IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Salvatore Ross

, :

Petitioner :

:

v. :

: Dr. Robert J. Marsh, Jr., : Superintendent; Tabb Bickell, : Regional Manager; and John E. : Wetzel, Secretary of Corrections, : No. 182 M .D. 2019

Respondent s : Submitted: August 16 , 2019

BEFORE: HONORABLE PATRICIA A. McCULLOUGH

, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER

, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: October 11, 2019

Bef ore the Court are the Pennsylvania Department of Corrections
(Department) Secretary John E. Wetzel, State Correctional Institution (SCI) Benner
Township (Benner) Superintendent Dr. Robert J. Marsh, Jr., and the Department’s
Regional Manager Tabb Bickel l ’s (Bickel l ) (collectively, DOC) preliminary
objections (Preliminary Objections) to Salvatore Ross’ (Ross) pro se amended
petition for review ( Amended Petition) filed in this Court’s original jurisdiction.

After a thorough review, the Court sustain s the Prel iminary Objections, and dismiss es

the Amended Petition.

Background

On March 26, 2018, the Department notified “[a]ll [i] nmates” that

, “[e]ffective immediately, Timberland and Rocky boots are no longer permitted to be2

purchased by inmates.” Amended Peti tion, Ex. B (2018 Policy )

. On April 3 , 2018,
the Department issued a “ M EMO ” stating : “[E]ffective May 11, 2018, Timberland
and Rocky boots are no longer permitted by [i]nmates.” Amended Petition , Ex. B

( 2018 Memo)

. The 2018 M emo provided the procedures by which the institution

would implement the 2018 P olicy . Ross filed a grievance in accordance with the

Department ’s inmate grievance policy DC

- ADM 804, and exhausted administrative
procedures, however, the Chief Grievance Officer never replied to Ross’ appeal. On
May 6, 2018, Ross filed a petition for review seeking a p reliminary i njunction

(Petition) in the Centre County Common Pleas Court (trial court)

. On May 16, 2018,
the trial court granted Ross leave to proceed in forma pauperis.

On May 18 , 2018

, the trial court scheduled a hearing for May 24, 2018,

at 9: 00 a

. m. On May 24, 2018, Ross appeared at the hearing via two

- way
simultaneous advanced video communication device, however, DOC failed to appear

and the matter was continued. On May 29, 2018, the trial court order ed R oss to serve

the Petition on DOC before the trial court would take any further action.

On or about June 6, 2018 , Ross effectuated satisfactory service upon

DOC

. On December 4, 2018, DOC filed p reliminary o bjections to the Petitio n , challenging the trial court’s jurisdiction to adjudicate the matter. In the interim , Ross
requested and was granted a continuance. On February 25, 2019, Ross repl ied to

DOC’s p reliminary o bjections, and acquiesced to the transfer of this matter to thi s

Court

. On March 12, 2019, the trial court transferred the matter to the

Commonwealth Court

.

Facts

On April 4, 2019 , Ross filed an Application to A mend the P etition. Also
on April 4, 2019, Ross filed a Motion for Summary Judgment. By April 8, 2019
order, this Court granted R o ss’ Application to Amend, accepted Ross’ Amended3

Petition, and dismissed Ross’ in forma pauperis application, DOC’s preliminary
objections and Ross’ Motion for Summary judgment as moot.

In the Amended Petition, Ross seeks : (1 ) a declarato r y decree that DOC
is a tortfeasor; (2) compensation of $100.00 as reimbursement for his Timberland

boots; (3) a declarat or y decree that if DOC compels inmates to work, DOC must
provide an alternative to state

- issued work boots; and (4) reimbu rsement for the costs
of instituting this action. On April 15, 2019, DOC filed the Preliminary Objections
alleging: (1) Ross failed to state a claim based on the Department ’s policy; (2) Ross

failed to state a claim based on the Unfair Trade Practices and Consumer Protection

L aw (UTPCPL); 1 (3) Ross failed to state a claim based on the Department’s Code of

E thics (Et hics C ode); (4) Ross failed to state an equal protection claim; (5) Ross
failed to state an implied contract claim; (6) Ross failed to state a federal due process

claim; 2 and (7) Ross failed to assert a state tort claim . On May 16, 2019, Ross filed

an a nswer to DOC’s Preliminary Objections

. 3

Discussion
Initially,

[i] n ruling on preliminary objections, we must accept as true all well

- pleaded m aterial allegations in the petition for review, as well as all inferences reasonably deduced therefrom. The Court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. In orde r 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.

1 Act of December 17, 1968, P.L. 1224, as amended , 73 P.S. §§ 201

- 1

- 201

- 9.3.

2 Because t he Amended Petition does not contain a due process claim, this C ourt will not address this preliminary objection.

3 Both parties f

i led briefs in support of their respective positions.4 A preliminary objection in the nature of a demurrer admits every well

- pleaded fact in the [petition for review in the nature of a] complaint 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 in the nature of a] complaint.

Torres v. Beard , 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).
“[C]ourts reviewing prel iminary objections may not only consider the facts pled in
the complaint, but also any documents or exhibits attached to it.” Allen v. Dep’t of

Corr.

, 103 A.3d 365, 369 (Pa. Cmwlth. 2014). Thus, when deciding preliminary
objections, this Cour t’s analysis is limited to the p etition for review and the

attachments thereto.

D OC’s Policy

In his Amended Petition, Ross avers:

The ‘ statement of policy ’ issued and executed by [ DOC ] is the proximate cause to [Ross’] injury. Without the implementation and enforc ement of the aforementioned

‘ statement of policy ’

, [Ross] would have been permitted to keep his lawfully purchased boots pursuant to DC

ADM [] 815, which provides for an exception to items no longer permitted within the institutions under the jurisdiction of [ the Department ]

. Also known as the

‘ Grandfather Clause. ’

Amended Petition ¶ 44.

DOC first argues that Ross cannot state a claim based on DC

- ADM 815
due to the disclaimer language contained therein . DOC cites Weaver v. Pennsylvania

Department of Co rrections , 829 A.2d 750 (Pa. Cmwlth. 2003 )

, to support its position

. The Weaver Court opined :5 In Jones/Seymour v. LeFebvre

, 781 F.Supp. 355 (E.D. Pa. 1991), aff ’ d

, 961 F.2d 1567 (3d Cir. 1992), a policy which

s pecifically stated that it did ‘ not create ri ghts in any person nor should it be interpreted or implied in such a manner as to abridge the rights of any individual ’ did not create any enforceable rights in a Pennsylvania state prison inmate. Id. at 35 9

. Similarly, in Williams v. Kyler

, 680 F.Supp. 172 (M.D. Pa. 1986), aff ’ d

, 845 F.2d 1019 (3d Cir. 1988) , ‘ disclaimer ’ language in a policy supported the conclusion that no enforceable rights were created by the policy.

Weaver , 829 A.2d at 752

- 53 (emphasis added).

H ere , DC

- ADM 815 includes the following disclaimer:

This policy does not create rights in any person nor should it be interpreted or applied in such a manner as to abridge the rights of any individual

. This policy should be interpreted to have sufficien t flexibility to be consistent with law and to permit the accomplishment of the purpose(s) of the policies of the [Department].

DC

- ADM 815

, § VI (emphasis added). 4 Accordingly, “ [t] o the extent that the policy
language is dispositive, we agree that the di sclaimer is sufficient to dispel any
reasonable expectation that an enforceable right is created by the [Department’s]
policy. ” Weaver , 829 A.2d at 753. Because Ross has failed to state a claim under the
Department’s policy

, DOC’s P reliminary Objection t o this claim is sustained.

UTPCPL

I n the Amended Petition: “[Ross] respectfully asserts that [ the

Department ] has promoted and marketed the sale of TIMBERLAND boots, and ROCKY

4 This Court take s judicial notice of DC

- ADM 815 which appears on the Department ’s
official website at: https://www.cor.pa.gov/AboutUs/Documents/DOCPolicies/815 Personal Property State Issued Items

, and Commissary/Outside Pur chases Policy ( last visited September 23, 2019). See Figueroa v. Pa. Bd. of Prob. & Parole , 900 A.2d 949, 9 50 n.1 (Pa. Cmwlth. 2006) ( wherein the Court t ook judicial notice of information found on the Department’s website ).6

boots in a deceitful and unfair manner in contravention of the provisions enun ciated

with the [ UTPCPL ][.]” Amended Petition ¶ 45.

DOC contends that Ross’ UTPCPL claim is barred by sovereign
immunity and relies upon Crockett v. Edinboro Univ ersity , 811 A.2d 1094 (Pa.

Cmwlth. 2002)

, in support thereof

. In Crockett , the petitioner ’s complaint included a

UTPCPL claim for alleged unfair acts and deceptive practices related to the

u nive rsity’ s refusal to issue a diploma and undergraduate transcript. The Crockett

Court explained :

The Commonwealth and its agencies are immune from suit except where the General Assembly specifically waives immunity. A Commonwealth party is not liable unless 1) the alleged act of the Commonwealth party is a negligent act for which damages would be recoverable under th e common law or by statute, and 2) the act of the Commonwealth party falls within one of the exceptions listed in [Section 8522(b) of the Act commonly referred to as the Sovereign Immunity Act, 5 ] 42 Pa.C.S. § 8522( b )

. The exceptions must be strictly const rued and narrowly interpreted.

Crockett , 811 A.2d at 1095

- 96 (citations omitted). The Crockett Court concluded:

“ Because the acts alleged a re not negligent acts, [ petitioner’s ] action is barred by
sovereign immunity [.]” Id. at 1096. Similarly, here, bec ause the purportedly

deceitful and unfair acts are not negligent acts, Ross’ UTPCPL claim is barred by
sovereign immunity. Accordingly, DOC’s Preliminary Objection to this claim is

sustained.

5 42 Pa.C.S. §§ 8521

- 8527.7 Ethics Code

Ross further alleges in his Amended Petition:

[DOC is] in violation of [Section B1 of the Ethics Code] which states that in part that [sic] vengeful or discriminatory treatment of inmates will not be tolerated, in that, [DOC has] acted in a vengeful, retaliatory, and discriminatory manner towards [Ros s] as well as the inmate population for the act of one person.

[DOC is] violative [sic] of [Section B7 of the Ethics Code]

, in that, the policy states, in part, that the inmate’ s property is to be treated with extreme care and disposed of only in [sic] pro perly designated authority, and in the manner designated by [ Department ] policy. [DOC] never issued a policy, but instead issued a ‘ statement of policy ’ which is only a description of the interpretation of an established policy.

Amended Petition ¶

¶ 4 9

- 50.

DOC contend s that Ross is not entitled to relief under the Ethics C ode
because administrative regulations and polic i es do not create rights in prisoners.

DOC cites Tillman v. Pennsylvania Department of Corrections (Pa. Cmwlth. No. 327

M.D. 2016, filed June 9, 2017)

, aff’d , 189 A.3d 423 (Pa. 2018) 6 ( Tillman 2017) in

support of its position. Therein, th is C ourt stated :

[The Department] filed preliminary objections, [to inmate’s mandamus action] asserting, inter alia , that [i] nmate failed
to state a caus e of action for a writ of mandamus for alleged violations of its [Ethics Code] by [ the Department’s c] ounselor because its administrative policies do not create any enforceable rights in inmates; in an unreported opinion, Tillman v. [ Pa. ] [ Bd. ] of Prob [.][ & ] Parole [ (Tillman 2013 ) ] ( Pa

. Cmwlth . No. 575 M.D . 2011, filed February 22, 2013), this Court agreed, and sustained the preliminary objections.

6 P ursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a )

, unreported opinion s are not binding precedent, but may be cited for their persuasive
value.8 See also

, Tillman v. [ Pa. ] [ Bd. ] of Prob [.][ & ] Parole [] ( Pa

. Cmwlth . No. 575 M.D . 2011, filed December 2, 201 4).

Tillman 2017, slip op. at 5

- 6.

Further,

[i] n Bullock v. Horn , 720 A.2d 1079 ( Pa

. Cmwlth . 1998), this Court noted that administrative regulations or policies do not create any rights in inmates. A review of the [ Ethics Code]

, . . . reflects that th e [Ethics] Code is identified as

‘ rules and regulations ’ in the document itself. This Court agrees with [the Department] that the [Ethics C ode] does not create a clear right to relief in [petitioner]

.

Tillman 2017, slip op. at 6 n.6 (quoting Tillman 2013 , slip op. at 12

- 13 )

. For the

reasons this Court previously explained , the Ethics C ode does not create a clear right
to relief in Ross. Accordingly, DOC’s Preliminary Objection to this claim is

sustained.

Equal Protection

Ross avers in the Amended Peti tion: “ Female inmates under the
jurisdiction of [ the Department ] were not affected by [the] ‘ statement of policy ’
implemented by [DOC] , and female inmates are in similarly situated circumstances as

male inmates, therefore this practice by [DOC] is violativ e [sic] of the [E] qual

[P] rotection [] [C] lause. ” 7 Amended Petition ¶ 52 (emphasis added)

.

DOC argues that Ross is not entitled to relief under the E qual P rotection

C lause because all inmates are banned from possessing T imberland boots. In support

of its position, DOC cites Isley v. Beard , 841 A.2d 168 , 172 n.10 (Pa. Cmwlth. 2004)

,

7 The E qual P rotection Clause is included in Section 1 of the Fo urteenth Amendment to the
United States Constitution , which states, in relevant part: “ No State shall make or enforce any law
which shall

. . . deny to any person within its jurisdiction the equal protection of the laws. ” U.S. Const. amend. XIV, § 1.9

in which this Court held: “ [T] he Equal Protection Clause of the Fourteenth
Amendment only requires that all persons similarly situated should be treated alike. ”

Here, Ross d oes not allege that only male inmates were b anned from
purchasing/ possessing Timberland boots , but only male inmates were affected by the
policy. Indeed, the 2018 Memo expressly sta t es: “ As you are aware, effective May
11, 2018, Timberland and Rocky Boots are no longer permitted by [i] nmates.
Inmates were subsequently advised to make arrangements to send them home or turn

them i n. ” Amended Petition

, Ex. B. The 2018 Policy provides: “ Effective
immediately, Timberland and Rocky boots are no longer permit ted to be purchased
by inmates.” Id. Because neither the 2018 Memo nor the 2018 Policy contain a

distinction between male and female inmates , the Department’s policy and DOC’s

implementation thereof do not violate the E qual P rotection C lause. Accordingl y, DOC’s Preliminary Objection to this claim is sustained.

Implied Contract

“[Ross] asserts that [ the Department ] and [Ross] have a contract implied
in fact, in that, inmates are confined and expected to adhere to policy, and in turn,

[ the Department’s ] officials are expected to uphold the very same policies which

inmates are to adhere. ” Amended Petition ¶ 5 7

.

DOC contends that Ross failed to state a n implied contract claim

because there was no mutual assent between the parties . DOC relies upon

Departm ent of Corre c tions v. Board of Claims , 580 A.2d 923 (Pa. Cmwlth. 1990), as

the basis for its position.

In a [] decision which interpreted, generally, the parameters of the Board [ of Claims’] jurisdiction, Finkbiner v. Med [.] Prof [ ’l ] Liab [.] Catastrophe Lo ss [ ( CAT ) ] Fund

, . . . 546 A.2d 1327 ( [Pa. Cmwlth.] 1988), aff ’ d per curiam

, . . . 565 A.2d 157 ( [Pa.] 1989), we held th at where a health care provider’ s participation in the CAT fund is not consensual,10 but is instead required by statute, there is no mutua l assent between the parties and, therefore, no contractual relationship exists between the provider and the fund.

Board of Claims , 580 A.2d at 925 . Similarly

, here

, the state requires Ross to remain
in prison and adhere to the D epartment ’s policies. Be cause there is “no mutual assent

between the parties . . . , no contractual relationship exists between” the Department

and Ross. Id. Accordingly, DOC’s Preliminary Objection to this claim is sustained.

State Torts

Ross claims in the Amended Petition: “[DOC ’s ] been unjustly enriched,

in that, [Ross] purchased the aforementioned TIMBERLAND b oots under the
expectancy that Ross’ property would be protected under existing [D epartment ]
policies and procedures, however, as a result of [DOC’s] conversion, [Ros s] has

suffered injury in his property. ” Amended Petition ¶ 60.

DOC maintains:

[Ross] fails to state a claim based on any state tort arising from the intentional regulation of property. LaFankie v. Miklich , 618 A.2d 1145 (Pa. Cmwlth. 1992) (claims again st the Commonwealth, and its officials and employees for intentional misconduct in the course of business are barred by sovereign immunity). Regulation of inmate clothing is within the course of business. This Court dismissed a conversion action challeng ing the boot policy. Stringer v. Wetzel [(Pa. Cmwlth. ] No. 468 M.D. 2018 [, filed ] October 16, 2018) ( [p] etitioner does not have a constitutionally protected right to possess his Timberland boots).

DOC Br. at 9.

“ This Court has held that when an employee of a Commonwealth agency
was acting within the scope of his or her duties, the Commonwealth employee is
protected by sovereign immunity from the imposition of liability for intentional tort

claims .” LaF r

ankie , 618 A.2d at 1149. Here, DOC was acting withi n the scope of its11

duties when it issued the policy and when it confiscated Ross’ boots. Thus, sovereign
immunity bars Ross from pursuing his state tort claims ag ainst DOC. Accordingly,
DOC’s Preliminary O bjection to this claim is sustained.

Remaining C laims
Finally, DOC argues that, to the extent there are any r emaining claims in

the Amended P etition, since, pursuant to Bullock

, Ross is not entitled to the clothing

of his choice

, he cannot state a claim for relief on any basis

.

With respect to the iss ue of adequate clothing, a prisoner certainly is not entitled to the clothing of his choice in prison. The Eighth Amendment to the Constitution of the United States [ 8 ] has been interpreted such that a prisoner is only entitled to adequate food, clothing, shelter, sanitation, medical care and personal safety. The United States Supreme Court has defined these items as the ‘ minimal civilized measure of life’ s necessities. ’ Rhodes v. Chapman

, 452 U.S. 337,

. . . (1981).

Bullock , 720 A.2d at 1082 (citation om itted).

Further, with respect to Ross’ assertion that Timberland boots are

necessary for the Department ’s working conditions, this Court has expressly ruled

that “ there is a legitimate penological interest in [banning Timberland boots] from an

inmate fo r security reasons .” Id. “ Prison officials must be accorded great deference
regarding the adoption and execution of policies and practices that in their judgment
are necessary to preserve internal order and maintain institutional security. ” Id.

Accordi ngly, DOC’s P reliminary Objections are sustained as to Ross’ remaining

claims

.

8 Th e Eighth Amendment to the United States Constitution provides : “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.12 Conclusion
For all of the above reasons, DOC’s Preliminary Objections are

sustained and Ross’ Amended Petition is dismissed.

___________________________ ANNE E. COVE Y, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Salvatore Ross, :

Petitioner :

:

v. :

: Dr. Robert J. Marsh, Jr., : Superintendent; Tabb Bickell, : Regional Manager; and John E. : Wetzel, Secretary of Corrections, : No. 182 M.D. 2019

Respondents :

O R D E R

AND NOW, this 11 th day of October , 201 9

, the Pennsylvania
Department of Corrections (Department) Secretary John E. Wetzel, State
Correctional Institution Benner Township Superintendent Dr. Robert J. Marsh, Jr.,

and the Department’s Regional Manager Tabb Bickel l ’s preliminary objections to
Salvatore Ross’ (Ross) pro se amended petition for review (Amended Petition) a re

SUSTAINED and Ross’ Amended P etition is DISMISSED.

___________________________ ANNE E . COVEY, Judge