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HomeMy WebLinkAbout09-1841IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION 6?- ? ?r y l c ?? ? fir Douglas Mitchell NO. - VS. Sgt. "John Doe" Webb Department-'of-Corrections NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the ollowing pages, you must tae action within TWENTY (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set for.th'i against you. You are warned that if you fail to do so, the case mat y without you and a,judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the pliantiff. You may lose money, property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO'NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH=INFORMATION ABOUT HIRING A LAWYE IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT OFFER LEGAL SEVICES TO ELIBIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION BECKY M0hGTT A%CU&V&,PIRECTOR CARLISE, PA X7:013 ( 717 ) 249-3166 IN THE COURT OF UOMMON PLEAS OF ALLEGHENY BOUNTY, PENNSYLVANIA CIVIL DIVISION itchell ARBITRATION DOCKET Douglas LAINTIFF - VS. S t "John Doe" Webb Department o orrections DEFENDANTS HEARING DATE NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. I you wish to defend against the claims set forth in the following pages, you must take action within TWENTY (20) days after the complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the rwfor oanyfotherrclaimcoffrelief money claimed in the complaint or AFOFORDUONE, requested. by the plaintiff. OHAVESHOULD LAWYER ORICANNOTPAPER LAWYER AT ONCE. IF YOU DO NOT GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE, CUMBERLAND COUNTY BAR ASSOCIATION BECKY MORGENTHAL, EXECUTIVE DIRECTOR 32 S. BEDFORD STREET CARLISLE PA 17013 (717)249-3166 I HEARING NOTICE YOU HAVE BEEN SUED IN COURT. The above Notice to Defend explains what you must do to dispute the claims made against you. If you file the written response to the Notice to Defend, a hearing before a board of arbitrators will take place IF YOU FAIL TO FILE THE RESPONSE A JUDGMENT FOR THE AMOUNT CLAIMED AGAINST YOU BEFORE THE HEARING DESCRIBED IN THE NOTICE TO DEFEND, IN THE COMPLAINT MAY BE ENTERED DUTY TO APPEAR AT ARBITRATION HEARING If one or more of the parties is not present at the hearing, THE MATTER MAY BE HEARD AT THE SAME TIME AND DATE BEFORE A JUDGE OF THE COURT WITHOUT THE ABSENT PARTY TOR PA T'r Rw?rsi • uvHaRE[TnGENO RIGHT TO NOTICE: YOU MUST RESPOND TO THIS COMPLAINT WITHIN (20) DAYS OR A JUDGMENT FOR THE AMOUNT CLAIMED MAY BE ENTERED AGAINST YOU BEFORE THE HEARING. IF ONE OR MORE PARTIES IS NOT PRESENT AT THE HEARING, TO TRIAL WITHOUT THE THE MATTER MAY BE HEARD IMMEDIATELY PARTY OR PARTIES. THERE IS NO RIGHT IN THE COURT OF COMMENN LEAS OF CUMBERLAND COUNTY, PLVANIA CIVIL DIVISION Dou las Mitchell CASE NUMBER l1?- 1 yl Lh? ?trr?` PLAINTIFF HEARING DATE VS. Sgt "John DOE" Webb @SCI Camp Hill Department of Corrections DEFENDANT #2 COMPLAINT IN CIVIL ACTION 1. The Plaintiff's address is: Douglas Mitchell GQ 4662, PO Box'.A, Old Route 22, Cresson, Pennsylvania 16699-0001 (SCI CRESSON) 2. Defendant #1 last knowni;place of employment is: SCI CAMP HILL Defendant "John Doe" Webbs emplo consisted Reception at SCI CAMP HILL known as Defendant #1 Nefendaint's last known address of employment: SCI CAMP HILL P.O. BOX 8837 2500 LISBURN ROAD CAMP HILL, PA 17001-8837 PH# (717) 737-4531 3. Defendant #2 last known address: 2520 LISBURN ROAD P.O. BOX 598 CAMP HILL, PA 17001-0598 CENTRAL EXECUTIVE OFFICE On 25 July 2006 I Douglas Mitchell GQ 4662 returned from WRIT 4 in Allegheny County with three odhofflataACJ.duehto thenfactJthe to have personal clothing droppe onHill staff l refused e to clothing supplied where too small, Camp offer a more suitable size upon departure 18 expense ly. which st to have my-personal clothing mailed home at my common practice in the DOC. Sgt- Webbtrefusednun girth eit oslip. reprimand and confiscated them I have exhausted all administrative Also required by PA DOC Policy. rserved. Also see attached letter means. All documentation has been pe ril 2008. from Cumberland County Senior ADA dated 9 Ap WHEREFORE, Plaintiff claims damages from the Defendants in the sum of $5,000.00 to replace clothing and legal fees. RN "NOTICE OF INTENTION NOTICE.: YOU ARE HEREBY NOTIFIED T FROM RETUSERVICE HEREOF OR A DEFAULT TO APPEAR" WITHIN TWENTY (20) DAYS JUDGMENT OR AM AWARD MAY BE ENTERED AGAINST YOU. Douglas Mitchell Uk4 4UVl- PiallltliI/ se PO Box A Old Route 22 Cresson, Pennsylvania 16699-0001 CUMBERLAND COUNTY OFFICE OF THE DISTRICT ATTORNEY DAVID J., FREED DIsnucr ATTORNEY April 9, 2008 Douglas Mitchell GQ 4662 State Correctional` Institute Camp Hill P. O. Box 200 Camp Hill, PA 17001-8837 , 801 Butler Pike Mercer, PA 16137-5653 Re: Private Criminal Complaint Dear Mr. Mitchell: . an incident on July 25, 2006- As I do, We are in receipt of your letter regarding T donot have not have access to the paperwork you filed as part of yourgrievance, sufficient information to determine if a crime has occurred. Please prov-1 as event, what clothing wtaken information about the incident: explain the details o the and what reason was given, what threats were made, and who else witnessed these . kl as you can so that we are not barred, events. Please provide this information as qu y our letter vwas sent more t by the statute of limitations, from looking into this incident (y than one year after the incident occurred). Sincerely, Christin J. Mehrtens-Carlin Senior Assistant District Attorney CUMBERLAND COUNTY COURTHOUSE, ONE COURTHOUSE SQUARE, CARLISLE, PA 17013 PHONE: (717) 240-6210 TOLL FREE: 1-888-697-0371, Ext. 6210 FAX: (717) 240-6164 e-mail: distnctattomey@ccpa.net CUMBERLAND COUNTY OFFICE OF THE DISTRICT ATTORNEY DAVID J. FREED DISTRICT ATTORNEY June 4, 2008 Douglas Mitchell GQ 4662 PO Box A Old Route 22 Cresson, PA 16699-0001 Re: Private Criminal Complaint Dear Mr. Mitchell: have We are in receipt of your criminal complaint c?aed tAapnd yo?',2008, tation with this reviewed the allegation therein. Though r certainly and did not exhibit the requisite criminal protocol situation, the prison staff was following intent when acting on July 25, 2006. As such, there is an insufficient basis to warrant criminal prosecution and we think this matter would be best handled with civil remedies. Sincerely, Christin J. Mehrtens-Carlin Senior Assistant District Attorney SQUARE CUMBERLAND COUNTY COIJRO OFREE•O 888-69L7--0371, Ext.. 6210 A(717) 240-61 O13 PHONE: (717) 240-62 0 a net e-mail: districtattomey@ccp IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVL DIVISION Douglas Mitchell ARBITRATION DOCKET A NI F NO. - - VS. Sgt "John Doe" Webb (SCI Camp Hill) HEARING DATE DEFENDANT #1 DEPARTMENT OF CORRECTIONS EFENDANT# 2 NOTICE TO DEFEND Yc?U HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the attached copy of the suit papers, YOU MUST complete and detach two of omeedcopies copy ofethetaNoticeoofc Intention Intention to Appear One c plet to Appear" must be filed or mailed to the ProthoCotary'ssef ice, Curt Long, Prothonotary Cumberland County, One thou Sq., most be mailed to: Carlisle, PA 17013 and the other completed p22, Cresson, PA 16699- Douglas Mitchell GQ 4662, PO Box A, Old Route a e were mailed. 0001 within TWENTY (20) days from the date these p p roered without You are warned that if you fail to do so the case may p you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for anorother claim or relief requested by t plaintiff. property or other rights importDOtNOT HAVE AOLAWYERLORTCANNOTIAFFORDR TO YOUR LAWYER AT ONCE. IF YOU ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION BECKY MORGENTHAL, EXECUTIVE DIRECTOR 32 S. BEDFORD STREET CARLISLE PA 17013 (717) 249-3166 HEARING NOTICE made againsttyoDeflfdyoupfiles YOU HAVE BEEN SUED IN COUTclaims above aring what you must do to dispute the the wriite response referred tollu taketplacetatethe DumberlandhCounty before a board of arbitrators wi Courthouse at a time and location TO DEFENDatAdJ; IF YOU FAI UDGMENT FORLTHE FILE THE RESPONSE DESCRIBED IN THE NOTICE AMOUNT CLAIMED IN THE COMPLAINT MAY BE ENTERED AGAINST YOU BEFORE THE HEARING. DUTY TO APPEAR AT ARBITRATION HEARING If one or more Elf the e PalTIMESANDtDATESBEFORE A JUDGErOFgTHEHE MATTER MAY BE HEARD AT THE SAME COURT WITHOUT THE ABSENT PARTY OR PARTIES. THERE IS NO RIGHT TO A TRIAL DE NOVO ON APPEAL FROM A DECISION ENTERED BT A JUDGE. ) DAYS OR NOTICE: YOU MUST RESPOND TO THS COMPLAINT THEA JUDGMENT FOR THE AMOUNT CLAIMED HEARING. 4J; * IF ONE OR MORE OF THEPgEFORE ASJUNOT DGEPWITHOUTATHEHABSENTI ' THE MATTER MAY BE HEARD IMMEDIATELY ?ARTY OR PARTIES. THERE IS NO RIGHT TO A TRIAL DE NOVO ON APPEAL FROM A DECISION ENTERED BY A JUDG . 1 ? F f NOTICE OF INTENTION TO APPEAR CASE NUMBER Dou las Mitchell S t. "John Doe" Webb (SCI Cam Hill) HEARING DATE N ANT 1 DEPARTMENT OF CORRECTIONS DE ENDANT 2 To The Plaintiff: Mr. Douglas Mitchell at the hearing scheduled dornoteoweothisaclaimdfor I intend to appear st mr defend against the claim made again the following reason. of this to the Plaintiff. I certify that I have mailed a copy Sign Here: Address: ---------------- DEFT'S FIRST FILING $25.00-NO PERSONA(TOHBEKFILED WITH PROTHONOTARY) NOTICE OF HEARING Case No. TO THE DEFENDANT st you. Attached is a copy o t e suit A law suit has been entered again You requested to appear for a hearing on this claim on papers. ,at o clock in Room 7 Car is e, PA, IF YOU INTEND TO APPEAR at the Cumber and County Courthouse, YOU MUST complete and detach two hearing and defend against this claim, " at the top of this page. copies of the "Notice of Ontention to Appear " must be filed One completes copy of the "Notice of Intention to Appear or mailed b prothonotary Cumberland ., One ied Courorthouse st Sq•? Carlisle, PA 17013,-3387 and the other ?oCert Registered Mail to Curt on 4662, PO Box A, Cresson, PA .16699 copy trailed to, Douglas Mitchell GQ ecieve these papers. IF YOU DO within TWENTY (20) days from the date you r ",OR IF YOU properly NOT thus file or mail :Notice of Intention to Apear for hearing: A JUDG- file or mail andDO NOT APPEAR at the time and place etvtntlNT OF THE CLAIM MAY BE ENTERED AGAINST YOU. C') ?v r- o Cj nJ 't7 r, ; - u r Jr o Cowwv?eyl 0 ee.a oP txw" Nrw,.sIII \k,..n vo, e IJ?L S)Lvgca? VERIFIED STATEMENT OF IN FORMA PAUPERIS Office of the Prothonotary Cumberland County Pennsylvania Curt Long, Prothonotary One Courthouse SQ. Carlisle, PA 17013-3387 AND NOW, this 11th day of March 2009, I Douglas Mitchell GQ 4662 hereby state and understand that any false statements are punishable under law duly inform and request of this Honorable Court to GRANT IFP in filed case of Mitchell v. Sgt "John Doe" Webb, Def#1 and Department of Corrections (PA DOC) Def#2 for the reasons of: (1) Plaintiff Douglas Mitchell GQ 4662 is currently incarcerated @ SCI Cresson (2) Plaintiff is indigent as of three years incarceration. (3) Plaintiff's current income is approx. $15.00/month minus 20% (ACT 84) and cannot afford filing fees or Service of Original Procees fee. (4) Plaintiff requests of this Court to Grant IFP under forementioned hOm ty reasons. (5) Plaintiff has not any assets or property. WHEREFORE,Plaintiff respectfully requests this Honorable Court to GRANT IFP. zZiaaAZ-4- Douglas Mitchell GQ 4662 PO Box A Old Route 22 Cresson, PA 16699-0001 C 77 .7 t^-1 uJ y.7 INMATE ACCOUNTS SYSTEM 3/212009 5:20:33 AM MONTHLY ACCOUNT STATEMENT 02/0112009 TO 02/27/2009 CRE Page. 1097 Location Inmate# Last Name First name MI Old balance F-C-1008 GQ4662 MITCHELL DOUGLASS 179.10 Batch# Date Tran. Code Transaction Description Transaction Amount Balance after Transaction 7285 02/02/2009 38 INSIDE PURCHASES - VENDA CARDS -2.00 177.10 7296 02103J1009 35 DW4TAiLta 41I:AWW& 123.80 8035 02104%2009 32 CRE COMMISSARY - FOR 2/04;2009 -20.20 103.60 7314 0210412O09 41 _ _*IWDK?ft ? #FS=Ai3 OI2 3 ' _ 98.60 9036 02!0512009 10 INMATE EMPLOYMENT - CCRE Payroll 2009- 14-40 113-00 01 Grp V + '; #i0 Gd"""P! ,t8?; 110: 3 8041 02/10/2009 32 CRE COMMISSARY -FOR 2/10/2009 -20.26 89.86 0 ? _ 1 7358 02/11/2009 50 ACT 84 TRANSACTION ' - 0006328-2005 CT - 00 105.86 1 02/11/09 t 7392 02/18/2009 38 INSIDE PURCHASES - VENDA CARDS -2.00 88.29 k ? 7406 02120/2009 13 PERSONAL GIFT FROM -ARNOLD,J: 20.00 107.29 K232296 8056 02/25/2009 32 CRE COMMISSARY -FOR 2125/2009 -6.78 96.51 v - r C J C= - : r-4 i: j Cl Y ? C DO e Q = DOUGLAS MITCHELL, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. SGT. "JOHN DOE" WEBB DEPARTMENT OF CORRECTIONS, DEFENDANTS 09-1841 CIVIL TERM ORDER OF COURT AND NOW, this "rib day of March, 2009, the petition of Douglas Mitchell to proceed in forma pauperis, IS GRANTED. The Prothonotary shall accept the filing without the payment of fees and the Sheriff shall serve the complaint on defendants without costs. By ourt, Edgar B. Bayley, J. u glas Mitchell, GQ 4662 PO Box A Old Route 22 Cresson, PA 16699-0001 Sheriff sal ex C-d =, Sheriffs Office of Cumberland County ???tx? at "ir?lirrtr R Thomas Kline Sheriff Ronny R Anderson Chief Deputy OFFCE C<, S ERIFF Edward L Schorpp Solicitor Jody S Smith Civil Process Sergeant SH 04/06/2009 R. Thomas Kline, Sheriff % inquiry for the within name Cumberland County, Penn returns the within Complaii would not accept Complaii works SCI Camp Hill. 04/06/2009 04:05 PM - Shawn Harrisc 2009 at 1605 hours, he se defendant, to wit: Departm 55 Utley Drive, Camp Hill, handing to her personally 1 SHERIFF COST: $57.02 April 09, 2009 Docket No. 2009-1841 Douqlas Mitchell v Sgt. IFF'S RETURN OF SERVICE o being duly sworn according to law states that he made a diligent search and defendant to wit: Sgt. "John Doe" Webb, 55 Utley Drive, Camp Hill, llvania, 17011 but was unable to locate him in his bailiwick he therefore as not found as to the defendant, Sgt. "John Doe" Webb. SCI Camp Hill without a first name for Sgt. Webb since they were unable to verify that he i, Deputy Sheriff, who being duly sworn according to law, states that on April 6, red a true copy of the within Complaint and Notice upon the within named mt of Corrections by making known unto Stacy Sentz, Administrative Officer, all ;umberland County, Pennsylvania, 17011 its contents and at the same time ie said true and correct copy of the same. SO ANSWERS R THOMAS KLIN& SHERIFF 'John Doe" Webb FlLED-t'WFICE OF 7HE WT HNOTARY 2009 APR 13 AM 8: 8 CUi (?t y PEN YLVAN?fA AW r1V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS MITCHELL, Plaintiff, V. SGT. WEBB, et al., Defendants CIVIL TRIAL DIVISION No. 09-1841 Jury Trial Demanded DEFENDANTS' PRELIMINARY OBJE( COMPLAINT AND NOW, come the Defendants, by and through counsel, and hereby preliminarily object to the Plaintiff s Complaint as follows: 1. Legal insufficiency of pleading under the Prison Litigation Reform Act where Defendants are entitled to the affirmative defense of Statute of Limitations. The alleged facts that gave rise to this claim involving the confiscation of personal property purportedly occurred in July 2006. The Complaint was not filed until March 24, 2009. Pa. R. C. P., No. 1028(a) (4); 42 Pa. C.S. § 6602(e)(2); 42 Pa. C.S. § 5524. 2. Legal insufficiency of pleading under the Prison Litigation Reform Act where Defendants are entitled to the affirmative defense of Sovereign immunity. The Complaint appears to stem from the confiscation of personal property. The allegation involves an intentional act. Sovereign immunity has been AW waived in only limited circumstances involving negligent acts. None of which apply here. Pa.R.C.P., No. 1028(a)(4); 42 Pa. C.S. § 6602(e)(2); I Pa. C.S. § 2310; 42 Pa. C. S. § 8522. 3. Failure of pleading to conform to law or rule of court. The Complaint contains an averment of fact not appearing of record without the required verification. Pa.R.C.P., No. 1028(a) (2); Pa.R.C.P., No. 1024. 4. Failure of pleading to conform to law or rule of court. The Complaint contains an allegation as to confiscation of personal property without the required averments as to time, place and special damages. Pa.R.C.P., No. 1028(a)(2); Pa.R.C.P., No. 10190. 5. Insufficient specificity of pleading. The Complaint contains only four paragraphs. Three pertain to the Parties. The fourth paragraph merely identifies a time period, actor and the subject of the civil action, personal clothing. Such sparse allegations are insufficient to meet the requirements of Pennsylvania's fact pleading system. Pa.R.C.P., No. 1028(a)(3); Pa.R.C.P., No. 1019(a). 6. Legal insufficiency of pleading. The Complaint contains only four paragraphs. Three pertain to the Parties. The fourth paragraph merely identifies a time period, actor and the subject of the civil action, personal clothing. Such sparse factual allegations fail to state a claim upon which relief can be granted. Pa.R.C.P., No. 1028(a) (4). WHEREFORE, Defendant respectfully requests this Honorable Court to sustain the preliminary objections and dismiss the Complaint. Respectfully submitted, Office of General Counsel By: Vincent R. Mazeski Assistant Counsel Attorney Identification No. PA73795 Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: April 15, 2009 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS MITCHELL, Plaintiff, CIVIL TRIAL DIVISION V. SGT. WEBB, et al., Defendants No. 09-1841 Jury Trial Demanded CERTIFICATE OF SERVICE I hereby certify that I am this day depositing in the U.S. mail a true and correct copy of the Defendants' Preliminary Objections to Plaintiff's Complaint in the above-captioned matter upon the person(s) as indicated below. Service by first-class mail Addressed as follows: Douglas Mitchell, GQ-4662 SCI-Cresson P.O. Box A, Old Route 22 Cresson, PA 16699-0001 Eva Jo J sen Clerk Typist II Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: April 15, 2009 Fil THE ZL AP I, I I I: y i rL`,; i;f sV IN THE COURT OF COMMON CUMBERLAND COUNTY, DOUGLAS MITCHELL, Plaintiff, V. SGT. WEBB, et al., Defendants CIVIL TRIAL DIVISION No. 09-1841 Jury Trial Demanded PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance as counsel on behalf of the Defendants, Sgt. "John Doe" Webb and Pennsylvania Department of Corrections, in the above- captioned matter. Papers may be served at the address set forth below. Respectfully submitted, Office of General Counsel By Vincent R. Mazeski Assistant Counsel Attorney I.D. No. PA 73795 Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: April 15, 2009 r (i IN THE COURT OF COMMPLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS MITCHELL, Plaintiff, V. SGT. WEBB, et al., Defendants CIVIL TRIAL DIVISION No. 09-1841 Jury Trial Demanded CERTIFICATE OF SERVICE I hereby certify that I am this day depositing in the U.S. mail a true and correct copy of the foregoing Praecipe for Entry of Appearance upon the person(s) in the above-captioned matter. Service by first-class mail Addressed as follows: Douglas Mitchell, GQ-4662 SCI-Cresson P.O. Box A, Old Route 22 Cresson, PA 16699-0001 Eva Jo sen i?? Clerk Typist II Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: April 15, 2009 2opg? r4,P y iii ? • ? , IN THE COURT OF CONMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS MITCHELL Plaintiff, CIVIL TRIAL DIVISION V. No. 09-1841 SGT. WEBB, et al., Jury Trial Demanded Defendants CERTIFICATE OF SERVICE I, Douglas Mitchell, certify that I am this day depositing in the U.S. mail a true and correct copy of the Plaintiff's Response to Preliminary Objections and Amended Pleading in the above-captioned matter upon the person(s) as indicated below. Service by first-class mail Addressed as follows: Vincent R. Mazeski, Asst. Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 The above Response and Amended Pleading with 29 pages of true and correct copies chain of attempted relief submitted as evidence to this Honorable Court. By: Mr. Douglas Mitchell GQ 4662 Plt., pro PO Box A se. Old Route 22 Cresson, PA 16699-0001 Dated: 22 April 2009 C)7 THE F 2009 APR 24 AEI I I : 2G T, Gt!r ?y b IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS MITCHELL, Plaintiff, CIVIL TRIAL DIVISION V. No. 09-1841 SGT. WEBB, et al., Jury Trial Demanded Defendants PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS AND AMENDED PLEADING AND NOW, comes the Plaintiff, by and through himself, pro se, and hereby responds to Defendant's preliminary objections and duly as follows submits an Amended Pleading: 1. Legal sufficiency of Plaintiff's pleading and Defendant's entitlement to affirmative defense of Statue of Limitations is opposed in light of well documented and preserved record of exhaustion of "all administrative means" on file as Grievance No. 160107. Chain of relief, (attemptedrelief) dates to 4 June_ 2008 verified by signed correspondence by Sr. ADA Christen Menrtens-Carlin Cumberland County District Attorney Office. Hence date of injury 4 jog$'_ 2008. Well within time filing guidelines. 2. Exceptions to Sovereign Immunity; Liability imposed--... negligent act... Plaintiff's personal property ( entire suit of clothing) was demanded he surrender without option to mail home under direct threats by Defendant Sgt. Webb. Acts which impose liability. Care, custody or control of personaL property.--... property of persons held by Commonwealth agency. 42 Pa. C.S. 5 8522 (a); (b)(3). 3. Complaint is well documented on file as Grievance No. 160107 originally filed at SCI Camp Hill on 2 August 2006. Plaintiff has possesion of and will submit as evidence to this court approx. 30 pages of true and correct copies up and to 17 June 2008. 4. Furthermore Defendant's Official liability and willful misconduct in demanding Plaintiff to surrender his personal clothing without option to mail home at his expense is well within legal grounds for relief. Pa. C.S. § 8545; 8550. 5. Plaintiff states the following brief concise statement of cliams: Plaintiff returned from WRIT in Allegheny Co. on 25 July 2006. Sgt. Webb demanded under threats that Plaintiff surrender his entire suit of personal clothing witout option to mail home at Plaintiff's expense. Upon packing confiscated clothing bn a box,Sgt. Webb bearly audible but clearly heard by Plaintiff, (person's name), unaudible. Stated:"This will look good on, (unaudible name), at the upcoming wedding."Sgt. Webb did not provide necessary confiscation slip, documentation. Pa.R.C.P.,No.1019(f). 6. As has been stated in files Grievance and pages submitted with this Response and Amended Pleading to the court. This action taken by plaintiff is in of relief due him from a direct malicious act of official oppression and failure of Sgt. Webb & the PA DOC to take responsibility for illegal activity in the wrongfull confiscation of personal clothing itemized at: One black hand tailored suit,(coat & pants), 1 gray dress shirt, 1 silk tie, dress socks, 1 pr. black Johnson & Murphy dress shoes, 1 black, gold buckle leather belt. Retail value: $700.00 purchased at Mens Warehouse, Ross Park Mall, Pittsburgh, Pa in the spring of '05. 7. Relief sought is compensation for replacement of illegaly confiscated (stolen & converted) and compensation due plaintiff of preparation and costs due in production and time invested in the diligent pursuit of relief. Furthermore the PA DOC's circumvention and circumvolutionary handling of and conspiracy to aide in the commission of blatant theft of property. Plaintiff increases amount of relief sought to $7,500.00 The Plaintiff hereby prays this Honorable Court to construe his argument and presentation liberally for he is extemporaneously learned in the law and at an disadvantage of pro se. (Comm. v. Garcia). WHEREFORE, Plaintiff respectfully requests this Honorable Court to sustain and permit Plaintiff to relief sought and affirm. Respectfully submitted. Plaintiff, pro se By: Mr. Douglas Mitchell GQ 4662 PO BOX A OLD ROUTE 22 CRESSON, PA 16699-0001 Dated: 22 April 2009 FIED. OF THE P1 X74' 2009 APR 24 Ail 11: 20 CUM', i?` IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS MITCHELL Plaintiff, CIVIL TERM DIVISION No. 09-1841 v. JURY TRIAL DEMANDED SGT WEBB, et al. Defendant(s) . CERTIFICATE OF SERVICE And now,this 3rd day of November 2009 I Douglas Mitchell due hereby certify that a MOTION TO COMPEL was deposited by myself in the SCI Cresson mail-box system to be delivered VIA FIRST CLASS MAIL USPS postage pre-paid to be s~ro-e~l on the party Q: ~ c listed below. ,-- t By : '; D glas Mitchell,, Plaintiff, pro se GQ 4662 PO Box A, Old Route 22 Cresson, PA 16699-0001 PARTY SERVED: Vincent R. Mazewski, Asst Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS MITCHELL, Plaintiff, CIVIL TERM DIVISION v• No. 09-1841 JURY TRIAL DEMANDED SGT. WEBB, et al. Defendant(s) MOTION TO COMPEL AND NOW,to wit , this 3rd day of November 2009 comes the plaintiff with MOTION to COMPEL arbitration in thE~ above captioned CIVIL ACTION. See attached Civil Case Print with last entry recorded 4/24/2009. Subsequent filings by plaintiff on 1 September 2009 Rule 1033 Amendment adjusting damages sought and inquiries to the Prothonotaries office and Judge Bayley's chambers have yet to be responded to. Please respond and commence action as filed and pled. Respectfully submitted, a Do las Mitchell, Plaintiff, pro se GQ 4662 PO Box A, Old Route 22 Cresson, PA 16699-0001 16272"0081'72009 Cumberland County Prothonotary's O_Efice Page PYS510 Civil Case Print 2009-01841 MITCHELL DOUGLAS (vs) WEBB JOHN DOE SGT ET AL 1 Reference No... Filed.......,, 3/24/2009 Case Type...... COMPLAINT Time........., 2:07 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial..,, Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt l.: Higher Crt 2.: General Index Attorney Info MITCHELL DOUGLAS PLAINTIFF PRO SE SCI CRESSON P O BOX A OLD ROUTE 22 CRESSON PA 16699 0001 WEBB JOHN DOE SGT DEFENDANT MAZESK.I VINCENT R SCI CAMP HILL P O BOX 8837 2500 LISBURN RGAD CAMP HILL PA 17001 8837 DEPARTNIEi1T CF CORRECTIONS DEFENDANT MAZESKI VINCENT R 2520 LISBURN ROAD P O BOX 598 CAMP HILL PA 17001 0598 * Date Entries - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 3/24/2009 COMPLAINT - CIVIL ACTION FILED BY PLFF ------------------------------------------------------------------- 3/24/2009 VERIFIED STATEMENT OF INFORMA PAUPERIS - MONTHLY ACCOUNT STATEMENT ------------------------------------------------------------------- 3/27/2009 PEDTITION I9UGRANTED26/BY EDGAR~BPBAYLEONJFORCOPY MAILEDU3/27/09 ------------------------------------------------------------------- 4/13/2009 SHERIFF'S RETURN - COMPLAINT UPON SGT JOHN DOE WEBB - UNABLE TO LOCATE SHERIFF'S RETURN - COMPLAINT AND NOTICE UPON DEFT DEPARTMENT OF CORRECTIONS AT 88 UTLEY DRIVE CAMP HILL 17011 SHERIFF'S COST - $57.02 ------------------------------------------------------------------- 4/16/2009 PRAECIPE FOR ENTRY OF APPEARANCE - VINCENT R MAZESKI FOR DEFT SGT JOH DOE WEBB AND PA PA DEPT OF CORRECTIONS 4/16/2009 DEFENDANT'S PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - VINCENT R MAZESKI ESQ ------------------------------------------------------------------- 4,/24/2009 CERTIFICATE OF SERVICE - PLFFS RESPONSE TO PRELIMINARY OBJECTIONS AND AMENDED PLEADIN UPON DEFTS COUNSEL - BY PLFF 4/24/2009 PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS AND AMENDED PLEADING - BY PLFF - - - - - - - - - - - - - - LAST ENTRY - - -- - - - - - - - - - - - * End of Case Information ~~~..L..}~ Ir~r .,I tJ~ ~,1:;'' ! ~~.~ , ~ ~ w.. `~ ~ i'ii' ~ ;.~k DOUGLAS MITCHELL, IN THE COURT OF COMMON PLEAS OF PLAINTIFF :CUMBERLAND COUNTY, PENNSYLVANIA V. SGT. WEBB, et al., NO. 09-1841 CIVIL IN RE: PLAINTIFF'S MOTION TO COMPEL ARBITRATION BEFORE OLER, J., AND EBERT, J. ORDER OF COURT AND NOW, this 17th day of February, 2010, upon consideration of the Plaintiff's Pro Se Motion to Compel Arbitration filed on November 9, 2009, and his subsequent Praecipe to list the Motion to Compel Arbitration for Argument and the Court noting that the Plaintiff has failed to file a brief in support of his Motion and it also appearing that the case is not at issue as required by C.C.R.P. 1301-1 in that outstanding preliminary objections to the complaint remain; IT IS HEREBY ORDERED AND DIRECTED that the Plaintiff's Pro Se Motion to Compel Arbitration is DENIED at this time. IT IS FURTHER ORDERED AND DIRECTED that counsel for the Defendants comply with the procedures outlined in C.C.R.P. 1028 (c) in order to properly dispose of the outstanding preliminary objections. ~n ~... By the Court, a ! C I .L_ <.... ~ ~ ~- .. ,~. ___ ... . ~.'`'`' ,' _'' M. L. Ebert, Jr., J. c°., `' Douglas Mitchell Pr o Se Plaintiff .i Vincent Mazeski, Es uire Counsel for Defendant bas ~Pj ~~ ~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS MITCHELL, Plaintiff, CIVIL TRIAL DIVISION v. No. 09-1841 SGT. WEBB, et al., Jury Trial Demanded Defendants N d NOTICE TO PLEAD ~~ TO: Douglas Mitchell 110 West Ingomar Road '~ ~, Pittsburgh, PA 15237-4932 ~ r v You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or default judgment may be entered against you. By: Respectfully submitted, ~~~--~ Vincent R. Mazeski Assistant Counsel Attorney I.D. No. PA 73795 Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: March 1, 2010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS MITCHELL, Plaintiff, v. SGT. WEBB, et al., Defendants CIVIL TRIAL DIVISION No. 09-1841 Jury Trial Demanded DEFENDANTS' ANSWER TO COMPLAINT WITH NEW MATTER AND NOW, come the Defendants, by and through counsel, Vincent R. Mazeski, Assistant Counsel, and hereby answer as follows: 1. Admitted in part. Denied in part. It is Admitted that at the time of the commencement of this action, Plaintiff was an inmate whose address was at SCI- Cresson. It is Denied that SCI-Cresson is his current address. By way of further answer, it is believed that Plaintiff's current address is 110 West Ingomar Road Pittsburgh, PA 15237-4932. 2-3. Admitted. 4. Admitted in part. Denied in part. It is Admitted on July 25, 2006, Plaintiff returned to SCI-Camp Hill from Allegheny County. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment as to whether he returned with three other inmates. Therefore, said averment is specifically Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment as to whether Plaintiff had personal clothing dropped off at ACJ due to supplied clothing being too small or SCI-Camp Hill staff refusing to offer more suitable sized clothing on July 18, 2006. Therefore, said averment is specifically Denied. It is denied that Plaintiff requested to have his clothing mailed home at his expense. It is denied that Defendant Webb refused to mail Plaintiff s clothing home, threatened to reprimand Plaintiff or confiscated Plaintiff s clothing without his consent. It is admitted Plaintiff filed a grievance concerning the alleged incident. WHEREFORE, Defendants request that the Complaint be dismissed and judgment be entered in favor of the Defendants and against the Plaintiff, costs and any other relief they are entitled too or deemed necessary. NEW MATTER By way of New Matter, Defendants aver as follows: 1. Plaintiff s action is barred by the applicable statute of limitations. The alleged incident occurred on July 25, 2006. The complaint was not filed until March 24, 2009. Over two years lapsed between the complained of conduct and the commencement of the action. Tolling does not apply. 2. Defendants are immune from suit. The gist of Plaintiff's action against Defendants is the accusation that Defendant Webb confiscated and converted Plaintiffs personal clothing. The action is premised on intentional conduct. Plaintiff s action against Defendants is barred by sovereign immunity. 3. Plaintiff failed to state a claim upon which relief can be granted. 4. Plaintiff assumed the risk, was comparatively negligent and/or contributory negligent. 5. Plaintiff failed to mitigate his damages. 6. Defendants conduct and actions were in accordance with existing law, policy or procedure. 7. Defendants did not owe a duty to Plaintiff. 8. Defendants did not breach any duty owed to Plaintiff. 9. Defendants' actions did not cause. Plaintiff's injuries. 10. Defendants' actions were not the substantial contributing cause of Plaintiff s injuries. 11. Plaintiff s injuries were not foreseeable. 12. Prior to leaving SCI-Camp Hill on a writ, Plaintiff signed a log acknowledging that he was not to bring back any personal items except his legal materials. 13. Despite the acknowledgment, Plaintiff returned to SCI-Camp Hill with a suit. 14. As of July 25, 2006, Plaintiff was without sufficient funds to mail the suit home. 15. Plaintiff told staff to destroy the suit if he was not allowed to keep it. 16. Plaintiff consented to the confiscation and destruction of the suit. 17. Defendants relied on Plaintiff's consent and therefore, Plaintiff is estopped from pursuing this claim. 18. Defendants were justified in regulating the amount of personalty Plaintiff could possess. 19. Given Plaintiff s consent, Defendants were licensed in disposing of his suit. 20. Given the passage of time, Plaintiff's action is barred by laches. WHEREFORE, the Defendants request that the Complaint be dismissed and judgment be entered in favor of the Defendants and against the Plaintiff, costs and any other relief they are entitled too or deemed necessary. Respectfully submitted, -~1i`~-,~. ~ By: Vincent R. Mazeski Assistant Counsel Attorney I.D. No. 73795 Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: March 1, 2010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS MITCHELL, Plaintiff, v. SGT. WEBB, et al., Defendants CIVIL TRIAL DIVISION No. 09-1841 Jury Trial Demanded VERIFICATION I, Vincent R. Mazeski, Esquire, Counsel for the Defendants, hereby state that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Defendants, Plaintiffs inmate file, documentation and/or other Department employees are the source of the undersigned's information and belief. The undersigned understands that the statements herein are made subject to the penalties for unsworn falsification to authorities. ~~~ ~ Vincent R. Mazeski Dated: March 1, 2010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS MITCHELL, Plaintiff, CIVIL TRIAL DIVISION v. No. 09-1841 SGT. WEBB, et al., Jury Trial Demanded Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day depositing in the U.S. mail a true and correct copy of the foregoing Defendants'Answer to Complaint with New Matter upon the person(s) in the above-captioned matter. Service by first-class mail Addressed as follows: Douglas Mitchell 110 West Ingomar Road Pittsburgh, PA 15237-4932 Debora Bryan Clerical Supervisor Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: March 1, 2010 DOUGLAS MITCHELL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION -LAW NO. 09-1841 SGT. WEBB, ET AL., Defendants JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J. AND EBERT, J. ORDER AND NOW, this ~3 ~ day of May, 2010, following argument thereon, there being no exception to sovereign immunity in this case and it being apparent that the defendants are entitled to the affirmative defense of the statute of limitations, the motion of the defendants for judgment on the pleadings is GRANTED. BY THE COURT, ouglas Mitchell Plaintiff Vincent R. Mazeski, Esquire For the Defendants :rlm 1.O c ~s .,y~,~ c l~ .s/~Y~~~ ~~ 7 Q ~' _~ --+ _.:, -yc y ~ :~ ~ -~, '~~ .. ~ ~. ~, Douglas Mitchell IN THE SUPERIOR COURT . OF PENNSYLVANIA . (C.P. Cumberland County v• No. 09-1841) No. 950 MDA 2010 Sgt. John Doe Webb Filed: July 2 2010 ORDER As the underlying matter involves claims asserted against a Department of Corrections employee, and as sovereign immunity was invoked below, the above-captioned appeal is hereby TRANSFERRED to the Commonwealth Court. See Pa.R,A.P. 75I; 42 Pa.C.S. § 762(a)(1)(i), Per Curiam Cj N _~_ ~ a ,~, :~ c~ 'T7 x-' cam' ~~ ~'~ ~ a r,i` ~ -n~-r. -~ `,. `'. ~- _,. 4` `-' ~ r-j ; `e L "" F ~~ ~A N --C TRUB COP~t' F~t011~ AHi00RD A>: ~~~ 0 2 2010 ~~ ~ Superior Court of PA - Miiills Dla~lct Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 ----- ------------------------ -- - -- --- -- -- - __ - 1013 Rev.07/02/2010 ~u~erfor court of ~enngprbaufa Karen Reid Bramblett, Esq. Prothonotary Middle District Milan K. Mrkobrad, Esy. Deputy Prothonotary July 2, 2010 RE: Mitchell, D. v. Webb, Sgt. et al No. 950 MDA 2010 Trial Court Docket No: 09-1841 Dear Mr. Mitchell Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. pa. us Enclosed please find a copy of an order dated July 2, 2010 entered in the above-captioned matter. Pursuanf to the foregoing Order, a certified copy of same is being forwarded to the Trial Court Judge, Trial Court and Commonwealth Court Prothonotary. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /vsl Enclosure cc: Kristen W. Brown, Prothonotary Buell, David D., Prothonotary The Honorable Kevin A. Hess, President Judge Vincent R. Mazeski, Esq. cn c ~% = d '~ -r~ ~-;. c-. - ~ Win; _ ~ ~ ° ~ , -r, ~1 :~1 i~ .l>` ( ~ .. -~- ~. ; ~; : j'\w ~ "~ i b _ ~ DOUGLAS MITCHELL, Plaintiff vs. SGT. WEBB, ET. AL., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.09-1841 CIVIL JURY TRIAL DEMANDED In this civil case, tl~e plaintiff filed an action alleging that an employee of the State Correctional Institution at on July 25, 2006. the defendant's motion of judgment on the The bases for appeal, as follows: Hill improperly confiscated certain items of plaintiff's clothing s Complaint, para. 4). On May 13, 2010, the undersigned granted judgment on the pleadings. The plaintiff has appealed from our grant and the matter is now pending in the Commonwealth Court. have been expressed in a statement of matters complained of on le incarcerated @ SCI Camp Hill the Plaintiff ordered under threat of reprimand and bodily i to surrender all his personal court clothing retailing over $700.00. This criminal, igent act of malice negates the unonwealth's defense of "Sovereign unity." The Commonwealth (officials) cannot ;r abuse of power threaten people (even rtes) for personal gain and/or conversion of Commonwealth's claim of "time bar" is tered by a well documented preserved diligent n of relief on file in Cumberland County onotary's Office. The Commonwealth's inued circumvoluntionary [sic] methods has ght this case to this point in time. Defendants' Rule 1925(b)~ Concise Statement of Matters of Appeal, filed July 1, 2010. ~ L NO.09-1841 CIVIL The history of this ~ase is not complicated. The plaintiff's complaint in this matter was filed on March 24, 2009. ~n March 26, 2009, the Honorable Edgar B. Bayley granted the plaintiff's motion to proce~d in forma pauperis. In his complaint, the plaintiff alleges that, while in the process. of getting p~ison clothing, a Sgt. Webb of SCI Camp Hill refused to mail home the plaintiff s personal clothin~ and refused to complete a written confiscation slip. In the defendants' answer and ne~vv matter, the defendants assert that they are immune from suit because the plaintiff s actin is barred by sovereign immunity. They also contend the plaintiff s action istime-barred by the applicable statute of limitations. We granted judgment on the pleadings, agreeing with tl~e defendants on both counts. In Pennsylvania, tl~e Commonwealth and its officials and employees, acting within the scope of their duties, are p~otected from civil suit by sovereign immunity, except as otherwise provided by the Legislatu~f e. 1 Pa. C.S.A. § 2310. It is well settled that the sovereign immunity protections "were enacted~to insulate the Commonwealth and its agencies from liability except in certain specified circumstances so that state governmental assets are not subject to depletion through multiple lawsuits.' James J. Gory Mechanical Contracting, Inc. v. Philadelphia Housing Authority , 579 P~.. 26, 39, 855 A.2d 669, 677 (2004). Sovereign immunity acts to "[preclude] a litigant from asserting an otherwise meritorious cause of action against a sovereign agency or a party with so~ereign attributes unless consent to suit exists." State Workmen's Ins. Fund, Com., Dept. of Lab~r and Industry v. Caparo Real Estate Inc., 160 Pa. Commw. Ct. 581, 586, 635 A.2d 705, 707 (1993). The General Assembly has codified the sovereign immunity provisions as follows: to section 11 of Article 1 of the ion of Pennsylvania, it is hereby declared 2 NO.09-1841 CIVIL to the the intent of the General Assembly that the monwealth, and its officials and employees g within the scope of their duties, shall nue to enjoy sovereign immunity and official unity and remain immune from suit except as general Assembly shall specifically waive the unity. When the General Assembly fically waives sovereign immunity, a claim ist the Commonwealth and its officials and em loyees shall be brought only in such manner and in such courts and in such cases as directed by the rovisions of Title 42 (relating to judiciary and judi ial procedure) or 62 (relating to procurement) unl ss otherwise specifically authorized by statute. 1 Pa. C.S.A. § 2310. The Legislature Those exceptions are (a) m to 1 ab for the if 42 Pa. C.S.A. § 8522(a). enacted exceptions to the general sovereign immunity provisions. in 42 Pa. C.S.A. § 8522, which begins by providing as follows: iability imposed.--The General Assembly, rant to section 11 of Article I of the ~titution of Pennsylvania, does hereby waive, instances set forth in subsection (b) only and to the extent set forth in this subchapter and m the limits set forth in section 8528 (relating nitations on damages), sovereign immunity as to an action against Commonwealth parties, amages arising out of a negligent act where amages would be recoverable under the non law or a statute creating a cause of action injury were caused by a person not having able the defense of sovereign immunity. The statute goes o~ to provide certain acts and exceptions which may also impose liability, including the following: vehicle liability; medical-professional liability; care, custody, or control of personal pro~erty; Commonwealth real estate, highways and sidewalks; potholes 3 N0.09-1841 CIVIL and other dangerous conditions; care, custody or control of animals; liquor store sales; National Guard Activities; and toxo$ds and vaccines. 42 Pa. C.S.A. § 8522(b). A plain reading of § 8522, however, reveals that a ne~essary precondition to the application of any of the aforementioned exceptions is a "negligent ct." 42 Pa. C.S.A. § 8522(a). Actions against the state or its employees involving inten Tonal torts are not within the scope of exceptions set out in 42 Pa. C.S.A. § 8522(b). Faust v~ Com. Dept. of Revenue, 140 Pa. Commw. Ct. 389, 398, 592 A.2d 835, 839 (1991) ("Further, intentional tort claims and civil rights actions are not within the narrow exceptions set fort) in 42 Pa.C.S. § 8522(b)."). In the case sub jud~ce, the plaintiff alleged that, while in the process of obtaining prison clothing in exchange for h~s own personal suiting, Sgt. Webb of the SCI Camp Hill staff first refused to mail home the ~ersonal suiting of the plaintiff at his expense, and then refused to complete a written confiscation slip for the suiting that was taken. (Plaintiff's Complaint, filed March 24, 2009, para. 4.) These were intentional acts done in the course of Sgt. Webb's duties. As a result, there is no exception to sovereign immunity in this case. The defendant has also asserted that the plaintiffs action is time-barred. Pennsylvania law imposes a two year st~tute of limitations on actions involving injury to personal property. 42 Pa. C.S. § 5524. The. applicable statute provides as follows: following actions and proceedings must be menced within two years: (1) action for assault, battery, false im risonment, false arrest, malicious prosecution or alicious abuse of process. (2) action to recover damages for injuries to the per on or for the death of an individual caused by 4 NO.09-1841 CIVIL the ~ongful act or neglect or unlawful violence or ne~l pence of another. (3) action for taking, detaining or injuring pers nal property, including actions for specific reco erv thereof. (4) t}~n action for waste or trespass of real property. (5) t~1n action upon a statute for a civil penalty or (6) action against any officer of any gov rnment unit for the nonpayment of money or the ondelivery of property collected upon on exe ution or otherwise in his possession. Id. The justification for tl~e statute of limitations is to "expedite litigation and to discourage stale claims." Moore v. 1l?~Comsey, 313 Pa. Super. 264, 270, 459 A.2d 841, 844 (1983) (internal citations omitted). Once tl~e given statutory period for filing a cause of action has elapsed, the complaining party is prohibited from bringing suit. Booker v. Olczal~ 2002 Pa. Super. 106, ¶ 8, 797 A.2d 342, 345. Furthermore, Pennsylvania courts have a strong policy of "favoring the strict application of the statutes ~f limitation." Id. (citing Kingston Coal Co. v. Felton Min. Co., 456 Pa.Super. 270, 690 A.2d 2~4, 288 (1997)). It is, therefore, the duty of the aggrieved party to "use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recove is based and to institute suit within the prescribed statutory period." Id. In the case sub jud ce, the first docketed matter appearing of record is Plaintiff's Complaint, filed with the Cumberland County Prothonotary's Office on March 24, 2009. (Plaintiff's Complaint.) Ir~ Plaintiff's aforementioned Complaint, he alleges that the incident in question occurred on July X25, 2006. (Plaintiff's Complaint, para. 4.) At the time the complaint 5 ~ r ~ N0.09-1841 CIVIL was filed, the period betty en the incident and filing was fast approaching three years. Pennsylvania law imposes atwo-year period in which an aggrieved party has the opportunity to commence an action pe Wing to the "taking, detaining or injuring personal property, including actions for specific recove thereof." 42 Pa. C.S. § 5524 (3). Because the plaintiff filed the action 973 days after the leged incident, and there appearing no reason tolling should be applied, he is time barred ~rom bringing suit. July iS~` , 2010 'Douglas Mitchell, GQ 46b P. O. Box A Old Route 22 Cresson, PA 16699-0001 Plaintiff / Vincent R. Mazeski, E PA Department of Coy 55 Utley Drive Camp Hill, PA 17011 For the Defendants :rlm Cp p, rs w-,~: (.ed 71,, lvf~ L -', D r /J ~ /•~ A. Hess, P.J. ~ ~ _ `' ~ l.,` ~.r~ ~~'' a7 "~ 6 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: DOUGLAS MITCHELL VS. SGT JOHN DOE WEBB AND DEPARTMENT OF CORRECTIONS 2009-1841 CIVIL 1304 CD 2010 The documents comprising the record have been numbered from No.l to 71, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 08-02-10 . David D. Bu~ Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss. I, - David D Buell ,Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the ease therein stated, wherein Douglas Mitchell In 'T'ESTIMONY WHEREOF, I have hereunto this __ 2nd Plaintiff, and Sgt. John Doe Webb and Department of Corrections Defendant , as the same remains of record before the said Court at No. 09-1841 of Civil Term, A. D. 19 set my hand and affixed the seal of said Court day pL.-~~ Aueust A. D., 2010 Prothonotary [, Kevin A .H~cs President Judge of the Ninth .ludicial District, composed of the County of Cumberland, do certify that David D B 11 by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed. his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of sa doing, and now is Prothonotary in and for said County of ~mberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and aaaght to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by th~roper officer. J Commonwealth,of Pennsylvania County of t^um.berland ss: President .fudge I, David D. Buell Prothonotary of the Court of Common Pleas in and far the said County, do cet~tify that the Honorable xP ~;n A HPCc by whom the fr~regaing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Coact and Court of Quarter Sessions of the Peace in and for said Caunty, duty Commissioned and qualified; to all whose acts as such full faith and credit are and aught to be given, as welt in Courts of judicature as elsewhere. 1N TESTIMONY WHEREOF, T have hereunto set my hand and affixed the seal of said Court this n day of Aug ~c A. D. 2010 Prothnnoter~~ No. Term 19 09-1841 '~O~ i3vy e~ ~o-o Civil Term Douglas Mitchell Versus Sgt. John Doe Webb and Department of Corrections EXEMPI.IF[ED RECORD From Cumberland Count Y Debt, $ Int. from Costs Entered and Filed 19 Prothonotary.. Among the Records and Proceedings enrolled in the court of Common Pleas in and far the Cumberland county of in the Commonwealth of Pennsylvania os-isai to Na. l'a~~l ~~~ Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Douglas Mitchell VS. Sgt. John Doe Webb and Department of Corrections **SEE CERTIFIED COPY OF DOCKET ENTERIES** YYa711 ~umperlana ~ounLy rroLnonoLary~s u==ice rage 1 Civil Case Print 2009-01841 MITCHELL DOUGLAS (vs) WEBB JOHN DOE SGT ET AL Reference No... Filed......... 3/24/2009 Case Ty e...... COMPLAINT Time. .... 207 Judgmen~..... .00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. 0/00 0000 ------------ Case Comments ------------- Higher Crt 1.: 950 MD 2010 Higher Crt 2.: 1304 CD 2010 General Index Attorney Info MITCHELL DOUGLAS PLAINTIFF PRO SE SCI CRESSON P O BOX A OLD ROUTE 22 CRESSON PA 16699 0001 110 W INGOMAR RD WEBB JOHN DOE SGT DEFENDANT MAZESKI VINCENT R SCI CAMP HILL P O BOX 8837 2500 LISBURN ROAD CAMP HILL PA 17001 8837 DEPARTMENT OF CORRECTIONS DEFENDANT MAZESKI VINCENT R 2520 LISBURN ROAD P O BOX 598 CAMP HILL PA 17001 0598 * Date Entries ************~***~**********~*******************,r******************************** t-~ 3/24/2009 ~ d- ~~A 3/24/2009 1~ 3/27/2009 ~~ 4/13/2009 3-(~ 4/16/2009 ~Jr' - ~ ~ 4/16/2009 ~- ~~ 4/24/2009 ,2O ~~~4/24/2009 a.~-e~~ 9/08/2009 ~, 11/09/2009 2$ ~~12/09/2009 3O„ 31 2/17/2010 3 ~ 2/18/2010 2-~_~,~p3/02/2010 FIRST ENTRY COMPLAINT - CIVIL ACTION FILED BY PLFF ------------------------------------------------------------------ VERIFIED STATEMENT OF INFORMA PAUPERIS - MONTHLY ACCOUNT STATEMENT PEDITION ISUGRANTED26/BY EDGAR~BPBAYLEONJFORCOPY MAILEDU3/27/09 ------------------------------------------------------------------- SHERIFF'S RETURN - COMPLAINT UPON SGT JOHN DOE WEBB - UNABLE TO LOCATE SHERIFF'S RETURN - COMPLAINT AND NOTICE UPON DEFT DEPARTMENT OF SHERIFFISNCOST $8$57LE02 DRIVE CAMP HILL 17011 ------------------------------------------------------------------- PRAECIPE FOR ENTRY OF APPEARANCE - VINCENT R MAZESKI FOR DEFT SGT JOH DOE WEBB AND PA PA DEPT OF CORRECTIONS ------------------------------------------------------------------- DEFENDANT'S PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - VINCENT R MAZESKI ESQ ------------------------------------------------------------------- CERTIFICATE OF SERVICE - PLFFS RESPONSE TO PRELIMINARY OBJECTIONS AND AMENDED PLEADIN UPON DEFTS COUNSEL - BY PLFF ------------------------------------------------------------------- PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS AND AMENDED PLEADING - BY PLFF ------------------------------------------------------------------- RULE 1033 AMENDMENT - BY PLFF ------------------------------------------------------------------- CERTIFICATE OF SERVICE - MOTION TO COMPEL - PLFF/PRO SE ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - PLFFS MOTION TO COMPEL ARBITRATION - BY PLFF ------------------------------------------------------------------- ORDER OF COURT - 2/17 10 IN RE: PLFFS MOTION TO COMPEL ARBITRATION - MOTION TO COMPEL AR ITRATIQN IS DENIED AT THIS TIME - BY M L EBERT JR J - COPIES MAILED 2/17/10 ------------------------------------------------------------------- CERTIFICATE OF SERVICE - DEFTS BRIEF IN SUPPORT OF PRELIMINARY OBJECTTONS UPON PLFF - BY VINCENT R MAZESKI ATTY FOR DEFT ------------------------------------------------------------------- DEFENDANTS ANSWER TO COMPLAINT WITH NEW MATTER - BY VINCENT R MAZESKI ATTY FOR DEFTS rY~511 ~"umperiana ~our..cy rroLnonoLary~s vz=~.ce rage ~ Civil Case Print 2009-01841 MITCHELL DOUGLAS (vs) WEBB JOHN DOE SGT ET AL Reference No... Filed......... 3/24/2009 Case Type...... COMPLAINT Time. .... 2.07 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. 0/QO 0000 ------------ Case Comments ------------- Higher Crt 1.: 950 MD 2010 Higher Crt 2.: 1304 CD 2010 ------------------------------------------------------------------- Gf~~L~L.~4/13/2010 DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS - BY VINCENT R MAZESKI ATTY FOR DEFT DEPT OF CORRECTIONS ------------------------------------------------------------------- y" 4/13/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFTS MOTTON FOR JUDGMENT ON THE PLEADINGS - BY VINCENT R MAZESKI ATTY FOR DEFTS ------------------------------------------------------------------- 1'I~ 5/13/2010 ORDER - 5/13/10 IN RE: DEFTS MOTION FOR JUDGMENT ON THE PLEADINGS - MOTION IS GRANTED - BY KEVIN A HESS PJ - COPIES MAILED 5/14/10 ------------------------------------------------------------------- (~"7~ Jr'' 6/08/2010 NOTICE OF APPEAL TO SUPERIOR COURT - BY PLFF PRO SE t~,~5L~6/10/2010 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 950 MDA 2010 J ------------------------------------------------------------------- J! S 6/10/2010 ORDER - 6/10/10 IN RE: APPEAL OF PLFF - THE APPELLANT IS DIRECTED TO FILE OF RECORD WITHIN 21 DAYD HEREOF A CONCISE STATEMENT OF THE MATTERS COMPLAINED OF ON APPEAL - BY KEVIN A HESS PJ - COPIES MAILED 6/10/10 ------------------------------------------------------------------- JrCO 7/01/2010 RULE 1925B CONCISE STATEMENT OF MATTERS OF APPEAL - BY PLFF ------------------------------------------------------------------- 57 -LQ~ 7/06/2010 ARDEPARTMENTHOFUCORRECTIONSAEMPLOYEEOANDSASSOVEREIGNRIMMUNITYNWAS INVOKED BELOW THE ABOVE-CAPTIONED APPEAL IS HEREBY TRANSFERRED TO COMMONWEALTH COURT SEE PA.R.A.P 751 42PA.C.S. 762 (A)(1)(I) PER CURIAM ------------------------------------------------------------------- ~'~0~7/16/2010 ARHESS PJ/16COPIE5 MAILEDI7/~6/PpRSUANT TO RULE 1925 - BY KEVIN tp~j-~'iI 7/30/2010 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1304 CD 2010 ------------------------------------------------------------------- 8/02/2010 NOTICE OF DOCKET ENTRIES MAILED TO VINCENT R MAZESKI ESQ AND DOUGLAS MITCHELL - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ------------------------ ------------ .00 .00 .00 * End of Case Information ******************************************************************************** TRUE"6~'l~ ON1.82E~~6 M TesNm~a35~ , .: ~ h~re ur~tq"ser.my: it9nd and the ~~ K"al~mrfisia,~ps This _.¢~..-d~.~"ot , ~_ . l a " thonotary ,,~ ~ . . ` I ~~.. . i . __ a >~ CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: DOUGLAS MITCHELL w VS. r_. -ew ~., _ o ~~'-. ° SGT JOHN DOE WEBB "^~£' . ~ ~' ~ AND " DEPARTMENT OF CORRECTIONS ~ ~+~;~' IV us~"'r -<t- ~,~ 2009-1841 CIVIL -0 ~~~" 1304 CD 2010 ~ ~ The documents comprising the record have been numbered from No.l to 71 w , a~ad ~riached~ hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 08-02-10 . l~"-~- I Davi D. Buell, Prothonotary Regina Lebo An additional cony of this certificate is enclosed. Please sign and date cony, thereby acknowledein~ receipt of this record. Date Signature & Title CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: DOUGLAS MITCHELL VS. SGT JOHN DOE WEBB AND ' DEPARTMENT OF CORRECTIONS 2009-1841 CIVIL 1304 CD 2010 The documents comprising the record have been numbered from No.l to 71, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 08-02-10 . p. Buell gland County Courthouse ~urthouse Square 00 ~, PA 17013 .~a ., r ..~ ~~~ ao~o ~~ ~~ ~ ~~:~ Lv~J ,:...1 r !... ~ t : .. K ~- g~~~ ~~, ~~ ~ ~ vii .~ ,' ~ ~o rm,er ao~uEs 02 ,A S 00.61 0004631598 AUG02 ZO' MAILED FROM ZIP CODE 1 70' p~,~~uc Douglas Mitchell, GQ 4662 _ _ - P.O. Box A Old Route 22 Cresson, PA iv=x~l= xs.~ cew i. Vie; ~~~,~~;~ RETURN TO SEMD RR . _ . _. 7~L?'Y` DEL.YIIERAHL,E AS • A~iSl~i::t'¢~'b •UNABLE TO FORWARD SC: 1T03+3c'98!?~4Q9 'YD43S-03i>?8-C~'-~4.? t~~=~-`~~~~ l,,,l)1,,,))1,,,,,,1)„)1,,,)1,,,11,1,),,,1„)1,1„1,1,,,,,111 r IN THE COMMONWEALTH COURT OF PENNSYLVANIA Douglas Mitchell, Appellant V. Sgt. John Doe Webb and Department of Corrections O9 - ,/fry' / No. 1304 C.D. 2010 Submitted: December 10, 2010 BEFORE: HONORABLE RENEE COHN JUBELIRER Judge , HONORABLE MARY HANNAH LEAVITT, Judge : -= HONORABLE JOHNNY J. BUTLER, Judge I-ri 7-1 715 ? OPINION NOT REPORTED rv r?- MEMORANDUM OPINION BY C. W JUDGE BUTLER FILED: January 11, 2011 Douglas Mitchell (Mitchell) appeals from the May 13, 2010 order of the Court of Common Pleas of Cumberland County (trial court) granting the Motion for Judgment on the Pleadings filed by Sgt. John Doe Webb (Sgt. Webb) and the Department of Corrections (collectively, Department). There are three issues before the Court: (1) whether Mitchell's claim fell within the applicable statute of limitations, (2) whether sovereign immunity applies, and (3) whether Mitchell is entitled to relief. For reasons that follow, we affirm the order of the trial court. Mitchell filed a Complaint on March 24, 2009, alleging that an employee of the State Correctional Institution at Camp Hill improperly confiscated certain items of his clothing on July 25, 2006. The Department filed an Answer and New Matter raising the issues of the statute of limitations and sovereign immunity. Mitchell did not file an Answer to the New Matter. The Department filed a Motion for Judgment on the Pleadings. On May 13, 2010, the trial court granted the Department's motion. Mitchell appealed pro se to this Court.' Mitchell argues that his claim fell within the applicable statute of limitations.2 We disagree. An action for "taking, detaining or injuring personal property" must be commenced within two years. 42 Pa.C.S. § 5524. Here, the action complained of, i.e., the prison guard confiscating Mitchell's clothing, occurred on July 25, 2006, and Mitchell did not file his complaint until March 24, 2009. Clearly, Mitchell's action is barred by 42 Pa.C.S. § 5524. Mitchell next argues that sovereign immunity does not apply? We disagree. "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."' Williams v. Stickman, 917 A.2d 915, 917 (Pa. Cmwlth. 2007) (quoting La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992)). Here, Mitchell ' "In reviewing trial court's decision to grant judgment on pleadings, the scope of review of appellate court is plenary; reviewing court must determine if the action of trial court was based on clear error of law or whether there were facts disclosed by pleadings which should properly go to jury." Newberry Twp. v. Stambaugh, 848 A.2d 173,175 n.l (Pa. Cmwlth. 2004). 2 Although this issue is listed in Mitchell's Statement of Questions in his brief, his argument is void of any mention of the statute of limitations which renders the argument waived. In re Condemnation of Land for S. E. Cent. Bus. Dist. Redevelopment Area No.1 (405 Madison Street, City of Chester), 946 A.2d 1154 (Pa. Cmwlth. 2008). Notwithstanding, we are addressing it for the sake of completeness since Mitchell appealed pro se. 3 Although this issue is listed in Mitchell's Statement of Questions in his brief, his argument is void of any mention of sovereign immunity which renders the argument waived. In re Condemnation of Land for S. E. Cent. Bus. Dist. Redevelopment Area No.1 (405 Madison Street, City of Chester), 946 A.2d 1154 (Pa. Cmwlth. 2008). Notwithstanding, we are addressing it for the sake of completeness since Mitchell appealed pro se. 2 alleged in his complaint that he was "subject to have personal clothing dropped off," and that while he requested to have his clothes mailed home, Sgt. Webb refused and confiscated his clothing. Original Record at 4. As dealing with prisoners' clothing is within Sgt. Webb's duties and the alleged taking would be an intentional tort, sovereign immunity applies such that no liability may be imposed upon Sgt. Webb in the instant matter. Lastly, Mitchell argues that he is entitled to relief for the humiliation subjected upon him by being forced to surrender his personal clothing. Based on the above, Mitchell's action is barred by the statute of limitations and the doctrine of sovereign immunity. Accordingly, Mitchell is not entitled to relief. For all of the above reasons, the trial court's order is affirmed. JOHNNY J. BUTLER, Judge 3 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Douglas Mitchell, Appellant V. Sgt. John Doe Webb and Department of Corrections No. 1304 C.D. 2010 ORDER AND NOW, this 11`h day of January, 2011, the May 13, 2010 order of the Court of Common Pleas of Cumberland County is affirmed. -'E; nz;? - - 6 O-t? -.3 JOHNNY J. BUTLER, Judge Certified from the Record JAN 1 1 2011 and Order Exit iq Commoftealtb Court of i9ennop1bania Kristen W. Brown Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue, Suite 2100 Michael Krimmel, Esq. P.O. Box 69185 Chief Clerk of Commonwealth Court Harrisburg, PA 17106-9185 March 29, 2011 www.pacourts.us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: David D. Buell Prothonotary RE: Mitchell, D. v. Webb, Sgt. et al 1304 CD 2010 Trial Court: ?YII Irby G-ud Qf Com>non Plus Trial Court Docket No: 09-1841 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description rrial court record August 2, 2010 Remand/Remittal Date: ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, , Common ea Court Filin Office c c '? 3 ma Z? ? r= r w C3 --4c) C-? _ =n M 4 -< CD -< N Mitchell, D. v. Webb, Sgt. et al 1304 CD 2010 Letter to: Buell, David D. March 29, 2011 Acknowledgement of Certificate of RemittaURemand of Record (to be returned): Signature Date Printed Name IN THE COMMONWEALTH COURT OF PENNSYLVANIA Douglas Mitchell, Appellant V. Sgt. John Doe Webb and Department of Corrections No. 1304 C.D. 2010 Submitted: December 10, 2010 BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge c rl) HONORABLE MARY HANNAH LEAVITT Judge rnW rnT , HONORABLE JOHNNY J. BUTLER, Judge == w -0Q OPINION NOT REPORTED =c 3 ?-n ;c o c5n m MEMORANDUM OPINION BY - ; CD JUDGE BUTLER FILED: January 11, 2011 Douglas Mitchell (Mitchell) appeals from the May 13, 2010 order of the Court of Common Pleas of Cumberland County (trial court) granting the Motion for Judgment on the Pleadings filed by Sgt. John Doe Webb (Sgt. Webb) and the Department of Corrections (collectively, Department). There are three issues before the Court: (1) whether Mitchell's claim fell within the applicable statute of limitations, (2) whether sovereign immunity applies, and (3) whether Mitchell is entitled to relief. For reasons that follow, we affirm the order of the trial court. Mitchell filed a Complaint on March 24, 2009, alleging that an employee of the State Correctional Institution at Camp Hill improperly confiscated certain items of his clothing on July 25, 2006. The Department filed an Answer and New Matter raising the issues of the statute of limitations and sovereign immunity. Mitchell did not file an Answer to the New Matter. The Department filed a Motion for Judgment on the Pleadings. On May 13, 2010, the trial court granted the Department's motion. Mitchell appealed pro se to this Court.' Mitchell argues that his claim fell within the applicable statute of limitations.2 We disagree. An action for "taking, detaining or injuring personal property" must be commenced within two years. 42 Pa.C.S. § 5524. Here, the action complained of, i.e., the prison guard confiscating Mitchell's clothing, occurred on July 25, 2006, and Mitchell did not file his complaint until March 24, 2009. Clearly, Mitchell's action is barred by 42 Pa.C.S. § 5524. Mitchell next argues that sovereign immunity does not apply.' We disagree. "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."' Williams v. Stickman, 917 A.2d 915, 917 (Pa. Cmwlth. 2007) (quoting La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992)). Here, Mitchell ' "In reviewing trial court's decision to grant judgment on pleadings, the scope of review of appellate court is plenary; reviewing court must determine if the action of trial court was based on clear error of law or whether there were facts disclosed by pleadings which should properly go to jury." Newberry Twp. v. Stambaugh, 848 A.2d 173,175 n.l (Pa. Cmwlth. 2004). 2 Although this issue is listed in Mitchell's Statement of Questions in his brief, his argument is void of any mention of the statute of limitations which renders the argument waived. In re Condemnation of Land for S. E. Cent. Bus. Dist. Redevelopment Area No.1 (405 Madison .Street, City of Chester), 946 A.2d 1154 (Pa. Cmwlth. 2008). Notwithstanding, we are addressing it for the sake of completeness since Mitchell appealed pro se. 3 Although this issue is listed in Mitchell's Statement of Questions in his brief, his argument is void of any mention of sovereign immunity which renders the argument waived. In re Condemnation of Land for S. E. Cent. Bus. Dist. Redevelopment Area No.] (405 Madison Street, City of Chester), 946 A.2d 1154 (Pa. Cmwlth. 2008). Notwithstanding, we are addressing it for the sake of completeness since Mitchell appealed pro se. 2 r alleged in his complaint that he was "subject to have personal clothing dropped off," and that while he requested to have his clothes mailed home, Sgt. Webb refused and confiscated his clothing. Original Record at 4. As dealing with prisoners' clothing is within Sgt. Webb's duties and the alleged taking would be an intentional tort, sovereign immunity applies such that no liability may be imposed upon Sgt. Webb in the instant matter. Lastly, Mitchell argues that he is entitled to relief for the humiliation subjected upon him by being forced to surrender his personal clothing. Based on the above, Mitchell's action is barred by the statute of limitations and the doctrine of sovereign immunity. Accordingly, Mitchell is not entitled to relief. For all of the above reasons, the trial court's order is affirmed. '*'s 5- - 6 L) -e-? 3 JOHNNY J. BUTLER, Judge 3 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Douglas Mitchell, Appellant V. Sgt. John Doe Webb and Department of Corrections No. 1304 C.D. 2010 ORDER AND NOW, this 11th day of January, 2011, the May 13, 2010 order of the Court of Common Pleas of Cumberland County is affirmed. JOHNNY J. BUTLER, Judge