IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ricky Tejada, : Appellant :

:

v. : No. 484 C.D. 2021

: Submitted: June 17, 2022 Sue Dowd, Rene Styka and : Jonathan Simpson :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY , Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: August 4, 2022

Before the Court following a remand to the Court of Common Pleas of

Schuy l kill County (trial court) for the issuance of an opinion pursuant to

Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a), (1925(a)

Opinion) , is the trial c ourt ’s request t hat its October 20, 2020 O rder be vacated and

that the matter be remanded for further proceedings. In the October 20, 2020 Order,

the trial court dismiss ed Ricky Tejada’s (Tejada) “Application to P roceed In Forma

Pauperis ” and civil complaint (Complaint) as frivolous pursuant to Pennsylvania

Rule of Civil Procedure 240(j)(1), Pa.R.Civ.P. 240(j)(1). 1 For the following reasons,

the Court will vacate the trial court’s Order and remand for further proceedings.

1 Civil Rule 240(j)(1) provides:2

The facts of this matter were set out at length in the Court’s prior opinion in

Tejada v. Dowd (Pa. Cmwlth.

, No. 484 C.D. 2021, filed May 25, 2022 )

, as was the

basis for our remand for the issuance of a 1925(a) Opinion, and will not be repeated

here.

In its 1925(a) O pinion, the trial court determined that its initial review of

Tejada’s Complaint, which resulted in the Order finding the Complaint frivolous,

was incorrect. The trial court reason ed that in addition to Tejada ’s claim asserting

retaliation for exercising his rights u nder the First Amendment of the United States

Constitution 2 pursuant to 42 U.S.C. § 1983, Tejada had “proffe red a valid state cause

of action

. . . concerning the care, custody [

, ] and control of his personal property in

the possession and control of [Sue Dowd, Rene Styka, and Jonathan Simpson

(Appellees)] sounding in common law concepts of negligence upon which relief

c ould be granted.” (1925(a) Opinion at 3.) Additionally, the trial court recognized

that inmates have a post

- deprivation remedy “in the fo rm of a state law negligence

action against the [employees of the Department of Corrections (DOC) ] for the loss

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 in forma pauperis , the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty i s untrue or if it is satisfied that the action, proceeding or appeal is frivolous.

Pa.R.Civ.P. 240(j)(1) . “A frivolous action or proceeding has been defined as one that ‘lacks an arguable basis either in law or in fact.’” Id. , Note (quoting Ne i tzke v. W illiams , 490 U.S. 319 (1989) )

.

2 The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemb le, and to petition the Government for a redress of grievances.” U.S. C ONST . amend. I. Tejada claims

that he was deprived of his property in retaliation for his exercising his right to file grievances seeking a refund for money spent on particular servic es that were not provided . ( Original Record (O.R.) Item 1, Complaint ¶¶ 13

- 16, 26

- 27.)3

or destruction of personal property under [Section 8522(b)(3) of the Sovereign

Immunity Act,] 42 Pa.C.S. § 8522(b)(3)

. ” 3 ( Id. at 3

- 4

. ) Thus, the trial court

concluded that Tejada’s Complaint “is sufficiently actionable and is not frivolous.”

( Id. at 4 (citing Shore v. Pa. Dep’t of Corr. , 168 A.3d 374, 38 5 n.6 (Pa. Cmwlth.

2017)).)

Remand requests are commonly honored by Pennsylvania appellate courts.

See Commonwealth v. Vasquez , 744 A.2d 1280 (Pa. 2000) (concluding that the

Superior Court did not err in remanding upon a request of the trial court based on

the determination that the original sentence was illegal due to the trial court’s

omission of a mandatory fine ); Jackson Twp. Supervisors v. Est

. of Gresh (Pa.

Cmwlth., No. 1970 C.D. 2014, filed July 9, 2015) (vacating and remanding for full

evidentiary hearing on trial court’s request and conclusion that evidentiary hearing

was required ); Kelso Woods Ass’n v. Swanson , 753 A.2d 894 (Pa. Cmwlth. 2000)

(vacat ing and remanding for calculation of damages upon request by the trial court

, which indicated it had erred in making part of its determination ).

After reviewing Tejada’s Complaint and the trial court’s reasons contained in

its 1925(a) Opinion, we agree that the Order should be vacated and that a remand is

appropriate. In Pennsylvania “a tort law remedy is available for the possession

and/or destruction of non

- contraband personal property by virtue of [ S ] ection

8522(b)(3)

, ” “which waives immunity for ne gligent acts concerning ‘ [t]he care,

custody [,] or control of personal property in the possession or control of ’ ” DOC

.
Shore , 168 A.3d at 38 5 n.6 (quoting 42 Pa.C.S. § 8522(b)(3) ) ; see also Williams v.

3 Section 8522(b)(3) provides: “ the defense of sovereign immunity shall not be raised to claims for damages caused by . . . [t]he care, custody or control of person al property in the possession o r control of Commonwealth parties, including . . . property of persons held by a Commonwealth agency.” 42 Pa.C.S. § 8522(b)(3).4

Stickman , 917 A.2d 915, 917

- 18 (Pa. Cmwlth. 2007) ( concluding that state

employees could not claim sovereign immunity for damage done to the petitioner’s

television while in DOC’s possession)

. In Shore , this Court aptly explained:

When a prison official confiscates a prisoner’s property in an alle gedly unauthorized way, whether it be negligently or intentionally, due process requires [] the existence of an adequate post

- deprivation remedy because it is not feasible for a prison to provide a hearing prior to taking property that is perceived to be c ontraband or against prison regulations.

Id. at 383 (internal citations omitted). That a n inmate may have a post

- deprivation

remedy by filing a state law tort claim against DOC seeking relief for an alleged

deprivation of personal property

, i d. at 385 n.6 (citing Hawkins v. Coleman Hall,

C.C.F. , 453 F. App’x 208, 211 (3d Cir. 2011) (per curiam) ; Austin v. Lehman , 893

F. Supp. 448, 454 (E.D. Pa. 1995)) , reflects that such claims are not, on their face,

frivolous

. As the trial court recognized in its 192 5(a) O pinion, Tejada filed a state

law claim concerning the care, custody, and control of his personal property that

allegedly had been in the possession and control of Appellees . Such claims alleging

a deprivation of personal property by an inmate may be actionable under Section

8522(b)(3). Shore , 168 A.3d at 385; Williams

, 917 A.2d at 917

- 18. We

, therefore

, agree with the trial court ’s assessment that it should not have dismi ssed Tejada’s

C omplaint as frivolous pursuant to Civil Rule 240(j)(1)

. Accordingly, we vacate the

Order and remand for further proceedings.

__________________________________________ RENÉE COHN JUBELIRER, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ricky Tejada, : Appellant :

:

v. : No. 484 C

. D

. 2021

: Sue Dowd, Rene Styka and : Jonathan Simpson :

O R D E R

NOW

, August 4, 2022

, the October 20, 2020 O rder of the Court of Common

Pleas of Schuylkill County (trial court) is VACATED

, and the above

- captioned

matter is REMANDED to the trial court for further proceedings.

Jurisdiction relinquished.

__________________________________________ RENÉE COHN JUBELIRER, President Judge