IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Abimael Casiano, :

Appellant :

:

v. : No. 1086 C.D. 2018

: Submitted: March 15, 2019

Mail Inspector #5, :

Mail Inspector Supervisor, :

T.M. Kuzo, Theresa Delbaso :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED:July 10, 2019

Abimael Casiano (Casiano), pro se, appeals an order of the Court of 

Common Pleas of Schuylkill County (trial court) denying his petition to proceed in 

forma pauperis and dismissing his complaint as frivolous pursuant to Pennsylvania 

Rule of Civil Procedure No. 240(j). On appeal, Casiano argues that his complaint

stated valid tort claims against employees of the Department of Corrections1that are

not barred by sovereign immunity. For the reasons to follow, we affirm. 

Casiano is an inmate currently incarcerated at SCI-Mahanoy. In April 

2018, Casiano filed a complaint in the trial court seeking monetary damages for 

alleged negligent handling of his mail while incarcerated at SCI-Mahanoy. Casiano 

alleged, inter alia, that on September 15, 2017, his sister mailed legal materials to 

 

1 The employees are Mail Inspector No. 5 (Inspector); Mail Inspector Supervisor (Supervisor); 

T.M. Kuzo, the Grievance Officer (Officer Kuzo) at the State Correctional Institution at Mahanoy 

(SCI-Mahanoy); and Theresa Delbalso, Superintendent of SCI-Mahanoy. We refer collectively to 

these employees as Department Employees. 
2

him at SCI-Mahanoy. The mailroom returned this mail to his sister with the message

“unapproved name/complete full inmate name needed.” Complaint at 2, ¶7. 

The complaint averred that the policy of the Department of Corrections

(Department) requires that “[a]ll incoming mail must include the approved inmate 

name and department number.” Id. at 3, ¶12. Casiano’s approved name and 

institutional number are “Abimael Casiano, No. GK-8608.” Id., ¶14. The complaint

averred that Casiano’s approved name and institutional number were written on the 

outside of the envelopes that his sister mailed to him. Id., ¶13. The complaint

averred that his mail was returned “in retaliation” for a prior grievance he filed 

complaining about his mail not being delivered to him.

2

 Id., ¶16. 

In October 2017, Casiano filed a grievance complaining that he had not 

received his mail. Casiano requested that the Department reimburse his family $300 

for their injuries. Complaint at 3, ¶17. Officer Kuzo denied the grievance, 

explaining that Casiano’s mail was returned to his sister “because the name on the 

mailing was different from [his] commitment name.” Id. at 4, ¶18. Officer Kuzo 

found that the “mailroom properly followed [the Department’s policy] when staff 

refused [Casiano’s] mail.” Id., ¶19.

The complaint contained four counts. Counts I and II asserted that 

Inspector and Supervisor were negligent in the care, custody and control of 

Casiano’s mail. Count III asserted that Officer Kuzo failed to address the 

mishandling of his mail, whether by reason of misfeasance or nonfeasance. Count 

IV asserted that Superintendent established or enforced policies, practices or 

 

2 Casiano alleged that, in June 2017, his sister sent him mail that he did not receive. Complaint at 

2, ¶6. The mailroom returned the mail indicating that Casiano was not at SCI-Mahanoy. Id. at 3, 

¶14. 
3

customs that improperly prohibited the delivery of his mail. In addition, Casiano 

petitioned for leave to proceed in forma pauperis. 

On July 6, 2018, the trial court denied Casiano’s request for in forma 

pauperis status and dismissed the complaint as frivolous pursuant to PA. R.C.P. No. 

240(j). Under Rule No. 240(j)(1), a court may dismiss a complaint:

If, simultaneous with the commencement of an action or 

proceeding or the taking of an appeal, a party has filed a petition 

for leave to proceed in forma pauperis, the court prior to acting 

upon the petition may dismiss the action, proceeding or appeal if 

the allegation of poverty is untrue or if it is satisfied that the 

action, proceeding or appeal is frivolous.

PA. R.C.P. No. 240(j)(1). “Frivolous has been defined as lacking an arguable basis 

in either law or fact.” Williams v. Syed, 782 A.2d 1090, 1093 (Pa. Cmwlth. 2001). 

The trial court concluded that the complaint failed to state a claim upon 

which it could grant relief. The trial court explained that Department Employees 

were insulated from the tort claim by sovereign immunity and, further, the complaint 

did not state Casiano had exhausted his administrative remedies. Finally, the trial 

court noted that the grievance records showed that Casiano’s mail had not been 

properly addressed by relatives. Casiano appealed to this Court.

On appeal,3 Casiano argues that his complaint stated valid claims 

against Department Employees for negligence, misfeasance and nonfeasance. He 

contends that these claims were not barred by sovereign immunity. 

By way of background, “sovereign immunity protects Commonwealth 

officials and employees acting within the scope of their duties from civil liability.” 

 

3 Our review determines whether constitutional rights were violated, or whether the trial court 

abused its discretion or committed an error of law. Jones v. Doe, 126 A.3d 406, 408 n.3 (Pa. 

Cmwlth. 2015).
4

Kull v. Guisse, 81 A.3d 148, 154 (Pa. Cmwlth. 2013) (citing 1 Pa. C.S. §2310). This 

protection extends to claims for intentional torts. Robles v. Pennsylvania 

Department of Corrections, 718 A.2d 882, 884 (Pa. Cmwlth. 1998). However, the 

General Assembly has waived sovereign immunity for nine categories of acts 

involving negligence of a Commonwealth official or employee. Section 8522 of the 

Judicial Code, 42 Pa. C.S. §8522. Specifically, immunity is waived for negligent 

acts related to (1) vehicle liability; (2) medical-professional liability; (3) care, 

custody or control of personal property; (4) Commonwealth real estate, highways 

and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or 

control of animals; (7) liquor store sales; (8) National Guard activities; and (9) 

toxoids and vaccines. 42 Pa. C.S. §8522(b). This Court has explained:

[T]he test to determine if a Commonwealth employee is 

protected from liability is to consider “whether the 

Commonwealth employee was acting within the scope of his or 

her employment; whether the alleged act which causes injury 

was negligent and damages would be recoverable but for the 

availability of the immunity defense; and whether the act fits 

within one of the nine exceptions to sovereign immunity.” La 

Frankie v. Miklich, [618 A.2d 1145, 1149 (Pa. Cmwlth. 1992)].

Williams, 782 A.2d at 1095. 

In its 1925(a) opinion, the trial court focused on the personal property 

exception to sovereign immunity set forth in Section 8522(b)(3) of the Judicial Code, 

42 Pa. C.S. §8522(b)(3). Under this exception, immunity may not be raised to claims 

for damages caused by: 

(3) Care, custody or control of personal property.--The care, 

custody or control of personal property in the possession or 

control of Commonwealth parties, including Commonwealthowned personal property and property of persons held by a 

Commonwealth agency, except that the sovereign immunity of 
5

the Commonwealth is retained as a bar to actions on claims 

arising out of Commonwealth agency activities involving the use 

of nuclear and other radioactive equipment, devices and 

materials.

42 Pa. C.S. §8522(b)(3). Casiano does not suggest that any other exception is 

relevant or applicable.

With respect to Casiano’s negligence claims against Inspector and 

Supervisor, the complaint alleged that they had a duty to deliver all mail addressed 

to him, which they breached by carelessly returning this mail to his sister. Casiano 

directs this Court to Williams v. Stickman, 917 A.2d 915 (Pa. Cmwlth. 2007), to 

support his contention that his negligence claims against Inspector and Supervisor

are not barred by sovereign immunity. 

Department Employees respond that Casiano’s allegations amount to a

claim for an intentional tort. Department Employees contend that because they were 

acting within the scope of their employment, sovereign immunity bars a claim even 

for an intentional tort.

To state a claim for negligence under common law, Casiano must show 

that Department Employees “owed a duty of care to [him], [Department Employees] 

breached that duty, the breach resulted in injury to [him], and [he] suffered an actual 

loss or damage.” Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998). “By definition, 

the alleged negligent conduct expressly excludes ‘conduct that is intentionally, 

wantonly, or willfully disregardful of others’ rights.” Washington v. Folino (Pa. 

Cmwlth., No. 513 C.D. 2017, filed June 12, 2018), slip op. at 7 (quoting BLACK’S 
6

LAW DICTIONARY 1133 (9th ed. 2009)) (unreported).

4

 “[N]egligence denotes 

‘culpable carelessness.’” Id. 

We conclude that Casiano’s complaint did not state a cognizable

negligence claim. Casiano does not allege any injury to himself as a result of 

Inspector or Supervisor’s breach of the duty to deliver all mail addressed to him. In 

addition, he does not allege that he suffered a loss or damage, which is fatal to his 

negligence claim. 

Further, Casiano’s claim arises from alleged intentional, not negligent, 

acts. The complaint averred that the first time mail addressed to him was returned, 

the mailroom did so for the stated reason he was “not at SCI Mahanoy.” Complaint 

at 3, ¶14. The second time mail was returned, it was in retaliation for his filing a 

grievance. Id., ¶16. These are intentional acts. This Court has stated that intentional 

conduct does not fall within the personal property exception to sovereign immunity. 

La Frankie, 618 A.2d at 1149. Accordingly, Casiano’s claims against Inspector and 

Supervisor are barred by sovereign immunity.

Finally, Casiano’s reliance on Stickman, 917 A.2d 915, is misplaced. 

In Stickman, the inmate filed a complaint against employees of the Department for 

damage to his television. The complaint averred that the inmate’s television was in 

good working order when the Department took possession of it. However, when the 

Department returned the television, it was broken. This Court explained that

sovereign immunity was not a defense to the inmate’s negligence claim because the 

inmate set forth “a claim for damages to his television set caused by the care of the 

television set while it was in the possession of [the Department].” Stickman, 917 

 

4 An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for 

its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating 

Procedures, 210 Pa. Code §69.414(a).
7

A.2d at 918. Unlike Stickman, Casiano does not allege that Department Employees 

negligently damaged his property. Rather, his allegations are that the mailroom 

should have delivered mail to him and not returned the mail to its sender. 

In sum, the claims against Inspector and Supervisor are barred by 

sovereign immunity. Accordingly, the trial court was correct in denying Casiano’s 

in forma pauperis petition and dismissing his complaint. 

Second, Casiano claims that Officer Kuzo had a duty to take corrective 

action to address the mishandling of his mail and did not do so. Casiano alleged that 

Officer Kuzo’s actions or inactions constitute misfeasance and nonfeasance. In 

Palmer v. Doe (Pa. Cmwlth., No. 2451 C.D. 2015, filed May 5, 2016) (unreported), 

this Court explained:

Misfeasance is defined as: “A lawful act performed in a wrong 

manner.” BLACK’S LAW DICTIONARY 1021 (8th ed. 2004). 

Nonfeasance is: “The failure to act when a duty to act exists.” Id. 

at 1080. As further explained in Black’s Law Dictionary: 

“[T]here arose very early a difference, still deeply rooted in the 

law of negligence, between ‘misfeasance’ and ‘nonfeasance’—

that is to say, between active misconduct working positive injury 

to others and passive inaction or a failure to take steps to protect 

them from harm.” Id. (quoting W. Page Keeton et al., PROSSER 

AND KEETON ON THE LAW OF TORTS § 56 at 374 (5th ed.1984)).

Palmer, slip op. at 7. As discussed above, the complaint averred that the mailroom 

did not deliver his mail and, instead, returned it in retaliation for his prior grievance 

complaining about the mishandling of his mail. Officer Kuzo determined that the 

mail was returned because “the name on the mailing was different from [Casiano’s] 

commitment name” and that this comported with the Department’s mail policy. 

Complaint at 4, ¶¶18-19. 
8

The complaint did not allege that Officer Kuzo was negligent in 

performing his duties or that Officer Kuzo was acting outside the scope of his 

employment. Additionally, there is no cause of action for the mishandling of an 

inmate’s grievance. See Samuels v. Walsh (Pa. Cmwlth., No. 318 C.D. 2014, filed 

November 17, 2014) (unreported). For these reasons, Casiano’s tort claim against 

Officer Kuzo is barred by sovereign immunity. 

Third, Casiano alleges that the Superintendent at SCI-Mahanoy

established a policy that allowed his mail to be returned for “arbitrary and frivolous 

reasons.” Complaint at 8, ¶36. Casiano did not allege that the Superintendent acted 

negligently or outside the scope of her duties. Therefore, the Superintendent’s action 

is protected by sovereign immunity. La Frankie, 618 A.2d at 1149. Further, Section 

8522(b)(3) of the Judicial Code does not waive sovereign immunity for officials or 

employees with respect to the creation and enforcement of policies. 42 Pa. C.S. 

§8522(b)(3). 

For the foregoing reasons, we hold that the trial court did not err in

denying Casiano’s request to proceed in forma pauperis and dismissing his

complaint pursuant to PA. R.C.P. No. 240(j). We affirm the order of the trial court.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Abimael Casiano, :

Appellant :

:

v. : No. 1086 C.D. 2018

: 

Mail Inspector #5, :

Mail Inspector Supervisor, :

T.M. Kuzo, Theresa Delbaso :

O R D E R

AND NOW, this 10th day of July, 2019, the order of the Court of 

Common Pleas of Schuylkill County dated July 6, 2018, in the above-captioned 

matter is AFFIRMED. 

 _____________________________________

 MARY HANNAH LEAVITT, President Judge