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 Secreta ry’ s Office of Inmate Grievances and Appeals H earing E xaminer s Do ri na

Varner (Varner) and Ke ri Moore (Moore)

, State Correction al Institution at Rockview

(SCI

- Rockview) employees Douglas Sampsel (Sampsel)

, Heather Haldeman and Eric

Tice

, SCI

- Rockview Superintendent s Steven Glunt and Mark Garman (Garman)

, SCI

Rockview Facility Grievance Coordi n ator Jeffrey Rackovan

, Brown’s Unit Manager

Samuel Condo

, and SCI

- Rockview Administration generally (collectively, Wetzel)

(Preliminary Objections) to the Complai nt filed by past and current SCI

- Rockview

inmates Brown, Warren Evans, Joel Daniels, Ernest Norris, Ra shan Mickens, and

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

claims pertain ing 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 Amendmen t conditions of confinement

claim because he did not suffer an injury; and

, (2) whe ther the trial court properly

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

review, we affirm.

Brown is curre ntly incarcerated at SCI

- Rockview. O n March 16, 2016

, Inmates filed the Complaint alleging that

, a s 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 d emand ed compensatory damages in

the amount of $500,000 .00 for each Inmate and other individuals to whom the

allegations of the C omplaint pertain ed , as well as punitive damages in an amount to be

determined for each Inmate and other similarly

- situated SCI

- R ockview inmates

. On

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

constitutional claim, negligence claim and fraud cl aim

. The trial court held a hearing

on August 4, 2016.

On October 4, 2016, the trial court sustain e d the Preliminary O bjections

to the Complaint and dismiss d 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, reg ulations 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 substant ial 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 a nd

, 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.

I n 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 la w ; 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, “i t 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 comm itted an error of law or an abuse of discretion.’ When considering preliminary objections, we must accept as true all well

pleaded material facts alleged in the complaint and all reasonable inferences deducible therefrom. A preliminary objection should b e 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 A symptomatic pleural thickening is scarring of the lungs caused by asbestos exposure.4

fright or nervous sh ock 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 hi s 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

co ntracting an asbestos

- related disease, see Herman v. Holiday, 238 F.3d 660 (5 th C ir.

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

Farmer v. Brennan, 511 U.S. 825 (1994)

, and H elling 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 Unite d 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 alleg edly

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, H erman is inapposite. I n

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

4 Although Inmates aver in the Complaint’s “Pre liminary 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 84 7

. H owever, as in Herman

, the

Farmer holding wa s 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., second

hand, cigarette smoke in the absence of present physical injury. See [ Helling, ] 509 U.S. at 33

- 3 5 . . .

. 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 [(3 rd 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 (3 rd 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 dismiss ed Brown’s Eighth A mendment conditions of

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

PLRA.6 Brown next contends that the trial court erred by dismiss ing his negligence

and fraud claims based on sovereign immunity

. We disagree.

P ursuant 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 immuni ty 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 12 1

- 2 2 (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 plai ntiff’ s injuries are caused by ‘ [a] dangerous condition of Commonwealth agency real estate. ’ 42 Pa.C.S. § 8522(b)(4). In S nyder 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 sourc e, 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 inju ry 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 a nd [ 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 appe al responses. La Frankie, 618

A.2d at 1149 . Because Brown did not alleg e 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, JudgeIN 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 , 201 8

, the Centre County Common

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

___________________________ ANNE E. COVEY, Judge