Johnson, A., Aplt. v. Wetzel, J. ( 2020 )

[J-99-2020] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
AQUIL JOHNSON, : No. 18 EAP 2019
:
Appellant : Appeal from the Order entered on
: June 3, 2019 in the Commonwealth
: Court at No. 497 MD 2018.
v. :
:
:
JOHN WETZEL, SECRETARY PA. D.O.C., :
MARK GARMAN, SUPER., S.C.I. :
ROCKVIEW ET AL., OFFICERS, AGENTS, :
SERVANTS, EMPLOYEES AND :
ATTORNEYS, : SUBMITTED: September 30, 2020
:
Appellees :
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT DECIDED: October 1, 2020
I join the Majority’s important holding that the due process protections outlined in
Bundy v. Wetzel, 184 A.3d 551 (Pa. 2018), “appl[y] to inmates whose accounts were
subject to Act 84[1] deductions without the benefit of pre-deprivation safeguards.” Maj.
Op. at 13. Accordingly, I agree that further factual development upon remand is required
to determine whether Aquil Johnson was afforded these due process protections. See id.
at 14-15. Additionally, I agree with the Majority that Johnson was not entitled to an ability-
to-pay hearing. See id. at 15-16. Unlike the Majority, however, see id. at 9-13, it is
apparent to me that Johnson has pleaded a viable negligence claim at this stage of the
litigation. And I would hold that the question of whether the statute of limitations should
1 See Act of June 18, 1998, P.L. 640, No. 84, § 4 (codified at 42 Pa.C.S. § 9728).
be tolled because of alleged fraudulent concealment by the Department of Corrections
(“DOC”) is a question for the factfinder. Thus, I respectfully dissent from the Majority’s
decision to affirm the Commonwealth Court’s dismissal of Johnson’s negligence claim.
I. Negligence
DOC has lodged preliminary objections to Johnson’s negligence claim in the form
of a demurrer. “[W]hen this Court reviews rulings on preliminary objections, we deem all
material facts averred in the complaint, and all reasonable inferences that can be drawn
therefrom, to be true.” Commonwealth by Shapiro v. Golden Gate Nat’l Senior Care LLC,
194 A.3d 1010, 1022 (Pa. 2018). Thus, we must accept all of Johnson’s factual
averments as true at this stage of the litigation.
The standard for determining whether a claim can survive preliminary objections
is a liberal one. “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.” MacElree v. Phila. Newspapers, Inc., 674 A.2d 1050, 1054 (Pa. 1996)
(citation and internal quotation marks omitted); see also Golden Gate, 194 A.3d at 1022
(“When sustaining the trial court’s ruling will result in the denial of claim or a dismissal of
suit, preliminary objections will be sustained only where the case is free and clear of
doubt.”) (citation and internal quotation marks omitted).
Johnson’s Amended Petition for Review divides his factual allegations into two
sections. First, Johnson makes “allegations common to all claims.” Amended Petition
for Review (“Amended Petition”), 497 MD 2018, at 4 (capitalization modified). In this
section of the Amended Petition, Johnson writes that he “consulted with the inmate
counselor Scott Gaines through request slip inquiring about the nature of the deduction”
at issue in this case. Id. ¶ 16. According to Johnson, “Counselor Scott Gaines told
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[Johnson] that the deductions were lawful and that the only way to stop them is to pay the
full amount of money owed.” Id. To support this narrative, Johnson cites Exhibit-FC of
his original Petition for Review. That exhibit is an “Inmate’s Request to Staff Member”
submitted by Johnson to Gaines. See Petition for Review, 497 MD 2018, Exhibit-FC.
After Johnson asked Gaines why money was deducted from his account, Gaines wrote
back: “The inmate accounts office informed me the Act 84 withdraw[al]s are lawful taking
of money from your inmate account to pay the amount of restitution and fines you owe
which will only be stopped if you pay the full amount.” Id.
The next section of Johnson’s Amended Petition makes factual allegations related
to “negligence in handling [Johnson’s] private personal property.” Amended Petition at 6
(capitalization modified). Despite this section of the complaint being devoted to the
negligence claim, Johnson seemingly alleges intentional conduct by DOC. For example,
Johnson avers that DOC “knew that notice and an opportunity to object was required”
and that, despite this knowledge, DOC “proceeded to and continued to negligently deduct
funds from [Johnson’s] inmate account and continues to deduct funds till this day.” Id.
¶ 24 (emphasis added).
The Majority correctly concludes that Johnson’s allegations in paragraphs sixteen
and twenty-four appear to be “internally inconsistent.” Maj. Op. at 11. However, whereas
the Majority would resolve that inconsistency by concluding that Johnson has not stated
a viable claim for negligence,2 I instead would apply our previous instruction that the
Commonwealth Court could not dismiss Johnson’s claim unless “the law says with
certainty that no recovery is possible.” MacElree, 674 A.2d at 1054 (citation and internal
quotation marks omitted). Reading the allegations in the light most favorable to Johnson,
2 I note that neither the Majority nor the Commonwealth Court hold that Johnson’s
negligence claim falters for any reason aside from the belief that Johnson has alleged
intentional conduct only.
[J-99-2020] [MO: Saylor, C.J.] - 3
as the plaintiff, I cannot join the Majority or the Commonwealth Court in concluding with
certainty that Johnson has not pleaded a claim for negligence.
In paragraph sixteen, Johnson alleges that Gaines, as a representative of DOC,
negligently informed him that the deduction of funds from his account without notice was
a “lawful taking of money.” Exhibit-FC. At this stage of the litigation, we must accept the
conclusion that Gaines’ reliance upon the accounts office’s information was a negligent
action because our precedent requires that “all reasonable inferences that can be drawn”
from the facts averred in a complaint “be [deemed] true.” Golden Gate, 194 A.3d at 1022
(emphasis added). It is a reasonable inference that Gaines did not knowingly tell Johnson
that the deductions were legally sound. It is reasonable to believe that Gaines did not
research the issue of deductions himself and gain such knowledge. Paragraph sixteen
of the Amended Petition does not allege that Gaines had such knowledge, and, without
proof that such an inference is unreasonable, this Court cannot affirm the dismissal of
Johnson’s negligence claim upon such a basis.
But to further illustrate why paragraph sixteen alleges negligent conduct, we need
not rely solely upon inferences from Johnson’s complaint. After Johnson filed a grievance
with DOC, DOC itself told Johnson that it “cannot provide an explanation as to what
happened to the original notice.” Petition for Review, 497 MD 2018, Exhibit-GR. DOC
did not assert that Gaines purposefully misled Johnson as to the legality of the deductions.
DOC did not tell Johnson that Gaines knowingly conveyed false information. Nor did
DOC say that Gaines even recklessly allowed the deductions to continue. Without any
affirmative proof in the record to show that the actions of Gaines and DOC were anything
other than negligent, we have no choice but to accept as true Johnson’s allegation of
negligence for the purposes of adjudicating DOC’s demurrer.
[J-99-2020] [MO: Saylor, C.J.] - 4
To be sure, Johnson’s complaint is not the most artfully drafted petition for review.
That Johnson mentions intentional conduct in the section of the Amended Petition
pertaining to the negligence claim perhaps sows some confusion, and ultimately leads
the Majority astray. This allegation of intentional conduct does raise doubts as to the true
nature of Johnson’s claim. But “[w]here a doubt exists as to whether a demurrer should
be sustained, this doubt should be resolved in favor of overruling it.” MacElree, 674 A.2d
at 1054 (citation and internal quotation marks omitted). Johnson never disavows his
allegation of the negligent conduct from paragraph sixteen. Faced with a possible
inconsistency, our precedent demands that we construe the two provisions to serve the
advancement of Johnson’s claims if possible. In this case, such a construction is
possible. Thus, I would hold that Johnson has stated a claim for negligence3 that is
sufficient to survive DOC’s preliminary objections.4 Having concluded that Johnson has
3 The Majority notes that “negligent conduct does not implicate the Due Process
Clause.” Maj. Op. at 10 (citing Daniels v. Williams, 474 U.S. 327, 328 (1986)). There is
nothing to stop Johnson from making claims sounding in both intentional and negligent
conduct at this stage of the litigation. See Brezenski v. World Truck Transfer, Inc., 755
A.2d 36 (Pa. Super. 2000) (adjudicating claims relating to intentional infliction of emotional
distress and negligent infliction of emotional distress related to the same underlying facts
at the summary judgment stage of the litigation).
4 Although I conclude that Johnson’s negligence claim survives DOC’s preliminary
objections under this Court’s precedent, I also note that the Commonwealth Court has
adopted an even more liberal standard for reading complaints submitted by pro se
litigants. Relying upon case law from the Supreme Court of the United States, the
Commonwealth Court logically has found that “the allegations of a pro se complaint . . .
are held to a less stringent standard than that applied to the formal pleadings drafted by
attorneys.” Reider v. Bureau of Corr., 502 A.2d 272, 273 (Pa. Cmwlth. 1985) (en banc)
(citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (noting that the High Court “holds” a
pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”)).
See also Danysh v. Dep’t of Corr., 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004) (en banc)
(“The allegations of a pro se complainant are held to a less stringent standard than that
applied to pleadings filed by attorneys.”), aff’d, 881 A.2d 1263 (2005); Dep’t of Corr. v.
Tate, 133 A.3d 350, 354 n.8 (Pa. Cmwlth. 2016) (same).
[J-99-2020] [MO: Saylor, C.J.] - 5
pleaded a viable negligence claim, I proceed to examine DOC’s assertions that the claim
nonetheless should be dismissed because of qualified immunity and the statute of
limitations.
II. Qualified Immunity
DOC argues that Johnson’s claims “are barred by qualified immunity.” DOC’s Brief
at 16. “The doctrine of qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks and citation omitted).
Qualified immunity applies to actions in which an individual alleges a violation of his or
her federal constitutional rights under 42 U.S.C. § 1983. See Plumhoff v. Rickard, 572
U.S. 765, 778 (2014) (“An official sued under § 1983 is entitled to qualified immunity
unless it is shown that the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.”) (internal quotation marks omitted).
DOC does not specifically argue that qualified immunity should bar Johnson’s negligence
This Court has held that pro se litigants cannot be excused for failing to abide by
procedural rules. See Peters Creek Sanitary Auth. v. Welch, 681 A.2d 167, 170 n.5 (Pa.
1996). And this Court has noted that the High Court’s decision in Haines “does not say
that a pro se defendant is entitled to special treatment at trial.” Commonwealth v.
Blakeney, 946 A.2d 645, 656 n.5 (Pa. 2008). But this Court has not overruled Reider,
Danysh, Tate, or any other Commonwealth Court decision regarding the standard for
interpreting a pro se litigant’s complaint.
Thus, although the Commonwealth Court’s relaxed standard for pro se litigants is
not binding upon this Court, those published decisions bind the Commonwealth Court
itself, especially in an unpublished memorandum such as the decision below. See Pries
v. Workers’ Comp. Appeal Bd. (Verizon Pa.), 903 A.2d 136, 144 (Pa. Cmwlth. 2006)
(“Under stare decisis, we are bound to follow the decisions of our Court unless overruled
by the Supreme Court or where other compelling reasons can be demonstrated.”). It does
not appear that the Commonwealth Court took into account its own published decisions
when reviewing Johnson’s Amended Petition. Application of the Commonwealth Court’s
own pro se litigant standard adds further support to the contention that the lower court
erred by dismissing the negligence claim.
[J-99-2020] [MO: Saylor, C.J.] - 6
claim, which is a state common law cause of action. See DOC’s Brief at 16-17. Even
assuming that qualified immunity, or some similar doctrine, should apply to Johnson’s
negligence claim, the Commonwealth Court, in a thorough analysis, rejected the
argument that DOC employees enjoyed qualified immunity:
Johnson asserts it was clearly established by June 2013 that he should
have received pre-deprivation notice and an opportunity to object prior to
the first deduction being made. The first case that definitely addressed the
issue, Montanez v. Secretary of Pa. Dep’t of Corr., 773 F.3d 472 (3d Cir.
2014), was not decided until 2014, after the first deduction occurred. This
Court, as late as 2016, held that Montanez was only instructive and not
binding. Dep’t of Corr. v. Tate, 133 A.3d 350, 358 n.11 (Pa. Cmwlth. 2016).
It was not until 2018 when the Supreme Court decided Bundy I, that it was
clear that such pre-deprivation process was required for Act 84 deductions
as a matter of state law. However, the other federal and Pennsylvania
cases Johnson relies upon, which [DOC] do[es] not address in their brief,
do constitute at least a consensus of persuasive authority suggesting that
“a reasonable [government official] could not have believed that [the
official's] actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999).
In 2002, the United States Court of Appeals for the Third Circuit held in
Higgins v. Beyer, which involved deductions from an inmate’s federal
veteran’s disability benefits that had been deposited in his inmate account,
that the inmate had stated a claim for a violation of his due process rights
because the prison officials did not provide him with pre-deprivation notice
and hearing prior to deducting the money, in which he had a property
interest. 293 F.3d 683, 691, 693-94 (3d Cir. 2002). In 2009, the Third Circuit
issued a decision, Montanez v. Beard, vacating and remanding the
dismissal of a group of inmates' due process claims based on the
withdrawal of monies for court-ordered costs and restitution under Act 84
without notice or an opportunity to object. 344 F. App’x 833, 834-35 (3d Cir.
2009). The Court held that it had addressed the issue before in a non-
precedential opinion in 2006 and that, as in that prior decision, the inmates
“allege[d] sufficient facts to support a [] claim . . . that [they were]
deprived of [their] rights under the Due Process Clause of the
Fourteenth Amendment.” Id. at 837 (citing Hale v. Beard, 168 Fed. App’x.
532 (3d Cir. 2006) (emphasis added)). In 2011, the Third Circuit held, in
Burns v. Department of Corrections, that the Department’s assessment of
an inmate’s account for medical expenses imposed as a part of the inmate’s
internal discipline for a fight was an “impairment of a cognizable property
interest” and that the inmate was “entitled to due process with respect
to any deprivation of money” from his account. 544 F.3d 279, 281, 286
(3d Cir. 2008) (emphasis added). Notably, in the Third Circuit’s 2014
[J-99-2020] [MO: Saylor, C.J.] - 7
Montanez decision, the Court cited its 2009 decision in that case, Hale,
Burns, Higgins, and Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir. 1997),
and held that “[t]aken together, these cases make clear that when pre-
deprivation process could be effective in preventing errors, that process is
required.” Montanez, 773 F.3d at 484 (emphasis added).
Johnson also asserts there are decisions from this Court, filed before the
deductions from his account began in 2013, which similarly provide that
where money is taken from an inmate’s account, due process requires the
inmate be given reasonable notice and an opportunity to be heard prior to
the deduction. Holloway v. Lehman, 671 A.2d 1179, 1181-82 (Pa. Cmwlth.
1996). Johnson notes that Holloway has been the law since 1996 and had
been cited in numerous published cases prior to 2013. In addition, Johnson
cites the Department’s Policy, Section 3 of DC-ADM 005, which sets forth
the procedures for the collection of inmate debts. Johnson asserts the
Policy’s requirement that an inmate is entitled to a “Notification of
Deductions Memo,” has been in effect since 2007, and that requirement
was recognized in the response he received to his grievance, which stated
that there was no “explanation as to what happened to the original notice”
in 2013. (Johnson’s Br. at 26; Initial Petition, Ex. GR.) While the
Department’s administrative policies do not create rights for inmates, Shore
v. Pennsylvania Department of Corrections, 168 A.3d 374, 386 (Pa.
Cmwlth. 2017), and [DOC] state[s] in their brief that Section 3 was changed
“to meet the requirements outlined in” Montanez, ([DOC’s] Br. at 12 n.2),
the response to Johnson’s grievance, which upheld the lack of notice part
of the grievance, suggests some kind of pre-deduction notice was the norm,
even in 2013.
Reviewing these cases and the allegations, we cannot agree with [DOC]
that it is clear on the face of the pleadings that they would be entitled to
qualified immunity to allow this defense to be raised as a preliminary
objection or that Johnson has not stated a claim upon which relief can be
granted based on their having immunity. Therefore, Johnson’s [preliminary
objection] challenging the demurrer on that basis is sustained, and [DOC’s
preliminary objection] is stricken.
Johnson v. Wetzel, 497 MD 2018, 2019 WL 2400295, at *8-9 (Pa. Cmwlth. June 3, 2019)
(citations modified). I would adopt this reasoning and hold that, assuming arguendo that
qualified immunity or a similar doctrine applied to Johnson’s negligence claim, the due
process rights highlighted by this Court in Bundy were “clearly established at the time of
the challenged conduct,” Plumhoff, 572 U.S. at 778 (internal quotation marks omitted),
[J-99-2020] [MO: Saylor, C.J.] - 8
i.e., when Johnson first was deprived of pre-deprivation notice and an opportunity to
object in June 2013.
III. Fraudulent Concealment
Finally, the Commonwealth Court held that Johnson’s claim was barred by the
statute of limitations and that Johnson could not show that the statute was tolled under
the doctrine of fraudulent concealment. See Johnson, 2019 WL 2400295, at *10-11. The
statute of limitations for a negligence claim is two years. 42 Pa.C.S. § 5524. Johnson
avers that the first Act 84 deduction occurred in June 2013. He did not file suit until July
2018. Thus, Johnson’s negligence claim facially is time-barred, unless the statute of
limitations was tolled for some reason.
Johnson alleges that the doctrine of fraudulent concealment tolls the statute here.
As this Court previously has explained:
[T]he doctrine of fraudulent concealment serves to toll the running of the
statute of limitations. The doctrine is based on a theory of estoppel, and
provides that the defendant may not invoke the statute of limitations, if
through fraud or concealment, he causes the plaintiff to relax his vigilance
or deviate from his right of inquiry into the facts. Deemer v. Weever, 187 A.
215, 215 (Pa. 1936). The doctrine does not require fraud in the strictest
sense encompassing an intent to deceive, but rather, fraud in the broadest
sense, which includes an unintentional deception. Id. The plaintiff has the
burden of proving fraudulent concealment by clear, precise, and convincing
evidence. Molineux v. Reed, 532 A.2d 792, 794 (Pa. 1987). While it is for
the court to determine whether an estoppel results from established facts,
it is for the jury to say whether the remarks that are alleged to constitute the
fraud or concealment were made. Nesbitt v. Erie Coach Co., 204 A.2d 473,
476 (Pa. 1964).
Fine v. Checcio, 870 A.2d 850, 860 (Pa. 2005) (citations modified).5
5 Although this Court captioned the case “Fine v. Checcio,” it appears that we may
have misspelled the latter party’s surname. The Superior Court captioned the case as
“Fine v. Checchio.” See Fine v. Checchio, 2757 EDA 2002, 829 A.2d 369 (Pa. Super.
2003) (table); Fine v. Checchio, 2757 EDA 2002, 890 A.2d 1110 (Pa. Super. 2005) (table).
And when a party attempted to appeal the case to this Court a second time, we used
[J-99-2020] [MO: Saylor, C.J.] - 9
A. Misrepresentations of Law
As an initial matter, the Majority asserts that “[t]his Court has never applied” the
doctrine of fraudulent concealment “to an assertion that the defendant misrepresented
the current state of the law,” as opposed to the defendant misrepresenting a fact. Maj.
Op. at 12 (emphasis in original). In Fine, this Court did state that the doctrine applies if a
defendant “causes the plaintiff to relax his vigilance or deviate from his right of inquiry into
the facts.” Fine, 870 A.2d at 860 (emphasis added). However, the alleged concealments
in Fine were based upon misrepresentations of fact. See id. at 862 (“Fine based his
assertion for the application of the doctrine on post-surgery statements he attributed to
Dr. Checc[h]io.”); id. at 863 (“This is because the record shows that the statements that
Dr. Rice made to Ward about the numbness during post-operative visits are disputed.”).
Although this Court used the phrase “inquiry into the facts” in Fine, it does not appear that
we considered whether the doctrine of fraudulent concealment would apply to a
misrepresentation of law. Thus, this issue is one of first impression.
Some courts in other jurisdictions have allowed misrepresentations of law to serve
as the basis for fraudulent concealment. See, e.g., Ritchie v. Clappier, 326 N.W.2d 131,
133 (Wis. Ct. App. 1982) (“Where one who has had superior means of information
professes a knowledge of the law, and thereby obtains an unconscionable advantage of
another who is ignorant and has not been in a situation to become informed, the injured
party is entitled to relief as well as if the misrepresentation [of law] had been concerning
matter of fact.”) (internal quotation marks and citation omitted); Tompkins v. Hollister, 27
N.W. 651, 654-55 (Mich. 1886) (“The statute, however, by its terms, refers to the
fraudulent concealment of the cause of action, which would be applicable to a
”Checchio.” See Fine v. Checchio, 897 A.2d 1184 (Pa. 2006) (per curiam) (denying
allocatur).
[J-99-2020] [MO: Saylor, C.J.] - 10
concealment of law as well as of fact.”). Other courts have limited the doctrine to
misrepresentations of fact. See, e.g., Rice v. Ragsdale, 292 S.W.3d 856, 864 (Ark. Ct.
App. 2009) (“As a general rule, fraud cannot be predicated upon misrepresentations as
to matters of law, nor upon opinions on questions of law based on facts known to both
parties.”); Feit v. Donahue, 826 P.2d 407, 412 (Colo. App. 1992) (“However, if the
representation concerns law, not fact, it is an expression of opinion and is not
actionable.”).
“As described by the Supreme Court [of the United States] more than a century
ago, the purpose of the fraudulent-concealment doctrine is to prevent a defendant from
‘concealing a fraud, or . . . committing a fraud in a manner that it concealed itself until
such time as the party committing the fraud could plead the statute of limitations to protect
it.’” New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir. 1988) (quoting
Bailey v. Glover, 88 U.S. (21 Wall.) 342, 349 (1874)). The fraudulent concealment
doctrine, which is based upon estoppel, has its basis in equity. Courts employing this
doctrine have applied it broadly. See Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946)
(“This equitable doctrine [of fraudulent concealment] is read into every federal statute of
limitation.”); see also Richard F. Schwed, Fraudulent Concealment, Self-Concealing
Conspiracies, and the Clayton Act, 91 MICH. L. REV. 2259, 2262 (1993) (“Even without
any basis in statutory language, courts have long been willing to toll statutes of
limitation.”). In Pennsylvania, in particular, we have interpreted fraud “in the broadest
sense.” Fine, 870 A.2d at 860 (emphasis added). The breadth of the doctrine and its
remedial nature might justify including particular misrepresentations of law6 under the
6 In particular, other courts have opined that misrepresentations of law should toll
statutes of limitations under the doctrine of fraudulent concealment where the plaintiff is
especially vulnerable to relying upon the defendant’s legal statements. See, e.g., Miller
v. Yokohama Tire Corp., 358 F.3d 616, 621 (9th Cir. 2004) (“Where the party making the
misrepresentation 1) purports to have special knowledge; 2) stands in a fiduciary or
[J-99-2020] [MO: Saylor, C.J.] - 11
doctrine of fraudulent concealment. However, because I find that Johnson’s allegation of
fraudulent concealment, for the purposes of surviving preliminary objections, is an implied
misrepresentation of fact, I do not believe there is any need to reach the issue of whether
a misrepresentation of law alone falls under the doctrine of fraudulent concealment.7
B. Implied Misrepresentations of Fact
“There is oftentimes a delicate line between questions of law and of fact.” Jolley
v. Jolly, 220 S.E.2d 882, 884 (S.C. 1975). The Restatement (Second) of Torts suggests
that, while opinions of a legal nature cannot form the basis of fraudulent
misrepresentation, a misrepresentation of law that implies a misrepresentation of fact
should be treated as any other misrepresentation of fact:
(1) If a misrepresentation as to a matter of law includes, expressly or by
implication, a misrepresentation of fact, the recipient is justified in relying
upon the misrepresentation of fact to the same extent as though it were any
other misrepresentation of fact.
similar relation of trust and confidence to the recipient; 3) has successfully endeavored to
secure the confidence of the recipient; 4) or has some other special reason to expect that
the recipient will rely on his opinion, misrepresentations of law may result in actionable
fraud.”); Garsee v. Indem. Ins. Co. of N. Am., 47 S.W.2d 654, 657 (Tex. Civ. App. 1932)
(“[R]edress may be had if one party possessed superior knowledge and took advantage
of the other party’s ignorance of the law to mislead him by studied concealment or by
misrepresentation, and this is especially true where confidential relations obtained.”); see
also 173 A.L.R. 576, § 7 (“Fraudulent misrepresentation of the state of the law, or the
withholding of information as regards thereto, may constitute a fraudulent concealment,
where a fiduciary or other confidential relationship exists between the parties.”).
It is difficult to imagine a circumstance where a plaintiff is more vulnerable than
that of an incarcerated individual relying upon the statements of his jailers. Cf.
Commonwealth v. Burton, 158 A.3d 618, 636-37 (Pa. 2017) (noting the arguments of
amicus curiae Pennsylvania Exonerees as to the multitude of problems associated with
incarcerated individuals performing legal research).
7 The Majority’s musings on this topic also are dicta. The Majority concludes that
Johnson did not state a legally cognizable claim for negligence. See Maj. Op. at 9-11.
Thus, the Majority did not need to reach the fraudulent concealment issue to dismiss
Johnson’s negligence claim.
[J-99-2020] [MO: Saylor, C.J.] - 12
(2) If a misrepresentation as to a matter of law is only one of opinion as to
the legal consequences of facts, the recipient is justified in relying upon it to
the same extent as though it were a representation of any other opinion.
Restatement (Second) of Torts § 545 (Misrepresentation of Law); see also id. cmt. c.
(“Even though the language of a representation concerns only legal consequences and
is in form an expression of opinion, it may, as in the case of any other statement of opinion,
carry with it by implication the assertion that the facts known to the maker are not
incompatible with his opinion or that he does know facts that justify him in forming it.”).
Other courts have relied upon a similar distinction in allowing fraud claims to
proceed on statements of law that imply a misrepresentation of fact. See, e.g., Johnson
v. Wal-Mart Stores, Inc., 544 F. App’x 696, 698 (9th Cir. 2013) (quoting the Restatement
and holding that “Wal-Mart’s sign and receipt may well have implied a factual assertion
that California, not Wal-Mart, would receive the recycling fee”); Martinez v. Martinez, 83
P.3d 298, 301 (N.M. Ct. App. 2003) (“While Husband attested that Wife knew about his
ownership interest in the contested property before the divorce, Wife attested that she
had no reason to disbelieve Husband’s representation that the property was his sole and
separate property until she consulted an attorney many years after the divorce. This is a
classic fact dispute best resolved by the fact finder.”); Garsee v. Indem. Ins. Co. of N.
Am., 47 S.W.2d 654, 656-57 (Tex. Civ. App. 1932) (“But it is equally well settled that
misrepresentations involving a point of law will be held actionable misrepresentations of
fact if it appears that they were so intended and understood.”); see also Rhodeman v.
Ocwen Loan Servicing, LLC, 2019 WL 5955368, at *13 (C.D. Cal. Nov. 12, 2019) (quoting
from and applying Johnson).
The Restatement provides a few examples of such implied statements of fact:
[T]he statement that the maker has good title to land, although in form one
of a legal conclusion, ordinarily will be understood to assert the existence
of those conveyances or other events necessary to vest good title in him.
So likewise a statement that one mortgage has priority over another may
[J-99-2020] [MO: Saylor, C.J.] - 13
imply an assertion that one was made before the other; and a statement
that a corporation has the legal right to do business in a state may carry
with it an assurance that it has as a matter of fact taken all of the steps
necessary to be duly qualified.
* * *
A, seeking to sell frozen fish to B, fraudulently informs B that there is no
legal maximum price on frozen fish. B reasonably understands A to assert
that government authorities regulating prices have not established any
maximum price for the commodity, although they have in fact done so. In
reliance on the implied assertion, B buys the fish from A and suffers
pecuniary loss. A is subject to liability to B.
Restatement (Second) of Torts § 545, cmt. c., Illustration 2.
Meanwhile, with regard to pure misrepresentations of law, the Restatement notes
that “[a] representation of law that might otherwise imply assertions of fact may be so
clearly a statement solely of opinion that it does not carry an implication of fact.” Id. cmt.
d. An example of this pure opinion type of statement is the following: “Thus one who
says, ‘I think that my title to this land is good, but do not take my word for it; consult your
own lawyer,’ is not reasonably to be understood as asserting any fact at all with respect
to the title.” Id. And a statement is more likely to be a pure opinion if “all of the facts are
known to both parties or are assumed by both of them to exist.” Id. In particular, if the
parties are on equal footing, the statement is more likely to be a pure opinion. See id.
(“[I]f both parties to the transaction are real estate dealers, neither may justifiably assume
that the other has so superior a knowledge of the law as to make his opinion a reliable
guide.”).
With this in mind, I interpret Johnson’s allegations of fraudulent concealment as an
inference of misrepresentations of fact on the part of Gaines. In his Amended Petition,
Johnson wrote that Gaines told him “that the deductions were lawful and that the only
way to stop them is to pay the full amount of money owed.” Amended Petition ¶ 16.
Gaines himself informed Johnson that, based upon information relayed to Gaines from
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the accounts office, “the Act 84 withdraw[al]s are lawful taking of money . . . which will
only be stopped if you pay the full amount.” Petition for Review, Exhibit-FC.
Johnson’s allegation and Gaines’ own written statement are similar to the
Restatement’s examples. A statement that one “has good title to land, although in form
one of a legal conclusion, ordinarily will be understood to assert the existence of those
conveyances or other events necessary to vest good title in him.” Restatement (Second)
of Torts § 545, cmt. c. Similarly, Gaines told Johnson that the deductions from Johnson’s
account, without pre-deprivation notice, were “lawful.” That Gaines told Johnson that the
deductions were legal implied a factual basis for DOC to make the deductions. But
Gaines made this statement despite the fact that, by June 2013, it had been established
that DOC was required to provide pre-deprivation notice to incarcerated individuals. See
Johnson, 2019 WL 2400295, at *8-9; supra Part II. Additionally, Gaines’ statement that
the deductions were “lawful,” despite contemporary legal rulings with the opposite
conclusion, is like the seller of a product “fraudulently inform[ing]” a buyer “that there is
no legal maximum price on” the product, despite the fact that “government authorities . . .
have in fact” set such a maximum price. Restatement (Second) of Torts § 545, Illustration
2. Thus, although Gaines appeared to be providing Johnson with a legal opinion, the
statement was made in such a way as to convey a factual conclusion, namely that the
takings “will only be stopped if [Johnson] pay[s] the full amount.” Petition for Review,
Exhibit-FC; see also Petitioner’s Answer to Respondent’s Preliminary Objections, 497 MD
2018, ¶ 15 (“When [Johnson] inquired about the money missing from his account, D.O.C.
Counselor Gaines told [Johnson] that the Act 84 deductions were lawful and that the only
way to stop them was to pay the full amount owed.”).
Gaines did not reply to Johnson in the form of a pure opinion. He did not write, “I
think these takings are legal, but do not take my word for it; consult your lawyer” or
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perform your own legal research. Cf. Restatement (Second) of Torts § 545, cmt. d.
Instead, Gaines’ conclusory statement, while based upon the accounts office’s (incorrect)
reading of the law at the time, implied a fact: Johnson could do nothing to stop the takings.
Adding further support to reading Gaines’ statement as an implied statement of fact is the
circumstance that Johnson and Gaines were not on an equal footing. Gaines and
Johnson were not “bargaining adversaries,” id.; rather Gaines was a prison counselor
who was in a position of authority over Johnson. Finally, as noted above, that we have
extended the doctrine to “fraud in the broadest sense,” Fine, 870 A.2d at 860, militates in
favor of reading Gaines’ response to Johnson as an implied misrepresentation of fact.
“[M]isrepresentations involving a point of law will be held actionable
misrepresentations of fact if it appears that they were so intended and understood.”
Garsee, 47 S.W.2d at 656-57. Gaines’ statement to Johnson reasonably could be
understood to convey a fact that the deductions had legal backing and could not be
stopped for any reason until Johnson’s fees were paid completely. That implied fact was
in opposition to binding case law at the time. Therefore, I would not dismiss Johnson’s
negligence claim upon this basis.8
C. Diligence
The Commonwealth Court refused to toll the statute of limitations because that
court concluded that, as a matter of law, Johnson “was not ‘reasonably diligent in
informing himself of the facts upon which his recovery may be based.’” Johnson, 2019
8 One might be inclined to dismiss Johnson’s fraudulent concealment tolling claim
upon the basis that, even if Gaines did convey false information to Johnson, that
information was provided to Gaines by the accounts office, and Gaines did not knowingly
conceal any fact. However, our precedent is clear: “The doctrine does not require fraud
in the strictest sense encompassing an intent to deceive, but rather, fraud in the broadest
sense, which includes an unintentional deception.” Fine, 870 A.2d at 860 (emphasis
added). Even if Gaines’ deception were unintentional, that lack of intent does not
preclude Johnson from tolling the statute of limitations by alleging fraudulent
concealment.
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WL 2400295, at *11 (quoting Fine, 870 A.2d at 861). The Commonwealth Court arrived
at this conclusion despite noting that the issue of diligence “[o]rdinarily . . . involves a
question of fact for the jury.” Id. at *10 (citing Fine, 870 A.2d at 858-59); see also Gleason
v. Borough of Moosic, 15 A.3d 479, 487 (Pa. 2011) (“Our jurisprudence has recognized
that the point at which the complaining party should be reasonably aware that he or she
has suffered an injury and should have identified its cause is ordinarily an issue of fact to
be determined by the jury due to the fact intensive nature of the inquiry.”). Because I
agree that the question of diligence should be for the factfinder, I cannot affirm the
Commonwealth Court’s ruling in this regard.
“[R]easonable diligence is not an absolute standard, but is what is expected from
a party who has been given reason to inform himself of the facts upon which his right to
recovery is premised.” Fine, 870 A.2d at 858. In deciding whether a plaintiff has
exercised diligence in discovering a defendant’s negligence, we must keep in mind that
“there must be some reason to awaken inquiry and direct diligence in the channel in which
it would be successful.” Id. (internal quotation marks and citation omitted). Unlike the
base negligence claim, which is decided upon a unitary objective reasonable person
standard, see Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998), the diligence standard
“take[s] into account the difference[s] between persons and their capacity to meet certain
situations and the circumstances confronting them at the time in question,” Fine, 870 A.2d
at 858 (internal quotation marks and citation omitted). Thus, the reasonable diligence
standard, though still objective, differs from the singular reasonable person standard
because “the reasonable diligence standard . . . examin[es] not what the plaintiff actually
knew, but what a reasonable person facing the same circumstances confronting the
plaintiff at the time in question would have known upon the exercise of reasonable
diligence.” Nicolaou v. Martin, 195 A.3d 880, 894 (Pa. 2018) (citing Fine, 870 A.2d at
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858) (emphasis added); see also Johnson’s Brief at 25 (“Therefore the question is not
what a reasonable person would have done but, what a reasonable prisoner would have
done in [Johnson’s] circumstances.”).
Johnson makes a number of factual allegations related to how an individual “facing
the same circumstances confronting” him could not have exercised due diligence to
discover Gaines’ fraudulent concealment of Johnson’s right to pre-deprivation due
process protections. For example, Johnson writes that he “did not finish high school[,] is
poorly educated[, and] has learning disabilities.” Id. Furthermore, Johnson asked the
Commonwealth Court to assess the presence of fraudulent concealment based upon his
status as an incarcerated individual. Johnson notes that “the prison literally controls the
information that prisoners have access to.” Id.; see also Burton, 158 A.3d at 636-37. With
regard to his relationship with Gaines, Johnson contends that Gaines “was in a position
of trust” and that Gaines’ allegedly fraudulent information “caus[ed Johnson] to relax his
vigilance and deviate from his right of inquiry into the facts.” Petitioner’s Answer to
Respondent’s Preliminary Objections, 497 MD 2018, ¶¶ 22, 24; see also Johnson’s Brief
at 29 (noting that the “[t]he title counselor is only given to people who are historically in a
position of trust” and that the title “clearly indicate[s] some type of duty to [Johnson] in
regards to sensitive matters”).
The Commonwealth Court responded to these arguments first by declaring that
“Johnson does not cite any legal authority to support the proposition that his relationship
with [Gaines] is similar to the relationship a physician has with a patient such that his
reliance would be justifiable.” Johnson, 2019 WL 2400295, at *11. Second, the
Commonwealth Court asserted that “Johnson does not aver any specific facts or
circumstances that support his allegation that [Gaines] ‘was in a position of trust.’” Id.
(quoting Petitioner’s Answer to Respondent’s Preliminary Objections, 497 MD 2018,
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¶¶ 21-22). Based upon this apparent lack of legal and factual authority, the
Commonwealth Court concluded that “reasonable minds would not differ that society
would expect an individual in Johnson’s situation to exhibit more diligence in determining
the accuracy of a statement that such deductions were lawful in order to protect the
individual’s interests.” Id. (internal quotation marks omitted).
The Commonwealth Court fundamentally misunderstood our previous instructions
at the preliminary objections phase of litigation. Johnson’s allegations regarding the effect
of his background, his status as an incarcerated individual, and his relationship with
Gaines are all questions of fact. Based upon the record before it, the Commonwealth
Court had no means to assess, at the preliminary objections stage, whether Johnson
justifiably relied upon Gaines’ statement that the deductions were lawful. DOC raised
nothing in its preliminary objections that would have proven that Johnson should have
been “awakened” to probe the veracity of Gaines’ written response. See Fine, 870 A.2d
at 858. In its brief to this Court, DOC makes a general argument that Johnson “does not
explain why [Gaines’] response stopped him from exercising common sense or looking
into the accuracy of [Gaines’] statement.” DOC’s Brief at 14. Not only does this statement
ignore Johnson’s arguments to this Court and to the court below, but additionally DOC
does not argue with any specificity as to why the factual record does not allow Johnson’s
claim to proceed past preliminary objections. It is unclear how the Commonwealth Court
was able to arrive at the conclusion that, as a matter of law, a person in Johnson’s position
could not rely upon Gaines’ statement when there was no evidence before that court to
support that conclusion. Indeed, the only facts before the Commonwealth Court when
that court made its ruling were those alleged by Johnson himself, which, at the preliminary
objections stage, the Commonwealth Court had to accept as true, per this Court’s
instructions. See Golden Gate, 194 A.3d at 1022. Only by proceeding past preliminary
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objections and allowing the factual record to be developed, possibly through discovery,
could the Commonwealth Court make a fully-informed decision about whether Johnson
should have exercised diligence with regard to Gaines’ legally incorrect statement. Thus,
I would remand for further factual development Johnson’s attempt to toll the statute of
limitations based upon alleged fraudulent concealment.
* * *
I express no opinion as to whether Johnson ultimately would be meritorious in his
negligence claim. But the question in this case is not whether the Department of
Corrections and its employees were negligent in deducting funds from Johnson’s account
without pre-deprivation notice. Rather, the question is whether Johnson has pleaded a
claim sufficient to survive preliminary objections. Based upon the record before the
Commonwealth Court, the answer is yes. It is true that Johnson’s Amended Petition is
not the most sophisticated legal document submitted to a Pennsylvania court. Nor was
his attempt to toll the statute of limitations a clear-cut case of fraudulent concealment.
But at the preliminary objections stage, we require neither a high degree of sophistication
nor a definitive showing of fraudulent concealment. We inquire only “whether, on the
facts averred, the law says with certainty that no recovery is possible.” MacElree, 674
A.2d at 1054 (citation and internal quotation marks omitted). The Majority and the
Commonwealth Court apparently believe that such recovery is impossible with regard to
Johnson’s negligence claim. I disagree. “[D]ismissal of this matter on preliminary
objections was premature. Such disposition may prove entirely appropriate at a later
stage, such as summary judgment.” Sutton v. Bickell, 220 A.3d 1027, 1038 (Pa. 2019)
(Wecht, J., dissenting). But in this case, and at this stage of the litigation, Johnson has
met his burden.
[J-99-2020] [MO: Saylor, C.J.] - 20
There are many instances in which incarcerated individuals litigate claims that
ultimately prove to be meritless. Indeed, the General Assembly implicitly has made such
a recognition. See generally Prison Litigation Reform Act, Act of June 18, 1998, P.L. 640,
No. 84 (codified at 42 Pa.C.S. §§ 6601-08) (erecting barriers for incarcerated individuals
to litigate certain claims).9 But “[n]o matter what the underlying merits of a claim may be,
our courts must be open to all those who come before them, seeking to invoke their
jurisdiction.” Stockton v. Wetzel, 228 A.3d 1289, 1290 (Pa. 2020) (Wecht, J., concurring).
“We do injustice when we do not give full consideration to each and every individual that
seeks relief from our Commonwealth’s courts, no matter that individual’s incarceration
status.” Id. (Wecht, J., concurring); cf. Danysh v. Dep’t of Corr., 845 A.2d 260, 262-63
(Pa. Cmwlth. 2004) (en banc) (“The allegations of a pro se complainant are held to a less
stringent standard than that applied to pleadings filed by attorneys.”). Johnson has
invoked the Commonwealth Court’s jurisdiction. That court erred in dismissing too quickly
Johnson’s negligence claim. The Majority errs in affirming that dismissal. Accordingly, I
respectfully dissent from that portion of the Court’s opinion.
Justice Donohue joins the concurring and dissenting opinion.
9 In Payne v. Department of Corrections, 871 A.2d 795 (Pa. 2005), this Court struck
down certain provisions of the Prison Litigation Reform Act as unconstitutional, in that the
General Assembly intruded upon this Court’s rulemaking authority under Article V,
Section 10(c) of the Pennsylvania Constitution. However, much of the statute remains
on the books and still creates certain barriers for incarcerated individuals to bring claims.
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