IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Landon May, :

Appellant :

:

v. :

:

Jane Doe, Pennsylvania : No. 649 C.D. 2021

Department of Corrections : Submitted: September 17, 2021

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY 

JUDGE COVEY FILED: February 17, 2022

Landon May (May) appeals pro se from the Centre County Common 

Pleas Court’s (trial court) February 8, 2021 order2sustaining the Pennsylvania 

Department of Corrections’ (DOC) Preliminary Objections (Preliminary Objections) 

to May’s pro se Complaint (Complaint), dismissing the Complaint and granting him 

30 days to amend the Complaint. May presents three issues for this Court’s review: 

(1) whether the fact that DOC addressed his grievance prevents DOC from 

demurring to his Complaint; (2) whether the trial court erred by not accepting all 

well-pleaded facts averred in the Complaint as true; and (3) whether the trial court 

erred by concluding that DOC could not be liable to May when it neglected to deliver 

his properly addressed mail. After review, this Court quashes May’s appeal.

May is currently incarcerated at State Correctional Institution (SCI)-

Phoenix. See Complaint ¶1. On January 27, 2020, May, “acting through an agent, 

1 This matter was assigned to the panel before January 3, 2022, when President Judge 

Emerita Leavitt became a senior judge on the Court.

2 The trial court’s order incorrectly identified the date as February 8, 2020.
2

caused an order for seven books [(Order)] to be shipped” to DOC’s Security 

Processing Center (SPC) from Thriftbooks.com. Complaint ¶6. Documents 

attached to the Complaint reflect that the Order was placed by the holder of an email 

account identified as Jessica Johnson. See Complaint Exs. A-1, A-2, B. The Order 

totaled $33.21. See Complaint ¶7. On February 5, 2020, an SPC agent received one 

part of the Order. See Complaint ¶8; see also Complaint Exs. A-1, C-1. On February 

6, 2020, an SPC agent received the remainder of the Order. See Complaint ¶9; see 

also Complaint Exs. A-2, C-2. On February 12, 2020, May received two of the 

seven books in the Order. See Complaint ¶10. May has not received the rest of the 

Order. See Complaint ¶11.

On February 24, 2020, May filed a grievance with DOC (Grievance) 

seeking delivery of the remaining five books or reimbursement therefor, i.e., $25.28. 

See Complaint ¶13; see also Complaint Ex. D. On March 10, 2020, DOC denied the 

Grievance, see Complaint ¶15, explaining:

After checking the tracking from the SPC, [SPC] ha[s]

only processed [two] books for you since [January 29, 

2020]. The mailroom received those books on [February 

11, 2020,] and they were sent to the unit you are located 

[sic] on [February 12, 2020]. We have not received

anything else for you. The mailroom did not misplace 

your publications. 

Complaint Ex. E. On March 19, 2020, May appealed to SCI-Phoenix Superintendent 

K. Jaime Sorber (Sorber). See Complaint ¶16; see also Complaint Ex. F. 

On April 10, 2020, Sorber denied the appeal, see Complaint ¶18, but 

nevertheless admitted:

I am in receipt of your [G]rievance appeal in which you 

state 7-books were purchased through thrift[]books.com[.] 

You state you only received 2 of the books. You are 

asking for the books to be found or the money to 

repurchase.
3

Upon review of all available information, I find that your 

books were delivered to the [SPC]. Unfortunately, with a 

high volume of books and magazines to process, it causes 

a delay in receiving such items. Once the mailroom 

receives your book [sic] from SPC, it will be processed the 

same day and sent to the housing unit you are assigned to.

Complaint Ex. G (emphasis added). On April 17, 2020, May appealed to DOC’s 

Secretary’s Office of Inmate Grievances and Appeals (Appeals Office), noting that 

Sorber had admitted to receiving the books, and referencing enclosed receipts and 

United States Postal Service (USPS) tracking documents/proofs-of-delivery. See 

Complaint ¶19;see also Complaint Ex. H. Despite Sorber’s acknowledgment that 

the books had been delivered to SPC, and the existence of the USPS tracking 

documents, on June 22, 2020, the Appeals Office denied May’s appeal, see 

Complaint ¶20, stating that “[r]eview of the record finds that the responses provided 

to you appropriately addressed your concerns. Records reflect that the items the 

SPC received were forwarded to the facility for review/distribution. Records reflect 

that the SPC only received the two books that you received.” Complaint Ex. I

(emphasis added).

On August 17, 2020, May filed the Complaint in the trial court against 

Jane Doe3and DOC (collectively, DOC) seeking an injunction directing DOC to 

locate and deliver his property, or in the alternative, $25.28 in compensatory 

damages, and costs.4 On October 30, 2020, DOC filed the Preliminary Objections

3

Jane Doe is an unidentified DOC employee who is charged with managing/supervising 

the SPC. See Complaint ¶2. 

4

In Pennsylvania, a tort law remedy is available for the possession 

and/or destruction of non-contraband personal property [by DOC]

by virtue of [S]ection 8522(b)(3) of what is commonly referred to 

as the Sovereign Immunity Act, which waives immunity for 

negligent acts concerning “[t]he care, custody or control of personal 

property in the possession or control of Commonwealth [of 

Pennsylvania (Commonwealth)] parties, including . . . property of 
4

in the nature of a demurrer, wherein it alleged that the Complaint should be 

dismissed because it was legally insufficient pursuant to Pennsylvania Rule of Civil 

Procedure 1028(a)(4). On February 8, 2021, the trial court sustained the Preliminary 

Objections, dismissed the Complaint, and permitted May to file an amended 

complaint within 30 days. The trial court reasoned that because May did not pay for 

the books, the Complaint did not establish actual loss or damages necessary to prove 

negligence. Rather than file an amended complaint, May appealed to this Court. 

Preliminarily, this Court must address whether the trial court’s 

February 8, 2021 order is an appealable order. Generally, only final orders are 

appealable. See Pennsylvania Rule of Appellate Procedure (Rule) 341(a), Pa.R.A.P. 

341(a). Pursuant to Rule 341(b)(1), (3), a final order is any order that “disposes of 

all claims and of all parties[,]” or “is entered as a final order . . . .” Pa.R.A.P. 

341(b)(1), (3). This Court has declared that “[a]n order that sustains preliminary 

objections, but with leave to file an amended complaint, is generally considered to 

be interlocutory and not a final, appealable decree.” Hionis v. Concord Twp., 973 

A.2d 1030, 1034 (Pa. Cmwlth. 2009);

5

see also Mier v. Stewart, 683 A.2d 930 (Pa. 

Super. 1996) (order dismissing complaint without prejudice and affording plaintiff 

30 days to file an amended complaint was not a final order); cf. Sklaroff v. Abington 

Sch. Dist. (Pa. Cmwlth. No. 2134 C.D. 2016, filed May 23, 2017) (order sustaining 

preliminary objections and dismissing complaint without prejudice was not a final 

order); Horan v. Newingham (Pa. Cmwlth. No. 2622 C.D. 2015, filed Oct. 24, 2016), 

persons held by a Commonwealth agency[.]” 42 Pa.C.S. §

8522(b)(3)[.] 

Shore v. Pa. Dep’t of Corr., 168 A.3d 374, 385 n.6 (Pa. Cmwlth. 2017).

5

In Hionis, the trial court’s order sustained preliminary objections and granted the plaintiff 

an opportunity to amend his complaint. However, the plaintiff wished to pursue an immediate 

appeal rather than amend his complaint. This Court held that because, inter alia, the order 

permitted the plaintiff an opportunity to amend his complaint and, thus, did not dispose of “all 

claims[,]” the trial court’s order was not a final order. Id. at 1035 (quoting Pa.R.A.P. 341(b)(1)). 
5

slip op. at 6 (“Both [the Commonwealth] Court and the Superior Court have held 

that an order sustaining preliminary objections, but granting leave to file an amended 

complaint, is not a final order for purposes of pursuing an appeal[.]”); Lichtman v. 

Hodge (Pa. Cmwlth. No. 1563 C.D. 2017, filed Sept. 13, 2018) (finding that the trial 

court’s order was a final appealable order because although the trial court did not 

dismiss the complaint with prejudice, the trial court did not grant plaintiff leave to 

amend the complaint); Schneller v. Prothonotary of Montgomery Cnty. (Pa. Cmwlth.

No. 1316 C.D. 2016, filed Sept. 12, 2017) (disagreeing with the trial court’s assertion 

that its order was not final, and concluding that the trial court’s order was a final 

appealable order because, although the order did not specify whether the complaint 

was dismissed, or dismissed with or without prejudice, the order did not grant the 

plaintiff leave to amend).

6

Here, the trial court sustained the preliminary objections, dismissed 

May’s Complaint, and granted him 30 days to file an amended complaint. 

Accordingly, the trial court’s order, which dismissed May’s Complaint, is 

interlocutory and not a final appealable order.7 

For all of the above reasons, May’s appeal is quashed.

_________________________________

ANNE E. COVEY, Judge

6 Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 

69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited 

for its persuasive value, but not as binding precedent. Lichtman, Schneller, Sklaroff, and Horan

are cited for their persuasive value.

7 The Hionis Court instructed that, in accordance with Ayre v. Mountaintop Area Joint 

Sanitary Authority, 427 A.2d 1294 (Pa. Cmwlth. 1981), “a plaintiff who chooses not to file an 

amended complaint may appeal by filing a praecipe with the trial court to dismiss the original 

complaint with prejudice.” Hionis, 973 A.2d at 1035-36. “By filing a praecipe with the [trial] 

court to issue a final, appealable order, the litigant can obtain appellate review . . . .” Id. at 1036. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Landon May, :

Appellant :

:

v. :

:

Jane Doe, Pennsylvania : No. 649 C.D. 2021

Department of Corrections :

O R D E R

AND NOW, this 17th day of February, 2022, Appellant Landon May’s 

appeal is quashed.

_________________________________

ANNE E. COVEY, Judge