Opinion
No. 1904 C.D. 2012
07-05-2013
Gary Pennington, Appellant v. David Swisher, Psychologist; Thomas Gembinski, Mental Health Coordinator; Dorothy Bomgardner, Psychological Services; Laura Greenlee, Psychological Services Specialist; Timothy Sisto, Psychological Services Specialist
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Gary Pennington (Pennington) appeals pro se for review of an order of the Court of Common Pleas of Huntingdon County (trial court) granting preliminary objections in the nature of a demurrer filed by David Swisher, Thomas Gembinski, Dorothy Bomgardner, Laura Greenlee, and Timothy Sisto (Prison Officials). Finding no error in the trial court's decision, we affirm.
Pennington is currently serving a life sentence at the State Correctional Institution at Huntingdon (SCI-Huntingdon). The facts as set forth in Pennington's original complaint with the trial court are as follows. In March, 2007, he was diagnosed by a psychiatrist at SCI-Huntingdon with symptoms of paranoid schizophrenia, and he was prescribed psychotropic medication and placed on the Active Mental Health/Mental Retardation Automated Tracking Roster (Roster). On April 9, 2009, Pennington received two misconducts and was placed in the Restrictive Housing Unit (RHU); pursuant to Department of Corrections (Department) Policy, inmates on the Roster who are confined in the RHU "shall be assessed every 30 days." (Department Policy 13.8.1, Section 1(B)(3)(b)(6)(b).) Pennington alleged that between April 9, 2009, and November 9, 2009, none of the Prison Officials performed assessments on him, which he alleges contributed to his receiving three additional misconducts and two poor periodic reviews by the Program Review Committee. On October 29, 2009, Pennington saw a psychiatrist and his medication was increased. On March 17, 2010, he was granted Z-Code status, meaning he would be single celled in the future, a status for which he had been vying for some time. Because the Psychology Department's recommendation plays a role in the determination of this status, he averred that Prison Officials' failure to assess him for seven months delayed his achievement of the status, causing Pennington substantial anxiety and depression.
Prison Officials filed preliminary objections in the nature of a demurrer, contending that the pleading was legally insufficient pursuant to Pa. R.C.P. No. 1028(a)(4), that sovereign immunity barred Pennington's claims, and that he failed to state a claim of cruel and unusual punishment or deprivation of due process rights or equal protection of the law. The trial court granted all of Prison Officials' preliminary objections, reasoning that sovereign immunity protected Prison Officials from tort liability when they were acting within the scope of their duties. The court further opined strict compliance with administrative policies and regulations is not mandatory and that Pennington failed to state a claim under the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, the court said that "[t]he fact that [Pennington] did not receive monthly mental health assessments for seven (7) months does not standing alone support the claim ... that the failure was intentional and severely impacted a serious mental health need." (Trial Court Opinion dated September 6, 2012, at 7.) The court also said that Pennington failed to identify a protected liberty interest so as to deprive him of due process, and he pled no facts which would indicate that he was the target of discrimination. The case was therefore dismissed; this appeal followed.
See U.S. CONST. amend. VIII, XIV.
"When reviewing a trial court's order sustaining preliminary objections in the nature of a demurrer, our review is limited to determining whether the court abused its discretion or committed an error of law." Holt v. Northwest Pennsylvania Training Partnership Consortium, Inc., 694 A.2d 1134, 1138 n.8 (Pa. Cmwlth. 1997) (citing Rok v. Flaherty, 527 A.2d 211 (Pa. Cmwlth. 1987), appeal denied, 517 Pa. 628, 538 A.2d 880 (1988)). This Court must determine, based upon the facts alleged and accepting all well-pleaded allegations and material facts as true, whether the law states with certainty that no recovery is possible. Id. (citing Hawks by Hawks v. Livermore, 629 A.2d 270 (Pa. Cmwlth. 1993)). "[A]ny doubt should be resolved in favor of overruling the demurrer." Id.
On appeal, Pennington argues that the trial court erred in finding that Prison Officials were acting within the scope of their duties and therefore, sovereign immunity did not apply. Specifically, he contends that their failure to act and provide monthly evaluations or assessments, per Department policy, was outside the scope and course of their duties.
Employees of the Commonwealth "acting within the scope of their duties[] shall continue to enjoy sovereign and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity." 1 Pa. C.S. §2310. When an employee of a Commonwealth agency acts within the scope of his or her duties, he or she is immune from liability for intentional torts. LaFrankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992); see also Faust v. Department of Revenue, 592 A.2d 835, 839-40 (1991), appeal denied, 530 Pa. 647, 607 A.2d 257 (1992) (holding that sovereign immunity protects a Commonwealth employee acting within the scope of his duties from liability for intentional acts which cause emotional distress).
[T]he proper test to determine if a Commonwealth employee is protected from liability pursuant to 1 Pa. C.S. §2310 and 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 nine exceptions to sovereign immunity.LaFrankie, 618 A.2d at 1149.
Pennington does not argue that one of the exceptions applies, but rather that Prison Officials were acting outside the scope of their duties. However, all of Pennington's allegations focus on Prison Officials' duties or alleged failures to comply with their duties. While he alleges that this failure to act was outside the scope of their duties, he fails to explain this contention or provide any factual support for his claim. As his arguments do not focus on any acts outside their positions as prison officials, the trial court correctly held that sovereign immunity applied to this claim.
We also note, as the trial court emphasized, that "[t]he Constitution does not require strict adherence to administrative regulations and guidelines." Luckett v. Blaine, 850 A.2d 811, 820 (Pa. Cmwlth. 2004) (citing Flanagan v. Shively, 783 F. Supp. 922 (M.D. Pa. 1992)). --------
Accordingly, we affirm the order of the trial court.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 5th day of July, 2013, the order of the Court of Common Pleas of Huntingdon County, dated September 6, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge