“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”
How later courts described this case
- “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”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles Jordan, :
Appellant :
:
v. :
:
Pennsylvania Department of :
Corrections; Correctional Officer :
D. Pribish; Correctional Officer :
S. Pekgar; and Correctional Captain : No. 723 C.D. 2024
J. Seanor : Submitted: July 7, 2025
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: August 6, 2025
Charles Jordan (Jordan), an inmate at the State Correctional Institution
in Coal Township (SCI-Coal Township), appeals1 pro se from an order of the Court
of Common Pleas of Somerset County (Trial Court) dated February 26, 2024, which
denied Jordan’s request to proceed in forma pauperis (IFP) and dismissed his civil
complaint. Upon review, we affirm the Trial Court’s order.
I. Background
In November 2023, Jordan filed a writ of summons in the Trial Court,
accompanied by an IFP affidavit and a civil cover sheet indicating that the cause of
action was intentional tort. See Original Record (OR), Items #1 & Writ of Summons
1
Jordan filed his appeal in the Superior Court, which transferred the appeal to this Court.
(unnumbered). The Trial Court subsequently notified Jordan that he would need to
file a complaint in order for the Trial Court to rule on his IFP petition, or if he wished
to proceed by writ of summons, he would need to pay the applicable filing fee. Id.,
Item #3. In January 2024, Jordan filed “Plaintiff’s Complaint of Intentional
Tresspass [sic], of Fraud, Violations of the United States, Pennsylvania
Constitutional Rights, Pennsylvania Crime Code, and Intentional Infliction of
Emotional Distress” (Complaint). Id., Complaint (unnumbered). Jordan alleged that
his “personal property was continuously searched, and eventually seized under a
false pretense” by the defendants. Id. at 1. In his demand for a jury trial, Jordan
again described his claims as intentional trespass, fraud, violations of constitutional
rights, and intentional infliction of emotional distress. Id. at 2. Jordan alleged that
he had been charged with a misconduct following the repeated searches and that his
personal property had been confiscated. Id. at 3. When his personal property was
returned, some items were damaged and others were missing. Id. at 4-6. He filed a
grievance, which was denied as to property that he could not prove he had acquired
legitimately. Id. Jordan alleged that the defendants “intentionally tresspassed [sic],
used fraud to confiscate, damage, loss [sic], and destroy [Jordan’s] personal
property.” Id. at 7.
In February 2024, the Trial Court issued an opinion and order
dismissing the Complaint as frivolous and simultaneously denying IFP status. OR,
Item #4. The Trial Court relied on Rule 240(j) of the Pennsylvania Rules of Civil
Procedure, which provides, in pertinent part:
(j)(1) If, simultaneous with the commencement of an
action or proceeding or the taking of an appeal, a party has
filed a petition for leave to proceed in forma pauperis, the
court prior to acting upon the petition may dismiss the
action, proceeding or appeal if the allegation of poverty is
2
untrue or if it is satisfied that the action, proceeding or
appeal is frivolous.
Official Note
A frivolous action or proceeding has been defined
as one that ‘‘lacks an arguable basis either in law or
in fact.’’ Neitzke v. Williams, 490 U.S. 319 . . .
(1989).
(2) If the petitioner commences the action by writ of
summons, the court shall not act on the petition for leave
to proceed in forma pauperis until the complaint is
filed. . . .
Pa.R.Civ.P. 240(j). The Trial Court also relied on Section 6602(e)(2) of the Judicial
Code, which provides, in pertinent part:
(e) Dismissal of litigation.--Notwithstanding any filing
fee which has been paid, the court shall dismiss prison
conditions litigation at any time, including prior to service
on the defendant, if the court determines any of the
following:
....
(2) The prison conditions litigation is frivolous or
malicious or fails to state a claim upon which relief may
be granted or the defendant is entitled to assert a valid
affirmative defense, including immunity, which, if
asserted, would preclude the relief. . . .
42 Pa.C.S. § 6602(e)(2).2
The Trial Court determined that the Complaint lacked any basis in law
or fact because it alleged only intentional torts, for which the defendants enjoyed
immunity from suit. OR, Item #4 at 2-4. The Trial Court explained:
In contrast to a claim of negligence, the gravamen of
[Jordan’s C]omplaint is intentional tort on the part of the
2
The Trial Court’s opinion erroneously cited the statute as 42 Pa.C.S. § 6602(3)(2).
3
officers who conducted the search and handled the
grievance. Where an inmate claims his property is
intentionally destroyed, the claim is barred by sovereign
immunity. Paluch v. Pa. Dep[’t] of Corr[.], 175 A.3d 433,
441 (Pa. Cmwlth. 2017)[ (]citing Williams v. Stickman,
917 A.2d 915, 917 (Pa. Cmwlth. 2007) (“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”)[)].
Here, [Jordan’s] claim, pled as an intentional tort, is
precluded because sovereign immunity applies.
Id. at 3. Accordingly, the Trial Court dismissed the Complaint as frivolous and
simultaneously denied the IFP petition. See id. at 4. Jordan’s appeal followed.
II. Issues
On appeal, Jordan asserts several issues, which we summarize as
follows.3 First, Jordan suggests that this Court should retransfer this appeal to the
Superior Court because we lack original jurisdiction over his claim. Second, Jordan
asserts that he should be allowed to amend his Complaint nunc pro tunc and that we
should remand this matter to the Trial Court to allow him to do so. Third, Jordan
argues that the Trial Court violated Rule 240 of the Pennsylvania Rules of Civil
Procedure, Pa.R.Civ.P. 240, by insisting that he file the Complaint rather than just a
praecipe for a writ of summons. We address each argument in turn.
3
The individual defendants have not filed any documents in this Court, and no counsel has
entered an appearance on their behalf. The Pennsylvania Department of Corrections submitted a
letter to this Court indicating it will not be participating in the appeal before this Court, inasmuch
as the Trial Court dismissed the action before Jordan effected service of his complaint.
4
III. Discussion
A. Original Jurisdiction
Jordan first posits that this Court lacks original jurisdiction over this
matter. However, Jordan’s argument fails to recognize that this is not an original
jurisdiction matter. This is an appeal that was improperly filed in the Superior Court,
which transferred it to this Court as having appellate jurisdiction over it. Under
Section 762(a)(1)(ii) of the Judicial Code, this Court has jurisdiction over appeals
from common pleas courts in matters involving Commonwealth parties. 42 Pa.C.S.
§ 762(a)(1)(ii). The definition of a “Commonwealth party” in Section 8501 of the
Judicial Code includes “[a] Commonwealth agency and any employee thereof . . .
with respect to an act within the scope of his office or employment.”4 42 Pa.C.S.
§ 8501. Here, Jordan clearly sued “Commonwealth parties” as defined by the
Judicial Code. See Small v. Trees (Pa. Cmwlth., No. 149 C.D. 2016, filed July 27,
2016),5 slip op. at 6 n.4 (explaining that the Department of Corrections and its
employees are Commonwealth parties). Accordingly, this Court has jurisdiction
over this appeal. We reject Jordan’s jurisdictional argument as meritless.
B. Leave to Amend the Complaint
Next, Jordan argues that the Trial Court erred by dismissing the
Complaint without allowing him to amend it to strengthen his claim. He asks this
Court to remand the matter to the Trial Court so that he can file an amended
4
Although Jordan’s Complaint included an averment that he was suing the defendants in
both their official and personal capacities, he alleged no facts indicating any conduct outside the
scope of their employment.
5
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, unreported
opinions of this Court issued after January 15, 2008 may be cited for their persuasive value. 210
Pa. Code § 69.414(a).
5
complaint, presumably to change his legal theory from intentional torts to
negligence. He cites no legal authority for the proposition that the Trial Court should
have offered him an opportunity to change the entire basis of his cause of action
from intentional torts to negligence, where nothing in the Complaint suggested any
basis for a negligence claim.
Jordan avers that he “realized after filing his [C]omplaint that he left
out some topics and felt that once the [C]omplaint was served upon the defendant’s
[sic] that he would be able to amend his [C]omplaint as soon as the defendant’s [sic]
filed their preliminary [o]bjections.” Br. of Appellant at 3. In its opinion pursuant
to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
1925(a) (1925(a) opinion), the Trial Court rejected this averment, stating:
It is clear that [Jordan] had no intention to claim
negligence until this court suggested in its opinion
[dismissing the Complaint] that negligence claims are not
covered by sovereign immunity. Rather, the gravamen of
[Jordan’s C]omplaint is the search itself and the delays in
the grievance process. It is not the role of the court to
supply [Jordan] with facts and allegations not pled in order
to save the complaint from dismissal for frivolousness.
OR, Item #11 at 4 (footnote omitted). We agree.
Every aspect of the Complaint related solely to allegations of
intentional conduct by the defendants. It was titled “Plaintiff’s Complaint of
Intentional Tresspass [sic], of Fraud, Violations of the United States, Pennsylvania
Constitutional Rights, Pennsylvania Crime Code, and Intentional Infliction of
Emotional Distress.” Id., Complaint (unnumbered) at 1. Jordan alleged that his
“personal property was continuously searched, and eventually seized under a false
pretense” by the defendants. Id. In demanding a jury trial, he again described his
claims as relating to intentional conduct: intentional trespass, fraud, violations of
6
constitutional rights, and intentional infliction of emotional distress. Id. at 2. Jordan
alleged that the defendants “intentionally tresspassed [sic], used fraud to confiscate,
damage, loss, and destroy [Jordan’s] personal property.” Id. at 7. As the Trial Court
correctly observed, nothing in the Complaint suggested that Jordan had any basis to
allege negligent conduct by any defendant. Indeed, even before filing the
Complaint, Jordan indicated on the civil cover sheet relating to his commencement
of the action by writ of summons that the action sounded in “intentional tort,” not in
“negligence.” Id., Writ of Summons (unnumbered).
Jordan does not dispute that sovereign immunity bars intentional tort
claims against Commonwealth parties. See Young v. Wetzel, 260 A.3d 281, 290 n.15
(Pa. Cmwlth. 2021). That being the case, the Trial Court acted properly under
Section 6602(e)(2) of the Judicial Code by dismissing the Complaint as frivolous,
i.e., lacking any basis in law or fact, because the defendants were shielded from
Jordan’s intentional tort claims by sovereign immunity.
Jordan, implicitly conceding this defect of the Complaint, seeks to
excuse his initial failure to plead a negligence claim by asserting that he was “under
a great amount of pressure” when preparing the Complaint “due to the fact that he
had to place his [C]omplaint in the mail prior to the statute of limitations expire
[sic].” Br. of Appellant at 4. We discern no merit in this assertion. Jordan’s brief
does not offer any facts or legal citation to establish when the applicable statute of
limitations was going to expire or what, if any, circumstances prevented him from
commencing his action earlier. The Trial Court, in its notification to Jordan that he
needed to file a complaint in order for his IFP petition to be considered, did not
provide a specific time limit for filing the Complaint. See OR, Item #3. Moreover,
the Trial Court, in its letter of explanation directing Jordan to file a complaint,
7
observed that Jordan had previously indicated his Complaint was already “in
preparation.” Id. The Complaint is neither lengthy nor complex. See id., Complaint
(unnumbered). Jordan offers no explanation for any time pressure he felt, other than
his unsupported assumption that the statute of limitations was about to expire. We
reject Jordan’s unsupported contention that any filing deadline required him to file
the Complaint without sufficient time to prepare it.
For these reasons, we discern no error by the Trial Court in dismissing
the Complaint without providing leave to amend.
C. Requirement to File a Complaint
Finally, Jordan insists that the Trial Court erred by refusing to rule on
his IFP petition unless he filed the Complaint. This argument is meritless.
Jordan cites Rule 240(c)(3) of the Pennsylvania Rules of Civil
Procedure, which requires that, “[e]xcept as provided by subdivision (j)(2), the court
shall act promptly upon the petition and shall enter its order within [20] days from
the date of the filing of the [IFP] petition.” Pa.R.Civ.P. 240(c)(3); see also Br. of
Appellant at 5. Jordan emphasizes the 20-day time limit for a court to rule on an IFP
petition. See Br. of Appellant at 5. However, he quotes, yet ignores, the initial clause
of Rule 240(c)(3), which makes the 20-day limit inapplicable where subdivision
(j)(2) applies. As the Trial Court’s 1925(a) opinion aptly explained, Rule 240(j)(2),
quoted above, mandates that where an IFP petitioner commences an action by writ
of summons, the trial court “shall not act on the [IFP] petition . . . until the complaint
is filed.” Pa.R.Civ.P. 240(j)(2) (emphasis added). Thus, the Trial Court was not
only authorized, but required, to defer ruling on Jordan’s IFP petition until the
Complaint was filed. This requirement makes sense because, as the Trial Court
8
explained in its letter to Jordan directing him to file a complaint, a trial court must
have the averments of the complaint before it “so that a determination can be made
as to whether the claim is meritorious on its face” prior to ruling on an IFP petition.
See OR, Item 3 at 1.
Jordan also points to Rule 240(j)(1) of the Pennsylvania Rules of Civil
Procedure, quoted above, which provides that a court may dismiss an action prior to
ruling on a simultaneously filed IFP petition if the action is frivolous. Pa.R.Civ.P.
240(j)(1). Although Jordan suggests his Complaint is not frivolous, he does not
contend on appeal that he has a cause of action for any of the intentional torts he
asserted in the Complaint. As he does not suggest there was a basis in either law or
fact for the dismissed intentional tort claims, we discern no basis on which to reject
the Trial Court’s conclusion that those claims were frivolous.
For these reasons, we conclude that the Trial Court did not err in
requiring Jordan to file the Complaint before ruling on his IFP petition.
IV. Conclusion
Based on the foregoing discussion, we affirm the Trial Court’s order
dismissing the Complaint and denying Jordan’s IFP petition.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles Jordan, :
Appellant :
:
v. :
:
Pennsylvania Department of :
Corrections; Correctional Officer :
D. Pribish; Correctional Officer :
S. Pekgar; and Correctional Captain : No. 723 C.D. 2024
J. Seanor :
ORDER
AND NOW, this 6th day of August, 2025, the order of the Court of Common
Pleas of Somerset County dated February 26, 2024 is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge