C. Caldwell v. The DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clay Caldwell, :

Appellant :

: No. 365 C.D. 2020

v. :

: Submitted: August 7, 2020

The Department of Corrections, :

Jeffrey A. Beard, Louis Folino, Officer :

Ma Price, Officer Gagnon, Officer :

Norman, Officer Lukachyk, Officer :

J. Miller, Officer Topka and :

Officer Sokol :

OPINION NOT REPORTED

MEMORANDUM OPINION

PER CURIAM FILED: March 31, 2021

Clay Caldwell, an inmate residing at the State Correctional Institution

(SCI) at Benner Township, appeals pro se from the February 27, 2020 order of the

Court of Common Pleas of Greene County (trial court) dismissing his complaint

against the Pennsylvania Department of Corrections (Department) and various

Department personnel (collectively, Defendants). We affirm.

We have summarized the extensive procedural history of this matter in a

prior decision:

In November 2009, Caldwell, an indigent inmate currently

serving a life sentence at the [SCI] at Greensburg, following

a transfer from SCI–Greene, filed a motion to proceed in

forma pauperis (IFP), to proceed without liability for court

fees or costs. [Original] Record ([O.R.]), Item No. 42. The

trial court denied the motion for failure to file a complaint,

stating “[t]here is no pending lawsuit or action.” [Trial] Ct.

Order, 11/25/09; [O.R.], Item No. 39. The trial court

instructed Caldwell that he may file a revised petition to

proceed IFP when he files his complaint. Id.

In January 2010, Caldwell filed a second petition to proceed

IFP. [O.R.], Item No. 38. The trial court denied his petition

pursuant to Section 6602(f)(1) of the act commonly referred

to as the Prison Litigation Reform Act (PLRA), 42 Pa.C.S. §

6602(f)(1), also known as the “three strikes rule.” [Trial] Ct.

Order, 1/6/10; [O.R.], Item No. 37. The trial court explained

that Caldwell, on more than three occasions, filed lawsuits

concerning the conditions of his confinement, which were

dismissed for failure to state a claim. Id. (citing Caldwell v.

Folino, 2009 WL 3055298 (W.D. Pa., No. CV–09–217, filed

September 21, 2009) (unreported); Caldwell v. Folino, 2009

WL 1929905 (W.D. Pa., No. 2:08–cv–00122, filed July 1,

2009) (unreported) (Folino I), vacated in part and remanded,

20[1]0 WL 3610169 (3d Cir., No. 09–3104, filed September

17, 2010)1 (Folino II); Caldwell v. Beard, 2008 WL 2887810

(W.D. Pa., No. CV–07–727, filed July 23, 2008)

(unreported), aff’d, 2009 WL 1111545 (3d Cir., No. 08–

3286, filed April 27, 2009)).

1

The Third Circuit’s decision to vacate and

remand occurred after the trial court entered its

order.

Three years later, in March 2013, Caldwell filed a third IFP

motion. In addition, he filed a complaint naming Secretary

Jeffrey A. Beard, SCI–Greene Superintendent Louis Folino,

seven correctional officers from SCI–Greene, “M.A. Price,

Gagnon, J. Miller, Lukachyk, Topka, Norman, Sokol,”

(Individual Defendants), and the Department of Corrections

(Department) (collectively, Defendants) as defendants.

[O.R.], Item No. 35. In an affidavit accompanying his

filings, Caldwell explained he delayed filing his complaint

with the trial court until final judgment in his federal court

action involving the same incidents and Defendants. Id.; see

Folino I; Folino II.2

2

The United States District Court for the

Western District of Pennsylvania (district court)

2

dismissed Caldwell’s complaint for failure to

state a claim, and subsequently denied him

leave to file an amended complaint. [Folino I],

vacated in part and remanded, [Folino II]. On

appeal, the Third Circuit determined the district

court erred in dismissing Caldwell’s Eighth

Amendment[, U.S. CONST. amend. VIII,] claim

that he was sexually harassed during pat down

searches on the basis he did not comply with the

exhaustion requirement. Folino II. The Third

Circuit explained it was not facially apparent

from the complaint that Caldwell failed to

exhaust the claim. Id. In addition, the Third

Circuit concluded the district court did not

address Caldwell’s Equal Protection claim

alleging religious discrimination. Id. The Court

remanded for further proceedings limited to

those two issues. Id. Ultimately, on remand,

the matter proceeded to a jury trial in March

2012, which resulted in a verdict for the

defense. See Caldwell v. Folino (W.D. Pa., No.

2:08–cv–00122, filed May 29, 2013) (order

denying relief from judgment) (unreported).

In the complaint, he alleged the correctional officers: touched

him in a sexual manner during pat-down searches; filed false

disciplinary charges against him; wrongfully subjected him

to restrictive housing; transferred him from SCI–Greene to

SCI–Greensburg in retaliation for filing grievances and civil

suits; wrongfully seized and destroyed his personal property

in retaliation for filing grievances and civil suits; handcuffed

him too tightly; required him to obtain a permit for his Native

American religious items; and, mishandled and mocked his

religious items. According to Caldwell, the first of these

incidents—the pat-down search—occurred in November

2007.

In addition, Caldwell averred Defendants improperly filed

misconduct reports and denied his grievances. He claimed

the Department’s policies, customs and practices violated his

constitutional rights. He asserted state tort claims for gross

negligence and violations of his state constitutional rights.

3

For relief, Caldwell demanded nominal and punitive

damages in the amount of $74.4 million from the Department

and $580,000 from each of the Individual Defendants as well

as 35% of their gross yearly income for 10 years. He also

requested injunctive relief in the form of modified prison

policies, single-cell status, magazine subscriptions, family

visitations, personal property, sentence reduction, expunged

misconduct reports, nonparticipation in prison programs, and

unrestricted phone calls.

The trial court granted Caldwell’s third IFP motion. [Trial]

Ct. Order, 3/28/13; [O.R.], Prothonotary Docket Entries.

Caldwell then filed a “Motion to Enter Judgment by Default

against the Defendants, for Failure to Plead, and the Relief

Sought by the Plaintiff in his Complaint.” [O.R.], Item No.

30. The trial court issued a rule to show cause why

Caldwell’s relief should not be granted. [Trial] Ct. Order,

7/1/13; [O.R.], Item No. 29. The Department responded,

stating none of the named Defendants were served with

original process in the matter, and, thus, they were not parties

to the action. [O.R.], Item No. 22.

In the interim, Caldwell filed a “Motion for Damages against

the Defendants for Delay in Actions for Bodily Injury, Death

or Property Damage,” as well as a “Petition for Order for

Protection From Abuse of Authority and from Destruction of

Property and Official Oppression.” [O.R.], Item Nos. 21, 27.

The trial court denied these motions, and it instructed

Caldwell to properly serve his complaint on the Defendants.

See [Trial] Ct. Order, 7/17/13; [Trial] Ct. Order, 9/25/13;

[O.R.], Item Nos. 14, 26.

In addition, Caldwell requested appointment of counsel.

[O.R.], Item No. 18. He also filed two motions for special

injunctive relief—one for a [Protection from Abuse] from

abuse of authority and destruction of property, the other

requesting that the court direct the sheriff to serve his

complaint on the Defendants. [O.R.], Item Nos. 12, 13.

Ultimately, the trial court denied Caldwell’s request for

counsel. [Trial] Ct. Order, 11/13/13; [O.R.], Item No. 9. The

trial court explained his action is civil in nature and the

appointment of counsel is not a matter of right. Id. On its

4

own accord, the trial court dismissed Caldwell’s complaint

with prejudice, citing lack of subject matter jurisdiction and

the litigation’s vexatious nature. Id. From this decision,

Caldwell appealed to the Superior Court, which transferred

the matter here.

Caldwell v. Department of Corrections Agency (Pa. Cmwlth., No. 631 C.D. 2014, filed

Nov. 17, 2014) (unreported) (Caldwell I), slip op. at 1-5.

In Caldwell I, this Court affirmed the trial court’s sua sponte dismissal of

Caldwell’s complaint in part, reversed in part, and remanded for further proceedings.

To the extent that Caldwell challenged prison disciplinary actions, we agreed with the

trial court that it lacked subject matter jurisdiction over matters of internal prison

administration. Id. at 10 (citing Bronson v. Central Office Review Committee, 721 A.2d

357 (Pa. 1998); Brown v. Pennsylvania Department of Corrections, 913 A.2d 301 (Pa.

Cmwlth. 2006)). However, as it concerned state law tort claims, we reversed the trial

court’s determination that it lacked subject matter jurisdiction because Caldwell’s

averments concerned actions that occurred at SCI-Greensburg, outside of Greene

County. To the contrary, we determined that “the alleged conduct underlying

Caldwell’s action occurred within Greene County,” and the trial court thus possessed

subject matter jurisdiction over Caldwell’s tort claims, over which the federal district

court had declined to exercise supplemental jurisdiction in Folino I. We further

concluded that Caldwell’s delay in filing his complaint until the conclusion of his

federal litigation did not render the litigation “vexatious” within the meaning of the

PLRA. We remanded, permitting “only tort actions for money damages premised on

common law trespass and other state claims to proceed.” Id. at 17.

Caldwell then filed several amended complaints in the trial court. In an

order dated August 17, 2018, the trial court sustained the Department’s preliminary

objection to Caldwell’s standing, concluding that Caldwell appeared to pursue claims

5

on behalf of his wife, and thus did not demonstrate personal involvement in the

challenged actions. (Trial Ct. Order, 8/17/2018; O.R. Item 81.) The trial court granted

Caldwell 45 days in which to amend his complaint and to remedy that defect.

Caldwell complied with the trial court’s order and filed another amended

complaint in October 2018. However, many of Caldwell’s averments concerned

conduct that occurred at SCI-Benner Township, rather than SCI-Greene. In response

to the Department’s preliminary objection to the trial court’s jurisdiction, the trial court

reviewed each paragraph of Caldwell’s amended complaint, with Caldwell

participating by audio/visual device, and struck Caldwell’s averments to the extent that

they concerned actions occurring outside Greene County. (Trial Ct. Order, 4/12/2019;

O.R. Item 55.)

After the trial court struck the portions of Caldwell’s complaint relating

to actions occurring outside Greene County, the following averments remained.

Caldwell reiterated his allegations against Officer Dana Sokol, specifically, that Officer

Sokol targeted him for “inappropriate pat-down searches” and “sexual rub-downs” that

constituted “sexual assault and [harassment].” (Amended Complaint ¶2; O.R. Item

72.) Caldwell suggested various conspiracies by Department personnel to cover up

evidence of his sexual harassment allegations, to refuse to investigate such allegations,

or to have him placed in restricted housing. Id. ¶¶2, 23-24, 28, 33. Finally, Caldwell

appeared to challenge the use of funds in his inmate account for medical expenses or

co-pays, which he characterized as “racketeering and extortion.” Id. ¶¶36, 38.

Caldwell characterized his action as sounding in mandamus;1 however, he

did not appear to identify any ministerial duty that must be performed. Id. ¶1. Rather,

1

“Mandamus is an extraordinary writ and is a remedy used to compel performance of a

ministerial act or a mandatory duty.” Dusman v. Board of Directors of Chambersburg Area School

(Footnote continued on next page…)

6

Caldwell pleaded a variety of alleged intentional torts for which he requested monetary

damages, which is consistent with this Court’s prior directive allowing “only tort

actions for money damages premised on common law trespass and other state claims

to proceed.” Caldwell I, slip op. at 17. As relief, Caldwell requested damages in the

amount of $750,000 from each of the Defendants. Id. ¶43.2

After filing an answer and new matter, and prevailing upon the above-

mentioned preliminary objections that narrowed the scope of Caldwell’s claims,

Defendants ultimately moved for judgment on the pleadings. See Pa.R.C.P. No. 1034.

Defendants contended that, even taking Caldwell’s averments as true, Caldwell’s

action should be dismissed because the applicable statute of limitations had expired;

because his claims were barred by res judicata or collateral estoppel; because

Defendants had no personal involvement in Caldwell’s asserted injuries; and because

Defendants were entitled to sovereign immunity. On February 27, 2020, the trial court

granted Defendants’ motion for judgment on the pleadings on the basis of sovereign

immunity. (Trial Ct. Order, 2/27/2020; O.R. Item 14.)

District, 113 A.3d 362, 368 (Pa. Cmwlth. 2015) (quoting Council of City of Philadelphia v. Street,

856 A.2d 893, 896 (Pa. Cmwlth. 2004)).

2

Specifically, Caldwell sought damages from “Officer Bonell, Hanies, Kissel, Smithbower,

Stoner, Dr. Robert J. Marsh, Holmsburg, Hoffman, Tresler, Booher, and Mr. Boone, Mr. Beck, Ms.

M. Walters, G. Wilson, S. Caprio, J. Echert, V. Watson, and C.O. I ‘Bierly’, also Frazer [and] Mr.

Scott Ellenberger.” (Amended Complaint ¶46.) Notably, this paragraph was not among those

remaining after the trial court struck Caldwell’s averments concerning actions occurring at SCI-

Benner Township. The Department has maintained that all of the listed individuals are employed at

SCI-Benner Township, not SCI-Greene. (Department’s New Matter ¶29; O.R. Item 51.)

7

Caldwell sought review in this Court.3 Caldwell raises a multitude of

challenges to the trial court’s dismissal of his complaint, and asserts that the trial court

committed a number of procedural errors or omissions. Caldwell argues that the trial

court erred in requiring him to amend his complaint to exclude claims asserted on

behalf of his wife; that sovereign immunity was inapplicable due to the willful nature

of the alleged misconduct; that sovereign immunity did not apply to any claims relating

to medical contractors; that sovereign immunity did not apply to any claims against

Department personnel in their individual capacities; that the trial court erred in denying

his prematurely filed motion for summary judgment; that the trial court erred in

denying discovery requests; and that the trial court erred in failing to grant his various

motions for default judgment.4

3

“Our standard of review over a decision sustaining a judgment on the pleadings requires us

to determine whether, on the facts averred, the law makes recovery impossible.” Cagey v.

Commonwealth, 179 A.3d 458, 463 (Pa. 2018) (citing Emerich v. Philadelphia Center for Human

Development, Inc., 720 A.2d 1032, 1034 (Pa. 1998)). Our Supreme Court has “explained that the

same principles apply to a judgment on the pleadings as apply to a preliminary objection in the nature

of a demurrer.” Id. at 463 n.2. “All material facts set forth in the complaint as well as all inferences

reasonably deducible therefrom are admitted as true for the purpose of this review. The question

presented by the demurrer is whether on the facts averred the law says with certainty that no recovery

is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be

resolved in favor of overruling it.” Id. (quoting Emerich, 720 A.2d at 1034).

4

Among the purported issues that Caldwell raises are assertions that the trial court “failed to

address the [Department’s] ‘penological interest’ in the sexual assault and battery of [Caldwell],” and

that the trial court “failed to protect [Caldwell and his family], in a [c]ivil lawsuit from the continuing

punishments and violations by the employees” of the Department. (Caldwell’s Br. at 5.) These are

not specific assertions of substantive or procedural error in the disposition of Caldwell’s tort claims,

but rather general grievances about the trial court’s refusal to grant him relief.

8

Amendment of Pleadings

We first address the trial court’s orders directing Caldwell to amend his

complaint, and striking the portions thereof which referred to actions occurring outside

Greene County. Throughout these proceedings, Caldwell continuously has advanced

allegations that Department personnel engaged in “slander and defamation” of his wife.

(See, e.g., Amended Complaint ¶¶7, 10, 14, 20, 29.5) Caldwell contends that the trial

court misunderstood his allegations as relating solely to torts committed against his

wife. In its August 17, 2018 order, the trial court found that Caldwell’s “complaint

does seem to be one where [Caldwell] is suing on behalf of another (his wife) and

[Caldwell] has failed to allege [] standing in the case.” (Trial Ct. Order, 8/17/2018, at

4.) Sustaining the Department’s preliminary objection, the trial court granted Caldwell

45 days to amend his complaint. The sole effect of the trial court’s August 17, 2018

order was to exclude any claims that Caldwell sought to advance on behalf of his wife,

which he lacked standing to pursue. Caldwell then filed an amended complaint, in

which he offered a wide array of allegations and legal conclusions, including those

recounted above. The trial court’s order placed no limitation upon Caldwell’s ability

to assert claims for which he could establish standing. As such, we find no error in the

trial court’s order directing amendment of Caldwell’s complaint.

Moreover, we find no error in the trial court’s exclusion of Caldwell’s

averments to the extent that they related to matters involving SCI-Benner Township,

rather than SCI-Greene. In Caldwell I, we held that the trial court possessed subject

matter jurisdiction over Caldwell’s tort claims that concerned conduct occurring at

SCI-Greene. Caldwell I, slip op. at 10. After our remand in Caldwell I, however,

5

The averments contained in these paragraphs all concerned actions that occurred at SCI-

Benner Township, not SCI-Greene, and thus were stricken from Caldwell’s complaint by the trial

court’s April 12, 2019 order.

9

Caldwell added a significant number of allegations plainly relating to conduct that

occurred at SCI-Benner Township. The trial court’s exclusion of such allegations, via

its April 12, 2019 order, reflects no more than the trial court’s compliance with this

Court’s remand order in Caldwell I to address the claims arising in Greene County.

Subject Matter Jurisdiction

Certain of Caldwell’s claims, specifically those alleging “racketeering and

extortion” against the Department and unspecified medical contractors, pertain only to

intra-prison administrative matters, and thus lay outside the subject matter jurisdiction

of the trial court. “Whether a court has subject matter jurisdiction over an action is a

fundamental issue of law which may be raised at any time in the course of the

proceedings, including by a reviewing court sua sponte.” Seitel Data, Ltd. v. Center

Township, 92 A.3d 851, 859 (Pa. Cmwlth. 2014) (quoting Commonwealth v. Locust

Township, 968 A.2d 1263, 1268-69 (Pa. 2009)). Setting aside Caldwell’s

characterizations of the Department’s actions as constituting the criminal offenses of

racketeering and extortion, which we need not accept as true,6 Caldwell asserts that

Department personnel have taken funds from his inmate account as co-payments for

medical services, under circumstances that, Caldwell alleges, violate the Department’s

policy. (Amended Complaint ¶¶32, 36.) However, this Court has held that the use of

inmate funds for medical co-payments implicates a matter of internal prison

administration that lies outside this Court’s original jurisdiction. See Portalatin v.

Department of Corrections, 979 A.2d 944, 949 (Pa. Cmwlth. 2009) (“Because any right

6

“Legal conclusions and general allegations of wrongdoing, without the requisite specific

factual averments or support, fail to meet the pleading standard.” McCulligan v. Pennsylvania State

Police, 123 A.3d 1136, 1141 (Pa. Cmwlth. 2015), aff’d, 135 A.3d 580 (Pa. 2016) (citing Lerner v.

Lerner, 954 A.2d 1229, 1235-36 (Pa. Super. 2008)).

10

[the inmate] may have to be free of co-payments is not of constitutional dimension, and

because any right [the inmate] has is limited by [Department] regulations and policy

statements, this Court does not enjoy original jurisdiction over the case.”) (citing

Bronson; Weaver v. Pennsylvania Department of Corrections, 829 A.2d 750 (Pa.

Cmwlth. 2003)). Moreover, “this Court does not have appellate jurisdiction over

inmate appeals from grievance tribunals.” Id. As we explained in Caldwell I, the

“limitations placed upon the judiciary to rule on issues of internal prison operations as

set forth in Bronson apply equally to the common pleas courts.” Caldwell I, slip op. at

10. Thus, to the extent that the trial court’s order disposed of Caldwell’s allegations

against the Department or any medical contractors based upon payment for medical

expenses, we affirm on the basis that the trial court lacked subject matter jurisdiction

over such claims.7

Excluding the averments concerning alleged conduct occurring outside

Greene County, as well as those concerning matters of internal prison administration,

we are left with Caldwell’s primary allegation throughout this litigation—that at some

point in the past, Officer Sokol touched Caldwell during a pat-down search in a manner

that amounted to “sexual assault.”

Sovereign Immunity

We turn to the trial court’s stated basis for dismissal—sovereign

immunity. The trial court set forth its reasoning in its February 27, 2020 order granting

judgment on the pleadings in favor of the Department. The trial court noted that “the

7

Moreover, although Caldwell asserts that the trial court erred in dismissing his action against

“medical contractors,” we note that Caldwell’s complaint does not clearly identify such contractors,

and his certificate of service attached to his amended complaint does not demonstrate that he effected

service on any third-party contractor. It is not clear that Caldwell made any medical contractor a

party to his lawsuit.

11

Commonwealth, and its officials and employees acting within the scope of their duties,

shall continue to enjoy sovereign immunity . . . and remain immune from suit except

as the General Assembly shall specifically waive the immunity.” 1 Pa.C.S. §2310. The

specific acts for which the General Assembly has waived sovereign immunity are listed

in 42 Pa.C.S. §8522(b).8 Because Caldwell’s cause of action did not fall within any of

the listed exceptions, the trial court reasoned that Caldwell could not proceed with an

action for damages against Defendants.

In challenging the trial court’s reasoning, Caldwell primarily asserts that

sovereign immunity is inapplicable under various statutory schemes. (Caldwell’s Br.

at 5-6.) Caldwell cites 42 Pa.C.S. §§8545-50, and particularly highlights section 8550,

which states that, in an “action against a local agency or employee thereof,” the defense

of official immunity shall not apply if the act of the employee is judicially determined

to constitute “a crime, actual fraud, actual malice or willful misconduct.” 42 Pa.C.S.

§8550 (emphasis added). Caldwell fails to recognize, however, that section 8550

applies to actions “against a local agency or employee thereof,” id., not to

Commonwealth parties such as the Department and its employees. The immunity of

Commonwealth parties falls under a distinct legal theory—known as sovereign

8

The General Assembly has waived sovereign immunity with regard to actions for damages

arising from negligent acts that fall into 10 categories: vehicle liability; medical-professional liability;

care, custody or control of personal property; Commonwealth real estate, highways and sidewalks;

potholes and other dangerous conditions; care, custody or control of animals; liquor store sales;

National Guard activities; toxoids and vaccines; and sexual abuse. 42 Pa.C.S. §8522(b). The final

exception, concerning sexual abuse, was recently added via the Act of November 26, 2019, P.L. 641,

and allows for actions for damages against the Commonwealth for conduct constituting certain

criminal offenses against persons under the age of 18, “if the injuries to the plaintiff were caused by

actions or omissions of the Commonwealth party which constitute negligence.” 42 Pa.C.S.

§8522(b)(10). Caldwell does not refer to section 8522(b)(10). Regardless, despite Caldwell’s

allegations of sexual assault, this provision does not apply, both because Caldwell is not a minor and

because he has not pleaded a negligence action.

12

immunity—and our statutes provide for it separately. See 42 Pa.C.S. §§8501-02, 8521-

27. Caldwell further argues that sovereign immunity is inapplicable under the

Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§2000cc-

2000cc-5, and the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101-12213,

but the relevance of these federal enactments to the most recent iteration of Caldwell’s

complaint is not apparent.

The doctrine of sovereign immunity is well-established in this

Commonwealth. As we have explained:

Sovereign immunity acts as a bar to suits against

Commonwealth parties, including its officials and employees

acting within the scope of their duties. 1 Pa.C.S. §2310.

Establishing a limited list of exceptions to immunity, the

General Assembly adopted what is commonly referred to as

the Sovereign Immunity Act, 42 Pa.C.S. §§8501-8502, 8521-

8527. Section 8522 of the Sovereign Immunity Act waives

“immunity as a bar to an action against Commonwealth

parties, for damages arising out of a negligent act where the

damages would be recoverable under the common law or a

statute creating a cause of action if the injury [was] caused

by a person not having available the defense of sovereign

immunity,” for specifically enumerated categories of acts.

42 Pa.C.S. §8522. A “Commonwealth party” is defined in

[s]ection 8501 as “[a] Commonwealth agency and any

employee thereof, but only with respect to an act within the

scope of his office or employment.” 42 Pa.C.S. §8501. Thus,

when an employee of a Commonwealth agency, such as a

[Department] employee, is acting within the scope of his or

her duties, the employee is shielded by the doctrine of

sovereign immunity from liability for tort claims arising from

negligent acts that do not fall within the statutory exceptions

listed in [s]ection 8522(b) of the Sovereign Immunity Act. 1

Pa. C.S. §2310; 42 Pa.C.S. § 8522(a)-(b). Sovereign

immunity is not waived for intentional acts committed by a

Commonwealth employee acting within the scope of his or

her employment. La Frankie v. Miklich, [618 A.2d 1145,

1149 (Pa. Cmwlth. 1992)].

13

Paluch v. Pennsylvania Department of Corrections, 175 A.3d 433, 437-38 (Pa.

Cmwlth. 2017).

The trial court was correct that Caldwell has not pleaded a cause of action

in negligence, and has not asserted a negligent act that would fall within any of the

exceptions listed in 42 Pa.C.S. §8522(b). Rather, Caldwell has asserted intentional acts

that, he contends, give rise to liability in tort. Thus, to the extent that the trial court

reasoned that Caldwell’s action does not fall into a specific category for which the

General Assembly has waived sovereign immunity, we agree.

That does not end the analysis, however, because the trial court did not

acknowledge that Commonwealth employees enjoy sovereign immunity only when

“acting within the scope of their duties . . . .” 1 Pa.C.S. §2310. That is, not all

intentional torts against the Commonwealth and its officials and employees are

categorically barred. In Minor v. Kraynak, 155 A.3d 114 (Pa. Cmwlth. 2017), for

instance, this Court held that common law assault and battery claims against

Department personnel were not barred by sovereign immunity, because the violent

beating that the plaintiff pleaded in that case fell outside the scope of the defendants’

duties. Id. at 124.

The difficulty for Caldwell, however, is that his pleadings consist almost

entirely of legal conclusions and summary allegations of wrongdoing. As the trial court

correctly stated, a motion for judgment on the pleadings “is in the nature of a demurrer;

all of the opposing party’s well-pleaded allegations are viewed as true but only those

facts specifically admitted by him may be considered against him.” (Trial Ct. Order,

2/27/2020, at 4 (quoting Kairns v. Tony Vitale Fireworks Corporation, 259 A.2d 687,

688 (Pa. 1969)) (emphasis added). The entirety of Caldwell’s averment concerning

Officer Sokol is that Officer Sokol “targeted the plaintiff Mr. [C]aldwell in his sexual

14

assault and harament [sic], Sexual Rub-downs, by selecting the plaintiff out from other

inmates for the inappropriate pat-down searches.” (Amended Complaint ¶2 (internal

quotation marks omitted).) Caldwell elsewhere simply refers to Officer Sokol’s

conduct as “sexual assault.”

Pennsylvania is a fact-pleading jurisdiction. See Pa.R.C.P. No. 1019(a).

A plaintiff is required “to plead all the facts that he must prove in order to achieve

recovery on the alleged cause of action.” McCulligan, 123 A.3d at 1141 (quoting

Commonwealth ex rel. Pappert v. TAP Pharmaceutical Products, Inc., 868 A.2d 624,

636 (Pa. Cmwlth. 2005)). “Legal conclusions and general allegations of wrongdoing,

without the requisite specific factual averments or support, fail to meet the pleading

standard.” Id. (citing Lerner, 954 A.2d at 1235-36). Moreover, in considering a

demurrer, “this Court is not required to accept as true legal conclusions, unwarranted

factual inferences, allegations that constitute argument, or mere opinion.”

Commonwealth v. Percudani, 825 A.2d 743, 745 (Pa. Cmwlth. 2003).

In setting forth his allegation against Officer Sokol, Caldwell included no

factual details. He did not indicate a specific time or location at which the alleged

assault or assaults occurred. He did not plead that Officer Sokol touched him in any

particular place on his body, with any particular degree of force, or for any particular

duration. Rather, Caldwell merely pleaded that Officer Sokol had subjected him to pat-

down searches, which Caldwell viewed as “inappropriate” and amounting to “sexual

assault.” These latter characterizations, however, are plainly legal conclusions and

generalized assertions of wrongdoing, which lack the requisite factual support.

McCulligan, 123 A.3d at 1141. As such, we need not accept these averments as true

for purposes of review. This appreciably contrasts with decisions such as Minor,

15

wherein the plaintiff provided a detailed factual account of the injury giving rise to his

claim, rather than mere legal conclusions. See Minor, 155 A.3d at 116-18.

In determining whether asserted conduct falls within the scope of a

Commonwealth employee’s duties for purposes of sovereign immunity, we have

explained:

[c]onduct of an employee is within the scope of employment

if it is of a kind and nature that the employee is employed to

perform; it occurs substantially within the authorized time

and space limits; it is actuated, at least in part, by a purpose

to serve the employer; and if force is intentionally used by

the employee against another; it is not unexpected by the

employer.

Minor, 155 A.3d at 122 (quoting Natt v. Labar, 543 A.2d 223, 225 (Pa. Cmwlth. 1988)).

Caldwell has not addressed this standard. Excluding Caldwell’s legal conclusions and

conclusory assertions of wrongdoing, we cannot say that Caldwell has pleaded facts

demonstrating that Officer Sokol or any other Defendant has engaged in tortious

conduct outside the scope of a Department employee’s duties. As such, we find no

basis to disturb the trial court’s ruling with respect to sovereign immunity.

Motion for Summary Judgment

Caldwell further asserts that the trial court erred in dismissing his motion

for summary judgment as prematurely filed. Caldwell is mistaken. Caldwell filed this

motion via first-class mailing from prison on November 13, 2017, and it was docketed

on November 20, 2017. (O.R. Item 126.) At that time, Defendants’ preliminary

objections, filed March 29, 2017, remained outstanding. (O.R. Item 154.) Rule 1035.2

of the Pennsylvania Rules of Civil Procedure provides that a party may move for

summary judgment “[a]fter the relevant pleadings are closed, but within such time as

16

not to unreasonably delay trial . . . .” Pa.R.C.P. No. 1035.2 (emphasis added).

Preliminary objections are relevant pleadings. See Pa.R.C.P. No. 1017(a)(4). Plainly,

the relevant pleadings were not closed at the time that Caldwell filed his motion, and

the trial court did not err in denying it as premature.

Discovery Motions

Caldwell additionally argues that the trial court erred in denying various

requests for subpoenas under Pa.R.C.P. No. 4009.1. (Caldwell’s Br. at 11-12.) The

trial court denied Caldwell’s request on October 5, 2018, noting that Caldwell’s

“request for the issuance of subpoenas is premature as no evidentiary hearing has been

scheduled.” (Trial Ct. Order, 10/5/2018, at 2; O.R. Item 75.) The trial court added that

Caldwell’s request appeared to seek records going back to 2001. Id. Although the

court denied Caldwell’s request, it did so without prejudice, stating that “this may be

material that may be requested in the discovery phase.” Id.

“Discovery matters are within the discretion of the trial court and the

appellate court employs an abuse of discretion standard of review.” Luckett v. Blaine,

850 A.2d 811, 818 (Pa. Cmwlth. 2004) (citing Luszczynski v. Bradley, 729 A.2d 83, 87

(Pa. Super. 1999)). We find no abuse of discretion in the trial court’s rationale. “Every

court has the inherent power to schedule disposition of the cases on its docket to

advance a fair and efficient adjudication. Incidental to this power is the power to stay

proceedings, including discovery.” Id. at 819. In Luckett, certain defendants to a pro

se prisoner’s complaint had filed preliminary objections in the nature of a demurrer,

and the trial court stayed discovery, including the plaintiff’s request for production of

“documents and things,” similar to Caldwell’s. We held that “the interests of justice

were served by permitting [the defendants] the opportunity to show that the claims

17

raised in the [c]omplaint failed to state a cause of action before burdening them with

discovery demands.” Id. “Where the defendant has demurred to the complaint,” we

explained, “it cannot be determined whether the discovery sought by the plaintiff is

even relevant.” Id. Therefore, we found no abuse of discretion in the trial court’s

“refusal to permit discovery by any party before ruling on the preliminary objections

of defendants.” Id. The same rationale applies here, as the trial court wished to resolve

the matters arising on preliminary objections before burdening Defendants with

discovery requests. The trial court, moreover, expressly stated that it would revisit the

matter during the discovery phase of the litigation. We find no abuse of discretion in

the trial court’s decision.

Motions for Default Judgment

Caldwell filed numerous motions throughout this litigation requesting the

entry of a default judgment against Defendants. The issue appears to have revolved

around Defendants’ repeated contention that Caldwell had not served original process

upon them, and that they were thus unaware that Caldwell had filed any pleadings

requiring response. The trial court ultimately ordered the Prothonotary and the Sheriff

of Greene County to make service on the Defendants on March 8, 2017. (O.R. Item

164.) Defendants nonetheless filed preliminary objections arguing, inter alia, that they

had not been served with original process. The trial court overruled this preliminary

objection in its August 17, 2018 order, finding the argument “disingenuous” or that

Defendants had “otherwise waived any claim with regard to lack of personal

jurisdiction or service of original process.” (Trial Ct. Order, 8/17/2018, at 2-3.)

Caldwell references the trial court’s determination that Defendants

“waived” their objection based upon improper service, and he suggests that this entitled

18

him to a default judgment. (Caldwell’s Br. at 7-8.) Caldwell is incorrect. The relevant

portion of the trial court’s order merely overruled a preliminary objection advanced by

Defendants. It did not determine that Caldwell is entitled to a default judgment.

Beyond Caldwell’s argument concerning Defendants’ “waiver,” he does

not develop any argument in his brief as to why a default judgment was appropriate.

He does not identify any relevant dates of filings, nor does he cite to any authority on

the matter. We conclude, therefore, that this claim is waived for failure to develop a

meaningful argument. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)

(“[W]here an appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful fashion capable

of review, that claim is waived.”).

The order of the trial court is affirmed.

19

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clay Caldwell, :

Appellant :

: No. 365 C.D. 2020

v. :

:

The Department of Corrections, :

Jeffrey A. Beard, Louis Folino, Officer :

Ma Price, Officer Gagnon, Officer :

Norman, Officer Lukachyk, Officer :

J. Miller, Officer Topka and :

Officer Sokol :

PER CURIAM

ORDER

AND NOW, this 31st day of March, 2021, the order of the Court of

Common Pleas of Greene County is AFFIRMED.