IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Francis Harris, :

Appellant :

:

v. : No. 1061 C.D. 2017

: Submitted: January 12, 2018

PA Department of Corrections, et al. :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY

SENIOR JUDGE PELLEGRINI FILED: January 31, 2018

Francis Harris (Harris) appeals, pro se, the Court of Common Pleas of 

Greene County’s (trial court) order retransferring his action back to this Court 

because the trial court concluded that it lacked original jurisdiction to decide the 

only remaining count raised against the Pennsylvania Department of Corrections 

and a number of its employees and agents (collectively, the Department), which 

relates to an alleged violation of Section 202 of the Americans with Disabilities

Act (ADA).

1

 

1 Title II of the ADA, 42 U.S.C. § 12132, provides:

[N]o qualified individual with a disability shall, by reason of such 

disability, be excluded from participation in or be denied the 

benefits of the services, programs, or activities of a public entity, 

or be subjected to discrimination by any such entity.
2

The pertinent facts, as alleged, are as follows.2 Harris is currently 

incarcerated for a capital crime at the State Correctional Institution at Greene (SCIGreene) and has been diagnosed with plantar fasciitis, a medical condition that 

causes him to experience foot pain.

3

 While other inmates experiencing similar 

problems are provided with orthotic shoes or given permission to order Timberland 

boots, Harris was denied such shoes and the Timberland boots he was eventually 

permitted to order were overpriced and later confiscated from him. Because his 

plantar fasciitis causes him to experience pain in the morning, Harris also alleges

that the Department failed to accommodate his medical condition when refusing to 

provide him with a medical permission slip allowing him to go to “afternoon yard”

as opposed to “morning yard.”

Significantly, Harris originally filed a petition with this Court, but we 

transferred it to the trial court because he sought money damages, giving the trial 

court original jurisdiction. See Fawber v. Cohen, 532 A.2d 429, 432-33 (Pa. 

1987); see also Balshy v. Rank, 490 A.2d 415 (Pa. 1985).

After the matter was transferred, Harris asserted that the Department’s 

conduct in preventing him from purchasing boots and failing to provide him with 

orthotic shoes to alleviate the pain from his plantar fasciitis constituted cruel and 

 

2 A fuller description of the underlying facts is provided in this Court’s previous decision, 

Harris v. Pennsylvania Department of Corrections (Pa. Cmwlth., No. 2083 C.D. 2016, filed May 

17, 2017) 2017 WL 2153712 (hereinafter, Harris I).

3 Plantar fasciitis is inflammation in the sole of the foot. Fasciitis and Plantar, Stedman’s 

Medical Dictionary, 567 & 1210 (25th ed. 1990).
3

unusual punishment under the Eighth Amendment to the United States 

Constitution;4 his equal protection rights were violated because he was treated 

differently than other inmates who had plantar fasciitis; the Department’s failure to 

permit him to go to “afternoon yard” violated the ADA; the seizing of his boots 

constituted unlawful retaliation and theft by deception; and the Department’s

treatment of his condition constituted medical malpractice and negligence. Harris 

requested an order directing the Department to adhere to the approved medical 

plan to treat his plantar fasciitis, costs associated with the filing of this lawsuit, as 

well as an award of $97,000 in punitive damages.

Before the Department filed a responsive pleading, the trial court 

dismissed Harris’s petition for failure to state a claim on which relief may be 

granted.

5

 On appeal, we affirmed the trial court’s order with the exception of 

 

4 As noted in this Court’s previous opinion:

The facts pled in Harris’s Petition give rise to an action under 42 

U.S.C. § 1983. To state a claim under Section 1983, a plaintiff 

must 1) allege a violation of rights secured by the United States 

Constitution and/or the laws of the United States, and 2) show that 

the alleged deprivation was committed by a person acting under 

color of state law. Anelli v. Arrowhead Lakes Community 

Association, Inc., 689 A.2d 357 (Pa. Cmwlth. 1997). Pursuant to 

the Eighth Amendment, U.S. Const. amend. VIII, “excessive bail 

shall not be required, nor excessive fines imposed, nor cruel and 

unusual punishments inflicted.”

Harris I, slip op. at 5 n.7.

5

See Section 6602(e)(2) of the Prison Litigation Reform Act (PLRA), Act of June 18, 

1998, P.L. 640, No. 84, as amended, 42 Pa.C.S. § 6602(e)(2), which provides:

(Footnote continued on next page...)
4

Harris’s ADA claim, which we reversed and remanded to the trial court for the 

Department to file a responsive pleading.

On remand, the trial court ordered the Department to file a responsive 

pleading to the remaining ADA claim. Notwithstanding, the Department filed a 

motion to transfer asserting that the trial court lacked original jurisdiction to decide 

the matter. On July 5, 2017, the trial court issued an order granting the 

Department’s motion, concluding that Harris’s remaining ADA count falls within 

this Court’s exclusive jurisdiction because he sought a writ of mandamus in 

addition to money damages.

6

 This appeal followed.

 

(continued...)

Notwithstanding any filing fee which has been paid, the court shall 

dismiss prison conditions litigation at any time, including prior to 

service on the defendant, if the court determines . . . [t]he prison 

conditions litigation is frivolous or malicious or fails to state a 

claim upon which relief may be granted or the defendant is entitled 

to assert a valid affirmative defense, including immunity, which, if 

asserted, would preclude the relief.

6 Section 761 of the Judicial Code establishes this Court’s original jurisdiction and 

provides, in pertinent part:

(a) General Rule.--The Commonwealth Court shall have original 

jurisdiction of all civil actions or proceedings:

(1) Against the Commonwealth government, including any 

officer thereof, acting in his official capacity, except:

* * *

(v) actions or proceedings in the nature of trespass 

as to which the Commonwealth government formerly enjoyed 

sovereign or other immunity and actions or proceedings in the 

(Footnote continued on next page...)
5

When a court lacks jurisdiction over a matter, Section 5103(c) of the

Judicial Code provides for transfer to the proper tribunal. 42 Pa.C.S. § 5103(c). 

Specifically,

If an appeal or other matter is taken to, brought in, or 

transferred to a division of a court to which such matter is 

not allocated by law, the court shall not quash such 

appeal or dismiss the matter, but shall transfer the record 

thereof to the proper division of the court, where the 

appeal or other matter shall be treated as if originally 

filed in the transferee division on the date first filed in a 

court or magisterial district.

Id. Notwithstanding, it is improper for a trial court to “retransfer” a matter back to 

this Court if we originally transferred the matter to the trial court for jurisdictional 

reasons. For example, in Rank v. Balshy, 475 A.2d 182 (Pa. Cmwlth. 1984), aff’d, 

490 A.2d 415 (Pa. 1985), this Court originally transferred a matter to the common 

pleas court for jurisdictional reasons, but the matter was transferred back to this 

Court after the common pleas court also concluded that it lacked jurisdiction. On 

appeal, we once again transferred the matter back to the trial court, noting:

 

(continued...)

nature of assumpsit relating to such actions or proceedings in the 

nature of trespass.

* * *

(c) Ancillary matters.--The Commonwealth Court shall have 

original jurisdiction in cases of mandamus . . . .

42 Pa.C.S. § 761.
6

It is unfortunate that the Plaintiff-Petitioner is the victim 

of this procedural football but this Court must very 

carefully scrutinize cases alleged to be in its original 

jurisdiction because we are ill-equipped from the 

standpoint of personnel and physical facilities to engage 

in the trial of cases, especially those where a jury must be 

impanelled [sic]. While we respect and hold in highest 

regard the common pleas trial courts in the 

Commonwealth, we believe that an order of this Court 

which has not been appealed should be enforced 

rather than reviewed by a court of common pleas.

Id. at 185 (emphasis added). On appeal, our Supreme Court affirmed this Court’s

decision to once again transfer the matter back to the trial court, stating:

We disapprove the practice of Courts of Common Pleas 

refusing jurisdiction and attempting to “retransfer” 

matters to Commonwealth Court. The proper practice in 

cases such as this one would be for Common Pleas Court 

to dismiss the action and for the parties to take an appeal.

Balshy v. Rank, 490 A.2d 415, 416 (Pa. 1985); see also City of Philadelphia v. 

Philadelphia Parking Authority, 798 A.2d 161, 170 n.8 (Pa. 2002) (Saylor, J., 

concurring) (“We note, however, that the Court’s comments in Balshy were 

directed to the practice of ‘retransfer’ by courts of common pleas to the 

Commonwealth Court, which has appellate jurisdiction over them.”).

Simply put, while the trial court may disagree with this Court’s 

original transfer order or how we interpreted Harris’s action against the 

Department, it is nonetheless obligated to follow that order.
7

In any event, the trial court has original jurisdiction to decide Harris’s 

remaining ADA claim because he is seeking, among other things, money 

damages.7 Pursuant to 42 Pa.C.S. § 761(a), this Court has original jurisdiction over 

civil actions or proceedings:

(1) Against the Commonwealth government, including 

any officer thereof, acting in his official capacity, except:

* * *

(v) actions or proceedings in the nature of trespass 

as to which the Commonwealth government formerly 

enjoyed sovereign or other immunity and actions or 

proceedings in the nature of assumpsit relating to such 

actions or proceedings in the nature of trespass.

42 Pa.C.S. § 761(a)(1)(v). Examining this Section, our Supreme Court has held:

[T]he clear intent of the General Assembly is that actions 

against the Commonwealth or its officers acting in their 

official capacity for money damages based on tort 

liability are outside the original jurisdiction of the 

Commonwealth Court and are properly commenced in 

the Courts of Common Pleas.

Balshy, 490 A.2d at 420-21.

 

7

In its brief, the Department also contends that this Court has original jurisdiction over 

Harris’s ADA claim because the Department’s Secretary, John Wetzel (Secretary Wetzel), is 

named as a party in this matter. However, Harris’s complaint does not allege specific 

wrongdoing by Secretary Wetzel nor does he allege the existence of a statewide policy causing 

his alleged mistreatment. Accordingly, a statewide official is not an indispensable party in this 

matter. See Miles v. Beard, 847 A.2d 161, 164 (Pa. Cmwlth. 2004).
8

Here, it is clear that Harris’s ADA claim falls within Section 

761(a)(1)(v) because he is seeking money damages under a statutory provision 

and, accordingly, his ADA claim constitutes an action in tort. See Hill v. 

Pennsylvania Department of Environmental Protection, 679 A.2d 773 (Pa. 1996) 

(holding that an employment discrimination complaint for money damages under 

various statutes, including provisions of the ADA, falls within 42 Pa.C.S. § 

761(a)(1)(v)). While Harris may also be seeking mandamus relief, our Supreme 

Court has made clear that this does not operate to transform a trial court’s 

jurisdiction as it would arguably permit forum shopping through pleading. See 

Stackhouse v. Commonwealth, 832 A.2d 1004, 1008-09 (Pa. 2003).

Accordingly, we reverse the trial court’s order granting the 

Department’s motion to transfer and remand the matter to the trial court for the

Department to file a responsive pleading to Harris’s remaining ADA claim.

___________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Francis Harris, :

Appellant :

:

v. : No. 1061 C.D. 2017

:

PA Department of Corrections, et al. :

O R D E R

AND NOW, this 31st day of January, 2018, it is hereby ordered that 

the Court of Common Pleas of Greene County’s (trial court) order in the abovecaptioned matter is reversed and the matter is remanded to the trial court for further 

proceedings consistent with this opinion.

Jurisdiction relinquished.

___________________________________

DAN PELLEGRINI, Senior Judge