             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David V. Jordan,                    :
                  Appellant         :
                                    :
      v.                            : No. 1863 C.D. 2017
                                    : SUBMITTED: June 29, 2018
Michael D. Overmyer, Thomas         :
Murin, Lieutenant Dietrick, Stephen :
D. Haggerty, Raymond G. Burkhart, :
and Sergeant Bartow                 :

BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                          FILED: October 11, 2018

      David V. Jordan (Appellant) appeals, pro se, from the September 15, 2017 Order
of the Court of Common Pleas of the 37th Judicial District, Forest County Branch (Trial
Court), which sustained the Preliminary Objections filed by Michael D. Overmyer,
Thomas Murin, Lieutenant Dietrick, Stephen D. Haggerty, Raymond G. Burkhart, and
Sergeant Bartow (collectively, Appellees) and dismissed Appellant’s Amended
Complaint. The issue before this Court is whether the Trial Court erred in sustaining
Appellees’ Amended Preliminary Objections in the nature of a demurrer and
dismissing Appellant’s causes of action for retaliation, conspiracy, negligence, and
assumpsit.    For the reasons that follow, we affirm the Trial Court’s Order. The Trial
Court granted Preliminary Objections in the nature of a demurrer, dismissing the
entirety of the complaint under Pa. R.C.P. No. 1028(a)(4) (demurrer). However, the
Trial Court erred in sua sponte dismissing the assumpsit claim by preliminary
objection. We still affirm the Trial Court’s dismissal of the action in assumpsit but on
alternative grounds.
                                           Background
       Appellant is presently an inmate at the State Correctional Institution (SCI) in
Fayette County; however, he was previously incarcerated at the SCI in Forest County
(SCI-Forest), where the facts relevant to this appeal occurred. Appellees are employees
at SCI-Forest. Original Record (O.R.), Item No. 11, ¶¶ 17-21, 23-24, 58-59; see also
id., Ex. A, ¶¶ 1-6.
       On February 10, 2017, Appellant filed a Complaint in the Trial Court, alleging
that Appellees had unlawfully confiscated or destroyed his property in retaliation for
filing various grievances and lawsuits against Appellees. Appellant asserted causes of
action for retaliation in violation of the First Amendment of the United States
Constitution and negligence as to the handling of his personal property (i.e., four boxes
of legal files) in the care, custody, and control of Appellees. Appellant requested
punitive damages in the amount of $180,000 against each Appellee for “outrageous
conduct and callous disregard of [Appellant’s] property and First Amendment rights in
the future.” O.R., Item No. 1, at 11.
       Appellees filed Preliminary Objections in the nature of a demurrer1 to
Appellant’s claim of retaliation. Appellees further asserted that Appellant’s negligence
claim actually alleged an intentional tort claim and, thus, they were immune from suit.
O.R., Item Nos. 7, 11. Appellant thereafter filed an Amended Complaint, wherein he
reasserted his retaliation and negligence claims, added claims for conspiracy and
assumpsit, and requested compensatory damages for loss of his personal property.
O.R., Item No. 11, at 12, 15.

       1
        A demurrer contests the legal sufficiency of a complaint. Christ the King Manor v. Dep’t of
Pub. Welfare, 911 A.2d 624 (Pa. Cmwlth. 2006), aff’d, 951 A.2d 255 (Pa. 2008).


                                                2
       Appellees again filed Preliminary Objections in the nature of a demurrer.
Appellees asserted that their handling of Appellant’s property was not retaliatory, but
rather was in accordance with DC-ADM 815, which provides that an inmate may not
exceed the property limits established by the Pennsylvania Department of Corrections
(DOC).2 O.R., Item No. 13, ¶¶ 18-24. As to Appellant’s claim of negligence,
Appellees asserted that the facts pled sounded in tort, rather than negligence and, thus,
they are immune from suit under the doctrine of sovereign immunity. Id., ¶¶ 28, 30-
34. Appellees further asserted that Appellant failed to adequately plead facts to support
his conspiracy claim. Id., ¶¶ 18-24.
       On September 15, 2017, the Trial Court sustained Appellees’ Preliminary
Objections and dismissed Appellant’s Amended Complaint. O.R., Item No. 18. The
Trial Court concluded that Appellees appropriately handled Appellant’s property in
accordance with DC-ADM 815. Trial Ct. Op. at 3-4. The Trial Court also found that
Appellant failed to plead facts establishing a conspiracy among Appellees to deny
Appellant access to his legal files. Id. at 5. The Trial Court further concluded that an
intentional confiscation of property pursuant to DOC’s policy does not give rise to a

       2
           Section 3.B of DC-ADM 815 states in pertinent part:

       11. The Facility Manager may permit an inmate to maintain extra storage boxes for
       legal materials for active cases:
       ...
           c. the inmate must send a [request] to the Facility Manager/designee requesting
       permission to maintain extra storage boxes for legal materials.
       ...
       12. An inmate may not exceed the property limits established by [DOC]. Excess
       property, as determined by the Facility Manager/designee, may be shipped out at the
       inmate’s expense or destroyed . . . .

O.R., Item No. 11, Ex. A (emphasis added).



                                                  3
negligence claim and that Appellees are shielded from liability for intentional tort
claims under the doctrine of sovereign immunity. Id. Finally, the Trial Court found
that Appellant failed to aver any facts regarding an assumpsit claim. Id. at 8. Appellant
now appeals to this Court.3
                                             Issues
       On appeal, Appellant argues that the Trial Court erred in concluding that
Appellant failed to plead sufficient facts to support his claims of retaliation, conspiracy,
and assumpsit and that Appellees were immune from liability as to Appellant’s
negligence claim.
                                           Discussion
       In ruling on preliminary objections in the nature of a demurrer, the Trial Court
must consider “whether, on the facts averred, the law indicates with certainty that no
recovery is possible.” Stilp v. Gen. Assembly., 974 A.2d 491, 494 (Pa. 2009). The
Trial Court “must consider as true all well-pleaded material facts set forth in the
complaint and all reasonable inferences that may be drawn from those facts.”
Richardson v. Beard, 942 A.2d 911, 913 (Pa. Cmwlth. 2008). “Preliminary objections
will be sustained only where it is clear and free from doubt that the facts pleaded are
legally insufficient to establish a right to relief.” Id. Conclusions of law, unwarranted
inferences from facts, argumentative allegations, or expressions of opinion need not be
accepted as true. Id. To overcome a demurrer, “[a] complaint must not only apprise
the defendant of the claim being asserted, but it must also summarize the essential facts
to support the claim.” McShea v. City of Philadelphia, 995 A.2d 334, 339 (Pa. 2010).



       3
          Our review of a trial court’s dismissal of a complaint based on preliminary objections is
limited to determining whether the trial court committed an error of law or abused its discretion.
Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014).


                                                4
                                  1. Retaliation Claim
      Appellant first argues that the Trial Court erred in concluding that his Amended
Complaint failed to sufficiently plead a retaliation claim. Appellant alleged that
Appellees retaliated against him by confiscating and destroying four boxes of his legal
papers solely because he filed grievances and lawsuits against them. See O.R. Item
No. 1, ¶¶ 43-47; O.R., Item No. 11, ¶¶ 70-74.
      To prevail on a First Amendment retaliation claim, a petitioner must plead
sufficient facts to show that: (1) he or she engaged in constitutionally protected
conduct; (2) the retaliation against that conduct resulted in adverse action; (3) the
constitutionally protected conduct was a substantial or motivating factor for the
retaliation; and (4) the retaliatory action did not further a legitimate penological goal.
Yount v. Pa. Dep’t of Corr., 966 A.2d 1115, 1120-21 (Pa. 2006).
      This Court has held that an inmate’s filing of lawsuits and grievances is
constitutionally protected conduct, invoking a First Amendment right of access to the
courts. See Bush v. Veach, 1 A.3d 981, 985 (Pa. Cmwlth. 2010); see also Milhouse v.
Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981) (acknowledging an inmate’s
constitutional right to petition the courts to present complaints). As Appellant is
alleging retaliation for filing lawsuits and grievances, Appellant has satisfied the first
prong of the Yount test.
      The second prong requires a showing that the alleged retaliation against the
constitutionally protected conduct resulted in adverse action. An adverse action is “one
which is ‘sufficient to deter a person of ordinary firmness from exercising his
[constitutional rights].’” Yount, 966 A.2d at 1121 (quoting Allah v. Seiverling, 229
F.3d 220, 225 (3d Cir. 2000)).




                                            5
       By his own admission, Appellant has filed “voluminous” lawsuits in both state
and federal courts and several inmate grievances at SCI-Forest. O.R., Item No. 11, ¶¶
17-18.4 This fact alone demonstrates that Appellant has not been deterred from
exercising his constitutional right to file lawsuits and grievances.
       Furthermore, the actions of which Appellant complains are clearly authorized by
DOC’s policies and are thus not “adverse.” Section 3.B.1 of DC-ADM 815 permits an
inmate to keep four records boxes in his cell. Section 3.B.11.a of DC-ADM 815
provides that a Facility Manager may permit an inmate to maintain extra storage boxes
for legal materials related to active cases.5 Importantly, this provision is permissive,
giving each facility manager the discretion to allow or deny an inmate to have extra
storage boxes.
       Here, the record shows that Appellant was permitted to have four storage boxes
for his legal materials. O.R., Item No. 1, Ex. B. Despite this fact, Appellant claims
that Appellees “committed a pattern of denial of access to four (4) boxes of legal
[papers] involving active litigation; and they destroyed four (4) boxes of legal papers
involving active litigation.” Appellant’s Br. at 10; O.R. Item No. 11, ¶¶ 24, 27, 51, 54,
72.

       4
         Appellant is involved in the following active litigation: Jordan v. Lieutenant Shoemaker,
C.A. No. 194-2013 (Schuylkill County); Jordan v. Unit Manager Perry, C.A. No. 35 of 2015 (Forest
County); Jordan v. Overmyer, C.A. No. 34 of 2016 (Forest County); Jordan v. Bertolini, C.A. No.
1:15-CV-0313 (M.D. Pa. May 16, 2015); Jordan v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 416 M.D.
2016); Jordan v. Wetzel, C.A. No. 1:16-CV-307 (W.D. Pa. Dec. 21, 2016); Com. v. Jordan, No. CP-
36-O.R.-0001618-2010 (Lancaster County); Com. v. Jordan, No. C.P. 36-O.R.-0000261-2010
(Lancaster County). Appellant has also filed inmate Grievance Nos. 644288, 643890, 644666,
636124, 643888, 607373, 643889, and 642294. See O.R., Item No. 11, ¶¶ 18, 21, 23-4, App. A.

       5
          See DC-ADM 815 § 3.B.11.a (“The Facility Manager may permit an inmate to maintain
extra storage boxes for legal materials for active cases. The only legal material permitted will be
court filings, transcripts, notes of testimony, and notes prepared by the inmate. This does not include
reference materials, books, or photocopied cases.”) (emphasis added).


                                                  6
       However, Appellant’s history of filing grievances, all of which related to access
to his legal documents, belies Appellant’s assertions. For example, on July 27, 2016,
Appellant filed Grievance No. 636124, alleging that SCI-Forest employees restricted
Appellant’s access to his legal files relating to active litigation and, as a result, his files
were in “imminent danger of being destroyed, destructed, neglected, damaged,
concealed and withheld.” O.R., Item No. 1, Ex. B, at 1. Following an investigation,
SCI-Forest denied the grievance because Appellant failed to provide “any proof or
documentation that any of the above mentioned claims actually occurred” and did not
“attempt[] to remedy the situation in anyway [sic].” Id.
       Appellant appealed. The grievance officer spoke with Lieutenant Burkhart, who
was in charge of property confiscated and sent to Receiving and Distribution (R&D).
Lieutenant Burkhart acknowledged receiving and storing four boxes of Appellant’s
property because Appellant exceeded the allowable limit of stored materials.
Lieutenant Burkhart further stated that Appellant’s claim that the materials were
destroyed was false. Id. at 3. The grievance officer ultimately denied the appeal,
concluding: “This grievance is deemed frivolous due to the fact that the property was
not destroyed and this investigator, along with [Lieutenant] Burkhart did verify that the
property was in[]fact being stored in R&D.” Id. at 4.
       Appellant subsequently filed Grievance No. 643890, wherein he requested the
return of the confiscated boxes that were moved to R&D. In its response, SCI-Forest
stated:

       Inmate Jordan filed grievance 644666 referring to the same “legal”
       property: Inmate Jordan states that his notice to return 4 boxes of property
       was ignored. . . . He states that the property was destroyed. . . . Inmate
       Jordan does not provide any supporting evidence that a notice of return
       was sent to any of the named staff. The property in question was removed
       as it was well in excess of the property permitted in the DC ADM 815. At


                                              7
         a minimum, grievances 644288, 643890, 636124, 643888, 607373,
         643889, and 642294 have been filed all pertaining to the same property.
O.R., Item No. 1, Ex. G (emphasis added).
         The record does not support Appellant’s claim that Appellees engaged in adverse
action sufficient to deter him from exercising his constitutional right to file lawsuits
and grievances. DOC’s policy limits the number of boxes an inmate can keep in his
cell, and Appellant admittedly exceeded that limit. Appellant pled no facts to support
a conclusion that Appellees removed the boxes for any reason other than compliance
with DOC’s policy. In light of the facts averred, as well as the discretionary language
of DC-ADM 815, we conclude that Appellant failed to demonstrate a pattern of denial
of access so as to constitute an adverse action. Because Appellant has not satisfied the
second prong of the Yount test, the Trial Court properly dismissed Appellant’s
retaliation claim.
                                   2. Conspiracy Claim
         Appellant next claims that the Trial Court erred in dismissing his conspiracy
claim.     To state a conspiracy claim, a plaintiff must assert facts from which a
conspiratorial agreement between the defendants can be inferred. Weaver v. Franklin
Cty., 918 A.2d 194 (Pa. Cmwlth. 2007). “Mere conclusory allegations of deprivations
of constitutional rights are insufficient.” D.R. v. Middle Bucks Area Vocational Tech.
Sch., 972 F.2d 1364, 1377 (3d Cir. 1992). “A plaintiff’s allegations must be supported
by facts bearing out the existence of the conspiracy and indicating its broad objectives
and the role each defendant allegedly played in carrying out those objectives.”
Flanagan v. Shively, 783 F. Supp. 922, 928 (M.D. Pa. 1992). When pleading a
conspiracy claim, a plaintiff cannot rely on subjective suspicion and speculation.
Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991).




                                            8
       In his Amended Complaint, Appellant averred no facts demonstrating the
existence of any agreement among Appellees to deny him access to his legal files.
Furthermore, as discussed above, the record shows that Appellees’ reasons for
removing Appellant’s excess property were consistent with DOC’s policies regarding
the regulation of inmate property. Therefore, we conclude that the Trial Court properly
dismissed Appellant’s conspiracy claim.
                                       3. Negligence Claim
       Appellant next argues that the Trial Court erred in dismissing his negligence
claim because he pled sufficient facts showing that Appellees failed to follow DOC
policy and mishandled four boxes of his legal papers. Appellant asserts that Appellees
breached their duty of care through their lack of oversight, incompetence, and failure
to exercise “policies, customs or regulations.” O.R., Item No. 11, ¶81a-d. Appellant
also asserts that Appellees carelessly handled his personal property and displayed a
reckless disregard for his legal papers by ignoring his requests to return the boxes.
O.R., Item No. 11, ¶81e-i. Finally, Appellant contends that Appellees may not raise
sovereign immunity as a defense to his negligence claim.
       In his Amended Complaint, Appellant alleged that Appellees purposefully
confiscated and destroyed his property in retaliation for his filing grievances and
lawsuits.6 O.R., Item No. 11, ¶¶ 70-74; O.R., Item No. 1, ¶¶ 43-47; Appellant’s Br. at

       6
          In his Amended Complaint, Appellant cited four responses from DOC officials, which
explained that Appellant had nine boxes of property in the Restricted Housing Unit of SCI-Forest and
stated, “Even with a legal exemption, [Appellant was] (4) boxes over the limit. The excess will be
sent to R&D to be held, destroyed or shipped.” O.R., Item No. 11, Ex. D; see also O.R., Item No. 11,
¶¶ 30, 37, 41, 43, 45. Appellant was clearly advised that he exceeded DOC’s limit, yet he took no
steps to preserve his legal materials in compliance with DOC’s policies. Further, Appellant failed to
allege any facts suggesting his litigation attempts were hindered in any way due to his inability to
access his legal materials. Finally, there is no evidence that any active lawsuits or grievances were
dismissed or that he missed any filing deadlines, which would show harm or loss on the part of
Appellant.


                                                 9
16. An intentional confiscation of property pursuant to a DOC policy cannot be
reasonably construed as conduct that gives rise to a cause of action in negligence.
Therefore, we agree with the Trial Court that Appellant’s allegations actually sound in
tort, not in negligence.
      Generally, Commonwealth employees acting within the scope of their duties are
immune from suit under the doctrine of sovereign immunity. 1 Pa. C.S. § 2310.
Section 8522(a) of what is commonly known as the Sovereign Immunity Act waives
“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 was caused by a person not having
available the defense of sovereign immunity.” 42 Pa. C.S. § 8522(a) (emphasis added).
However, “[s]overeign immunity is not waived for intentional acts committed by a
Commonwealth employee acting within the scope of his or her employment.” Paluch
v. Pa. Dep’t of Corr., 175 A.3d 433, 438 (Pa. Cmwlth. 2017) (emphasis added).
      Because we conclude that the averments in support of Appellant’s negligence
claim actually allege an intentional tort claim, the Trial Court properly concluded that
Appellees are immune from suit.
                                 4. Assumpsit Claim
             Finally, Appellant correctly argues that the Trial Court erred in dismissing
his assumpsit claim because Appellees did not challenge that particular count in their
Preliminary Objections. Appellant’s Br. at 30-31; O.R., Item No. 23, ¶3.
      In dismissing this claim, the Trial Court concluded that “while [Appellees] may
have failed to specifically address [Appellant’s] assumpsit claim in their Preliminary
Objections,” Appellant already deprived the court of meaningful advocacy on the issue




                                           10
and “there was simply nothing in [Appellant’s] Count 5 Assumpsit claim for the
[Appellees] to address [in their Preliminary Objections].” O.R., Item No. 26, at 8.
       While the Trial Court erred in dismissing Appellant’s assumpsit claim in this
manner, we still affirm the dismissal of this claim on alternative grounds.7 Pursuant to
Section 6602(e)(2) of the Prison Litigation Reform Act:

       (e) Dismissal of litigation.--…[T]he court shall dismiss prison
       conditions litigation at any time, … if the court determines any of the
       following:

              ….

       (2) The prison conditions litigation is frivolous or malicious or 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)(2) (emphasis in original) (emphasis added).
       “Pennsylvania is a fact-pleading state…. [a] complaint must not only apprise the
defendant of the claim being asserted, but it must also summarize the essential facts to
support the claim.”        McShea, 995 A.2d at 339.            Further, Rule 1019(a) of the
Pennsylvania Rules of Civil Procedure provides that “[t]he material facts on which a
cause of action or defense is based shall be stated in a concise and summary form.” Pa.
R.C.P. No. 1019(a). In McShea, the Pennsylvania Supreme Court held that “[a]lthough
Pa. R.C.P. 126 requires Rule 1019 to be construed liberally, liberal construction does
not permit unpled elements be pulled from thin air and grafted onto the pleading; it
does not excuse the basic requirements of pleading.” McShea, 995 A.2d at 340.


       7
        It is well-settled that we “may affirm on other grounds where grounds for affirmance exist.”
Kutnyak v. Dep’t of Corr., 748 A.2d 1275, 1279 n.9 (Pa. Cmwlth. 2000); accord Sloane v. Workers’
Comp. Appeal Bd. (Children’s Hosp. of Philadelphia), 124 A.3d 778, 786 n.8 (Pa. Cmwlth. 2015).

                                                11
      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 to another. See Black’s Law Dictionary 133 (8th Ed. 2004). Here, as the
Trial Court correctly noted, Appellant failed to plead any facts that could be remotely
construed as an assumpsit claim. O.R., Item No. 11, at 15. An appellant’s brief must
contain “such discussion and citation of authorities as are deemed pertinent.” Pa.
R.A.P. 2119(a). Further, Appellant cites no case law in his brief that addresses or
supports an assumpsit action. As Appellant has failed to state a claim upon which relief
may be granted, we dismiss the assumpsit claim as well pursuant to Section 6602(e)(2)
of the Prison Litigation Reform Act.
                                       Conclusion
      For these reasons, we affirm the Trial Court’s Order sustaining Appellees’
Preliminary Objections and dismissing Appellant’s causes of action for retaliation,
conspiracy, and negligence.    We affirm the Trial Court’s dismissal of the action in
assumpsit pursuant to Section 6602(e)(2) of the Prison Litigation Reform Act.



                                        _________________________________
                                        ELLEN CEISLER, Judge




                                          12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David V. Jordan,                    :
                  Appellant         :
                                    :
      v.                            : No. 1863 C.D. 2017
                                    :
Michael D. Overmyer, Thomas         :
Murin, Lieutenant Dietrick, Stephen :
D. Haggerty, Raymond G. Burkhart, :
and Sergeant Bartow                 :


                                   ORDER

            AND NOW, this 11th day of October, 2018, the Order of the Court of
Common Pleas of the 37th Judicial District, Forest County Branch, dated September
15, 2017, sustaining Appellees’ Preliminary Objections and dismissing Appellant’s
causes of action for retaliation, conspiracy, and negligence is hereby AFFIRMED.
The dismissal of the assumpsit claim is hereby AFFIRMED pursuant to Section
6602(e)(2) of the Prison Litigation Reform Act.




                                     ________________________________
                                     ELLEN CEISLER, Judge
