               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Trent Richardson,                :
                        Appellant         :
                                          :
                    v.                    :
                                          :
Jerome Walsh, Supt. (Retired),            :
Chris Putnam (Unit Manager J-Blk),        :
Michael Thruchon (Facility                :
Maintenance Manager 3), Paul              :
Mooney (Facility Maintenance              :
Manager 1), Greg Gordner (Facility        :
Maintenance Manager 1), Mr. Taylor        :    No. 1045 C.D. 2016
(Maintenance Worker), et al.              :    Submitted: September 2, 2016


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: December 19, 2016

             Courtney Trent Richardson (Richardson) appeals pro se from the
Luzerne County Common Pleas Court’s (trial court) January 5, 2016 order sustaining
the preliminary objections filed by Pennsylvania Department of Corrections’
(Department) Retired State Correctional Institution – Dallas (SCI-Dallas)
Superintendent Jerome Walsh (Walsh), J-Block Unit Manager Chris Putnam
(Putnam), Facility Maintenance Manager 3 Michael Truchon (Truchon),1 Facility
Maintenance Manager 1 Paul Mooney (Mooney), Facility Maintenance Manager 1
Greg Gordner (Gordner), and Maintenance Worker Mr. Taylor (Taylor)2

      1
        According to the grievance documents Truchon’s name is spelled without an “h.” See
Complaint Ex. 2.
      2
        Taylor’s first name does not appear in the record.
(collectively, Defendants). The issue before this Court is whether the trial court erred
by concluding that Richardson failed to state a claim for which relief may be
granted.3 After review, we affirm.
                Richardson is an inmate at SCI-Dallas. On August 25, 2015, Richardson
filed a Complaint in the trial court for money damages (Complaint), wherein he
alleged that Taylor removed his cell window on August 22, 2013, and the window
could not be properly repaired. He further averred that the window was never
replaced. Certified Record (C.R.), Complaint ¶ 12.
                According to the Complaint and the documents attached thereto, on
January 20, 2014, Richardson filed Grievance No. 494469 (Grievance) with Truchon,
claiming:

                Since [August 22, 2013,4] I have not had a window in the
                cell that I am in. I had to rely on taping empty coffee
                plastic bags along with empty tobacco bags and any other
                kind of insulations.
                We have experience[d] extreme cold weather during this
                period, and I have gotten ill several times. Being exposed
                to these kinds of living conditions . . . [is] a direct violation
                of my civil and constitutional rights. I wish to be


       3
           Richardson listed in his Statement of Questions Involved, the following questions:

                1. Do all of the [Defendants] have immunities in their professional
                   and private capacities?

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

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

                4. Did [Richardson] file his [C]omplaint in [f]ederal [c]ourt?
Richardson Br. at 4. These Statements of Questions are subsumed in the issue of whether the trial
court erred by concluding that the Complaint failed to state a claim for which relief may be granted.
        4
          Although Richardson initially stated that the window was removed in “September 2013,”
Complaint Ex. 1, based upon his subsequent determination that it was removed on August 22, 2013,
he amended the date. See Complaint ¶ 13.
                                                   2
                compensated fully by those deemed responsible.
                $85,000.00 each. Also for materails (sic) and work missed.
                ....
                I also wish to have the window replaced without my
                personal property being used as a ladder/vandalized!

Complaint Ex. 1; see also Complaint ¶ 13. The Grievance further reflects that, before
initiating the Grievance, Richardson: “Spoke to both shifts of block officers who did
their duty by placing work orders in. [sic] Brought this to the attention of Cert team[5]
members who notified the Unit Manager.” Complaint Ex. 1.
                On February 6, 2014, Truchon issued an Initial Review Response,
wherein he upheld the Grievance, but stated: “Your window was replaced 1-31-14.”
Complaint Ex. 2; see also Complaint ¶ 14. Richardson appealed from Truchon’s
decision to Walsh. Complaint Ex. 3; see also Complaint ¶ 15.
                On February 10, 2014, Walsh upheld Truchon’s decision, stating:

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




                Grievance Officer’s response and your subsequent appeal of
                said [G]rievance. My decision is as follows:
                I would first like to note for your information, this
                [G]rievance should have been rejected due to the
                untimeliness of your filing. You . . . failed to file the
                [G]rievance until January 20, 2014.
                Since Ms. Lucas[6] processed it, I will address it. Be
                advised, I contacted [Putnam] regarding this matter
                along with pulling work orders that were submitted to
                have this matter fixed. It is apparent for some reason that
                this window has been an issue for quite some time. I
                retrieved two work orders that were submitted in 2013 to
                have the window taken out and repaired. On August 22,
                2013, the window was taken out for repair. On December
                16, 2013, the window was taken out again for repair[] and
                put back in. It is uncertain as to why there appears to be

      5
          The term “Cert team” is not defined in this record.
      6
          The record does not identify Ms. Lucas’ title or duties.
                                                   3
             such an issue with this window. As I noted previously, I
             contacted [Putnam] and was informed [that], at no time
             did you ask to be moved or complain about your cell
             being cold and/or the window. I was informed that you
             also did not discuss or complain to the officers on J
             block that your cell was cold or that you wanted to be
             moved. For the record, you have been housed in this cell
             since October of 2011. In my investigation, I also contacted
             the medical department and was informed you signed up for
             sick call on January 16, 2014, and noted ‘I have a bad cold.’
             You did not seek follow[-]up care after January 16, 2014
             for cold symptoms; therefore, this matter was considered
             resolved.     I would encourage you to speak to the
             appropriate individuals if you are having housing unit
             issues/concerns. I would also encourage you not to wait so
             long to file a complaint/grievance like this. If you would
             have made appropriate staff aware of the matter, you would
             have been moved to another cell until the repair was totally
             completed. It is apparent from work orders that staff
             acted in good faith and attempted to get this matter
             rectified.

Complaint Ex. 4; see also Complaint ¶ 16 (emphasis added). Richardson appealed
from Walsh’s decision to the Secretary’s Office of Inmate Grievances and Appeals
(SOIGA). Complaint Ex. 5a; see also Complaint ¶ 17.
             On March 20, 2014, SOIGA Chief Grievance Officer Dorina Varner
(Varner) upheld Walsh’s decision ruling, in pertinent part:

             A review of the record found that you were moved to
             another cell on January 23, 2014. The window in your
             previous cell, which had been repaired on August 22, 2013
             and December 16, 2013, was replaced on January 31, 2014.
             The record also shows that you failed to inform staff
             that you wanted to be moved to another cell, that your
             cell was cold, or that the window needed [to be] repaired
             again. You were moved to another cell on January 23,
             2014; therefore, your issue has been resolved. You
             provide no evidence to substantiate your claims that your
             civil rights or constitutional amendment rights have been
             violated. This office upholds the decisions of the Grievance
             Officer and the Facility Man[a]ger in denying your
             grievance and all requested relief. It is noted that your

                                          4
              grievance was submitted untimely and should have been
              rejected by the Grievance Officer.

Complaint Ex. 5b (emphasis added); see also Complaint ¶ 17.
              In his Complaint, Richardson claims that Defendants deprived him of his
constitutional rights by “committing violations of the following statutory provisions:
a.) Freedom from cruel and unusual punishment; b.) Article 1 §§[] 1, 9 and 13 of the
Pennsylvania Constitution; c.) Eighth Amendment of the United States (U.S.)
Constitution; [and] d.) [Section 8550 of the Judicial Code,] 42 Pa.C.S. § 8550 Willful
Misconduct.” Complaint ¶ 36; see also Complaint ¶¶ 11, 18-35. Richardson sought a
declaratory judgment and demanded $25,000.00 in compensatory damages,
$85,000.00 from each Defendant in punitive damages, plus costs and fees. See
Complaint ¶¶ 38-39.
              On November 17, 2015, Defendants filed preliminary objections to the
Complaint in the nature of a demurrer, contending that: (1) Richardson failed to plead
facts under which Defendants’ sovereign immunity is waived;7 (2) Richardson failed
to state facts sufficient to state a claim against Defendants under federal or state law;
(3) Richardson failed to state a claim for violation of the Pennsylvania Constitution;
and, (4) Richardson failed to properly exhaust his administrative remedies.
Richardson filed a response to Defendants’ preliminary objections. On January 5,
2016, the trial court sustained Defendants’ preliminary objections and dismissed
Richardson’s Complaint with prejudice. Richardson appealed to the Superior Court,




       7
          “Immunity from suit is an affirmative defense that must be raised as a new matter in a
responsive pleading. [However, c]ourts allow defendants to raise immunity by preliminary
objection where the defense is clearly applicable and where the plaintiff does not object. Both
conditions exist here.” Balletta v. Spadoni, 47 A.3d 183, 195 (Pa. Cmwlth. 2012) (citations
omitted).
                                               5
which transferred the matter to this Court.8 The trial court issued its opinion on April
18, 2016.
              Initially, Section 6602(e) of what is commonly referred to as
Pennsylvania’s Prison Litigation Reform Act (PLRA) provides, in relevant part:

              [T]he court shall dismiss prison conditions litigation[9] at
              any time, . . . if the court determines . . . :
              ....
              The prison conditions litigation . . . fails to state a claim
              upon which relief may be granted or the defendant is
              entitled to assert a valid affirmative defense, including
              immunity, which, if asserted, would preclude the relief.

42 Pa.C.S. § 6602(e). Moreover,

              [i]n ruling on preliminary objections, we must accept as true
              all well-pleaded material allegations in the petition for
              review, as well as all inferences reasonably deduced
              therefrom. The Court need not accept as true conclusions
              of law, unwarranted inferences from facts, argumentative
              allegations, or expressions of opinion. In order to sustain
              preliminary objections, it must appear with certainty that
              the law will not permit recovery, and any doubt should be
              resolved by a refusal to sustain them.
              A preliminary objection in the nature of a demurrer admits
              every well-pleaded fact in the complaint and all inferences


       8
          “Where a trial court dismisses a complaint based on preliminary objections, this Court’s
review is limited to determining whether the trial court committed an error of law or an abuse of
discretion.” Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014).
        9
          Section 6601 of the PLRA defines “prison conditions litigation” as

              [a] civil proceeding arising in whole or in part under [f]ederal or
              [s]tate law with respect to the conditions of confinement or the effects
              of actions by a government party on the life of an individual confined
              in prison. The term includes an appeal. The term does not include
              criminal proceedings or habeas corpus proceedings challenging the
              fact or duration of confinement in prison.
42 Pa.C.S. § 6601.
                                                 6
              reasonably deducible therefrom.[10] It tests the legal
              sufficiency of the challenged pleadings and will be
              sustained only in cases where the pleader has clearly failed
              to state a claim for which relief can be granted. When
              ruling on a demurrer, a court must confine its analysis to the
              complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).
              Here, the trial court dismissed the Complaint, holding:

              The instant matter alleges a cell window was never repaired
              or replaced. Defendants can only be held liable for
              negligence, and only if the negligence falls within one of
              the nine exceptions to sovereign immunity. Moreover,
              there is a requirement that the defect of the real property
              caused the injury to occur. Battle v. Phila[.] Hous[.]
              Auth[.], 594 A.[]2d 769 (Pa Super. 1991).              Where
              [Richardson’s] claim specifically alleges negligence[,] the
              limited waivers of sovereign immunity apply. Additionally,
              the allegations of intentional misconduct within the scope of
              employment are also barred by sovereign immunity. [See
              La[]Frankie v. Miklich, 618 A.2d 1145 (Pa. Cmwlth.
              1992)][.]
              This [trial c]ourt also found that [Richardson] failed to state
              a federal claim with the required specificity, sought a non-
              existent private cause of action for damages premised on
              violation of the Pennsylvania Constitution, and failed to
              plea[d] requisite facts to demonstrate exhaustion of
              administrative remedies to trigger a [f]ederal [c]laim.

Trial Ct. Op. at 1.
              The trial court sustained Defendants’ objection that Richardson failed to
plead facts in the Complaint under which Defendants’ sovereign immunity is waived.
We agree. “It is well-settled that the Commonwealth of Pennsylvania is protected
from civil suit under sovereign immunity, except where the General Assembly has



       10
          “[C]ourts reviewing preliminary objections may not only consider the facts pled in the
complaint, but also any documents or exhibits attached to it.” Allen v. Dep’t of Corr., 103 A.3d
365, 369 (Pa. Cmwlth. 2014).
                                               7
specifically provided for a waiver of immunity.” Mullin v. Dep’t of Transp., 870
A.2d 773, 779 (Pa. 2005).

               The [act commonly referred to as the Sovereign Immunity
               Act11 (Act)] provides that sovereign immunity is only
               waived for damages arising out of a negligent act where the
               common law or a statute would permit recovery if the injury
               were caused by a person not protected by sovereign
               immunity. However, in order for the Commonwealth to be
               found liable, a party must also establish that the cause of
               action falls under one of nine specifically enumerated
               exceptions to immunity.[12] Because of the clear intent to
               insulate the government from liability, the exceptions to
               sovereign immunity are to be strictly construed.

Mullin, 870 A.2d at 779 (citations omitted).
               Richardson does not aver in his Complaint that Walsh, Putnam, Truchon,
Mooney, Gordner and Taylor acted negligently. Rather, Richardson’s Complaint
alleges that he filed a Grievance and subsequent appeals relating to his Grievance,
and made legal conclusions.
               Specifically, Richardson avers that Defendants “committed [i]ntentional
[t]ort[s] against [Richardson] and [are] not immune from liability pursuant to [Section




       11
            42 Pa.C.S. §§ 8521-8528.
         In the Complaint, Richardson avers that “[t]his action is brought pursuant to . . . [the act
commonly referred to as] the Political Subdivision Tort Claims Act [(Tort Claims Act)] . . . .”
Complaint ¶ 1. However, the Tort Claims Act only applies to local agencies and their employees.
See 42 Pa.C.S. § 8541 (“no local agency shall be liable for any damages on account of any injury to
a person or property caused by any act of the local agency or an employee thereof or any other
person”). Because Richardson’s Complaint makes claims against individuals acting in the scope
and course of their Commonwealth employment, the Act, rather than the Tort Claims Act, is
controlling in this case.
         12
            A Commonwealth party may be liable under Section 8522(b) of the Act for damages due
to: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal
property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous
conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard
activities; and (9) toxoids and vaccines. See 42 Pa.C.S. § 8522(b).
                                                  8
8550 of the Judicial Code,] Willful Misconduct.” Complaint ¶¶ 20, 23, 26, 29, 32,
35. We acknowledge that Section 8550 of the Judicial Code provides:

              In any action against a local agency or employee thereof for
              damages on account of an injury caused by the act of the
              employee in which it is judicially determined that the act of
              the employee caused the injury and that such act constituted
              a crime, actual fraud, actual malice or willful misconduct,
              the provisions of [S]ections 8545 (relating to official
              liability generally), 8546 (relating to defense of official
              immunity), 8548 (relating to indemnity) and 8549 (relating
              to limitation on damages) [of the Judicial Code, 42 Pa.C.S.
              §§ 8545, 8546, 8549] shall not apply.

However, Section 8550 of the Judicial Code is applicable only to “action[s]
against a local agency or employee thereof.” 42 Pa.C.S. § 8550 (emphasis added).
Section 8501 of the Judicial Code defines “local agency” as “[a] government unit
other than the Commonwealth government.” 42 Pa.C.S. § 8501. Here, since the
Department is a Commonwealth agency,13 and Defendants are Commonwealth
agency employees, Section 8550 of the Judicial Code does not expressly waive
their official immunity. See Williams v. Stickman, 917 A.2d 915, 917 (Pa. Cmwlth.
2007) (SCI employees “are not employees of a local agency”).
              In addition, this Court has held that “state employees do not lose their
sovereign immunity protection for intentional torts committed within the scope
of their employment.” Kull v. Guisse, 81 A.3d 148, 154 n.5 (Pa. Cmwlth. 2013)
(emphasis added). Thus, “when an employee of a Commonwealth agency was acting
within the scope of his or her duties, [he/she] is protected by sovereign immunity




       13
          Section 102 of the Judicial Code defines “Commonwealth government” as including
“agencies of the Commonwealth.” 42 Pa.C.S. § 102. “Commonwealth agency” is defined as “[a]ny
executive agency or independent agency.” Id. Under Section 203 of The Administrative Code of
1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 61, the Department is an executive
agency. Accordingly, the Department is a Commonwealth agency.
                                              9
from the imposition of liability for intentional tort claims.” Williams, 917 A.2d at
917 (quoting La Frankie, 618 A.2d at 1149).

               [Richardson] averred [in the Complaint] that the
               [Defendants] violated his constitutional rights and
               committed numerous intentional torts against him. He did
               not, however, allege that the [Defendants] acted outside the
               scope of their employment;[14] nor did he assert that the
               actions of the [Defendants] fit into any of the exceptions to
               sovereign immunity listed in Section 8522(b) of the
               [Judicial] Code, 42 Pa.C.S. § 8522(b). Therefore, since
               [Richardson] did not aver that the [Defendants] were acting
               outside the scope of their duties when he was allegedly
               harmed, and since [Richardson] did not aver that the
               [Defendants’] actions were within any exception to
               sovereign immunity, we conclude that the trial court
               correctly determined that the [Defendants] were immune
               from suit.

Bronson v. Lechward, 624 A.2d 799, 801-02 (Pa. Cmwlth. 1993) (citation omitted).
Accordingly, because it “appear[s] with certainty that the law will not permit
[Richardson’s] recovery[]” for intentional torts, the trial court did not err by
sustaining Defendants’ preliminary objections on that basis. Torres, 997 A.2d at
1245.
               Richardson’s remaining claims in his Complaint against Walsh, Putnam,
Truchon, Mooney, Gordner and Taylor are for allegedly violating his rights under
Article I, Sections 1, 9 and 13 of the Pennsylvania Constitution and the Eighth
Amendment to the U.S. Constitution. The trial court sustained Defendants’ objection
that Richardson failed to state valid claims for constitutional violations. We agree.
               Pennsylvania Rule of Civil Procedure 1019(a) states: “The material facts
on which a cause of action or defense is based shall be stated in a concise and


        14
           Despite Richardson’s declaration in the Complaint that “[e]ach [Defendant] is being sued
in their [sic] [p]ersonal and [o]fficial [c]apacities,” Complaint ¶ 39, he does not aver that any of
Defendants’ alleged action or inaction occurred outside the scope of their official responsibilities.
                                                 10
summary form.” Pa.R.C.P. No. 1019(a). This Court has declared that “[t]he purpose
of this rule is to require the plaintiff to disclose the material facts sufficient to enable
the adverse party to prepare the case.” Bennett v. Beard, 919 A.2d 365, 367 (Pa.
Cmwlth. 2007). Moreover, because “Pennsylvania is a fact-pleading jurisdiction[,] . .
. a pleading must not only apprise the opposing party of the asserted claim, ‘it must
also formulate the issues by summarizing those facts essential to support the claim.’”
Richardson v. Wetzel,15 74 A.3d 353, 356-57 (Pa. Cmwlth. 2013) (quoting Sevin v.
Kelshaw, 611 A.2d 1232, 1235 (Pa. Super. 1992)).
             In his Complaint, Richardson avers that Taylor removed Richardson’s
cell window on August 22, 2013. He further asserts that he “[s]poke to both shifts of
block officers,” and brought the matter “to the attention of Cert team members who
notified the Unit Manager.” Complaint Ex. 1. Moreover, Richardson alleges that he
filed his Grievance on January 20, 2014, he was moved to a different cell because of
the missing window on January 23, 2014, and the window was replaced on January
31, 2014.
             Richardson fails to state with specificity in his Complaint how each
Defendant is liable to him for the damages he seeks. Rather, Richardson generally
designated Walsh, Putnam, Truchon, Mooney, Gordner and Taylor as “tortfeasors”
(Complaint ¶¶ 4-10), and averred legal conclusions that each “committed a criminal
offense against [him]” (Complaint ¶¶ 18, 21, 24, 27, 30, 33, 36-38), and violated his
constitutional rights (see Complaint ¶¶ 19, 22, 25, 28, 31, 34, 36-38) with no facts to
substantiate his claim. The Complaint does not make specific allegations of any
wrongdoing against any Defendant.
             In the Complaint, Richardson merely reiterates general conclusions of
law. It is not clear on the face of the Complaint who was responsible for the decision

      15
         There is no apparent relationship between Richardson and the appellant in Terrence
Richardson v. Wetzel.
                                            11
to remove the cell window and allegedly not replace it. Nor does it state that
Defendants were aware that the window was allegedly not replaced. The Complaint
does not reflect that any Defendant was responsible for replacing the window or
moving Richardson to another cell, or was even on notice that Richardson may have
been subject to any adverse prison conditions, until he filed his Grievance nearly five
months after the window was allegedly removed. Finally, despite that Richardson
took advantage of the Department’s grievance process, we cannot glean from his
Grievance that Walsh, Putnam, Truchon, Mooney, Gordner or Taylor committed any
specific wrongdoing.16
               “In ruling on preliminary objections, . . . [we] need not accept as true
conclusions of law, unwarranted inferences from facts, argumentative allegations, or
expressions of opinion.” Torres, 997 A.2d at 1245. Under circumstances in which
the Complaint fails to state if, when and/or how Defendants “committed a criminal
offense against [him]” (Complaint ¶¶ 18, 21, 24, 27, 30, 33, 36-38), and/or violated
his constitutional rights (see Complaint ¶¶ 19, 22, 25, 28, 31, 34, 36-38), Defendants
cannot defend against Richardson’s legal conclusions.                   Accordingly, because it
“appear[s] with certainty that the law will not permit [Richardson’s] recovery [from
Defendants in this case],” the trial court did not err by sustaining Defendants’
preliminary objections.17 Torres, 997 A.2d at 1245.

       16
            Even if there were specific allegations of constitutional violations against Defendants,
Richardson’s monetary damage claims would fail. This Court has held: “To date, neither
Pennsylvania statutory authority, nor appellate case law has authorized the award of monetary
damages for a violation of the Pennsylvania Constitution.” Jones v. City of Phila., 890 A.2d 1188,
1208 (Pa. Cmwlth. 2006) (en banc).
         17
            “This court may affirm the decision of the trial court on any grounds.” Slusser v. Black
Creek Twp. Zoning Hearing Bd., 124 A.3d 771, 772 n.1 (Pa. Cmwlth. 2015); see also Van Mastrigt
v. Dalta Tau Delta, 573 A.2d 1128, 1132 n.5 (Pa. Super. 1990) (“Although the lower court does not
sustain the preliminary objections . . . on this basis, as an appellate court we may affirm a decision
of the trial court if the result is correct on any ground.”).
         Based upon our holding, we need not address herein whether Richardson exhausted his
administrative remedies.
                                                 12
Based upon the foregoing, we affirm the trial court’s order.


                          ___________________________
                          ANNE E. COVEY, Judge




                             13
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Courtney Trent Richardson,             :
                        Appellant      :
                                       :
                  v.                   :
                                       :
Jerome Walsh, Supt. (Retired),         :
Chris Putnam (Unit Manager J-Blk),     :
Michael Thruchon (Facility             :
Maintenance Manager 3), Paul           :
Mooney (Facility Maintenance           :
Manager 1), Greg Gordner (Facility     :
Maintenance Manager 1), Mr. Taylor     :   No. 1045 C.D. 2016
(Maintenance Worker), et al.           :


                                    ORDER

            AND NOW, this 19th day of December, 2016, the Luzerne County
Common Pleas Court’s January 5, 2016 order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge
