IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Derrick Gibson, :

Appellant :

:

 v. : No. 1275 C.D. 2022

: SUBMITTED: October 10, 2023

Bernadette Mason, et al. :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: November 2, 2023

Inmate, Derrick Gibson, appeals pro se from an order of the Court of 

Common Pleas of Schuylkill County determining that his complaint was frivolous 

under Pennsylvania Rule of Civil Procedure 240(j)(1), Pa.R.Civ.P. 240(j)(1), and, 

therefore, denying his petition to proceed in forma pauperis (IFP) as moot. We 

reverse and remand.

On October 13, 2022, Inmate filed a complaint against Appellees, 

Superintendent Bernadette Mason and two corrections officers, stemming from an 

October 13, 2020 incident when he was housed in a restricted housing unit at State 

Correctional Institution (SCI)-Mahanoy and sprayed with pepper spray. His claims 

include assault and battery, intentional infliction of emotional distress, negligence, 

and breach of a duty to protect. By way of damages, Inmate seeks $1,200,000—

$600,000 from each corrections officer.
2

Subsequently, the trial court’s prothonotary sent Inmate a praecipe for 

certification with an attached petition to proceed IFP form to complete. Inmate 

completed the petition and returned it to the prothonotary’s office where it was timestamped October 24, 2022. Notwithstanding Inmate’s compliance, the trial court 

dismissed the petition as moot and concluded that his cause of action was frivolous 

under Pa.R.Civ.P. 240(j)(1). Inmate’s appeal followed.1

Pa.R.Civ.P. 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.

An action is deemed frivolous if it “lacks an arguable basis either in law or in fact.” 

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

In finding Inmate’s complaint to be frivolous, the trial court initially 

stated: “The cause of action alleged occurred on October 13, 2020, and [Inmate] 

filed on October 24, 2022, therefore outside the two-year statute of limitations 

pursuant to [Section 5524 of the Judicial Code,] 42 [Pa.C.S.] § 5524.” October 26, 

2022 Trial Ct. Order at 1. In an opinion rendered pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(a), Pa.R.A.P. 1925(a), the trial court asserted two 

additional grounds. It determined that Inmate did not file a written statement with 

the Office of Attorney General within six months of the alleged cause of action 

advising of the commencement of a civil action against a government unit for 

1 Appellees advised that they will not be participating in the appeal because the trial court 

dismissed the matter prior to service. April 12, 2023 Notice of Non-Participation at 1.
3

damages thereby warranting dismissal under Section 5522(a)(2) of the Judicial 

Code, 42 Pa.C.S. § 5522(a)(2). In addition, the trial court determined that the facts 

as alleged in the complaint indicated that the employees at SCI-Mahanoy were acting 

within the scope of their employment such that the doctrine of sovereign immunity 

applied.

The trial court erred in determining that the action is frivolous due to 

the filing date of the complaint. The complaint is time-stamped October 13, 2022, 

and the trial court’s docket entries reflect that filing date. An action may only be 

commenced by filing with the prothonotary a praecipe for a writ of summons or a 

complaint. Pa.R.Civ.P. 1007. “No pleading or other legal paper that complies with 

the Pennsylvania Rules of Civil Procedure shall be refused for filing by the 

prothonotary based on a requirement of a local rule of civil procedure or judicial 

administration, including local Rules 205.2(a) and 205.2(b).” Pa.R.Civ.P. 205.2. 

The trial court’s prothonotary sent Inmate a praecipe for certification requesting that 

he fill out a petition to proceed IFP pursuant to Schuylkill County Local Rule 

205.2(b). Consequently, Inmate’s failure to file a petition with the complaint should 

not have affected the timely filing date of the complaint, which the trial court’s 

prothonotary presumably recognized. It might have been different had Inmate failed 

to comply with the prothonotary’s directive. Nonetheless, Inmate’s October 13, 

2022 complaint pertaining to the October 13, 2020 alleged incident was filed within 

the two-year statute of limitations period.

In addition, the trial court erred in concluding that Inmate had to comply 

with the statutory notice provision found in 42 Pa.C.S. § 5522(a)(1). The six-month 

limitation provision provides:
4

(a) Notice prerequisite to action against government unit-

-

(1) Within six months from the date that any injury 

was sustained or any cause of action accrued, any person 

who is about to commence any civil action or proceeding 

within this Commonwealth or elsewhere against a 

government unit for damages on account of any injury to 

his person or property under Chapter 85 (relating to 

matters affecting government units) or otherwise shall file 

in the office of the government unit, and if the action is 

against a Commonwealth agency for damages, then also 

file in the office of the Attorney General, a statement in 

writing, signed by or in his behalf, setting forth:

 (i) The name and residence address of the person 

to whom the cause of action has accrued.

 (ii) The name and residence address of the person 

injured.

 (iii) The date and hour of the accident.

 (iv) The approximate location where the accident 

occurred.

 (v) The name and residence or office address of 

any attending physician.

(2) If the statement provided for by this subsection 

is not filed, any civil action or proceeding commenced 

against the government unit more than six months after the 

date of injury to person or property shall be dismissed and 

the person to whom any such cause of action accrued for 

any injury to person or property shall be forever barred 

from proceeding further thereon within this 

Commonwealth or elsewhere. The court shall excuse 

failure to comply with this requirement upon a showing of 

reasonable excuse for failure to file such statement.

42 Pa.C.S. § 5522(a)(1) and (2). “Government unit” is defined as “[t]he General 

Assembly and its officers and agencies, any government agency or any court or other 

officer or agency of the unified judicial system.” Section 102 of the Judicial Code, 
5

42 Pa.C.S. § 102. “Commonwealth agency” is defined as “[a]ny executive agency 

or independent agency.” Id.

In the present case, Inmate sued the Superintendent and two corrections 

officers, not the Department of Corrections or other Commonwealth agency. While 

the definition of “government unit” includes officers of the General Assembly or the 

judicial branch, it does not similarly include officers or employees of executive 

agencies. Consequently, Inmate’s failure to file a statement with the Office of the 

Attorney General does not bar him from proceeding further with his cause of action.

We turn next to the trial court’s determination that the facts alleged in 

the complaint established that the employees at SCI-Mahanoy were acting within 

the scope of their employment such that the doctrine of sovereign immunity applied. 

An employee of a Commonwealth agency is immune from suit when he or she is 

acting within the scope of employment and the claim against him or her does not fit 

into any category in which sovereign immunity has been waived.2 La Frankie v. 

Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992). Immunity is not waived for 

intentional torts committed within the scope of employment. Id. at 1149.

In the present case, Inmate’s claims included assault and battery 

causing physical injury, intentional infliction of emotional distress, negligence, and 

breach of a duty to protect, specifically alleging that he was sprayed with a chemical 

that caused severe pain and physical injury and that this unprovoked act was done in 

retaliation for his having filed an administrative grievance. Taking these allegations 

at face value, which we must do at this preliminary juncture, one certainly cannot 

2 The exceptions to sovereign immunity pertain to: vehicle liability; medical professional 

liability; care, custody or control of personal property; Commonwealth real estate; highways and 

sidewalks; potholes and other dangerous conditions; care, custody or control of animals; liquor 

store sales; National Guard activities; toxoids and vaccines; and sexual abuse. Section 8522(b) of 

the Judicial Code, 42 Pa.C.S. § 8522(b).
6

say that such actions were so clearly within the legitimate scope of Appellees’ 

employment as to make them entitled to sovereign immunity and render Inmate’s 

complaint frivolous. While this may be the ultimate conclusion, there needs to be a 

more complete factual development before any such determination can be made.

Accordingly, we reverse and remand this matter to the trial court with 

directions to grant the petition to proceed IFP so long as Inmate satisfies the financial 

requirements. In addition, we will order Inmate to serve Appellees with his 

complaint and for Appellees to file a responsive pleading within twenty days of such 

service.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Derrick Gibson, :

Appellant :

:

 v. : No. 1275 C.D. 2022

:

Bernadette Mason, et al. :

O R D E R

AND NOW, this 2

nd day of November, 2023, the order of the Court of 

Common Pleas of Schuylkill County is hereby REVERSED and this matter is 

REMANDED for further proceedings in accordance with the foregoing opinion. 

Further Appellant is ORDERED to serve the Defendants/Appellees with his 

complaint and Appellees shall file a responsive pleading within twenty days of such 

service.

Jurisdiction relinquished.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita