R. James v. Community College of Allegheny County

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ross James, :

:

Appellant :

:

v. : No. 1303 C.D. 2019

: Submitted: October 2, 2020

Community College of Allegheny :

County, Bridgett Golman, Jane :

Greenwood, Sumana Misra-Zets, :

Don Breitbarth, Lawrence Doperak, :

Michelle Tedder, Jeffrey Labella and :

City of Pittsburgh :

OPINION NOT REPORTED

MEMORANDUM OPINION

PER CURIAM FILED: August 20, 2021

Ross James (Appellant) appeals pro se from the August 30, 2019 orders

of the Allegheny County Court of Common Pleas (trial court), which sustained the

preliminary objections filed by the Community College of Allegheny County,

Bridgett Golman, Jane Greenwood, Sumana Misra-Zets, Don Breitbarth, Lawrence

Doperak, and Michelle Tedder (collectively, CCAC), the City of Pittsburgh (City),

and City of Pittsburgh police officer Jeffrey Labella (Officer) (together, City of

Pittsburgh); dismissed Appellant’s Amended Complaint with prejudice; and granted

the City of Pittsburgh’s Petition to Strike or Open Judgment (Petition to Strike). This

appeal stems from an incident on August 25, 2017, on CCAC’s campus when

Appellant was asked to leave the hallway of an administration building, and after he

refused, he was arrested for defiant trespass and disorderly conduct, and later

expelled from CCAC for violations of CCAC’s Student Code of Conduct (Code).

After careful review, we affirm.

I. Facts and Procedural Background

As summarized by the trial court in its Pa. R.A.P. 1925(a) opinion, the

facts giving rise to Appellant’s claims are as follows:

On or about August 25, 2017, [Appellant] was on the

CCAC campus and was observed sitting on the floor

outside an Administrative Office. Although not

established of record, he was causing a disturbance by

admittedly being too loud and having an apparent issue

with the college. An officer was called to the scene of the

disturbance, Defendant [Officer]. [Officer] attempted to

question [Appellant] about his situation, but was given no

response, except for evasiveness and hostility. [Appellant]

did not have a school [identification (ID)] on his person to

produce for [Officer] and may not have currently been a

student. For about thirty five (35) minutes, multiple

employees and [Officer] tried to communicate with

[Appellant] to learn his reasons for being on campus and

unable to show his ID. He refused to communicate or

leave the campus or be helpful as to his lack of ID. The

situation caused by his behavior resulted in an arrest.

Trial Court 11/15/19 Opinion at 1-2.

As a result of the August 25, 2017 incident at CCAC, Appellant was

arrested and charged with defiant trespass and disorderly conduct. Original Record

(O.R.) at 126-29.1 He was found guilty of these charges on November 21, 2017, and

sentenced to 10 days’ confinement in the Allegheny County Jail. After Appellant’s

summary appeal, Appellant’s convictions were overturned, and he was adjudged not

guilty on September 19, 2018. Id. at 46-51, 128.

1

Because the Original Record was filed electronically and was not paginated, the page

numbers referenced herein reflect electronic pagination.

2

Also as a result of the August 25, 2017 incident, Appellant was subject

to discipline by CCAC. In a letter dated October 18, 2017, CCAC notified Appellant

that he was charged with violating CCAC’s Code, which is part of the Student

Handbook, specifically for failure to comply with reasonable requests, concerning

behavior, and unauthorized entry, based on reports of improper conduct submitted

to CCAC. O.R. at 225-28. In a letter dated October 19, 2017, CCAC notified

Appellant that a judicial board hearing was scheduled for October 26, 2017, to

address the charges. Id. at 229-34. This letter outlined the procedures to be followed

by Appellant and CCAC for the hearing, including Appellant’s right to submit a

written response, to produce witnesses, to choose a CCAC advisor or an attorney to

assist at the hearing, to receive written documentation relevant to the charges, and

provided a list of the hearing officers that would preside over the hearing. Id.

Appellant replied to CCAC in an email dated October 22, 2017, in which he denied

the charges, chose a CCAC advisor, and requested that CCAC provide records

relevant to the charges. Id. at 61.

Appellant’s disciplinary hearing with CCAC took place on October 26,

2017, and October 30, 2017, after which CCAC’s Conduct Hearing Board (Board)

determined that Appellant’s actions violated the Code, and sanctioned him by

permanently separating, or expelling him, from CCAC. CCAC notified Appellant

of the results of the hearing and his expulsion in a letter dated November 1, 2017.

O.R. at 235-38. The Board found that Appellant failed to comply with reasonable

requests, demonstrated concerning behavior, and trespassed on CCAC property, and

included specific findings and references to the Student Handbook. Id. The Board

specifically found that Appellant violated the Student Handbook by:

1. Failure to comply to reasonable requests - failure to

comply with directions of college officials or law

3

enforcement officers during the performance of their

duties and/or failure to identify oneself to these persons

when requested to do so ([C]ode violation related to

Respect, page 29, CCAC Student Handbook, 2017-2018).

2. Concerning behavior - inappropriate conduct which is

disorderly, disruptive or indecent while on campus or at

functions sponsored by, or participated in by the college

([C]ode violation related to Respect, page 29).

3. Unauthorized entry - misuse of access privileges to

college premises or unauthorized entry to or use of

buildings, including trespass ([C]ode violation related to

College Community, page 28).

The [Board] made the following finding of fact:

[Appellant] has been unwilling to take responsibility for

any of the confrontations in which he has been involved

with campus administration and campus security staff.

Id.

The letter also stated that if Appellant wished to appeal this decision,

he must file a written appeal with CCAC’s Dean of Students, Bridgett Golman,

within three calendar days of the date of the letter. O.R. at 238. The record contains

no evidence that Appellant availed himself of his right to appeal CCAC’s decision.

On or about August 20, 2018, Appellant filed a complaint in the trial

court alleging that CCAC and the City of Pittsburgh violated his rights when they

arrested and expelled him. O.R. at 3-18. CCAC filed preliminary objections in the

nature of a demurrer, which were sustained, and the trial court permitted Appellant

to file the Amended Complaint, which he did on or about March 11, 2019. Id. at 23-

55, 141-81. The Amended Complaint contained 70 counts against CCAC and the

City of Pittsburgh, all arising out of Appellant’s expulsion and arrest. The Amended

Complaint contained a count against the City of Pittsburgh which was not in the

original complaint. Id. at 164. The Amended Complaint added Michelle Tedder as

4

an additional CCAC defendant, alleging that she failed to credit Appellant’s tuition

account with a scholarship grant, thus constituting breach of contract and fraud.

CCAC again filed preliminary objections in the nature of a demurrer, seeking

dismissal of Appellant’s Amended Complaint. Id. at 182-243.

Appellant then filed a praecipe for the entry of a default judgment,

averring that Officer failed to timely respond to the Amended Complaint. O.R. at

244-48. Within 10 days after a default judgment was entered, the City of Pittsburgh

filed its appearance, preliminary objections in the nature of a demurrer, and the

Petition to Strike the default judgment, alleging that Officer was never properly

served with the Amended Complaint. Id. at 249-52, 253-93, 294-401. Appellant

filed a response to CCAC’s and the City of Pittsburgh’s preliminary objections. Id.

at 427-82. The parties presented oral argument on the preliminary objections and

the Petition to Strike on August 29, 2019. In four separate orders dated August 30,

2019, the trial court sustained CCAC’s and the City of Pittsburgh’s preliminary

objections, dismissed Appellant’s Amended Complaint with prejudice, and granted

Officer’s Petition to Strike. Appellant timely appealed all four orders to this Court.2

2

This Court’s standard of review from a trial court’s orders granting preliminary objections

and dismissing a complaint is limited to determining whether the trial court abused its discretion

or committed an error of law. A demurrer may be sustained only where the complaint is clearly

insufficient to establish the complainant’s right to relief. Preliminary objections in the nature of a

demurrer must admit as true all well-pled material, relevant facts, and every inference fairly

deducible from those facts. Palmer v. Bartosh, 959 A.2d 508, 512 n.2 (Pa. Cmwlth. 2008). This

Court is not required to accept as true conclusions of law, unwarranted inferences from facts,

argumentative allegations, or expressions of opinion. Pennsylvania State Lodge v. Department of

Labor and Industry, 692 A.2d 609, 613 (Pa. Cmwlth. 1997), aff’d, 707 A.2d 1129 (Pa. 1998).

Because sustaining a demurrer results in the denial of complainant’s claims or in a dismissal of his

suit, preliminary objections in the nature of a demurrer should be sustained only in cases that

clearly fail to state a claim upon which relief may be granted. Palmer, 959 A.2d at 512 n.2.

Because preliminary objections in the nature of a demurrer present a question of law, this Court’s

standard of review is de novo and the scope of review is plenary. Brown v. Wetzel, 179 A.3d 1161,

(Footnote continued on next page…)

5

II. Discussion

A. Claims Against CCAC

CCAC argues that it is immune from Appellant’s state law claims under

the provisions of the Judicial Code commonly referred to as the Political Subdivision

Tort Claims Act, 42 Pa. C.S. §§8541-8564 (Tort Claims Act). Section 8541 of the

Tort Claims Act provides that, “except as otherwise provided in this subchapter, no

local agency shall be liable for any damages on account of any injury to a person or

property caused by any act of the local agency or an employee thereof or any other

person.” 42 Pa. C.S. §8541. An employee of a local agency is liable “only to the

same extent as his employing local agency and subject to the limitations imposed by

this subchapter.” 42 Pa. C.S. §8545. A local agency or its employees may be liable

for claims of negligence that fall into one of the nine enumerated exceptions under

Section 8542(b) of the Tort Claims Act.3 A local agency is not immune if the

employee’s act is judicially determined to constitute a “crime, actual fraud or willful

misconduct.” 42 Pa. C.S. §8550.

CCAC argues that it is a local agency for the purpose of governmental

immunity. Community College of Allegheny County v. Seibert, 601 A.2d 1348 (Pa.

Cmwlth. 1992), aff’d, 622 A.2d 285 (Pa. 1993). CCAC also notes that Appellant

1164 n.2 (Pa. Cmwlth. 2018). Whether immunity applies is also a question of law subject to this

Court’s de novo review. Id.

Similarly, the standard of review from a trial court order granting a motion to open or strike

a default judgment is whether the trial court abused its discretion or committed an error of law.

This Court’s standard of review on a petition to strike is de novo and our scope of review is plenary.

Oswalt v. WB Public Square Associations, LLC, 80 A.3d 790, 793 n.2 (Pa. Super. 2013).

3

Under Section 8542(b)(1) through (9), the enumerated exceptions to governmental

immunity are: vehicle liability; care, custody or control of personal property; real property; trees,

traffic controls, and street lighting; utility service facilities; streets; sidewalks; care, custody, or

control of animals; and sexual abuse. 42 Pa. C.S. §8542(b)(1)-(9).

6

did not aver or argue that CCAC’s acts fall into one of the enumerated exceptions to

liability. CCAC also argues that Appellant failed to plead any facts that CCAC

engaged in conduct that could support a judicial determination of willful misconduct.

CCAC further argues that “general averments” or “bare recitations” that a defendant

acted intentionally, willfully, or maliciously are insufficient to establish the required

wrongful intent to overcome immunity. Orange Stones Company v. City of Reading,

87 A.3d 1014, 1026 (Pa. Cmwlth. 2014). CCAC argues that the complaint must

allege facts demonstrating that the alleged criminal, malicious, or willful misconduct

was performed with intent to cause harm, which Appellant here did not do. R.H.S.

v. Allegheny County Department of Human Services, Office of Mental Health, 936

A.2d 1218, 1230 (Pa. Cmwlth. 2007). CCAC further notes that the affirmative

defense of immunity may be raised as a preliminary objection when it is apparent on

the face of the pleading that the cause of action does not fall within any of the

enumerated exceptions. Orange Stones, 87 A.3d at 1022.

Appellant does not argue that CCAC’s actions fall within any of the

enumerated exceptions to the Tort Claims Act. Appellant argues that the trial court

erred by failing to accept as true the 70 averments in his Amended Complaint where

he alleged that CCAC’s actions were malicious and intentional.

We agree that CCAC is a local agency for the purpose of governmental

immunity. Seibert. We also agree that CCAC employees are liable only to the same

extent as CCAC is liable pursuant to Section 8545 of the Tort Claims Act. This

Court has carefully reviewed Appellant’s Amended Complaint and finds that it

contains only general averments that CCAC acted maliciously or intentionally, and

does not include well-pleaded facts to support these general averments. We cannot

infer malicious intent or intentional conduct by CCAC or its employees toward

7

Appellant based on general averments without facts to support these averments. For

this reason, we conclude that the trial court correctly found that CCAC and its

employees are immune from the state law claims asserted by Appellant.

CCAC further argues that to the extent it is not immune from

Appellant’s state law claims, those claims were properly dismissed because

Appellant failed to plead specific facts necessary for each element of each asserted

cause of action. Appellant responds that the trial court erred when it dismissed his

various state law claims. Although we conclude that the trial court correctly

dismissed Appellant’s state law claims against CCAC on the basis of immunity

under the Tort Claims Act, we will review each cause of action or purported cause

of action for any alleged legal errors.

Appellant argues that CCAC abused its discretion when it expelled him,

and that contract rights refers to the contract he believes CCAC breached when it

failed to offer him educational services in exchange for the tuition and fees owed for

these services. CCAC responds that Appellant’s claims of abuse of discretion and

contract rights are not recognized causes of action and should be dismissed. The

trial court dismissed each of these claims because they are “not causes of action.”

Trial Court Opinion at 4. We agree that the trial court correctly dismissed

Appellant’s claims of abuse of discretion and contract rights because they are not

recognized causes of action under Pennsylvania law. Abuse of discretion is a

standard of review and not a cause of action. Palmer, 959 A.2d at 512 n.2. Although

Appellant’s stated claim of contract rights is not a cause of action, we fully reviewed

Appellant’s claims that CCAC breached a contract, or tortiously interfered with a

contract below.

8

Appellant next argues that CCAC’s contract to provide educational

services to him should be implied, and that CCAC breached this contract by

expelling him in violation of its Student Handbook. CCAC responds that

Appellant’s claim of tortious interference with contract must fail, because

Appellant’s Amended Complaint failed to plead the existence of a contract or its

terms. CCAC denies such a contract to provide educational services exists. The

trial court found that Appellant’s claims of tortious interference with the “alleged

contract” should be dismissed because Appellant failed to show that such a contract

exists. The Superior Court has held that the relationship between a privately funded

college and a student has traditionally been defined as “strictly contractual in

nature.” Reardon v. Allegheny College, 926 A.2d 477, 480 (Pa. Super. 2007).4 In

contrast, this Court has held that a public university’s student handbook does not

constitute a contract between a student and a public university. Tran v. State System

of Higher Education, 986 A.2d 179, 182 (Pa. Cmwlth. 2009). CCAC is a public

university under Section 1901-A(4) of what is popularly referred to as the

Community College Act of 19635 and Seibert. Therefore, CCAC’s Student

Handbook is not a contract with its students, and CCAC cannot be liable to Appellant

for breaching the terms of its Student Handbook under a contract theory. Therefore,

we conclude the trial court did not err when it dismissed Appellant’s claim of tortious

interference.

4

“In general, Superior Court decisions are not binding on this Court, but they offer

persuasive precedent where they address analogous issues.” Lerch v. Unemployment

Compensation Board of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018) (citation omitted).

5

Act of August 24, 1963, P.L. 1132, formerly, 24 P.S. §§5201-5214, repealed and re-

enacted by the Act of July 1, 1985, P.L. 103, 24 P.S. §§19–1901–A - 19–1918–A.

9

Appellant next argues that CCAC’s conduct in expelling him was an

intentional infliction of emotional distress, and that its behavior amounts to

outrageous conduct. Although Appellant alleges that he suffered emotional distress

many times in his Amended Complaint, he does not provide specific facts to support

this general averment. CCAC responds that Appellant’s claim of intentional

infliction of emotional distress was properly dismissed because Appellant failed to

plead the necessary elements of this tort. CCAC argues that a claim of intentional

infliction of emotional distress requires the following elements: “(1) a person who

by extreme and outrageous conduct (2) intentionally or recklessly causes (3) severe

emotional distress to another,” citing Manley v. Fitzgerald, 997 A.2d 1235, 1241

(Pa. Cmwlth. 2010). To establish the first element, the complaint must allege facts

that would lead a reasonable person to exclaim the conduct is outrageous. Kazatsky

v. King David Memorial Park, Inc., 527 A.2d 988, 991 (Pa. 1987). CCAC argues

that merely stating that the conduct is outrageous, without specific facts

demonstrating how the alleged acts were outrageous, is insufficient to support a

claim of intentional infliction of emotional distress. Reardon. CCAC argues that

Appellant’s bare legal conclusions alleging CCAC’s conduct in expelling him for

violations of the Student Handbook are insufficient to support the first element for

outrageous conduct. We agree with the trial court that Appellant’s claim for

intentional infliction of emotional distress must fail because Appellant did not plead

specific facts to support his averment that CCAC’s conduct was outrageous. Under

the applicable standard of review, this Court is not required to accept as true

conclusions of law or expressions of opinion. Pennsylvania State Lodge, 692 A.2d

at 613.

10

Appellant next argues that CCAC defamed him when its employees

made false allegations during his expulsion proceedings that he violated the Code

and committed a crime. CCAC responds that the trial court correctly dismissed

Appellant’s claims of defamation and defamation per se, because Appellant did not

aver the necessary facts to support this claim. Defamation requires a plaintiff to

establish (1) the defamatory nature of the alleged communication; (2) the publication

of the communication by the defendant; (3) the application of the communication to

the plaintiff; (4) the recipient’s understanding of the meaning of the communication;

(5) the recipient’s understanding that the communication is intended to be applied to

the plaintiff; (6) special harm to the plaintiff; and (7) abuse of a conditionally

privileged occasion. Reardon, 926 A.2d at 484 (citations and footnote omitted).

Determining whether a communication is slanderous is a question of law. A

communication is slanderous if it is intended to lower the view of the target of the

communication in the community, or if it is intended to deter third persons from

associating with the target. A statement that is merely an expression of an opinion

cannot constitute slander. Id. CCAC argues that Appellant’s allegations in Counts

29, 32, 52, and 65 do not support a defamation claim, because they are either

expressions of opinion, factual in nature or not intended to be slanderous. The trial

court found Appellant’s defamation claims should be dismissed because he failed to

allege any publication. Trial Court Opinion at 4. We have carefully reviewed the

defamation claims in Appellant’s Amended Complaint. We agree with CCAC that

these statements are not defamatory under the law, because they were expressions

of opinion, factual in nature, or not intended to be slanderous. We agree with the

trial court that the statements were not defamatory, because Appellant failed to aver

11

how and where these statements were published in the course of discipline

proceedings that are not open to the public.

Appellant next argues that CCAC invaded his privacy and placed him

in a false light during the course of his disciplinary proceedings, when its employees

stated he was a criminal who deserved to be expelled. Appellant points to two

averments in his Amended Complaint to support this claim, although he did not

argue this issue in detail in his brief to the Court. CCAC responds that Appellant’s

claim of false light-invasion of privacy was properly dismissed because Appellant

failed to plead facts necessary to support each element of this tort. CCAC argues

the tort of false light-invasion of privacy involves “publicity that unreasonably

places the other in a false light before the public.” Rush v. Philadelphia Newspapers,

Inc., 732 A.2d 648, 654 (Pa. Super. 1999). A cause of action for invasion of privacy

will be found where a major misrepresentation of a person’s character, history,

activities, or beliefs is made that could reasonably be expected to cause a reasonable

man to take serious offense. The required elements a plaintiff must prove are

publicity, given to private facts, which would be highly offensive to a reasonable

person, and which are not of legitimate concern to the public. Id. Invasion of privacy

requires an investigation into private affairs and does not include conduct about

which a person does not have an expectation of privacy. Tagouma v. Investigative

Consultant Services, Inc., 4 A.3d 170 (Pa. Super. 2010). CCAC argues that the

Appellant’s invasion of privacy claim must fail, because he had no expectation of

privacy in his observed behavior on CCAC’s campus, nor in the disciplinary process

resulting from his behavior. The trial court did not make specific findings on the

invasion of privacy claim, relying on its finding of CCAC’s immunity under the Tort

Claims Act. After careful review, we find that Appellant waived his invasion of

12

privacy claim, because he failed to present argument on it in his brief to this Court.

See Pa. R.A.P. 2119(a) (“The argument shall be divided into as many parts as there

are questions to be argued; and shall have at the head of each part . . . the particular

point treated therein, followed by such discussion and citation of authorities as are

deemed pertinent.”); Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998),

cert. denied, 526 U.S. 1070 (1999) (holding that the failure to develop issue in

appellate brief results in waiver); Browne v. Department of Transportation, 843 A.2d

429, 435 (Pa. Cmwlth. 2004) (“At the appellate level, a party’s failure to include

analysis and relevant authority results in waiver.”). Even if Appellant had presented

argument on this issue, this claim was properly dismissed because Appellant failed

to plead sufficient facts to satisfy the elements of the tort of invasion of privacy.

Appellant next argues that the trial court erred when it dismissed his

claim that CCAC violated his rights under the Federal Educational Rights and

Privacy Act (FERPA), 20 U.S.C. §1232g. Appellant avers that CCAC failed to

provide educational records to him and improperly disclosed educational records

about him, during disciplinary proceedings. Appellant argues that the trial court

improperly dismissed his FERPA claim because the Tort Claims Act does not

immunize CCAC from claims under federal law. CCAC responds that the FERPA

claim was properly dismissed, because the United States Supreme Court specifically

held there is no private cause of action under FERPA. Gonzaga University v. Doe,

536 U.S. 273 (2002). Although the trial court did not address the FERPA claim

directly, we find that Appellant’s FERPA claim must fail, because an individual does

not have a private cause of action under FERPA. Id.

Appellant next argues that the trial court improperly dismissed his

constitutional claims against CCAC. Appellant argues that because he averred

13

CCAC acted under color of state law multiple times in his Amended Complaint, the

averments were sufficient to satisfy the requirements to sustain his constitutional

claims. CCAC responds that the trial court properly dismissed Appellant’s

constitutional claims because Appellant failed to plead the necessary facts to support

these claims. By way of background, CCAC argues that Section 1983, 42 U.S.C.

§1983 (Section 1983), is the proper vehicle for vindicating rights under the United

States Constitution, and that such claims may be brought in state court. Jae v. Good,

946 A.2d 802, 809 (Pa. Cmwlth. 2008). Section 1983 provides a vehicle for

imposing liability upon a person who, under color of law, deprives another person

of “any rights, privileges, or immunities secured by Constitution and laws.” Id.

However, even liberal construction of pleadings “does not permit unpled elements

[to] be pulled from thin air and grafted onto the pleading.” McShea v. City of

Philadelphia, 995 A.2d 334, 340 (Pa. 2010). CCAC argues that a Section 1983

inquiry must focus on two elements: (1) whether the conduct complained of was

committed by a person acting under color of state law and (2) whether this conduct

deprived a person of rights secured by the Constitution. Palmer, 959 A.2d at 514.

CCAC argues that Appellant provided legal conclusions but not facts

to support the first element that CCAC employees acted under color of state law.

Uniontown Newspapers, Inc. v. Roberts, 893 A.2d 846, 849 (Pa. Cmwlth. 2006).

CCAC argues that the mere fact that CCAC employees are employed by a public

community college is insufficient to establish their conduct was under color of state

law. The trial court found that Appellant failed to plead specific facts to support

claims that CCAC acted under color of state law. We agree that the trial court

correctly found that Appellant failed to plead that CCAC acted under color of state

14

law. Legal conclusions without specific facts are insufficient to support this element

of a Section 1983 claim. Pennsylvania State Lodge.

Appellant argues that CCAC’s disciplinary hearing lacked due process,

that the hearing was unfair to him, and allowed CCAC to trample on his rights.

CCAC responds that Appellant failed to provide sufficient facts to support the

second element of a Section 1983 claim, namely, that CCAC’s conduct deprived

Appellant of his constitutional rights.

CCAC argues that in order to sustain a due process claim, a plaintiff

must allege that he was deprived of a fundamental interest encompassed within the

Fourteenth Amendment’s protection of life, liberty, or property, and that the

procedures available to him did not provide due process of law. See U.S. Const.

amend XIV; Todara v. Buskirk, 96 A.3d 414, 420 (Pa. Cmwlth. 2014). CCAC

argues that although courts may recognize a property right in continued employment

in certain circumstances, courts have not recognized a fundamental property right in

continued college enrollment. Norris v. Montgomery County Community College,

No. 15-4741, 2016 WL 2646733 at *3 (E.D. Pa 2016). CCAC further argues that

the procedures it followed during Appellant’s disciplinary proceedings provided the

necessary notice and opportunity to be heard to satisfy procedural due process.

CCAC cites Ruane v. Shippensburg University, 871 A.2d 859, 862 (Pa. Cmwlth.

2005) (citations omitted), where our Court stated as follows:

Without question, prior to the imposition of disciplinary

sanctions, [appellant] was entitled to a measure of due

process comporting with basic principles of fundamental

fairness. At a minimum the University had to provide

[appellant] with notice of the charges and some

opportunity for a hearing. However, the University was

not obligated to provide a “full-dress judicial hearing,”

15

subject to the rules of evidence and or representation by

counsel.

CCAC further argues that a student handbook at a public university

does not constitute a binding contract between the school and its students, pursuant

to Tran. CCAC argues even if it did, an educational institution’s failure to follow

its own policies is not, in itself, a due process violation. Phat Van Le v. University

of Medicine & Dentistry of N.J., 379 F. App’x 171, 174-75 (3d Cir. 2010). After

careful review, we find that the trial court did not err in denying Appellant’s due

process claim against CCAC. The record shows that CCAC provided Appellant two

letters describing his violations of the Code, the hearing procedures, his right to

choose an advisor, and to bring an attorney. O.R. at 225-28, 229-34. Appellant

emailed CCAC’s dean of students with his responses and requests prior to the

hearing. Id. at 61. The disciplinary hearing took place on two days, after which

CCAC informed Appellant in writing that he was to be expelled based on his

violations of the Code. O.R. at 235-38. The letter also described Appellant’s right

to appeal to the dean of students, which he did not do. Based on our review of the

record and applicable case law, we cannot conclude the trial court erred by

dismissing Appellant’s due process claims against CCAC.

Appellant next argues that the trial court erred when it dismissed his

claim that CCAC violated his right to equal protection. Appellant states in his brief

to this Court that CCAC violated his right to equal protection, arguing he was

“singled out as a class of one for punishment for his mere presence on campus and

because he declined to answer the government’s questions about an alleged crime.”

(Appellant’s Brief at 42). CCAC responds that Appellant’s claim that he was singled

out as a class of one was properly dismissed, because his Amended Complaint failed

to aver the required elements to satisfy this claim. CCAC argues that a plaintiff

16

asserting a class of one equal protection claim must aver the existence of similarly

situated individuals who were treated differently than the plaintiff. Hill v. Borough

of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). CCAC argues that because Appellant

did not aver he was a member of a suspect or sensitive class, whether CCAC violated

his constitutional rights should be reviewed under the rational basis test. Palmer by

Palmer v. Merluzzi, 868 F.2d 90 (3d Cir. 1989). CCAC further argues that because

Appellant does not have a fundamental right to continued college education under

Norris, its actions must be reviewed under the rational basis test. CCAC argues it

has a clear interest in enforcing standards of student behavior, and that addressing

violations through the disciplinary process is rationally related to this interest.

Appellant does not address or develop this argument in his brief beyond the

statement quoted above, therefore, we conclude that he waived it. Pa. R.A.P.

2119(a); Spotz; Browne. Even if this claim is not waived, we conclude that

Appellant failed to plead the necessary facts giving rise to a class of one equal

protection claim.

Appellant next argues that CCAC retaliated against him, because he

declined to answer CCAC’s questions during the disciplinary proceedings that

resulted in his expulsion. Appellant argues that CCAC’s conduct violated his

constitutional rights to remain silent under the First and Fifth Amendments.6

Appellant argues that he has a right to remain silent under both the First and Fifth

Amendments. Appellant avers that CCAC retaliated against him, eventually

6

The First Amendment provides: “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble, and to petition the

government for a redress of grievances.” U.S. Const. amend. I. In turn, the Fifth Amendment

provides, in relevant part: “No person shall … be compelled in any criminal case to be a witness

against himself . . . .” U.S. Const. amend. V.

17

expelling him, because he chose to remain silent regarding his status as a student.

Appellant devotes a significant portion of his argument to this Court reviewing case

law analyzing an individual’s right to remain silent. Appellant is correct that the

right to remain silent stems from the First and Fifth Amendments, but the question

remains as to whether that right is implicated in CCAC’s disciplinary proceedings.

CCAC responds that Appellant failed to aver the facts necessary to

sustain a claim that it violated his constitutional rights under the First and Fifth

Amendments. To sustain a retaliation claim under the First Amendment, a plaintiff

must allege (1) constitutionally protected conduct, (2) retaliation sufficient to deter

a person of ordinary firmness from exercising his constitutional rights, and (3) a

causal link between the protected conduct and the retaliation. Thomas v.

Independence Township, 463 F.3d 285, 296 (3d Cir. 2006). CCAC argues that where

the speech in question is not constitutionally protected, a student may be disciplined

without violating the First Amendment. J.S. ex rel. H.S. v. Bethlehem Area School

District, 757 A.2d 412, 424 (Pa. Cmwlth. 2000). CCAC argues that the case of

Feldman v. Community College of Allegheny County, 85 F. App’x 821 (3d Cir.

2004), is directly applicable to this case. In Feldman, a student alleged that CCAC

and Pittsburgh police officers retaliated against him for statements he made alleging

racial and religious discrimination by a CCAC employee. The issue arose when

CCAC disciplined the student, and police officers arrested him, following a dispute

over his use of CCAC’s computer lab when he was not registered as a CCAC student.

In Feldman, the Court found that the student’s comments did not create a matter of

public concern, as determined by the “content, forum and context” of the statement

as revealed by the record. Id. at 825. CCAC argues that, like the student in Feldman,

Appellant’s refusal to answer CCAC’s or Officer’s questions about his status on

18

campus, and his refusal to answer questions about the incident during disciplinary

proceedings, were not a matter of public concern, and, therefore, are not protected

activity covered by the First Amendment. CCAC also argues that Appellant cannot

avoid discipline by remaining silent about his misconduct during disciplinary

proceedings.

Similarly, CCAC argues that Appellant’s privilege against self-

incrimination protected by the Fifth Amendment does not apply to CCAC’s

discipline proceedings, but is limited to criminal proceedings and custodial

interrogations. Miranda v. Arizona, 384 U.S. 436 (1966). CCAC further notes that

the privilege against self-incrimination does not extend “‘to consequences of a

noncriminal nature such as threats of liability in a civil suit, disgrace in the

community or loss of employment.’” Commonwealth v. Moody, 843 A.2d 402, 406

(Pa. Super. 2004) (citations omitted). CCAC argues that Appellant did not aver that

CCAC subjected him to criminal proceedings or to a custodial interrogation, and

therefore, his claim that CCAC violated his Fifth Amendment privilege against self-

incrimination was properly dismissed.

Appellant is correct that the right to remain silent stems from the First

and Fifth Amendments, but they do not protect Appellant here. Because his silence

toward CCAC employees did not address or create a matter of public concern, we

find that his First Amendment claims were properly dismissed. Feldman. Because

Appellant was not compelled by CCAC to give testimony in a criminal proceeding

or in a custodial interrogation, we find that his Fifth Amendment claims were

properly dismissed. Miranda; Moody.

CCAC next argues that its employees are entitled to qualified immunity

from Appellant’s constitutional claims. CCAC argues that the doctrine of qualified

19

immunity “protects government officials ‘from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S.

223, 231 (2009) (citation omitted).

Qualified immunity balances two important interests—the

need to hold public officials accountable when they

exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when

they perform their duties reasonably. The protection of

qualified immunity applies regardless of whether the

government official’s error is “a mistake of law, a mistake

of fact, or a mistake based on mixed questions of law and

fact.” Groh v. Ramirez, 540 U.S. 551, 567 (2004)

(Kennedy, J., dissenting).

Because qualified immunity is “an immunity from suit

rather than a mere defense to liability ... it is effectively

lost if a case is erroneously permitted to go to trial.”

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis

deleted). Indeed, we have made clear that the “driving

force” behind creation of the qualified immunity doctrine

was a desire to ensure that “insubstantial claims against

government officials [will] be resolved prior to

discovery.” Anderson v. Creighton, 483 U.S. 635, 640 n.2

(1987). Accordingly, “we repeatedly have stressed the

importance of resolving immunity questions at the earliest

possible stage in litigation.” Hunter v. Bryant, 502 U.S.

224, 227 (1991) (per curiam).

Id.

CCAC further argues that courts have routinely dismissed claims

against school officials arising out of disciplinary proceedings under the qualified

immunity doctrine. Doe v. Pennsylvania State University, 336 F. Supp. 3d 441

(M.D. Pa. 2018); S.G. ex rel. A.G. v. Sayreville Board of Education, 333 F.3d 417

(3d Cir. 2003). CCAC argues that because Appellant failed to establish he had a

20

constitutional right to be free from discipline for violations of the Code, its

employees are entitled to qualified immunity. Even assuming Appellant’s rights

were violated, CCAC argues that no reasonable college official would know that his

actions amounted to a violation of Appellant’s constitutional rights.

Appellant did not respond in his brief to this Court to CCAC’s argument

that its officials were entitled to qualified immunity, therefore, we must consider it

waived. Pa. R.A.P. 2119(a); Spotz; Browne. Even if not waived, we find that CCAC

employees are entitled to qualified immunity from Appellant’s claims that his

constitutional rights were violated as a result of CCAC’s discipline proceedings. As

the record reveals, CCAC provided Appellant with notice, the opportunity to be

heard at his discipline hearing, a written decision with its findings which referenced

the sections of the Student Handbook he violated, and a right to appeal. O.R. at 235-

38. The fact that Appellant chose to remain silent during his discipline proceedings

does not prohibit CCAC from disciplining him, when they provided him with

procedural due process and found he violated the Student Handbook.

CCAC next argues that Appellant’s claims should be dismissed because

he failed to exhaust the administrative remedy at his disposal, namely, the right to

file an appeal to the dean of students within three days of his expulsion letter. CCAC

argues that this Court’s decision in Tran applies here to prohibit Appellant from

asserting a breach of contract claim fashioned as an appeal from his disciplinary

proceeding. In Tran, this Court dismissed a former student’s complaint that West

Chester University improperly excluded her from a clinical practicum due to

allegations of unsafe clinical practice, in part, because she failed to exhaust the

administrative remedies provided by the university. Tran, 986 A.2d at 185. CCAC

argues that Appellant also failed to exhaust the administrative remedies provided by

21

CCAC when he failed to file a timely appeal to the dean of students following notice

of his expulsion. Appellant did not respond to this argument in his brief to the Court,

so we must consider it to be waived. Pa. R.A.P. 2119(a); Spotz; Browne. Even if

not waived, there is no evidence in the record that Appellant filed a timely appeal to

the dean of students, and he did not aver that this administrative appeal process was

inadequate to adjudicate his claim. Because he did not exhaust the administrative

appeal process provided to him by CCAC, Appellant’s appeal to this Court must be

dismissed.

CCAC further argues that Appellant’s lengthy discussion and

contention that Palmer should govern this case is misplaced. In Palmer, a public

school teacher brought an action against two school district administrators, in both

their official and individual capacities, asserting various state law tort and

constitutional claims, alleging the two administrators worked together to terminate

him from his school district employment. In his complaint, the teacher averred a

lengthy history of personal animosity between himself and the school administrators,

which was supported by specific facts. In his complaint, the teacher also averred

that the school administrators’ investigation into allegations that he inappropriately

touched a student was biased, and that they failed to provide him with notice of his

termination. The school district and administrators filed preliminary objections to

the teacher’s complaint arguing they were immune from suit or that the teacher failed

to plead sufficient facts to support his claims. This Court held that the administrators

in their individual capacities were not immune from suit under Section 8550 of the

Tort Claims Act, because the teacher pled specific facts that showed the

administrators “deliberately intended to injure [teacher] by obtaining his discharge

from employment regardless of the veracity of the accusations against him.”

22

Palmer, 959 A.2d at 513. As to the Section 1983 claims, this Court held that the

teacher pled sufficient facts that showed administrators in their individual capacities

deprived him of his fundamental due process rights to continued public school

employment. Id. at 514.

CCAC argues that Palmer does not apply to this case because, unlike

the teacher in Palmer, Appellant failed to plead specific facts that CCAC or its

employees’ conduct constituted willful misconduct or actual malice under Section

8550 of the Tort Claims Act. CCAC also argues that Appellant failed to allege facts

to demonstrate that its investigation was flawed or that Appellant was denied

procedural due process. Appellant responds that he did plead willful misconduct to

overcome immunity, and that CCAC denied him fundamental due process by

conducting his discipline hearing as a “kangaroo court.” After careful review, we

find that although Appellant offered legal conclusions averring CCAC’s willful

misconduct, and opinions averring his dissatisfaction with CCAC’s disciplinary

process, he did not plead sufficient facts to support these contentions. Unlike the

teacher in Palmer who had a fundamental property right in his continued public

school employment, Appellant does not have a fundamental right to continued

college education under Norris. The record here reveals that Appellant received

notice and the opportunity to be heard in CCAC’s discipline proceedings, even

though he believed the proceedings were unfair.

B. Claims Against the City and Officer

The City of Pittsburgh first argues that the trial court correctly

dismissed Appellant’s claims against the City and against Officer based on Tort

Claims Act immunity. The City of Pittsburgh argues that the City is a local agency

23

under Section 8541 of the Tort Claims Act, that Appellant failed to aver the City’s

conduct fell within the exceptions to immunity under Section 8542 of the Tort

Claims Act, and that Appellant failed to aver the City’s conduct was willful or

malicious under Section 8550 of the Act. Appellant included only one claim against

the City in his Amended Complaint, in an unnumbered paragraph in Count 37. O.R.

at 164. Appellant averred that the City “knew or should have known” that Officer’s

conduct was illegal, that the proceedings that followed were illegal, and that the City

“failed to supervise [Officer].” Id. Appellant did not argue or develop this issue in

his brief to this Court; therefore, we must consider it to be waived. Pa. R.A.P.

2119(a); Spotz; Browne. Even if not waived, we agree with the trial court that the

City is immune from Appellant’s claims under the Tort Claims Act, and that

Appellant failed to plead sufficient facts to support constitutional claims against the

City.

The trial court also found that “[Officer] is a police officer employed

by the City and thus a municipal employee” entitled to immunity on the same basis

as the City. Section 8545 of the Tort Claims Act. Trial Court 11/15/19 Opinion at

3. Appellant did not argue or develop the issue of Officer’s immunity from state law

claims in his brief to this Court, therefore we must consider it to be waived.

Pa. R.A.P. 2119(a); Spotz; Browne. Even if not waived, we agree with the trial court

that Officer is immune from Appellant’s state law claims under the Tort Claims Act,

because he is a City employee whose conduct does not fall into a Tort Claims Act

exception. We further agree with Officer’s argument that Appellant’s Amended

Complaint failed to aver specific facts to support that Officer acted with actual

malice or willful misconduct under Section 8550 of the Tort Claims Act.

24

To the extent Officer is not immune from Appellant’s state law claims,

Officer argues the trial court properly dismissed them because Appellant failed to

plead the facts necessary to satisfy the elements of each claim. Although we

conclude the trial court correctly dismissed Appellant’s state law claims against

Officer on the basis of immunity under the Tort Claims Act, we will review each

cause of action or purported cause of action for any legal errors. Appellant made

numerous state law and constitutional claims against Officer, many of them identical

to his claims against CCAC, which we will address in turn. Although his Amended

Complaint included claims against Officer for conduct attributable to CCAC’s

discipline process, Officer is a City employee and not a CCAC employee, and there

is no evidence of record that Officer participated in CCAC’s discipline proceedings.

Therefore, we will focus our analysis on claims that Officer injured Appellant or

denied his constitutional rights for conduct connected to Appellant’s arrest.

The specific conduct attributable to Officer’s arrest of Appellant from

the record reveals the following. On August 25, 2017, Appellant was asked to leave

CCAC’s administration building. When CCAC employees were unsuccessful in

convincing Appellant to leave, they called for assistance from their security

employees, who were also unsuccessful. CCAC security employees then called for

Officer’s assistance. When Officer was unsuccessful in securing answers or

cooperation from Appellant, including Appellant’s refusal to provide CCAC or state

identification upon request, he arrested Appellant and charged him with defiant

trespass and disorderly conduct. Appellant was convicted on those charges and

sentenced to ten days’ confinement. Appellant appealed his convictions, which were

overturned on summary appeal. Officer’s complaint and affidavit of probable cause

included a summary of events leading to the arrest. O.R. at 46-51, 120-28.

25

Appellant’s state law claims against Officer included an abuse of

discretion claim, a contract claim, tortious interference with a contract, defamation,

and intentional infliction of emotional distress. Officer argues that the trial court

properly dismissed these claims, either because they are not recognized causes of

action or that Appellant failed to aver specific facts to support the elements of these

claims. Appellant argues that Officer abused his discretion when he “banished”

Appellant from CCAC’s campus. As we did with Appellant’s claims of abuse of

discretion and a contract claim against CCAC, we agree the trial court correctly

dismissed these claims against Officer because they are not recognized causes of

action under Pennsylvania law. As to Appellant’s claims that Officer committed

tortious interference with a contract, defamation, and intentional infliction of

emotional distress, we agree with the trial court that Appellant failed to plead facts

necessary to satisfy each element of these claims. Appellant failed to provide

evidence of a contract for the tortious interference claim. Appellant failed to provide

evidence that Officer’s comments were published for the defamation claim.

Appellant failed to provide specific facts to support that Officer’s behavior was

outrageous.7

We next turn to Appellant’s claim that the trial court erred when it

dismissed his claims for malicious prosecution and wrongful civil claims against

Officer, stemming from his arrest. Appellant averred in his Amended Complaint

that Officer arrested him because Appellant would not speak with him to explain

7

Officer also argues that Appellant’s claims for abuse of discretion, contract rights, tortious

interference with a contract, defamation, intentional infliction of emotional distress, and invasion

of privacy should be dismissed because Appellant failed to file these claims within their respective

statutes of limitation. In his brief to this Court, Appellant did not address his claim that Officer

invaded his privacy, therefore we consider it to be waived. Pa. R.A.P. 2119(a); Spotz; Browne.

The trial court did not address Officer’s statute of limitations argument in its decision, and we need

not reach it here as we disposed of these claims on other grounds.

26

what was wrong so Officer “could help him,” and because he requested a student ID

card which he believed Appellant was required to produce and did not possess. O.R.

at 149. Officer responds that the trial court properly dismissed Appellant’s claims

of malicious prosecution and wrongful civil claims against Officer because he had

probable cause to arrest him. The basis of a malicious prosecution claim is for

damages incurred to a plaintiff’s person, property, or reputation as a proximate result

of “a previous unsuccessful civil or criminal proceeding which was prosecuted

without probable cause and with malice.” Byers v. Ward, 84 A.2d 307, 309 (Pa.

1951) (emphasis in original). Officer does not dispute that Appellant’s convictions

for defiant trespass and disorderly conduct were overturned on summary appeal.

However, Officer argues that success alone does not prove a lack of probable cause.

Hartman v. Moore, 547 U.S. 250, 265-66 (2006). For the tort of malicious

prosecution, probable cause is defined as “a reasonable ground of suspicion

supported by circumstances sufficient to warrant an ordinary prudent man in the

same situation in believing that a party is guilty of the offense.” Strickland v.

University of Scranton, 700 A.2d 979, 982 (Pa. Super. 1997). A showing of probable

cause is an absolute defense to an action of malicious prosecution. Id. Officer argues

that he had probable cause to arrest Appellant, based on his own observations, and

as requested by CCAC employees who called for his assistance. Appellant provides

an opinion that Officer lied on his affidavit of probable cause and in his criminal

complaint, but Appellant fails to provide specific facts to support that opinion.

Although Appellant’s convictions were overturned on summary appeal, we cannot

conclude the trial court erred by dismissing this claim, when Appellant failed to

plead specific facts that Officer lacked probable cause to arrest him.

27

Officer also argues that Appellant’s claim of wrongful civil claims

should be waived because Appellant failed to argue that issue before this Court. If

not waived, Officer argues that Appellant failed to plead any facts that Officer

initiated a civil complaint against him. We agree that Appellant failed to argue in

his brief to this Court that Officer instituted a civil complaint against him, and that

this issue is waived. Pa. R.A.P. 2119(a); Spotz; Browne. Even if not waived, we

agree that Officer did not institute a civil claim against Appellant, because Officer

had no role in CCAC’s disciplinary proceedings.

We next turn to Appellant’s constitutional claims against Officer.

Appellant averred Officer violated his Fourth Amendment right to be free from

unlawful search and seizure,8 when Officer “banished” him from CCAC’s campus,

and “searched and seized” Appellant’s person and belongings upon his arrest. O.R.

at 150. Officer responds there is no constitutional right to be free from banishment

from CCAC’s campus after failing to comply with CCAC’s requests. Officer further

responds that there is no constitutional right to be free from search when an

individual is lawfully arrested, and that Pennsylvania law permits a search incident

to arrest of both the person arrested and the area within his immediate control.

Commonwealth v. Simonson, 148 A.3d 792, 799 (Pa. Super. 2016). We find the trial

court did not err in dismissing Appellant’s Fourth Amendment claims, because the

facts pled by Appellant show that Officer conducted a valid search incident to his

arrest.

Appellant next argues that Officer violated his due process rights by

“initiating an administrative proceeding and issuing an administrative order

The Fourth Amendment provides: “The right of the people to be secure in their persons,

8

houses, papers, and effects, against unreasonable searches and seizures shall not be violated . . . .”

U.S. Const. amend. IV.

28

banishing [him] from campus.” Appellant’s Brief at 55. Officer responds that he

had no role in CCAC’s disciplinary process, and, therefore, had no responsibility to

provide Appellant with notice and the opportunity to respond to CCAC’s charges

that Appellant violated the Code. We find that Appellant failed to aver facts to

support that Officer violated his due process rights with respect to CCAC’s

disciplinary process.

Appellant next asserts that Officer violated his rights under the First

and Fifth Amendments by compelling him to answer questions about his presence

on CCAC’s campus, and then banished him from campus and arrested him when he

refused to answer. Officer responds that although silence can constitute speech,

Appellant’s refusal to answer questions about his presence on campus or his status

as a student are not matters of public concern protected by the First Amendment.

Commonwealth v. Stanton, (Pa. Super., No. 2472 EDA 2012, filed March 7, 2014),

slip op at ___, 2014 WL 10965736 at *10. Officer also argues that Appellant failed

to show that Officer arrested Appellant in retaliation for exercising his right to

silence, because he had probable cause to arrest him. “The plaintiff pressing a

retaliatory arrest claim must plead and prove the absence of probable cause for the

arrest.” Nieves v. Bartlett, 139 S.Ct. 1715, 1724 (2019). Similar to the malicious

prosecution claim discussed above, whether an officer had probable cause to arrest

is generally reviewed under the reasonableness standard. “To ensure that officers

may go about their work without undue apprehension of being sued, we generally

review their conduct under objective standards of reasonableness.” Id. at 1725. In

that review, an officer’s subjective intent is irrelevant, and the retaliation must be a

substantial motivating factor behind the arrest. Id. Based on Appellant’s Amended

Complaint, we hold the trial court did not err when it dismissed Appellant’s First

29

Amendment claims against Officer because he failed to plead specific facts to

support the requirements.

Appellant also claims that Officer violated his Fifth Amendment right

against self-incrimination because Officer spoke to him during the incident on

CCAC’s campus. O.R. at 151. Appellant avers he politely declined to answer

Officer’s questions about the criminal allegation that he was trespassing. Id. at 147.

Officer responds that the prohibition against self-incrimination applies in a criminal

trial and any other proceeding where the answers could incriminate the speaker.

Commonwealth v. Knoble, 42 A.3d 976, 979 (Pa. 2012). Our review of the Amended

Complaint reveals that Appellant failed to aver that Officer compelled Appellant to

incriminate himself in a criminal trial or any proceeding. Therefore, the trial court

did not err in dismissing it.

Appellant also avers that Officer violated his equal protection rights by

singling him out as a “class of one for punishment for his mere presence on campus.”

Appellant’s Brief at 42. Officer responds he acted rationally, and that Appellant

failed to aver the existence of similarly situated individuals who were treated

differently. Cornell Narberth, LLC v. Borough of Narberth, 167 A.3d 228, 243 (Pa.

Cmwlth. 2017). As we did with Appellant’s equal protection claim against Officer,

we find that Appellant failed to address or develop this argument in his brief beyond

the quoted statement, therefore, we find it has been waived. Pa. R.A.P. 2119(a);

Spotz; Browne. Even if he had not waived it, we find that Appellant failed to plead

the necessary facts giving rise to a class of one equal protection claim against

Officer.

Officer argues that he is entitled to qualified immunity from

Appellant’s constitutional claims because his conduct did not violate “clearly

30

established statutory or constitutional rights of which a reasonable person would

have known.” Pearson, 555 U.S. at 231. Officer argues that although Appellant

avers his arrest was “illegal, lacking in probable cause, and unsupported by the

evidence at all,” he fails to plead specific facts to support this legal conclusion. O.R.

at 146. Officer argues that he had probable cause for the arrest, based on CCAC

employees’ reports and his own observations of Appellant’s behavior. Appellant

did not respond in his brief to this Court to Officer’s argument that he was entitled

to qualified immunity, and therefore, we must consider it to be waived. Pa. R.A.P.

2119(a); Spotz; Browne. Even if it is not waived, we find that Officer is entitled to

qualified immunity from Appellant’s claims that his constitutional rights were

violated as a result of his arrest. As the record reveals, Officer’s arrest of Appellant

was based on probable cause based on Appellant’s refusal to leave CCAC property

after repeated attempts to talk with him were unsuccessful.

We next turn to Appellant’s argument that the trial court erred when it

granted Officer’s Petition to Strike the default judgment entered for Officer’s failure

to timely respond to the Amended Complaint. Appellant argues that he achieved

proper service on Officer at his place of employment. Officer responds that

Appellant’s service was defective. We need not resolve the service issue to dispose

of Appellant’s claim. The trial court docket reveals that Appellant entered a praecipe

for default judgment against Officer on May 9, 2019. Officer filed the Petition to

Strike on May 14, 2019. O.R. at 294-302. Officer’s filing was within the 10-day

period required by Pa. R.C.P. No. 237.3(b)(2), which states: “If the petition is filed

within ten days after the entry of a default judgment on the docket, the court shall

open the judgment if one or more of the proposed preliminary objections has merit

or the proposed answer states a meritorious defense.” The trial court found that one

31

or more of Officer’s preliminary objections had merit, as evidenced by the trial

court’s order sustaining them. Therefore, we cannot find the trial court erred in

granting Officer’s Petition to Strike under the applicable rule.

We now turn to Appellant’s argument that he is entitled to attorney’s

fees from CCAC and the City of Pittsburgh, although he is representing himself in

this matter. In his brief to this Court, Appellant argues that an award of attorney’s

fees may be appropriate for “pro se litigants who sought advice from outside

counsel,” citing Blazy v. Tenet, 194 F.3d 90, 92 (D.C. Cir. 1999). The City responds

that it is “well[-]settled that a pro se litigant cannot recover attorney’s fees for the

work expended in litigating his or her own case.” Kanofsky v. Tax Review Board,

(Pa. Cmwlth., No. 2740 C.D. 2015, filed January 5, 2017), slip op. at 4.9 We find

that Appellant provided no applicable legal authority to support his claim for

attorney’s fees in this matter.

III. Conclusion

For the foregoing reasons, based upon careful review, the trial court’s

orders of August 30, 2019 are affirmed.

9

See Pa. R.A.P. 126(b) (“As used in this rule, “non-precedential decision” refers to . . . an

unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []

Non-precedential decisions . . . may be cited for their persuasive value.”).

32

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ross James, :

:

Appellant :

:

v. : No. 1303 C.D. 2019

:

Community College of Allegheny :

County, Bridgett Golman, Jane :

Greenwood, Sumana Misra-Zets, :

Don Breitbarth, Lawrence Doperak, :

Michelle Tedder, Jeffrey Labella and :

City of Pittsburgh :

PER CURIAM

ORDER

AND NOW, this 20th day of August, 2021, the orders of the Allegheny

County Court of Common Pleas dated August 30, 2019, are AFFIRMED.