IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfonso Percy Pew, :

Petitioner :

:

v. : No. 581 M.D. 2018

: Submitted: August 9, 2019

John E. Wetzel, Secretary of Corrections, : 

Shirley M. Smeal, Executive Deputy :

Secretary of Corrections, Steven Glunt, :

Regional Deputy Secretary of Corrections, :

Marcia Noles, Bureau Health Care Service : 

Department of Corrections, Ulrich Klemm, : 

Bureau Treatment Services Department of :

Corrections, Tracey Smith, Director Religious :

Accommodation Committee Department of :

Corrections, Mahally, Superintendent PA. D.O.C., :

Demming, Deputy PA. D.O.C., Ronald Ott, :

Food Service Manager Pennsylvania : 

Department of Corrections, Lt. Filipiak, :

Pennsylvania Department of Corrections, : 

John Doe, Deputy Pennsylvania Department : 

of Corrections, Sued in individual and official : 

capacities for monetary damages, : 

Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: November 21, 2019

Before this Court in our original jurisdiction are the preliminary 

objections of John E. Wetzel, Secretary of Corrections, to the pro se civil rights 

complaint filed by Alfonso Percy Pew (Inmate). The complaint seeks a declaratory 

 

1 This matter was assigned to this panel before September 1, 2019, when Judge Simpson assumed 

the status of senior judge.
2

judgment, injunctive relief, and monetary damages for Wetzel’s alleged violation of 

Inmate’s constitutional rights. After review, we sustain the preliminary objections 

and dismiss the complaint.

On August 23, 2018, Inmate filed a complaint in the Court of Common 

Pleas of Cumberland County (common pleas court) against Wetzel and numerous 

other employees of the Department of Corrections (Department) in their individual 

and official capacities (collectively Department Respondents).

2

 The complaint 

averred that while Inmate was incarcerated at the State Correctional Institution at 

Dallas (SCI-Dallas), he was entitled to a vegan diet for religious reasons. For eight

days in October of 2016, however, Inmate was given bologna sandwiches that made

him sick. Complaint at 3, ¶3. The complaint also averred that Department 

Respondents have adopted a policy to feed bologna sandwiches to inmates in 

medical observation rooms. Inmate was repeatedly denied his vegan diet despite 

filing grievances. Department Respondents were aware of the situation but made

“excuses such as prison lock down.” Complaint at 5, ¶6. The complaint further 

averred that a corrections officer destroyed Inmate’s property in retaliation for a 

complaint he filed under the Prison Rape Elimination Act of 2003.

3

 Department 

Respondents refused to “properly investigate and compensate [Inmate] for [his] 

personal property loss.” Complaint at 9, ¶16. 

 

2 The named respondents are Shirley M. Smeal, Executive Deputy Secretary of Corrections; Steven 

Glunt, Regional Deputy Secretary of Corrections; Marcia Noles, an official with the Department’s 

Bureau of Health Care Services; Ulrich Klemm, an official with the Department’s Bureau of 

Treatment Services; Tracey Smith, Director of the Department’s Religious Accommodation 

Committee; Superintendent Mahally; Deputy Demming; Ronald Ott, the Department’s Food 

Service Manager; Lieutenant Filipiak and Deputy John Doe. 

3

34 U.S.C. §§30301-30309.
3

Based upon the foregoing allegations, Inmate asserted a civil rights 

action under 42 U.S.C. §19834alleging violations of his rights under numerous 

provisions of the Pennsylvania and United States Constitutions.

5

 Inmate sought a 

declaratory judgment that his constitutional rights were violated; punitive and 

compensatory damages from each Department Respondent; and an injunction 

directing Department Respondents to serve him a vegan diet.

The common pleas court transferred the matter to this Court pursuant 

to Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. §761(a)(1).6 By order of 

 

4

42 U.S.C. §1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State or Territory or the District of Columbia, subjects, or causes to 

be subjected, any citizen of the United States or other person within the jurisdiction 

thereof to the deprivation of any rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured in an action at law, suit in 

equity, or other proper proceeding for redress....

5

Inmate asserted that Department Respondents violated his rights under the following provisions 

of the Pennsylvania Constitution: Article I, Section 1 (inherent rights of mankind); Article I, 

Section 3 (religious freedom); Article I, Section 7 (freedom of press and speech); Article I, Section 

8 (security from searches and seizures); and Article I, Section 13 (bails, fines and punishments). 

PA. CONST. art. I, §§1, 3, 7, 8, 13. Inmate alleged violations of his rights under the First 

Amendment to the United States Constitution (free exercise of religion) and the Eighth 

Amendment to the United States Constitution (prohibition of cruel and unusual punishments). 

U.S. CONST. amends. I, VIII.

6

Inmate filed a motion with this Court “to fix jurisdiction and commence action,” in which he 

asserted that the common pleas court rather than this Court has original jurisdiction over his claim 

for monetary damages. Application for Relief (10/19/2018). By order of November 1, 2018, this 

Court denied Inmate’s motion. Section 761(a)(1) of the Judicial Code provides:

(a) General rule.–The Commonwealth Court shall have original jurisdiction of 

all civil actions or proceedings:

(1) Against the Commonwealth government, including any official 

thereof, acting in his official capacity, except:

(i) actions or proceedings in the nature of 

applications for a writ of habeas corpus or postconviction relief not ancillary to proceedings within 

the appellate jurisdiction of the court;
4

November 28, 2018, this Court dismissed Inmate’s complaint against all Department 

Respondents, except for Secretary Wetzel, because Inmate had failed to serve the

complaint as required by Pennsylvania Rule of Appellate Procedure 1514(c), PA.

R.A.P. 1514(c). Secretary Wetzel, the only remaining respondent, has filed 

preliminary objections in the nature of a demurrer seeking to dismiss the complaint 

in its entirety. 

In ruling on preliminary objections, this Court “must accept as true all 

well pleaded material allegations in the petition for review, as well as all inferences 

 

(ii) eminent domain proceedings;

(iii) actions or proceedings conducted pursuant to 

Chapter 85 (relating to matters affecting government 

units);

(iv) actions or proceedings conducted pursuant to 

the act of May 20, 1937 (P.L. 728, No. 193), referred 

to as the Board of Claims Act; and

(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) (emphasis added). Our Supreme Court has held that this Court lacks 

original jurisdiction over tort actions for monetary damages that are premised on either common 

law trespass or a civil action for deprivation of civil rights under 42 U.S.C. §1983, because they 

are within the exclusion found in Section 761(a)(1)(v). Balshy v. Rank, 490 A.2d 415 (Pa. 1985). 

However, this Court has original jurisdiction over actions for injunctive and declaratory relief 

because they are not actions “as to which the Commonwealth government formerly enjoyed 

sovereign or other immunity.” 42 Pa. C.S. §761(a)(1)(v); Fawber v. Cohen, 532 A.2d 429, 433 

(Pa. 1987). Further, to the extent prescribed by general rule, this Court has ancillary jurisdiction 

over any claim that is related to a claim within its exclusive original jurisdiction. 42 Pa. C.S. 

§761(c). See also Diess v. Department of Transportation, 935 A.2d 895 (Pa. Cmwlth. 2007)

(where alleged statutory violations and equity claims outweighed allegations of common law 

nuisance, Section 761(c) of the Judicial Code vests this Court with ancillary jurisdiction to hear 

the matter). Thus, even though this Court would not normally have jurisdiction over Inmate’s

claim for monetary damages, we do in this case because it is ancillary to Inmate’s requests for 

injunctive and declaratory relief.
5

reasonably deduced therefrom.” Buoncuore v. Pennsylvania Game Commission, 

830 A.2d 660, 661 (Pa. Cmwlth. 2003). We are not required to accept as true 

“conclusions of law, unwarranted inferences from facts, argumentative allegations, 

or expressions of opinion.” Id. For this Court to sustain preliminary objections, “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 preliminary objections. Id. This 

Court “may sustain a demurrer only when a petitioner has failed to state a claim for 

which relief may be granted.” Armstrong County Memorial Hospital v. Department 

of Public Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013). 

Section 1983 provides a remedy for deprivations of federally protected 

rights committed by persons acting under color of state law. In order to state a claim 

under Section 1983, a plaintiff must (1) allege a violation of rights secured by the 

United States Constitution or the laws of the United States and (2) show that the 

alleged deprivation was committed by a person acting under the color of state law. 

Owens v. Shannon, 808 A.2d 607, 609 n.6 (Pa. Cmwlth. 2002). Notably, Section 

1983 damage actions against state officials in their official capacity are barred

because a suit against a state official acting in his or her official capacity constitutes 

a suit against the state itself, which is not a “person” under Section 1983. Watkins 

v. Department of Corrections, 196 A.3d 272, 275 (Pa. Cmwlth. 2018) (quoting Will 

v. Michigan Department of State Police, 491 U.S. 58, 64-71 (1989)). Nevertheless, 

a state official acting in his or her official capacity, when sued for injunctive relief, 

is a “person” under Section 1983 because “official-capacity actions for prospective 

relief are not treated as an action against the state.” Verrichia v. Department of 

Revenue, 639 A.2d 957, 962 n.11 (Pa. Cmwlth. 1994). Further, state officials “may 
6

be sued in their individual capacities and found liable for damages for violating 

protected rights while in the course of their employment.” Schnupp v. Port Authority 

of Allegheny County, 710 A.2d 1235, 1238 n.4 (Pa. Cmwlth. 1998). Finally, a claim

for monetary damages to remedy a violation of constitutional rights cannot be based 

on vicarious liability or respondeat superior; to state such a cause of action against 

a government official under Section 1983, the plaintiff must allege that the 

individual defendant was personally involved in the alleged wrongdoings. Watkins, 

196 A.3d at 276. 

In his complaint, Inmate does not allege any specific wrongdoings 

perpetrated upon him by Secretary Wetzel. The complaint avers that Wetzel, 

together with the other Department Respondents, adopted a policy that inmates 

housed in medical observation rooms would receive bologna sandwiches. It avers 

that Wetzel was aware of Inmate’s diet restrictions but did not take action. The 

grievance attached to the complaint indicates, however, that Inmate started to receive 

his vegan diet on October 20, 2016, after the “medical and officer in [the medical 

observation room]” was informed of the issue. Complaint, Exhibit 1. The complaint 

does not identify Inmate’s religious affiliation nor does it allege that Wetzel was

personally involved in denying Inmate a vegan diet. Likewise, the complaint does

not allege that Wetzel was personally involved in destroying Inmate’s personal 

property in retaliation for his complaint under the Prison Rape Elimination Act. In 

short, Inmate’s conclusory complaint fails to specify how Wetzel infringed on his

free exercise of religion or any other rights secured by the United States and 

Pennsylvania Constitutions. To the extent Inmate seeks to hold Wetzel vicariously

liable for the actions of his subordinates, his claim must be dismissed. Watkins, 196 

A.3d at 276. 
7

In sum, Inmate has failed to allege any specific acts on the part of 

Wetzel that, if accepted as true, would establish his liability or entitle Inmate to the 

relief that he seeks. Because the complaint does not state a legally cognizable cause 

of action against Wetzel, we sustain Wetzel’s preliminary objections in the nature of 

a demurrer and dismiss Inmate’s complaint with prejudice.

 _____________________________________

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

Alfonso Percy Pew, :

Petitioner :

:

v. : No. 581 M.D. 2018

:

John E. Wetzel, Secretary of Corrections, : 

Shirley M. Smeal, Executive Deputy :

Secretary of Corrections, Steven Glunt, :

Regional Deputy Secretary of Corrections, :

Marcia Noles, Bureau Health Care Service : 

Department of Corrections, Ulrich Klemm, : 

Bureau Treatment Services Department of :

Corrections, Tracey Smith, Director Religious :

Accommodation Committee Department of :

Corrections, Mahally, Superintendent PA. D.O.C., :

Demming, Deputy PA. D.O.C., Ronald Ott, :

Food Service Manager Pennsylvania : 

Department of Corrections, Lt. Filipiak, :

Pennsylvania Department of Corrections, : 

John Doe, Deputy Pennsylvania Department : 

of Corrections, Sued in individual and official : 

capacities for monetary damages, : 

Respondents :

O R D E R

AND NOW, this 21st day of November, 2019, the preliminary 

objections in the nature of a demurrer to the complaint filed by Alfonso Percy Pew 

are SUSTAINED, and the complaint is DISMISSED with prejudice.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge