            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Calvin Rouse,                               :
                           Appellant        :
                                            :
             v.                             :   No. 317 C.D. 2016
                                            :   Submitted: June 2, 2017
R. Seth Williams, Jennifer Kralle,          :
District Attorneys, Brien V. Issel,         :
Timothy O'Donnell, Police Officers          :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: August 28, 2017


                                I. INTRODUCTION
             Calvin Rouse (Appellant) appeals from two orders of the Court of
Common Pleas of Philadelphia County (trial court).1             The first order, dated
September 18, 2015, sustained Officer Brien V. Issel’s (Officer Issel) preliminary
objections and dismissed Appellant’s complaint as to Officer Issel with prejudice.
The second order, dated October 19, 2015, sustained R. Seth Williams’
(DA Williams) and Jennifer Kralle’s (ADA Kralle)2 preliminary objections and


      1
         Appellant initially appealed this matter to the Superior Court. By order docketed
January 19, 2016, the Superior Court transferred the matter to this Court.
      2
         DA Williams and ADA Kralle are herein collectively referred to as “District
Attorneys.”
dismissed Appellant’s complaint as to District Attorneys with prejudice. For the
reasons set forth below, we affirm, partly on other grounds.
                                     II. BACKGROUND
                Officer Issel and Officer Timothy O’Donnell (Officer O’Donnell)3
arrested Appellant on June 26, 2010, on suspicion of illegal narcotics distribution.
Officers recovered a loaded revolver and $530.00 in cash from Appellant’s person
during a search incident to arrest. Appellant pled guilty to Possession of a Firearm
by a Prohibited Person under 18 Pa. C.S. § 6105 on March 31, 2011.                             The
Honorable Paula A. Patrick (Judge Patrick) sentenced Appellant to 5-10 years of
imprisonment.
                Appellant subsequently filed a motion for return of property under Pa.
R. Crim. P. 588 on October 6, 2011, seeking return of the property seized during
his arrest. The Commonwealth of Pennsylvania (Commonwealth), by and through
ADA Kralle, filed a common law forfeiture petition against the $530.00.
Appellant subsequently signed a settlement agreement (State Settlement) on
November 13, 2012, whereby $530.00 would be returned to Appellant in exchange
for Appellant releasing, inter alia, District Attorneys and the Commonwealth from
any liability arising out of the June 26, 2010 arrest. Appellant added a typed
proviso to the settlement agreement: “11-13-12 ATTENTION: I SIGNED THE
AGREEMENT FOR INTEREST TO BE INCLUDED WITH THE RETURN OF
PROPERTY, ONLY.”               (District Attorneys’ Supplemental Reproduced Record
(DA Supp. R.R.) at 97.) Judge Patrick resolved the forfeiture proceeding by
entering an order, dated September 25, 2013, denying the motion for forfeiture.

      3
          Officer Issel and Officer O’Donnell are herein collectively referred to as “Officers.”



                                                 2
This order directed that the Commonwealth return the $530.00 to Appellant,
without interest, pursuant to Commonwealth v. Funds in Merrill Lynch Account,
937 A.2d 595 (Pa. Cmwlth. 2007), appeal denied sub nom. Cmwlth. v. Funds in
Merrill Lynch Account Owned by Peart, 956 A.2d 436 (Pa. 2008). Appellant did
not appeal this order.
              Appellant also filed a complaint against Officers in the United States
District Court for the Eastern District of Pennsylvania on September 13, 2011.
This complaint alleged that Officers violated 42 U.S.C. § 19834 when they
withheld $1,620.00 belonging to Appellant and seized at the time of his arrest.
Appellant signed a settlement agreement (Federal Settlement) on or about
December 21, 2012, whereby $1,620.00 would be returned to Appellant in
exchange for Appellant releasing, inter alia, Officers and the City of Philadelphia
from any liability arising out of the June 26, 2010 arrest.                In a letter dated
January 17, 2013, Appellant acknowledged receipt of his property at State
Correctional Institution Graterford.          By order dated January 15, 2013, the
Honorable John R. Padova (Judge Padova) acknowledged the settlement
agreement and dismissed Appellant’s complaint with prejudice.
              The instant action commenced when Appellant filed a complaint
against District Attorneys and Officers (collectively as Appellees) in the trial court
on October 26, 2013. In his complaint, Appellant alleged that Officers seized
Appellant’s property and that DA Williams was aware of said seizure. Appellant
further alleged that he suffered “SEVERE, STRESS, AND [WORRIES]


       4
       Section 1983 provides for a civil action against any State, Territory, or the District of
Columbia that deprives a citizen of his or her rights. 42 U.S.C. § 1983.



                                               3
[CONCERNS], NOT TO MENTION THE BURDENS, OF EXPENSES,
HARDSHIP” as a result of Appellees’ collective actions.5 (DA Supp. R.R. at 81
(emphasis and brackets in original).)6                  Appellant also avers that Appellees
“ACTED [NEGLIGENT] [RECKLESS] AND [DELIBERATE] IN THEIR
ACTION(S).” (Id. (emphasis and brackets in original).) Appellant’s complaint
requested $500.00 per day in damages, from each Appellee, to be computed from
the date his property was seized through the date of resolution of the instant action.
                Officer Issel filed preliminary objections to Appellant’s complaint,
endorsed with a notice to plead,7 on August 6, 2013.8                           (Officer Issel’s
Supplemental Reproduced Record (OI Supp. R.R. at 61b.) Officer Issel argued
that res judicata barred Appellant from asserting in his complaint a cause of action
based on what the Federal Settlement already resolved:                       that Officer Issel
improperly withheld Appellant’s property seized during the June 26, 2010 arrest.
(Id.) Appellant filed an answer to Officer Issel’s preliminary objections, wherein
he essentially argued that the Federal Settlement did not bar his present action
when the Federal Settlement did not include the $530.00 seized and placed into
evidence. (Id. at 87b.) By order dated September 18, 2015, the Honorable Karen

       5
          Appellant’s complaint also appears to state a cause of action sounding in tort for
intentional infliction of emotional distress. This reading is supported by Appellant’s brief,
wherein he explicitly argues that official immunity does not bar his claim of intentional infliction
of emotional distress.
       6
        We note that, barring the caption, Appellant’s complaint neither references
ADA Kralle by name, nor avers how she aggrieved Appellant.
       7
           See note to Pa. R.C.P. No. 1028(b)(2).
       8
         Appellant failed to serve Officer O’Donnell with his complaint at the outset of this
action. (C.R., Item No. 9.) As such, Officer O’Donnell did not file preliminary objections
personally or through counsel.



                                                    4
Shreeves-Johns (Judge Shreeves-Johns) sustained Officer Issel’s preliminary
objections and dismissed Appellant’s complaint with prejudice as to Officer Issel.
(OI Supp. R.R. at 90b.)
               On August 21, 2015, District Attorneys filed preliminary objections to
Appellant’s complaint, endorsed with a notice to plead. (DA Supp. R.R. at 2.)
District Attorneys argued that Appellant failed to state a claim upon which relief
could be granted and that official immunity barred Appellant’s recovery.
Appellant filed an answer to District Attorneys’ preliminary objections, wherein he
essentially argued that letters sent by ADA Kralle and a report of the Internal
Affairs Division of the Philadelphia Police Department show that District
Attorneys “ATTEMPTED TO EXTORT, BRIBE OR APPEASE PLAINTIFF
WITH A PORTION OF PLAINTIFF’S ILLEGALLY SEIZED 530.00 [sic]” and
unduly delayed the return of Appellant’s property. (Certified Record (C.R.), Item
No. 15 (emphasis in original).)              By order dated October 19, 2015, Judge
Shreeves-Johns sustained District Attorneys’ preliminary objections and dismissed
Appellant’s complaint with prejudice as to District Attorneys. (DA Supp. R.R.
at 116.)
               The trial court issued an opinion pursuant to Pa. R.A.P. 1925(a),
explaining that res judicata barred Appellant’s claims against Appellees. (DA
Supp. R.R. at 122-25.)           District Attorneys filed a motion for correction or
modification of the record, and this court remanded the matter to the trial court to
dispose of the motion.9 The trial court issued a supplemental opinion pursuant to

       9
          District Attorneys sought to correct or modify the record from the return of property
case before Judge Patrick. In our remand order, this Court noted that the online docket entries
and certified record conflicted as to the disposition of the return of property case. The trial court
(Footnote continued on next page…)

                                                 5
Pa. R.A.P. 1925(a), analyzing District Attorneys’ preliminary objections in the
nature of a demurrer and for official immunity. (DA Supp. R.R. at 31.) The trial
court ultimately concluded that Appellant failed to state a claim upon which relief
could be granted and that official immunity barred Appellant’s claims against
District Attorneys. (Id.)
               On appeal,10 Appellant argues that official immunity does not bar his
claims for intentional infliction of emotional distress and that res judicata does not
apply to any of his claims.
                                     III. DISCUSSION
               Before the trial court, District Attorneys and Officer Issel raised the
affirmative defenses of official immunity and res judicata, respectively.
Rule 1030(a) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P.
No. 1030(a), governs affirmative defenses that must be pleaded. This rule provides



(continued…)

declined to correct or modify the record, explaining that the return of property case came before
a different court of equal jurisdiction. The trial court, therefore, viewed itself powerless to
correct the record.
       10
           When reviewing whether a trial court properly sustained preliminary objections in the
nature of a demurrer, our standard of review is de novo and our scope of review is plenary.
Mazur v. Trinity Area Sch. Dist., 961 A.2d 96, 101 (Pa. 2008). We may affirm a grant of
preliminary objections only when it is clear and free from doubt that, based on the facts pled, the
plaintiff will be unable to prove facts legally sufficient to establish a right to relief. Id. “The
question presented by the demurrer is whether, on the facts averred, the law says with certainty
that no recovery is possible.” McMahon v. Shea, 688 A.2d 1179, 1181 (Pa. 1997). In evaluating
the legal sufficiency of the challenged pleading, we accept as true all well-pled, material, and
relevant facts alleged and every inference that is fairly deducible therefrom. Mazur, 961 A.2d
at 101.




                                                6
that affirmative defenses, including immunity from suit and res judicata, shall be
pleaded in a responsive pleading under the heading “New Matter.” Pa. R.C.P.
No. 1030(a). Appellees, therefore, incorrectly asserted official immunity and res
judicata in their preliminary objections under Rule 1028 of the Pennsylvania Rules
of Civil Procedure, Pa. R.C.P. No. 1028.        In Rufo v. Bastian-Blessing Co.,
207 A.2d 823 (Pa. 1965), however, the Supreme Court of Pennsylvania held that
plaintiffs faced with a defendant’s affirmative defense incorrectly raised as a
preliminary objection may file preliminary objections to the defendant’s
preliminary objection.   Rufo, 207 A.2d at 826. If a plaintiff fails to raise a
preliminary objection to the defendant’s preliminary objections, the plaintiff
waives his claim that the defendant raised the affirmative defense in an improper
manner. Id. Appellant here failed to raise preliminary objections to Appellees’
preliminary objections, thereby waiving any claim that Appellees improperly
raised official immunity and res judicata in their preliminary objections. See id.
We, therefore, will consider the merits of each affirmative defense.
                              A. District Attorneys
             The trial court did not err in determining that official immunity bars
Appellant’s claims against District Attorneys. Official immunity from civil suits
applies to government officials, including district attorneys and assistant district
attorneys, when said government officials act within the course and scope of their
duties. See Heicklen v. Hoffman, 761 A.2d 207, 209 (Pa. Cmwlth. 2000). Official
immunity is limited to statements and actions which are “closely related” to the




                                         7
performance of those duties.              Osiris Enters. v. Borough of Whitehall,
877 A.2d 560, 567 (Pa. Cmwlth. 2005).11
              Appellant avers that DA Williams “WAS MADE AWARE OF THIS
MATTER,” apparently in reference to the withholding of Appellant’s property.
(DA Supp. R.R. at 81 (emphasis in original).) Appellant makes no additional
averments with regard to DA Williams. The record does not reveal DA Williams’
involvement in the withholding of Appellant’s property. The record likewise does
not reveal DA Williams’ involvement in the negotiations and settlement of
Appellant’s petition for return of property nor ADA Kralle’s petition for forfeiture
of Appellant’s property. We can only infer that Appellant means to argue that
DA Williams, knowing of the withholding of Appellant’s property, improperly
failed to intervene and take measures to effectuate the return of Appellant’s

       11
           Section 8546 of the Judicial Code, 42 Pa. C.S. § 8546, pertaining to the defense of
official immunity, provides:
       In any action brought against an employee of a local agency for damages on
       account of an injury to a person or property based upon claims arising from, or
       reasonably related to, the office or the performance of the duties of the employee,
       the employee may assert on his own behalf, or the local agency may assert on his
       behalf:
              (1) Defenses which are available at common law to the employee.
              (2) The defense that the conduct of the employee which gave rise
              to the claim was authorized or required by law, or that he in good
              faith reasonably believed the conduct was authorized or required
              by law.
              (3) The defense that the act of the employee which gave rise to the
              claim was within the policymaking discretion granted to the
              employee by law. For purposes of this subsection, all acts of
              members of the governing body of a local agency or of the chief
              executive officer thereof are deemed to be within the policymaking
              discretion granted to such person by law.




                                               8
property. DA Williams’ ability to do so could only arise from his official capacity
as the Philadelphia District Attorney. See Heicklen, 761 A.2d at 209. Official
immunity, therefore, protects DA Williams from Appellant’s claims.
             The record reveals that ADA Kralle obtained the State Settlement,
which the presiding court ultimately approved. (DA Supp. R.R. at 4.) While the
body of Appellant’s complaint does not refer to ADA Kralle by name, her actions
in negotiating the State Settlement in Appellant’s return of property petition, which
coincided with her own petition for forfeiture, unquestionably fall within the
course and scope of her official duties as an assistant district attorney. See Lynch
v. Johnston, 463 A.2d 87, 90 (Pa. Cmwlth. 1983) (holding where plaintiff’s
complaint against district attorney and state trooper failed to make factual
averments of conduct constituting crime, actual fraud, actual malice, or willful
misconduct and where conduct of defendants was clearly authorized or required by
law, both district attorney and state trooper were entitled to official immunity).
The conduct alleged in Appellant’s complaint, therefore, falls squarely within the
course and scope of ADA Kralle’s official duties, thereby entitling her to the
protections of official immunity.
             Appellant argues that District Attorneys’ willful misconduct,
nonetheless, serves as an exception to their official immunity. See Section 8550 of
the Judicial Code, 42 Pa. C.S. § 8550. 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 sections 8545 (relating to
             official liability generally), 8546 (relating to defense of
             official immunity), 8548 (relating to indemnity)

                                         9
             and 8549 (relating to limitation on damages) shall not
             apply.

Appellant, however, fails to plead facts, which if accepted as true, establish a right
to relief under a willful misconduct exception. Appellant’s complaint is, instead,
rife with conclusory allegations. First, Appellant alleges that “DEFENDANT’S
[sic] ARE NOT IMMUNE FROM THIS ACTION OR BY PERSONALLY
BEING SUED.” (DA Supp. R.R. at 81 (emphasis in original).) Appellant does not
plead facts to support his bare conclusion that official immunity does not bar his
claims.
             Appellant’s conclusory allegation that “THE ACTIONS CAUSED,
AND BROUGHT ABOUT BY THE DEFENDANT’S [sic] [caused] SEVERE,
STRESS, AND [WORRIES] [CONCERNS]” is likewise unavailing.                          (Id.
(emphasis and brackets in original).) Appellant’s complaint does not make factual
averments as to what actions on the part of District Attorneys constitute a crime,
actual fraud, actual malice, or willful misconduct under Section 8550 of the
Judicial Code. See Lynch, 463 A.2d at 90. The closest Appellant comes to
providing a factual averment relating to willful misconduct is that “SETH R.
WILLIAMS (DA) WAS MADE AWARE OF THIS MATTER.” (Id. (emphasis
and brackets in original).) This statement too fails to provide sufficient specificity.
Appellant does not aver how DA Williams’ alleged knowledge relates to
Section 8550.   See Lynch, 463 A.2d at 90.         Appellant’s averment that “THE
DEFENDANT ACTED [NEGLIGENT] [RECKLESS] AND [DELIBERATE] IN
THEIR ACTIONS,” again fails to provide sufficient specificity. (DA Supp. R.R.
at 81 (emphasis and brackets in original).) We are simply unable to determine,
from the face of Appellant’s complaint, what willful misconduct District Attorneys



                                          10
committed. Appellant, therefore, has not overcome his burden of pleading facts,
which if accepted as true, establish a right to relief.12
                                        B. Officer Issel
               Appellant fairs no better against Officer Issel. We note at the outset
that the Federal Settlement, upon which Officer Issel now relies, takes the form of
a “general release” whereby Appellant agreed to release Officer Issel of all claims
arising out of the June 26, 2010 arrest. We, therefore, analyze the preclusive effect
of the Federal Settlement in the context of release. Release, like res judicata,13 is
an affirmative defense that should be raised in a new matter. Pa. R.C.P. No.
1030(a). It is well settled that “[t]he effect of a release must be determined from
the ordinary meaning of its language.” Wolbach v. Fay, 412 A.2d 487, 488 (Pa.
1980). Here, the general release signed by Appellant released Officer Issel from
“all actual and/or potential liability accrued and hereafter to accrue on account of
and from all, and all manner of, actions and causes of action, claims and demands
whatsoever, either in law or equity, especially a claim for injuries and/or damages
sustained on or about June 26, 2010.” (OI Supp. R.R. at 82b.) Appellant’s instant
claims against Officer Issel sound in tort, arise out of the June 26, 2010 arrest, and
request relief in the form of damages. It is clear that the ordinary meaning of the
general release’s language releases Officer Issel from Appellant’s instant claims.


       12
           We arrive at this conclusion after affording Appellant a liberal construction of his
court filings, as required by law. See Mueller v. Pa. State Police Headquarters, 532 A.2d 900,
902 (Pa. Cmwlth. 1987) (“While pleadings filed by pro se litigants are to be construed liberally,
a pro se litigant is not to be given any particular advantage because of his lack of knowledge of
the law.”).
       13
          Officer Issel’s preliminary objection asserting res judicata is, in substance, an effort to
enforce the release set forth in the Federal Settlement. We, therefore, treat it as such.



                                                11
See Wolbach, 412 A.2d at 488. We, therefore, affirm the trial court’s dismissal of
Appellant’s claims against Officer Issel on the grounds of the affirmative defense
of release.
                                IV. CONCLUSION
              We agree with the trial court that Appellant’s claims against
Appellees are barred under the principle of official immunity. We decline to
specifically address District Attorneys’ preliminary objection in the nature of a
demurrer, generally, as an analysis of such an objection would largely be
duplicative of our official immunity analysis. We likewise decline to address
Officer Issel’s preliminary objection that Appellant’s claims are time-barred, as
this objection was not raised below. For the reasons set forth above, we conclude
that the trial court did not err by sustaining Appellees’ preliminary objections and
dismissing Appellant’s complaint.
              Accordingly, we affirm the orders of the trial court, doing so partly on
other grounds.




                                 P. KEVIN BROBSON, Judge




                                          12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Calvin Rouse,                             :
                          Appellant       :
                                          :
             v.                           :   No. 317 C.D. 2016
                                          :
R. Seth Williams, Jennifer Kralle,        :
District Attorneys, Brien V. Issel,       :
Timothy O'Donnell, Police Officers        :



                                        ORDER


             AND NOW, this 28th day of August, 2017, the orders of the Court of
Common Pleas of Philadelphia County are AFFIRMED, partly on other grounds,
as set forth in the attached Opinion.




                                 P. KEVIN BROBSON, Judge
