J.T. Burke v. PA, DOC, Super. L. Harry & the Com. of PA ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James T. Burke, :
:
Petitioner :
:
v. : No. 452 M.D. 2019
: Submitted: February 28, 2020
Pennsylvania, Department of :
Corrections, Superintendent Laurel :
Harry and the Commonwealth of :
Pennsylvania :
:
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: May 6, 2020
Before the Court are the preliminary objections in the nature of a
demurrer (POs) of the Pennsylvania Department of Corrections (DOC),
Superintendent Laurel Harry (Superintendent), and the Commonwealth of
Pennsylvania (Commonwealth) (collectively, Respondents) to the Petition for
Review (PFR), styled as a “Civil Complaint,” that was filed in our original
jurisdiction by James T. Burke (Inmate). We sustain the POs and dismiss the PFR.
Inmate is currently housed in a correctional facility in Mississippi;
however, he was previously housed in the J-Unit of the State Correctional
Institution at Camp Hill (SCI-Camp Hill). On December 11, 2017, while housed
in the J-Unit, DOC staff issued a disciplinary report which resulted in Inmate’s
transport to the Restricted Housing Unit (RHU). Because Inmate was taken
directly to the RHU, on December 12, 2017, DOC staff packaged the contents of
his cell, completed a Form DC-153 Inmate Personal Property Inventory without
Inmate’s signature, sealed the box, and stored Inmate’s property until he was
released from the RHU.1
Upon his release from the RHU, on January 4, 2018, Inmate filed a
Form DC-135A Inmate’s Request to Staff Member, in which he alleged that a
number of items from his cell were either missing or damaged. PFR Exhibit 3.
Inmate alleged that the J-Unit staff had packed up his “non-contraband personal
property [] that [he] had purchased from [the] Commissary and failed to pack up
the attached list of Commissary items because [he] never received them, [and his]
Radio and T.V. were also damaged.” Id.2 He also stated, “Need replacement
cost.” Id.
1
See DC-ADM 815, Section 1(C)(3) (“If the inmate cannot be physically present when
his/her property is being packed and inventoried, or if he/she represents a security threat, two
officers shall inventory and process the inmate’s property and both officers will sign the DC-
153. A notation will be made as to why the inmate was not present. The two officers will be
responsible for sealing the boxes with sealing tape and signing his/her name over the tape.”)
(emphasis in original).
2
Inmate attached the following itemized list: (1) “Clear R.C.A. T.V. damaged and
missing the T.V.’s ear head-phone buds”; (2) “Clear Sony radio damaged, clear headphones
damaged”; (3) “Five (5) 12’ long headphone extension cables missing”; (4) “Two (2) Rio
tobacco bags, and five (5) books of rolling papers”; (6) “Ten (10) Ramen Noodles Soups”; (7)
One (1) Meatball in tomato sauce”; (8) “One (1) White extension cord”; (9) “One (1) B.B.Q.
Chips”; (10) “One (1) Hershey Choc. Bar”; (11) “One (1) Raisin Bagel”; (12) “One (1) Plastic
Rain Coat Poncho”; (13) “One (1) Hot Cocoa 10 oz. Bag”; (14) “One (1) Raisin Bran Cereal 20
oz. Box”; (15) “One (1) Dunkin Sticks 6 pk. 10 oz.”; (16) “One (1) Max[well] House Coffee 4
oz.”; (17) “One (1) Bic Disp. Razor”; (18) “One (1) Digital Flat Antenna”; (19) “One (1) Pair
Ear Plugs”; (20) “One (1) Frosted Mini Wheats Cereal”; (21) “One (1) Strawberry Pastries”; (22)
“One (1) Pencil Eraser Cap”; (23) “One (1) Pine Air Freshener”; (24) “One (1) Box of Tea
Bags;” (25) “One (1) Antibacterial Soap”; (26) “One (1) Cocoa Butter Soap”; (27) “One (1) Sun
(Footnote continued on next page…)
2
On January 8, 2018, the Staff responded that only the following items
were listed on the completed Form DC-153: (1) “1 - T.V. - Not Noted As
Damaged”; (2) “1 - Radio - [Not Noted as Damaged]”; (3) “1 Set of Earphones”;
(4) “6 - Soups”; (5) “1 - Cigarette Paper”; and (6) “1 - Cigarette Pack.” PFR
Exhibit 3.
On January 9, 2018, Inmate filed a DC-804 Official Inmate Grievance
(Grievance), in which he again asserted that the foregoing items were either
damaged or missing, that he did not sign the Form DC-153 inventory, and that the
total reimbursement sought was $335.17 and approximately $30.00 in taxes. PFR
Exhibit 4.3 On January 19, 2018, the J-Unit Manager denied Inmate’s Grievance.
Id.
On January 31, 2018, Inmate appealed the denial of his Grievance to
the Facility Manager in which he assailed the grievance procedure at SCI-Camp
Hill. PFR Exhibit 5.4 On February 6, 2018, the Facility Manager dismissed
(continued…)
Glasses broken by staff”; (28) “One (1) Laundry bag missing with (2) purchased brown t-shirts”;
and (29) “Typing Paper. Need replacement cost.” Id.
3
Inmate raised the same allegations regarding the confiscation of his property, noting that
“on 12/11/2017, J-[U]nit Staff packed my non-contraband personal property up that I had
purchased from [the C]ommissary and failed to also pack up or inventory the attached list of
purchased [C]ommissary items as I never received all my purchased [C]ommissary [items] that
[were] in my cell at that time and I never put my signature on the DC-153 inmate personal
property inventory form that failed to list all the property that was in my cell, [and m]y Radio
and T.V. were also damaged[.]” PFR Exhibit 4.
4
Inmate alleged that “[a] fair and unbias[ed] grievance investigation would” establish
that he “purchased every item of non-contraband property [that he] originally claimed in [his]
grievance to have been purchased and is now missing.” PFR Exhibit 5. He also claimed that the
“grievance [o]fficer appears to be bias[ed] in favor of [the] Camp Hill [o]fficers who were
(Footnote continued on next page…)
3
Inmate’s appeal; however, on April 2, 2018, on further appeal to the Secretary’s
Office of Inmate Grievances & Appeals,5 the Chief Grievance Officer remanded
the matter to SCI-Camp Hill “for additional review and appropriate response.” Id.
On remand, on April 30, 2018, the J-Unit Manager again denied
Inmate’s Grievance stating, in relevant part:
You were released from the RHU on 1/3/18 and did not
file this grievance until 1/9/18. By review of [the Inmate
Cumulative Adjustment Record] during this 6-day span
there was not one notation that you had spoken to any
unit staff informing them of any issues with your
property. When your property was returned to you, it
was in a sealed box which you would have unsealed.
Furthermore, you provided no evidence that your
(continued…)
involved,” and that the “grievance [o]fficer also failed to investigate correctly, or at all my Camp
Hill property purchases, or even ask to review a copy of my purchase documentations, never
checked up on my damaged T.V. and Radio, and never even interviewed me to show the effects
of my damaged T.V. & Radio, and missing property.” Id. Inmate also asserted, “The alleged
‘grievance system’ at [SCI-Camp Hill] is now clearly documented as not only being BOGUS,
but also a CORRUPT, BIAS[ED] & SLANTED system of injustice which will cause me to take
this issue up in the Washington County, Vermont, Small Claims Court for replacement costs as
detailed in my original grievance[.]” Id. (emphasis in original).
5
In the February 13, 2018 Inmate Appeal to Final Review, Inmate again alleged that the
grievance officer “failed to correctly confirm the fact that [he] had purchased all the items [that
he] had listed as being missing from [his] cell and was not put on the property inventory slip
[that he] never signed[.]” PFR Exhibit 5. Inmate also claimed that the grievance officer “never
confirmed all [of his] canteen sales slips documenting [his] purchases of each and every item of
property [that he] had listed[.]” Id. Inmate asserted that “this is further evidence of a cover-up
of Camp Hill staff thei[v]ing,” and questioned, “[W]hat other things are being covered up by the
SCI Camp Hill system of injustice?” Id. He claimed, “Cover-up appears to be the policy here at
SCI Camp Hill, with no correct attempt to investigate the truth of what happens, further
confirming the fact that this SCI Grievance system is in truth and fact, BOGUS, CORRUPT,
BIAS[ED] & slanted toward the Officers and is again [] clearly a system of injustice. See you in
court. . . .” Id. (emphasis in original).
4
television and radio were damaged. It is not listed in
policy that staff are to verify that electronic items are
working when they are tasked with packing and
inventorying your property when you are sent to the
RHU. As stated in the Initial Response, your electronic
items were listed on the [Form DC-153] and not noted as
being damaged. Additionally, when you are sent to the
RHU and your property is packed and inventoried, you
would not sign off on the [Form] DC-153 due to your
circumstances. You also list various Commissary items
that you claim were missing from your property as well.
It is just that, a list of items you claim to have purchased;
there was no Confiscated Items Receipt issued to you for
these Commissary items.[6] Even if you did provide a
Commissary Receipt verifying that at some point in time
you did purchase these items it only proves that [you
purchased them]. These items are consumable items and
these items will not be replaced or you reimbursed for
them due to the temporary nature of these items.
PFR Exhibit 5.
On May 7, 2018, Inmate submitted an Inmate Appeal to Final Review
of the Grievance denial,7 and, on July 10, 2018, the Chief Grievance Officer again
6
See DC-ADM 804, Section 1(A)(17) (“An inmate filing a grievance related to a claim
of missing property must provide documentation such as a DC-153A, Personal Property
Inventory Sheet; DC-154A, Confiscated Items Receipt; or a Commissary/Outside Purchase
Form for evidence or proof that the property items were once in his/her possession. Failure to
do so may result in the rejection of the grievance.”) (emphasis in original); DC-ADM 804,
Section 1(A)(22) (“In a case involving personal property, the inmate must clearly notify the
Facility Manager or Facility Grievance Coordinator/designee to retain the property pending
completion of the grievance process, including any appeal. This notification can be made within
the initial grievance.”).
7
Inmate again claimed that “[o]n 12/11/2017, J-Unit staff packed [his] non-contraband
personal property up that [he] had purchased from the Commissary and failed to pack up the
attached lists of Commissary items,” and that his “radio & T.V. were also damaged” and he
“now need[ed] the replacement cost of [his] stolen and damaged attached purchased property.”
PFR Exhibit 5. He stated that he “was never allowed to put [his s]ignature on the [Form] DC-
153 paper, to conf[i]rm [that he] had [his] property correctly rolled up out of [his] cell,” and that
“this stolen property appears to be a SCI-Camp Hill internal Staff policy or (M.O.), to punish
(Footnote continued on next page…)
5
returned the Grievance to SCI-Camp Hill “for additional review and appropriate
response.” PFR Exhibits 6, 7.
Ultimately, on August 13, 2018, Inmate again submitted an Inmate
Appeal to Final Review based on an August 6, 2018 decision denying the
Grievance on remand. PFR Exhibit 8. On October 12, 2018, the Chief Grievance
Officer upheld SCI-Camp Hill’s response stating, in pertinent part:
In this grievance, you raise concerns of many missing
property items from your move to the RHU on 12/13/17
and back to General Population on 1/3/18. You further
indicate that your TV, radio, headphones for radio, and
one pair of sunglasses were damaged. You mention that
you never signed the property inventory form and sought
to be compensated for the missing and damaged items.
Review of the response provided [] finds that it is very
thorough and addresses the concerns you have raised.
This office finds that nothing further needs to be added to
the response that you already received, and you provide
no new information/evidence to support your concerns.[8]
Therefore, this office upholds the responses provided to
you and your requested relief is denied.
PFR Exhibit 9.
(continued…)
inmates for getting a misconduct write-up[.]” Id. He contended that “the SCI-Camp Hill
Grievance Review . . . is corrupt, bias[ed] and slanted in favor of the SCI-Camp Hill officers.”
Id. He asked for “the replacement cost of [the] attached listed personal property from the
Commonwealth [] one way or another!” Id.
8
See DC-ADM 804, Section 2(B)(1)(g) (“An inmate filing an appeal related to a claim of
missing property must provide documentation such as a DC-153A, Personal Property
Inventory Sheet; DC-154A, Confiscated Items Receipt; or a Commissary/Outside Purchase
Form for evidence or proof that property items were once in his/her possession. Failure to do so
may result in dismissal of the appeal.”) (emphasis in original).
6
On August 12, 2019, Inmate filed the instant PFR seeking judgment
against the DOC, the Superintendent, and the Commonwealth in the amount of
$500.00 plus court costs. PFR at 1. Although styled as ten “Causes of Action,”
the PFR merely sets forth the foregoing Grievance procedural history and
references the Exhibits attached thereto. See id. at 1-6.9 Inmate again asserted that
the J-Unit staff at SCI-Camp Hill “issued a bogus disciplinary report,” which
resulted in his transport to RHU and his “cell property being roll[ed]-up or packed
by the J-Unit Staff,” and that he was denied the opportunity to sign the Form DC-
153 listing the inventory and condition of the items that were packed up by the
staff from his cell. PFR at 2. He recounted that he filed the Form DC-135A “in
a[n] attempt to recover his ‘lost’ or (most-likely stolen by Staff non-contraband
property)” “that [he] had purchased from [the C]ommissary and [the staff] failed to
pack up . . . because he never received them [and his] radio and T.V. were also
damaged.” Id. at 3. See also id. at 3-5. In his final “Cause of Action,” Inmate
again assails the “bogus, slanted and corrupt alleged ‘Grievance’ process,” he
contends that his “stolen by [SCI-Camp Hill] Staff property has still never been
9
As this Court has explained:
“Pennsylvania is a fact-pleading jurisdiction. A complaint
must therefore not only give the defendant notice of what the
plaintiffs’ claim is and the grounds upon which it rests, but it must
also formulate the issues by summarizing those facts essential to
support the claim.” Sevin v. Kelshaw, [611 A.2d 1232, 1235 (Pa.
Super. 1992)] (citation omitted); see also Feigley v. [Department of
Corrections], 872 A.2d 189[, 196] (Pa. Cmwlth. 2005) (specific
averments, rather than mere notice pleading, are required in cases
within this Court’s original jurisdiction).
Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission, 950 A.2d 1120, 1134
(Pa. Cmwlth. 2008).
7
returned, nor has any replacement cost been had,” and that he has been subjected to
“a bogus run-around by [DOC] Staff who are nothing more than criminals with
badges sucking off the Commonwealth’s taxpayers with their ‘criminals with
badges’ work at [SCI-Camp Hill].” Id. at 6. By September 9, 2019 order, we
granted Inmate’s Application to Proceed In Forma Pauperis and directed
Respondents to file an answer or otherwise plead within 30 days.
On October 10, 2019, Respondents filed the instant POs in the nature
of a demurrer10 asserting: (1) the Superintendent is not vicariously liable for the
actions of her subordinates and Inmate does not allege any facts to indicate that she
10
As this Court has explained:
In ruling on preliminary objections, we must accept as true
all well-pleaded material allegations in the petition for review, as
well as all inferences reasonably deduced therefrom. The Court
need not accept as true conclusions of law, unwarranted inferences
from facts, argumentative allegations, or expressions of opinion.
In order to sustain preliminary objections, it must appear with
certainty that the law will not permit recovery, and any doubt
should be resolved by a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the complaint and all inferences
reasonably deducible therefrom. It tests the legal sufficiency of the
challenged pleadings and will be sustained only in cases where the
pleader has clearly failed to state a claim for which relief can be
granted. When ruling on a demurrer, a court must confine its
analysis to the complaint.
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted). Therefore, in
considering Inmate’s claims, we are limited to the allegations raised in the PFR; any additional
claims or arguments contained in his brief filed in opposition to the POs will not be considered in
disposing of the POs. Id. See also Feigley, 872 A.2d at 193 n.3 (“[The inmate] attempts to
augment the averments in his Petition [for Review] by making various allegations in his three
briefs and by attaching documents thereto. Factual disputes are framed by pleadings, not briefs,
therefore, we do not consider these additional allegations and documents.”).
8
personally engaged in, or directed the commission of, any actionable conduct with
respect to his property; and (2) any claims against the Commonwealth, DOC, or its
officials for intentional misconduct within the scope of employment of its
employees are barred by sovereign immunity.11
Initially, with respect to Inmate’s claims against the Superintendent,
he does not allege in the PFR that she was personally involved in any of the actions
that caused him to suffer damages. Thus, the PFR “contains no allegations that
th[is] individual[] personally engaged in any wrongdoing or actionable conduct.
Merely being in the ‘chain of command’ does not subject [her] to suit on a theory
of vicarious responsibility. DuBree v. Commonwealth, 393 A.2d 293, 295 (Pa.
1978) [(plurarity opinion)].” Price v. Simcox (Pa. Cmwlth., No. 307 C.D. 2017,
filed September 28, 2017), slip op. at 9. As a result, the PO in the nature of a
demurrer is sustained and Inmate’s claims against the Superintendent are
dismissed.
Next, with respect to Inmate’s claims against the DOC, as this Court
has stated:
Our Supreme Court has defined conversion as “an act of
willful interference with a chattel, done without lawful
11
See Article 1, Section 11 of the Pennsylvania Constitution, Pa. Const. art. I, §11 (“Suits
may be brought against the Commonwealth in such manner, in such courts and in such cases as
the Legislature may by law direct.”); Section 2310 of the Pennsylvania Consolidated Statutes, 1
Pa. C.S. §2310 (“[T]he Commonwealth, and its officials and employees acting within the scope
of their duties, shall continue to enjoy sovereign immunity . . . and remain immune from suit
except as the General Assembly shall specifically waive the immunity. When the General
Assembly specifically waives sovereign immunity, a claim against the Commonwealth . . . shall
be brought only in such manner and in such courts and in such cases as directed by the
provisions of Title 42 (relating to judiciary and judicial procedure)[.]”); Section 8521(a) of the
Judicial Code, 42 Pa. C.S. §8521(a) (“Except as otherwise provided in this subchapter, no
provision of this title shall constitute a waiver of sovereign immunity for the purpose of 1
Pa. C.S. §2310 (relating to sovereign immunity reaffirmed; specific waiver) or otherwise.”).
9
justification, by which any person entitled thereto is
deprived of use and possession.” Norriton East Realty
Corp. v. Central-Penn National Bank, [254 A.2d 637,
638 (Pa. 1969)]. The Supreme Court also cited with
approval Prosser’s description of the ways in which a
conversion can be committed:
(a) Acquiring possession of the goods, with an intent to
assert a right to them which is in fact adverse to that of
the owner.
(b) Transferring the goods in a manner which deprives
the owner of control.
(c) Unreasonably withholding possession from one who
has the right to it.
(d) Seriously damaging or misusing the chattel in
defiance of the owner’s rights.
Id. (quoting Prosser, Torts §15 (2d ed. 1955)) (emphasis
added). A claim for conversion arises from an
intentional and not a negligent act.
Stokes v. COI Gehr (Pa. Cmwlth., No. 332 C.D. 2011, filed October 19, 2011), slip
op. at 4.12, 13
12
See 210 Pa. Code §69.414(a) (an unpublished memorandum opinion, although not
binding precedent, may be cited for its persuasive value in accordance with Section 414(a) of this
Court’s Internal Operating Procedures).
13
As a federal District Court has explained:
An individual commits the tort of trespass to chattels by
intentionally dispossessing another person of a chattel or
intermeddling with a chattel in another person’s possession.
Pestco, Inc. v. Associated Products, Inc., 880 A.2d 700, 708 (Pa.
Super. [] 2005). If the interference with the owner’s right of
possession is sufficiently severe to permanently deprive him or her
of that right, the trespass culminates in a conversion. Baram v.
Farugia, 606 F.2d 42, 43-44 (3d Cir. 1979). A conversion can
(Footnote continued on next page…)
10
The gravamen of Inmate’s claims against the DOC are that its officers
in J-Unit stole the missing property and intentionally mishandled his television,
radio and sunglasses thereby depriving him of their use. See PFR at 6, Exhibits 3,
5, 6. As outlined above, such actions sound in intentional tort thereby shielding the
DOC from liability based on sovereign immunity. Williams v. Stickman, 917 A.2d
915, 917 (Pa. Cmwlth. 2007); La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa.
Cmwlth. 1992); Stokes, slip op. at 4.
Nevertheless, in his brief in opposition to the POs, Inmate argues that
his claims fall within the exception to sovereign immunity provided by Section
8522(b)(3) of the Judicial Code, which states that “the defense of sovereign
immunity shall not be raised to claims for damages caused by . . . [t]he care,
custody or control of personal property in the possession or control of
Commonwealth parties, including . . . property of persons held by a
Commonwealth agency[.]” 42 Pa. C.S. §8522(b)(3).
(continued…)
occur even if the defendant does not appropriate the property for
his or her own use. Central Transport, LLC v. Atlas Towing, Inc.,
884 F. Supp. 2d 207, 218-19 (E.D. Pa. 2012). . . .
Trespass to chattels and conversion are both intentional
torts. Synthes, Inc. v. Marotta, 281 F.R.D. 217, 233 (E.D. Pa.
2012). They do not sound in negligence. Adams v. Ryan &
Christie Storage, Inc., 563 F. Supp. 409, 412 (E.D. Pa. 1983)
(describing “the concept of conversion which prevails in
Pennsylvania” as “a concept a long distance from negligence”).
Commonwealth parties are immune from liability for damages
attributable to intentional torts. Williams v. Stickman, 917 A.2d
915, 917 (Pa. [Cmwlth.] 2007).
Ickes v. Grassmeyer, 30 F. Supp. 3d 375, 402 (W.D. Pa. 2014) (footnote omitted).
11
However, “[h]e is incorrect. The exceptions to sovereign immunity
are only applicable in situations where sovereign immunity has been waived. As
explained above, immunity has not been waived for intentional acts such as
conversion.” Stokes, slip op. at 4-5 n.5. Likewise, as explained above, the
allegations raised in the instant PFR and the Exhibits attached thereto set forth
claims grounded in intentional acts for which sovereign immunity has not been
waived. Id. As a result, the PO in the nature of a demurrer is sustained and
Inmate’s claims against the DOC are dismissed.
Finally, with respect to Inmate’s claims against the Commonwealth,
as this Court has explained:
The waiver of sovereign immunity in Section 8522 of the
Judicial Code applies only to claims against
Commonwealth agencies and employees, and does not
waive the immunity of the Commonwealth itself. 42
Pa. C.S. §§8501,[14] 8522; Tork-Hiss [v. Commonwealth,
735 A.2d 1256, 1258 (Pa. 1999)]; Russo [v. Allegheny
County, 125 A.3d 113, 118 (Pa. Cmwlth. 2015)]; Hall v.
Acme Markets, Inc., 532 A.2d 894, 897 (Pa. Cmwlth.
1987). Inmate’s claims against [the] defendant
Commonwealth are therefore barred by sovereign
immunity, notwithstanding the personal property
exception to sovereign immunity in Section 8522(b)(3).
Owens v. Commonwealth (Pa. Cmwlth., No. 2624 C.D. 2015, filed September 23,
2016), slip op. at 4. As a result, the PO in the nature of a demurrer is sustained and
Inmate’s claims herein against the Commonwealth are dismissed.
14
Section 8501 of the Judicial Code defines “Commonwealth party” as “[a]
Commonwealth agency and any employee thereof, but only with respect to an act within the
scope of his office or employment.”
12
Accordingly, the POs in the nature of a demurrer are sustained, and
the PFR is dismissed with prejudice.
MICHAEL H. WOJCIK, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James T. Burke, :
:
Petitioner :
:
v. : No. 452 M.D. 2019
:
Pennsylvania Department of :
Corrections, Superintendent Laurel :
Harry and the Commonwealth of :
Pennsylvania :
:
Respondents :
ORDER
AND NOW, this 6th day of May, 2020, the Preliminary Objections of
the Pennsylvania Department of Corrections, Superintendent Laurel Harry, and the
Commonwealth of Pennsylvania are SUSTAINED, and James T. Burke’s Petition
for Review, styled as a “Civil Complaint,” is DISMISSED with prejudice.
__________________________________
MICHAEL H. WOJCIK, Judge