IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thomas W. Thompson, Jr., : Appellant : : v. : No C.D : Submitted: January 3, 2014 Randolph Puskar, Joseph Dupont, : Daniel Burns, Robert McIntyre and : Neil Feathers : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: February 27, 2014 Thomas W. Thompson, Jr., pro se, appeals an order of the Court of Common Pleas of Somerset County (trial court) dismissing his amended complaint seeking monetary damages for the conditions of the prison in which he is incarcerated. Thompson asserts both substantive and procedural errors by the trial court. We affirm. Thompson has been incarcerated at the State Correctional Institution at Laurel Highlands (SCI-Laurel Highlands) since On August 23, 2012, he requested approval to pursue prison conditions litigation in forma pauperis, and the request was granted. In response to Thompson s complaint, the defendants filed preliminary objections, to which Thompson responded with an amended complaint. The amended complaint asserted claims against Joseph Dupont, a

2 hearing officer at the Department of Corrections (Department); Robert McIntyre, 1 the chief hearing officer of the Department; Randolph Puskar, a prison guard; and Daniel Burns the acting superintendent at SCI-Laurel Highlands (collectively Department Defendants ). 2 The amended complaint alleges that during his first year at SCI-Laurel Highlands, Thompson filed 30 grievances about his treatment in the prison and that this number of grievances has prompted retaliation. The first instance of retaliation involved Puskar, a prison guard, who allegedly filed a false misconduct charge against Thompson. The amended complaint explains that inmates must stand in their cells while being counted. At one count, Thompson stood after being awakened by his cell mate; Puskar walked by the cell without hesitation, disturbance or conversation. Five minutes later Puskar called Thompson over to the officer s desk and yelled at him for not standing during the count. This was followed by a misconduct charge against Thompson that Thompson did not stand for the count. The amended complaint asserts that Puskar s statement was false. At the hearing on the misconduct charge, over which Dupont presided, Thompson sought to call inmates as witnesses to support Thompson s version of events. Dupont did not allow their testimony but did admit their affidavits. Dupont found that the misconduct occurred. Thompson appealed to a review committee, then to Burns and, finally, to McIntyre. At every appeal, the misconduct charge for Thompson s failure to 1 Also referred to as MacIntyre in the record. 2 The amended complaint also named Neil Feathers as a defendant, but in his brief Thompson states that he does not appeal the portion of the trial court s Order sustaining Appellee Feathers preliminary objections. Thompson Brief at 36. As such, we do not address the claims against Feathers. 2

3 stand for count was affirmed. The amended complaint asserts that Burns and McIntyre denied him due process by denying him a fair hearing and, further, that Burns ruling was done in retaliation for Thompson s numerous grievance filings. For his misconduct, Thompson was sentenced to spend 20 days in solitary confinement, which caused him to suffer emotional distress, humiliation as well as an impairment to his reputation. Thompson s amended complaint alleges retaliation by Puskar and Burns, and it asserts that Dupont, Burns and McIntyre violated Thompson s due process rights. The amended complaint seeks damages from the Department Defendants under Section 1983 of the Civil Rights Act. 3 In addition, it seeks damages from Puskar s intentional tortious conduct of filing a false misconduct report and defaming Thompson. Department Defendants filed preliminary objections to Thompson s amended complaint in the nature of a demurrer. Thompson filed preliminary objections to Defendants preliminary objections because they did not contain a 3 It states as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C

4 verification; were not endorsed with a notice to plead; and improperly raised the defense of sovereign immunity, which must be raised in new matter. The trial court overruled Thompson s preliminary objections and sustained those of Department Defendants. With respect to the retaliation claim, the trial court explained that, [t]he rule of law provides that a finding of some evidence to support a prison disciplinary determination negates a prisoner s claim of retaliation. Hughes v. Beard (Pa. Cmwlth., No. 594 M.D. 2009, filed May 1, 2013), slip. op. at 23. The allegations in the amended complaint provided some evidence to support Thompson s misconduct, namely Puskar s testimony, which was credited by the hearing officer. Further, the affidavits of Thompson s own witnesses belied Thompson s claim that Puskar passed by his cell without comment. Thus, the amended complaint did not allege facts sufficient to establish retaliation on the part of Puskar or Burns. With respect to the due process claims, the trial court found that the amended complaint did not plead facts sufficient to show that the rules of procedure that govern a disciplinary proceeding had not been followed. With respect to the tort claims against Puskar, the trial court reasoned that Commonwealth employees do not lose their immunity for intentional torts, provided they are acting within the scope of employment. Here, the amended complaint established that Puskar was acting within the scope of his employment when he issued the misconduct report. Therefore, he was immune from liability. The trial court next addressed Thompson s claims that the Department Defendants preliminary objections did not conform to Pennsylvania Rules of Civil Procedure. First, Thompson argued that the preliminary objections did not contain 4

5 a verification as required by Pennsylvania Rule of Civil Procedure No. 1024(a). 4 The trial court found that because the preliminary objections of the Department Defendants raised only issues of law, not averments of fact, a verification was not necessary. PA. R.C.P. No. 1024(a). Second, Thompson argued that the Department Defendants were required to attach a notice to plead to their preliminary objections. The trial court explained that Pennsylvania Rule of Civil Procedure No. 1028(c)(2) 5 requires a notice to plead in cases only where an issue of fact is raised. However, where the preliminary objections may be decided from the pleading, or record, no notice to plead [is] required. Chester Upland School District v. Yesavage, 653 A.2d 1319, 1325 (Pa. Cmwlth. 1994). Here, Department Defendants asserted the legal insufficiency of a pleading (demurrer), which was to be decided solely on the basis of Thompson s amended complaint. PA. R.C.P. No. 1028(a)(4). 6 4 It states: Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer s personal knowledge or information and belief and shall be verified. The signer need not aver the source of the information or expectation of ability to prove the averment or denial at the trial. A pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder. PA. R.C.P. No. 1024(a) (emphasis added). 5 Rule 1028(c)(2) states: (c)(2) The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall consider evidence by depositions or otherwise. PA. R.C.P. No. 1028(c)(2). 6 Rule 1028(a)(4) provides as follows: (a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: (Footnote continued on the next page... ) 5

6 Finally, the trial court rejected Thompson s assertion that Department Defendants had to raise sovereign immunity in new matter, not in a preliminary objection. Pennsylvania Rule of Civil Procedure No. 1030(a) 7 states that immunity is an affirmative defense to be pleaded in an answer under new matter. However, it is well established that the affirmative defense of immunity may be raised by preliminary objections in the nature of a demurrer where that defense is apparent on the face of the pleading; that is, that a cause of action is made against a governmental body and it is apparent on the face of the pleading that the cause of action does not fall within any of the exceptions to governmental [or sovereign] immunity. Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990) (emphasis added). The trial court concluded that it was apparent on the face of the amended complaint that sovereign immunity was applicable to Puskar and that the intentional tort claims he allegedly committed did not fall within any of the exceptions to sovereign immunity. (continued... ) PA. R.C.P. No. 1028(a)(4). 7 It states: *** (4) legal insufficiency of a pleading (demurrer). Except as provided by subdivision (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading New Matter. A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading. PA. R.C.P. No. 1030(a). 6

7 On appeal to this Court, 8 Thompson argues, first, that the trial court erred in not striking Department Defendants preliminary objections because a verification or a notice to plead was not attached and because the affirmative defense of sovereign immunity was not properly raised. Second, Thompson argues that the trial court erred in holding that the amended complaint failed to state claim against Department Defendants. After reviewing the record, the parties briefs and the law, we conclude that Thompson s appellate issues have been ably resolved in the thorough and well reasoned opinion of the Honorable David C. Klementik. Therefore, we affirm on the basis of the trial court s opinion in the matter of Thomas W. Thompson, Jr., v. Randolph Puskar, Joseph Dupont, Daniel Burns, Robert MacIntryre, Neil Feathers, (No. 601 CIVIL 2012, filed September 25, 2013) (C.P. Somerset). MARY HANNAH LEAVITT, Judge 8 Our scope of review of a trial court order dismissing a complaint is whether the trial court committed an error of law or abused its discretion. Bell v. Rockview State Correctional Facility, 620 A.2d 645, 647 n.4 (Pa. Cmwlth. 1993). In reviewing preliminary objections, all well pleaded facts are considered as true, and preliminary objections are only sustained when they are clear from doubt. Szoko v. Township of Wilkins, 974 A.2d 1216, 1219 n.7 (Pa. Cmwlth. 2009). As such, our standard of review is de novo and our scope of review is plenary. Id. 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thomas W. Thompson, Jr., : Appellant : : v. : No C.D : Randolph Puskar, Joseph Dupont, : Daniel Burns, Robert McIntyre and : Neil Feathers : O R D E R AND NOW, this 27 th day of February, 2014, the order of the Court of Common Pleas of Somerset County is AFFIRMED upon the opinion of the Honorable David C. Klementik in Thomas W. Thompson, Jr., v. Randolph Puskar, Joseph Dupont, Daniel Burns, Robert McIntryre, Neil Feathers, (No. 601 CIVIL 2012, filed September 25, 2013) (C.P. Somerset). MARY HANNAH LEAVITT, Judge

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