Perry, T. v. Erie County

• Court: Superior Court of Pennsylvania
• Decided: October 13, 2016
• Docket: 276 WDA 2016
• Status: Unpublished

Opinion

J-A28035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOR D. PERRY, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

ERIE COUNTY, WARDEN JAMES VESHECCO, JASON H. WORCESTER, AND CLIFFORD J. PALMER,

Appellees No. 276 WDA 2016

Appeal from the Order February 10, 2016 in the Court of Common Pleas of Erie County Civil Division at No.: 10109-14

BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

JUDGMENT ORDER BY PLATT, J.: FILED OCTOBER 13, 2016

Appellant, Thor D. Perry, appeals from the order granting summary

judgment in favor of Appellees, Erie County and James Veshecco, then

Warden of Erie County Prison.1 Appellant raises issues that are in the

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* Retired Senior Judge assigned to the Superior Court. 1 The judgment was not entered in favor of Appellees, Jason H. Worcester or Clifford J. Palmer, who have not responded to Appellant’s complaint. We recognize defense counsel’s argument that as a consequence the order appealed from is not final, and the trial court erred in certifying it as a final order pursuant to Pa.R.A.P. 341. See Pa.R.A.P. 341(c) (providing that where more than one claim for relief is presented, trial court may enter final order as to fewer than all claims). “[T]he appealability of an order goes directly to the jurisdiction of the Court asked to review the order.” Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123 (Pa. Super. 2007) (citation omitted). Thus, in light of our disposition we decline to address this issue. J-A28035-16

exclusive jurisdiction of the Commonwealth Court. Therefore, we transfer to

that Court.

On January 28, 2012, five inmates severely beat Appellant while he

was in Erie County Prison, in retaliation for his assault on a former

girlfriend.2 On January 15, 2014, Appellant initiated this civil rights action

based on the injuries he received. In his complaint he sued Appellees

Worcester and Palmer, alleging constitutional rights violations under 42

U.S.C. § 1983. Appellant also brought civil rights claims and Monell3

claims against Veshecco and Erie County, asserting that certain

administrative staffing policies constituted the “legal cause” of the civil rights

violations against him.

On August 17, 2015, Appellees Veshecco and Erie County filed a

motion for summary judgment, which the court granted on February 10,

2016. Appellant timely appealed.

Appellant argues that the trial court improperly granted summary

judgment. Before we can address the claims raised, we must determine if

we have jurisdiction. ____________________________________________

2 The beating was orchestrated by Corrections Officer Worcester with the assistance of Corrections Officer Palmer, Co-Appellees. The victim is the niece of C.O. Worcester. Both Worcester and Palmer were terminated and convicted for this incident. 3 See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978) (holding that municipality is “person” within meaning of § 1983 of Civil Rights Act).

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It is well-settled that this Court may “raise[] the question of subject

matter jurisdiction sua sponte . . . .” Commonwealth v. Danysh, 833

A.2d 151, 152 (Pa. Super. 2003) (citation and footnote omitted); see

Pa.R.A.P. 752(a).

Appellate jurisdiction over section 1983 claims against county officials

are within the appellate jurisdiction of the Commonwealth Court of

Pennsylvania. See Wareham v. Jeffes, 564 A.2d 1314, 1318 n.7 (Pa.

Cmwlth. 1989); Tristani v. City of Pittsburgh, 755 A.2d 52, 56 (Pa.

Cmwlth. 2000) (deciding whether evidence supported liability under section

1983 for Monell claims); 42 Pa.C.S.A. § 762(a)(7).

Here, Appellant has appealed the grant of summary judgment on his

section 1983 claims in favor of Appellees Erie County and Veshecco. (See

Appellant’s Brief, at iv, 3). Accordingly, the Commonwealth Court has

jurisdiction and we transfer this matter to that Court.

Appeal transferred to the Commonwealth Court.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/13/2016

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