No. 1297 C.D. 2014
OPINION NOT REPORTED MEMORANDUM OPINION
Ronald D. Weaver, an inmate at SCI-Laurel Highlands, appeals pro se from an order of the Court of Common Pleas of the 39th Judicial District (Franklin County Branch) that 1) sustained the preliminary objections of the Honorable Douglas W. Herman and the Honorable Charles C. Brown, Jr., (judicial defendants), Michael O. Palermo, Jr., Esq., (court-appointed attorney defendant), and Warden Daniel Keen and the Franklin County Jail (Franklin County defendants); and 2) dismissed Weaver's complaint with prejudice. We affirm.
Weaver also sued court-appointed attorney David R. Breschi, Esq. Although Breschi filed a brief with this Court, he did not file preliminary objections below and common pleas did not include him in its order. In addition, common pleas' docket entries reflect a May 29, 2014 praecipe to enter default judgment against Breschi and a subsequent notice of entry of judgment sent via regular mail to him.
In May 2013, Weaver filed a six-count, 168-paragraph complaint against defendants in the Court of Common Pleas of Franklin County. Generally, he alleged that he filed numerous motions and petitions related to an underlying criminal action, but that the judicial defendants obstructed and/or suppressed these motions and conspired with the court-appointed attorney defendants to deny him access to the courts. He also averred that the court-appointed attorney defendants failed to take steps to protect his interests and intentionally and/or negligently violated his express instructions. Regarding the Franklin County defendants, he alleged that, while held in a cell in the booking unit of the Franklin County Jail in January 2012, he was subjected to noxious fumes, became ill and was denied adequate and timely medical care. Accordingly, he sought a judgment in excess of $50,000, to be rendered jointly and severally, against all non-immune defendants, compensatory, special and punitive damages, interest and costs, declaratory relief and any other relief deemed just and appropriate.
In Count I-breach of contract, Weaver alleged that the judicial defendants breached their alleged contracts with the citizens of the Commonwealth by failing to perform their judicial duties. Specifically, he alleged that they failed to act on pending matters involving him, failed to disqualify themselves after lawsuits and judicial conduct complaints were filed against them and retaliated against him by denying him access to the courts. Further, he alleged that the court-appointed attorney defendants and Warden Keen breached their employment contracts with Franklin County. He also alleged that the judicial and the court-appointed attorney defendants breached their oaths of office and covenants with the citizens to support, obey and defend the Constitutions of the United States and Pennsylvania.
In Count II-concert of action, Weaver alleged that the judicial and the court-appointed attorney defendants acted in concert to deny him access to the courts and the legal relief afforded to him under the law and the federal and state constitutions. In addition, he alleged that Warden Keen and John Doe were part of the scheme to cause him serious bodily injury or death while he was being held against his will in the Franklin County Jail.
In Count III- infliction of emotional distress against unspecified defendants, Weaver alleged that, "[a]s a direct and proximate result of the malicious acts of the Defendants[,]" he suffered, inter alia, severe emotional distress, illness, severe physical pain, mental suffering and embarrassment. May 10, 2013 Complaint, ¶¶ 138 and 139.
In Count IV-civil rights violations, Weaver alleged that, while acting under color of state law, the judicial and the court-appointed attorney defendants knowingly and intentionally took action to officially oppress and to obstruct the administration of justice in violation of the federal and state constitutions pursuant to Section 1983 of the United States Code.
In Count V-negligence against unspecified defendants, he "incorporat[ed] all matter stated elsewhere in this pleading . . . ." Id., ¶ 159. By way of harm, he alleged that, "[a]s a result of Defendant's conduct Plaintiff has suffered from mental anguish, nervousness, humiliation, and will be required to undergo extensive treatment to overcome his emotional distress and mental anguish which he has suffered." Id., ¶ 160.
In Count VI-declaratory judgment, inter alia, he sought the following declarations: "the Standard of Conduct set forth in the Canons of Judicial Conduct, Oaths of Office, the relevant Sections of the Pennsylvania Constitution, Statutory Laws, and the Rules of Court create a legal relationship between the Citizens and Judicial Officers for which judicial breach is actionable at law;" and "the Standard of Conduct set forth in the Rules of Professional Conduct and the Rules of Court create a legal relationship between a party and court-appointed attorney for which violation of the rules is actionable at law against the court-appointed attorney[.]" Complaint at 31. In addition, he sought a declaration establishing "the rights and legal relations of [Weaver] and Defendants by reason of the promises in their oaths of office" and one establishing that "a valid and enforceable contract exists with [the judicial defendants] by reason of the foregoing oath for pay; and by reason of acceptance of court-appointment by [the court-appointed attorney defendants]; and by acceptance of pay by all Defendants[.]" Id. at 31-32. Further, Weaver sought a declaration that "the acts of Defendants . . . violates [sic] the Pennsylvania Crimes Code and [his] civil rights[.]" Additionally, he sought a declaration convening a grand jury to conduct an investigation into his claims and one declaring that the judicial defendants were incompetent to retain their judicial offices.
Defendants, except court-appointed attorney defendant Breschi, filed and/or joined in preliminary objections in the nature of a demurrer and, determining that no oral argument was necessary, the Honorable David E. Grine sustained them and dismissed Weaver's complaint with prejudice. Acknowledging that "[t]he right to amend [a complaint] should not be withheld where there is some reasonable possibility that amendment can be accomplished[,]" common pleas determined that there was no reasonable possibility that Weaver could amend his complaint to state causes of action upon which relief could be granted. Weaver presents two issues on appeal: 1) whether common pleas committed an error of law or abused its discretion in sustaining defendants' preliminary objections and dismissing his complaint with prejudice; and 2) whether Judge Grine's actions constituted a conflict of interest where he presided over an action in which one of his colleagues was a defendant.
Otto v. Am. Mut. Ins. Co., 393 A.2d 450, 451 (Pa. 1978).
Our review of an order of common pleas sustaining preliminary objections in the nature of a demurrer is plenary. Langella v. Cercone, 34 A.3d 835, 838 (Pa. Super. 2011). Further,
[s]uch preliminary objections should be sustained only if, assuming the averments of the complaint to be true, the plaintiff has failed to assert a legally cognizable cause of action. We will reverse a trial court's decision to sustain preliminary objections only if the trial court has committed an error of law or an abuse of discretion.
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.
Regarding the judicial defendants, we agree with common pleas that Weaver did not state a cause of action. Where, as here, the respective judges had jurisdiction over Weaver's underlying action pursuant to Section 931(a) of the Judicial Code, 42 Pa. C.S. § 931(a), and the conduct about which he complained clearly involved actions of a judicial nature, his claims for damages are barred by judicial immunity. Langella v. Cercone, 34 A.3d 835, 838 (Pa. Super. 2011). This absolute judicial immunity holds, "even if [the judges'] actions are in error or performed with malice, provided there is not a clear absence of all jurisdiction over subject matter and person." Id. Here, there is no indication that the judicial defendants acted with malice or contrary to the Code of Judicial Conduct in performing the duties of judicial office impartially, competently and diligently.
Notwithstanding the fact that immunity is generally an affirmative defense that should be raised in new matter, it may be raised in preliminary objections in the nature of a demurrer in certain situations. See Faust v. Dep't of Revenue, 592 A.2d 835, 838 n.3 (Pa. Cmwlth. 1991) (holding that sovereign immunity may be raised in preliminary objections in the nature of a demurrer when it is clear that delaying a ruling would serve no purpose) and Feldman v. Hoffman, 107 A.3d 821, 829 (Pa. Cmwlth. 2014) (holding that, where it is apparent from the face of the pleading that the cause of action does not fall within any exception to governmental immunity, it may be raised in preliminary objections in the nature of a demurrer).
Moreover, there is no support for Weaver's averments that either an oath of office or receipt of a salary creates a contract between judges and citizens. Assuming arguendo that either contract exists, it is doubtful that Weaver would have standing to sue for enforcement. See McGaffic v. City of New Castle, 74 A.3d 306, 313 (Pa. Cmwlth. 2013), appeal denied, 85 A.3d 485 (Pa. 2014) (holding that, where a government contract is at issue, the test for whether a member of the public is a third-party beneficiary must be strictly applied). Accordingly, especially in light of our determination that the judicial defendants are immune while performing their judicial acts, Weaver failed to state a cause of action against the judicial defendants.
In the memorandum opinion Washam v. Hazel, (Pa. Cmwlth., No. 852 C.D. 2011, filed February 23, 2012), a prisoner sued a common pleas judge, a district attorney, an assistant district attorney and an office of judicial support director. In response, defendants asserted in their preliminary objections that there was no cause of action for "breach of oath of office." Common pleas sustained defendants' preliminary objections and dismissed Washam's complaint with prejudice. We affirmed on the basis of common pleas' two succinct opinions: Washam v. Judge Frank T. Hazel; Head District Attorney Michael Green; Assistant District Attorney Louis G. Stesis; Clerk Angela Martinez, (C.C.P. Delaware County, No. 09-17126, filed August 17, 2010) and Washam v. Judge Frank T. Hazel; Head District Attorney Michael Green; Assistant District Attorney Louis G. Stesis; Clerk Angela Martinez, (C.C.P. Delaware County, No. 09-17125, filed January 31, 2011).
Court-appointed Attorney Defendants
We conclude that Weaver also did not state a cause of action against the court-appointed attorney defendants. With regard to the breach of contract claims, it is well established that, "[o]nce the appointment of a public defender in a given case is made, his public . . . function ceases and thereafter he functions purely as a private attorney concerned with servicing his client." Reese v. Danforth, 406 A.2d 735, 737 (Pa. 1979) (emphasis added). This is also true for a private, court-appointed attorney. See ei bon ee baya ghananee v. Black, 504 A.2d 281, 282 (Pa. Super. 1986) (holding that both public defenders and court-appointed attorneys may be liable for negligent representation of their clients). Accordingly, regardless of whether a contract initially existed between a court-appointed attorney and the citizens, his public function ceased upon appointment and his client cannot subsequently enforce any alleged "public" contract via his own complaint. Reese. Further, there is no contract of employment between a criminal defendant and his court-appointed attorney. Moore v. McComsey, 459 A.2d 841, 843 (Pa. Super. 1983).
Turning to Weaver's negligence count, we note that he failed to make any specific allegations of negligence or to specify which defendants were negligent. He merely incorporated "all matter stated elsewhere in this pleading . . . ." Complaint, ¶ 159. While it is true that a private, court-appointed attorney has no immunity from liability for negligent representation of his client, ei bon, 504 A.2d at 284, we nonetheless conclude that any such allegations in the present case are fatally vague and conclusory. Specifically, Weaver failed to allege how the actions and/or omissions of his court-appointed attorneys were a substantial factor in bringing about his imprisonment and emotional distress. See Ibn-Sadiika v. Riester, 551 A.2d 1112, 1117 (Pa. Super. 1988) (holding that an incarcerated plaintiff's right to amend a complaint with regard to professional negligence claims is properly withheld "[w]here the initial pleading reveals that [its] defects are so substantial that amendment is not likely to cure them, and that the prima facie elements of the claims asserted will not be established . . . .").
Moreover, Weaver similarly made insufficient allegations concerning an alleged infliction of emotional distress. See Complaint, ¶¶ 136-139. Significantly, he failed to allege that the court-appointed attorney defendants acted in an extreme or clearly outrageous manner. See Buczek v. First Nat'l Bank of Mifflintown, 531 A.2d 1122, 1125 (Pa. Super. 1987) (holding that, in order to recover for a claim of intentional infliction of emotional distress, "conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society").
As for any alleged civil rights violations, Weaver failed to allege the requisite personal involvement in the alleged deprivation of his constitutional rights. See Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (holding that a defendant in a civil rights action must have a personal involvement in the alleged wrongs to be held liable and cannot be held responsible for a constitutional violation in which he neither participated in nor approved). In addition, absent allegations of facts supporting any underlying violation of rights, the complaint also fails to support any concert of action or conspiracy. McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa. Super. 2000). Accordingly, Weaver failed to state a cause of action concerning the court-appointed attorney defendants.
Franklin County Defendants
Regarding the Franklin County defendants, we agree that Weaver failed to state a cause of action. To the extent that Weaver's breach of contract claim includes Keen, there is no support for Weaver's proposition that either an oath of office or receipt of a salary creates a contract between a prison warden and the citizens. See case cited and accompanying text supra note 6. Assuming arguendo that there was a contract, it is doubtful that Weaver would have standing to sue for its enforcement. See McGaffic.
Counsel for the Franklin County defendants maintains that they are not identified in the breach of contract count. To the contrary, Warden Keen is identified in paragraph 121(u) of the complaint.
With respect to Keen and the civil rights claim, the complaint lacks allegations of the requisite personal involvement with respect to any violation of Weaver's constitutional rights. See Baraka, 481 F.3d at 210. With respect to the Franklin County Jail, we agree that it is not an entity that can be sued for purposes of a Section 1983 action. See Johnson v. City of Erie, 834 F.Supp. 873, 878-79 (W.D. Pa. 1993) (holding that the city police department was not a person subject to jurisdiction of civil rights statutes). We also agree that the complaint was insufficient to establish a claim against the Franklin County Jail under Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91 (1978), holding that that the defendants could be held liable only if the alleged conduct implemented or executed a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers or was visited pursuant to governmental custom even though such a custom did not receive formal approval through the body's official decision-making channels.
Moreover, with regard to the concert of action/conspiracy claim against the Franklin County defendants, there was no viable underlying claim pled in the complaint and, therefore, there can be no cause of action for civil conspiracy to commit that act. See McKeeman, 751 A.2d at 660. Further, there were no specific factual averments that the Franklin County defendants acted with any other defendants in furtherance of any agreement to cause injury to Weaver. In addition, to the extent that these defendants are included in Count III-intentional infliction of emotional distress, the complaint lacked allegations that constituted extreme and/or outrageous conduct or conduct that went beyond all possible bounds of decency on the part of the Franklin County defendants. See Buczek. Instead, there are only allegations that relate to Weaver being subjected to noxious fumes, becoming sick and subsequently receiving medical treatment.
Further, to the extent that Weaver directed his negligence claim against the Franklin County defendants, common pleas did not err in determining that he failed to state a cause of action pursuant to the governmental immunity provisions for local agencies and their employees found in Sections 8541 and 8542 of the Judicial Code, 42 Pa. C.S. §§ 8541 and 8542. In that regard, any potential negligence for Weaver's coming into contact with noxious fumes and becoming ill did not fall within one of the enumerated exceptions found in Section 8542(b).
The enumerated exceptions include vehicle liability; care, custody or control of personal property; real property; trees, traffic controls and street lighting; utility service facilities; streets; sidewalks; and care, custody or control of animals. 42 Pa. C.S. § 8542(b)(1)-(8). --------
Finally, as for Weaver's declaratory judgment claim, it is well settled that the purpose of the Declaratory Judgments Act "is to settle and afford relief to any person from uncertainty and insecurity with respect to rights, status and legal relations affected by a statute." Chester Upland Sch. Dist. v. Com., 495 A.2d 981, 983 (Pa. Cmwlth. 1985). Accordingly, in order to bring such an action, the plaintiff's interest "must be a direct, substantial and present interest, as contrasted with a remote or speculative interest." Independence Blue Cross v. Pa. Ins. Dep't, 802 A.2d 715, 719 (Pa. Cmwlth. 2002). Under the facts pled, Weaver did not have the requisite direct, substantial and present interest against the Franklin County defendants.
Conflict of Interest
Finally, we address Weaver's contention that there was a conflict of interest where Judge Grine presided over an action in which one of his colleagues was a defendant. In support of his argument, Weaver represents as follows:
Judge David E. Grine misapplied the law as to ruling on preliminary objections. As previously stated, there remains the appearance of ill-will, prejudice, bias, and unreasonableness in Judge Grine's decision making in this matter by dismissing Appellant's Complaint with prejudice as Appellant has shown a corruption and perversion of judicial misconduct by the Judicial Defendants that lead to the Attorneys corruption and perversive actions.Weaver's Brief at 23 (emphasis added). In the absence of support for Weaver's contention regarding an "appearance" of impropriety, we reject his argument. In addition, there is no indication that Judge Grine misapplied the law.
Accordingly, we affirm. PER CURIAM ORDER
AND NOW, this 5th day of June, 2015, the order of the Court of Common Pleas of the 39th Judicial District (Franklin County Branch) is hereby AFFIRMED.
Id. (citations omitted).