IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown, :

Appellant :

:

v. :

:

John Wetzel, Douglas R. Sampsel, :

M.C. Garman, Steven Glunt, :

Jeffrey Rackovan, Samuel Condo, :

Heather Haldeman, Eric Tice, :

Dorina Varner, Keri Moore, : No. 114 C.D. 2017

SCI Rockview Administration : Submitted: October 27, 2017

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY 

JUDGE COVEY FILED: February 6, 2018

Lamar Brown (Brown) appeals from the Centre County Common Pleas 

Court’s (trial court) October 4, 2016 order sustaining the preliminary objections filed 

by Pennsylvania Department of Corrections (DOC) Secretary John Wetzel (Secretary),

the Secretary’s Office of Inmate Grievances and Appeals Hearing Examiners Dorina 

Varner (Varner) and Keri Moore (Moore), State Correctional Institution at Rockview 

(SCI-Rockview) employees Douglas Sampsel (Sampsel), Heather Haldeman and Eric 

Tice, SCI-Rockview Superintendents Steven Glunt and Mark Garman (Garman), SCIRockview Facility Grievance Coordinator Jeffrey Rackovan, Brown’s Unit Manager 

Samuel Condo, and SCI-Rockview Administration generally (collectively, Wetzel) 

(Preliminary Objections) to the Complaint filed by past and current SCI-Rockview 

inmates Brown, Warren Evans, Joel Daniels, Ernest Norris, Rashan Mickens, and 

Shawn Johnson (collectively, Inmates) against Wetzel (Complaint) and dismissing all 

claims pertaining to Brown. Essentially, there are two issues before this Court: (1) 
2

whether the trial court properly dismissed Brown’s Section 1983 of the United States 

Code, 42 U.S.C. § 1983 (Section 1983), Eighth Amendment conditions of confinement 

claim because he did not suffer an injury; and, (2) whether the trial court properly 

dismissed Brown’s negligence and fraud claims based on sovereign immunity.1 After 

review, we affirm. 

Brown is currently incarcerated at SCI-Rockview. On March 16, 2016, 

Inmates filed the Complaint alleging that, as a result of DOC’s administration failing 

to act on the knowledge of the existence of asbestos within the facility, one or more 

Inmates were exposed to asbestos at some point between October 2014 and March 2016 

while being confined at SCI-Rockview. Inmates demanded compensatory damages in 

the amount of $500,000.00 for each Inmate and other individuals to whom the 

allegations of the Complaint pertained, as well as punitive damages in an amount to be 

determined for each Inmate and other similarly-situated SCI-Rockview inmates. On 

April 12, 2016, Wetzel filed Preliminary Objections to Inmates’ Eighth Amendment 

constitutional claim, negligence claim and fraud claim. The trial court held a hearing 

on August 4, 2016. 

On October 4, 2016, the trial court sustained the Preliminary Objections 

to the Complaint and dismissd all claims pertaining to Brown. Brown filed a Notice of 

Appeal (Appeal) with the trial court on November 2, 2017. The Appeal was received 

 

1 Brown’s Statement of Questions Involved contains seven issues: (1) whether the trial court 

erred by sustaining Wetzel’s preliminary objection to Brown’s Eighth Amendment conditions of 

confinement claim; (2) whether DOC’s policies, regulations and Code of Ethics are part of DOC 

employees’ scope of employment (Scope of Employment); (3) whether Scope of Employment 

includes both permissible and impermissible actions; (4) whether the existence of asbestos in a 

housing unit causes a substantial risk of harm; (5) whether injury is required to proceed on a 

substantial risk of harm claim; (6) “what is the [Scope of Employment;]” and (7) whether the 

substantial risk of harm is determined by the risk of harm or the actual injury. Brown Br. at 9. 

Because these issues are subsumed in the analysis of the above-stated issues, we have combined them.
3

in the Pennsylvania Superior Court on November 23, 2016 and, by January 31, 2017 

order, was transferred to this Court.

2

Inmates filed their “civil rights action . . . under [Section 1983] for [] 

deliberate indifference to the continued exposure of asbestos[.]” Complaint at 1.

In determining whether a plaintiff has stated a cognizable 

cause of action under [S]ection 1983, the inquiry must focus 

on whether two essential elements are met: (1) whether the 

complained of conduct was committed by a person acting

under color of state law; and (2) whether the conduct

deprived a person of rights, privileges, or immunities secured

by the Constitution or the laws of the United States.

Flagg v. Int’l Union, Sec., Police, Fire Prof’ls of Am., Local 506, 146 A.3d 300, 305 

(Pa. Cmwlth. 2016). In Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996), our Supreme

Court held that “asymptomatic pleural thickening[3]is not a compensable injury which 

gives rise to a cause of action. . . . [The a]ppellants are not precluded from subsequently 

commencing an action for an asbestos related injury when symptoms develop and 

physiological impairment begins.” Id. at 237. Further, “it is the general rule of this 

Commonwealth that there can be no recovery of damages for injuries resulting from 

 

2

‘Where a [trial court] dismisses a complaint based on preliminary 

objections, this Court’s review is limited to determining whether the 

trial court committed an error of law or an abuse of discretion.’ When 

considering preliminary objections, we must accept as true all wellpleaded material facts alleged in the complaint and all reasonable 

inferences deducible therefrom. A preliminary objection should be 

sustained only in cases when, based on the facts pleaded, it is clear and 

free from doubt that the facts pleaded are legally insufficient to 

establish a right to relief. Because a preliminary objection in the nature 

of a demurrer presents a question of law, this Court’s standard of 

review of a court of common pleas’ decision to sustain a demurrer is 

de novo and the scope of review is plenary. Similarly, whether 

immunity applies is a question of law subject to our de novo review. 

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

Watson, 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014)).

3 Asymptomatic pleural thickening is scarring of the lungs caused by asbestos exposure.
4

fright or nervous shock or mental or emotional disturbances or distress unless they are 

accompanied by physical injury or physical impact.” Id. at 238. In the instant case, 

Brown alleged no physical injury.

Brown first argues that the trial court erred by dismissing his Eighth 

Amendment conditions of confinement claim on the basis that he did not suffer an 

injury. Specifically, Brown asserts that the Prison Litigation Reform Act (PLRA), 42 

U.S.C. § 1997e(e), does not bar compensation for the actual increased risk of 

contracting an asbestos-related disease, see Herman v. Holiday, 238 F.3d 660 (5th Cir. 

2001), and serious damage to a prisoner’s future health is actionable pursuant to 

Farmer v. Brennan, 511 U.S. 825 (1994), and Helling v. McKinney, 509 U.S. 25 (1993). 

We disagree.

Section 1997e(e) of the PLRA provides, in relevant part: “No [f]ederal

civil action may be brought by a prisoner confined in a jail, prison, or other correctional 

facility, for mental or emotional injury suffered while in custody without a prior 

showing of physical injury . . . .” 42 U.S.C. § 1997e(e). In Herman, the United States

(U.S.) Fifth Circuit Appeals Court held: “The prohibitive feature of [Section] 1997e(e)

[of the PLRA], requiring physical injury before recovery, does not apply in the context 

of requests for declaratory or injunctive relief sought to end an allegedly 

unconstitutional condition of confinement.” Herman, 238 F.3d at 665 (emphasis 

added). Because Inmates in the instant case do not seek declaratory or injunctive

relief,4 but rather compensatory and punitive damages, Herman is inapposite. In 

Farmer, the U.S. Supreme Court held: “[A] prison official may be held liable under the 

 

4 Although Inmates aver in the Complaint’s “Preliminary Statement” that they are seeking 

“declaratory, and injunctive relief,” injunctive relief is not otherwise mentioned therein. Complaint 

at 1. Further, the Complaint’s “RELIEF” includes “[a] declaratory judgment that the acts and 

omissions alleged [t]herein violate both [Inmates’] state law tort rights and their constitutional 

rights[;]” however, such is not preventive relief. Complaint at 9. Further, because asbestos exposure 

without physical injury does not give rise to a cause of action, see Flagg, there can be no constitutional 

deprivation.
5

Eighth Amendment for denying humane conditions of confinement only if he knows 

that inmates face a substantial risk of serious harm and disregards that risk by failing 

to take reasonable measures to abate it.” Id. at 847. However, as in Herman, the 

Farmer holding was rendered in the context of preventing harm, i.e., injunctive relief, 

not an action for monetary damages. Finally, the U.S. Third Circuit Appeals Court 

held: 

In Helling, the [U.S.] Supreme Court held that an inmate may 

recover injunctive relief in a [S]ection 1983 action based on 

exposure to environmental [tobacco smoke], i.e., secondhand, cigarette smoke in the absence of present physical 

injury. See [Helling,] 509 U.S. at 33-35 . . . . The Court 

reasoned that ‘[i]t would be odd to deny an injunction to 

inmates who plainly proved an unsafe, life-threatening 

condition in their prison on the ground that nothing yet had 

happened to them.’ Id. at 33 . . . . The Court did not address 

the availability of damages in such cases . . . . See Fontroy 

v. Owens, 23 F.3d [63,] 66 [(3rd Cir. 1994) (Fontroy I)]

(‘Thus the Supreme Court did not have occasion to 

comment on the request for damages by a plaintiff who 

alleged only risk of future injury.’). More importantly, the 

Helling Court’s reasoning concerning injunctive relief does 

not translate to a claim for monetary relief. The Court’s 

statement that it would be odd to deny an inmate an 

injunction against future harm until that harm actually 

occurred sheds no light on the availability of monetary 

damages to redress past wrong.

Fontroy v. Owens, 150 F.3d 239, 243 (3rd Cir. 1998) (Fontroy II) (footnote omitted; 

emphasis added). The Fontroy II Court concluded: “Helling d[id] not create a federal 

rule that would provide [] a cause of action under [Section 1983].” Id. Because Inmates 

are not seeking to prevent future harm, but rather are seeking damages for risk of harm, 

the trial court properly dismissed Brown’s Eighth Amendment conditions of 

confinement claim on the basis that he did not suffer an injury as required under the 

PLRA.
6

Brown next contends that the trial court erred by dismissing his negligence

and fraud claims based on sovereign immunity. We disagree. 

Pursuant to Article 1, Section 11 of the Pennsylvania 

Constitution, the General Assembly declared that ‘the 

Commonwealth, 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. This 

Court has held that ‘when an employee of a 

Commonwealth agency was acting within the scope of his 

or her duties, the Commonwealth employee is protected 

by sovereign immunity from the imposition of liability for 

intentional tort claims.’ La Frankie v. Miklich, . . . 618 

A.2d 1145, 1149 ([Pa. Cmwlth.] 1992). This Court 

determines whether a Commonwealth employee is protected 

by sovereign immunity by considering ‘whether the . . . 

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 nine exceptions to sovereign immunity.’ Id.

Minor, 155 A.3d at 121-22 (footnote omitted; emphasis added).

Brown asserts that his negligence claim falls under the real estate 

exception to sovereign immunity. 

Under the real estate exception contained in Section 

8522(b)(4) of the Judicial Code, a Commonwealth agency is 

liable where the plaintiff’s injuries are caused by ‘[a] 

dangerous condition of Commonwealth agency real estate.’ 

42 Pa.C.S. § 8522(b)(4). In Snyder v. Harmon, . . . 562 A.2d 

307, 311 ([Pa.] 1989), our Supreme Court clarified that 

liability against a governmental entity is predicated on proof 

that a condition of governmental realty itself, deriving, 

originating from, or having realty as its source, caused 

plaintiff’s injuries. Snyder, . . . 562 A.2d at 311. If the 

dangerous condition ‘merely facilitates an injury to be 

caused by the acts of other persons, the defect or dangerous 

condition is not actionable.’ Williams [v. Phila. Hous. 
7

Auth.], 873 A.2d [81,] 87 [(Pa. Cmwlth. 2005)] (citations 

omitted).

Thorton v. Phila. Hous. Auth., 4 A.3d 1143, 1148-49 (Pa. Cmwlth. 2010) (emphasis 

added). Here, we do not reach the dispositive issue of whether a dangerous condition 

caused or facilitated an injury because Brown has alleged no injury. Accordingly, the 

preliminary objection as to Brown’s negligence claim was properly sustained.

Relative to his fraud claim, Brown alleges that “Sampsel, Garman, Moore 

and Varner falsified allegations in their grievance and grievance appeal responses to 

[Inmates’] grievances and grievance appeals,” Complaint at 8, ¶62, thereby violating 

DOC’s Code of Ethics. See Complaint at 8, ¶63. Brown maintains that because those 

individuals violated the Ethics Code, they were not acting within the scope of their 

employment. Whether Sampsel, Garman, Moore and Varner violated the Ethics Code 

is not dispositive of whether sovereign immunity applies. “[S]ince [Inmates’] cause of 

action emanates from intentional tort claims and [Sampsel, Garman, Moore and Varner

are] Commonwealth employee[s], the only question to be resolved to determine if 

immunity attaches is whether [they were] acting within the scope of [their] duties”

when they completed their grievance and grievance appeal responses. La Frankie, 618 

A.2d at 1149. Because Brown did not allege that Sampsel, Garman, Moore and Varner

were acting outside the scope of their employment, the trial court properly sustained 

the preliminary objection to Brown’s fraud claim based on sovereign immunity.

For all of the above reasons, the trial court’s order is affirmed.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown, :

Appellant :

:

v. :

:

John Wetzel, Douglas R. Sampsel, :

M.C. Garman, Steven Glunt, :

Jeffrey Rackovan, Samuel Condo, :

Heather Haldeman, Eric Tice, :

Dorina Varner, Keri Moore, : No. 114 C.D. 2017

SCI Rockview Administration : 

O R D E R

AND NOW, this 6

th day of February, 2018, the Centre County Common 

Pleas Court’s October 4, 2016 order is affirmed.

___________________________

ANNE E. COVEY, Judge