C. Caldwell v. The DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clay Caldwell, :
Appellant :
: No. 365 C.D. 2020
v. :
: Submitted: August 7, 2020
The Department of Corrections, :
Jeffrey A. Beard, Louis Folino, Officer :
Ma Price, Officer Gagnon, Officer :
Norman, Officer Lukachyk, Officer :
J. Miller, Officer Topka and :
Officer Sokol :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: March 31, 2021
Clay Caldwell, an inmate residing at the State Correctional Institution
(SCI) at Benner Township, appeals pro se from the February 27, 2020 order of the
Court of Common Pleas of Greene County (trial court) dismissing his complaint
against the Pennsylvania Department of Corrections (Department) and various
Department personnel (collectively, Defendants). We affirm.
We have summarized the extensive procedural history of this matter in a
prior decision:
In November 2009, Caldwell, an indigent inmate currently
serving a life sentence at the [SCI] at Greensburg, following
a transfer from SCI–Greene, filed a motion to proceed in
forma pauperis (IFP), to proceed without liability for court
fees or costs. [Original] Record ([O.R.]), Item No. 42. The
trial court denied the motion for failure to file a complaint,
stating “[t]here is no pending lawsuit or action.” [Trial] Ct.
Order, 11/25/09; [O.R.], Item No. 39. The trial court
instructed Caldwell that he may file a revised petition to
proceed IFP when he files his complaint. Id.
In January 2010, Caldwell filed a second petition to proceed
IFP. [O.R.], Item No. 38. The trial court denied his petition
pursuant to Section 6602(f)(1) of the act commonly referred
to as the Prison Litigation Reform Act (PLRA), 42 Pa.C.S. §
6602(f)(1), also known as the “three strikes rule.” [Trial] Ct.
Order, 1/6/10; [O.R.], Item No. 37. The trial court explained
that Caldwell, on more than three occasions, filed lawsuits
concerning the conditions of his confinement, which were
dismissed for failure to state a claim. Id. (citing Caldwell v.
Folino, 2009 WL 3055298 (W.D. Pa., No. CV–09–217, filed
September 21, 2009) (unreported); Caldwell v. Folino, 2009
WL 1929905 (W.D. Pa., No. 2:08–cv–00122, filed July 1,
2009) (unreported) (Folino I), vacated in part and remanded,
20[1]0 WL 3610169 (3d Cir., No. 09–3104, filed September
17, 2010)1 (Folino II); Caldwell v. Beard, 2008 WL 2887810(W.D. Pa., No. CV–07–727, filed July 23, 2008)
(unreported), aff’d, 2009 WL 1111545 (3d Cir., No. 08–
3286, filed April 27, 2009)).
1
The Third Circuit’s decision to vacate and
remand occurred after the trial court entered its
order.
Three years later, in March 2013, Caldwell filed a third IFP
motion. In addition, he filed a complaint naming Secretary
Jeffrey A. Beard, SCI–Greene Superintendent Louis Folino,
seven correctional officers from SCI–Greene, “M.A. Price,
Gagnon, J. Miller, Lukachyk, Topka, Norman, Sokol,”
(Individual Defendants), and the Department of Corrections
(Department) (collectively, Defendants) as defendants.
[O.R.], Item No. 35. In an affidavit accompanying his
filings, Caldwell explained he delayed filing his complaint
with the trial court until final judgment in his federal court
action involving the same incidents and Defendants. Id.; see
Folino I; Folino II.2
2
The United States District Court for the
Western District of Pennsylvania (district court)
2
dismissed Caldwell’s complaint for failure to
state a claim, and subsequently denied him
leave to file an amended complaint. [Folino I],
vacated in part and remanded, [Folino II]. On
appeal, the Third Circuit determined the district
court erred in dismissing Caldwell’s Eighth
Amendment[, U.S. CONST. amend. VIII,] claim
that he was sexually harassed during pat down
searches on the basis he did not comply with the
exhaustion requirement. Folino II. The Third
Circuit explained it was not facially apparent
from the complaint that Caldwell failed to
exhaust the claim. Id. In addition, the Third
Circuit concluded the district court did not
address Caldwell’s Equal Protection claim
alleging religious discrimination. Id. The Court
remanded for further proceedings limited to
those two issues. Id. Ultimately, on remand,
the matter proceeded to a jury trial in March
2012, which resulted in a verdict for the
defense. See Caldwell v. Folino (W.D. Pa., No.
2:08–cv–00122, filed May 29, 2013) (order
denying relief from judgment) (unreported).
In the complaint, he alleged the correctional officers: touched
him in a sexual manner during pat-down searches; filed false
disciplinary charges against him; wrongfully subjected him
to restrictive housing; transferred him from SCI–Greene to
SCI–Greensburg in retaliation for filing grievances and civil
suits; wrongfully seized and destroyed his personal property
in retaliation for filing grievances and civil suits; handcuffed
him too tightly; required him to obtain a permit for his Native
American religious items; and, mishandled and mocked his
religious items. According to Caldwell, the first of these
incidents—the pat-down search—occurred in November
2007.
In addition, Caldwell averred Defendants improperly filed
misconduct reports and denied his grievances. He claimed
the Department’s policies, customs and practices violated his
constitutional rights. He asserted state tort claims for gross
negligence and violations of his state constitutional rights.
3
For relief, Caldwell demanded nominal and punitive
damages in the amount of $74.4 million from the Department
and $580,000 from each of the Individual Defendants as well
as 35% of their gross yearly income for 10 years. He also
requested injunctive relief in the form of modified prison
policies, single-cell status, magazine subscriptions, family
visitations, personal property, sentence reduction, expunged
misconduct reports, nonparticipation in prison programs, and
unrestricted phone calls.
The trial court granted Caldwell’s third IFP motion. [Trial]
Ct. Order, 3/28/13; [O.R.], Prothonotary Docket Entries.
Caldwell then filed a “Motion to Enter Judgment by Default
against the Defendants, for Failure to Plead, and the Relief
Sought by the Plaintiff in his Complaint.” [O.R.], Item No.
30. The trial court issued a rule to show cause why
Caldwell’s relief should not be granted. [Trial] Ct. Order,
7/1/13; [O.R.], Item No. 29. The Department responded,
stating none of the named Defendants were served with
original process in the matter, and, thus, they were not parties
to the action. [O.R.], Item No. 22.
In the interim, Caldwell filed a “Motion for Damages against
the Defendants for Delay in Actions for Bodily Injury, Death
or Property Damage,” as well as a “Petition for Order for
Protection From Abuse of Authority and from Destruction of
Property and Official Oppression.” [O.R.], Item Nos. 21, 27.
The trial court denied these motions, and it instructed
Caldwell to properly serve his complaint on the Defendants.
See [Trial] Ct. Order, 7/17/13; [Trial] Ct. Order, 9/25/13;
[O.R.], Item Nos. 14, 26.
In addition, Caldwell requested appointment of counsel.
[O.R.], Item No. 18. He also filed two motions for special
injunctive relief—one for a [Protection from Abuse] from
abuse of authority and destruction of property, the other
requesting that the court direct the sheriff to serve his
complaint on the Defendants. [O.R.], Item Nos. 12, 13.
Ultimately, the trial court denied Caldwell’s request for
counsel. [Trial] Ct. Order, 11/13/13; [O.R.], Item No. 9. The
trial court explained his action is civil in nature and the
appointment of counsel is not a matter of right. Id. On its
4
own accord, the trial court dismissed Caldwell’s complaint
with prejudice, citing lack of subject matter jurisdiction and
the litigation’s vexatious nature. Id. From this decision,
Caldwell appealed to the Superior Court, which transferred
the matter here.
Caldwell v. Department of Corrections Agency (Pa. Cmwlth., No. 631 C.D. 2014, filed
Nov. 17, 2014) (unreported) (Caldwell I), slip op. at 1-5.
In Caldwell I, this Court affirmed the trial court’s sua sponte dismissal of
Caldwell’s complaint in part, reversed in part, and remanded for further proceedings.
To the extent that Caldwell challenged prison disciplinary actions, we agreed with the
trial court that it lacked subject matter jurisdiction over matters of internal prison
administration. Id. at 10 (citing Bronson v. Central Office Review Committee, 721 A.2d
357 (Pa. 1998); Brown v. Pennsylvania Department of Corrections, 913 A.2d 301 (Pa.
Cmwlth. 2006)). However, as it concerned state law tort claims, we reversed the trial
court’s determination that it lacked subject matter jurisdiction because Caldwell’s
averments concerned actions that occurred at SCI-Greensburg, outside of Greene
County. To the contrary, we determined that “the alleged conduct underlying
Caldwell’s action occurred within Greene County,” and the trial court thus possessed
subject matter jurisdiction over Caldwell’s tort claims, over which the federal district
court had declined to exercise supplemental jurisdiction in Folino I. We further
concluded that Caldwell’s delay in filing his complaint until the conclusion of his
federal litigation did not render the litigation “vexatious” within the meaning of the
PLRA. We remanded, permitting “only tort actions for money damages premised on
common law trespass and other state claims to proceed.” Id. at 17.
Caldwell then filed several amended complaints in the trial court. In an
order dated August 17, 2018, the trial court sustained the Department’s preliminary
objection to Caldwell’s standing, concluding that Caldwell appeared to pursue claims
5
on behalf of his wife, and thus did not demonstrate personal involvement in the
challenged actions. (Trial Ct. Order, 8/17/2018; O.R. Item 81.) The trial court granted
Caldwell 45 days in which to amend his complaint and to remedy that defect.
Caldwell complied with the trial court’s order and filed another amended
complaint in October 2018. However, many of Caldwell’s averments concerned
conduct that occurred at SCI-Benner Township, rather than SCI-Greene. In response
to the Department’s preliminary objection to the trial court’s jurisdiction, the trial court
reviewed each paragraph of Caldwell’s amended complaint, with Caldwell
participating by audio/visual device, and struck Caldwell’s averments to the extent that
they concerned actions occurring outside Greene County. (Trial Ct. Order, 4/12/2019;
O.R. Item 55.)
After the trial court struck the portions of Caldwell’s complaint relating
to actions occurring outside Greene County, the following averments remained.
Caldwell reiterated his allegations against Officer Dana Sokol, specifically, that Officer
Sokol targeted him for “inappropriate pat-down searches” and “sexual rub-downs” that
constituted “sexual assault and [harassment].” (Amended Complaint ¶2; O.R. Item
72.) Caldwell suggested various conspiracies by Department personnel to cover up
evidence of his sexual harassment allegations, to refuse to investigate such allegations,
or to have him placed in restricted housing. Id. ¶¶2, 23-24, 28, 33. Finally, Caldwell
appeared to challenge the use of funds in his inmate account for medical expenses or
co-pays, which he characterized as “racketeering and extortion.” Id. ¶¶36, 38.
Caldwell characterized his action as sounding in mandamus;1 however, he
did not appear to identify any ministerial duty that must be performed. Id. ¶1. Rather,
1
“Mandamus is an extraordinary writ and is a remedy used to compel performance of a
ministerial act or a mandatory duty.” Dusman v. Board of Directors of Chambersburg Area School
(Footnote continued on next page…)
6
Caldwell pleaded a variety of alleged intentional torts for which he requested monetary
damages, which is consistent with this Court’s prior directive allowing “only tort
actions for money damages premised on common law trespass and other state claims
to proceed.” Caldwell I, slip op. at 17. As relief, Caldwell requested damages in the
amount of $750,000 from each of the Defendants. Id. ¶43.2
After filing an answer and new matter, and prevailing upon the above-
mentioned preliminary objections that narrowed the scope of Caldwell’s claims,
Defendants ultimately moved for judgment on the pleadings. See Pa.R.C.P. No. 1034.
Defendants contended that, even taking Caldwell’s averments as true, Caldwell’s
action should be dismissed because the applicable statute of limitations had expired;
because his claims were barred by res judicata or collateral estoppel; because
Defendants had no personal involvement in Caldwell’s asserted injuries; and because
Defendants were entitled to sovereign immunity. On February 27, 2020, the trial court
granted Defendants’ motion for judgment on the pleadings on the basis of sovereign
immunity. (Trial Ct. Order, 2/27/2020; O.R. Item 14.)
District, 113 A.3d 362, 368 (Pa. Cmwlth. 2015) (quoting Council of City of Philadelphia v. Street,
856 A.2d 893, 896 (Pa. Cmwlth. 2004)).
2
Specifically, Caldwell sought damages from “Officer Bonell, Hanies, Kissel, Smithbower,
Stoner, Dr. Robert J. Marsh, Holmsburg, Hoffman, Tresler, Booher, and Mr. Boone, Mr. Beck, Ms.
M. Walters, G. Wilson, S. Caprio, J. Echert, V. Watson, and C.O. I ‘Bierly’, also Frazer [and] Mr.
Scott Ellenberger.” (Amended Complaint ¶46.) Notably, this paragraph was not among those
remaining after the trial court struck Caldwell’s averments concerning actions occurring at SCI-
Benner Township. The Department has maintained that all of the listed individuals are employed at
SCI-Benner Township, not SCI-Greene. (Department’s New Matter ¶29; O.R. Item 51.)
7
Caldwell sought review in this Court.3 Caldwell raises a multitude of
challenges to the trial court’s dismissal of his complaint, and asserts that the trial court
committed a number of procedural errors or omissions. Caldwell argues that the trial
court erred in requiring him to amend his complaint to exclude claims asserted on
behalf of his wife; that sovereign immunity was inapplicable due to the willful nature
of the alleged misconduct; that sovereign immunity did not apply to any claims relating
to medical contractors; that sovereign immunity did not apply to any claims against
Department personnel in their individual capacities; that the trial court erred in denying
his prematurely filed motion for summary judgment; that the trial court erred in
denying discovery requests; and that the trial court erred in failing to grant his various
motions for default judgment.4
3
“Our standard of review over a decision sustaining a judgment on the pleadings requires us
to determine whether, on the facts averred, the law makes recovery impossible.” Cagey v.
Commonwealth, 179 A.3d 458, 463 (Pa. 2018) (citing Emerich v. Philadelphia Center for Human
Development, Inc., 720 A.2d 1032, 1034 (Pa. 1998)). Our Supreme Court has “explained that the
same principles apply to a judgment on the pleadings as apply to a preliminary objection in the nature
of a demurrer.” Id. at 463 n.2. “All material facts set forth in the complaint as well as all inferences
reasonably deducible therefrom are admitted as true for the purpose of this review. The question
presented by the demurrer is whether on the facts averred the law says with certainty that no recovery
is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be
resolved in favor of overruling it.” Id. (quoting Emerich, 720 A.2d at 1034).
4
Among the purported issues that Caldwell raises are assertions that the trial court “failed to
address the [Department’s] ‘penological interest’ in the sexual assault and battery of [Caldwell],” and
that the trial court “failed to protect [Caldwell and his family], in a [c]ivil lawsuit from the continuing
punishments and violations by the employees” of the Department. (Caldwell’s Br. at 5.) These are
not specific assertions of substantive or procedural error in the disposition of Caldwell’s tort claims,
but rather general grievances about the trial court’s refusal to grant him relief.
8
Amendment of Pleadings
We first address the trial court’s orders directing Caldwell to amend his
complaint, and striking the portions thereof which referred to actions occurring outside
Greene County. Throughout these proceedings, Caldwell continuously has advanced
allegations that Department personnel engaged in “slander and defamation” of his wife.
(See, e.g., Amended Complaint ¶¶7, 10, 14, 20, 29.5) Caldwell contends that the trial
court misunderstood his allegations as relating solely to torts committed against his
wife. In its August 17, 2018 order, the trial court found that Caldwell’s “complaint
does seem to be one where [Caldwell] is suing on behalf of another (his wife) and
[Caldwell] has failed to allege [] standing in the case.” (Trial Ct. Order, 8/17/2018, at
4.) Sustaining the Department’s preliminary objection, the trial court granted Caldwell
45 days to amend his complaint. The sole effect of the trial court’s August 17, 2018
order was to exclude any claims that Caldwell sought to advance on behalf of his wife,
which he lacked standing to pursue. Caldwell then filed an amended complaint, in
which he offered a wide array of allegations and legal conclusions, including those
recounted above. The trial court’s order placed no limitation upon Caldwell’s ability
to assert claims for which he could establish standing. As such, we find no error in the
trial court’s order directing amendment of Caldwell’s complaint.
Moreover, we find no error in the trial court’s exclusion of Caldwell’s
averments to the extent that they related to matters involving SCI-Benner Township,
rather than SCI-Greene. In Caldwell I, we held that the trial court possessed subject
matter jurisdiction over Caldwell’s tort claims that concerned conduct occurring at
SCI-Greene. Caldwell I, slip op. at 10. After our remand in Caldwell I, however,
5
The averments contained in these paragraphs all concerned actions that occurred at SCI-
Benner Township, not SCI-Greene, and thus were stricken from Caldwell’s complaint by the trial
court’s April 12, 2019 order.
9
Caldwell added a significant number of allegations plainly relating to conduct that
occurred at SCI-Benner Township. The trial court’s exclusion of such allegations, via
its April 12, 2019 order, reflects no more than the trial court’s compliance with this
Court’s remand order in Caldwell I to address the claims arising in Greene County.
Subject Matter Jurisdiction
Certain of Caldwell’s claims, specifically those alleging “racketeering and
extortion” against the Department and unspecified medical contractors, pertain only to
intra-prison administrative matters, and thus lay outside the subject matter jurisdiction
of the trial court. “Whether a court has subject matter jurisdiction over an action is a
fundamental issue of law which may be raised at any time in the course of the
proceedings, including by a reviewing court sua sponte.” Seitel Data, Ltd. v. Center
Township, 92 A.3d 851, 859 (Pa. Cmwlth. 2014) (quoting Commonwealth v. Locust
Township, 968 A.2d 1263, 1268-69 (Pa. 2009)). Setting aside Caldwell’s
characterizations of the Department’s actions as constituting the criminal offenses of
racketeering and extortion, which we need not accept as true,6 Caldwell asserts that
Department personnel have taken funds from his inmate account as co-payments for
medical services, under circumstances that, Caldwell alleges, violate the Department’s
policy. (Amended Complaint ¶¶32, 36.) However, this Court has held that the use of
inmate funds for medical co-payments implicates a matter of internal prison
administration that lies outside this Court’s original jurisdiction. See Portalatin v.
Department of Corrections, 979 A.2d 944, 949 (Pa. Cmwlth. 2009) (“Because any right
6
“Legal conclusions and general allegations of wrongdoing, without the requisite specific
factual averments or support, fail to meet the pleading standard.” McCulligan v. Pennsylvania State
Police, 123 A.3d 1136, 1141 (Pa. Cmwlth. 2015), aff’d, 135 A.3d 580 (Pa. 2016) (citing Lerner v.
Lerner, 954 A.2d 1229, 1235-36 (Pa. Super. 2008)).
10
[the inmate] may have to be free of co-payments is not of constitutional dimension, and
because any right [the inmate] has is limited by [Department] regulations and policy
statements, this Court does not enjoy original jurisdiction over the case.”) (citing
Bronson; Weaver v. Pennsylvania Department of Corrections, 829 A.2d 750 (Pa.
Cmwlth. 2003)). Moreover, “this Court does not have appellate jurisdiction over
inmate appeals from grievance tribunals.” Id. As we explained in Caldwell I, the
“limitations placed upon the judiciary to rule on issues of internal prison operations as
set forth in Bronson apply equally to the common pleas courts.” Caldwell I, slip op. at
10. Thus, to the extent that the trial court’s order disposed of Caldwell’s allegations
against the Department or any medical contractors based upon payment for medical
expenses, we affirm on the basis that the trial court lacked subject matter jurisdiction
over such claims.7
Excluding the averments concerning alleged conduct occurring outside
Greene County, as well as those concerning matters of internal prison administration,
we are left with Caldwell’s primary allegation throughout this litigation—that at some
point in the past, Officer Sokol touched Caldwell during a pat-down search in a manner
that amounted to “sexual assault.”
Sovereign Immunity
We turn to the trial court’s stated basis for dismissal—sovereign
immunity. The trial court set forth its reasoning in its February 27, 2020 order granting
judgment on the pleadings in favor of the Department. The trial court noted that “the
7
Moreover, although Caldwell asserts that the trial court erred in dismissing his action against
“medical contractors,” we note that Caldwell’s complaint does not clearly identify such contractors,
and his certificate of service attached to his amended complaint does not demonstrate that he effected
service on any third-party contractor. It is not clear that Caldwell made any medical contractor a
party to his lawsuit.
11
Commonwealth, and its officials and employees acting within the scope of their duties,
shall continue to enjoy sovereign immunity . . . and remain immune from suit except
as the General Assembly shall specifically waive the immunity.” 1 Pa.C.S. §2310. The
specific acts for which the General Assembly has waived sovereign immunity are listed
in 42 Pa.C.S. §8522(b).8 Because Caldwell’s cause of action did not fall within any of
the listed exceptions, the trial court reasoned that Caldwell could not proceed with an
action for damages against Defendants.
In challenging the trial court’s reasoning, Caldwell primarily asserts that
sovereign immunity is inapplicable under various statutory schemes. (Caldwell’s Br.
at 5-6.) Caldwell cites 42 Pa.C.S. §§8545-50, and particularly highlights section 8550,
which states that, in an “action against a local agency or employee thereof,” the defense
of official immunity shall not apply if the act of the employee is judicially determined
to constitute “a crime, actual fraud, actual malice or willful misconduct.” 42 Pa.C.S.
§8550 (emphasis added). Caldwell fails to recognize, however, that section 8550
applies to actions “against a local agency or employee thereof,” id., not to
Commonwealth parties such as the Department and its employees. The immunity of
Commonwealth parties falls under a distinct legal theory—known as sovereign
8
The General Assembly has waived sovereign immunity with regard to actions for damages
arising from negligent acts that fall into 10 categories: vehicle liability; medical-professional liability;
care, custody or control of personal property; Commonwealth real estate, highways and sidewalks;
potholes and other dangerous conditions; care, custody or control of animals; liquor store sales;
National Guard activities; toxoids and vaccines; and sexual abuse. 42 Pa.C.S. §8522(b). The final
exception, concerning sexual abuse, was recently added via the Act of November 26, 2019, P.L. 641,
and allows for actions for damages against the Commonwealth for conduct constituting certain
criminal offenses against persons under the age of 18, “if the injuries to the plaintiff were caused by
actions or omissions of the Commonwealth party which constitute negligence.” 42 Pa.C.S.
§8522(b)(10). Caldwell does not refer to section 8522(b)(10). Regardless, despite Caldwell’s
allegations of sexual assault, this provision does not apply, both because Caldwell is not a minor and
because he has not pleaded a negligence action.
12
immunity—and our statutes provide for it separately. See 42 Pa.C.S. §§8501-02, 8521-
27. Caldwell further argues that sovereign immunity is inapplicable under the
Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§2000cc-
2000cc-5, and the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101-12213,
but the relevance of these federal enactments to the most recent iteration of Caldwell’s
complaint is not apparent.
The doctrine of sovereign immunity is well-established in this
Commonwealth. As we have explained:
Sovereign immunity acts as a bar to suits against
Commonwealth parties, including its officials and employees
acting within the scope of their duties. 1 Pa.C.S. §2310.
Establishing a limited list of exceptions to immunity, the
General Assembly adopted what is commonly referred to as
the Sovereign Immunity Act, 42 Pa.C.S. §§8501-8502, 8521-
8527. Section 8522 of 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,” for specifically enumerated categories of acts.
42 Pa.C.S. §8522. A “Commonwealth party” is defined in
[s]ection 8501 as “[a] Commonwealth agency and any
employee thereof, but only with respect to an act within the
scope of his office or employment.” 42 Pa.C.S. §8501. Thus,
when an employee of a Commonwealth agency, such as a
[Department] employee, is acting within the scope of his or
her duties, the employee is shielded by the doctrine of
sovereign immunity from liability for tort claims arising from
negligent acts that do not fall within the statutory exceptions
listed in [s]ection 8522(b) of the Sovereign Immunity Act. 1
Pa. C.S. §2310; 42 Pa.C.S. § 8522(a)-(b). Sovereign
immunity is not waived for intentional acts committed by a
Commonwealth employee acting within the scope of his or
her employment. La Frankie v. Miklich, [618 A.2d 1145,
1149 (Pa. Cmwlth. 1992)].
13
Paluch v. Pennsylvania Department of Corrections, 175 A.3d 433, 437-38 (Pa.
Cmwlth. 2017).
The trial court was correct that Caldwell has not pleaded a cause of action
in negligence, and has not asserted a negligent act that would fall within any of the
exceptions listed in 42 Pa.C.S. §8522(b). Rather, Caldwell has asserted intentional acts
that, he contends, give rise to liability in tort. Thus, to the extent that the trial court
reasoned that Caldwell’s action does not fall into a specific category for which the
General Assembly has waived sovereign immunity, we agree.
That does not end the analysis, however, because the trial court did not
acknowledge that Commonwealth employees enjoy sovereign immunity only when
“acting within the scope of their duties . . . .” 1 Pa.C.S. §2310. That is, not all
intentional torts against the Commonwealth and its officials and employees are
categorically barred. In Minor v. Kraynak, 155 A.3d 114 (Pa. Cmwlth. 2017), for
instance, this Court held that common law assault and battery claims against
Department personnel were not barred by sovereign immunity, because the violent
beating that the plaintiff pleaded in that case fell outside the scope of the defendants’
duties. Id. at 124.
The difficulty for Caldwell, however, is that his pleadings consist almost
entirely of legal conclusions and summary allegations of wrongdoing. As the trial court
correctly stated, a motion for judgment on the pleadings “is in the nature of a demurrer;
all of the opposing party’s well-pleaded allegations are viewed as true but only those
facts specifically admitted by him may be considered against him.” (Trial Ct. Order,
2/27/2020, at 4 (quoting Kairns v. Tony Vitale Fireworks Corporation, 259 A.2d 687,
688 (Pa. 1969)) (emphasis added). The entirety of Caldwell’s averment concerning
Officer Sokol is that Officer Sokol “targeted the plaintiff Mr. [C]aldwell in his sexual
14
assault and harament [sic], Sexual Rub-downs, by selecting the plaintiff out from other
inmates for the inappropriate pat-down searches.” (Amended Complaint ¶2 (internal
quotation marks omitted).) Caldwell elsewhere simply refers to Officer Sokol’s
conduct as “sexual assault.”
Pennsylvania is a fact-pleading jurisdiction. See Pa.R.C.P. No. 1019(a).
A plaintiff is required “to plead all the facts that he must prove in order to achieve
recovery on the alleged cause of action.” McCulligan, 123 A.3d at 1141 (quoting
Commonwealth ex rel. Pappert v. TAP Pharmaceutical Products, Inc., 868 A.2d 624,
636 (Pa. Cmwlth. 2005)). “Legal conclusions and general allegations of wrongdoing,
without the requisite specific factual averments or support, fail to meet the pleading
standard.” Id. (citing Lerner, 954 A.2d at 1235-36). Moreover, in considering a
demurrer, “this Court is not required to accept as true legal conclusions, unwarranted
factual inferences, allegations that constitute argument, or mere opinion.”
Commonwealth v. Percudani, 825 A.2d 743, 745 (Pa. Cmwlth. 2003).
In setting forth his allegation against Officer Sokol, Caldwell included no
factual details. He did not indicate a specific time or location at which the alleged
assault or assaults occurred. He did not plead that Officer Sokol touched him in any
particular place on his body, with any particular degree of force, or for any particular
duration. Rather, Caldwell merely pleaded that Officer Sokol had subjected him to pat-
down searches, which Caldwell viewed as “inappropriate” and amounting to “sexual
assault.” These latter characterizations, however, are plainly legal conclusions and
generalized assertions of wrongdoing, which lack the requisite factual support.
McCulligan, 123 A.3d at 1141. As such, we need not accept these averments as true
for purposes of review. This appreciably contrasts with decisions such as Minor,
15
wherein the plaintiff provided a detailed factual account of the injury giving rise to his
claim, rather than mere legal conclusions. See Minor, 155 A.3d at 116-18.
In determining whether asserted conduct falls within the scope of a
Commonwealth employee’s duties for purposes of sovereign immunity, we have
explained:
[c]onduct of an employee is within the scope of employment
if it is of a kind and nature that the employee is employed to
perform; it occurs substantially within the authorized time
and space limits; it is actuated, at least in part, by a purpose
to serve the employer; and if force is intentionally used by
the employee against another; it is not unexpected by the
employer.
Minor, 155 A.3d at 122 (quoting Natt v. Labar, 543 A.2d 223, 225 (Pa. Cmwlth. 1988)).
Caldwell has not addressed this standard. Excluding Caldwell’s legal conclusions and
conclusory assertions of wrongdoing, we cannot say that Caldwell has pleaded facts
demonstrating that Officer Sokol or any other Defendant has engaged in tortious
conduct outside the scope of a Department employee’s duties. As such, we find no
basis to disturb the trial court’s ruling with respect to sovereign immunity.
Motion for Summary Judgment
Caldwell further asserts that the trial court erred in dismissing his motion
for summary judgment as prematurely filed. Caldwell is mistaken. Caldwell filed this
motion via first-class mailing from prison on November 13, 2017, and it was docketed
on November 20, 2017. (O.R. Item 126.) At that time, Defendants’ preliminary
objections, filed March 29, 2017, remained outstanding. (O.R. Item 154.) Rule 1035.2
of the Pennsylvania Rules of Civil Procedure provides that a party may move for
summary judgment “[a]fter the relevant pleadings are closed, but within such time as
16
not to unreasonably delay trial . . . .” Pa.R.C.P. No. 1035.2 (emphasis added).
Preliminary objections are relevant pleadings. See Pa.R.C.P. No. 1017(a)(4). Plainly,
the relevant pleadings were not closed at the time that Caldwell filed his motion, and
the trial court did not err in denying it as premature.
Discovery Motions
Caldwell additionally argues that the trial court erred in denying various
requests for subpoenas under Pa.R.C.P. No. 4009.1. (Caldwell’s Br. at 11-12.) The
trial court denied Caldwell’s request on October 5, 2018, noting that Caldwell’s
“request for the issuance of subpoenas is premature as no evidentiary hearing has been
scheduled.” (Trial Ct. Order, 10/5/2018, at 2; O.R. Item 75.) The trial court added that
Caldwell’s request appeared to seek records going back to 2001. Id. Although the
court denied Caldwell’s request, it did so without prejudice, stating that “this may be
material that may be requested in the discovery phase.” Id.“Discovery matters are within the discretion of the trial court and the
appellate court employs an abuse of discretion standard of review.” Luckett v. Blaine,
850 A.2d 811, 818 (Pa. Cmwlth. 2004) (citing Luszczynski v. Bradley, 729 A.2d 83, 87
(Pa. Super. 1999)). We find no abuse of discretion in the trial court’s rationale. “Every
court has the inherent power to schedule disposition of the cases on its docket to
advance a fair and efficient adjudication. Incidental to this power is the power to stay
proceedings, including discovery.” Id. at 819. In Luckett, certain defendants to a pro
se prisoner’s complaint had filed preliminary objections in the nature of a demurrer,
and the trial court stayed discovery, including the plaintiff’s request for production of
“documents and things,” similar to Caldwell’s. We held that “the interests of justice
were served by permitting [the defendants] the opportunity to show that the claims
17
raised in the [c]omplaint failed to state a cause of action before burdening them with
discovery demands.” Id. “Where the defendant has demurred to the complaint,” we
explained, “it cannot be determined whether the discovery sought by the plaintiff is
even relevant.” Id. Therefore, we found no abuse of discretion in the trial court’s
“refusal to permit discovery by any party before ruling on the preliminary objections
of defendants.” Id. The same rationale applies here, as the trial court wished to resolve
the matters arising on preliminary objections before burdening Defendants with
discovery requests. The trial court, moreover, expressly stated that it would revisit the
matter during the discovery phase of the litigation. We find no abuse of discretion in
the trial court’s decision.
Motions for Default Judgment
Caldwell filed numerous motions throughout this litigation requesting the
entry of a default judgment against Defendants. The issue appears to have revolved
around Defendants’ repeated contention that Caldwell had not served original process
upon them, and that they were thus unaware that Caldwell had filed any pleadings
requiring response. The trial court ultimately ordered the Prothonotary and the Sheriff
of Greene County to make service on the Defendants on March 8, 2017. (O.R. Item
164.) Defendants nonetheless filed preliminary objections arguing, inter alia, that they
had not been served with original process. The trial court overruled this preliminary
objection in its August 17, 2018 order, finding the argument “disingenuous” or that
Defendants had “otherwise waived any claim with regard to lack of personal
jurisdiction or service of original process.” (Trial Ct. Order, 8/17/2018, at 2-3.)
Caldwell references the trial court’s determination that Defendants
“waived” their objection based upon improper service, and he suggests that this entitled
18
him to a default judgment. (Caldwell’s Br. at 7-8.) Caldwell is incorrect. The relevant
portion of the trial court’s order merely overruled a preliminary objection advanced by
Defendants. It did not determine that Caldwell is entitled to a default judgment.
Beyond Caldwell’s argument concerning Defendants’ “waiver,” he does
not develop any argument in his brief as to why a default judgment was appropriate.
He does not identify any relevant dates of filings, nor does he cite to any authority on
the matter. We conclude, therefore, that this claim is waived for failure to develop a
meaningful argument. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(“[W]here an appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion capable
of review, that claim is waived.”).
The order of the trial court is affirmed.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clay Caldwell, :
Appellant :
: No. 365 C.D. 2020
v. :
:
The Department of Corrections, :
Jeffrey A. Beard, Louis Folino, Officer :
Ma Price, Officer Gagnon, Officer :
Norman, Officer Lukachyk, Officer :
J. Miller, Officer Topka and :
Officer Sokol :
PER CURIAM
ORDER
AND NOW, this 31st day of March, 2021, the order of the Court of
Common Pleas of Greene County is AFFIRMED.