# R. Vasquez v. CO Dorta

> Commonwealth Court of Pennsylvania · April 11, 2023

URL: https://www.frixlaw.com/law-library/cases/9386089

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** April 11, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** PER CURIAM
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9386089

## How later opinions describe it (automated extraction)

- holding that “opinion without more does not create a cause of action in libel”
- 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
- 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
- observing that “Pennsylvania courts have been chary to declare conduct outrageous”

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9386089. Public record. Not legal advice.