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 demurrer s 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 1 8 71 , 42 U.S.C. §1983 (Section 1983 )
and tort claim s for damage to his property

. Therein , Petitioner , who at relevant points in this litigation was an inmate housed at SCI

- Benner Township, in Centre
C ounty , 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 202 0 , h is 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 claim ed that an un identified 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 claim ed 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 caus ing the loss and destruction of Petitioner ’ s law fully 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 exh aust 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 Respo ndent 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 demurrer s . 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 b ecause the Court does not have4

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 no w 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), af f ’ d , 91 A.3d 100 (Pa. 2014 )

.

Because Petitioner was released from prison , his claim s seeking declaratory relief based on alleged violation s 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 bec a me moot upon his release from prison) ; Hayes v. Pennsylvania Dep artment 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 claim s are his tort claims. Therefore, we address Respondents ’ POs applicable to these claim s

.

I I I. 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 Operat ing 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 o verrule 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 Immunity 3 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 P a.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, th is C ourt 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 immu nity 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.

S overeign immunity does not apply to “ claims for damages cause d 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, a lthough some of Petitioner ’s averments assert ed 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 allege d 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 allege d 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 sound s 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 bar r ed 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 p etitioner] , and [ the p etitioner] 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

p etitioner] has the burden of establishing, by a prep onderance 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, a n 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 W ith 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 p ursuant 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 w as “ desecrated ” following the ir search. Id. , ¶ 27

. Petitioner alleged that h is property was mixed with his cell mate’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 , h e 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 Respondent s Clouser and Smith, which is not barred by sovereign immunity. Thus, we overrule this PO with regard to Respondents Clouser and Smith.

Insofar a s Petitioner attempts to state a negligence claim against the remaining Respondents, Wetzel, Marsh, Burd and Flaherty, his claim fall s 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

. Becaus e 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 , 202 4 ). Figueroa v. Pennsylvania Board of Probation and Parole , 900 A.2d 949, 950 n.1 (Pa. Cmwlth. 2006). Th e policy on s earches 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 :

T he 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 (4th11

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, “ t his 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.
Com monwea lth , 832 A.2d 1004, 1008 (Pa. 2003) ; see P a . C onst

. 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 ); s ee , 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 Correction s (Pa. Cmwlth., No. 392 M.D. 201 8 , 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 Respondent s ’ sovereign immunity PO only insofar as intentional

torts were pled

. We sustain Respondent s’ PO for failure to state a negligence claim against Respondents Wetzel, Marsh, Burd , and Flaherty and dismiss them from this12

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, JudgeIN 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 14 th day of March , 20 2 4 , 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 demurrer s to the Second Amended PFR are
OVERRULED , in part, with re spect 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 Court2

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