R. Vasquez v. CO Dorta

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ramon Vasquez, :

Appellant :

:

v. :

:

CO Dorta, CO Houk, Treatment : No. 1468 C.D. 2021

Counselor Brenna, and Jessica Collins : Submitted: November 4, 2022

OPINION NOT REPORTED

MEMORANDUM OPINION

PER CURIAM FILED: April 11, 2023

Ramon Vasquez (Vasquez), pro se, appeals from the November 22,

2021 order of the Berks County Court of Common Pleas (trial court) sustaining the

preliminary objections to his amended complaint and dismissing the amended

complaint with prejudice. Upon review, we affirm.

I. Background

Vasquez was incarcerated in the Berks County Jail System (county jail)

in or around January 2019. See Original Record (O.R.), Amended Complaint,

7/28/21 at 3, ¶ 1. In June 2020, Vazquez filed a complaint levying a constitutional

claim of interference with access to courts and tort claims of negligence, intentional

infliction of emotional distress, and slander against various county jail employees.

See Complaint, 6/22/20 at 1-11. In November 2020, the named defendants

(hereinafter collectively referred to as Appellees) filed preliminary objections to

Vasquez’s complaint. See O.R., Trial Ct. Op., 3/18/22 at 3.

In July 2021, Vasquez filed an amended complaint. See O.R.,

Amended Complaint, 7/28/21. Count I, titled “Right to Assistance,” asserted that

Jessica Collins (Collins) and Brenna Delp (Delp)1 violated Vasquez’s right of access

to the courts by “willfully intend[ing] to frustrate and impede” his ability to attack

one of his criminal convictions.2 Id. at 9-10, ¶ 24. Vasquez alleged that Collins and

Delp intentionally “obstructed” his appeal to the United States Supreme Court by

failing to fulfill his request for the type of “heavy duty” stapler necessary to comply

with applicable procedural rules, thereby resulting in the denial of his petition for

certiorari. Id. at 5-6 & 10, ¶¶ 12-14 & 24.

In Count II, Vasquez alleged that Collins and Delp displayed a “willful,

careless, or reckless disregard” of the requirements for Vasquez’s appeal, which

resulted in the denial of his petition for certiorari by the United States Supreme

Court. O.R., Amended Complaint, 7/28/21 at 10, ¶ 25. Vasquez also contended that

Delp “willfully, carelessly, or recklessly disregard[ed]” an “oral agreement of

confidentiality,” causing Vasquez to develop a “physical manifestation of severe

mental suffering” and incur an “unreasonable risk of harm[.]” Id. at 10, ¶ 26.3

1

Vasquez alleged that Brenna Delp’s (Delp) responsibilities as a treatment counselor with

the Berks County Jail System’s (county jail) Delta Unit included facilitating inmates’ use of the

law library department. Original Record (O.R.), Amended Complaint, 7/28/21 at 2-3, ¶ 2.

Vasquez further alleged that Jessica Collins (Collins) served as Delp’s supervisor, and that Dorta

and Houk worked as county jail correctional officers. Id.

2

The section of Vasquez’s amended complaint titled “Relevant Facts” contains Vasquez’s

averment that Delp agreed to assist Vasquez in the preparation of a petition for certiorari

pertaining to a conviction for “flight to avoid apprehension,” a second-degree misdemeanor. O.R.,

Amended Complaint, 7/28/21 at 5, ¶ 12.

3

In the amended complaint, Vasquez averred that he requested assistance from Delp in

making copies of a civil action he intended to file in federal court regarding a sexual assault he

allegedly suffered in another institution. See O.R., Amended Complaint, 7/28/21 at 3, ¶ 3. Despite

agreeing to maintain confidentiality, Delp nevertheless shared the sensitive contents of the

2

Additionally, Vasquez maintained that corrections officers Dorta and Houk

exhibited a “willful, careless, or reckless disregard” for his health and safety by

repeatedly making derogatory comments regarding his sexual orientation, resulting

in a “physical manifestation of severe mental suffering” and an “unreasonable risk

of harm.”4 Id. at 10-11, ¶ 27. Vasquez asserted that set of allegations “constituted

the [t]ort of [n]egligence under Pennsylvania law.” Id. at 10, ¶ 26; see also id. at 10-

11, ¶¶ 25 & 27.

In Count III, Vasquez claimed that Dorta and Houk committed the tort

of intentional infliction of emotional distress, alleging that they “intended, recklessly

disregarded, or knew with substantial certainty” that referring to Vasquez as a “she”

and a “faggot,” in addition to “other derogatory comments,” would “bring about

complaint with Dorta and Houk. Id., ¶¶ 3-7. Vasquez filed a grievance against Dorta and Delp.

Id. at 4, ¶ 9. However, Vasquez was informed that a review of video footage did not corroborate

his claim that Delp shared Vasquez’s legal documents. Id. at 5, ¶¶ 9-10. Vasquez appealed the

grievance determination but his allegations were ruled unfounded. Id., ¶ 11.

4

Vasquez also alleged that Houk knew Vasquez was a sexual assault survivor, yet Houk

“repeatedly” and “constant[ly”] referred to Vasquez as a “she” or a “faggot” in the presence of

other inmates. O.R., Amended Complaint, 7/28/21 at 7-8, ¶¶ 15, 17 & 19. Houk’s comments

allegedly resulted in “constant heckling” and hostility from other inmates which, in combination

with time spent in solitary confinement, caused Vasquez to suffer humiliation, shame, anxiety,

nausea, headaches and flashbacks. Id. at 7 & 9, ¶¶ 16 & 21. Vasquez filed a grievance and a

Prison Rape Elimination Act, 34 U.S.C. §§ 30301-30309, complaint against Houk, both of which

were denied. Id. at 8, ¶¶ 19-20. Vasquez appealed the denial of his grievance but was

unsuccessful. Id. at 9, ¶ 21.

Regarding Vasquez’s averment that he was a survivor of sexual assault, he alleged such

assault by his cellmate as the basis of his claim of self-defense in his criminal trial on charges of

attempted murder, aggravated assault, and simple assault after he attacked his cellmate; that claim

of self-defense proved unsuccessful. See Commonwealth v. Vasquez (Pa. Super., No. 828 MDA

2020, filed June 23, 2021), appeal denied, 272 A.3d 951 (Pa. 2022). Vasquez also claimed his

cellmate had repeatedly put psychiatric medicines in Vasquez’s food and then sexually assaulted

him as he slept, a claim which a federal court in a subsequent related habeas corpus proceeding

characterized as “grossly implausible” and “so unlikely that it certainly cast doubt upon his claim

that [his cellmate] assaulted him on the day of [Vasquez’s] crime.” Vasquez v. Rivello, No. 22-

2379, 2022 U.S. Dist. LEXIS 224693, at *21 (E.D. Pa. Oct. 17, 2022).

3

humiliation or shame for being a sexual assault victim.” Id. at 11, ¶ 28. Vasquez

asserted that the actions of Dorta and Houk were “extreme, outrageous, and

intolerable in civilized society,” and that they resulted in “a physical manifestation

of severe mental and emotional harm that required medical attention.” Id.

In Count IV,5 Vasquez alleged that Houk committed slander, because

he “had actual knowledge,” or “failed to exercise the standard of care a reasonable

prudent person would in a similar situation” or “recklessly disregarded that the false

allegations about Vasquez and sexual misconducts were untrue,” thereby “caus[ing]

special harm to Vasquez[’]s reputation.” Id. at 11, ¶ 29.

Appellees filed preliminary objections to the amended complaint. See

O.R., Preliminary Objections to Amended Complaint, 8/3/2021. In November 2021,

the trial court sustained the preliminary objections and dismissed the amended

complaint with prejudice. See O.R., Trial Ct. Order, 11/22/21.

In March 2022, the trial court issued an opinion in support of its

November 22, 2021 order. The court deemed meritless Vasquez’s “Right to

Assistance” claim, pointing out that the county jail had informed Vasquez that it did

not have the ability to bind documents and that, regardless, his brief was too thick to

staple. See O.R., Trial Ct. Op., 3/18/22 at 4 (citing Original Complaint, 6/22/20,

Exs. 5 & 6).6 Further, the trial court determined that “it [was] pure speculation on

5

Vasquez erroneously labeled the fourth count of his amended compliant “Count V.” See

O.R., Amended Complaint, 7/28/21 at 11.

6

The trial court observed that Vasquez’s amended complaint was “almost identical [to his

original complaint] with no different facts or allegations,” yet lacked the exhibits attached to the

original complaint. O.R., Trial Ct. Op., 3/18/22 at 1-2. Concluding that Vasquez omitted these

exhibits in an attempt “to eliminate the [p]reliminary [o]bjections regarding the original

complaint,” the court explained that it still considered the exhibits on the basis that they were “of

record and belie[d] the allegations in both complaints.” Id. at 3-4 (citing Jenkins v. Cnty. of

Schuylkill, 658 A.2d 380, 383 (Pa. Super. 1995) (holding that courts “are not bound to accept as

4

[Vasquez’s] part that the denial [of his petition for writ of certiorari] was due to []

improper binding,” as the United States Supreme Court did not provide a reason in

support of its denial. Id. at 5 (citing Original Complaint, 6/22/20, Ex. 8). Moreover,

the trial court noted that Vasquez’s petition for certiorari was not rejected as

noncompliant, as it was filed and docketed. See id.; O.R., Defendants’ Reply Br. in

Support of Preliminary Objections, 10/25/21, Ex. A.

The trial court also concluded that Vasquez’s negligence claim was

meritless, as he failed to plead an exception to immunity under Section 8542 of what

is commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act),7

42 Pa.C.S. § 8542. O.R., Trial Ct. Op., 3/18/22 at 5-6. The trial court rejected

Vasquez’s assertion in his reply brief that Delp acted with “actual malice” and/or

“willful misconduct,” as “those terms and actions are associated with intentional

torts, which plaintiff did not plead” in the context of his negligence claim. Id. at 6.

Further, the trial court deemed meritless Vasquez’s intentional

infliction of emotional distress claim. O.R., Trial Ct. Op., 3/18/22 at 6. The court

concluded Vasquez’s allegation that Dorta and Houk were aware he was a sexual

assault survivor failed to plead knowledge of any particular susceptibility to

emotional distress. Id. at 7. The court also reasoned that “the mere fact that a

perpetrator knows that the recipient of the action will regard the conduct as insulting

or have his feelings hurt is not enough” to prevail in a claim for the intentional

true any averments in a complaint which are in conflict with exhibits which are attached to the

complaint”). We note that an amended complaint withdraws the original complaint, such that

anything from the first complaint that is not incorporated in the amended complaint by reference

must be deemed withdrawn. Christianson v. Ely, 838 A.2d 630, 641 (Pa. 2003) (citations omitted).

Accordingly, this opinion does not rely on the attachments to Vasquez’s original complaint or on

the portions of the trial court’s opinion described herein that relied on those attachments.

7

42 Pa.C.S. §§ 8541-42.

5

infliction of emotional distress. Id. (citing Weinstein v. Bullick, 827 F. Supp. 1193

(E.D. Pa. 1993)). Moreover, the court inferred from Vasquez’s increased level of

confinement in the Delta Unit that he likely had “issues” with other inmates and that

“he did not appear to be a fragile individual.” Id. at 6-7.

Lastly, the trial court concluded that Vasquez’s claim of slander against

Houk was barred by an unspecified form of “immunity,” reasoning that

“Commonwealth personnel are immune from liability for intentional torts when

acting in the scope of their employment,” and that “[t]his immunity also covers local

agencies, including [county jail] staff.” O.R., Trial Ct. Op., 3/18/22 at 7 (citing

Brown v. Clark, 184 A.3d 1028, 1029 (Pa. Cmwlth. 2018)). Further, the trial court

determined that Vasquez failed to demonstrate that the allegedly defamatory

statement harmed his reputation in the prison community or deterred third persons

from associating or dealing with him, as Vasquez resided among “similar people

who were accustomed to worse behavior.” Id. at 7-8 (citing Kryeski v. Schott Glass

Techs., Inc., 626 A.2d 595, 600 (Pa. Super. 1993)).

Vasquez thereafter filed a notice of appeal with this Court.

II. Discussion

On appeal, Vasquez argues that the trial court erred in sustaining the

Appellee’s preliminary objections.8 For the following reasons, we affirm the court’s

8

Our scope of review is limited to a determination of whether the trial court abused its

discretion or committed an error of law, or whether constitutional rights were violated. Chester

Upland Sch. Dist. v. Yesavage, 653 A.2d 1319, 1321 (Pa. Cmwlth. 1994)). Further, “[i]n an appeal

challenging the sustaining of preliminary objections in the nature of a demurrer, we must determine

whether on the facts averred, the law states with certainty that no recovery is possible.” Id. Thus,

“[t]he test for preliminary objections is whether it is clear and free from doubt from all of the facts

pleaded that the pleader will be unable to prove facts legally sufficient to establish a right to relief.”

Id. “However, the Court need not accept as true any expressions of opinion, argumentative

6

dismissal of Vasquez’s amended complaint, albeit in part on different grounds from

those on which the trial court relied.

A. Access to Courts

Vasquez contends that Delp and Collins violated his right of access to

the courts by “cho[osing] to misinform [him] about their ability to help” provide the

type of “heavy duty” stapler Vasquez alleges was necessary to prepare his petition

for certiorari in accordance with the rules of the United States Supreme Court. See

Vasquez’s Br. at 24-26 (citing Lewis v. Casey, 518 U.S. 343, 351 (1996)). Vasquez

asserts that his inability to properly bind his petition resulted in actual injury when

the Court denied his petition. Id. at 27-29 (citing Lewis). Vasquez maintains that

the claim impeded by Appellees was nonfrivolous and that he “informed both Delp

and Collins that he was attacking his criminal conviction and proceeding pro se.”

Id. at 27-28 (citing Lewis).

“Under the First and Fourteenth Amendments, prisoners retain a right

of access to the courts.”9 Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008)

(citing Lewis, 518 U.S. at 346). This Court has explained that

in order to state a cognizable claim for violation of the

right to access to the courts, a prisoner must allege and

offer proof that he suffered an “actual injury” to court

access . . . . Oliver v. Fauver, 118 F.3d 175, 177-78 (3d

allegations or unwarranted inferences from the facts.” Hackett v. Horn, 751 A.2d 272, 274 (Pa.

Cmwlth. 2000).

9

“[T]he right of access to the courts is an aspect of the First Amendment right to petition

the Government for redress of grievances.” Bill Johnson’s Rests., Inc. v. Nat’l Lab. Rels. Bd., 461

U.S. 731, 741 (1983); see also U.S. Const. amend. I. Further, “the right of access to the courts is

fundamental as guaranteed by the Fourteenth Amendment.” Zilich v. Lucht, 981 F.2d 694, 694-

95 (3d Cir. 1992) (citing Bounds v. Smith, 430 U.S. 817, 828 (1977)); see also U.S. Const. amend.

XIV.

7

Cir. 1997). The Supreme Court has defined actual injury

as the loss or rejection of a nonfrivolous legal claim

regarding [] sentencing or the conditions of

confinement. Lewis[.]

Hackett v. Horn, 751 A.2d 272, 275-76 (Pa. Cmwlth. 2000). “[T]his Court also

recognizes that due process requires that an inmate must be afforded access to the

courts in order to challenge unlawful convictions and violations of his constitutional

rights.” Id. at 275 (additional citations omitted). Further, “[t]he complaint must

describe the underlying arguable claim well enough to show that it is ‘more than

mere hope,’ and it must describe the ‘lost remedy.’” Monroe v. Beard, 536 F.3d

198, 205-06 (3d Cir. 2008) (quoting Christopher v. Harbury, 536 U.S. 403, 416-17

(2002)); see also Stover v. Progress Cmty. Corr. Ctr. (Pa. Cmwlth., No. 311 M.D.

2015, filed June 8, 2016), slip op. at 9 (quoting Christopher, 536 U.S. at 415) (“It

follows that the underlying cause of action . . . is an element that must be described

in the complaint, just as much as allegations must describe the official acts

frustrating the litigation.”).

Here, the trial court dismissed Vasquez’s access to courts claim on the

basis that it was “pure speculation on [his] part” that the United States Supreme

Court denied his petition for writ of certiorari due to improper binding where the

Court provided no reason in support of its order. O.R., Trial Ct. Op., 3/18/22 at 5.

Thus, the trial court essentially dismissed Vasquez’s claim on the basis that he failed

to establish “actual injury” to court access. Hackett, 751 A.2d at 275. As noted

above, “[t]he Supreme Court has defined actual injury as the loss or rejection of a

nonfrivolous legal claim . . . .” Id. (emphasis added). Thus, “[i]n order to survive

dismissal of a complaint, a prisoner [alleging unconstitutional interference with

access to the courts] must describe [the] underlying claim and explain why it

possesses arguable merit.” Nifas v. Sroka (Pa. Cmwlth., No. 422 C.D. 2016, filed

8

July 29, 2016), slip op. at 7 (citing Christopher, 536 U.S. at 416-17); see also Young

v. Wetzel (Pa. Cmwlth., No. 792 C.D. 2020, filed March 16, 2021), slip op. at 8-9

(additional citations omitted) (explaining that “[l]ike any other element of an access

[to courts] claim, the underlying cause of action and its lost remedy must be

addressed by allegations in the complaint sufficient to give fair notice to a

defendant”).

Here, Vasquez simply alleged that his petition for writ of certiorari

filed with the United States Supreme Court pertained to a second-degree

misdemeanor “flight to avoid apprehension” conviction. See O.R., Amended

Complaint, 7/28/21 at 5, ¶ 12. Vasquez failed to elaborate further or to “describe

the underlying arguable claim well enough to show that it is ‘more than mere hope.’”

Monroe, 536 F.3d at 205-06 (quoting Christopher, 536 U.S. at 416-17). As

acknowledged by the trial court, whether or not the United States Supreme Court

denied Vasquez’s petition for writ of certiorari due to improper binding is “pure

speculation.” O.R., Trial Ct. Op., 3/18/22 at 5. We, therefore, affirm the trial court’s

dismissal of Vasquez’s access to courts claim on the alternative basis10 that he failed

to demonstrate that the underlying claim contained in his petition for writ of

certiorari possessed arguable merit. See Hackett, 751 A.2d at 275-76; Nifas, slip

op. at 7 (affirming dismissal of access to courts claim, where inmate did not

“provide[] any factual detail in his complaint regarding what legal claim he lost, or

was deprived of pursing, as a result of the confiscation of his legal materials,” failing

even to “discuss the general nature of his legal claim”); see also Young, slip op. at

8-9 (disagreeing with the trial court’s holding that inmate’s failure to exhaust

10

“This Court may affirm on grounds different [from] those relied upon by the court or

agency below if such grounds for affirmance exist.” Smart Commc’ns Holding, Inc. v. Wishnefsky,

240 A.3d 1014, 1016 n.2 (Pa. Cmwlth. 2020) (additional citations omitted)).

9

administrative remedies warranted dismissal of his access to courts claim, but

affirming on the alternative basis that the inmate “[did] not identify specifically a

nonfrivolous, arguable underlying claim”).

B. Negligence

Vasquez contends that Delp and Collins committed negligence when

they “made the choice to lie to him[] about their ability to fulfill a particular service,”

thereby causing him to “los[e] his right to file a sufficient petition to the United

States Supreme Court, which later denied review.” Vasquez’s Br. at 29-30. Vasquez

also asserts that Delp and Collins owed him a duty to reasonably warn him of any

potential harm, because their role in “facilitat[ing] the law library department for

segregated inmates” and his dependence on the Commonwealth as an

institutionalized individual gave rise to a “special relationship.” Id. at 29-30.

Further, Vasquez alleges that Delp negligently shared “sensitive personal

information,” which she had agreed to keep confidential, “with her co-workers for

pure gossip[] purposes.” Id. at 32. Vasquez maintains that “Delp[’]s actions were a

substantial factor that triggered Dorta to berate Vasquez in front of others, which

then incited inmates to heckle him for months about his personal information,” and

that “Houk kept the pot stirring with his comments to and about Vasquez.” Id. at

33. Moreover, Vasquez contends that the trial court erred in determining that

immunity barred his negligence claims, because Appellees committed willful

misconduct. See id. at 30-32 (citing Section 8550 of the Tort Claims Act, 42 Pa.C.S.

§ 8550).11

11

Section 8550 of the Tort Claims Act provides that

10

Pursuant to Section 8545 of the Tort Claims Act,

[a]n employee of a local agency is liable for civil damages

on account of any injury to a person or property caused by

acts of the employee which are within the scope of his

office or duties only to the same extent as his employing

local agency and subject to the limitations imposed by this

subchapter.

42 Pa.C.S. § 8545. Section 8542 of the Tort Claims Act establishes exceptions to

governmental immunity for “injury [] caused by the negligent acts of [a] local agency

or an employee thereof acting within the scope of his office or duties with respect

to” the following categories of acts: (1) vehicle liability; (2) care custody or control

of personal property; (3) real property; (4) trees, traffic controls and street lighting;

(5) utility service facilities; (6) streets; (7) sidewalks; (8) care custody or control of

animals; and (9) sexual abuse. Section 8542(a), (b) of the Tort Claims Act, 42

Pa.C.S. § 8542(a), (b).

Here, Vasquez alleged the violation of a duty of care with respect to his

appeal to the United States Supreme Court, an oral agreement of confidentiality, and

his physical and mental welfare as a county jail inmate. See O.R., Amended

Complaint, 7/28/21 at 10-11 ¶¶ 25-27. None of these theories of negligence

implicates acts which fall within the limited waiver of immunity for employees of

local agencies. See Section 8542(b) of the Tort Claims Act, 42 Pa.C.S. § 8542(b).

[i]n 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 sections 8545

(relating to official liability generally), 8546 (relating to defense of

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

to limitation on damages) shall not apply.

42 Pa.C.S. § 8550.

11

We therefore agree with the trial court that official immunity bars Vasquez’s

negligence claims against Appellees.12 See 42 Pa.C.S. §§ 8542, 8545; see also Diaz

v. Houck, 632 A.2d 1081, 1085-86 (Pa. Cmwlth. 1993) (holding that official

immunity barred arrestee’s negligence claim against police officers, as none of the

exceptions to immunity set forth in Section 8542(b) of the Tort Claims Act, 42

Pa.C.S. § 8542(b), were applicable); Higgins v. Borough of Taylor, 551 F. Supp. 2d

370, 378 (M.D. Pa. 2008) (granting defendants’ motion to dismiss arrestee’s state

law negligence claim against municipality, where the alleged negligence did not fall

into any of the specifically enumerated exceptions to immunity).

We further agree with the trial court that Vasquez cannot overcome

Appellees’ immunity by alleging willful misconduct in the context of his negligence

claims. See Section 8542(a)(2) of the Tort Claims Act, 42 Pa.C.S. § 8542(a)(2)

(providing that a “‘negligent act’ shall not include acts or conduct which constitutes

a crime, actual fraud, actual malice or willful misconduct”); see also Gray v. Great

Valley Sch. Dist., 102 F. Supp. 3d 671, 681 (E.D. Pa. 2015) (citation and quotation

marks omitted) (holding that plaintiff “[could not] show ‘willful misconduct,’

because a [negligent infliction of emotional distress] claim, by definition, is

predicated on negligence and not intent, which contradicts the requirement of willful

misconduct contained in [Section] 8542(b)” of the Tort Claims Act, 42 Pa.C.S. §

8542(b)); Heckensweiler v. McLaughlin, 517 F. Supp. 2d 707, 719-20 (E.D. Pa.

2007) (holding that township chief of police was immune from claims of negligence

12

Appellees qualify as employees of a local agency for purposes of official immunity. See,

e.g., King v. Breach, 540 A.2d 976, 977 & 981 (Pa. Cmwlth. 1988) (holding that negligence claims

levied against county prison warden and administrator of county mental health and mental

retardation program were barred by official immunity pursuant to Section 8545 of the Tort Claims

Act, 42 Pa.C.S. § 8545); see also Section 8501 of the Tort Claims Act, 42 Pa.C.S. § 8501 (defining

the term “[l]ocal agency” as “[a] government unit other than the Commonwealth government”).

12

and negligent infliction of emotional distress pursuant to Section 8545 of the Tort

Claims Act, 42 Pa.C.S. § 8545, despite allegations of willful misconduct).

Moreover, to the extent the assertions in the context of the negligence

claim may be construed as alleging intentional torts arising from willful misconduct,

Vasquez fails to plead a sufficient claim. This Court has held that

[f]or purposes of Section 8550 of the Tort Claims Act, [42

Pa.C.S. § 8550,] “willful misconduct” means “willful

misconduct aforethought” and is synonymous with

“intentional tort.” Renk v. City of Pittsburgh, . . . 641 A.2d

289 ([Pa.] 1994); Kuzel v. Krause, 658 A.2d 856 (Pa.

Cmwlth. 1995). Willful misconduct means the actor

“desired to bring about the result that followed, or at least

that he was aware that it was substantially certain to

ensue.” Evans v. Phila. Transp. Co., . . . 212 A.2d 440,

443 ([Pa.] 1965).

R.H.S. v. Allegheny Cnty. Dep’t of Hum. Servs., Off. of Mental Health, 936 A.2d

1218, 1230 (Pa. Cmwlth. 2007). Here, the various theories of negligence

propounded by Vasquez contain allegations that Appellees “willful[ly], careless[ly],

or reckless[ly] disregard[ed]” an “unreasonable risk of harm,” which either “causally

connected the foreseeability” or was “the substantial factor” in causing the claimed

harm. See O.R., Amended Complaint, 7/28/21 at 10-11, ¶¶ 25-27. Such assertions

fall short of the level of “desire” or “substantial certainty” required to maintain a

claim of willful misconduct under Section 8550 of the Tort Claims Act, 42 Pa.C.S.

§ 8550. See R.H.S., 936 A.2d at 1230 (holding that “[p]laintiff fail[ed] to allege

sufficient facts establishing [county employee’s] actions constituted a crime or

willful misconduct” for purposes of abrogating official immunity under Section

8550 of the Tort Claims Act, 42 Pa.C.S. § 8550, where plaintiff’s “averments . . .

fail[ed] to allege [defendant] intended to cause” the claimed injury and, “[f]urther,

13

[plaintiff did] not allege [defendant] intended to bring about the complained-of

actions”); King v. Breach, 540 A.2d 976, 981 (Pa. Cmwlth. 1988) (concluding that

defendants retained official immunity notwithstanding plaintiff’s allegations of

willful misconduct, where the pleadings were “insufficient to support a conclusion

that either [defendant] must have believed and known that the [claimed harm] . . .

was substantially certain to follow as a result of [the] conduct, so that it would have

to be said that [either defendant] intended the result”). Thus, the trial court did not

err in dismissing Vasquez’s negligence claims.

C. Intentional Infliction of Emotional Distress

Next, Vasquez argues that Dorta and Houk intentionally inflicted

emotional distress upon him, as their outrageous and extreme comments regarding

“highly sensitive personal information” led him “to receive a wave of ridicule and

harassment” from fellow inmates, thereby causing him to suffer nausea, headaches,

nightmares, anxiety, depression, embarrassment and shame. See Vasquez’s Br. at

35-39. Vasquez alleges that Dorta and Houk were aware that he had been a victim

of sexual assault and that their comments “triggered him” and caused him to suffer

flashbacks. Id. at 36-39. Vasquez asserts that he became suicidal and was prescribed

antidepressant medication for several months. Id. at 36.

Maintaining a claim for the intentional infliction of emotional distress

requires satisfying the following four elements: (1) the alleged conduct must be

extreme and outrageous; (2) the conduct must be intentional or reckless; (3) the

conduct must cause emotional distress; and (4) the distress must be

severe. Weinstein, 827 F. Supp. at 1203 (citing Williams v. Guzzardi, 875 F.2d 46,

52 (3d Cir. 1989) (explaining that the United States Court of Appeals for the Third

14

Circuit distilled the four elements of the tort of the intentional infliction of emotional

distress from the Restatement (Second) of Torts). As our Supreme Court has

explained:

The gravamen of the tort of intentional infliction of

emotional distress is outrageous conduct on the part of the

tortfeasor. Section 46(1) of the Restatement (Second) of

Torts . . . provides as follows:

§ 46. Outrageous Conduct Causing Severe Emotional

Distress

(1) One who by extreme and outrageous conduct

intentionally or recklessly causes severe emotional

distress to another is subject to liability for such

emotional distress, and if bodily harm to the other

results from it, for such bodily harm.

The availability of recovery under section 46 is

highly circumscribed. The tortious conduct

contemplated by the drafters of section 46 is

described in their commentary:

d. Extreme and outrageous conduct. The cases

thus far decided have found liability only

where the defendant’s conduct has been

extreme and outrageous. It has not been

enough that the defendant has acted with an

intent which is tortious or even criminal, or

that he has intended to inflict emotional

distress, or even that his conduct has been

characterized by “malice,” or a degree of

aggravation which would entitle the plaintiff to

punitive damages for another tort. Liability

has been found only where the conduct has

been so outrageous in character, and so

extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized

community. Generally, the case is one in

which the recitation of the facts to an average

member of the community would arouse his

15

resentment against the actor, and lead him to

exclaim, “Outrageous!”

Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988, 991 (Pa. 1987) (quoting

Restatement (Second) of Torts § 46 comment d (1965)); see also Weinstein, 827 F.

Supp. at 1203-04 (observing that “Pennsylvania courts have been chary to declare

conduct outrageous”) (citations and quotation marks omitted). Liability for the

intentional infliction of emotional distress

clearly does not extend to mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities. The

rough edges of our society are still in need of a good deal

of filing down, and in the meantime plaintiffs must

necessarily be expected and required to be hardened to a

certain amount of rough language, and to occasional acts

that are definitely inconsiderate and unkind. There is no

occasion for the law to intervene in every case where some

one’s [sic] feelings are hurt. There must still be freedom

to express an unflattering opinion, and some safety valve

must be left through which irascible tempers may blow off

relatively harmless steam.

Kazatsky, 527 A.2d at 991-92 (quoting Restatement (Second) of Torts § 46 comment

d. (1965)).

“It is for the court to determine, in the first instance, whether the

defendant’s conduct may reasonably be regarded as so extreme and outrageous as to

permit recovery . . . .” Restatement (Second) of Torts, § 46 comment h (1965); see

also Kazatsky, 527 A.2d at 995 (quoting Section 46 comment h). Here, we conclude

that the alleged insults and taunts do not rise to the level of extreme and outrageous

conduct necessary to support Vasquez’s intentional infliction of emotional distress

claim. See Kazatsky, 527 A.2d at 991-92; Jones v. Nissenbaum, Rudolph & Seidner,

368 A.2d 770, 773 (Pa. Super. 1976) (citing Restatement (Second) of Torts § 46,

Comment d (1965)) (reasoning, with respect to inadequate claims for intentional

16

infliction of emotional distress, that “[p]laintiffs must necessarily be expected and

required to be hardened to a certain amount of rough language, and to occasional

acts that are definitely inconsiderate and unkind”).13 In light of the strict

circumscription of conduct rising to the level of “outrageous,” see Kazatsky, 527

A.2d at 991-92; Weinstein, 827 F. Supp. at 1203-04, we conclude that the trial court

did not err in dismissing Vasquez’s claim.14

D. Slander

Lastly, Vasquez contends that Houk’s remarks affected his reputation

and deterred others from associating with him, alleging that he “was always at odds

with other inmates.” Vasquez’s Br. at 42. Vasquez also maintains the trial court

erred in determining that his claim of slander was barred by the doctrine of sovereign

immunity, because Houk made the statements with actual malice. Id. at 41 (citing

42 Pa.C.S. § 8550). Vasquez alternatively asserts that Houk committed slander per

se by “directly” and “indirectly” referring to him as a “she” or a “faggot” on a regular

13

As explained previously by this Court, for the purposes of an intentional infliction of

emotional distress claim,

[i]ntent has been defined as “[d]esign, resolve, or determination with

which [a] person acts. . . . It presupposes knowledge.” Black’s Law

Dictionary 727 (5th Ed. 1979). The Restatement (Second) of Torts

defines intent to denote that a party “desires to cause the

consequences of his act, or that he believes that the consequences

are substantially certain to result from it.” Restatement (Second) of

Torts § 8A (1965).

McNeal v. City of Easton, 598 A.2d 638, 641 (Pa. Cmwlth. 1991).

14

Vasquez alleged that he directly confronted Houk regarding the complained-of conduct.

See O.R., Amended Complaint, 7/28/21 at 8, ¶ 18. Notably, Vasquez filed several grievances

describing his complaints with respect to Dorta and Houk and his alleged post-traumatic stress

disorder, but those grievances were denied, as set forth above.

17

basis “in the presence of others.” Id. at 40 (citing Koldjeski v. Colombo, 2009 Pa.

Dist. & Cnty. Dec. LEXIS 441 (C.P. Pa. 2009)).

This Court has explained that

[i]n [an] action for defamation, a plaintiff bears the burden

of proving: (1) the defamatory character of the

communication; (2) its publication by the defendant; (3)

its application to the plaintiff; (4) the understanding by the

recipient of its defamatory meaning; (5) the

understanding by the recipient of it as intended to be

applied to the plaintiff; (6) special harm resulting to the

plaintiff from its publication; and (7) abuse of a

conditionally privileged occasion. [Section 8343(a) of the

Judicial Code,] 42 Pa.C.S. § 8343(a).

A communication is considered defamatory if it tends to

harm the reputation of another so as to lower him in the

estimation of the community or to deter third persons from

associating or dealing with him. “It is not enough that the

victim of the [statements] . . . be embarrassed or annoyed,

he must have suffered the kind of harm which has

grievously fractured his standing in the community of

respectable society.” Tucker v. Phila. Daily News, . . .

848 A.2d 113, 124 ([Pa.] 2004).

Further, statements alleged to be defamatory must be

viewed in context. Baker v. Lafayette Coll., . . . 532 A.2d

399 ([Pa.] 1987).

Balletta v. Spadoni, 47 A.3d 183, 196-97 (Pa. Cmwlth. 2012) (citations and footnote

omitted).

Here, Vasquez alleged that Houk committed slander by knowingly

sharing “false allegations about Vasquez and sexual misconducts,” thereby

“caus[ing] special harm to Vasquez[’]s reputation.” O.R., Amended Complaint,

7/28/21 at 11, ¶ 29. Vasquez does not specify the nature of the purportedly “false

allegations” concerning “sexual misconducts.” Id. Read in conjunction with the

factual background set forth in his amended complaint, Vasquez’s defamation claim

18

is evidently premised on the allegation that Houk falsely accused him of being a

homosexual, thereby harming his reputation among fellow inmates. O.R., Amended

Complaint, 7/28/21 at 7-8, ¶¶ 15, 17 & 19.15 Vasquez alleges that Houk’s

purportedly defamatory statements resulted in ridicule and antagonism from other

inmates and, further, that another inmate threatened to sexually assault him. See

O.R., Amended Complaint, 7/28/21 at 7.

However, Vasquez fails to allege any facts suggesting that Houk’s

statements, though offensive, were more than mere opinion or name-calling. See

Dawson v. Zayre Dep’t Stores, 499 A.2d 648, 649 (Pa. Super. 1985). Our Supreme

Court has explained that the “allegedly libeled party must demonstrate that the

communicated opinion may reasonably be understood to imply the existence of

undisclosed defamatory facts justifying the opinion.” Baker, 532 A.2d at 402.

Further, “[a]lthough offensive to the subject, certain types of communications are

not actionable. Generally, a statement that is merely an expression of opinion is not

defamatory.” Balletta, 47 A.3d at 197 (citation omitted); see also Baker, 532 A.2d

at 402 (holding that “opinion without more does not create a cause of action in

libel”).

Although Vasquez avers that Houk was aware of his alleged status as a

survivor of sexual assault, see O.R., Amended Complaint, 7/28/21 at 8, ¶ 19, this

allegation does not sufficiently aver that Houk’s comments constituted more than

mere opinion or name-calling. See Balletta, 47 A.3d at 197. “[S]tatements which

are merely annoying or embarrassing or ‘no more than rhetorical hyperbole’ or ‘a

vigorous epithet’ are not defamatory,” and “[a] certain amount of vulgar name-

15

Although Vasquez alleges that Houk learned from Dorta that Vasquez had been a victim

of sexual assault, see O.R., Amended Complaint, 7/28/21 at 8, ¶ 19, Vasquez does not allege that

Houk shared that information with other inmates.

19

calling is tolerated, on the theory that it will necessarily be understood to amount to

nothing more.” Kryeski, 626 A.2d at 600-01 (“find[ing] no error in the trial court’s

conclusion that the alleged statements by one employee to another that appellant was

‘crazy’ were not defamatory”) (citing Fram v. Yellow Cab Co. of Pittsburgh, 380 F.

Supp. 1314 (W.D. Pa. 1974) (holding that defendant’s use of the terms “paranoid”

and “schizophrenic” was not defamatory, where plaintiff failed to prove that

defendant referenced an actual psychological infliction)).

Further, a plaintiff alleging spoken defamation must plead special harm

resulting from the publication of the allegedly defamatory statements. 42 Pa. C.S.

§ 8343(a)(6). “Special harm” means, specifically, harm of an economic or pecuniary

nature; thus, mere loss of reputation is not sufficient to prove special harm. Bethel

v. McAllister Bros. Inc., 1993 U.S. Dist. Lexis 4243, *25-26 (E.D. Pa. March 30,

1993); Agriss v. Roadway Express Inc., 483 A.2d 456, 469-70 (Pa. Super. 1984). A

plaintiff is relieved of the requirement to plead and prove special harm only where

the alleged defamatory statements are defamatory per se because they impute a

criminal offense, a loathsome disease, business misconduct, or serious sexual

misconduct. Clemente v. Espinosa, 749 F. Supp. 672 (E.D. Pa. 1990).

Of these categories of statements that are defamatory per se, only

serious sexual misconduct is potentially inferable from Appellees’ alleged

statements here. However, in Davitt v. Wood Co., 58 Pa. D.&C. 4th 279 (2002), a

common pleas court observed:

To say that the allegations . . . relating to homosexual

sexual practices constitute “serious sexual misconduct”

would be contrary to today’s mores and community

sentiment. As the briefs of the parties point out, nearly

one-half of the American public believe that

homosexuality is an acceptable alternative lifestyle.

While the alleged actions were framed in a vulgar manner,

20

it does not raise the underlying content of the statements

to “serious sexual misconduct.” The United States District

Court for the Eastern District of Pennsylvania recognized

this fact in deciding the case of Rhine v. Dick Clark

Prod[ucts], 2000 U.S. Dist. Lexis 58 (E.D. Pa. Jan. 1,

2000). That court held that publication of [a] plaintiff’s

homosexual orientation did not fall within any of the four

categories of slander per se. Here, the publication of such

alleged orientation, and attendant sexual practices, suffers

the same fate.

Id. at 291-92. We find that court’s analysis persuasive here and conclude that

Vasquez has not alleged either defamation per se or special damages. Accordingly,

his defamation claim cannot survive.

Thus, we conclude that the trial court did not err in dismissing

Vasquez’s defamation claim. See Balletta, 47 A.3d at 197 (“discern[ing] no error in

the trial court’s gatekeeper determination that [defendant’s] statements were not

actionable,” explaining that “[u]nder Pennsylvania law, courts act as gatekeepers to

determine whether statements are incapable of defamatory meaning in deciding

whether any basis exists to proceed to trial”).

III. Conclusion

Accordingly, for the foregoing reasons, we affirm the trial court’s

decision.

21

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ramon Vasquez, :

Appellant :

:

v. :

:

CO Dorta, CO Houk, Treatment : No. 1468 C.D. 2021

Counselor Brenna, and Jessica Collins :

PER CURIAM ORDER

AND NOW, this 11th day of April, 2023, the November 22, 2021 order

of the Berks County Court of Common Pleas is AFFIRMED.