            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Mercaldo,                             :
                            Appellant         :
                                              :
              v.                              :   No. 1333 C.D. 2015
                                              :   Submitted: November 20, 2015
Kevin Kauffman, Superintendent;               :
C. Wakefield, Deputy Superintendent;          :
Captain Sunderland; Lt. Lear;                 :
Lt. Lidwell; C.O. Powell                      :


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                  FILED: March 31, 2016

              Appellant Richard Mercaldo (Mercaldo) appeals from an order of the
Court of Common Pleas of Huntingdon County (trial court).                   The trial court
sustained the preliminary objections filed by Kevin Kauffman, Superintendent of
the State Correctional Institution at Smithfield (SCI-Smithfield), C. Wakefield,
Deputy Superintendent at SCI-Smithfield, and four other individuals employed at
SCI-Smithfield: Captain Sunderland, Lieutenant Lear, Lieutenant Lidwell, and
Corrections Officer Powell (Defendants). In a complaint he filed in the trial court,
Mercaldo generally sought to recover costs for the alleged mishandling of and
damages to some of Mercaldo’s property and the loss of other smaller items and

       1
        This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of a senior judge.
two laundry bags filled with some of Mercaldo’s clothes. We reverse the trial
court’s order in part and affirm in part.
              The complaint sets forth the following factual averments. Mercaldo is
an inmate who is incarcerated at SCI-Smithfield. On August 6, 2014, Mercaldo
was removed from his cell and placed in the Restricted Housing Unit (RHU). On
August 20, 2014, Mercaldo was released from the RHU and placed in a different
cell, K-B-14. Officer Powell supervised the packing of Mercaldo’s property, but
he did not inventory the property.          Apparently, upon arrival at his new cell,
Mercaldo found that his typewriter and television had been damaged. In a filed
grievance (attached to the complaint as an exhibit), Mercaldo claimed that, in
addition to his television and typewriter having been returned in a broken
condition, a number of items of his property had not been returned to his new cell.
Mercaldo averred that two bags of his laundry (containing seven days of socks,
boxer underwear, and t-shirts) went missing.2 Mercaldo reported the damages and
loss of property to RHU staff members.
              On August 21, 2014, Mercaldo informed Captain Sunderland
regarding the damages and losses, and Captain Sunderland inspected the damaged
items and instructed Mercaldo to provide a list of damages and losses to Lieutenant
Lidwell. On September 6, 2014, Mercaldo filed Grievance No. SMI-526085-14, in
which he asserted that the Defendants had offered him approximately $600 to
reimburse him for the damage to his television and typewriter, but that the

       2
          Other items Mercaldo claimed were lost include: the laundry bags, wash cloths,
handkerchiefs, shoe laces, a shoe brush, a mechanical pencil, laundry detergent, tobacco
products, peanut butter, honey, rice, sugar, mustard, ketchup, envelopes, and extension cords.
(Complaint para. no. 25.) The list of lost laundry also included seven t-shirts, seven pairs of
heavy weight socks, and seven pairs of boxer shorts. (Id.)



                                              2
Defendants have refused to refund him for the full amount of his losses and
damages, which he described as: (1) damage to the typewriter’s LCD display, print
wheel alignment control, and printer mechanism; and (2) damage to the control
buttons of the television and potentially other unknown damages that a
professional repair person might discover.       The Defendants’ offer included a
requirement that Mercaldo purchase a new typewriter and television from the
commissary and did not cover full replacement costs. Additionally, Mercaldo
complained that if he were to accept the offer, he would lose the value of the
typewriter accessories he bought for his typewriter and would be required to buy
different accessories for a commissary-purchased typewriter. Mercaldo averred
that the Defendants have no right to force him to replace his belongings, rather
than to pay for the costs of repair. Further, Mercaldo asserted that if he is required
to purchase a new typewriter from the commissary, the Defendants should be
required to pay for the cost of the unusable typewriter accessories, which
presumably would not be suited to the new typewriter.
             Mercaldo requested relief directing the Defendants to pay him
$666.41 for the cost to have his television and typewriter repaired. Mercaldo
averred that if the cost of repair exceeds that amount, then he should have the right
to decide whether to pay for repair or replace the devices. Alternatively, Mercaldo
requested that if the trial court were to order him to accept the offer of
replacement, the Defendants should compensate him for the cost of the unusable
typewriter accessories he purchased for his typewriter.
             In Count I of the complaint, Mercaldo sought damages based upon his
claim that the Defendants’ actions as averred in the complaint constituted an action




                                          3
in assumpsit or replevin. In Count II, Mercaldo claimed that the Defendants acted
negligently in the care and custody of his property.
              Approximately two weeks after he filed the complaint, Mercaldo filed
a petition for temporary restraining order and preliminary injunction, which
referred to an attachment identified as a “supplemental complaint[;] request for
preliminary injunction[; and] notification to court of change of circumstances.”
(Certified Record (C.R.), Item no. 5.) Mercaldo asserted that after he filed the
complaint, the Defendants deposited $538.42 into his inmate account and
confiscated his television and typewriter.           In the “supplemental complaint,”
Mercaldo averred that he had not agreed to accept the amount deposited to cover
the damaged items and that the Defendants’ act of confiscating his property
constituted the commission of numerous crimes. Mercaldo averred that Defendant
Sunderland directed other corrections employees to confiscate his television and
typewriter and that such action constituted a violation of his due process rights.
Mercaldo asserted that he was requesting additional money damages for alleged
mental anguish, pain and suffering, compensatory, punitive, and special damages.
Additionally, Mercaldo claimed that the Defendants’ apparent payment of some
compensation constituted an admission that the Defendants had caused the
damages to his property.
              The Defendants filed preliminary objections to both the original
complaint and the “supplemental complaint.”3 In the preliminary objections to the

       3
         We note here that Pa. R.C.P. No. 1033 provides for amendments with the consent of a
defendant or by leave of court. Mercaldo never sought leave of court or the consent of the
Defendants to file an amended complaint. Additionally, once the Defendants filed their
preliminary objections, Mercaldo had a right to file an amended pleading within twenty days as
of course. Mercaldo did not avail himself of that right by filing an amended complaint that
(Footnote continued on next page…)

                                              4
complaint, the Defendants included: (1) a demurrer to Count I for failure to state a
claim upon which relief can be granted based upon sovereign immunity; (2) a
demurrer to Count II for failure to state a claim upon which relief can be granted,
also based upon sovereign immunity; (3) a motion in the nature to strike the
complaint for failure to plead with sufficient specificity under Pa. R.C.P. No. 1028;
(4) a motion to dismiss for failure to serve the Defendants or the Office of the
Attorney General under Pa. R.C.P. No. 422 and for failure to effect timely original
service on the Defendants in violation of Pa. R.C.P. No. 401(a); and (5) a motion
to strike for failure to conform the pleadings to Pa. R.C.P. No. 1020. With regard
to Mercaldo’s alleged failure to plead with specificity and to conform the pleadings
to Pa. R.C.P. Nos. 1028 and 1020, the Defendants alternatively requested the trial
court to dismiss the complaint without prejudice to permit Mercaldo to file an
amended complaint that complies with the pleading and specificity requirements of
the Rules of Civil Procedure.
             In the preliminary objections to the “supplemental complaint,” the
Defendants asserted that: (1) they are immune from suit for the causes of action
Mercaldo raised therein; and (2) Mercaldo failed to serve the Defendants under Pa.
R.C.P. No. 422 and the Attorney General under Section 8523(b) of the Judicial
Code, 42 Pa. C.S. § 8523(b). Based upon the failure of Mercaldo to serve the
“supplemental complaint” properly, the Defendants asserted that the trial court
should dismiss the “supplemental complaint” with prejudice based upon Pa. R.C.P.


(continued…)

would incorporate any new claims and/or facts set forth in the so-called “supplemental
complaint.”



                                          5
No. 401(a), which provides that plaintiffs must serve original process upon
defendants “within thirty days after the issuance of the writ or the filing of the
complaint.”
              In a response filed to the preliminary objections, Mercaldo did not
dispute the Defendants’ essential objections regarding his failure to comply with
the rules of pleading and service, but he requested the trial court to permit him to
file an amended complaint. The trial court sustained the preliminary objections
and dismissed the complaint with prejudice.4 Mercaldo filed an appeal from the
trial court’s order, and, as directed by the trial court, filed a statement of errors
complained of on appeal. Mercaldo raised the following alleged primary errors on
the part of the trial court: (1) if service was faulty, then the trial court never had
jurisdiction over the complaint and the trial court should have permitted Mercaldo
to correct technical mistakes under Pa. R.C.P. No. 1033 or permitted him to refile
the complaint, rather than dismiss the complaint with prejudice; and (2) the trial
court erred by failing to permit Mercaldo to file an amended complaint that
addressed the Defendants’ immunity defenses and conformed to the requirements
of the Pennsylvania Rules of Civil Procedure, rather than dismiss the complaint
with prejudice.
              In its Pa. R.A.P. 1925(a) opinion, the trial court rejected Mercaldo’s
claims of error. First, the trial court concluded that despite faulty service of the

       4
         The trial court’s order also denied Mercaldo’s “omnibus motion.” That motion appears,
in pertinent part, to provide notification to the trial court that Mercaldo expected to be
transported from SCI-Smithfield for the purpose of DNA testing in a criminal matter and a
request, based upon Mercaldo’s assumption that the trial court would dismiss the complaint
without prejudice, that he be granted an extension of time, if necessary, to file an amended
complaint. (Original Record Item no. 13.)



                                              6
complaint, the trial court had jurisdiction over the complaint under Article V,
Section 5 of the Pennsylvania Constitution, which vests the common pleas courts
with original jurisdiction over cases such as Mercaldo’s.                       With regard to
Mercaldo’s claim that the trial court erred by not permitting him to file an amended
complaint before dismissing the matter with prejudice, the trial court concluded
that Mercaldo failed to plead facts alleging conduct that falls within an exception
to the sovereign immunity provisions of Section 8522 of the Judicial Code, 42 Pa.
C.S. §§ 8522. The trial court concluded that even if Mercaldo filed an amended
complaint, none of his allegations were actionable.
               On appeal,5 Mercaldo raises the following issues: (1) whether his
service of the complaint was faulty, and, if so, whether the trial court should have
permitted him to correct defects in service;6 and (2) whether the trial court erred by

       5
          Our review of a trial court order sustaining preliminary objections is limited to
considering whether the trial court erred as a matter of law. Valley Forge Towers Apts. N. v.
Upper Merion Area Sch. Dist., 124 A.3d 363, 366 n.2 (Pa. Cmwlth. 2015). We must accept as
true all well-pleaded facts set forth in the complaint and inferences that we may fairly deduce
therefrom. Id. Where preliminary objections assert a demurrer, a court should sustain
preliminary objections only where the factual pleadings clearly are insufficient to support a
claim, with all doubt being resolved in favor of the plaintiff. Id.
       6
          With regard to the service Mercaldo made of the complaint, we note that Mercaldo
admits that he attempted to make service by handing the complaint to a person in the prison mail
room. As the Defendants note, Pa. R.C.P. No. 400 requires a plaintiff to serve a complaint
through a sheriff. Thus, Mercaldo’s attempt to serve the complaint upon the Defendants was not
effective. Mercaldo also failed to serve the Attorney General, as required by Section 8523(b) of
the Judicial Code. The Defendants, citing McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa.
2005), acknowledge that, generally, when a plaintiff fails properly to serve necessary parties, a
trial court should dismiss a complaint without prejudice, allowing a plaintiff to correct such
errors. The Defendants also argue, however, that Mercaldo was required to file a petition to
reinstate the complaint. While we agree with the Defendants that the service issue would
ordinarily require Mercaldo to file a petition to reinstate, in this case, the Defendants’ discussion
with regard to the other preliminary objections (at least with regard to their acknowledgment that
(Footnote continued on next page…)

                                                 7
not permitting Mercaldo to correct defects in the complaint, including an alleged
failure to include statutory citations relating to the Defendants’ sovereign
immunity defense.7
              The Defendants contend that sovereign immunity bars all of
Mercaldo’s legal claims except his negligence action against Officer Powell, and
that neither pleading and/or service corrections nor additional factual averments
will alter that outcome.8       The Defendants argue that the immunity of all the
Defendants except Officer Powell is clear, and, therefore, we should affirm the trial
court’s order and reverse only the trial court’s order sustaining the preliminary
objections with regard to Officer Powell.



(continued…)

the trial court erred in sustaining the demurrer to Mercaldo’s negligence claim against Officer
Powell) appears to reflect a tacit waiver of the personal service requirements. To ease the
procedural problems that we would otherwise have to face, and in light of the Defendants’
apparent concession with regard to the negligence claim against Officer Powell, we will proceed
instead to address the demurrers.
       7
          Mercaldo also raises the question of whether the Defendants committed criminal acts in
the handling of Mercaldo’s claim that the Defendants acted negligently with regard to his
property. Such matters are beyond the jurisdiction of this Court as well as beyond the matters a
trial court may consider in a civil complaint. Consequently, we need not address this issue.
       8
          Generally, and according to the Pennsylvania Rules of Civil Procedure, a party may
assert the affirmative defense of sovereign immunity in new matter. Pa. R.C.P. No. 1030. This
Court, however, has considered immunity defenses raised in preliminary objections, and rejected
a plaintiff’s challenges to such objections, where delaying consideration of an immunity defense
would serve no purpose. McDevitt v. Golin, 386 A.2d 627 (Pa. Cmwlth. 1978) (where immunity
defense is clear from face of complaint and addressing immunity issue furthers interest in
judicial economy Court may consider immunity defense raised in preliminary objections). In
Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990), we held that demurrers
based upon immunity were proper where the face of the pleading makes clear that a legal claim
does not fall within any exception to sovereign immunity.



                                               8
              The Defendants refer us to DuBree v. Commonwealth, 393 A.2d 293
(Pa. 1978), where our Supreme Court opined that individual public employees are
not vicariously liable for the actions of subordinates merely because the
subordinate is in the employee’s chain of command. The facts must indicate that
each defendant’s conduct is actionable. Id. In this matter, Mercaldo pleaded
specific facts relating to the supervision of packing of Mercaldo’s property only by
Defendant Powell.9 Mercaldo pleaded that his property was not inventoried “while
being packed under the alleged supervision of . . . [Powell]” and that Sergeant
Henry, who is not named as a defendant, “made calls and informed [Mercaldo] that
. . . Powell was responsible for packing [Mercaldo’s] property.” (Complaint para.
12, 15.) Although Mercaldo, in his brief, mentions Defendant Sunderland as a
person to whom he reported the damaged television and typewriter, none of his
pleadings or the discussion in his brief specifically identify any of the other
Defendants as having personal responsibility or involvement in the loss of or
damage to his property. Additionally, with regard to Officer Powell, Mercaldo has
pleaded no facts implicating him in the loss of his laundry bags and the articles
contained therein. Consequently, we conclude that, to the extent that we may read
Mercaldo’s negligence claim to include his missing laundry, the trial court did not
err in sustaining the Defendants’ preliminary objection as to all of the Defendants.
We will, therefore, affirm the trial court’s order regarding the demurrers to the

       9
         In the course of grievance proceedings, Mercaldo sent a letter to Mr. Kauffman and
Captain Sunderland regarding the alleged loss of and damage to his property. In that letter,
Mercaldo indicated that Officer Powell “failed to pack my property himself, as required by
policy and/or procedure.” (Complaint, Exhibit A at 10.) Mercaldo indicated that Officer Powell
had three inmates pack the belongings, suggesting that the lack of supervision over the three
inmates resulted in the pilfering of his property by the other inmates.



                                              9
negligence claim as to all of the Defendants, except for the claim against Officer
Powell, which is limited to the alleged damages to Mercaldo’s television and
typewriter, so that the trial court, on remand, may provide Mercaldo with an
opportunity to file an amended complaint regarding his allegation that Officer
Powell acted negligently in handling his television and typewriter.
              Defendants also argue that the trial court did not err in sustaining their
demurrer to Mercaldo’s replevin and assumpsit claims.                  We begin with the
Defendants’ preliminary objection to Mercaldo’s replevin claim. “The action of
replevin is founded upon the wrongful taking and detention of property and seeks
to recover property in possession of another. The value is recovered in lieu of the
property only in case a delivery of the specific property cannot be obtained.”
Valley Gypsum Co., Inc. v. Pennsylvania State Police, 581 A.2d 707, 710 (Pa.
Cmwlth. 1990). In Valley Gypsum, we concluded that an action in replevin does
not fall within any exception to immunity contained in Section 8522 of the Judicial
Code. Id. We also held that “an action for replevin for personal property, as
hereinabove set forth, is neither one for damages arising out of a negligent act nor
within the purview of the exceptions to sovereign immunity which may impose
liability.” Id. Consequently, we agree with the Defendants’ position that the trial
court did not err in sustaining the preliminary objection to Mercaldo’s replevin
claim.10

       10
           We also agree with the Defendants’ assertion that the trial court did not err in
dismissing the due process claim Mercaldo raised in the “supplemental complaint.” As the
Defendants argue, Mercaldo asserts in the “supplemental complaint” that the Defendants
illegally confiscated his television and typewriter. Although Mercaldo averred in the complaint
that he followed the grievance process when he initially discovered that his television and
typewriter had been damaged, he has not averred that he complied with the grievance procedure
(Footnote continued on next page…)

                                              10
              We now address the merits of the Defendants’ demurrer to Mercaldo’s
assumpsit claim. An action in assumpsit is a common law action in which a
plaintiff claims that a defendant breached an express or implied promise to perform
some act or make a payment for a plaintiff. Black’s Law Dictionary 142 (9 th Ed.
2009).    In other words, this common law action is one that arises from a
contractual arrangement. In making this claim, Mercaldo rests upon the facts
recited above. It is not clear from the pleadings whether Mercaldo intended to
raise an assumpsit claim with regard to the television and typewriter as well as his
missing laundry, but we surmise that this claim primarily related to his missing
laundry. The averments relating to the missing laundry indicate that Sergeant
Henry called F-Block and was told that the laundry was sent to the laundry
department, and that laundry personnel indicated that the laundry department never
received the bags of laundry.
              Mercaldo has pleaded no facts suggesting that an express or implied
promise exists between him and the Defendants. Furthermore, Mercaldo has not
pleaded any facts that implicate any of the Defendants in a breach of a
quasi-contract that exists with regard to his laundry.            Consequently, even if

(continued…)

when Defendant Sunderland allegedly directed two SCI-Smithfield corrections officers to
confiscate that property. Consequently, we agree with the Defendants’ argument that Mercaldo
did not exhaust his administrative remedies as to this claim in the “supplemental complaint.”
Crosby v. Piazza, 465 F. App’x 168, 172 (3d Cir. 2012) (deprivation of inmate property by
corrections officials does not support due process claim when inmate has an available and
adequate post-deprivation remedy). To the extent that Mercaldo seeks the return of items of
clothing, regarding which he pleaded or argued that the Defendants may have confiscated based
upon Department regulations limiting the number of such items an inmate may possess, such a
claim is not within any exception to sovereign immunity. Valley Gypsum Co., 581 A.2d at 710.



                                             11
Mercaldo is correct in referring this Court to our decision in Williams v. Stickman,
917 A.2d 915, 918 (Pa. Cmwlth.), appeal denied, 932 A.2d 1290 (Pa. 2007), where
we rejected the argument of corrections officials and employee defendants who
claimed that an inmate’s assumpsit claim was barred by sovereign immunity,11
Mercaldo has simply not pleaded any facts that support his claim that a
quasi-contract exists with regard to laundry services. The Defendants also rely
upon provisions in the Procurement Code12 relating to the jurisdiction of the Board
of Claims to hear claims arising from contracts with the Commonwealth. Based
upon our discussion above, we do not need to address this issue.
                Accordingly, we affirm the trial court’s order in all respects except
with regard to Mercaldo’s negligence claim against Defendant Powell regarding
the television and typewriter. On remand, the trial court is directed to permit
Mercaldo to file an amended complaint limited in accordance with this opinion.




                                       P. KEVIN BROBSON, Judge




      11
         We referred to our decision in McKeesport Municipal Water Authority v. McCloskey,
690 A.2d 766 (Pa. Cmwlth.), appeal denied, 700 A.2d 445 (Pa. 1997), where we held that the
Commonwealth has waived sovereign immunity as a defense in causes of action for assumpsit.
      12
           62 Pa. C.S. §§ 3931-3939.



                                             12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Mercaldo,                        :
                         Appellant       :
                                         :
            v.                           :   No. 1333 C.D. 2015
                                         :
Kevin Kauffman, Superintendent;          :
C. Wakefield, Deputy Superintendent;     :
Captain Sunderland; Lt. Lear;            :
Lt. Lidwell; C.O. Powell                 :


                                     ORDER


            AND NOW, this 31st day of May, 2016, the order of the Court of
Common Pleas of Huntingdon County (trial court) is AFFIRMED in part and
REVERSED in part.         We AFFIRM the trial court’s order sustaining the
preliminary objections of defendants Kevin Kauffman, C. Wakefield, Captain
Sunderland, Lieutenant Lear, and Lieutenant Lidwell. With regard to Defendant
C.O. Powell, we AFFIRM the trial court’s order sustaining the preliminary
objections relative to Richard Mercaldo’s (Mercaldo) replevin and assumpsit
claims. With regard to Mercaldo’s negligence claim against C.O. Powell, we
REVERSE the trial court’s order and remand the matter to the trial court with
direction that the trial court permit Mercaldo to file an amended complaint against
C.O Powell limited to Mercaldo’s negligence claim relating to the handling of
Mercaldo’s television and typewriter.
            Jurisdiction relinquished.



                               P. KEVIN BROBSON, Judge
