              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lamar Brown,                            :
                  Appellant             :
                                        :    No. 1509 C.D. 2015
            v.                          :
                                        :    Submitted: April 22, 2016
Lt. David Sayors, Szelewski, David      :
Zetwo, Maj. Barry Smith, Valerie        :
Kusiak, Nancy Giroux, Robin M.          :
Lewis                                   :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                          FILED: July 13, 2016


            Lamar Brown (Brown) appeals, pro se, from the February 25, 2015
order of the Court of Common Pleas of Erie County (trial court), which sustained the
preliminary objections of Lieutenant David Sayors, Szelewski (first name unknown),
David Zetwo, Major Barry Smith, Valerie Kusiak, Nancy Giroux, and Robin M.
Lewis (together, Commonwealth Defendants) and dismissed Brown’s amended
complaint with prejudice.
            On June 5, 2014, Brown filed a complaint against the Commonwealth
Defendants and alleged the following.       In April 2014, Defendant Sayors issued
misconduct charges against Brown, contending that Brown used threatening and
abusive language toward an employee at the State Correctional Institution at
Rockview. According to the complaint, Defendant Sayors’ misconduct charges were
fabricated and made in retaliation for Brown filing a grievance against Defendant
Sayors in October 2013, wherein he alleged that Defendant Sayors engaged in racial
discrimination. In this regard, the complaint asserted that Defendant Sayors’ conduct
violated Brown’s First Amendment rights and the state law torts of fraud and
intentional infliction of emotional distress.
             In his complaint, Brown also averred that Defendant Szelewski, a
misconduct hearing examiner, proceeded with a hearing on the misconduct charges
when Brown was not provided with prior notice of the charges and failed to allow
Brown sufficient opportunity to present evidence at the hearing. On these allegations,
the complaint asserted that Defendant Szelewski violated Brown’s rights under the
due process clause of the United States Constitution. In addition, Brown alleged that
Defendants Zetwo, Smith, Kusiak, Giroux, and Lewis, all members of the Program
Review Committee and a Chief Grievance officer, violated his Eighth Amendment
right against cruel and unusual punishment in failing to address and/or properly
investigate his retaliation claim against Defendant Sayors during the appeal process
on the misconduct charges.
             On November 5, 2014, the Commonwealth Defendants filed preliminary
objections in the nature of a demurrer and other grounds. By order dated November
5, 2014, the trial court sustained the objections, concluding that Brown failed to plead
sufficient facts in support of his constitutional law claims and that his state law claims
were barred by sovereign immunity. In its order, the trial court granted Brown leave
to amend his complaint to cure these deficiencies.
             In his amended complaint dated January 2, 2015, Brown abandoned his
due process claim against Defendant Szelewski. Brown also added averments that
Defendant Sayors was acting outside the scope of his employment when he issued the



                                            2
misconduct charges and violated the Department of Corrections’ Code of Ethics. In
all other material respects, the amended complaint duplicated the allegations in the
original complaint.
                On February 20, 2015, the Commonwealth Defendants filed preliminary
objections to the amended complaint, primarily demurring on the basis that the
averred facts failed to state a legal claim for which relief can be granted. By order
dated February 25, 2015, the trial court sustained the preliminary objections based on
the reasons set forth in its November 5, 2014 order.
                Brown then filed a notice of appeal to the Superior Court, which was due
on or before March 27, 2015.1 On its face, Brown’s notice of appeal contained a
signature date of March 26, 2015, and the envelope in which it was sent had a
stamped notation, “Inmate Mail – PA Dept of Corrections,” and a post-marked
mailing date of March 27, 2015.               However, Brown’s notice of appeal was not
stamped and recorded as being received by the prothonotary until April 1, 2015.
                On April 16, 2015, the trial court entered an order requiring Brown to
file a Pa.R.A.P. 1925(b) statement within twenty-one days, i.e., on or before May 7,
2015. Brown thereafter submitted a 1925(b) statement. On its face, Brown’s 1925(b)
statement contained a signature date of May 6, 2015, and the envelope in which it
was sent had a stamped notation, “Inmate Mail – PA Dept of Corrections,” and a
post-marked mailing date of May 7, 2015. However, Brown’s 1925(b) statement was
not stamped and recorded as being received by the prothonotary until May 11, 2015.
                In his 1925(b) statement, Brown alleged that the trial court erred in
dismissing his amended complaint based on the reasons in its November 5, 2014
order because the Commonwealth Defendants’ first set of preliminary objections

      1
          By order dated July 7, 2015, the Superior Court transferred the appeal to this Court.



                                                   3
became moot upon the filing of the amended complaint. Brown also asserted that the
trial court erred in dismissing the amended complaint without first providing him
with thirty days in which to file a response to the second set of preliminary
objections.
              In its accompanying Pa.R.A.P. 1925(a) opinion, the trial court
determined that Brown failed to preserve any issue for review because his 1925(b)
statement was filed untimely on May 11, 2015, beyond the due date of May 7, 2015.
The trial court further concluded that it properly relied on the reasons in its November
5, 2014 order to dismiss Brown’s amended complaint because this reasoning
addressed both Brown’s original complaint and amended complaint and Brown did
not remedy the deficiencies in his original complaint.           Finally, the trial court
determined that Brown’s amended complaint failed to state a due process claim, even
though Brown removed this claim from his original complaint and did not include it
in his amended complaint.
              Before we reach the merits, we must determine whether Brown timely
filed his notice of appeal2 and 1925(b) statement. See Commonwealth v. Butler, 812
A.2d 631, 634 (Pa. 2002); The Spirit of the Avenger Ministries v. Commonwealth,
767 A.2d 1130, 1131 n.4 (Pa. Cmwlth. 2001).
              In general, “the notice of appeal . . . shall be filed within 30 days after
the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). A party
waives the right to appeal an order if the notice of the appeal is not filed within 30
days after entry of the relevant order. Koken v. Colonial Assurance Company, 885


      2
        In the statement of jurisdiction portion of their appellate brief, the Commonwealth
Defendants asserted that Brown filed an untimely notice of appeal.




                                            4
A.2d 1078, 1101 (Pa. Cmwlth. 2005).         Importantly, the timeliness of an appeal is
jurisdictional, and this Court must quash an untimely appeal absent a showing of
fraud or a breakdown in the court’s operation. City of Philadelphia v. Frempong, 865
A.2d 314, 317 (Pa. Cmwlth. 2005).
              Further, whenever the trial court orders an appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), the
appellant must comply in a timely manner. In re Clinton County Tax Claims, 109 A.
3d 331, 334 (Pa. Cmwlth. 2015). Failure to comply with the order’s directive will
result in waiver of all issues raised on appeal. Id.
              However, under the prisoner mailbox rule, a prisoner’s pro se filing is
deemed to be filed at the time it is given to prison officials or put in the prison
mailbox. Kittrell v. Watson, 88 A.3d 1091, 1096-97 (Pa. Cmwlth. 2014). The reason
for this rule is that:

              The situation of prisoners seeking to appeal without the aid
              of counsel is unique. Such prisoners cannot take the steps
              other litigants can take to monitor the processing of their
              notices of appeal and to ensure that the court clerk receives
              and stamps their notices of appeal before the 30-day
              deadline. Unlike other litigants, pro se prisoners cannot
              personally travel to the courthouse to see that the notice is
              stamped ‘filed’ or to establish the date on which the court
              received the notice. Other litigants may choose to entrust
              their appeals to the vagaries of the mail and the clerk’s
              process for stamping incoming papers, but only the pro se
              prisoner is forced to do so by his situation.

Smith v. Pennsylvania Board of Probation and Parole, 683 A.2d 278, 281 (Pa 1996).
              Here, Brown proceeded pro se throughout this litigation. Although the
prothonotary did not receive and record Brown’s notice of appeal until April 1, 2015,
the envelope in which the notice was delivered contains a post-marked mailing date



                                            5
of March 27, 2015. Moreover, although the prothonotary did not receive and record
Brown’s 1925(b) statement until May 11, 2015, the envelope in which the statement
was delivered contains a post-marked mailing date of May 7, 2015.                        The only
sustainable inferences to be drawn from these facts is that Brown delivered the
envelopes containing his notice of appeal and 1925(b) statement to the prison
officials, or placed them in the prison mailbox, on or before their respective due dates
of March 27, 2015, and May 7, 2015. Therefore, we conclude that the prisoner
mailbox rule applies and that Brown’s notice of appeal and 1925(b) statement were
timely filed. See Commonwealth v. Ray, 134 A.3d 1109, 1110 n.2 (Pa. Super. 2016)
(concluding that a mailing stamp date on the prisoner’s envelope proved that the
prisoner placed his legal filing in the hands of the prison authorities on or before the
stamp date). Accordingly, we will address the issues that Brown raises in his brief.
               On appeal to this Court,3 Brown contends that the trial court erred in
sustaining the Commonwealth Defendants’ preliminary objections to the amended
complaint on the basis of the reasoning contained in its first order dismissing the
original complaint. Brown argues that his amended complaint replaced his original
complaint and the Commonwealth Defendants’ preliminary objections to the original
complaint. In addition, Brown asserts that the trial court erred in failing to provide




       3
         We note that appellate review of a trial court’s order sustaining preliminary objections and
dismissing a complaint is limited to determining whether the trial court abused its discretion or
committed an error of law. Petty v. Hospital Service Association of Northeastern Pennsylvania, 967
A.2d 439, 443 n.7 (Pa. Cmwlth. 2009). In reviewing preliminary objections, all well-pleaded
relevant and material facts are to be considered as true, and preliminary objections shall only be
sustained when they are free and clear from doubt. Id. Such review raises a question of law; thus,
our standard of review is de novo and our scope of review is plenary. Id.




                                                 6
him with thirty days in which to respond to the Commonwealth Defendants’
preliminary objections to the amended complaint.4
               Here, in its November 5, 2014 order, the trial court sustained the
preliminary objections to the original complaint, concluding that Brown’s claims
failed as a matter of law and granting Brown leave to amend his complaint. Contrary
to Brown’s assertions, the trial court’s February 25, 2015 order specifically ruled on
the Commonwealth Defendants’ second set of preliminary objections and found that
Brown’s amended complaint failed to cure the deficiencies of his original complaint.
As the trial court explained:          “Although the November 5, 2014 order and the
February 25, 2015 order relied on the same reasoning, they addressed the Complaint
and Amended Complaint separately.                    Each [i.e., complaint] was considered
independently and the Preliminary Objections to each were sustained by separate
orders.” Trial court op. at 2. Upon review, this Court is unable to discern any error
on the part of the trial court.
               Moreover, in some instances, a party must be provided with thirty days
to file a response to preliminary objections. See 2 GOODRICH AMRAM 2D §1017(a):14
(“The right to plead over and file a responsive pleading to preliminary objections
exists only where the preliminary objections aver facts . . . .”). However, “[w]ith
respect to those preliminary objections that may be determined from the facts of
record, no response by the opposing party is required or permitted.” Chester Upland

       4
          Brown also faults the trial court for disposing of his due process claim in its Pa.R.A.P
1925(a) opinion when Brown’s amended complaint did not assert a due process claim. However,
“[n]egligence in the air, so to speak, will not do,” Bradshaw v. Rawlings, 612 F.2d 135, 138 (3d Cir.
1979), and Brown has not suffered any demonstrable harm or prejudice as a result of the trial
court’s ruling. See also Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095,
1117 (Pa. Cmwlth. 2005) (concluding that an improper finding of fact that does not affect the
outcome of the case constitutes harmless error).



                                                 7
School District v. Yesavage, 653 A.2d 1319, 1325 (Pa. Cmwlth. 1994). In this case,
the Commonwealth Defendants’ second set of preliminary objections sounded in
demurrer, testing the legal sufficiency of the claims given the facts averred in the
amended complaint, and the trial court resolved these preliminary objections by
analyzing the face of Brown’s amended complaint. See Pa.R.C.P. No. 1028(b)(2),
Note (stating that a preliminary objection in the nature of a demurrer “may be
determined from facts of record so that further evidence is not required.”). As such,
Brown was not entitled to file a response, and we conclude that the trial court did not
commit procedural error in dismissing his amended complaint.
             Brown further argues that his state law claims for fraud and intentional
infliction of emotional distress are not barred by sovereign immunity because he
averred that Defendant Sayors was acting outside the scope of his employment when
he allegedly fabricated the misconduct charges. Brown also argues that he pled a
viable First Amendment retaliation claim.
             However, Brown did not raise these issues in his 1925(b) statement.
Therefore, they are waived for purposes of this appeal. Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement . . . are waived.”); Kull v. Guisse, 81 A.3d 148,
160 (Pa. Cmwlth. 2013).
             Even if these issues were not waived, we would conclude that they lack
merit. As a general matter, this Court has held that intentional torts asserted in
connection with a false or fabricated misconduct report do not overcome the bar to
sovereign immunity. See Brown v. Blaine, 833 A.2d 1166, 1172-73 (Pa. Cmwlth.
2003) (concluding that a prisoner’s libel claim asserted against prisoner officials for
allegedly fabricating charges and accusing the prisoner of destroying prison property
was barred by sovereign immunity); see also Kull, 81 A.3d at 158-59.



                                            8
              Regardless, on a more fundamental level, Brown has failed to allege
essential elements of a claim for intentional infliction of emotional distress, namely
that Defendant Sayors engaged in “outrageous conduct” or that Brown suffered any
kind of physical harm as a result of the allegedly false misconduct report. See Reeves
v. Middletown Athletic Association, 866 A.2d 1115, 1122 n.5 (Pa. Super. 2004)
(defining “outrageous or extreme conduct” as conduct that is “so outrageous in
character, so extreme in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in civilized society.”); Fewell v.
Besner, 664 A.2d 577, 582 (Pa. Super. 1995) (“A plaintiff must also show physical
injury or harm in order to sustain a cause of action for intentional infliction of
emotional distress.”). Brown has also failed to aver essential elements of common
law fraud, particularly that he, himself, was the recipient of Defendant Sayors’
misrepresentations in the misconduct charges, relied upon those representations, and
suffered detrimental harm as a result of that reliance. See Joyce v. Erie Insurance
Exchange, 74 A.3d 157, 167 (Pa. Super. 2013) (“For a prima facie case of fraud, the
recipient of the misrepresentation must be the one to reasonably rely upon the
misrepresentation and to be damaged as a proximate cause of that reliance.”)
(citations omitted, emphasis in original).
              Accordingly, having determined that Brown’s assertions of error on
appeal either lack merit and/or are waived, we affirm the trial court’s February 25,
2015 order.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge




                                             9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lamar Brown,                           :
                  Appellant            :
                                       :    No. 1509 C.D. 2015
            v.                         :
                                       :
Lt. David Sayors, Szelewski, David     :
Zetwo, Maj. Barry Smith, Valerie       :
Kusiak, Nancy Giroux, Robin M.         :
Lewis                                  :


                                     ORDER


            AND NOW, this 13th day of July, 2016, the February 25, 2015 order
of the Court of Common Pleas of Erie County is hereby affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
