The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clifford Karolski, :
Petitioner :
:
v. :
:
PA Dept of Corrections, et al., : No. 151 M.D. 2023
Respondents : Submitted: September 9, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: October 11, 2024
Before this Court is the Pennsylvania Department of Corrections’
(DOC), and DOC Sergeants Leonard’s (Sgt. Leonard) and Swarigin’s (Sgt.
Swarigin)1 (collectively, Respondents) Preliminary Objection2 to Clifford Karolski’s
(Karolski) pro se Petition for Review in the nature of a Complaint (Petition) filed in
this Court’s original jurisdiction. After review, this Court sustains Respondents’
Preliminary Objection and dismisses the Petition.
Facts
Karolski is currently incarcerated at the State Correctional Institution
(SCI) at Forest. On March 16, 2023, Karolski filed the Petition against DOC and
1
Sgts. Leonard’s and Swarigin’s first names do not appear in the pleadings.
2
Although entitled Preliminary Objections, Respondents only alleged one preliminary
objection.
Sgt. Swarigin and Sgt. Leonard in their official and individual capacities.3 Karolski
averred in the Petition:
FACTS
8. The [R]espondents [Sgts.] Leonard [and] Swarigin stole
[] [Karolski’s] following listed property while [Karolski]
was being held in the Restrictive Housing Unit [(RHU)] of
[SCI-]Camphill [sic].
List of stolen items values[4]
*** ***
Total of [S]tolen Property Total=$1,231.09.
9. The [R]espondents [Sgts.] Leonard [and] Swarigin
violated their employment duties to provide [c]are,
[c]ustody [and] [c]ontrol when they stole [Karolski’s]
personal property.
10. The [R]espondents [Sgts.] Leonard [and] Swarigin
violated [DOC’s] [C]ode of [E]thics when they stole
[Karolski’s] personal property.
11. [DOC,] being the employer of the [R]espondents
[Sgts.] Leonard [and] Swarigin[,] it is liable for the actions
of its employees [R]espondents [Sgts.] Leonard [and]
Swarigin stealing [Karolski’s] personal property.
12. The [R]espondents [Sgts.] Leonard [and] Swarigin
committed the criminal act of [Section 5301 of the Crimes
Code,] 18 Pa.[C.S.] § 5301[,] official oppression when
they stole [Karolski’s] personal property.
Petition at 2-5.
3
On May 15, 2023, this Court directed Karolski to pay the filing fee or request in forma
pauperis (IFP) status with an inmate account statement. On May 18, 2023, this Court granted
Karolski IFP status.
4
Karolski set forth a list of 88 items, ranging from the least expensive item, i.e., a “Prepaid
Envelope” for “$.76[,]” to the most expensive item, i.e., an “Eden TV w/remote” for “$238.50[.]”
Petition at 2-4.
2
In the Petition, Karolski also avers that at all relevant times, DOC was
responsible for the care, custody, and control of his property, see Petition ¶ 3, and
that Sgt. Leonard and Sgt. Swarigin were responsible for his personal property while
he was being housed in the RHU at SCI-Camp Hill. See Petition ¶¶ 4-5. Karolski
claims that he has exhausted his administrative remedies.5 See Petition ¶ 13.
Karolski seeks $1,231.09 for the loss of property allegedly stolen from him, and
$49.70 to cover the cost of copies made in litigating this matter thus far. See Petition
¶¶ 14-15. In addition, Karolski requests “[c]osts of litigation to be determined.”
Petition ¶ 16.
On June 14, 2023, Respondents filed their Preliminary Objection in the
nature of a demurrer, asserting therein that since Karolski has failed to allege
sufficient facts establishing that anything occurred beyond the intentional
confiscation of his personal property, Respondents are protected by sovereign
immunity, and this action must be dismissed.6 On that same date, Respondents filed
a brief in support of their Preliminary Objection.7 By August 11, 2023 Order, this
5
Notwithstanding that Karolski alleged that he exhausted all administrative remedies, see
Petition ¶ 13, there are no factual averments supporting this allegation.
6
[A]lthough [Pennsylvania Rule of Civil Procedure] 1030 indicates
that immunity ordinarily must be raised in New Matter, “a party may
raise the affirmative defense of immunity as a preliminary objection
where it is clearly applicable on the face of the [petition for review];
that is, that a cause of action is made against a governmental body[,]
and it is apparent on the face of the pleading that the cause of action
does not fall within any of the exceptions to governmental
immunity.” Orange Stones Co. v. City of Reading, 87 A.3d 1014,
1022 (Pa. Cmwlth. 2014) (citation omitted). Because [Respondents]
argue[] that [Karolski’s] . . . claims are barred on their face by
sovereign immunity, [this Court] can and will address the merits of
that defense here.
Firearms Owners Against Crime - Inst. for Legal, Legis. & Educ. Action v. Evanchick, 291 A.3d
507, 513-14 (Pa. Cmwlth. 2023).
7
On July 6, 2023, Karolski filed an Application for Appointment of Counsel (Application).
By July 13, 2023 Order, this Court denied Karolski’s Application.
3
Court directed Karolski to file a brief in opposition to the Preliminary Objection,
which he did on September 1, 2023.
Discussion
Initially,
[i]n 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. Th[is] 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 [petition for review] 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 [petition for review].
McNew v. E. Marlborough Twp., 295 A.3d 1, 8-9 (Pa. Cmwlth. 2023) (emphasis
added) (quoting Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations
omitted)).
Respondents argue that Karolski has failed to state a claim upon which
relief may be granted. Specifically, Respondents contend that because Karolski has
failed to allege sufficient facts to establish that anything occurred beyond the
intentional confiscation of his personal property, Respondents are entitled to
sovereign immunity.
Although the Commonwealth [of Pennsylvania
(Commonwealth)] and its agencies are generally shielded
by the defense of sovereign immunity, our General
4
Assembly has waived that defense “as a bar to an action
against Commonwealth parties[] for damages arising out
of a negligent act where the damages would be recoverable
under the common law or a statute creating a cause of
action if the injury were caused by a person not having
available the defense of sovereign immunity.” 42 Pa.C.S.
§ 8522(a). Thus, “[t]o impose liability on a
Commonwealth party, (1) the alleged negligent act must
involve a cause of action that is recognized at common law
or by a statute, and (2) the case must fall within one of
[the] exceptions to sovereign immunity listed in Section
8522(b)” of what is commonly referred to as the Sovereign
Immunity Act. Bufford v. Pa. Dep’t of Transp., 670 A.2d
751, 753 (Pa. Cmwlth. 1996) (citing 42 Pa.C.S. §
8522(b)).
Young v. Wetzel, 260 A.3d 281, 289 (Pa. Cmwlth. 2021) (footnotes omitted).
However, “[s]overeign immunity is not waived for intentional acts committed by a
Commonwealth employee acting within the scope of his or her employment.”
Paluch v. Pa. Dep’t of Corr., 175 A.3d 433, 438 (Pa. Cmwlth. 2017). Further, “[t]he
tort of conversion of property does not sound in negligence; it embodies a claim of
intentional wrongdoing.” Sutton v. Bickell, 220 A.3d 1027, 1035 (Pa. 2019).
Moreover, this Court “recognize[s] that intentional conduct may fall within, or
outside, the scope of a state employee’s duties, depending on the circumstances.”
Id.
Here, Karolski averred: “[Sgts.] Leonard [and] Swarigin stole []
[Karolski’s] following listed property while [Karolski] was being held in the [RHU]
of [SCI-]Camp[ H]ill[,]” Petition ¶ 8, and that “[Sgts.] Leonard [and] Swarigin
violated their employment duties to provide [c]are, [c]ustody[, and] [c]ontrol when
they stole [Karolski’s] personal property.” Petition ¶ 9. This is the entirety of his
“FACTS” as alleged in the Petition. Petition at 2. The Petition is devoid of any facts
averring specifically (1) when the alleged takings occurred, i.e., what dates did the
alleged takings occur; (2) what occurred, i.e., did Sgts. Leonard and Swarigin
5
allegedly take Karolski’s property while Karolski was present or when Karolski was
away from his cell; (3) where the property was taken from, i.e., was the property out
in the open, in a foot locker, or in storage; and/or (4) which individual or individuals
did the taking, i.e., did Sgt. Leonard allegedly take some property and Sgt. Swarigin
allegedly take other property, or did one allegedly take the property while the other
allegedly watched the taking of his property.
Further, Karolski asserts that the alleged intentional taking was in
violation of Sgts. Leonard’s and Swarigin’s job duties, see Petition ¶ 9, and that the
alleged taking was in violation of DOC’s Code of Ethics. See Petition ¶ 10.
However, he does not plead any facts to support those bald assertions, i.e., what are
Sgts. Leonard’s and Swarigin’s job duties, and how did they allegedly violate them,
what does DOC’s Code of Ethics include, and how did Sgts. Leonard and Swarigin
allegedly violate the same. Because Karolski has not presented any allegations to
substantiate his claims that anything occurred beyond the intentional confiscation of
his personal property, Respondents are entitled to sovereign immunity.
Accordingly, Karolski has failed to state a claim upon which relief may be granted.
For all of the above reasons, Respondents’ Preliminary Objection is
sustained, and Karolski’s Petition is dismissed.
__________________________________________
ANNE E. COVEY, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clifford Karolski, :
Petitioner :
:
v. :
:
PA Dept of Corrections, et al., : No. 151 M.D. 2023
Respondents :
ORDER
AND NOW, this 11th day of October, 2024, the Pennsylvania
Department of Corrections’ (DOC) and DOC Sergeants Leonard’s and Swarigin’s
Preliminary Objection to Clifford Karolski’s Petition for Review (Petition) is
SUSTAINED and the Petition is DISMISSED.
_________________________________________
ANNE E. COVEY, Judge