Mercaldo v. Kauffman

• Decision Date: 31 March 2016
• Docket Number: No. 1333 C.D. 2015,1333 C.D. 2015
• Parties: Richard Mercaldo, Appellant v. Kevin Kauffman, Superintendent; C. Wakefield, Deputy Superintendent; Captain Sunderland; Lt. Lear; Lt. Lidwell; C.O. Powell
• Court: Pennsylvania Commonwealth Court

Richard Mercaldo, Appellant
v.
Kevin Kauffman, Superintendent; C. Wakefield, Deputy Superintendent;
Captain Sunderland; Lt. Lear; Lt. Lidwell; C.O. Powell

No. 1333 C.D. 2015

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: November 20, 2015
March 31, 2016

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge¹HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BROBSON

Appellant Richard Mercaldo (Mercaldo) appeals from an order of the Court of Common Pleas of Huntingdon County (trial court). The trial court sustained the preliminary objections filed by Kevin Kauffman, Superintendent of the State Correctional Institution at Smithfield (SCI-Smithfield), C. Wakefield, Deputy Superintendent at SCI-Smithfield, and four other individuals employed at SCI-Smithfield: Captain Sunderland, Lieutenant Lear, Lieutenant Lidwell, and Corrections Officer Powell (Defendants). In a complaint he filed in the trial court, Mercaldo generally sought to recover costs for the alleged mishandling of and damages to some of Mercaldo's property and the loss of other smaller items and

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two laundry bags filled with some of Mercaldo's clothes. We reverse the trial court's order in part and affirm in part.

The complaint sets forth the following factual averments. Mercaldo is an inmate who is incarcerated at SCI-Smithfield. On August 6, 2014, Mercaldo was removed from his cell and placed in the Restricted Housing Unit (RHU). On August 20, 2014, Mercaldo was released from the RHU and placed in a different cell, K-B-14. Officer Powell supervised the packing of Mercaldo's property, but he did not inventory the property. Apparently, upon arrival at his new cell, Mercaldo found that his typewriter and television had been damaged. In a filed grievance (attached to the complaint as an exhibit), Mercaldo claimed that, in addition to his television and typewriter having been returned in a broken condition, a number of items of his property had not been returned to his new cell. Mercaldo averred that two bags of his laundry (containing seven days of socks, boxer underwear, and t-shirts) went missing.² Mercaldo reported the damages and loss of property to RHU staff members.

On August 21, 2014, Mercaldo informed Captain Sunderland regarding the damages and losses, and Captain Sunderland inspected the damaged items and instructed Mercaldo to provide a list of damages and losses to Lieutenant Lidwell. On September 6, 2014, Mercaldo filed Grievance No. SMI-526085-14, in which he asserted that the Defendants had offered him approximately $600 to reimburse him for the damage to his television and typewriter, but that the

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Defendants have refused to refund him for the full amount of his losses and damages, which he described as: (1) damage to the typewriter's LCD display, print wheel alignment control, and printer mechanism; and (2) damage to the control buttons of the television and potentially other unknown damages that a professional repair person might discover. The Defendants' offer included a requirement that Mercaldo purchase a new typewriter and television from the commissary and did not cover full replacement costs. Additionally, Mercaldo complained that if he were to accept the offer, he would lose the value of the typewriter accessories he bought for his typewriter and would be required to buy different accessories for a commissary-purchased typewriter. Mercaldo averred that the Defendants have no right to force him to replace his belongings, rather than to pay for the costs of repair. Further, Mercaldo asserted that if he is required to purchase a new typewriter from the commissary, the Defendants should be required to pay for the cost of the unusable typewriter accessories, which presumably would not be suited to the new typewriter.

Mercaldo requested relief directing the Defendants to pay him $666.41 for the cost to have his television and typewriter repaired. Mercaldo averred that if the cost of repair exceeds that amount, then he should have the right to decide whether to pay for repair or replace the devices. Alternatively, Mercaldo requested that if the trial court were to order him to accept the offer of replacement, the Defendants should compensate him for the cost of the unusable typewriter accessories he purchased for his typewriter.

In Count I of the complaint, Mercaldo sought damages based upon his claim that the Defendants' actions as averred in the complaint constituted an action

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in assumpsit or replevin. In Count II, Mercaldo claimed that the Defendants acted negligently in the care and custody of his property.

Approximately two weeks after he filed the complaint, Mercaldo filed a petition for temporary restraining order and preliminary injunction, which referred to an attachment identified as a "supplemental complaint[;] request for preliminary injunction[; and] notification to court of change of circumstances." (Certified Record (C.R.), Item no. 5.) Mercaldo asserted that after he filed the complaint, the Defendants deposited $538.42 into his inmate account and confiscated his television and typewriter. In the "supplemental complaint," Mercaldo averred that he had not agreed to accept the amount deposited to cover the damaged items and that the Defendants' act of confiscating his property constituted the commission of numerous crimes. Mercaldo averred that Defendant Sunderland directed other corrections employees to confiscate his television and typewriter and that such action constituted a violation of his due process rights. Mercaldo asserted that he was requesting additional money damages for alleged mental anguish, pain and suffering, compensatory, punitive, and special damages. Additionally, Mercaldo claimed that the Defendants' apparent payment of some compensation constituted an admission that the Defendants had caused the damages to his property.

The Defendants filed preliminary objections to both the original complaint and the "supplemental complaint."³ In the preliminary objections to the

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complaint, the Defendants included: (1) a demurrer to Count I for failure to state a claim upon which relief can be granted based upon sovereign immunity; (2) a demurrer to Count II for failure to state a claim upon which relief can be granted, also based upon sovereign immunity; (3) a motion in the nature to strike the complaint for failure to plead with sufficient specificity under Pa. R.C.P. No. 1028; (4) a motion to dismiss for failure to serve the Defendants or the Office of the Attorney General under Pa. R.C.P. No. 422 and for failure to effect timely original service on the Defendants in violation of Pa. R.C.P. No. 401(a); and (5) a motion to strike for failure to conform the pleadings to Pa. R.C.P. No. 1020. With regard to Mercaldo's alleged failure to plead with specificity and to conform the pleadings to Pa. R.C.P. Nos. 1028 and 1020, the Defendants alternatively requested the trial court to dismiss the complaint without prejudice to permit Mercaldo to file an amended complaint that complies with the pleading and specificity requirements of the Rules of Civil Procedure.

In the preliminary objections to the "supplemental complaint," the Defendants asserted that: (1) they are immune from suit for the causes of action Mercaldo raised therein; and (2) Mercaldo failed to serve the Defendants under Pa. R.C.P. No. 422 and the Attorney General under Section 8523(b) of the Judicial Code, 42 Pa. C.S. § 8523(b). Based upon the failure of Mercaldo to serve the "supplemental complaint" properly, the Defendants asserted that the trial court should dismiss the "supplemental complaint" with prejudice based upon Pa. R.C.P.

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No. 401(a), which provides that plaintiffs must serve original process upon defendants "within thirty days after the issuance of the writ or the filing of the complaint."

In a response filed to the preliminary objections, Mercaldo did not dispute the Defendants' essential objections regarding his failure to comply with the rules of pleading and service, but he requested the trial court to permit him to file an amended complaint. The trial court sustained the preliminary objections and dismissed the complaint with prejudice.⁴ Mercaldo filed an appeal from the trial court's order, and, as directed by the trial court, filed a statement of errors complained of on appeal. Mercaldo raised the following alleged primary errors on the part of the trial court: (1) if service was faulty, then the trial court never had jurisdiction over the complaint and the trial court should have permitted Mercaldo to correct technical mistakes under Pa. R.C.P. No. 1033 or permitted him to refile the complaint, rather than dismiss the complaint with prejudice; and (2) the trial court erred by failing to permit Mercaldo to file an amended complaint that addressed the Defendants' immunity defenses and conformed to the...