L.C. Velez v. J.E. Wetzel, Sec. of Corr'

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Louie C. Velez, :

:

Petitioner :

:

v. : No. 651 M.D. 2020

: Submitted: April 6, 2023

John E. Wetzel, Sec. of Corr’; :

Dr. Robert J. Marsh, Jr., Supt. -SCI :

Benner Township; Jacqueline A. :

Burd, Facility Grievance Coord.; :

C/O I Clouser; and C/O I Smith, :

and Sgt. Flaherty, :

:

Respondents :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: March 14, 2024

Before this Court are Respondents’1 preliminary objections (POs) in the

nature of demurrers to Louie C. Velez’s (Petitioner) Second Amended Petition for

Review (PFR) filed in this Court’s original jurisdiction. For reasons that follow, we

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Respondents are John E. Wetzel (Wetzel), former Department of Corrections

(Department) Secretary; Robert J. Marsh (Marsh), former Superintendent at State Correctional

Institution at Benner Township (SCI-Benner Township); Jacqueline A. Burd (Burd), Facility

Grievance Coordinator at SCI-Benner Township; Corrections Officer Clouser (Clouser);

Corrections Officer Smith (Smith); and Sergeant Flaherty (Flaherty) (collectively, Respondents).

dismiss as moot portions of the Second Amended PFR; overrule, in part, and sustain,

in part, Respondents’ POs; and transfer the matter to the Centre County Court of

Common Pleas.

I. Background

After POs were filed to his original and first amended PFR, Petitioner,

representing himself, filed his Second Amended PFR against Respondents, in their

individual and official capacities, in the nature of a civil rights complaint pursuant

to Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. §1983 (Section 1983)

and tort claims for damage to his property. Therein, Petitioner, who at relevant

points in this litigation was an inmate housed at SCI-Benner Township, in Centre

County, identified Respondents as employees of the Department during the period

of time encompassed by this litigation. Second Amended PFR, ¶¶8-13. He alleged

that, in August 2020, his cell was searched by Respondents Smith and Clouser as a

result of an inmate-on-staff assault that took place in his housing unit. Id., ¶¶21, 24.

He claimed that an unidentified officer entered his cell and damaged his bookshelf

during the search and that another officer suggested to Respondents Smith and

Clouser that they should “make some contraband.” Id., ¶¶25-26. Petitioner alleged

that his cell was “desecrated” during the search. Id., ¶27. He claimed that his

television antenna and cord were damaged; his property was commingled with his

cellmate’s property; family photos were damaged with water and coffee that had

spilled during the search; and his razor was missing. Id., ¶¶27-28. Petitioner filed a

grievance relating to the property issues, which was denied through to final appeal.

Id., ¶¶32-39.

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Petitioner asserted claims of negligence, retaliation, and constitutional

violations against Respondents. Specifically, he alleged that “Respondents Clouser

and Smith negligently performed their duties and failed to adhere to established

Department policies and procedures while acting under the color of state law,

thereby causing the loss and destruction of Petitioner’s lawfully possessed personal

property. Second Amended PFR, ¶2. He alleged that Respondents Burd and Marsh

retaliated against him by “arbitrarily denying and/or rejecting administrative

grievances in an effort to frustrate Petitioner’s diligent efforts to exhaust

administrative remedies in accordance with DC-ADM 804,” while affording relief

to similarly situated inmates, in violation of his due process and equal protection

rights. Id., ¶¶3, 6, 45, 59, 60. Petitioner claimed that Respondent Flaherty conspired

with Respondent Burd to retaliate against him for filing grievances by compensating

two other inmates for their damaged property from the August 2020 cell search via

the grievance process but not doing the same for him. Id., ¶¶4, 47-49, 59. As for

Respondent Wetzel, Petitioner alleged that he committed negligence and deliberate

indifference via respondeat superior by failing to “train, oversee or hold accountable

his subordinates” in conducting cell searches. Id., ¶¶5, 6, 20, 50, 61. Petitioner seeks

declaratory, injunctive, nominal, compensatory and punitive relief.

In response to the Second Amended PFR, Respondents filed POs in the

nature of demurrers. Therein, Respondents challenge the Second Amended PFR’s

legal sufficiency on several grounds. First, Respondents assert that the claims

against Respondents Wetzel and Marsh should be dismissed based on lack of

personal involvement. Second, Respondents argue Petitioner’s tort claim should be

dismissed because Respondents are protected by sovereign immunity. Third,

Petitioner’s due process claim should be dismissed because the Court does not have

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jurisdiction over the grievance process and Petitioner availed himself of the

grievance process. Finally, Petitioner’s equal protection, negligence and retaliation

claims should be dismissed because he failed to state a claim upon which relief may

be granted.

Petitioner answered the POs. Shortly thereafter, Petitioner notified this

Court that he was released from incarceration. As a preliminary matter, we address

whether any of his claims are now moot based on his released status. Battiste v.

Borough of East McKeesport, 94 A.3d 418, 424 (Pa. Cmwlth. 2014) (holding Court

may sua sponte raise the issue of mootness).

II. Mootness

“[W]here there are intervening changes in the factual circumstances of

a case which eliminate an actual controversy and make it impossible to grant the

requested relief, the legal question is rendered moot . . . .” Johnston v. Lehman, 676

A.2d 1287, 1289 (Pa. Cmwlth. 1996). “Under the mootness doctrine, an actual case

or controversy must exist at all stages of review, not just when the [petition for

review] is filed.” Finn v. Rendell, 990 A.2d 100, 104-05 (Pa. Cmwlth. 2010). “The

existence of a case or controversy requires a real and not a hypothetical legal

controversy and one that affects another in a concrete manner so as to provide a

factual predicate for reasoned adjudication . . . .” Id. at 105 (internal citation and

quotation omitted). As our Pennsylvania Supreme Court explained:

The cases presenting mootness problems involve litigants

who clearly had standing to sue at the outset of the

litigation. The problems arise from events occurring after

the lawsuit has gotten under way—changes in the facts or

in the law—which allegedly deprive the litigant of the

necessary stake in the outcome.

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Pap’s A.M. v. City of Erie, 812 A.2d 591, 599-600 (Pa. 2002) (citation omitted).

Absent an actual controversy, any opinion rendered would be purely advisory, which

is not permitted. Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655,

659 (Pa. 2005); Buehl v. Beard, 54 A.3d 412, 419 (Pa. Cmwlth. 2012), aff’d, 91 A.3d

100 (Pa. 2014).

Because Petitioner was released from prison, his claims seeking

declaratory relief based on alleged violations of his constitutional rights are now

moot. See Harris v. Rendell, 982 A.2d 1030, 1036 (Pa. Cmwlth. 2009), aff’d, 992

A.2d 121 (Pa. 2010) (holding an inmate’s claims for declaratory relief became moot

upon his release from prison); Hayes v. Pennsylvania Department of Corrections

(Pa. Cmwlth., No. 90 M.D. 2017, filed March 26, 2018) (same);2 see also In re

Gross, 382 A.2d 116, 120 (Pa. 1978) (holding “[c]onstitutional questions are not to

be dealt with abstractly”). Similarly, Petitioner’s claims for injunctive relief to

enjoin certain Respondents from retaliating against him are also moot because he is

no longer under their care and supervision. We, therefore, dismiss Petitioner’s due

process, equal protection, and retaliation claims as moot.

The only remaining claims are his tort claims. Therefore, we address

Respondents’ POs applicable to these claims.

III. POs

In ruling on POs, “we accept as true all well-pleaded material

allegations . . . and any reasonable inferences that we may draw from the

2

Unreported memorandum opinions of this Court filed after January 15, 2008, may be

cited for their persuasive value pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate

Procedure, Pa.R.A.P. 126(b), and Section 414(a) of the Court’s Internal Operating Procedures, 210

Pa. Code §69.414(a).

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averments.” Armstrong County Memorial Hospital v. Department of Public

Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013). However, we are not required to

accept as true “legal conclusions, unwarranted inferences from facts, argumentative

allegations, or expressions of opinion.” Id. For this Court to sustain POs, “it must

appear with certainty that the law will permit no recovery[.]” McCord v.

Pennsylvania Gaming Control Board, 9 A.3d 1216, 1219 (Pa. Cmwlth. 2010). If

there is any doubt, this Court should overrule the POs. Id. This Court “may sustain

a demurrer only when a petitioner has failed to state a claim for which relief may be

granted.” Armstrong, 67 A.3d at 170. We address each PO in turn.

A. Sovereign Immunity3

Respondents assert that Petitioner’s tort claims should be dismissed

because Respondents are protected by sovereign immunity with respect to any

intentional tort claims raised because the acts complained of were committed within

the scope of their duties.

Generally, sovereign immunity protects Commonwealth officials and

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

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

immunity has been waived in limited situations involving the negligence of a

Commonwealth official or employee acting within the scope of his employment.

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Under Pa.R.Civ.P. 1030(a), the assertion of immunity is an affirmative defense that must

be pled in a responsive pleading as new matter. However, courts allow an exception where the

defense is “clearly applicable on the face of the complaint.” Minor v. Kraynak, 155 A.3d 114, 121

(Pa. Cmwlth. 2017) (citation omitted). Where the petitioner does not object to a PO that raises

sovereign immunity, this Court may rule on the sovereign immunity issue. Id.; see Smolsky v.

Pennsylvania General Assembly, 34 A.3d 316, 321 n.7 (Pa. Cmwlth. 2011) (holding that courts

have ruled on POs raising sovereign immunity where a petitioner did not object to improper

procedure).

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Section 8522 of the Judicial Code, 42 Pa. C.S. §8522; La Frankie v. Miklich, 618

A.2d 1145, 1149 (Pa. Cmwlth. 1992). However, immunity is not waived for

intentional torts. See La Frankie, 618 A.2d at 1149.

Sovereign immunity does not apply to “claims for damages caused by

. . . [t]he care, custody or control of personal property in the possession or control of

Commonwealth parties, including Commonwealth-owned personal property and

property of persons held by a Commonwealth agency.” 42 Pa. C.S. §8522(b)(3).

Thus, actions for damages based on the prison employees’ negligent handling of an

inmate’s personal property that is under their care, custody or control are not barred

by sovereign immunity. Williams v. Stickman, 917 A.2d 915, 918 (Pa. Cmwlth.

2007).

Here, although some of Petitioner’s averments asserted intentional

conduct of Respondents acting within the scope of employment, see Second

Amended PFR, ¶¶43, 55, his allegations regarding damage to his personal property

sound primarily in negligence. Specifically, Petitioner alleged that Respondents

Clouser and Smith, acting within the course and scope of their duties, “negligently

performed their duties,” and negligently handled his personal property, and that their

“negligent actions . . . led to the destruction and the loss” of his personal property.

Id., ¶¶2, 44, 56. Although Petitioner alleged that Respondents Clouser and Smith

entered his “cell with the intent to deface” his cell, he alleged that, “in the process,”

they “negligently caused damage to [his] [television] antenna.” Id., ¶55. Finally, he

alleged that these Respondents breached their duty to handle Petitioner’s property

“without being negligent” and that their “negligent actions have led to the

destruction and the loss” of his personal property during the course of their

employment. Id., ¶44.

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Sovereign immunity does not provide a defense where an inmate

alleges negligence resulting in damage to property in the care, custody, or control of

prison employees. Because Petitioner’s tort claim sounds primarily in negligence,

it falls within the exception to sovereign immunity. Insofar as Petitioner attempts to

plead claims for an intentional tort, such claims are barred by sovereign immunity.

Thus, we sustain Respondents’ POs with respect to the intentional tort.

B. Failure to State a Negligence Claim

Finally, Respondents assert that Petitioner’s negligence claim against

Respondents should be dismissed for failure to state a claim upon which relief may

be granted. To establish a cause of action in negligence, Petitioner “must

demonstrate that the [prison employees] owed a duty of care to [him], [prison

employees] breached that duty, the breach resulted in injury to [the petitioner], and

[the petitioner] suffered an actual loss or damage.” Martin v. Evans, 711 A.2d 458,

461 (Pa. 1998). “Negligence is the absence of ordinary care that a reasonably

prudent person would exercise in the same or similar circumstances.” Id. “The mere

occurrence of an accident does not establish negligent conduct.” Id. “Rather, [the

petitioner] has the burden of establishing, by a preponderance of the evidence, that

the [prison employees] engaged in conduct that deviated from the general standard

of care expected under the circumstances, and that this deviation proximately caused

actual harm.” Id. As discussed above, an inmate’s claim for loss of his personal

property, while under the care, custody, or control of prison employees, that is based

on negligence is not barred by sovereign immunity. 42 Pa. C.S. §8522(b)(3);

Williams, 917 A.2d at 918.

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With regard to the negligence claim against Respondents Clouser and

Smith, Petitioner alleged that they owed him a duty to handle his lawfully possessed

personal property without negligence pursuant to Department policy, DC-ADM-

203.4 Second Amended PFR, ¶¶2, 44. Petitioner further alleged that they breached

that duty when they searched his cell looking for contraband and negligently

damaged his personal property in the process. Id., ¶¶24, 25, 27, 28, 56. Specifically,

he described that his cell was “desecrated” following their search. Id., ¶27.

Petitioner alleged that his property was mixed with his cellmate’s property; there

was water and coffee spilled on the floor and desk; and “piles of property” were

“everywhere wet with coffee and/or water.” Id. Upon assessing his cell following

the search, he discovered that his television antenna and cord and personal

photographs were damaged, and his razor was missing. Id., ¶¶27, 28. Upon review,

Petitioner has sufficiently pled a negligence claim against Respondents Clouser and

Smith, which is not barred by sovereign immunity. Thus, we overrule this PO with

regard to Respondents Clouser and Smith.

Insofar as Petitioner attempts to state a negligence claim against the

remaining Respondents, Wetzel, Marsh, Burd and Flaherty, his claim falls short. A

review of Petitioner’s Second Amended PFR reveals that Petitioner has not asserted

that these Respondents engaged in negligent conduct that caused harm to his

property. Thus, we sustain Respondents’ PO, in part, and dismiss the negligence

claim against Respondents Wetzel, Marsh, Burd, and Flaherty. Because there are

4

We may take judicial notice of the Department’s policies found on its website at:

https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx. (Last visited March 13, 2024).

Figueroa v. Pennsylvania Board of Probation and Parole, 900 A.2d 949, 950 n.1 (Pa. Cmwlth.

2006). The policy on searches of inmate’s cells provides that, “[d]uring a cell search, all

precautions will be taken to avoid damage to any items.” Section 1.B.1.b of DC-ADM-203.

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no other viable claims against these same Respondents, we dismiss them from this

action entirely.

IV. Jurisdiction

The only surviving claim is Petitioner’s negligence claim against

Respondents Clouser and Smith seeking monetary damages, which presents a

jurisdictional impediment for this Court. See Williams v. Wetzel, 232 A.3d 652, 654

(Pa. 2020) (holding the Court may raise the issue of jurisdiction sua sponte).

Section 761(a) of the Judicial Code provides, in relevant part:

The Commonwealth Court shall have original jurisdiction

of all civil actions or proceedings:

(1) Against the Commonwealth government, including

any officer thereof, acting in his official capacity, except:

****

(v) actions or proceedings in the nature of trespass

as to which the Commonwealth government formerly

enjoyed sovereign or other immunity and actions or

proceedings in the nature of assumpsit relating to such

actions or proceedings in the nature of trespass.

42 Pa. C.S. §761(a)(1)(v). Furthermore, “[t]o the extent prescribed by general rule

the Commonwealth Court shall have ancillary jurisdiction over any claim or other

matter which is related to a claim or other matter otherwise within its exclusive

original jurisdiction.” 42 Pa. C.S. §761(c).

“An action in trespass . . . lie[s] ‘for redress in the shape of money

damages for any unlawful injury done to the plaintiff, in respect either to his person,

property, or rights, by the immediate force and violence of the defendant.’” Balshy

v. Rank, 490 A.2d 415, 420 (Pa. 1985) (quoting Black’s Law Dictionary 1674 (4th

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rev. ed. 1968)). Actions in the nature of trespass are expressly excluded from our

original jurisdiction. 42 Pa. C.S. §761(a)(1)(v). Simply stated, “this Court lacks

original jurisdiction over tort actions for money damages . . . .” Miles v. Beard, 847

A.2d 161, 164 (Pa. Cmwlth. 2004). “[A]ll actions against the Commonwealth or its

officers acting in their official capacity for money damages based upon tort liability

. . . are properly commenced in the courts of common pleas.” Stackhouse v.

Commonwealth, 832 A.2d 1004, 1008 (Pa. 2003); see Pa. Const. art. 5, §5(b) (our

courts of common pleas “hav[e] unlimited original jurisdiction in all cases except as

may otherwise be provided by law”).

Lacking jurisdiction over this claim, we shall transfer this matter to the

proper tribunal. Section 5103(a) of the Judicial Code, 42 Pa. C.S. §5103(a)

(providing that this Court shall not dismiss an erroneously filed matter for lack of

jurisdiction but shall transfer the case to the proper tribunal); see, e.g., Mayo v.

Secretary of Pennsylvania Department of Corrections (Pa. Cmwlth., No. 479 M.D.

2018, filed December 9, 2020); Prater v. Pennsylvania Department of Corrections

(Pa. Cmwlth., No. 392 M.D. 2018, filed July 10, 2019). Because Petitioner’s action

is based upon alleged incidents occurring in Centre County, this Court shall transfer

the matter to the Centre County Court of Common Pleas.

V. Conclusion

Accordingly, based on the foregoing, we dismiss Petitioner’s equal

protection, due process, and retaliation claims as moot based on Petitioner’s released

status. We sustain Respondents’ sovereign immunity PO only insofar as intentional

torts were pled. We sustain Respondents’ PO for failure to state a negligence claim

against Respondents Wetzel, Marsh, Burd, and Flaherty and dismiss them from this

11

suit. Otherwise, we overrule Respondents’ PO for failure to state a negligence claim

against Respondents Clouser and Smith. In sum, the only surviving claim is the

negligence claim against Clouser and Smith seeking monetary damages, over which

this Court lacks original or ancillary jurisdiction. Accordingly, insofar as

Petitioner’s Second Amended PFR states a viable negligence claim against

Respondents Clouser and Smith, we transfer the matter to the Centre County Court

of Common Pleas.

MICHAEL H. WOJCIK, Judge

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Louie C. Velez, :

:

Petitioner :

:

v. : No. 651 M.D. 2020

:

John E. Wetzel, Sec. of Corr’; :

Dr. Robert J. Marsh, Jr., Supt. -SCI :

Benner Township; Jacqueline A. :

Burd, Facility Grievance Coord.; :

C/O I Clouser; and C/O I Smith, :

and Sgt. Flaherty, :

:

Respondents :

ORDER

AND NOW, this 14th day of March, 2024, Petitioner’s Second

Amended Petition for Review (Second Amended PFR) is DISMISSED AS MOOT,

in part, with respect to Petitioner’s equal protection, due process, and retaliation

claims seeking declaratory and injunctive relief; Respondents’ preliminary

objections (POs) in the nature of demurrers to the Second Amended PFR are

OVERRULED, in part, with respect to the negligence claim against Respondents

Clouser and Smith; and Respondents’ remaining POs are SUSTAINED, in

accordance with the foregoing opinion. Respondents Wetzel, Marsh, Burd, and

Flaherty are dismissed from this action.

The Second Amended PFR is hereby TRANSFERRED to the Centre

County Court of Common Pleas for lack of jurisdiction. The Commonwealth Court

Prothonotary shall transmit the record of the above-captioned proceedings to the

Prothonotary of Centre County Court of Common Pleas, together with a copy of this

opinion and order, as well as a copy of this matter’s docket entries.

__________________________________

MICHAEL H. WOJCIK, Judge

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