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 

Schuylkill 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 court’s request that its October 20, 2020 Order be vacated and 

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

the trial court dismissed Ricky Tejada’s (Tejada) “Application to Proceed 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) Opinion, 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 reasoned that in addition to Tejada’s claim asserting 

retaliation for exercising his rights under the First Amendment of the United States 

Constitution2 pursuant to 42 U.S.C. § 1983, Tejada had “proffered 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 

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

that inmates have a post-deprivation remedy “in the form 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 is 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 Neitzke v. Williams, 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 assemble, 

and to petition the Government for a redress of grievances.” U.S. CONST. 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 services 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, 385 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) 

(vacating 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 negligent acts concerning ‘[t]he care, 

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

Shore, 168 A.3d at 385 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 personal property in the 

possession or 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 allegedly 

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 contraband or against prison 

regulations. 

Id. at 383 (internal citations omitted). That an 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, id. 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 1925(a) Opinion, 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 dismissed Tejada’s 

Complaint as frivolous pursuant to Civil Rule 240(j)(1). Accordingly, we vacate the 

Order and remand for further proceedings. 

__________________________________________

RENÉE COHN JUBELIRER, President Judge
IN 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 Order 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