IN THE COMMONWEALTH COURT OF PENNSYLVANIA Fauber v. No. 1856 C.D. 2013 Fetterolf, Harlow & Wetzel Submitted April 17, 2014 Appeal of Larry Fauber BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED June 18, 2014 Larry Fauber (Fauber), representing himself, appeals from the Order of the Court of Common Pleas of Erie County (trial court) that granted the Motion for Summary Judgment of Denise Fetterolf, Supervisor of Main Laundry at the State Correctional Institute at Albion (SCI-Albion), Michael Harlow, Superintendent of SCI-Albion, and John Wetzel, Secretary of the Department of Corrections (Secretary Wetzel), (collectively, Defendants). On appeal, Fauber argues that the trial court erred in granting summary judgment to Defendants on the basis that his Complaint for the loss of clothing by the laundry at SCI-Albion, valued at $67.59, failed to state a claim for negligence and was barred by the doctrine of official and sovereign immunity. Fauber also argues that, even if his Complaint is defective,
he should be allowed to amend it. For the following reasons we affirm the Order of the trial court. On March 12, 2013, Fauber filed his Complaint in the trial court. The only factual averments in the Complaint, beyond the identity of Defendants, were as follows 5. On October 30, 2012, the Plaintiff placed 2 pairs of sweat pants, 2 pairs of sweat shirts, and a personal towel in the main laundry cart for cleaning. 6. The above[-]noted personal items were never returned to me from the main laundry. 7. The Plaintiff exhausted all administrative remedies to have his personal property as noted in 5, either returned to him, replaced with like items, or refunded $67.59 for the cost of the items lost by the Defendants. 8. The Defendants failed to replace, return, or reimburse the Plaintiff for the personal property lost by them, or their agents at SCI- Albion. 9. The Defendants claimed that they are not responsible for lost personal property that is sent to the laundry. (Complaint 5-9.) Defendants responded with an Answer and New Matter raising the defense that Fauber s claims were barred by the doctrine of sovereign immunity pursuant to Section 8522 of the Judicial Code, 42 Pa. C.S. 8522. (Answer and New Matter 12-13.) 2 Defendants also averred that Fauber s Complaint failed to state a claim upon which relief could be granted. (Answer and New Matter 17.) Fauber filed an answer to Defendants New Matter and Defendants subsequently filed a Motion for Summary Judgment asserting that Fauber s Complaint was inadequate because it failed to allege what role any of the Defendants had in Fauber s alleged loss of personal items. (Motion for Summary Judgment 6.)
The trial court granted Defendants Motion for Summary Judgment and Fauber appealed to this Court. In its opinion, the trial court held that Fauber s Complaint was inadequate in that it failed to specify what role any of the Defendants had in the loss of Fauber s clothing. (Trial Ct. Op. at 2.) The trial court also held that, given the lack of any allegations of personal involvement by any of the Defendants, Secretary Wetzel was entitled to official immunity while Fetterolf and Harlow were protected by sovereign immunity. (Trial Ct. Op. at 2-3.) Fauber s appeal is now ripe for disposition by this Court. 1 On appeal to this Court, Fauber argues that the trial court erred by (1) holding that his Complaint failed to state a claim for negligence; (2) holding that Defendants were entitled to official and sovereign immunity; and (3) not ordering Fauber to amend his Complaint rather than dismissing it in its entirety. We first address Fauber s argument that the trial court erred in holding that his Complaint failed to state a claim for negligence. Fauber argues that it is apparent from the allegations in his Complaint that he is alleging that employees of SCI-Albion s laundry must have been negligent in the handling of his clothing because he gave his clothing to the laundry employees for cleaning and it was never returned. Although he does not use the term, in his brief to this Court 1 This Court s scope of review over a trial court s grant of summary judgment is limited to determining if the trial court committed an error of law or a manifest abuse of discretion. Hall v. Acme Markets, Inc., 532 A.2d 894, 895 (Pa. Cmwlth. 1987). A motion for summary judgment may properly be granted when the moving party has established that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Id. 3
Fauber s argument could be characterized as describing a negligence claim under the doctrine of res ipsa loquitur The theory of res ipsa loquitur relies upon the fact that the negligence of the defendant is presumed to have caused the harm suffered by the plaintiff when (a) the event is of the kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant s duty to the plaintiff. Biddle v. Department of Transportation, 817 A.2d 1213, 1216 (Pa. Cmwlth. 2003) (quoting Restatement (Second) of Torts 328(D) (1965)). The doctrine of res ipsa loquitur is an evidentiary rule which, as a matter of evidence, allows the inference of negligence to be drawn if the factors described above are proven. MacNutt v. Temple University Hospital, 932 A.2d 980, 986 (Pa. Super. 2007). Notwithstanding the argument in his brief, the Complaint that Fauber filed contains no allegation that Defendants were negligent, nor are there facts from which we can determine whether Fauber is claiming Defendants allowed negligence by others in the handling of his clothing or that Defendants directed his clothes to be withheld. Although Fauber argues that it would be incongruous for Defendants to claim to have intentionally deprived him of his clothing, we must evaluate, not what Defendants claim, but what Fauber claims in the allegations of his Complaint. 4
Fauber argues that this case is similar to and controlled by Williams v. Stickman, 917 A.2d 915 (Pa. Cmwlth. 2007). In that case, an inmate alleged that specifically named corrections officers took possession of his television when he was placed in a restricted housing unit (RHU). Id. at 916. Later, when he was still in the RHU, but allowed to inspect his property, the television s screen was cracked and the television would not work. Id. at 916-17. The inmate filed suit against various employees of the state correctional institution in which he was housed, articulating claims for an intentional tort, negligence, and assumpsit. Id. at 917. This Court s opinion in Williams does not address the specificity of the inmate s complaint in that case, but only addresses sovereign and local government immunity. Although the specificity of the complaint in that case is not directly addressed, Williams is distinguishable because the inmate in that case apparently did articulate the claims (e.g., negligence, intentional tort, and assumpsit) on which he sought recovery, whereas Fauber s Complaint contains no such information. It is not necessary for a complaint to state the legal theory on which a plaintiff seeks recovery; courts are presumed to know the law. Heinly v. Commonwealth, 621 A.2d 1212, 1215 n.5 (Pa. Cmwlth. 1993). However, a complaint must, at a minimum, apprise the defendant of the claim being asserted as well as summarizing the essential facts to support the claim. McShea v. City of Philadelphia, 995 A.2d 334, 339 (Pa. 2010). Given the lack of specificity in Fauber s Complaint and his failure to articulate the claims for which he seeks recovery, the trial court did not err in concluding that the Complaint was insufficient on this basis. 5
Even assuming that Fauber adequately stated a claim for negligence, the trial court is correct that, based on the allegations in the Complaint or lack thereof, Defendants are entitled to immunity. The Pennsylvania Supreme Court has held 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. DuBree v. Commonwealth, 393 A.2d 293, 295 (Pa. 1978). Instead, there must be actionable conduct on the part of the public servant being sued. Id. Fauber alleges no personal involvement by any of the Defendants in his Complaint and does not allege any such involvement in his brief, but states only that he named Secretary Wetzel intending to implicate the Department of Corrections (Department) in his Complaint, and the other Defendants because he does not know whom else, specifically, to name. Without allegations of individual wrongdoing, Defendants are immune from suit because they are not liable for the conduct of their subordinates. Moreover, naming Secretary Wetzel as a defendant in the Complaint was not sufficient to implicate the Department as a defendant. Rule 2102(a)(2) of the Pennsylvania Rules of Civil Procedure provides the mechanism for naming a Commonwealth party as a defendant, stating [a]n action against a Commonwealth agency or party shall be styled in the following manner Plaintiff v. ------- (Name of Agency or Party) of the Commonwealth of Pennsylvania. Pa. R.C.P. No. 2102(a)(2). Thus, naming Secretary Wetzel is not the same as naming the Department. Finally, we address Fauber s argument that he should be allowed to amend any defects in his Complaint. Fauber argues that, by naming Secretary Wetzel and alleging that he deposited his clothes in a prison laundry cart but never received 6
them back, it should have been clear that he was attempting to articulate a claim against the Department for negligence. Whether to grant leave to amend is within the discretion of the trial court. Reed v. Pray, 53 A.3d 134, 143 (Pa. Cmwlth. 2012). Here, Fauber did not request leave of the trial court to amend his Complaint. As discussed above, the trial court did not err in determining that the Defendants were entitled to summary judgment. Thus, because judgment has been granted to all Defendants, Fauber s Complaint has been entirely disposed of and there is nothing left to amend. 2 Therefore, we cannot say that the trial court erred in not sua sponte ordering Fauber to amend his Complaint. For these reasons, we affirm the Order of the trial court. 3 RENÉE COHN JUBELIRER, Judge 2 Moreover, it is generally improper to allow amendment after judgment to add new claims, such as a claim against the Department. See Janus Management Services, Inc. v. Schlessinger, 810 A.2d 637, 638 (Pa. Super. 2002) (amendments made to a complaint after judgment is rendered are too late); J. M. Korn & Son, Inc. v. Fleet-Air Corporation, 446 A.2d 945, 947 (Pa. Super. 1982) (amendments asserting new claims after judgment are improper). 3 If Fauber is correct in his argument that the statute of limitations has not yet run on his claim against the Department, nothing prevents him from filing, prior to the expiration of the statute of limitations, a new complaint naming the Department and more clearly stating a claim for negligence. 7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Fauber v. No. 1856 C.D. 2013 Fetterolf, Harlow & Wetzel Appeal of Larry Fauber O R D E R NOW, June 18, 2014, the Order of the Court of Common Pleas of Erie County in the above-captioned matter is hereby AFFIRMED. RENÉE COHN JUBELIRER, Judge