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Home My WebLink About10-1500 CHARLES T. PALADINO : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION - LAW : NO. 10-1500 CIVIL : SUPT. JOHN PALAKOVICH, : ET AL., : Defendants : IN RE: DEFFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J. ORDER th AND NOW, this 18 day of April, 2011, upon consideration of Defendant’s Motion for Judgment on the Pleadings, and the briefs submitted by the parties, Plaintiff having alleged no cause of action for which sovereign immunity has been waived, Defendant’s Motion for Judgment on the Pleadings is GRANTED. BY THE COURT, _____________________ Kevin A. Hess, P.J. Charles Paladino, SCI-forest P. O. Box 945 1 Woodland Drive Marienville, PA 16239 Daniel R. Goodemote, Esquire For the Defendants :rlm CHARLES T. PALADINO : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION - LAW : NO. 10-1500 CIVIL : SUPT. JOHN PALAKOVICH, : ET AL., : Defendants : IN RE: DEFFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J. OPINION AND ORDER HESS, P.J., April 18, 2011 For consideration at this time is Defendant Palakovich’s Motion for Judgment on the Pleadings. (Motion for Judgment on the Pleadings, filed Nov. 22, 2010). The parties have submitted briefs. (Defendant’s Brief in Support of Motion for Judgment on the Pleadings of Defendant John Palakovich, filed Mar. 8, 2010; Plaintiff’s Brief in Opposition to Defendant’s Motion for Judgment on the Pleadings, filed Mar. 7, 2011). The facts of the case may be summarized as follows. The Complaint in this matter was filed on March 3, 2010. Plaintiff is an inmate currently incarcerated at the State Correctional Institution – Forest (SCI – Forest), located in Marienville, Pennsylvania. At all times relevant to the complaint, however, Plaintiff was incarcerated at the State Correctional Institution – Camp Hill (SCI- Camp Hill), and Defendant, John Palakovich, was the Superintendent of that facility at the time when the events described in Plaintiff’s complaint allegedly occurred. On May 5, 2010, Defendant filed his Answer and New Matter. (Answer and New Matter of the Commonwealth Defendant, filed May 5, 2010). 2 Plaintiff’s complaint seeks damages from Defendant for injuries resulting from an alleged assault and battery of Plaintiff by one Lt. Kevin McElwain. Plaintiff alleges that, on November 13, 2008, at SCI – Camp Hill, Lt. McElwain “injur[ed] the claimant while acting within the scope of his employment and in the discharge of his duties. . . .” (Complaint, ¶ 2). Plaintiff’s complaint states that Lt. McElwain “forcefully shoved the claimant in the back, from behind, causing the claimant to trip over a (about) four (4) inch step causing, the claimant to fall on his left wrist and left knee.” (Complaint, ¶ 3). Plaintiff further alleges that “[t]he actions of the 1 correctional officer, sergent [sic] Macdwain, were intentional and unwarranted.” (Complaint, ¶ 19). Plaintiff labels his claims as “assault and battery, and negligence.” (Complaint, ¶ 2). As a result of the injuries sustained from these alleged events, Plaintiff seeks damages. (Complaint, ¶ 23). Defendant has filed the motion sub judice asserting that, as a Commonwealth employee, the Superintendent has sovereign immunity. (Motion for Judgment on the Pleadings, ¶ 9). A Motion for Judgment on the Pleadings under Pennsylvania Rule of Civil Procedure 1034 may properly be granted in cases so free and clear of doubt that a “trial would be a fruitless exercise.” Bata v. Central-Penn Nat. Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966). In ruling on such motions, a court must consider only the pleadings and any documents properly attached thereto. Id. at 179. Judgment on the pleadings may not be entered where material issues of fact are in dispute. Miami National Bank v. Willens, 410 Pa. 505, 507-08, 190 A.2d 438, 439 (1963). The trial court must accept as true “all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.” 1 The complaint has since been amended to reflect the proper rank and name – Lt. McElwain. 3 Delaware River Preservation Co., Inc. v. Miskin, 2007 Pa. Super. 113, ¶ 10, 923 A.2d 1177, 1180. In Pennsylvania, the Commonwealth and its officials and employees, acting within the scope of their duties, are protected from civil suit by sovereign immunity, except as otherwise provided by the Legislature. 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 Pa. 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 sovereign attributes unless consent to suit exists.” State Workmen's Ins. Fund, Com., Dept. of Labor and Industry v. Caparo Real Estate Inc., 160 Pa. Commw. 581, 586, 635 A.2d 705, 707 (1993). Sovereign immunity is codified at 1 Pa. C.S.A. § 2310 as follows: Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. When the General Assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in such manner and in such courts and in such cases as directed by the provisions of Title 42 (relating to judiciary and judicial procedure) or 62 (relating to procurement) unless otherwise specifically authorized by statute. 1 Pa. C.S.A. § 2310. The Legislature has also enacted exceptions, or waivers, to the general sovereign immunity provisions. Those exceptions are contained in 42 Pa. C.S.A. § 8522, which provides as follows: 4 (a) Liability imposed.--The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity. 42 Pa. C.S.A. § 8522(a). Thus, Section 8522(a) requires Plaintiff to show that Defendant committed a negligent act resulting in harm to him in order for there to exist a waiver of sovereign immunity. The statute also provides certain other acts and exceptions which may also impose liability, including the following: vehicle liability; medical-professional liability; care, custody, or control of personal property; Commonwealth real estate, highways and sidewalks; Potholes and other dangerous conditions; Care, custody or control of animals; Liquor store sales; National Guard Activities; and Toxoids and vaccines. 42 Pa. C.S.A. § 8522(b). A plain reading of Section 8522, however, reveals that a necessary precondition to the application of any of the aforementioned exceptions is a “negligent act.” 42 Pa. C.S.A. § 8522(a) (emphasis added). Actions against the State or its employees involving intentional torts are not within the scope of exceptions set out in 42 Pa. C.S.A. § 8522(a). Faust v. Com. Dept. of Revenue, 140 Pa. Commw. 389, 398, 592 A.2d 835, 839 (1991) (“Further, intentional tort claims and civil rights actions are not within the narrow exceptions set forth in 42 Pa.C.S. § 8522(b).”). Lastly, exceptions to sovereign immunity are to be strictly construed. Dean v. Com., Dept. of Transp., 561 Pa. 503, 508, 751 A.2d 1130, 1132 (2000). In the case sub judice, Plaintiff alleged that “[t]he actions of the correctional officer, sergent [sic] Macdwain, were intentional and unwarranted.” (Complaint, ¶ 19). Accepting as true the facts contained in Plaintiff’s complaint, Plaintiff has alleged the intentional torts of 5 assault and battery. Despite his listing of “negligence” as a claim, Plaintiff has alleged no negligent acts. He has alleged facts which sound in the nature of assault and battery. As a result, the action is not within the scope of exceptions to the general sovereign immunity provision which bars actions against the State or its employees acting within the scope of their duties. Plaintiff has, therefore, failed to state a cause of action for which sovereign immunity has been waived. For the foregoing reasons, the Defendant’s Motion for Judgment on the Pleadings will be granted. ORDER th AND NOW, this 18 day of April, 2011, upon consideration of Defendant’s Motion for Judgment on the Pleadings, and the briefs submitted by the parties, Plaintiff having alleged no cause of action for which sovereign immunity has been waived, Defendant’s Motion for Judgment on the Pleadings is GRANTED. BY THE COURT, _____________________ Kevin A. Hess, P.J. 6