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 

1 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). 
2

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. 
3

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. Petitionerseeks 

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 
4

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. 
5

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). 
6

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. 

3 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).
7

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. 
8

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. 
9

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-ADM203.4

 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. 
10

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 
11

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 
12

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
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 :

O R D E R

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 
2

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