          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Andr’e L. Younger,                   :
                         Appellant   :
                                     :
              v.                     :
                                     :
John Kerestes, Albion SCI, Maxine    :
Overton, Anthony Quindareio, Ms.     :
Phillips and Commonwealth of         : No. 2253 C.D. 2014
Pennsylvania                         : Submitted: October 9, 2015


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                         FILED: October 28, 2015


              Andr’e L. Younger (Plaintiff) appeals pro se from an order of the
Court of Common Pleas of Erie County (trial court) granting the preliminary
objections filed by John Kerestes, Albion SCI, Maxine Overton, Anthony
Quindareio, Ms. Phillips and the Commonwealth of Pennsylvania (collectively,
Defendants) and dismissing his third-amended complaint with prejudice for failure
to state a cognizable negligence claim. For the reasons that follow, we affirm the
trial court’s order.
                                                 I.
                In December 2012, Plaintiff began the underlying action by filing a
complaint alleging that he sustained injuries while in the Defendants’ custody at
the Albion State Correctional Institution and attaching exhibits B1B54.1 Plaintiff
also filed a “motion for appointment of counsel” pursuant to 28 U.S.C. §1915(e)(1)
which the trial court denied.           Pursuant to Defendants’ preliminary objections,
Plaintiff sought and was granted leave to amend and subsequently filed an
amended complaint attaching Exhibits B60B74, followed by a praecipe to enter
judgment by default when Defendants did not respond in a timely manner.


                Defendants then filed a second set of preliminary objections which the
trial court granted but provided Plaintiff leave to file a second-amended complaint.
In January 2014, Plaintiff filed a second-amended complaint2 which was likewise
dismissed pursuant to Defendants’ third set of preliminary objections, but again,
with leave to amend. At this time, the trial court also denied Plaintiff’s second
motion for appointment of counsel.


                In July 2014, Plaintiff filed his third-amended complaint which is the
subject of the instant appeal. In the third-amended complaint, Plaintiff averred that
he lodged a request with Officer Tobias that his top-bunk sleeping assignment be
changed to a bottom-bunk assignment because his “Right Side/Body Oftenly [sic]
goes Numb, While climbing the Housing Unit stairs, Which furthered His Pain”

      1
          The trial court granted Plaintiff’s motion for leave to proceed in forma pauperis.

      2
          Attached were Exhibits B-3, B-12, B-13, B-48 and B-57.




                                                 2
and that he feared reinjuring himself after a prior 2011 injury he sustained to his
right side and arm when he fell on a greasy floor at SCI Albion and then fell from a
bunk bed the next day. (Third Am. Compl. ¶¶3, 4.) Plaintiff alleges that Officer
Tobias refused to accommodate his request because he was “bottom bunk status
only, not bottom tier,” forcing him to file a grievance. (Id. ¶6.) Subsequently, he
was “abruptly” moved from an upstairs cell to a downstairs cell, purportedly
because he was “bottom bunk/bottom tier” status. (Id. ¶¶13, 14.) Plaintiff claims
that as a result of these actions, his pre-existing injuries have worsened. He also
alleges that because he has not authorized Defendants to withdraw monies from his
prison account, he has been refused treatment and prescriptions and that SCI
Mahanoy failed to properly train its employees.


            Again, Defendants filed preliminary objections asserting that:
Plaintiff failed to attribute any acts of negligence to Ms. Phillips, SCI Albion or
Maxine Overton; the alleged acts all occurred at SCI Mahanoy in Schuylkill
County rather than in Erie County; and that venue was improper in Erie County
with regard to events alleged to have taken place in Schuylkill County. Following
briefing, Plaintiff filed Exhibits B79B85 consisting of the following documents:
(1) Plaintiff’s unsworn affidavit dated October 16, 2014, regarding an injury he
sustained to his right rib cage area while working in SCI Mahanoy’s main laundry
area; (2) Plaintiff’s unsworn affidavit dated October 17, 2014, regarding his
medical follow up from the prior day; (3) his October 17, 2014, notification to the
law library that he would be unable to attend his scheduled appointment due to his
rib injury; (4) Plaintiff’s unsworn affidavit dated October 24, 2014, regarding an
additional follow up for his rib-cage injury; (5) a grievance Plaintiff filed dated



                                         3
October 29, 2014, seeking an MRI with regard to his rib-cage injury; (6) medical
lay-in reports indicating that Plaintiff was restricted from engaging in work, yard
and activities for the period of October 1731, 2014, due to his injury; and (7)
Plaintiff’s unsworn affidavit dated October 31, 2014, regarding a subsequent
medical follow up.


             The trial court sustained Defendants’ preliminary objections with
prejudice and directed Plaintiff to file a statement of errors complained-of on
appeal by March 16, 2015. Although the same was dated March 13, 2015, and
post-marked March 16, 2015, Plaintiff’s statement of errors was not filed until
March 26, 2015.      Therein, Plaintiff challenged the trial court’s “Refus[al] to
acknowledge Plaintiff’s Initial, And Nearly Four (4) Amended Complaint(s)” and
Plaintiff’s exhibits, refusal to appoint counsel to represent Plaintiff, and its abuse
of discretion insofar as it “allow[ed] the defendant(s) to evade accountability for
their RECKLESSNESS & NEGLIGENCE, Which caused Plaintiff Life Long
Injury as Initially Stated.” (Statement of Errors Complained of on Appeal Pursuant
to Pa. R.A.P. 1925(b) ¶¶1, 4.)


             In response, the trial court issued an opinion which, after noting that
Plaintiff’s concise statement of errors was untimely, proceeded to address the
merits of the case. First, the trial court explained that it did not ignore Plaintiff’s
initial complaint but rather, granted Plaintiff’s motion for leave to file an amended
complaint and then considered each amended complaint in light of each set of
corresponding preliminary objections. After reviewing the pertinent filings, the
trial court issued responsive orders.



                                          4
              Similarly, with regard to Plaintiff’s exhibits, the trial court noted that
the filing of an amended complaint effectively eliminates prior complaints, thereby
requiring the court to consider only the exhibits attached to the third-amended
complaint, which in this case, were none. Regardless, the trial court stated that
even when it considered the exhibits referenced by Plaintiff, his claims still failed.


              To the extent Plaintiff challenged the actions of SCI Mahanoy staff,
the trial court deemed the allegations inappropriate for the present appeal, which
involves only SCI Albion as a named defendant. To that end, the trial court further
found that Plaintiff failed to assert that any of the named Defendants acted in a
manner constituting a breach of a duty causing Plaintiff’s harm. Finally, the trial
court explained that it lacks authority to appoint counsel to represent parties in civil
actions. Raising the same issues as below, Plaintiff filed the instant appeal.3


                                               II.
                                               A.
              First, we address the trial court’s ruling that Plaintiff waived his right
to pursue the instant appeal by filing an untimely statement of errors complained-
of on appeal. As Defendants point out, the “prisoner mailbox rule” applies to the
filings of pro se, incarcerated litigants. See Kittrell v. Watson, 88 A.3d 1091,
109697 (Pa. Cmwlth. 2014). Under this rule, a document is deemed filed “at the

       3
          In reviewing a trial court’s order sustaining preliminary objections to a complaint, we
are limited to determining whether the trial court erred as a matter of law or committed an abuse
of discretion. Bussinger v. Dyne, 76 A.3d 137, 140 n.6 (Pa. Cmwlth. 2013), appeal denied, 74
A.3d 1186 (Pa. 2014). In doing so, we must accept as true all well-pled facts and all inferences
reasonably deducible therefrom. Id.




                                               5
time it is given to prison officials or put in the prison mailbox.” Id. Although
Plaintiff has not provided information regarding when he provided the statement of
errors complained-of on appeal to prison officials for mailing, it is post-marked
March 16, 2015, indicating that, at the latest, he provided it that day. Because the
statement was due on March 16th and is deemed filed under the prisoner mailbox
rule on that day, Plaintiff did not waive his appeal, and we will proceed to address
its merits.


                                           B.
              With regard to Plaintiff’s argument that the trial court refused to
acknowledge the initial, first-amended, second-amended or third-amended
complaint, we disagree. Indeed, each complaint was accepted for filing, with the
latter three being filed after the trial court issued orders expressly granting Plaintiff
leave to file an amended complaint.         Moreover, the trial court reviewed and
considered the merits of each amended complaint in adjudicating Defendants’
preliminary objections and issued rulings in this respect. Simply because Plaintiff
disagrees with the trial court’s determination that the third-amended complaint
does not state a factual basis for his negligence claim does not mean that the trial
court ignored the pleading.


                                           C.
              Similarly, Plaintiff’s argument that the trial court refused to accept
Plaintiff’s accompanying exhibits, particularly Exhibit B-44, is without merit.
First, it is the filing office and not the trial judge that either accepts or rejects a
document for filing. See Pa. R.C.P. No. 205.2. Second, Exhibit B-44, to which



                                           6
Plaintiff now directs our attention, was not attached as an exhibit to his third-
amended complaint. While Plaintiff did incorporate by reference several other
exhibits he previously filed, he did not incorporate Exhibit B-44. See Pa. R.C.P.
No. 1019(g) (“Any part of a pleading may be incorporated by reference in another
part of the same pleading or in another pleading in the same action….”). Because
preliminary objections must be adjudicated based on the face of the complaint and
any attachments thereto, and because Exhibit B-44 did not form the basis of
Plaintiff’s allegations in his third-amended complaint, the trial court did not err in
holding that it should not be considered.4 Humphrey v. Department of Corrections,
939 A.2d 987, 990 n.4 (Pa. Cmwlth. 2007), aff’d in part and appeal denied in part,
955 A.2d 348 (Pa. 2008).


               Nonetheless, consideration of Exhibit B-44 does not mandate a
different outcome. Indeed, Exhibit B-44, attached to the initial complaint, is a
“Facility Manager’s Appeal Response” from SCI Albion, which “serves to
acknowledge receipt of [his] grievance appeal.”                 (Compl., Ex. B-44.)         This
document notes that Plaintiff filed a grievance contending that he had to be

       4
         We draw a distinction between Exhibit B-44 being outside the purview of adjudicating
preliminary objections and being “outside of the record,” as the trial court stated. (5/4/15 Trial
Court Opinion, at 5.) While the trial court correctly noted that Exhibit B-44 should not be
considered in determining if the third-amended complaint stated a cognizable claim for
negligence, this Exhibit is not “outside the record” and could have been considered had it been
incorporated. See Pa. R.C.P. No. 1019(g) (“A party may incorporate by reference any matter of
record in any State or Federal court of record whose records are within the county in which the
action is pending, or any matter which is recorded or transcribed verbatim in the office of the
prothonotary, clerk of any court of record, recorder of deeds or register of wills of such
county.”). Indeed, contrary to the trial court’s assertion, Exhibit B-44 is part of the certified
record before this Court.




                                                7
provided a bottom bunk and that Defendants’ failure to provide him with one
caused an unspecified injury. In response, the Facility Manager explained that the
housing issue was addressed as soon as it was brought to the attention of an SCI
Albion employee and explained, “[t]here is no indication from any information
presented to the Facility Manager that [Plaintiff] made any attempt to notify any
staff, medical or on the housing unit, that he was in a top bunk and needed moved
due to his injury.” (Id.)


              These statements do not constitute an admission of liability but, in
fact, disclaim liability on the basis that Defendants had no reason to be aware of
Plaintiff’s need for a bottom bunk and once made aware, accommodated him.
Indeed, to state a cognizable claim in negligence, a plaintiff must satisfy the
following elements:

              (1) a duty or obligation recognized by the law requiring
              the defendant to conform to a certain standard of conduct
              for the protection of others against unreasonable risks;

              (2) defendant’s failure to conform to the standard
              required;

              (3) a causal connection between the conduct and the
              resulting injury; [and]

              (4) actual loss or damage resulting to the plaintiff.


R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005). Because Exhibit B-44 does not aid
Plaintiff in alleging that Defendants owed him a duty or breached that duty, the
trial court did not err in this regard.



                                           8
                                                D.
               Plaintiff next contends that the trial court erred in dismissing his third-
amended complaint pursuant to Pennsylvania Rule of Civil Procedure No. 1019
because he complied with all applicable requirements.5 However, as the trial court

      5
          Pennsylvania Rule of Civil Procedure No. 1019 provides:

               (a) The material facts on which a cause of action or defense is
               based shall be stated in a concise and summary form.

               (b) Averments of fraud or mistake shall be averred with
               particularity. Malice, intent, knowledge, and other conditions of
               mind may be averred generally.

               (c) In pleading the performance or occurrence of conditions
               precedent, it is sufficient to aver generally that all conditions
               precedent have been performed or have occurred. A denial of such
               performance or occurrence shall be made specifically and with
               particularity.

               (d) In pleading an official document or official act, it is sufficient
               to identify it by reference and aver that the document was issued or
               the act done in compliance with law.

               (e) In pleading a judgment, order or decision of a domestic or
               foreign court, judicial or administrative tribunal, or board,
               commission or officer, it is sufficient to aver the judgment, order
               or decision without setting forth matter showing jurisdiction to
               render it.

               (f) Averments of time, place and items of special damage shall be
               specifically stated.

               (g) Any part of a pleading may be incorporated by reference in
               another part of the same pleading or in another pleading in the
               same action. A party may incorporate by reference any matter of
               record in any State or Federal court of record whose records are
               within the county in which the action is pending, or any matter
               which is recorded or transcribed verbatim in the office of the
(Footnote continued on next page…)

                                                 9
noted, Pennsylvania Rule of Civil Procedure No. 1019 was not the basis for its
ruling and, in fact, is immaterial to whether Plaintiff stated a cognizable negligence
claim. Therefore, we find this argument without merit.


                                                  E.
                To the extent Plaintiff argues that the trial court erred in refusing to
appoint counsel to represent him in prosecuting his civil action, although “counsel
has occasionally been appointed to represent an indigent prisoner having a
meritorious civil rights claim” in federal court pursuant to 28 U.S.C. §1915(e),6



(continued…)

                prothonotary, clerk of any court of record, recorder of deeds or
                register of wills of such county.

                (h) When any claim or defense is based upon an agreement, the
                pleading shall state specifically if the agreement is oral or written.

                Note: If the agreement is in writing, it must be attached to the
                pleading. See subdivision (i) of this rule.

                (i) When any claim or defense is based upon a writing, the pleader
                shall attach a copy of the writing, or the material part thereof, but if
                the writing or copy is not accessible to the pleader, it is sufficient
                so to state, together with the reason, and to set forth the substance
                in writing.

Pa. R.C.P. No. 1019.

       6
           Regarding in forma pauperis proceedings:

                (e)(1) The court may request an attorney to represent any person
                unable to afford counsel.

(Footnote continued on next page…)

                                                  10
this provision is not applicable to state courts, and “[t]here is no authority in this
Commonwealth for the appointment of counsel to represent parties in civil
actions.” Johnson v. Desmond, 658 A.2d 375, 376 (Pa. Super.), appeal denied,
672 A.2d 308 (Pa. 1995); see also Department of Transportation, Bureau of Driver
Licensing v. Ingram, 648 A.2d 285, 287 (Pa. 1994) (noting that the right to counsel
generally does not apply in civil proceedings).


                                                F.
              Finally, we turn to the substance of Plaintiff’s third-amended
complaint.    The pleading avers incidents which purportedly occurred at SCI
Mahanoy, a different facility than the one named as a Defendant. Moreover, the
third-amended complaint does not so much as mention any of the individually-


(continued…)

              (2) Notwithstanding any filing fee, or any portion thereof, that may
              have been paid, the court shall dismiss the case at any time if the
              court determines that—

                      (A) the allegation of poverty is untrue; or

                      (B) the action or appeal—

                             (i) is frivolous or malicious;

                             (ii) fails to state a claim on which relief may be
              granted; or

                            (iii) seeks monetary relief against a defendant who
              is immune from such relief.

28 U.S.C. §1915(e).




                                               11
named Defendants, but rather, assigns negligence to other individuals who have
not been named as parties.7 Because Plaintiff failed to assert that John Kerestes,
Maxine Overton, Anthony Quindareio, Ms. Phillips, Albion SCI or the


       7
           The third-amended complaint does allege that John Kerestes failed to train his
employees at SCI Mahanoy and that he engaged in reckless conduct with regard to Plaintiff at
the facility. However, even assuming arguendo that this legal conclusion, unsupported by any
factual averments, is true, this claim must proceed in the Court of Common Pleas of Schuylkill
County, where proper venue lies. To this end, Section 8523(a) of the Judicial Code states:

                      Actions for claims against a Commonwealth party may be
              brought in and only in a county in which the principal or local
              office of the Commonwealth party is located or in which the cause
              of action arose or where a transaction or occurrence took place out
              of which the cause of action arose. If venue is obtained in the
              Twelfth Judicial District (Dauphin County) solely because the
              principal office of the Commonwealth party is located within it,
              any judge of the Court of Common Pleas of Dauphin County shall
              have the power to transfer the action to any appropriate county
              where venue would otherwise lie.

42 Pa. C.S. §8523(a). Similarly, insofar as tort claims litigation against the Commonwealth is
concerned:

              (a) Venue in actions for claims against a Commonwealth party as
              defined in 42 Pa. C.S. §8501 (relating to definitions) shall be in the
              county in which one of the following exists:

                     (1) The cause of action arose.

                     (2) A transaction or occurrence took place out of which the
              cause of action arose.

                     (3) The principal office of the Commonwealth party is
              located.

                     (4) The local office of the Commonwealth party is located.

37 Pa. Code §111.4(a).



                                               12
Commonwealth of Pennsylvania acted in a manner constituting a breach of duty
that caused Plaintiff’s harm, the trial court did not err in dismissing the claim.


             Accordingly, we affirm the trial court’s order dismissing Plaintiff’s
third-amended complaint with prejudice.




                                        DAN PELLEGRINI, President Judge




                                          13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Andr’e L. Younger,                   :
                        Appellant    :
                                     :
            v.                       :
                                     :
John Kerestes, Albion SCI, Maxine    :
Overton, Anthony Quindareio, Ms.     :
Phillips and Commonwealth of         :
Pennsylvania                         : No. 2253 C.D. 2014




                                    ORDER


            AND NOW, this 28th day of October, 2015, the order of the Court of
Common Pleas of Erie County in the above-captioned matter is affirmed.




                                     DAN PELLEGRINI, President Judge
