Williams under circumstances similar to those now before the Court.
Moreover, the cases cited above for the proposition that the personal property itself
must cause the damage or injury are distinguishable because they did not involve
damage to the actual personal property held by the Commonwealth party. Our
interpretation of the personal property exception applying to instances where
personal property of an inmate is damaged while in the care, custody, or control of
the Department of Corrections is consistent with the language of Sections 8522(a)
and (b)(3) of the Act, which, again, provide, in part, an exception for “damages
caused by. . . [the c]are, custody or control of personal property . . . in the
possession or control of Commonwealth.” (Emphasis added.) Application of the
personal property exception to sovereign immunity as provided for in Williams is
not necessarily in conflict with the cases cited above where courts failed to apply
the personal property exception when the property itself did not cause damage and
was not itself damaged.      Most importantly, Williams remains as controlling
precedent of this Court.     We, therefore, reject Appellees’ argument that the
personal property exception to sovereign immunity is not applicable on this basis.
             Appellees also argue that sovereign immunity is not waived because
Payne’s allegations give rise to an intentional tort and his negligence claim is
nothing more than a “bare legal conclusion of ‘negligence.’” (Appellees’ Br. 10.)
Appellees assert that Payne’s complaint does not plead any factual allegations
showing negligence; instead, the complaint alleges that Appellees intentionally
confiscated the photos in the course and scope of their duties and did not return the


                                         10
property.   In support of their argument, Appellees compare this case to the
unreported decisions of Mitchell v. Webb, (Pa. Cmwlth., No. 1304 C.D. 2010, filed
January 11, 2011), and Goodley v. Folino, (Pa. Cmwlth., No. 2376 C.D. 2010, filed
July 22, 2011), in which inmates essentially set forth claims for intentional torts.
The inmates in those cases, however, challenged corrections officers’ confiscation
of property, not the damage or loss of said property. In fact, in Goodley, we
distinguished that case from Williams, explaining that Goodley “did not raise
claims that the corrections officers had damaged his personal property. Rather, he
alleged that they had intentionally and deliberately seized and confiscated his
property as contraband.” Goodley, slip. op. at 10 (emphasis added).
             Here, Appellees mischaracterize Payne’s claims as challenging the
confiscation. To the contrary, Payne contends that Appellees were negligent in the
handling of his property after it was confiscated. Thus, at issue is whether the loss
of the property was the result of negligence on the part of Appellees. In order to
maintain an action for negligence, one must prove: (1) the defendant had a duty or
obligation recognized by law; (2) the defendant breached that duty; (3) a causal
connection between the defendant’s conduct and the resulting injury; and (4) actual
damages. Page v. City of Philadelphia, 25 A.3d 471, 475 (Pa. Cmwlth. 2011),
appeal denied, 40 A.3d 124 (Pa. 2012). In his complaint, Payne sufficiently
alleges: (1) Appellees had an obligation to care for Payne’s personal property; (2)
Appellees breached that duty; (3) the breach of Appellees’ duty resulted in the
property being lost; and (4) Payne suffered actual damages when Appellees’ lost
his property. Thus, we reject Appellees’ argument that Payne pled an intentional
tort and not a negligence claim.




                                         11
              Last, we will address Payne’s argument that the trial court erred in
concluding that he could not assert a claim for assumpsit/breach of contract. At the
outset, we note that Appellees’ preliminary objections were limited to raising the
affirmative defense of sovereign immunity under Section 8522 of the Judicial
Code, which pertains to waiver of sovereign immunity for certain negligence
claims only, and asserting the doctrine of lis pendens. Neither of those preliminary
objections is directed to a claim for assumpsit, and, therefore, the trial court erred
in dismissing Payne’s claim for assumpsit at this stage of the proceedings.
              Furthermore, this Court was presented with a similar scenario in
Williams. In Williams, the defendants, also individual corrections officers, asked
the Court to affirm the dismissal of the entire complaint, although they did not
specifically preliminarily object to the claim for assumpsit. We noted that “[t]his
court has stated that the Commonwealth has waived sovereign immunity as a
defense in causes of action for assumpsit.” Williams, 917 A.2d at 918 (citing
McKeesport Mun. Water Auth. v. McCloskey, 690 A.2d 766 (Pa. Cmwlth.), appeal
denied, 700 A.2d 445 (Pa. 1997)). In McKeesport, we explained that the sovereign
immunity of the Commonwealth has been waived under the circumstances outlined
in Section 8522 of the Judicial Code for causes of action sounding in tort based on
the negligent acts of its employees. “Likewise, for causes of action sounding in
contract, the sovereign immunity of the Commonwealth has been waived under the
provisions of the [former] Board of Claims Act,[5]” McKeesport, 690 A.2d at 774,

       5
         The Board of Claims Act, Act of May 20, 1937, P.L. 728, as reenacted and amended,
formerly 72 P.S. §§ 4651-1to 4651-10, was repealed by the Act of December 3, 2002, P.L. 1147.
Under the former Board of Claims Act “claims arising from contracts involving the
Commonwealth could sound in both assumpsit and equity, and . . . regardless of form, these
claims should be decided by the Board of Claims.” See Emp’rs Ins. of Wausau v. Dep’t of
(Footnote continued on next page…)

                                             12
and now the Procurement Code, 62 Pa. C.S. §§ 101-4509. Thus, although we make
no determination as to whether the pleadings in this action support a cause of
action for assumpsit for which sovereign immunity has been waived, it would
appear that any such analysis must be performed applying the Procurement Code,
62 Pa. C.S. §§ 101-4509, and not Section 8522 of the Judicial Code.

               Accordingly, the order of the trial court sustaining Appellees’
preliminary objections and dismissing Payne’s complaint with prejudice is
reversed.




                                     P. KEVIN BROBSON, Judge




(continued…)

Transp., 865 A.2d 825, 832-33 (Pa. 2005). Section 1724(a)(1) of the Procurement Code, 62 Pa.
C.S. § 1724(a)(1), replaced Section 4 of the Board of Claims Act and is substantially identical to
the earlier provision.



                                               13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joshua Payne,                        :
                       Appellant     :
                                     :
           v.                        :   No. 2100 C.D. 2014
                                     :
Scott Whalen, Adam Shane             :
Huber, John Doe, Jane Doe            :


                                   ORDER


           AND NOW, this 20th day of August, 2015, the order of the Court of
Common Pleas of Cumberland County (trial court), dated October 22, 2014, is
hereby REVERSED.




                            P. KEVIN BROBSON, Judge
