IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terrence Andrew Harris, :

Appellant :

 :

v. : No. 1199 C.D. 2021 

 : Submitted: February 17, 2023

Pennsylvania Department :

of Corrections, et al. :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: November 8, 2023

Terrence Andrew Harris (Harris), an inmate incarcerated at the State 

Correctional Institution at Somerset (SCI-Somerset), appeals, pro se, from the Order 

entered in the Court of Common Pleas of Somerset County (trial court) on 

September 28, 2021, sustaining in part and overruling in part the Department of 

Corrections, et al.’s1(collectively, Appellees) preliminary objections (POs) to 

Harris’s Complaint and dismissing Harris’s Complaint as sovereign immunity bars 

Harris’s causes of action against Appellees. After review, we affirm.

1 Harris named the following as defendants in his Complaint: Pennsylvania Department of 

Corrections Secretary John E. Wetzel and Staff; Director of the Office of Special Investigations 

and Intelligence – Unknown and Staff Chief; Secretary’s Office of Inmate Grievance and Appeals

– Dorina Varner and Staff; Assistant Chief Grievance Officer Keri Moore and Staff; SCI-Somerset

Facility Manager/Superintendent Melissa R. Hainsworth (Superintendent); SCI-Somerset Facility 

Grievance Coordinator Allen Joseph; SCI-Somerset Facility Grievance Coordinator Christie L. 

Schenck; SCI-Somerset Grievance Officer/B&C Unit Manager Eric Frazier (Unit Manager); SCISomerset Head of Internal Security Captain Brothers (Security Captain) and Staff; Major Price; 

Mrs. Pyle; Corrections Emergency Response Team (CERT) – All Staff Present and in Leadership 

of such during this time. (Complaint (Compl.) at 2.) 
2

I. BACKGROUND

Harris filed the Complaint with the trial court in March 2018, listing 40 causes 

of action against Appellees, including “civil rights/criminal injustices & 

violations[;]” “failure to properly investigate inmate grievances[;]” annoyance, 

anxiety, emotional distress, false security, harassment, mental anguish, profane 

abuse, psychological distress[;]” “violation of 28 U.S.C. § 1983, § 1986, & 

§ 1987[;]” and “conduct unbecoming under color of law or in personal capacity[.]” 

(Complaint (Compl.) at 19.)2 Appellees removed the case to federal court, and the 

United States District Court for the Western District of Pennsylvania (district court) 

dismissed the entire Complaint. Harris v. Pa. Dep’t of Corr. (W.D. Pa., No. 3:18-

cv-99, filed June 26, 2019). The Third Circuit affirmed in part, vacated in part, and 

remanded for the district court to consider whether to exercise its supplemental 

jurisdiction over two of Harris’s state law claims: (1) deprivation of lawful property 

and loss of use; and (2) theft of property. Harris v. Wetzel (3d Cir., No. 19-2582, 

filed July 30, 2020), 2020 WL 4362113 (per curiam). Upon remand, the district 

court declined to exercise its supplemental jurisdiction and transferred the matter to 

the trial court for the purposes of addressing only the two state law claims. Harris 

v. Pa. Dep’t of Corr. (W.D. Pa., No. 3:18-cv-99, filed Aug. 26, 2020), Original 

Record (O.R.) Item 19. As a result, relevant here are only Harris’s claims for 

“deprivation of lawful property & loss of use”

3

and “theft of property.”

4

 (Compl. at 

19.) 

Notwithstanding that the Third Circuit limited Harris’s suit to his two state 

law claims, Harris’s factual allegations in his Complaint encompass all 40 of his

2 Harris’s Complaint is not comprised of individually numbered paragraphs. Thus, we cite 

to the page of the Complaint, as reflected by the handwritten numbering provided by Harris.

(Footnote continued on next page...)
3

claims. As such, we reiterate that we are constrained by the Third Circuit to consider 

the factual allegations in the context of Harris’s two state law claims of deprivation 

of property and loss of use and theft of property.

Harris avers that “[o]n three [] separate dates, Correctional Emergency 

Response Team(s), a.k.a. (CERT), [] subjected the entire [SCI-]Somerset to

emergency lockdowns[,]” during which time his cell was searched. (Compl. at 15.) 

In the first search, Harris avers guards confiscated “legal paper exhibits/personal 

credentials,” issued Harris a misconduct for possessing such material as “contraband 

and implements of escape[,]” and gave Harris a 30-day cell restriction and 6-month 

commissary restriction. (Id.) In the second search, Harris asserts “there w[ere] no 

notable violations other than the removal of excess items without a confiscation slip

being written[.]” (Id.) In the third search, Harris contends he experienced “a 

massive retaliatory search[.]” (Id.) During the strip-down portion of the search, 

Harris alleges he was “verbally assaulted with very unkind language, degraded for 

[his] physical size and appearance, harassed for having a good supply of 

commissary, and was asked very inappropriate question[s] unrelated to the search at 

hand, all whil[]e standing nude and without [his] eyeglasses on.” (Id.) Further, 

Harris alleges he was handcuffed, removed from his cell, and told to look at the floor 

and stand for over an hour. (Id.) According to the Complaint, during this time Harris

heard two guards discuss his food supply, so he glanced into the cell and saw two 

guards eating his “Hershey’s chocolate bar and vanilla cookies[.]” (Id.) When the 

guards saw Harris “peeking[,]” he contends he was “verbally attacked” and moved 

3 This claim is listed as cause of action 11 in the Complaint. Count 11 was asserted against 

Superintendent, Unit Manager, Security Captain, and CERT. (Compl. at 20-21.) 

4 This claim is listed as cause of action 33 in the Complaint. Count 33 was asserted only 

against CERT. (Compl. at 21.)
4

to a spot where he could no longer see the guards inside his cell. (Id.) Once the 

search was complete, Harris avers he was uncuffed and escorted back to his cell 

where he saw “a rather full and large bag of confiscated items . . . of which [he] 

could easily see was the vast majority of [his] non-perishable food/commissary, 

which was legally purchased and stored in [his] foot locker at [the] time.” (Id. at 

16.) Harris includes a list of confiscated items, which is included on page 29c of his 

Complaint. Harris estimates the value of the confiscated items was $47.44, listing 

the Hershey’s chocolate bar as being worth $0.86 and the vanilla cookies as being 

worth $1.22. (Id. at 29c.) Harris states he did not receive a confiscation slip for the 

third search, which is required for all confiscations when items are removed for any 

reason. (Id. at 16.) Harris asserts he exhausted the internal grievance process. (Id.

at 8, 16.)

Harris seeks “actual cost/loss of property,” damages for “legal time, 

preparation of documents, cost(s) of filing,” and “exemplary, punitive, 

emotional/mental/physically traumatic damages.” (Id. at 30.) He also requests that 

the Court “issue judicial corrective orders, cease and desist orders, civil and criminal 

sanctions, administrative training and/or firing recommendations, and all other relief

as deemed appropriate,” including “prospective relief, preliminary relief, permanent 

relief, exemplary relief, special relief, relevant relief, customary monetary relief, 

injunctive and declaratory relief, punitive relief, actual relief, administrative 

sanctions, criminal charges, civil liberties re-edu[ca]tion and training, et al.” (Id. at 

31.)

Appellees filed POs asserting, inter alia, Harris’s Complaint should be 

dismissed for failure to state a claim upon which relief may be granted (demurrer)
5

because Appellees are immune from suits alleging negligent or replevin acts.

5

 (POs 

¶¶ 18; Brief in Support of POs at 7-8.)

6

 Following briefing and argument, the trial 

court issued a Memorandum and Order on September 28, 2021 (Memo. & Order). 

As to Appellees’ demurrer, the trial court explained that, while sovereign immunity 

is generally pleaded as an affirmative defense, when on the face of a complaint the 

cause of action does not fall into an exception to sovereign immunity, it is 

appropriate to decide the issue on a preliminary objection. (Memo. & Order at 10.) 

The trial court stated that Appellees are Commonwealth parties for the purposes of

sovereign immunity as they are employees of a Commonwealth agency, the 

Department of Corrections (DOC), and acted within the scope of their employment 

during the incidents in question. (Id. at 10-11.) The trial court found the facts alleged 

by Harris to be analogous to those in Williams v. Pennsylvania Department of 

Corrections. (Pa. Cmwlth., No. 695 M.D. 2016, filed September 11, 2017), in which 

this Court, acting in its original jurisdiction, sustained preliminary objections by 

DOC respondents on the basis of sovereign immunity in an action for replevin 

brought by an inmate seeking to recover damages for items that were confiscated.7 

5 Appellees also filed POs asserting that the Complaint violated Pennsylvania Rule of Civil 

Procedure 1028(a)(2) and (3), Pa.R.Civ.P. 1028(a)(2), and (3), respectively, as it included 

scandalous or impertinent matter, and was insufficiently pled. (POs ¶¶ 20-21.) The trial court 

sustained the PO pursuant to Rule 1028(a)(2) as to all Appellees except CERT. (Memorandum & 

Order at 5-9.) It overruled the PO asserting the Complaint was frivolous. (Id. at 15-17.) 

Nonetheless, as discussed more fully below, the trial court dismissed the Complaint upon 

sustaining the demurrer. (Id. at 9-15.) As the demurrer on the basis of sovereign immunity is 

dispositive, we focus on that issue. 

6 The POs and Brief in Support of POs may be found in the Original Record as Items 26 

and 27.

7 While not binding, unreported panel decisions of this Court may be considered persuasive 

authority pursuant to Rule 126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 

126(b)(1), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 

69.414(a).
6

(Memo. & Order at 12.) Further, the trial court reasoned Harris did not allege 

negligent acts, rather he alleged intentional acts, which do not fall into the exceptions 

to sovereign immunity enumerated in Section 8522(b) of the Judicial Code, 42 

Pa.C.S. § 8522(b), commonly known as the Sovereign Immunity Act. (Memo. & 

Order at 13-14.) As such, the trial court concluded sovereign immunity barred 

Harris’s claims against all Appellees and dismissed Harris’s Complaint. (Id. at 15 & 

Order page.) Harris filed a timely notice of appeal.

II. DISCUSSION

On appeal, Harris argues the trial court erred in dismissing his Complaint on 

sovereign immunity grounds because he averred negligent conduct on the part of all 

Appellees. Harris also addresses the other POs, asserts a number of other arguments, 

and makes a number of allegations not pertinent to the two state law claims before 

the Court. Appellees respond that the trial court correctly determined Appellees are 

Commonwealth employees who acted within the scope of their employment, Harris 

alleged intentional wrongdoing, and intentional torts are protected by sovereign 

immunity. Further, Appellees contend that Harris failed to address the trial court’s 

sovereign immunity analysis pertaining to his two state law claims and instead he 

focused on the other claims that the federal courts dismissed. Thus, Appellees assert

the trial court appropriately dismissed the Complaint. 

“In an appeal from a trial court order sustaining preliminary objections and 

dismissing a complaint, our scope of review is to determine whether an error of law 

was committed, or an abuse of discretion occurred.” In re Est. of Bartol, 846 A.2d 

209, 213 (Pa. Cmwlth. 2004) (citation omitted). Further, “we must . . . keep in mind 

that preliminary objections admit as true all well-pled facts and inferences 

reasonably deducible therefrom, but not conclusions of law.” Id. (citation omitted). 
7

“When ruling on preliminary objections, this Court shall sustain such objections and 

dismiss the action only in cases that are clear and free from doubt that the law will 

not permit recovery.” DeHart v. Horn, 694 A.2d 16, 16 (Pa. Cmwlth. 1997).

In Paluch v. Pennsylvania Department of Corrections, we explained the 

applicability of sovereign immunity as follows:

Sovereign immunity acts as a bar to suits against Commonwealth 

parties, including its officials and employees acting within the scope of 

their duties. 1 Pa.C.S. § 2310. Establishing a limited list of exceptions 

to immunity, the General Assembly adopted what is commonly referred 

to as the Sovereign Immunity Act, 42 Pa.C.S. §§ 8501-8502, 8521-

8527. Section 8522 of the Sovereign Immunity Act waives “immunity 

as a bar to an action against Commonwealth parties, for damages 

arising out of a negligent act where the damages would be recoverable 

under the common law or a statute creating a cause of action if the 

injury [was] caused by a person not having available the defense of 

sovereign immunity,” for specifically enumerated categories of acts. 42 

Pa.C.S. § 8522. A “Commonwealth party” is defined in Section 8501 

as “[a] Commonwealth agency and any employee thereof, but only with 

respect to an act within the scope of his office or employment.” 42 

Pa.C.S. § 8501. Thus, when an employee of a Commonwealth agency

. . . is acting within the scope of his or her duties, the employee is 

shielded by the doctrine of sovereign immunity from liability for tort 

claims arising from negligent acts that do not fall within the statutory 

exceptions listed in Section 8522(b) of the Sovereign Immunity Act. 1 

Pa.C.S. § 2310; 42 Pa.C.S. § 8522(a)-(b). Sovereign immunity is not 

waived for intentional acts committed by a Commonwealth 

employee acting within the scope of his or her employment. La

Frankie v. Miklich, . . . 618 A.2d 1145, 1149 ([Pa. Cmwlth.] 1992).

Paluch, 175 A.3d 433, 437-38 (Pa. Cmwlth. 2017) (emphasis added). Thus, to 

determine whether a Commonwealth employee is protected from liability under 

sovereign immunity, we must consider “whether the Commonwealth employee was 

acting within the scope of [their] employment; whether the alleged act which causes 

injury was negligent and damages would be recoverable but for the availability of 
8

the immunity defense; and whether the act fits within one of the nine exceptions to 

sovereign immunity.” La Frankie, 618 A.2d at 1149. One of the exceptions to 

sovereign immunity is for “damages caused by . . . [t]he care, custody[,] or control 

of personal property in the possession or control of Commonwealth parties.” 42 

Pa.C.S. § 8522(b)(3). 

As the thoughtful opinion authored by President Judge D. Gregory Geary

explains:

[DOC] is a Commonwealth agency for the purposes of sovereign 

immunity. Further, all other [Appellees] are “Commonwealth 

parties[,”] as they are employees of [DOC]. An employee’s conduct is 

within the scope of his or her employment when: “(a) it is of the kind 

he is employed to perform; (b) it occurs substantially within the 

authorized time and space limits; [and (c)] it is actuated, at least in part, 

by a purpose to serve the master.” Butler v. Flo-Ron Vending Co., 557 

A.2d 730, 736 (Pa. Super. 1989) (quoting Restatement (Second) of 

Agency § 228 [Am. Law Inst. 1958]). Here, it is clear that all 

[Appellees] were acting within the scope of their employment at 

[DOC]. Superintendent [] and Unit Manager [] evaluated [Harris’s]

grievance, which is an administrative duty falling within the scope of 

their employment. The CERT officers acted within the scope of their 

employment when they conducted emergency cell searches to maintain 

order and security in the prison. As such, all named [Appellees] to 

[Harris’s] civil action are immune from damages arising out of 

negligent acts, unless an exception to sovereign immunity applies.

. . . . 

The two [state law] causes of action filed by [Harris] in the instant case 

were founded upon the wrongful taking and detention of his personal 

property, which was confiscated from his prison cell by unnamed and 

unidentified CERT guards of SCI-Somerset. . . . 

Here, [Harris] fails to allege any negligent act committed by the CERT 

guards during the searches of his prison cell at SCI-Somerset. [Harris] 

details how his cell was searched three [] times, alleges that the CERT 

guards ate some of his food during the third search, and describes how 

they confiscated additional food and commissary items. Assuming 
9

[Harris’s] allegations are true, the CERT guards’ actions of eating and 

confiscating [Harris’s] food/commissary items were intentional, and 

not negligent acts. When an employee of a Commonwealth agency is 

acting within the scope of his or her duties, the Commonwealth 

employee is protected by sovereign immunity for the imposition of 

liability for intentional tort claims. La Frankie . . . , 618 A.2d [at] 1149 

. . . (citing Yakowicz v. McDermott, 548 A.2d 1330 (Pa. 1998)). 

Intentional tort claims are barred by sovereign immunity and the 

exception to sovereign immunity under Section 8522(b)(3) for damages 

to personal property does not apply to intentional damage to personal 

property. Williams v. Stickman, 917 A.2d 915, 918 (Pa. Cmwlth. 2007). 

The proper test to determine if a Commonwealth employee is protected 

from liability pursuant to 42 Pa.C.S. § 8522 is to consider whether the 

Commonwealth employee was acting within 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 exceptions 

to sovereign immunity. La Frankie, 618 A.2d at 1149. Here, it is clear 

[DOC] is a Commonwealth agency and the CERT guards are 

Commonwealth employees. Thus, the CERT guards are only liable if 

their actions were outside the scope of their employment. . . . A search 

of an inmate’s cell by the CERT guards certainly falls within the scope 

of their employment, as it is the kind of work they are employed to 

perform, it occurs at the prison where they are assigned to work, and it 

is necessary to maintain order and security within the prison.

The CERT guards’ actions during searches of [Harris’s] cell were 

intentional, not negligent, and occurred within the scope of their 

employment. . . . [Harris] asserts that the “care, custody, and control" 

exception to sovereign immunity applies as to the CERT guards, 

pursuant to 42 Pa[]C.S.[] § 8522(b)(3). However, [Harris’s] factual 

summation pleads intentional, rather than negligent acts, committed by 

the CERT guards. The alleged acts committed by the CERT guards of 

eating [Harris’s] commissary and seizing [Harris’s] belongings as 

contraband during emergency cell searches were intentional acts. 

These acts do not fit within one of the exceptions to sovereign 

immunity, as they are not a product of negligence, and therefore suit is 

barred against these unnamed and unidentified CERT guard 

[Appellees]. 

There is a much simpler argument which bars [Harris’s] claims against 

the other named [Appellees]. In DuBree v. Commonwealth, the 
10

Pennsylvania Supreme Court opined that individual public employees 

are not vicariously liable for the actions of subordinates merely because 

the subordinate is in the employee’s chain of command. 393 A.2d 293 

(Pa. 1978). The facts must indicate that each defendant’s conduct is 

actionable. Id. In the instant matter, [Harris] pleaded specific facts 

relating to the care, custody, and control of [Harris’s] property only by 

. . . [CERT]. . . . [Harris] pleaded that his legal papers, credentials, and 

a large majority of his non-perishable food/commissary [were]

confiscated from him by CERT guards without a confiscation slip ever 

being provided. . . . [Harris’s] Complaint fails to identify any of the 

other [Appellees] as having personal responsibility or involvement in 

the loss of or damage to his property. Thus, the care, custody, and 

control exception to sovereign immunity does not apply, and suit is 

barred against all other named and identified [Appellees]. 

(Trial Ct. Op. at 10-11, 12, 13-15.) 

We agree with the trial court’s reasoning pertaining to the confiscation of 

Harris’s papers, credentials, and bag of commissary items during the emergency 

searches conducted throughout SCI-Somerset, but there is a question of fact as to 

whether the CERT guards acted within the scope of their employment when they 

allegedly ate Harris’s chocolate bar and cookies during the third search. “[W]here 

more than one inference may be drawn from the facts, the issue of whether an 

employee was acting within the scope of employment is for the [fact finder].” 

Justice v. Lombardo, 208 A.3d 1057, 1068 (Pa. 2019). Further,

the fact that an act is done in an outrageous or abnormal manner has 

value in indicating that the servant is not actuated by an intent to 

perform the employer's business. . . . In such cases, the facts may 

indicate that the servant is merely using the opportunity [a]fforded by 

the circumstances to do the harm, and is therefore acting outside the 

scope of employment.

Id. at 1073 (citation and internal quotation marks omitted). Arguably, the CERT 

guards’ alleged conduct of eating Harris’s chocolate bar and cookies during the third 

search was not actuated by an intent to perform CERT’s business, but rather 
11

amounted to an opportunity to cause harm afforded by the circumstances of the 

search. Accordingly, the trial court erred in sustaining Appellees’ PO as it related to 

Harris’s state law claims pertaining to the CERT guards allegedly consuming 

Harris’s food because it is a question of fact whether the CERT guards were acting 

within the scope of their employment while doing so.

However, the trial court’s error is harmless as Harris’s remaining state law 

claims pertaining to the consumption of the chocolate bar and cookies equate to an 

amount in controversy of $2.08. Section 6601 of the Prison Litigation Reform Act

(PLRA) states that a frivolous claim is one that is “[l]acking an arguable basis either 

in law or in fact.” 42 Pa.C.S. § 6601. In Williams v. Beard, 67 A.3d 182, 184 (Pa. 

Cmwlth. 2013), this Court rejected a federal paradigm that compares the actual 

amount in controversy to the filing fees to conclude whether a claim is frivolous 

under the Federal Prison Litigation Reform Act, 28 U.S.C. § 1915. We reasoned the 

PLRA definition of frivolous is not as broad as its federal counterpart. Id. Yet, we 

stated that “[w]e do not interpret the [PLRA] as requiring our courts to waste time 

on nonsense, such as a suit to recover the value of a lost pack of gum.” Id. In that 

case, we held the value of the allegedly lost footlocker, which was $71.47, while 

“not of great value” was not “trivial” either. Id. However, “we d[id] not rule out the 

possibility that a suit seeking monetary compensation so trifling as to render the 

claim devoid of genuine merit, or to give rise to an inference that it is brought simply 

for purposes of harassment, may well be deemed frivolous under our [PLRA].” Id. 

This is such a case. While we acknowledge that commissary items are extremely 

valuable to prisoners and sympathize with Harris that some of his commissary items 

were wrongly consumed by CERT guards, under the circumstances we decline to 

remand this issue because the amount in controversy is “trifling” compared to the 
12

costs of a remand and litigating the two state law claims for those limited items.

8

 

Accordingly, we affirm.9 

__________________________________________

RENÉE COHN JUBELIRER, President Judge

8

“[T]his Court may affirm on grounds different than those relied upon by the [trial] court 

. . . if such grounds for affirmance exist.” Motor Coils MFG/WABTEC v. Workers' Comp. Appeal 

Bd. (Bish), 853 A.2d 1082, 1087 n. 9 (Pa. Cmwlth. 2004).

9 Due to our ruling, we need not reach Harris’s remaining arguments. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terrence Andrew Harris, :

Appellant :

 :

v. : No. 1199 C.D. 2021

 : 

Pennsylvania Department :

of Corrections, et al. :

O R D E R

NOW, November 8, 2023, the Order of the Court of Common Pleas of 

Somerset County, dated September 28, 2021, is AFFIRMED.

__________________________________________

RENÉE COHN JUBELIRER, President Judge