          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edwin Laramy,                        :
                                     :
                         Appellant   :
                                     :
              v.                     : No. 928 C.D. 2018
                                     : Submitted: May 10, 2019
Superintendent Mark Garman;          :
Deputy Gerald McMahon; Captain       :
James Sutton; Ms. Sharon Clark,      :
Unit Manager B Unit; Sargent         :
Packard; and CO1 R. Rightnour        :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                    FILED: February 12, 2020


            Edwin Laramy (Laramy), proceeding pro se, appeals the order of the
Court of Common Pleas of Centre County (trial court) denying Laramy’s petition
to proceed in forma pauperis (IFP) and dismissing his complaint as frivolous
pursuant to Pennsylvania Rule of Civil Procedure No. 240(j)(1), Pa. R.C.P. No.
240(j)(1) (Rule 240(j)(1)). On appeal, Laramy argues that the trial court erred or
abused its discretion by dismissing his negligence claims against employees of the
Department of Corrections (Department), sua sponte. Discerning no error, we
affirm.
             Laramy is an inmate at the State Correctional Institution at Rockview
(SCI-Rockview). On February 8, 2018, Laramy filed his complaint in the trial
court against Department employees identified as Superintendent Mark Garman;
Deputy Gerald McMahon; Captain James Sutton; Ms. Sharon Clark, Unit Manager
B Unit; Sergeant Packard; and Corrections Officer 1 R. Rightnour (Rightnour)
(collectively, Defendants), who at the times relevant to this matter were employed
at SCI-Rockview.     Laramy also filed an IFP petition, along with a verified
statement.
             In the complaint, Laramy pled three negligence counts: Count I -
negligence, Count II - negligence by vicarious liability, and Count III - negligent
infliction of emotional distress. In support, Laramy alleged that Rightnour falsely
accused him of an infraction, which resulted in Laramy receiving a misconduct
report. Original Record (O.R.), Complaint, ¶¶17, 19. Laramy also alleged that he
suffers from known mental health issues and that a higher duty of care is owed to
him in his custodial care and treatment. Id., ¶¶16-18. He asserted that the other
named Defendants, who are Rightnour’s supervisors, were liable for Rightnour’s
actions by vicarious liability under the theory of respondeat superior. Id., ¶¶22-32.
He avers that Defendants’ negligent conduct caused him emotional distress by
subjecting him to a false misconduct report and attendant punishment. Id., ¶¶33-
38. He requested compensatory damages in excess of $1 million dollars. Id., ¶42.
             By opinion and order dated February 21, 2018, the trial court, sua
sponte, denied Laramy’s IFP petition and dismissed his complaint pursuant to Rule
240(j)(1).   The trial court determined that Laramy’s negligence claims were
frivolous and without merit. The trial court opined that Laramy’s claims against
Defendants were for actions within the course and scope of their employment


                                         2
duties, and Defendants were shielded by the doctrine of sovereign immunity. Trial
Court Op., 2/21/18, at 1 (citing Section 8522(b) of the Judicial Code, 42
Pa. C.S. §8522(b)). Laramy appealed.1, 2
                   In this appeal,3 Laramy contends that the trial court erred by
dismissing his complaint against Defendants as frivolous and denying his IFP
petition. Laramy argues that the trial court abused its discretion and erred by
acting sua sponte when Defendants did not raise immunity as an affirmative
defense.
                   Rule 240(j)(1) governs the procedure by which a person who is
without the financial resources to pay the costs of litigation may proceed IFP. Pa.
R.C.P. No. 240(j)(1);4 Ocasio v. Prison Health Services, 979 A.2d 352, 354 (Pa.

         1
             Laramy filed his appeal with the Superior Court, which transferred the matter to this
Court.

         2
         The trial court directed Laramy to file a Statement of Errors Complained of on Appeal
pursuant to Pennsylvania Rule of Appellate Procedure (Rule) 1925(b). In response to Laramy’s
timely filed statement, the trial court issued an opinion in accordance with Rule 1925(a), in
which it maintained that its February 21, 2018 opinion and order were correct and that no further
opinion was necessary.

         3
         Our review of a denial of an IFP application and dismissal of a complaint as frivolous
pursuant to Rule 240(j)(1) is limited to determining whether constitutional rights were violated
and whether the trial court abused its discretion or committed an error of law. Jones v. Doe, 126
A.3d 406, 408 n.3 (Pa. Cmwlth. 2015).

         4
             Specifically, Rule 240(j)(1) provides:

                   If, simultaneous with the commencement of an action or
                   proceeding or the taking of an appeal, a party has filed a petition
                   for leave to proceed [IFP], the court prior to acting upon the
                   petition may dismiss the action, proceeding or appeal if the
                   allegation of poverty is untrue or if it is satisfied that the action,
                   proceeding or appeal is frivolous.
(Footnote continued on next page…)
                                                      3
Super. 2009). Rule 240(j)(1) permits a court to dismiss a frivolous action when an
IFP petition is simultaneously filed. A frivolous action has been defined as one
that “lacks an arguable basis in law or fact.” Note to Pa. R.C.P. No. 240(j)
(quoting Neitzke v. Williams, 490 U.S. 319 (1989)). Stated differently, a frivolous
action fails to state a valid cause of action on its face. McGriff v. Vidovich, 699
A.2d 797, 799 (Pa. Cmwlth. 1997). When a claim is made against persons who are
immune from suit, said action is without legal basis and may be dismissed sua
sponte pursuant to Rule 240(j)(1). Williams v. Stickman, 917 A.2d 915, 917 (Pa.
Cmwlth. 2007).
               “[T]he 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.” Section 2310 of Title 1 of the Pennsylvania
Consolidated Statutes, 1 Pa. C.S. §2310 (emphasis added).             Pursuant to this
authority, the General Assembly has, in limited circumstances, waived 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 was caused by a person not
having available the defense of sovereign immunity.            Section 8522(a) of the
Judicial Code, 42 Pa. C.S. §8522(a).
               Specifically, the General Assembly has waived sovereign immunity
for negligent acts related to: (1) vehicle liability; (2) medical-professional liability;


(continued…)

Pa. R.C.P. No. 240(j)(1).


                                           4
(3) care, custody or control of personal property; (4) Commonwealth real estate,
highways and sidewalks; (5) potholes and other dangerous conditions; (6) care,
custody or control of animals; (7) liquor store sales; (8) National Guard activities;
and (9) toxoids and vaccines. 42 Pa. C.S. §8522(b). Unless the negligent act falls
within one of the enumerated exceptions, “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) (citing 1
Pa. C.S. §2310).
             In essence,

             the test to determine if a Commonwealth employee is
             protected from liability is to consider “[(1)] whether the
             Commonwealth employee was acting within the scope of
             his or her employment; [(2)] whether the alleged act
             which causes injury was negligent and damages would be
             recoverable but for the availability of the immunity
             defense; and [(3)] whether the act fits within one of the
             nine exceptions to sovereign immunity.”
Williams v. Syed, 782 A.2d 1090, 1095 (Pa. Cmwlth. 2001) (quoting La Frankie v.
Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992)).
             With the foregoing principles in mind, we examine Laramy’s
complaint. Laramy’s negligence claim against Rightnour is based on Rightnour’s
misconduct report. Complaint, ¶4. According to Rightnour’s report, she observed
Laramy using the telephone without permission; she directed Laramy to return to
his cell; Laramy loitered; and when Rightnour again directed him to return to his
cell, Laramy said “f--- you, write me up.” Id. Laramy claims that he does not have
any phone numbers authorized on his account, which would make utilizing the
telephone system an impossibility.       He claims that Rightnour “falsified a
misconduct report” and, in the process, violated a duty of care owed to him. Id.,

                                         5
¶17. His vicarious negligence claim against the other Defendants is based on their
supervision of Rightnour and their awareness of her conduct. Id., ¶¶21-32. His
negligent infliction of emotional distress claim is based on the foregoing acts. Id.,
¶¶38.
             Laramy does not allege that Defendants acted outside the scope of
their employment. In fact, there are no facts to suggest that Rightnour or the other
Defendants were not acting within the scope of their employment duties at SCI-
Rockview. The alleged acts forming the basis of Laramy’s complaint include
Rightnour’s act of issuing a misconduct and her supervisors’ supervision of her.
The acts occurred at SCI-Rockview during routine hours of employment. Such
acts clearly fall within the day-to-day administration of prisoners and further the
Department’s interests of maintaining orderly behavior. See Thomas v. Holtz, 707
A.2d 569, 571 (Pa. Cmwlth. 1998). Thus, Defendants were entitled to sovereign
immunity, unless the alleged negligent acts fit within one of the enumerated
exceptions. See 1 Pa. C.S. §2310; Kull, 81 A.3d at 154; see also Bronson v.
Lechward, 624 A.2d 799, 801-02 (Pa. Cmwlth. 1993) (affirming denial of IFP
petition where plaintiff failed to aver that defendant Commonwealth employees
were acting outside the scope of their authority).
             Laramy’s negligence claims do not fit within any of the
aforementioned exceptions to sovereign immunity.        See 42 Pa. C.S. §8522(b).
Laramy’s claims do not involve a vehicle, medical treatment, personal property,
real estate, animals, liquor sales, the National Guard or vaccinations. See id.
Rather, Laramy’s claims are based on an alleged falsified misconduct report for
which an adequate administrative remedy exists through the Department’s
grievance procedure. See Section 93.10(b)(6) of the Department’s regulations, 37


                                          6
Pa. Code §93.10(b)(6); Mueller v. Pennsylvania State Police Headquarters, 532
A.2d 900, 904 (Pa. Cmwlth. 1987) (Department’s regulations provide an adequate
administrative appeal process to challenge inmate discipline).5
              In sum, Defendants were acting within the scope of their duties and
were protected by sovereign immunity.             Laramy failed to state a cognizable
negligence claim against them within one of the exceptions to sovereign immunity.
Upon review, the trial court did not err in denying Laramy’s IFP petition and
dismissing his complaint as frivolous pursuant to its authority under Rule
240(j)(1).
              Accordingly, we affirm.




                                           MICHAEL H. WOJCIK, Judge




       5
         Laramy filed a grievance challenging the misconduct report through the Department’s
administrative appeal process and received a hearing. See Complaint, ¶¶5-9. However,
according to Defendants, Laramy did not grieve the discipline through the final decision-making
phase. See Appellees’ Brief at 3.


                                              7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edwin Laramy,                       :
                                    :
                       Appellant    :
                                    :
             v.                     : No. 928 C.D. 2018
                                    :
Superintendent Mark Garman;         :
Deputy Gerald McMahon; Captain      :
James Sutton; Ms. Sharon Clark,     :
Unit Manager B Unit; Sargent        :
Packard; and CO1 R. Rightnour       :



                                   ORDER


           AND NOW, this 12th day of February, 2020, the order of the Court of
Common Pleas of Centre County dated February 21, 2018, is AFFIRMED.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
