IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Quentin Johnson, :

Appellant :

:

v. :

:

Pennsylvania Department of :

Corrections of the Commonwealth of :

Pennsylvania; Gregory A. Fabrizio, :

Facility Safety Manager; Charles : No. 981 C.D. 2022

Fabian, Facility Maintenance Manager : Submitted: July 14, 2023

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge 

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: October 6, 2023

Quentin Johnson (Johnson) appeals, pro se, from the Schuylkill County 

Common Pleas Court’s (trial court) August 22, 2022 order dismissing his complaint 

(Complaint) against the Pennsylvania Department of Corrections of the 

Commonwealth of Pennsylvania (DOC), DOC Facility Safety Manager Gregory A. 

Fabrizio (Fabrizio), and DOC Facility Maintenance Manager Charles Fabian

(Fabian) (collectively, also DOC) as frivolous pursuant to Pennsylvania Rule of 

Civil Procedure (Civil Rule) 240(j)(1), Pa.R.Civ.P. 240(j)(1). Johnson presents one 

issue for this Court’s review: whether the trial court erred by determining that his 

Complaint failed to state a claim upon which relief can be granted and, thus, was

wholly frivolous. After review, this Court vacates and remands.
2

Johnson is currently incarcerated at the State Correctional Institution at 

Mahanoy (SCI-Mahanoy).

1

 On or about July 5, 2022, Johnson filed the Complaint,

pro se, in the trial court seeking damages for low back and knee injuries he claims 

to have sustained when he fell on a wet, slippery concrete floor in the dayroom of 

SCI-Mahanoy’s JB housing unit (JB Unit) on or about October 2021. See Johnson 

Br. Ex. B (Complaint) ¶¶ 8-9, 13-15; see also Complaint ad damnum clause. In his 

Complaint, Johnson attributed the water on the floor to DOC’s negligence and 

carelessness in failing to repair a leaking roof and/or taking precautions to prevent 

injury. See id. ¶¶ 5-7, 12. Also on July 5, 2022, Johnson filed an Application for 

Leave to Proceed In Forma Pauperis (IFP Application). 

On August 22, 2022, the trial court dismissed the Complaint pursuant 

to Civil Rule 240(j)(1) and denied Johnson’s IFP Application. See Johnson Br. Ex. 

A (Trial Ct. Order) at 1-2. On September 12, 2022, Johnson appealed to this Court.2 

On October 27, 2022, the trial court ordered Johnson to file a Concise Statement of 

Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate 

Procedure (Appellate Rule) 1925(b) (1925(b) Statement). See Original Record 

(O.R.) Item 6. On November 9, 2022, Johnson filed his 1925(b) Statement. See

O.R. Item 7. On January 27, 2023, the trial court issued its opinion pursuant to 

Appellate Rule 1925(a) (1925(a) Opinion). See O.R. Item 9. By March 21, 2023

letter, DOC’s Office of General Counsel notified this Court that DOC “will not 

participate in this appeal as the matter was dismissed by the [trial court] prior to 

service.” March 21, 2023 Non-Participation Letter at 1. 

1

See www.inmatelocator.cor.pa.gov (last visited Sept. 13, 2023).

2

“Our scope of review is limited to determining whether constitutional rights have been

violated, whether the trial court abused its discretion, or whether the trial court committed an error

of law.” Mohica v. SCI-Mahanoy Sec., 224 A.3d 811, 812 n.2 (Pa. Cmwlth. 2020) (quoting 

Lichtman v. Glazer, 111 A.3d 1225, 1227 n.4 (Pa. Cmwlth. 2015)).

Johnson filed an IFP Application in this Court, which this Court granted on November 4, 

2022.
3

Initially, “[Civil] Rule 240 provides for a procedure by which a person 

who is without the financial resources to pay the costs of litigation may proceed [in 

forma pauperis].” Ocasio v. Prison Health Servs., 979 A.2d 352, 354 (Pa. Super. 

2009). Civil Rule 240(j)(1) provides, in relevant part:

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 it is satisfied that the action, 

proceeding or appeal is frivolous.

Note: A frivolous action or proceeding has been 

defined as one that “lacks an arguable basis either 

in law or in fact.” Neitzke v. Williams, 490 U.S. 

319, [326] . . . (1989).

Pa.R.Civ.P. 240(j)(1) (italics omitted). “An action is frivolous under [Civil Rule

240(j)] if, on its face, it does not set forth a valid cause of action[.]” Bennett v. 

Beard, 919 A.2d 365, 367 (Pa. Cmwlth. 2007) (quoting McGriff v. Vidovich, 699 

A.2d 797, 799 (Pa. Cmwlth. 1997)). 

Here, Johnson asserted a negligence claim against Fabrizio and Fabian 

in their official capacity, and DOC as respondeat superior. This Court has 

explained:

Pursuant to [a]rticle [I], [s]ection 11 of the Pennsylvania 

Constitution, the General Assembly declared that ‘the 

Commonwealth, [PA. CONST. art. I, § 11,] and its officials 

and employees acting within the scope of their duties, shall 

continue to enjoy sovereign immunity and official 

immunity and remain immune from suit except as the 

General Assembly shall specifically waive the immunity.’ 

1 Pa.C.S. § 2310. 

Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017) (footnote omitted).

This Court determines whether a Commonwealth 

employee is protected by sovereign immunity by 

considering “whether the . . . employee was acting within 
4

the scope of his or her employment; whether the alleged 

act which causes injury was negligent and damages would 

be recoverable but for the availability of the immunity 

defense; and whether the act fits within one of the [10]

exceptions to sovereign immunity.”[3]

Id. at 122 (quoting La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992)); 

see also Section 8522 of the Judicial Code, 42 Pa.C.S. § 8522, commonly known as 

the Sovereign Immunity Act (Act).

Thus, “[t]o impose liability on a Commonwealth party, (1) 

the alleged negligent act must involve a cause of action 

that is recognized at common law or by a statute, and (2) 

the case must fall within one of [the] exceptions to 

sovereign immunity listed in Section 8522(b)” of [the 

Act]. Bufford v. Pa. Dep’t of Transp., 670 A.2d 751, 753 

(Pa. Cmwlth. 1996) (citing 42 Pa.C.S. § 8522(b)). 

[Johnson], therefore, bore the “initial burden” of setting 

forth a claim for negligence against [DOC] where 

damages would be recoverable under the common law or 

a statute creating a cause of action. LaChance v. Michael

Baker Corp., 869 A.2d 1054, 1057 (Pa. Cmwlth. 2005), as

amended (Feb. 10, 2005); see also Williams v. Phila.

Hous. Auth., 873 A.2d 81, 85 (Pa. Cmwlth. 2005) (“The 

threshold question in a case of . . . sovereign immunity is 

whether [Johnson] would have an action in damages at 

common law or statute if [DOC] could not claim the 

defense of governmental or sovereign immunity.”).

Young v. Wetzel, 260 A.3d 281, 289 (Pa. Cmwlth. 2021) (footnotes omitted). 

 In order to satisfy the first immunity waiver requirement, there must be 

a cause of action involving a Commonwealth employee’s negligence recognized at 

common law or by statute. See Young. This Court has explained: “To state a 

negligence claim, ‘the plaintiff must demonstrate that the defendant owed a duty of 

3 Acts by a Commonwealth party for which liability may be imposed relate to: (1) vehicle 

liability; (2) medical-professional liability; (3) care, custody, and control of personal property; (4) 

Commonwealth real estate, highways, and sidewalks; (5) potholes and other dangerous conditions; 

(6) care, custody, and control of animals; (7) liquor store sales; (8) National Guard activities; (9) 

toxoids and vaccines; and (10) sexual abuse. See Section 8522(b) of the Judicial Code, 42 Pa.C.S. 

§ 8522(b). 
5

care to the plaintiff, the defendant breached that duty, the breach resulted in injury 

to the plaintiff, and the plaintiff suffered an actual loss or damage.’” Id. at 289

(quoting Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998)). “The [] duty of care a

Commonwealth agency owes to those using its real estate[] is such as to require that 

the condition of the property is safe for the activities for which it is regularly used,

intended to be used[,] or reasonably foreseen to be used.” Snyder v. Harmon, 562 

A.2d 307, 312 (Pa. 1989).

In the Complaint, Johnson claimed that DOC and its employees,

Fabrizio and Fabian, owed him a duty of care, that they breached their duty by failing 

to inspect, maintain, and repair the roof over the JB Unit under their care, custody 

and control, that said roof leaked water, which made the floor wet and slippery, and 

that he was injured and sustained damages as a result. Because Johnson pled a cause 

of action recognized at common law or by a statute, he met the first immunity waiver 

requirement.

In order to satisfy the second immunity waiver requirement, the action 

must fall within one of the exceptions listed in Section 8522(b) of the Act. See 

Young. Here, Johnson alleged in the Complaint that the water pooled on the floor of 

SCI-Mahanoy’s JB Unit, which was under DOC’s care, custody, and control. 

Section 8522(b)(4) of the Act expressly waives sovereign immunity for negligence 

claims against Commonwealth employees relative to, inter alia, “Commonwealth

real estate . . . -- A dangerous condition of Commonwealth agency real estate . . . , 

including Commonwealth-owned real property[.]” 42 Pa.C.S. § 8522(b)(4).

Because the General Assembly’s intent in the Act is to shield 

government from liability except as specifically provided in the statutes, see U.S.

Venture, Inc. v. Commonwealth, 255 A.3d 321 (Pa. 2021), “the exceptions to 

sovereign immunity must be strictly construed and narrowly interpreted[.]” Casteel

v. Tinkey, 151 A.3d 261, 273 (Pa. Cmwlth. 2016). “In construing the real estate 
6

exception, Pennsylvania courts have held that the ‘dangerous condition must derive, 

originate from, or have as its source the Commonwealth realty.’” Hall v. Sw. Pa. 

Water Auth., 87 A.3d 998, 1000 (Pa. Cmwlth. 2014) (quoting Snyder, 562 A.2d at 

311). “[T]he focus must be on whether there is proof of a defect in the real property 

itself.” Nardella v. Se. Pa. Transp. Auth., 34 A.3d 300, 304 (Pa. Cmwlth. 2011). 

This Court has explained:

The test for determining whether the real estate exception

applies to remove sovereign immunity is as follows:

[A] claim for damages for injuries caused by a 

substance or an object on Commonwealth real

estate must allege that the dangerous condition 

derived, originated or had as its source the 

Commonwealth realty itself, if it is to fall within 

the . . . Act’s real estate exception. . . . In other 

words, assuming all other requirements of the 

statutory exception at [Section 8522(b)(4) of the 

Act] are met, the Commonwealth may not raise 

the defense of sovereign immunity when a 

plaintiff alleges, for example, that a substance 

or an object on Commonwealth realty was the 

result of a defect in the property or in its 

construction, maintenance, repair[,] or design.

Jones v. S[e.] P[a.] Transp[.] Auth[.], . . . 772 A.2d 435, 

443-[]44 ([Pa.] 2001) (internal citations, alterations, and 

quotation marks omitted). For an injury to be caused by a 

“dangerous condition of the real estate” and fall within the 

real estate exception, the actual defect or flaw in the real

estate itself must cause the injury, not some substance on 

the real property such as ice, snow, grease, or debris, 

unless such substances are there because of a design or 

construction defect.

Raker v. Pa. Dep’t of Corr., 844 A.2d 659, 662 (Pa. Cmwlth. 2004) (emphasis 

added). 
7

Here, Johnson averred:

[Johnson’s] slip and fall accident was caused exclusively 

and solely by [DOC’s] negligence and carelessness in that:

(a) [DOC] caused or permitted an unreasonable risk of 

injury to [Johnson] by failing to repair the leaky roof that 

caused water to dangerously pool or collect onto the floor 

of [the] JB Unit;

(b) [D]espite recognizing the need for roofing repairs, 

[DOC] failed to mitigate the dangerous condition posed by 

the wet slippery concrete floor that existed when the roof 

leaked water onto the floor of [the] JB Unit; and

(c) [DOC] failed to take precautionary measures despite 

being on notice of the danger that the wet floor posed to 

[Johnson], other inmates, and staff walking on the wet 

floor of [the] JB Unit at SCI-Mahanoy.

Complaint ¶ 12. 

In its August 22, 2022 order, the trial court denied Johnson’s IFP 

Application and dismissed the Complaint, declaring:

The test to determine if the Commonwealth is protected

from liability by sovereign immunity for a negligent act is 

whether the Commonwealth employees were acting 

within the scope of their employment; “the alleged act 

which cause[d] the injury was negligent and damages 

would be recoverable but for the availability of the 

immunity defense”; and “the act fits within one of the . . .

exceptions to sovereign immunity[.]”[] See Garcia [v. 

Howell, (Pa. Cmwlth. No. 800 C.D. 2018, filed Aug. 23, 

2019)].[4] The exception to the immunity defense as set 

forth in [Section 8522 of the Act] do[es] not apply to a 

slip and fall in the [JB Unit] of . . . SCI-Mahanoy.

Trial Ct. Order at 1-2 (emphasis added). 

4 This Court’s unreported memorandum opinions may be cited “for [their] persuasive 

value, but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal 

Operating Procedures, 210 Pa. Code § 69.414(a). Garcia was cited for its persuasive value.
8

However, in Berhane v. Southeastern Pennsylvania Transportation 

Authority, 646 A.2d 1268 (Pa. Cmwlth. 1994), this Court reversed the trial court’s 

grant of summary judgment where the plaintiff alleged that she was injured when 

she slipped and fell on “water accumulated because of a faulty design or maintenance 

over the areas directly over the subway stairway and landing so that there was water 

seepage and leakage into the stairway and landing.” Id. at 1269 (quotation marks 

omitted). The Berhane Court held:

[W]e will permit the imposition of liability if there is an 

allegation and proof that the substance on the . . . real 

estate was caused to be on the real estate because of an 

improper design, construction, deterioration, or inherent 

defect of the real estate itself. In those cases, the 

dangerous condition emanates from the real estate itself. 

Under such circumstances, a jury could find that the 

dangerous condition derived or originated from and had as 

its source the reality.

Id. at 1270 (quoting Finn v. City of Phila., 645 A.2d 320, 325 (Pa. Cmwlth. 1994), 

aff’d, 664 A.2d 1342 (Pa. 1995)). “This case fits squarely into that portion of the 

language quoted above which permits the imposition of liability where there is an 

allegation that the presence of the water was caused by improper design and 

maintenance of the real estate itself.”

5

 Berhane, 646 A.2d at 1270.

5 Notably, in its 1925(a) Opinion, the trial court stated:

Upon further review[,] we recognize that the [August 22, 2022] 

order was incorrect, in that [Johnson] did allege that he slipped and 

fell on a wet floor at the J[]B[] Unit . . . [and] that the defect was 

caused by a leaky roof causing water to dangerously pool or collect 

onto the floor . . . . This [trial c]ourt mistakenly overlooked that 

fact, and . . . should have granted the [IFP Application] . . . 

pursuant to Raker v. P[ennsylvania] Department of Corrections, 844 

A.2d 659 (Pa. Cmwlth. 2004) . . . . [T]he case should be remanded 

to the [trial court] so that the [trial c]ourt may grant [Johnson’s IFP 

Application].

O.R. Item 9 (1925(a) Op.) at 1-2 (emphasis added). 
9

Based on this Court’s review, Johnson’s Complaint included all of the 

elements for a negligence claim (i.e., duty, breach, causation, and damages) against 

DOC, Fabrizio, and Fabian, and he pled his action such that it could fall under

Section 8522(b)(4) of the Act as “[a] dangerous condition of Commonwealth agency 

real estate” (i.e., water caused by a leaking roof). 42 Pa.C.S. § 8522(b)(4). Thus, it 

appears that Johnson could satisfy the immunity waiver requirements. 

Because Johnson pled a viable negligence claim, his Complaint was not 

frivolous,

6

and the trial court erred by denying Johnson’s IFP Application and 

dismissing Johnson’s Complaint pursuant to Civil Rule 240(j)(1). Accordingly, the 

trial court’s order is vacated, and the matter is remanded to the trial court for further 

proceedings consistent with this Opinion.

_________________________________

ANNE E. COVEY, Judge

6

Importantly, whether the roof’s design, construction, repair, and/or maintenance caused 

water to leak onto the JB Unit floor, whether DOC or its employees were negligent, whether their 

negligence caused Johnson’s injuries, and whether Johnson sustained damages and the amount 

thereof, are facts Johnson must now prove in proceedings before the trial court.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Quentin Johnson, :

Appellant :

:

v. :

:

Pennsylvania Department of :

Corrections of the Commonwealth of :

Pennsylvania; Gregory A. Fabrizio, :

Facility Safety Manager; Charles : No. 981 C.D. 2022

Fabian, Facility Maintenance Manager :

O R D E R

AND NOW, this 6

th day of October, 2023, the Schuylkill County 

Common Pleas Court’s (trial court) August 22, 2022 order is vacated, and the matter 

is remanded to the trial court for further proceedings consistent with this Opinion.

Jurisdiction is relinquished.

_________________________________

ANNE E. COVEY, Judge