           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Henry Unseld Washington,              :
                      Appellant       :
                                      :
             v.                       :            No. 513 C.D. 2017
                                      :            Submitted: August 25, 2017
Louis C. Folino; Robert Gilmore;      :
P. E. Barkefelt; Lt. Kelly;           :
H. Pawlowski; Michelucci; Fisher;     :
C.O. Kelly; Department of Corrections :
and State Correctional Institution at :
Greene                                :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE J. WESLEY OLER, JR., Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                              FILED: June 12, 2018


              Henry Unseld Washington (Washington), pro se, appeals from an order
of the Court of Common Pleas of Greene County (trial court), dated
November 17, 2016. The trial court granted the preliminary objections filed by
employees of the State Correctional Institution at Greene (SCI-Greene) and the
Department of Corrections (collectively, Appellees)1 and dismissed Washington’s
complaint. For the reasons that follow, we affirm.


       1
       In his complaint, Washington lists the following parties as defendants: (1) Pennsylvania
Department of Corrections; (2) State Correctional Institution at Greene; (3) Louis C. Folino;
              Washington is an inmate at SCI-Greene.                   On April 20, 2016,
Washington filed a complaint alleging, inter alia, that Appellees willfully or
negligently destroyed Washington’s personal property. (Complaint, attached to
Washington’s brief as “Exhibit C.”) In support of his allegations, Washington
averred that on November 18, 2012, Appellees instructed Washington to leave his
cell so that Appellees could conduct a search of Washington’s cell. (Id. at ¶¶ 1, 6.)
As a result of this cell search, Appellees confiscated three pairs of sneakers
(described by Washington as antique sneakers that were collectors’ items) and over
seventy religious texts. (Id. at ¶ 5.) Washington avers that the confiscated items are
approved property that are listed on his DC-153 form. (Id. at ¶ 3.) Washington
appears to aver that the items were the subject of or are approved as a result of the
settlement of an earlier civil action that he filed in federal court against the
Department of Corrections. (Id.) Washington avers that after confiscating the items,
Appellees issued Washington a misconduct report but did not provide him with a
“Confiscated Items Receipt” (CIR), and Washington pursued the matter through the
grievance process, to no avail. (Id. at ¶¶ 10-13.) Washington further avers that on
or about January 14, 2013, Appellees informed Washington that they intentionally
destroyed Washington’s personal items. (Id. at ¶¶ 5, 17-19, 27-31.) Washington
claimed that Appellees informed him that they confiscated and destroyed his
personal property as a retaliatory measure for Washington’s previous lawsuits
against SCI-Greene staff and medical professionals.                 (Id. at ¶¶ 15, 18, 28-31.)
Washington alleged causes of action based on willful misconduct and negligence in




(4) Robert Gilmore; (5) P.E. Barkefelt; (6) Lt. Kelly; (7) H. Pawlowski; (8) Michelucci; (9) C.O.
Kelly; and (10) Fisher.

                                               2
violation of 42 Pa. C.S. §§ 8521-28 and 8550. (Id. at ¶¶ 63-69.) Washington seeks
a myriad of declaratory, monetary, and punitive relief.
              In response, Appellees filed preliminary objections and raised two
affirmative defenses. Appellees first raised the defense of statute of limitations and
argued that Washington failed to file his claim within two years, as required by
42 Pa. C.S. § 5524. Second, Appellees raised the affirmative defense of sovereign
immunity pursuant to 1 Pa. C.S. § 2310, claiming that Commonwealth employees
are immune from the claims asserted by Washington.                   By order dated
November 17, 2016, the trial court sustained Appellees’ preliminary objection
regarding sovereign immunity, overruled Appellees’ preliminary objection
regarding the statute of limitations, and dismissed Washington’s claim. The instant
appeal followed.
              On appeal, Washington presents two arguments. Washington first
argues that the trial court erred in concluding that sovereign immunity is available
to Appellees in this situation. Second, Washington argues that the trial court erred
in limiting its analysis of the merits of Appellees’ preliminary objections to the face
of Washington’s complaint instead of reviewing all documentation contained within
the docket.
              This Court’s scope of review of a decision by a trial court is limited to
a determination of whether the trial court abused its discretion, committed an error
of law, or whether constitutional rights were violated.            Long v. Thomas,
619 A.2d 394, 396 (Pa. Cmwlth. 1992), appeal denied, 631 A.2d 1012 (Pa. 1993).
In an appeal challenging the trial court’s order sustaining preliminary objections, we
must determine “whether on the facts averred, the law states with certainty that no
recovery is possible.” Hawks by Hawks v. Livermore, 629 A.2d 270, 271 n.3


                                           3
(Pa. Cmwlth. 1993). In reviewing preliminary objections, only facts that are well
pled, material, and relevant are considered true, and those preliminary objections
which are clear and free from doubt will be sustained. Triage, Inc. v. Dep’t of
Transp., 537 A.2d 903, 907 n.7 (Pa. Cmwlth. 1988). Argumentative allegations or
expressions of opinion are not accepted as true. Firing v. Kephart, 353 A.2d 833,
834 (Pa. 1976).
            First, we will address Washington’s argument that the trial court erred
in concluding that sovereign immunity bars his action against Appellees.
“Generally, sovereign immunity protects Commonwealth officials and employees
acting within the scope of their duties from civil liability.”       Kull v. Guisse,
81 A.3d 148, 154 (Pa. Cmwlth. 2013), appeal denied, 91 A.3d 163 (Pa. 2014). This
protection extends to claims for intentional torts. Id. at 157. The General Assembly
has provided that sovereign immunity may be waived in certain limited situations
involving negligence of a Commonwealth official or employee. 42 Pa. C.S. § 8522.
In La Frankie v. Miklich, 618 A.2d 1145 (Pa. Cmwlth. 1992) (en banc), this Court
observed:
            [T]he proper test to determine if a Commonwealth
            employee is protected from liability pursuant to . . . 42 Pa.
            C.S. § 8522 is to consider whether the Commonwealth
            employee was acting within the scope of his or her
            employment; whether the alleged act which causes injury
            was negligent and damages would be recoverable but for
            the availability of the immunity defense; and whether the
            act fits within one of the nine exceptions to sovereign
            immunity.

La Frankie, 618 A.2d at 1149. Because of the clear intent to insulate the government
from liability, the exceptions to sovereign immunity are to be strictly construed.
Dean v. Dep’t of Transp., 751 A.2d 1130, 1132 (Pa. 2000). Further, these exceptions
only apply in claims based in negligence.             See Williams v. Stickman,
                                         4
917 A.2d 915, 917-18 (Pa. Cmwlth.), appeal denied, 932 A.2d 1290 (Pa. 2007). A
Commonwealth defendant will not be liable for his intentional acts, provided he was
acting within the scope of his duties. Id.
             Here, Washington argues that the personal property exception found in
42 Pa. C.S. § 8522(b)(3) precludes Appellees’ invocation of sovereign immunity.
The personal property exception to sovereign immunity provides, in part:
             (a) Liability imposed  The General Assembly . . . does
             hereby waive . . . sovereign immunity as a bar to an action
             against Commonwealth parties, for damages arising out of
             a negligent act where the damages would be recoverable
             under the common law or a statute creating a cause of
             action if the injury were caused by a person not having
             available the defense of sovereign immunity.
             (b) Acts which may impose liability  The following
             acts by a Commonwealth party may result in the
             imposition of liability on the Commonwealth and the
             defense of sovereign immunity shall not be raised to
             claims for damages caused by:
                    ....
                    (3) Care, custody or control of personal property
                     The care, custody or control of personal property
                    in the possession or control of Commonwealth
                    parties, including Commonwealth-owned personal
                    property and property of persons held by a
                    Commonwealth agency . . . .

42 Pa. C.S. § 8522.
             Appellees assert that a careful review of Washington’s complaint
indicates that this is not a case where Department of Corrections staff negligently
lost or damaged an inmate’s property.            Appellees essentially contend that
Washington’s allegations amount to a claim for an intentional tort, and
Commonwealth employees do not lose their immunity for intentional torts, provided
they are acting within the scope of their employment. See Kull, 81 A.3d at 154.

                                             5
Appellees cite several recent unreported memorandum decisions of this Court in
support of that assertion.2                 See DeShields v. Bennet (Pa. Cmwlth.,
No. 1049 C.D. 2016, filed June 20, 2017) (holding trial court properly granted
summary judgement in favor of the Department of Corrections on the basis of
sovereign immunity where correctional officers acted within the course and scope
of their employment when intentionally destroying confiscated items in amount in
excess of that permitted to be possessed by inmate), appeal denied, 172 A.3d 148
(Pa. 2018); Wheeler v. Delbalso (Pa. Cmwlth., No. 639 C.D. 2015, filed November
3, 2015) (holding trial court properly sustained preliminary objection on basis of
sovereign immunity where correctional officers acted within the course and scope
of their employment when intentionally destroying confiscated contraband); Orozco
v. Dep’t of Corr. (Pa. Cmwlth., No. 268 C.D. 2013, filed January 14, 2014) (holding
trial court properly sustained preliminary objection where correctional officers
intentionally destroyed items pursuant to policy limiting what inmate may bring
when transferring from out-of-state prison to Pennsylvania prison).
               Washington, in an effort to preclude the application of sovereign
immunity, describes Appellees’ conduct as negligent rather than intentional.
Washington, however, states multiple times that Appellees intentionally destroyed
his items as a retaliatory measure towards Washington. (Complaint at ¶¶ 5, 17-19,
27-31.) Washington further avers that Appellees taunted Washington after the
destruction of his property, stating that one of the Appellees “declared to
[Washington] that [he] personally gave the orders, then observed [Washington’s] . . .
items [and] books . . . being destroyed.” (Id. at ¶ 19.)

       2
         Section 414 of the Commonwealth Court Internal Operating Procedures provides: “A
single-judge opinion of this court, even if reported, shall be cited only for its persuasive value, not
as a binding precedent.” 210 Pa. Code § 69.414.

                                                  6
             A fair reading of Washington’s factual allegations do not give rise to a
cause of action for negligence. Despite his efforts to the contrary, Washington’s
allegations give rise to an intentional tort, and his negligence claim is nothing more
than a bare legal conclusion of negligence. A party bringing an action under a theory
of negligence has the burden to prove the elements of a cause of action in negligence,
which are:
             (1) A duty, recognized by law, requiring the actor to
             conform to a certain standard with respect to the injured
             party; (2) a failure of the actor to conform to that standard;
             (3) a causal connection between the conduct and the
             resulting injury; and (4) actual loss or damage to the
             interests of another.

Fritz v. Glen Mills School, 894 A.2d 172, 176 (Pa. Cmwlth.), appeal denied,
909 A.2d 1291 (Pa. 2006). By definition, the alleged negligent conduct expressly
excludes “conduct that is intentionally, wantonly, or willfully disregardful of others’
rights.” Negligence, Black’s Law Dictionary 1133 (9th ed. 2009). More simply,
negligence denotes “culpable carelessness.” Id. Washington’s pleadings, however,
do not portray an act of culpable carelessness. Rather, Washington averred that
Appellees acted intentionally and willfully in their conduct.            Washington’s
allegations of negligence, therefore, are misplaced.
             In actuality, Washington’s allegations amount to a claim of conversion,
which our Supreme Court has defined as “an act of willful interference with a chattel,
done without lawful justification, by which any person entitled thereto is deprived
of use and possession.” Norriton E. Realty Corp. v. Central-Penn Nat’l Bank,
254 A.2d 637, 638 (Pa. 1969).        Commonwealth employees do not lose their
immunity for intentional torts such as conversion, provided they are acting within
the scope of their employment. See Kull, 81 A.3d at 154. To this point, Washington


                                           7
argues that Appellees acted outside the scope of their employment. Washington’s
complaint, however, concedes that Appellees were acting within the scope of their
employment. (Complaint, attached to Washington’s brief as “Exhibit C,” at ¶ 2.)
Further, in appealing the trial court’s order, Washington’s statement of errors
complained of on appeal filed pursuant to Pa. R.A.P. 1925(b) again avers that
Appellees acted within the scope of their employment. Although the actions alleged
in Washington’s complaint are disturbing, we are bound nonetheless by the manner
in which Washington pleaded them. As such, we cannot conclude that sovereign
immunity did not apply when Washington’s complaint averred the type of harm from
which sovereign immunity is designed to protect the Commonwealth—i.e., harm
resulting from intentional torts of Commonwealth employees acting within the scope
of their employment.
             Washington next argues that the trial court erred in limiting its review
to the four corners of Washington’s complaint. This argument, too, is without merit.
It is well-settled that “preliminary objections in the nature of a demurrer require the
court to resolve the issues solely on the basis of the pleadings.” Cardella v. Pub.
Sch. Emps. Ret. Bd., 827 A.2d 1277, 1282 (Pa. Cmwlth. 2003) (emphasis added).
As such, the trial court did not err in limiting its review to such pleadings, as it
applied the correct standard.
              Accordingly, the order of the trial court is affirmed.




                                          P. KEVIN BROBSON, Judge




                                          8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Henry Unseld Washington,              :
                      Appellant       :
                                      :
             v.                       :   No. 513 C.D. 2017
                                      :
Louis C. Folino; Robert Gilmore;      :
P. E. Barkefelt; Lt. Kelly;           :
H. Pawlowski; Michelucci; Fisher;     :
C.O. Kelly; Department of Corrections :
and State Correctional Institution at :
Greene                                :




                                  ORDER


           AND NOW, this 12th day of June, 2018, the order of the Court of
Common Pleas of Greene County is AFFIRMED.




                                      P. KEVIN BROBSON, Judge
