J-S07002-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RICKY TEJADA,                                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

LYNN GONZALEZ CERTIFIED NURSE
PRACTITIONER OF SCI SMITHFIELD,

                          Appellee                    No. 735 MDA 2015


                Appeal from the Order Entered March 25, 2015
             In the Court of Common Pleas of Huntingdon County
                     Civil Division at No(s): 2013-01439


BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 05, 2016

       Ricky Tejada appeals from the March 25, 2015 order granting

preliminary objections filed by Appellee, Lynn Gonzalez, and dismissing his

complaint. We affirm.

       On October 28, 2013, Ricky Tejada, an inmate at the State

Correctional Institution (“SCI”) in Smithfield, filed this pro se action against

Ms. Gonzalez, who is a nurse practitioner at that institution.          Various

documents were presented to institute this case, including a writ of

summons and request to engage in pre-complaint discovery.              Appellee

objected to the discovery request and countered with a pracipe seeking a

rule for Appellant to file a complaint.   The trial court sustained Appellee’s

*
    Former Justice specially assigned to the Superior Court.
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objection to pre-complaint discovery and issued a rule directing Appellant to

file his civil complaint.

      Appellant failed to file a formal complaint, but did, on February 6,

2014, present a document wherein he averred that Ms. Gonzalez 1)

fraudulently refused to provide him health care; (2) breached an implied

contract and fiduciary duty owed to Appellant; and (3) inflicted emotional

distress.

      The following facts are pertinent. Appellant is currently serving twenty

to forty years in jail after he was convicted of attempted homicide,

aggravated assault, simple assault, and recklessly endangering another

person, for the shooting of Luis Villatoro twice, once in the face and once in

the back of the head.         See Commonwealth v. Tejada, 834 A.2d 619

(Pa.Super. 2003).

      Appellant initially was incarcerated at SCI in Camp Hill and was

transferred to SCI Smithfield. In September 2013, Appellant contacted the

medical staff at SCI Smithfield to obtain multi-vitamins and dandruff

shampoo pursuant to prescriptions that he had been issued while imprisoned

at SCI Camp Hill.           The health care administrator at SCI Smithfield

determined that those prescriptions had been discontinued when Appellant

arrived at Smithfield. Appellant also requested that he be tested for HIV and

hepatitis, which the administrator denied. Appellant filed a formal grievance

regarding the administrator’s decisions, and the prison issued a response on

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October 1, 2013, informing Appellant that Nurse Gonzalez reviewed his case

and determined that he had no clinical condition requiring either the

prescriptions for the dandruff shampoo and vitamins or the requested

diagnostic tests.

      The present action ensued. Thus, this case revolves around the fact

that Ms. Gonzalez discontinued Mr. Tejada’s right to free dandruff shampoo

and multi-vitamins as not medically necessary, forcing him to purchase them

from the prison commissary.    Appellant initially sought to compel medical

testing. Ms. Gonzalez moved for access to Appellant’s medical records for

purposes of determining whether there was a clinical need for the shampoo,

vitamins, and the testing. The trial court granted discovery of the medical

records, and, on appeal, we affirmed. We concluded that, based upon the

allegations in this lawsuit, Appellant waived his privilege against revealing

his confidential medical records. Tejada v. Certified Nurse Practitioner

Gonzalez of SCI Smithfield, 2015 WL 7575702 (filed February 10, 2015).

      Ms. Gonzalez thereafter filed preliminary objections in the nature of a

demurrer to the complaint. Before the trial court ruled on the preliminary

objections, Appellant filed an amended complaint that raised the same

essential allegations as those in the first one. On March 25, 2015, the trial

court granted Appellee’s preliminary objections, and dismissed this case.

This appeal followed. Appellant presents these questions for our review:




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      [1.] By the action at trial court docket No. 2013-1439 below,
      constituting a billing and service violation, which is an
      impairment of contract, the defendant took a constitutional oath
      not to impair, is the trial courts [sic] order of 3/25/2015 a result
      of bias, prejudice or ill will-being an error at law and/or abuse of
      discretion?

      [2.] Is a contract a valid agreement, when both parties agree to
      it’s [sic] terms and conditions and by the defendant being under
      constitutional oath not to impair any contract, was defendant
      bound by it’s [sic] terms under agency law?

      [3.] By the complainant, being placed under duress to file a
      complaint, designed so that the complaint wasn’t capable of
      surviving a demurrer?

      [4.] Was [the] trial court required to rule on the March 6, 2015
      amended complaint?

Appellant’s brief at 4.

      We first examine our standard of review from an order sustaining a

preliminary objection in the nature of a demurrer:

             Our standard of review of an order of the trial court
      overruling or granting preliminary objections is to determine
      whether the trial court committed an error of law. When
      considering the appropriateness of a ruling on preliminary
      objections, the appellate court must apply the same standard as
      the trial court.

             Preliminary objections in the nature of a demurrer test the
      legal sufficiency of the complaint. When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom. Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases
      in which it is clear and free from doubt that the pleader will be
      unable to prove facts legally sufficient to establish the right to
      relief. If any doubt exists as to whether a demurrer should be
      sustained, it should be resolved in favor of overruling the
      preliminary objections.

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Estate of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 305

(Pa.Super. 2015).

      While Appellant’s averments in his brief are barely decipherable, the

thrust of this action is that Ms. Gonzalez was obligated to provide Appellant

with dandruff shampoo and multi-vitamins.       Appellant has abandoned his

request for medical testing for HIV and hepatitis.       On appeal, Appellant

premises his right to relief on breach of a contract by Ms. Gonzalez that she

was constitutionally required to fulfill. Fatal to Appellant’s claim is the fact

that he totally fails to articulate any facts upon which this court can find the

existence of a contractual obligation on the part of Ms. Gonzalez. “A breach

of contract action involves: (1) the existence of a contract; (2) a breach of a

duty imposed by the contract; and (3) damages.” Braun v. Wal-Mart

Stores, Inc., 24 A.3d 875, 896 (Pa.Super. 2011) aff'd, 106 A.3d 656 (Pa.

2014). A contract can be “manifested orally, in writing, or as an inference

from the acts and conduct of the parties.” Id. Herein, Appellant fails to set

forth any legal basis upon which we can conclude Ms. Gonzalez was

contractually obligated to prescribe him shampoo and vitamins.

      In his complaint, Appellant also averred the existence of fraud.

      [F]raud must be averred with “particularity.” Pa.R.Civ.P. Rule
      1019(b). This Court has stated that although it is impossible to
      establish precise standards as to the degree of particularity
      required under this rule, two conditions must be met to fulfill the
      requirement: (1) the pleadings must adequately explain the
      nature of the claim to the opposing party so as to permit the

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      preparation of a defense, and (2) they must be sufficient to
      convince the court that the averments are not merely
      subterfuge. Bata v. Central-Penn National Bank, 423 Pa.
      373, 380, 224 A.2d 174, 179 (1966), cert. denied, 386 U.S.
      1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967).
      ....
      A cause of action for fraudulent misrepresentation is comprised
      of the following elements: “(1) a misrepresentation, (2) a
      fraudulent utterance thereof, (3) an intention by the maker that
      the recipient will thereby be induced to act, (4) justifiable
      reliance by the recipient upon the misrepresentation and (5)
      damage to the recipient as the proximate result.” Scaife Co. v.
      Rockwell-Standard Corp., 446 Pa. 280, 285, 285 A.2d 451,
      454 (1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2459, 32
      L.Ed.2d 806 (1972).

Martin v. Lancaster Battery Co., 606 A.2d 444, 448 (Pa. 1992).

      Herein, the complaint did not set forth that Ms. Gonzalez made a

fraudulent misrepresentation.    She consistently maintained that Appellant

had no clinical need for dandruff shampoo and vitamins. Hence, Appellant’s

complaint did not contain a viable cause of action for fraud.

      Appellant also complains that he should have been permitted to amend

his complaint.

          Even where a trial court sustains preliminary objections on
      their merits, it is generally an abuse of discretion to dismiss a
      complaint without leave to amend. There may, of course, be
      cases where it is clear that amendment is impossible and where
      to extend leave to amend would be futile. However, the right to
      amend should not be withheld where there is some reasonable
      possibility that amendment can be accomplished successfully.
      In the event a demurrer is sustained because a complaint is
      defective in stating a cause of action, if it is evident that the
      pleading can be cured by amendment, a court may not enter a
      final judgment, but must give the pleader an opportunity to file
      an amended pleading.



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Hill v. Ofalt, 85 A.3d 540, 557 (Pa.Super. 2014) (emphasis in original;

citation omitted).

      After review, we conclude that there was no reasonable possibility that

the complaint could have been amended to state a viable cause of action,

and, on appeal, Appellant certainly provides no facts to support a contrary

conclusion.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




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