J-S06034-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
CHARLES TALBERT, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : PENNSYLVANIA PRISON SOCIETY, : No. 1403 WDA 2024 ET AL. :
Appeal from the Order Dated July 31, 2024 In the Court of Common Pleas of Forest County Civil Division at No. CD 62 of 2023, QA-4727
BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED: April 10, 2025
Charles Talbert (Appellant) appeals pro se1 from the order sustaining
preliminary objections filed by the Pennsylvania Prison Society, et al. (PPS),
and dismissing Appellant’s complaint with prejudice. We affirm.
Case History & Application for Relief
Appellant is an inmate who “was transferred between prisons several
times during the pendency of this action.” Trial Court Opinion (TCO), 9/4/24,
at 1 n.1. PPS is “an entity with a mission to advance the health, safety, and
dignity of incarcerated individuals.” Id. at 1.
On September 8, 2023, Appellant filed a complaint raising claims of
fraudulent misrepresentation and vicarious liability against PPS and Desiree
____________________________________________
1 Appellant has been self-represented throughout this case. J-S06034-25
Cunningham (Ms. Cunningham), who “is, or was, a volunteer for PPS.” Id.
In the complaint,
[Appellant] claim[ed] that on May 4, 2023, [Ms.] Cunningham telephoned him while he was incarcerated at SCI Phoenix. [Appellant] allege[d] that [she] stated to him that the [Department of Corrections (DOC)] was “abusing” him and that she would call him every week to check up on him. He also allege[d] that [Ms.] Cunningham represented to him that PPS would “intervene and have lawyers sue the DOC to get [him] out of disciplinary custody status.” These alleged statements, and the alleged subsequent inaction by PPS, form the entire factual basis for [Appellant’s c]omplaint.
Id. at 2 (citations and footnote omitted).
After Appellant filed his complaint, the case “followed a rather tortured
procedural course” which has little bearing on this appeal. Id. Pertinently,
PPS filed preliminary objections on March 7, 2024. PPS explained:
PPS, together with more than 300 volunteers, provides direct assistance to incarcerated people and their families. When PPS receives a request for help, it dispatches a staff person or volunteer prison monitor to listen, problem-solve and, if merited, advocate for help with prison officials. PPS is not a legal organization and thus cannot provide legal advice or assistance relating to an individual’s case and sentence.
Brief in Support of Preliminary Objections, 3/7/24, at 1.
PPS argued that Appellant did not “assert any plausible claim,” and
requested dismissal of the complaint. Id. at 1-2. PPS noted that Appellant
claimed fraudulent misrepresentation by Ms. Cunningham, and PPS’s vicarious
liability for Ms. Cunningham’s actions. Id. at 4. PPS asserted, inter alia, that
Appellant’s fraudulent misrepresentation claim “lack[ed] requisite
particularity,” and could not “sustain a vicarious liability claim.” Id. at 6.
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Appellant filed a response on June 10, 2024, and the trial court heard
argument on July 31, 2024. Counsel for PPS argued:
[Appellant’s] allegations in the complaint are inadequate to maintain a cause of action for fraudulent misrepresentation, and therefore, without the underlying cause of action, we don’t believe we can be held vicariously liable.
Your Honor, in his complaint, [Appellant] identifies three alleged statements purportedly made by Ms. Cunningham that form the basis of his fraudulent misrepresentation claim….
[Appellant] alleges[, one,] that Ms. Cunningham allegedly told him that based on [his] representations, the [DOC] was abusing him.
[Two,] Ms. Cunningham allegedly told [Appellant] she would call [him] every week to check up on him.
And, three, Ms. Cunningham allegedly told [Appellant] that [PPS] would investigate and have its lawyers get involved to stop the abuse.
Sir, none of these three alleged statements are of the type that are typically sufficient to sustain a cause of action for fraudulent misrepresentation. As the [c]ourt is likely aware, a cause of action for fraud must be based on fact, whether … past or present, and promises of future acts don’t typically constitute a valid fraud claim.
N.T., 7/31/24, at 4-6.
In response, Appellant stated that he was seeking “compensatory
damages in an amount in excess of $50,000 as well as punitive damages.”
Id. at 13. He explained that he “was emotionally hurt by [Ms. Cunningham’s]
actions of calling and checking on my welfare, by her saying she’s going to
help me out [but] not doing anything for me. That’s the argument here.” Id.
at 17.
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Following argument, the trial court advised Appellant that the “elements
that are crucial to a claim for fraudulent misrepresentation aren’t present in
your case.” Id. at 19. The court reasoned:
I really don’t need to get to the vicarious liability … because I find based upon your complaint, the statements – and I’m believing your complaint that Ms. Cunningham contacted you, she made those three statements and there was no follow-up. …
[However, e]ven if those facts are true, it simply doesn’t meet [all] the elements of fraudulent misrepresentation and, frankly, I’m not sure if it meets any of those elements.
And I understand your concern about ongoing mistreatment in your mind, but, again, that’s not a direct result of Ms. Cunningham not calling you every week. That’s a result of conduct by a different entity, the DOC and their representatives.
Id. at 20. The court further found that “based upon the assertions[,] there’s
no way even an amended complaint could set forth any cause of action for
fraudulent misrepresentation and vicarious liability.” Id. at 21. Thus, the
court granted PPS’s preliminary objections and dismissed Appellant’s
complaint with prejudice.
Appellant filed a timely appeal on August 5, 2024.2 Appellant filed a
Pa.R.A.P. 1925(b) concise statement on August 28, 2024, and the trial court
filed its opinion on September 4, 2024. ____________________________________________
2 Although the court advised Appellant he could “appeal to the Pennsylvania
Superior Court within thirty (30) days,” he filed his appeal in Commonwealth Court. Order, 7/31/24. When the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement, it noted the appeal should be with “Superior Court[,] not … Commonwealth Court….” Order, 8/9/24 (emphasis omitted). On November 4, 2024, the Commonwealth Court transferred the appeal to (Footnote Continued Next Page)
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Notably, Appellant has filed a motion in this Court, asking that we strike
PPS’s brief. The request is based on Appellant’s claim that PPS’s brief contains
“false and fraudulent representations.” Application for Relief, 2/10/25, at 1.
Appellant claims “at no time has [PPS] provided Appellant any assistance.”
Id.
In response, PPS states:
PPS volunteers communicated directly with [Appellant] before and after the filing of his underlying lawsuit, and, despite the filing of the lawsuit and the pendency of this appeal, PPS remains committed to assisting and advocating for [Appellant] in any way that it can.
Accordingly, PPS respectfully requests that the Court deny [Appellant’s] Motion.
Answer to Application for Relief, 2/18/25, at 1. Upon review, we deny
Appellant’s request to strike PPS’s brief.
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J-S06034-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
CHARLES TALBERT, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : PENNSYLVANIA PRISON SOCIETY, : No. 1403 WDA 2024 ET AL. :
Appeal from the Order Dated July 31, 2024 In the Court of Common Pleas of Forest County Civil Division at No. CD 62 of 2023, QA-4727
BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED: April 10, 2025
Charles Talbert (Appellant) appeals pro se1 from the order sustaining
preliminary objections filed by the Pennsylvania Prison Society, et al. (PPS),
and dismissing Appellant’s complaint with prejudice. We affirm.
Case History & Application for Relief
Appellant is an inmate who “was transferred between prisons several
times during the pendency of this action.” Trial Court Opinion (TCO), 9/4/24,
at 1 n.1. PPS is “an entity with a mission to advance the health, safety, and
dignity of incarcerated individuals.” Id. at 1.
On September 8, 2023, Appellant filed a complaint raising claims of
fraudulent misrepresentation and vicarious liability against PPS and Desiree
____________________________________________
1 Appellant has been self-represented throughout this case. J-S06034-25
Cunningham (Ms. Cunningham), who “is, or was, a volunteer for PPS.” Id.
In the complaint,
[Appellant] claim[ed] that on May 4, 2023, [Ms.] Cunningham telephoned him while he was incarcerated at SCI Phoenix. [Appellant] allege[d] that [she] stated to him that the [Department of Corrections (DOC)] was “abusing” him and that she would call him every week to check up on him. He also allege[d] that [Ms.] Cunningham represented to him that PPS would “intervene and have lawyers sue the DOC to get [him] out of disciplinary custody status.” These alleged statements, and the alleged subsequent inaction by PPS, form the entire factual basis for [Appellant’s c]omplaint.
Id. at 2 (citations and footnote omitted).
After Appellant filed his complaint, the case “followed a rather tortured
procedural course” which has little bearing on this appeal. Id. Pertinently,
PPS filed preliminary objections on March 7, 2024. PPS explained:
PPS, together with more than 300 volunteers, provides direct assistance to incarcerated people and their families. When PPS receives a request for help, it dispatches a staff person or volunteer prison monitor to listen, problem-solve and, if merited, advocate for help with prison officials. PPS is not a legal organization and thus cannot provide legal advice or assistance relating to an individual’s case and sentence.
Brief in Support of Preliminary Objections, 3/7/24, at 1.
PPS argued that Appellant did not “assert any plausible claim,” and
requested dismissal of the complaint. Id. at 1-2. PPS noted that Appellant
claimed fraudulent misrepresentation by Ms. Cunningham, and PPS’s vicarious
liability for Ms. Cunningham’s actions. Id. at 4. PPS asserted, inter alia, that
Appellant’s fraudulent misrepresentation claim “lack[ed] requisite
particularity,” and could not “sustain a vicarious liability claim.” Id. at 6.
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Appellant filed a response on June 10, 2024, and the trial court heard
argument on July 31, 2024. Counsel for PPS argued:
[Appellant’s] allegations in the complaint are inadequate to maintain a cause of action for fraudulent misrepresentation, and therefore, without the underlying cause of action, we don’t believe we can be held vicariously liable.
Your Honor, in his complaint, [Appellant] identifies three alleged statements purportedly made by Ms. Cunningham that form the basis of his fraudulent misrepresentation claim….
[Appellant] alleges[, one,] that Ms. Cunningham allegedly told him that based on [his] representations, the [DOC] was abusing him.
[Two,] Ms. Cunningham allegedly told [Appellant] she would call [him] every week to check up on him.
And, three, Ms. Cunningham allegedly told [Appellant] that [PPS] would investigate and have its lawyers get involved to stop the abuse.
Sir, none of these three alleged statements are of the type that are typically sufficient to sustain a cause of action for fraudulent misrepresentation. As the [c]ourt is likely aware, a cause of action for fraud must be based on fact, whether … past or present, and promises of future acts don’t typically constitute a valid fraud claim.
N.T., 7/31/24, at 4-6.
In response, Appellant stated that he was seeking “compensatory
damages in an amount in excess of $50,000 as well as punitive damages.”
Id. at 13. He explained that he “was emotionally hurt by [Ms. Cunningham’s]
actions of calling and checking on my welfare, by her saying she’s going to
help me out [but] not doing anything for me. That’s the argument here.” Id.
at 17.
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Following argument, the trial court advised Appellant that the “elements
that are crucial to a claim for fraudulent misrepresentation aren’t present in
your case.” Id. at 19. The court reasoned:
I really don’t need to get to the vicarious liability … because I find based upon your complaint, the statements – and I’m believing your complaint that Ms. Cunningham contacted you, she made those three statements and there was no follow-up. …
[However, e]ven if those facts are true, it simply doesn’t meet [all] the elements of fraudulent misrepresentation and, frankly, I’m not sure if it meets any of those elements.
And I understand your concern about ongoing mistreatment in your mind, but, again, that’s not a direct result of Ms. Cunningham not calling you every week. That’s a result of conduct by a different entity, the DOC and their representatives.
Id. at 20. The court further found that “based upon the assertions[,] there’s
no way even an amended complaint could set forth any cause of action for
fraudulent misrepresentation and vicarious liability.” Id. at 21. Thus, the
court granted PPS’s preliminary objections and dismissed Appellant’s
complaint with prejudice.
Appellant filed a timely appeal on August 5, 2024.2 Appellant filed a
Pa.R.A.P. 1925(b) concise statement on August 28, 2024, and the trial court
filed its opinion on September 4, 2024. ____________________________________________
2 Although the court advised Appellant he could “appeal to the Pennsylvania
Superior Court within thirty (30) days,” he filed his appeal in Commonwealth Court. Order, 7/31/24. When the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement, it noted the appeal should be with “Superior Court[,] not … Commonwealth Court….” Order, 8/9/24 (emphasis omitted). On November 4, 2024, the Commonwealth Court transferred the appeal to (Footnote Continued Next Page)
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Notably, Appellant has filed a motion in this Court, asking that we strike
PPS’s brief. The request is based on Appellant’s claim that PPS’s brief contains
“false and fraudulent representations.” Application for Relief, 2/10/25, at 1.
Appellant claims “at no time has [PPS] provided Appellant any assistance.”
Id.
In response, PPS states:
PPS volunteers communicated directly with [Appellant] before and after the filing of his underlying lawsuit, and, despite the filing of the lawsuit and the pendency of this appeal, PPS remains committed to assisting and advocating for [Appellant] in any way that it can.
Accordingly, PPS respectfully requests that the Court deny [Appellant’s] Motion.
Answer to Application for Relief, 2/18/25, at 1. Upon review, we deny
Appellant’s request to strike PPS’s brief.
Discussion
Appellant raises three related issues for review:
1. Whether the trial court committed legal error and/or abused its discretion by failing to deem … Ms. Cunningham’s promises to [Appellant] as fraudulent, where evidence of record can demonstrate that they were represented to mislead him?
2. Whether the trial court committed legal error and/or abused its discretion by failing to deem [Appellant] to be induced by … Ms. Cunningham’s promises to him[?]
this Court. Order, 11/4/24 (stating Commonwealth Court lacked jurisdiction because Appellant “is appealing the dismissal of his [c]omplaint alleging fraudulent representation and vicarious liability”).
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3. Whether the trial court committed legal error and/or abused its discretion by sustaining [PPS’s] preliminary objections as to [Appellant’s] claim of vicarious liability by committing legal error and/or abusing its discretion in sustaining … preliminary objections as to [Appellant’s] claim of fraudulent misrepresentation[?]
Appellant’s Brief at 6.
In each of his issues, Appellant challenges the trial court’s determination
that he failed to set forth causes of action for fraudulent misrepresentation
and vicarious liability. Appellant claims the trial court erred “by failing to deem
Ms. Cunningham’s promises to [Appellant] as fraudulent misrepresentations.”
Id. at 13. PPS counters that the court “correctly held[ that Appellant] failed
to plead any of the elements necessary to state a claim for fraudulent
misrepresentation[, and his] secondary claim for vicarious liability … fails
because vicarious liability is not an independent cause of action and cannot
survive without the underlying fraudulent misrepresentation claim.” PPS’s
Brief at 6. PPS states “that, on the facts averred, no recovery is possible.”
This Court will reverse the trial court’s decision regarding preliminary
objections only where there has been an error of law or abuse of discretion.
Khalil v. Cole, 240 A.3d 996, 1000 (Pa. Super. 2020). In reviewing an order
sustaining preliminary objections, this Court must determine “whether, on the
facts averred, the law says with certainty that no recovery is possible.” Linn
v. Perrotti, 308 A.3d 885, 888 (Pa. Super. 2024) (citation omitted). We have
explained:
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When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief.
Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation
omitted). “It is well-established that a plaintiff must provide sufficient factual
averments in his o[r] her complaint to sustain a cause of action.” Id. at 942.
Fraudulent misrepresentation requires a plaintiff to prove:
(1) a representation; (2) that is material to the transaction at issue; (3) made falsely, with knowledge of its falsity or reckless disregard as to whether it is true or false; (4) with the intent to mislead another person into relying on it; (5) justifiable reliance; and (6) an injury proximately caused by the reliance.
Gregg v. Ameriprise Fin., Inc., 245 A.3d 637, 645–46 (Pa. 2021). The
assertion of fraud “shall be averred with particularity.” Pa.R.Civ.P. 1019(b).
We have explained that Rule 1019(b) is meant “to protect those against whom
generalized and unsupported fraud may be levied.” Presbyterian Med. Ctr.
v. Budd, 832 A.2d 1066, 1072 (Pa. Super. 2003) (citations omitted).
Averments of fraud may be “meaningless epithets unless sufficient facts are
set forth.” Id. (citing Bata v. Central–Penn Nat. Bank of Philadelphia,
224 A.2d 174, 179 (Pa. 1966)).
In finding that Appellant failed to plead a cause of action for fraudulent
misrepresentation, the trial court explained:
[Appellant] failed to assert several of the elements necessary to set forth a claim for fraudulent misrepresentation. The asserted misrepresentations made by [Ms. Cunningham] for PPS are: 1)
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PPS will contact [Appellant] regularly by telephone, and 2) PPS will have counsel intervene to assist [Appellant].
Scienter, or the maker’s knowledge of the untrue character of his representation, is a key element in finding fraudulent misrepresentation. See Restatement (Second) of Torts § 526, Comment a. It is well-established that the breach of a promise to do something in the future is not actionable in fraud. Shoemaker v. Commonwealth Bank, 700 A.2d 1003, 1006 (Pa. Super. 1997).
Here, [Ms. Cunningham] merely promised [Appellant] that [she or] PPS w[ould] keep in contact with [him] and advocate for him in the future. [Appellant] has not pled or averred [the third and fourth elements,] that [Ms. Cunningham] knew that her statements to him were false at the time she made them, nor was [she] reckless as to whether or not the statements were false. Therefore, [Appellant] fails to meet the third element of fraudulent misrepresentation. [Ms. Cunningham] promised, at best, advocacy on [Appellant’s] behalf in the future[,] with no guarantee of success [or indication that she intended to mislead Appellant, as required by the fourth element]. PPS is an entity that has for a long period of time carried out the type of advocacy promised by [Ms. Cunningham], and there is no allegation in the [c]omplaint that [Ms. Cunningham] was falsely promising that PPS would carry out its mission with respect to [Appellant].
[Appellant] also fails to meet the f[if]th element of fraudulent misrepresentation. [He] does not aver that he justifiably relied upon the representations of [Ms. Cunningham]. Rather, he took no action following the statements. Moreover, pertaining to the [six]th element, [Appellant] does not assert any resulting injury. [He] simply pleads that the DOC continued with the alleged mistreatment in the same manner as prior to the interaction with PPS.
The purported mistreatment of [Appellant] was not proximately caused by [his] interactions with [Ms. Cunningham or] PPS[,] or lack of action … on his behalf, but rather … the result of the DOC’s ongoing care and control of [Appellant] as an inmate incarcerated in a state correctional institution. [Appellant] has made no claim directly against the DOC regarding the conditions of his incarceration, but simply alleges that PPS has not properly intervened on his behalf.
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TCO at 6-7. With respect to vicarious liability, the court added that because
it “sustained the preliminary objection regarding the fraudulent
misrepresentation claim, PPS is not vicariously liab[le] for [Ms. Cunningham’s]
action or inaction, as those actions do not establish an underlying cause of
action.” Id. at 7 (citing McLaughlin v. Nahata, 298 A.3d 384, 395 (Pa.
2023)).
Our review reveals no error or abuse of discretion by the trial court. We
recognize that when “a trial court sustains preliminary objections on their
merits, it is generally an abuse of discretion to dismiss a complaint without
leave to amend.” Bronico v. Impact Counseling Servs., LLC, 328 A.3d
487 (Pa. Super. 2024) (citation omitted). However, there are “cases where it
is clear that amendment is impossible and where to extend leave to amend
would be futile.” Id. We agree with the trial court’s determination that the
complaint could not have been amended to state a viable cause of action. See
N.T. at 21.
For the above reasons, we deny Appellant’s application seeking to strike
PPS’s brief, and affirm the order granting PPS’s preliminary objections and
dismissing Appellant’s complaint with prejudice.
Application for relief denied. Order affirmed.
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DATE: 04/10/2025
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