IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Francis Harris, :

Appellant :

:

v. : No. 1061 C .D. 20 1 7 : Submitted: January 12 , 20 1 8 PA Department of Corrections, et al

. :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MIC HAEL 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 re transfer ring his ac tion 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 Departme nt)

, 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 Correcti onal Institution at Gree ne (SCI

Greene) 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

. Bec ause 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 allowi ng him to go to “afternoon yard ”

as opposed to “morning yard.”

Significantly

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

transfe rred 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 as serted 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 S tates

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

c ons tituted 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 pla ntar 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 p etition for failure to state a claim on which rel ief 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 op inion:

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, “exce ssive 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 amen ded

, 42 Pa.C.S. § 6602(e)(2), which provides:

(Footnote continued on next page...)4

Harris ’ s ADA claim, which we reverse d and remand ed to the trial court for the

Department to file a responsive pleading

.

O n remand, the trial court ordered the Depa rtment to file a responsive

pleading to the remaining ADA claim

. Notwithstanding, the Department filed a

m otion to t ransfer asserting that the trial court lacked origi nal 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

con ditions 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, i ncluding 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 ove r 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 th e trial court for jurisdictional

reasons

. For examp le, i n 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 th is

Court a fter the common plea s court also concluded that it lacked jurisdiction. On

appeal, we on ce again transferr ed the matter b ack to the trial court, noting :

(continued...)

nat ure 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 careful ly 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 a nd 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, o ur Supreme Court affirmed this Court ’s

decision to once again transfer the matter bac k to the trial court

, stating :

We disapprove the practice of Courts of Common Pleas refusing jurisdictio n and attempting to “retransfer ” matters to Commonwealth Court. T he 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, 17 0 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 tr ial 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 jurisdict ion 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 ov er
civil actions or proceedings:

(1) Against the Commonwealth government, includ ing 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 offi cers 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, t he 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 Secretar y 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 tha t 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 ha s made clear that this does not operate to transform a trial court’s

jurisdiction as it would arguably permit for u m shopping through pleading. See

Stackhouse v. Com monwealth , 832 A.2d 1004, 1008

- 09 (Pa. 2003).

Accordingly, we reverse the trial court’s o rder 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 JudgeIN TH E COMMONWEALTH COURT OF PENNSYLVANIA

Francis Harris, :

Appellant :

:

v. : No. 1061 C .D. 201 7

: PA Department of Corrections, et al

. :

O R D E R

AND NOW, this 31 st day of January , 201 8 , it is hereby ordered that

the Court of Common Pleas of Greene County’s (trial court) order in the above

captioned 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