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.
2

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.
3

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 
4

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.
5

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 complainedof 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.
6

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 
7

Plaintiff now directs our attention, was not attached as an exhibit to his thirdamended 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.
8

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.
9

D.

Plaintiff next contends that the trial court erred in dismissing his thirdamended 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...)
10

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...)
11

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).
12

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).
13

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
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

O R D E R

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