C. Richardson v. J. Walsh, Supt. (Retired)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Trent Richardson, :

Appellant :

:

v. :

:

Jerome Walsh, Supt. (Retired), :

Chris Putnam (Unit Manager J-Blk), :

Michael Thruchon (Facility :

Maintenance Manager 3), Paul :

Mooney (Facility Maintenance :

Manager 1), Greg Gordner (Facility :

Maintenance Manager 1), Mr. Taylor : No. 1045 C.D. 2016

(Maintenance Worker), et al. : Submitted: September 2, 2016

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: December 19, 2016

Courtney Trent Richardson (Richardson) appeals pro se from the

Luzerne County Common Pleas Court’s (trial court) January 5, 2016 order sustaining

the preliminary objections filed by Pennsylvania Department of Corrections’

(Department) Retired State Correctional Institution – Dallas (SCI-Dallas)

Superintendent Jerome Walsh (Walsh), J-Block Unit Manager Chris Putnam

(Putnam), Facility Maintenance Manager 3 Michael Truchon (Truchon),1 Facility

Maintenance Manager 1 Paul Mooney (Mooney), Facility Maintenance Manager 1

Greg Gordner (Gordner), and Maintenance Worker Mr. Taylor (Taylor)2

1

According to the grievance documents Truchon’s name is spelled without an “h.” See

Complaint Ex. 2.

2

Taylor’s first name does not appear in the record.

(collectively, Defendants). The issue before this Court is whether the trial court erred

by concluding that Richardson failed to state a claim for which relief may be

granted.3 After review, we affirm.

Richardson is an inmate at SCI-Dallas. On August 25, 2015, Richardson

filed a Complaint in the trial court for money damages (Complaint), wherein he

alleged that Taylor removed his cell window on August 22, 2013, and the window

could not be properly repaired. He further averred that the window was never

replaced. Certified Record (C.R.), Complaint ¶ 12.

According to the Complaint and the documents attached thereto, on

January 20, 2014, Richardson filed Grievance No. 494469 (Grievance) with Truchon,

claiming:

Since [August 22, 2013,4] I have not had a window in the

cell that I am in. I had to rely on taping empty coffee

plastic bags along with empty tobacco bags and any other

kind of insulations.

We have experience[d] extreme cold weather during this

period, and I have gotten ill several times. Being exposed

to these kinds of living conditions . . . [is] a direct violation

of my civil and constitutional rights. I wish to be

3

Richardson listed in his Statement of Questions Involved, the following questions:

1. Do all of the [Defendants] have immunities in their professional

and private capacities?

2. Are the [Defendants] guilty as challenged by [Richardson]?

3. Did [Richardson] exhaust all of his remedies on the state level?

4. Did [Richardson] file his [C]omplaint in [f]ederal [c]ourt?

Richardson Br. at 4. These Statements of Questions are subsumed in the issue of whether the trial

court erred by concluding that the Complaint failed to state a claim for which relief may be granted.

4

Although Richardson initially stated that the window was removed in “September 2013,”

Complaint Ex. 1, based upon his subsequent determination that it was removed on August 22, 2013,

he amended the date. See Complaint ¶ 13.

2

compensated fully by those deemed responsible.

$85,000.00 each. Also for materails (sic) and work missed.

....

I also wish to have the window replaced without my

personal property being used as a ladder/vandalized!

Complaint Ex. 1; see also Complaint ¶ 13. The Grievance further reflects that, before

initiating the Grievance, Richardson: “Spoke to both shifts of block officers who did

their duty by placing work orders in. [sic] Brought this to the attention of Cert team[5]

members who notified the Unit Manager.” Complaint Ex. 1.

On February 6, 2014, Truchon issued an Initial Review Response,

wherein he upheld the Grievance, but stated: “Your window was replaced 1-31-14.”

Complaint Ex. 2; see also Complaint ¶ 14. Richardson appealed from Truchon’s

decision to Walsh. Complaint Ex. 3; see also Complaint ¶ 15.

On February 10, 2014, Walsh upheld Truchon’s decision, stating:

I have reviewed the above-noted [G]rievance, the

I

Grievance Officer’s response and your subsequent appeal of

said [G]rievance. My decision is as follows:

I would first like to note for your information, this

[G]rievance should have been rejected due to the

untimeliness of your filing. You . . . failed to file the

[G]rievance until January 20, 2014.

Since Ms. Lucas[6] processed it, I will address it. Be

advised, I contacted [Putnam] regarding this matter

along with pulling work orders that were submitted to

have this matter fixed. It is apparent for some reason that

this window has been an issue for quite some time. I

retrieved two work orders that were submitted in 2013 to

have the window taken out and repaired. On August 22,

2013, the window was taken out for repair. On December

16, 2013, the window was taken out again for repair[] and

put back in. It is uncertain as to why there appears to be

5

The term “Cert team” is not defined in this record.

6

The record does not identify Ms. Lucas’ title or duties.

3

such an issue with this window. As I noted previously, I

contacted [Putnam] and was informed [that], at no time

did you ask to be moved or complain about your cell

being cold and/or the window. I was informed that you

also did not discuss or complain to the officers on J

block that your cell was cold or that you wanted to be

moved. For the record, you have been housed in this cell

since October of 2011. In my investigation, I also contacted

the medical department and was informed you signed up for

sick call on January 16, 2014, and noted ‘I have a bad cold.’

You did not seek follow[-]up care after January 16, 2014

for cold symptoms; therefore, this matter was considered

resolved. I would encourage you to speak to the

appropriate individuals if you are having housing unit

issues/concerns. I would also encourage you not to wait so

long to file a complaint/grievance like this. If you would

have made appropriate staff aware of the matter, you would

have been moved to another cell until the repair was totally

completed. It is apparent from work orders that staff

acted in good faith and attempted to get this matter

rectified.

Complaint Ex. 4; see also Complaint ¶ 16 (emphasis added). Richardson appealed

from Walsh’s decision to the Secretary’s Office of Inmate Grievances and Appeals

(SOIGA). Complaint Ex. 5a; see also Complaint ¶ 17.

On March 20, 2014, SOIGA Chief Grievance Officer Dorina Varner

(Varner) upheld Walsh’s decision ruling, in pertinent part:

A review of the record found that you were moved to

another cell on January 23, 2014. The window in your

previous cell, which had been repaired on August 22, 2013

and December 16, 2013, was replaced on January 31, 2014.

The record also shows that you failed to inform staff

that you wanted to be moved to another cell, that your

cell was cold, or that the window needed [to be] repaired

again. You were moved to another cell on January 23,

2014; therefore, your issue has been resolved. You

provide no evidence to substantiate your claims that your

civil rights or constitutional amendment rights have been

violated. This office upholds the decisions of the Grievance

Officer and the Facility Man[a]ger in denying your

grievance and all requested relief. It is noted that your

4

grievance was submitted untimely and should have been

rejected by the Grievance Officer.

Complaint Ex. 5b (emphasis added); see also Complaint ¶ 17.

In his Complaint, Richardson claims that Defendants deprived him of his

constitutional rights by “committing violations of the following statutory provisions:

a.) Freedom from cruel and unusual punishment; b.) Article 1 §§[] 1, 9 and 13 of the

Pennsylvania Constitution; c.) Eighth Amendment of the United States (U.S.)

Constitution; [and] d.) [Section 8550 of the Judicial Code,] 42 Pa.C.S. § 8550 Willful

Misconduct.” Complaint ¶ 36; see also Complaint ¶¶ 11, 18-35. Richardson sought a

declaratory judgment and demanded $25,000.00 in compensatory damages,

$85,000.00 from each Defendant in punitive damages, plus costs and fees. See

Complaint ¶¶ 38-39.

On November 17, 2015, Defendants filed preliminary objections to the

Complaint in the nature of a demurrer, contending that: (1) Richardson failed to plead

facts under which Defendants’ sovereign immunity is waived;7 (2) Richardson failed

to state facts sufficient to state a claim against Defendants under federal or state law;

(3) Richardson failed to state a claim for violation of the Pennsylvania Constitution;

and, (4) Richardson failed to properly exhaust his administrative remedies.

Richardson filed a response to Defendants’ preliminary objections. On January 5,

2016, the trial court sustained Defendants’ preliminary objections and dismissed

Richardson’s Complaint with prejudice. Richardson appealed to the Superior Court,

7

“Immunity from suit is an affirmative defense that must be raised as a new matter in a

responsive pleading. [However, c]ourts allow defendants to raise immunity by preliminary

objection where the defense is clearly applicable and where the plaintiff does not object. Both

conditions exist here.” Balletta v. Spadoni, 47 A.3d 183, 195 (Pa. Cmwlth. 2012) (citations

omitted).

5

which transferred the matter to this Court.8 The trial court issued its opinion on April

18, 2016.

Initially, Section 6602(e) of what is commonly referred to as

Pennsylvania’s Prison Litigation Reform Act (PLRA) provides, in relevant part:

[T]he court shall dismiss prison conditions litigation[9] at

any time, . . . if the court determines . . . :

....

The prison conditions litigation . . . 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). Moreover,

[i]n ruling on preliminary objections, we must accept as true

all well-pleaded material allegations in the petition for

review, as well as all inferences reasonably deduced

therefrom. The Court need not accept as true conclusions

of law, unwarranted inferences from facts, argumentative

allegations, or expressions of opinion. In order to sustain

preliminary objections, it must appear with certainty that

the law will not permit recovery, and any doubt should be

resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits

every well-pleaded fact in the complaint and all inferences

8

“Where a trial court dismisses a complaint based on preliminary objections, this Court’s

review is limited to determining whether the trial court committed an error of law or an abuse of

discretion.” Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014).

9

Section 6601 of the PLRA defines “prison conditions litigation” as

[a] civil proceeding arising in whole or in part under [f]ederal or

[s]tate 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.

6

reasonably deducible therefrom.[10] It tests the legal

sufficiency of the challenged pleadings and will be

sustained only in cases where the pleader has clearly failed

to state a claim for which relief can be granted. When

ruling on a demurrer, a court must confine its analysis to the

complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).

Here, the trial court dismissed the Complaint, holding:

The instant matter alleges a cell window was never repaired

or replaced. Defendants can only be held liable for

negligence, and only if the negligence falls within one of

the nine exceptions to sovereign immunity. Moreover,

there is a requirement that the defect of the real property

caused the injury to occur. Battle v. Phila[.] Hous[.]

Auth[.], 594 A.[]2d 769 (Pa Super. 1991). Where

[Richardson’s] claim specifically alleges negligence[,] the

limited waivers of sovereign immunity apply. Additionally,

the allegations of intentional misconduct within the scope of

employment are also barred by sovereign immunity. [See

La[]Frankie v. Miklich, 618 A.2d 1145 (Pa. Cmwlth.

1992)][.]

This [trial c]ourt also found that [Richardson] failed to state

a federal claim with the required specificity, sought a non-

existent private cause of action for damages premised on

violation of the Pennsylvania Constitution, and failed to

plea[d] requisite facts to demonstrate exhaustion of

administrative remedies to trigger a [f]ederal [c]laim.

Trial Ct. Op. at 1.

The trial court sustained Defendants’ objection that Richardson failed to

plead facts in the Complaint under which Defendants’ sovereign immunity is waived.

We agree. “It is well-settled that the Commonwealth of Pennsylvania is protected

from civil suit under sovereign immunity, except where the General Assembly has

10

“[C]ourts reviewing preliminary objections may not only consider the facts pled in the

complaint, but also any documents or exhibits attached to it.” Allen v. Dep’t of Corr., 103 A.3d

365, 369 (Pa. Cmwlth. 2014).

7

specifically provided for a waiver of immunity.” Mullin v. Dep’t of Transp., 870

A.2d 773, 779 (Pa. 2005).

The [act commonly referred to as the Sovereign Immunity

Act11 (Act)] provides that sovereign immunity is only

waived for damages arising out of a negligent act where the

common law or a statute would permit recovery if the injury

were caused by a person not protected by sovereign

immunity. However, in order for the Commonwealth to be

found liable, a party must also establish that the cause of

action falls under one of nine specifically enumerated

exceptions to immunity.[12] Because of the clear intent to

insulate the government from liability, the exceptions to

sovereign immunity are to be strictly construed.

Mullin, 870 A.2d at 779 (citations omitted).

Richardson does not aver in his Complaint that Walsh, Putnam, Truchon,

Mooney, Gordner and Taylor acted negligently. Rather, Richardson’s Complaint

alleges that he filed a Grievance and subsequent appeals relating to his Grievance,

and made legal conclusions.

Specifically, Richardson avers that Defendants “committed [i]ntentional

[t]ort[s] against [Richardson] and [are] not immune from liability pursuant to [Section

11

42 Pa.C.S. §§ 8521-8528.

In the Complaint, Richardson avers that “[t]his action is brought pursuant to . . . [the act

commonly referred to as] the Political Subdivision Tort Claims Act [(Tort Claims Act)] . . . .”

Complaint ¶ 1. However, the Tort Claims Act only applies to local agencies and their employees.

See 42 Pa.C.S. § 8541 (“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”). Because Richardson’s Complaint makes claims against individuals acting in the scope

and course of their Commonwealth employment, the Act, rather than the Tort Claims Act, is

controlling in this case.

12

A Commonwealth party may be liable under Section 8522(b) of the Act for damages due

to: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal

property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous

conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard

activities; and (9) toxoids and vaccines. See 42 Pa.C.S. § 8522(b).

8

8550 of the Judicial Code,] Willful Misconduct.” Complaint ¶¶ 20, 23, 26, 29, 32,

35. We acknowledge that Section 8550 of the Judicial Code provides:

In any action against a local agency or employee thereof for

damages on account of an injury caused by the act of the

employee in which it is judicially determined that the act of

the employee caused the injury and that such act constituted

a crime, actual fraud, actual malice or willful misconduct,

the provisions of [S]ections 8545 (relating to official

liability generally), 8546 (relating to defense of official

immunity), 8548 (relating to indemnity) and 8549 (relating

to limitation on damages) [of the Judicial Code, 42 Pa.C.S.

§§ 8545, 8546, 8549] shall not apply.

However, Section 8550 of the Judicial Code is applicable only to “action[s]

against a local agency or employee thereof.” 42 Pa.C.S. § 8550 (emphasis added).

Section 8501 of the Judicial Code defines “local agency” as “[a] government unit

other than the Commonwealth government.” 42 Pa.C.S. § 8501. Here, since the

Department is a Commonwealth agency,13 and Defendants are Commonwealth

agency employees, Section 8550 of the Judicial Code does not expressly waive

their official immunity. See Williams v. Stickman, 917 A.2d 915, 917 (Pa. Cmwlth.

2007) (SCI employees “are not employees of a local agency”).

In addition, this Court has held that “state employees do not lose their

sovereign immunity protection for intentional torts committed within the scope

of their employment.” Kull v. Guisse, 81 A.3d 148, 154 n.5 (Pa. Cmwlth. 2013)

(emphasis added). Thus, “when an employee of a Commonwealth agency was acting

within the scope of his or her duties, [he/she] is protected by sovereign immunity

13

Section 102 of the Judicial Code defines “Commonwealth government” as including

“agencies of the Commonwealth.” 42 Pa.C.S. § 102. “Commonwealth agency” is defined as “[a]ny

executive agency or independent agency.” Id. Under Section 203 of The Administrative Code of

1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 61, the Department is an executive

agency. Accordingly, the Department is a Commonwealth agency.

9

from the imposition of liability for intentional tort claims.” Williams, 917 A.2d at

917 (quoting La Frankie, 618 A.2d at 1149).

[Richardson] averred [in the Complaint] that the

[Defendants] violated his constitutional rights and

committed numerous intentional torts against him. He did

not, however, allege that the [Defendants] acted outside the

scope of their employment;[14] nor did he assert that the

actions of the [Defendants] fit into any of the exceptions to

sovereign immunity listed in Section 8522(b) of the

[Judicial] Code, 42 Pa.C.S. § 8522(b). Therefore, since

[Richardson] did not aver that the [Defendants] were acting

outside the scope of their duties when he was allegedly

harmed, and since [Richardson] did not aver that the

[Defendants’] actions were within any exception to

sovereign immunity, we conclude that the trial court

correctly determined that the [Defendants] were immune

from suit.

Bronson v. Lechward, 624 A.2d 799, 801-02 (Pa. Cmwlth. 1993) (citation omitted).

Accordingly, because it “appear[s] with certainty that the law will not permit

[Richardson’s] recovery[]” for intentional torts, the trial court did not err by

sustaining Defendants’ preliminary objections on that basis. Torres, 997 A.2d at

1245.

Richardson’s remaining claims in his Complaint against Walsh, Putnam,

Truchon, Mooney, Gordner and Taylor are for allegedly violating his rights under

Article I, Sections 1, 9 and 13 of the Pennsylvania Constitution and the Eighth

Amendment to the U.S. Constitution. The trial court sustained Defendants’ objection

that Richardson failed to state valid claims for constitutional violations. We agree.

Pennsylvania Rule of Civil Procedure 1019(a) states: “The material facts

on which a cause of action or defense is based shall be stated in a concise and

14

Despite Richardson’s declaration in the Complaint that “[e]ach [Defendant] is being sued

in their [sic] [p]ersonal and [o]fficial [c]apacities,” Complaint ¶ 39, he does not aver that any of

Defendants’ alleged action or inaction occurred outside the scope of their official responsibilities.

10

summary form.” Pa.R.C.P. No. 1019(a). This Court has declared that “[t]he purpose

of this rule is to require the plaintiff to disclose the material facts sufficient to enable

the adverse party to prepare the case.” Bennett v. Beard, 919 A.2d 365, 367 (Pa.

Cmwlth. 2007). Moreover, because “Pennsylvania is a fact-pleading jurisdiction[,] . .

. a pleading must not only apprise the opposing party of the asserted claim, ‘it must

also formulate the issues by summarizing those facts essential to support the claim.’”

Richardson v. Wetzel,15 74 A.3d 353, 356-57 (Pa. Cmwlth. 2013) (quoting Sevin v.

Kelshaw, 611 A.2d 1232, 1235 (Pa. Super. 1992)).

In his Complaint, Richardson avers that Taylor removed Richardson’s

cell window on August 22, 2013. He further asserts that he “[s]poke to both shifts of

block officers,” and brought the matter “to the attention of Cert team members who

notified the Unit Manager.” Complaint Ex. 1. Moreover, Richardson alleges that he

filed his Grievance on January 20, 2014, he was moved to a different cell because of

the missing window on January 23, 2014, and the window was replaced on January

31, 2014.

Richardson fails to state with specificity in his Complaint how each

Defendant is liable to him for the damages he seeks. Rather, Richardson generally

designated Walsh, Putnam, Truchon, Mooney, Gordner and Taylor as “tortfeasors”

(Complaint ¶¶ 4-10), and averred legal conclusions that each “committed a criminal

offense against [him]” (Complaint ¶¶ 18, 21, 24, 27, 30, 33, 36-38), and violated his

constitutional rights (see Complaint ¶¶ 19, 22, 25, 28, 31, 34, 36-38) with no facts to

substantiate his claim. The Complaint does not make specific allegations of any

wrongdoing against any Defendant.

In the Complaint, Richardson merely reiterates general conclusions of

law. It is not clear on the face of the Complaint who was responsible for the decision

15

There is no apparent relationship between Richardson and the appellant in Terrence

Richardson v. Wetzel.

11

to remove the cell window and allegedly not replace it. Nor does it state that

Defendants were aware that the window was allegedly not replaced. The Complaint

does not reflect that any Defendant was responsible for replacing the window or

moving Richardson to another cell, or was even on notice that Richardson may have

been subject to any adverse prison conditions, until he filed his Grievance nearly five

months after the window was allegedly removed. Finally, despite that Richardson

took advantage of the Department’s grievance process, we cannot glean from his

Grievance that Walsh, Putnam, Truchon, Mooney, Gordner or Taylor committed any

specific wrongdoing.16

“In ruling on preliminary objections, . . . [we] need not accept as true

conclusions of law, unwarranted inferences from facts, argumentative allegations, or

expressions of opinion.” Torres, 997 A.2d at 1245. Under circumstances in which

the Complaint fails to state if, when and/or how Defendants “committed a criminal

offense against [him]” (Complaint ¶¶ 18, 21, 24, 27, 30, 33, 36-38), and/or violated

his constitutional rights (see Complaint ¶¶ 19, 22, 25, 28, 31, 34, 36-38), Defendants

cannot defend against Richardson’s legal conclusions. Accordingly, because it

“appear[s] with certainty that the law will not permit [Richardson’s] recovery [from

Defendants in this case],” the trial court did not err by sustaining Defendants’

preliminary objections.17 Torres, 997 A.2d at 1245.

16

Even if there were specific allegations of constitutional violations against Defendants,

Richardson’s monetary damage claims would fail. This Court has held: “To date, neither

Pennsylvania statutory authority, nor appellate case law has authorized the award of monetary

damages for a violation of the Pennsylvania Constitution.” Jones v. City of Phila., 890 A.2d 1188,

1208 (Pa. Cmwlth. 2006) (en banc).

17

“This court may affirm the decision of the trial court on any grounds.” Slusser v. Black

Creek Twp. Zoning Hearing Bd., 124 A.3d 771, 772 n.1 (Pa. Cmwlth. 2015); see also Van Mastrigt

v. Dalta Tau Delta, 573 A.2d 1128, 1132 n.5 (Pa. Super. 1990) (“Although the lower court does not

sustain the preliminary objections . . . on this basis, as an appellate court we may affirm a decision

of the trial court if the result is correct on any ground.”).

Based upon our holding, we need not address herein whether Richardson exhausted his

administrative remedies.

12

Based upon the foregoing, we affirm the trial court’s order.

___________________________

ANNE E. COVEY, Judge

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Trent Richardson, :

Appellant :

:

v. :

:

Jerome Walsh, Supt. (Retired), :

Chris Putnam (Unit Manager J-Blk), :

Michael Thruchon (Facility :

Maintenance Manager 3), Paul :

Mooney (Facility Maintenance :

Manager 1), Greg Gordner (Facility :

Maintenance Manager 1), Mr. Taylor : No. 1045 C.D. 2016

(Maintenance Worker), et al. :

ORDER

AND NOW, this 19th day of December, 2016, the Luzerne County

Common Pleas Court’s January 5, 2016 order is affirmed.

___________________________

ANNE E. COVEY, Judge