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McCool v. Dep't of Corrections of the Commonwealth of Pennsylvania


July 29, 2009


The opinion of the court was delivered by: Mary Hannah Leavitt, Judge


AND NOW, this 28th day of October, 2009, it is hereby ORDERED as follows:

(1) The opinion in the above matter, filed July 29, 2009, is hereby AMENDED as shown in the highlighted language of the attached opinion.

(2) The opinion in the above matter shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported as amended by this Order.




John Robert McCool, an inmate at the State Correctional Institution at Forest (SCI-Forest), appeals an order of the Court of Common Pleas of the 37th Judicial District (Forest County Branch) (trial court) that dismissed his medical malpractice complaint on grounds of sovereign immunity and failure to state a cause of action. We affirm, albeit on grounds additional to those relied upon by the trial court.

In his complaint, McCool alleged that he received negligent medical care while at SCI-Forest, where he has been incarcerated since August of 2005. McCool alleges that his conditions, mastocytosis*fn1 and esophageal dysphagia,*fn2 which have caused "massive scarring" and difficulty swallowing, were not appropriately addressed at SCI-Forest.


¶10. On February 2, 2007, McCool suffered an esophageal blockage that prevented him from swallowing foods or liquids. He reported the blockage to medical staff, who responded that he would have to sign up for "sick-call" the next day. Complaint

¶12. The next afternoon, McCool was rushed to a hospital where he underwent emergency surgery, described by McCool as a "near death experience." Complaint

¶15. At the hospital, McCool was diagnosed as suffering from "esophageal stricture" and was given a treatment program. Complaint ¶14.

On March 19, 2008, McCool filed the instant complaint against the Pennsylvania Department of Corrections (Department); Jeffrey Beard, Department Secretary; Catherine McVey, Department Director of the Bureau of Health Care;*fn3 and Donald Skunda, Director of Prison Health Care Services at SCI-Forest. McCool was granted permission to proceed in forma pauperis. On May 19, 2008, McCool petitioned for leave to file an amended complaint. The same day, he filed a motion to join additional defendants: Prison Health Care Services at SCI-Forest;

B. Dombrowsky, Corrections Unit Manager at SCI-Forest; S. Dombrowsky, Corrections School Principal at SCI-Forest; and three employees of Prison Health Care Services, Nurse Joan Delie, Nurse Rhonda Sherbine and Doctor Maxa. On May 28, 2008, McCool filed certificates of merit, in accordance with PA. R.C.P.

No. 1042.3(a)(3), attesting that expert testimony would not be necessary to prosecute his claims of professional malpractice.

On June 4, 2008, the trial court, sua sponte, dismissed McCool's complaint under authority of the Prison Litigation Reform Act (PLRA), 42 Pa. C.S. §§6601-6608; denied McCool's request to join additional defendants employed in the prison's health care services department; and denied McCool's application to file an amended complaint. Thereafter, in its PA. R.A.P. 1925(a) opinion, the trial court explained that it based its dismissal of McCool's claim on the two affirmative defenses raised by the defendants, sovereign immunity and lack of notice. In addition, the court found that McCool's complaint was appropriately dismissed because McCool had violated the PLRA's "three strikes rule." This appeal followed.

On appeal, McCool raises three issues for our consideration.*fn4 First, McCool contends that the trial court erred in refusing to allow him to join additional defendants and to amend his complaint. Second, McCool argues that the trial court erred in dismissing his complaint, particularly on the basis of the PLRA, inasmuch as his complaint did not challenge prison conditions. Finally, McCool argues that the trial court erred in refusing to allow him to pay the filing fees out of his own pocket so that he could continue with his lawsuit.

We begin with McCool's contention that he should have been allowed to join additional defendants. The trial court held that McCool was not permitted to join the prison health care services department and its agents, Delie, Sherbine, and Dr. Maxa as additional defendants, as a matter of procedure. It explained its decision as follows:

Although the 2007 amendments to the Pennsylvania Rules of Civil Procedure allow "any party" to join an additional defendant, the comments to this rule illustrate that a plaintiff is only permitted to join an additional defendant when the plaintiff has had a counterclaim filed against him. Pa. R.[C].P. 2252. In this case, the Defendants did not file a counterclaim against [McCool], and therefore [McCool] was not permitted to join as additional defendants Prison Health Services and its agents.

Trial Court Opinion at 2 (emphasis added). The trial court correctly analyzed the joinder rules.

Pennsylvania Rule of Civil Procedure No. 2252(a), provides, in pertinent part:

(a) Except as provided by Rule 1706.1 [dealing with cross-claims], any party may join as an additional defendant any person not a party to the action who may be

(1) solely liable on the underlying cause of action against the joining party, or

(4) liable to or with the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the underlying cause of action against the joining party is based.

PA. R.C.P. No. 2252(a) (emphasis added). Historically, joinder of additional defendants was a prerogative reserved to those defendants originally named by the plaintiff. Later, the Rules of Civil Procedure were revised to allow any party to add additional defendants. PA. R.C.P. No. 2252(a), cmt. 2007 II(2). However, a plaintiff's use of joinder is limited to the situation where the plaintiff is the subject of a counterclaim filed by one of the original defendants. The 2007 comments to Rule 2252 state that

[t]he joinder may be effected by "any party," not simply the defendant or additional defendant as under the present rule. This revision acknowledges that a plaintiff may join an additional defendant in his or her capacity as defendant on a counterclaim.

PA. R.C.P. No. 2252, cmt. 2007 II(2) (emphasis added).

Here, no defendant had filed a counterclaim against McCool. Accordingly, joinder under PA. R.C.P. No. 2252 was not available to McCool, who was in the litigation in one capacity: as plaintiff.

McCool also argues that the trial court erred in dismissing his complaint before it considered his preliminary objections to the defendants' new matter and his petition to file an amended complaint.*fn5 This contention has no merit.

Section 6602(e)(2) of the PLRA establishes that the court shall dismiss prison conditions litigation at any time if it determines that the litigation fails to state a claim upon which relief may be granted. 42 Pa. C.S. §6602(e)(2).

Accordingly, the trial court did not have to address McCool's preliminary objections or other motions before dismissing his complaint.

McCool next challenges the trial court's reliance on the PLRA. He contends that his complaint cannot be characterized as "prison conditions litigation." We disagree.

Section 6601 of the PLRA defines "prison conditions litigation" as

[a] civil proceeding arising in whole or in part under Federal or State law with respect to the conditions of confinement or the effects of actions by a government party on the life of an individual confined in prison. The term includes an appeal. The term does not include criminal proceedings or habeas corpus proceedings challenging the fact or duration of confinement in prison.

42 Pa. C.S. §6601 (emphasis added). The gravamen of McCool's medical malpractice complaint is that the defendants failed to formulate and adopt and enforce adequate rules and policies to ensure quality care for [McCool] and failed to oversee all persons who practice medicine within its walls.


¶8. Because the complaint challenges the quality of medical care at the prison, it squarely fits the definition of prison conditions litigation. See, e.g., Richardson v. Thomas, 964 A.2d 61, 65 (Pa. Cmwlth. 2009) (holding that a prisoner's prior medical malpractice claim was properly dismissed under the PLRA for failure to timely file a certificate of merit and, therefore, the dismissal constituted a "strike").

McCool next argues that the trial court erred in dismissing his complaint because the two affirmative defenses raised by the defendants, sovereign immunity and lack of notice, have no validity.*fn6 Section 6602(e) of the PLRA states, in relevant part, that the court shall dismiss prison conditions litigation at any time . if the court determines . 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). Accordingly, the defense of sovereign immunity can provide a basis for dismissal of a prison conditions lawsuit.

The Commonwealth is immune from suit in tort, and this immunity extends "to employees of the Commonwealth who are not high public officials . [when they act] within the scope of their employment and not in an intentionally malicious, wanton or reckless manner." Walter v. Commonwealth of Pennsylvania, 350 A.2d 440, 442 (Pa. Cmwlth. 1976). The trial court held that because McCool's negligence complaint targeted defendants acting in the scope of their employment, sovereign immunity barred the complaint from going forward. We agree with the trial court's analysis except with respect to one defendant, i.e., Donald Skunda, Director of Prison Health Care Services at SCI-Forest.

The General Assembly has waived sovereign immunity in certain limited circumstances. This waiver has been explained by this Court as follows:

[a] party may proceed against a Commonwealth agency if it can establish that damages would have been recoverable under common law (or a statute creating a cause of action) had the injury been caused by a defendant not protected by sovereign immunity. 42 Pa.C.S. § 8522(a). Additionally, the alleged negligent act must fall within one of the specifically enumerated exceptions provided by the legislature.

LaChance v. Michael Baker Corporation, 869 A.2d 1054, 1057 (Pa. Cmwlth. 2005) (internal footnote omitted). Medical malpractice is one of the specifically enumerated exceptions. Accordingly, McCool contends that his amended medical malpractice complaint against the prison's health care services department and its agents, Delie, Sherbine, and Dr. Maxa, should not have been dismissed because sovereign immunity is not a defense to such a complaint.

The exception for medical malpractice claims against the Commonwealth is set forth in Section 8522(b)(2) of the Judicial Code, which states as follows:

(b) Act which may impose liability. -- The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised for damages caused by:

(2) Medical-professional liability. -- Acts of health care employees of Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, dentist, nurse or related health care personnel.

42 Pa. C.S. §8522(b)(2). This exception might apply to the prison's health care services department, Delie, Sherbine and Dr. Maxa. However, McCool did not name them in the original complaint, and his attempt to join them as defendants was invalid under PA. R.C.P. No. 2252(a). Further, the exception has no application to the defendants originally named in McCool's complaint, i.e., the Department, Secretary Beard or Deputy Secretary McVey, because they are not "health care employees of a Commonwealth agency." 42 Pa. C.S. §8522(b)(2). Accordingly, the complaint against them was properly dismissed.

This leaves one defendant, Skunda. If the allegations about Skunda were found true, they would fall within the Section 8522(b)(2) exception to sovereign immunity. Indeed, Skunda concedes this point.

Nevertheless, McCool's claim against Skunda was properly dismissed for another reason. In Wareham v. Jeffes, 564 A.2d 1314, 1321 (Pa. Cmwlth. 1989), this Court held that "generally when the complexities of the human body are involved expert testimony is required to aid the jury in reaching conclusions as to the cause of pain or injury." The only time expert testimony will not be required for a medical malpractice claim is where the causal connection between the defendants' allegedly negligent act and the harm suffered by the plaintiff is "generally a matter of common knowledge," rendering the jury "capable through its every day experience and knowledge of comprehending the facts presented and drawing conclusions based on those facts." Id. Generally, such negligence rises to the level of gross incompetence.*fn7

In this case, McCool's certificates of merit stated that expert testimony of an appropriate licensed professional was unnecessary to prosecute his claims. He is wrong. McCool's ailments, mastocytosis and esophageal dysphagia, are complex and little known diseases.*fn8 An ordinary layperson would be incapable of deciding whether Skunda had acted negligently without hearing from experts about McCool's conditions. Accordingly, McCool needed to file a certificate of merit attesting to the fact that a licensed professional had supplied him with a written statement that there exists a reasonable probability that McCool was the victim of medical malpractice. PA. R.C.P. No. 1042.3(a)(1). McCool did not do so, and the certificates of merit he filed are binding.*fn9 Because McCool could not pursue a claim against Skunda for professional malpractice without expert testimony, his complaint failed to state a claim, even as to Skunda.

We turn next to McCool's contention that the trial court should have allowed him to pay the filing fees and proceed under Section 6602(f) of the PLRA instead of dismissing his complaint under Section 6602(e) of the PLRA.*fn10 The trial court concluded that if a complaint does not state a cause of action it must be dismissed, regardless of whether the plaintiff is willing to pay the costs of litigation.

Normally, the consequences of the "three strikes rule" deprive the prisoner of the ability to pursue his claim in forma pauperis. 42 Pa. C.S. §6602(f).*fn11 He could, however, proceed by paying costs. Jae v. Good, 946 A.2d 802, 809 (Pa. Cmwlth. 2008).*fn12 Here, however, McCool's complaint was dismissed for the reason that it did not state a cause of action. This result would have been required even if McCool had never petitioned to proceed in forma pauperis and had paid the filing fees.

For all the above-stated reasons, we affirm the order of the trial court dismissing McCool's complaint.*fn13



AND NOW, this 29th day of July, 2009, the order of the Court of Common Pleas of the 37th Judicial District (Forest County Branch) dated June 4, 2008, in the above-captioned matter is hereby AFFIRMED.


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