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

Respondents : 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

Before 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 Bickell’s (Bickell) (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 sustains the Preliminary Objections, and dismisses

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 be 
2

purchased by inmates.” Amended Petition, Ex. B (2018 Policy). On April 3, 2018, 

the Department issued a “MEMO” 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 Memo provided the procedures by which the institution 

would implement the 2018 Policy. 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 preliminary injunction 

(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 ordered Ross 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 preliminary objections to the Petition, 

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 replied to 

DOC’s preliminary objections, and acquiesced to the transfer of this matter to this 

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 Amend the Petition. Also 

on April 4, 2019, Ross filed a Motion for Summary Judgment. By April 8, 2019 

order, this Court granted Ross’ Application to Amend, accepted Ross’ Amended 
3

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 declaratory decree that DOC 

is a tortfeasor; (2) compensation of $100.00 as reimbursement for his Timberland 

boots; (3) a declaratory decree that if DOC compels inmates to work, DOC must 

provide an alternative to state-issued work boots; and (4) reimbursement 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 

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

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

an answer to DOC’s Preliminary Objections.

3

Discussion

Initially, 

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

all well-pleaded material 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 order 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 the Amended Petition does not contain a due process claim, this Court will not 

address this preliminary objection.

3 Both parties filed 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 preliminary 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 Court’s analysis is limited to the petition for review and the 

attachments thereto.

DOC’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 enforcement of the aforementioned 

‘statement of policy’, [Ross] would have been permitted to 

keep his lawfully purchased boots pursuant to DCADM[]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 Corrections, 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 

specifically stated that it did ‘not create rights 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 359. 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). 

Here, 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 sufficient 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 disclaimer 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 Preliminary Objection to this claim is sustained.

UTPCPL

In the Amended Petition: “[Ross] respectfully asserts that [the 

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

 

4 This Court takes 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 Purchases Policy (last visited September 23, 

2019). See Figueroa v. Pa. Bd. of Prob. & Parole, 900 A.2d 949, 950 n.1 (Pa. Cmwlth. 2006) 

(wherein the Court took judicial notice of information found on the Department’s website).
6

boots in a deceitful and unfair manner in contravention of the provisions enunciated 

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

DOC contends that Ross’ UTPCPL claim is barred by sovereign 

immunity and relies upon Crockett v. Edinboro University, 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

university’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 the 

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 construed and narrowly 

interpreted.

Crockett, 811 A.2d at 1095-96 (citations omitted). The Crockett Court concluded: 

“Because the acts alleged are not negligent acts, [petitioner’s] action is barred by 

sovereign immunity[.]” Id. at 1096. Similarly, here, because 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 [Ross] 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] properly 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 ¶¶ 49-50. 

DOC contends that Ross is not entitled to relief under the Ethics Code 

because administrative regulations and policies 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, this Court stated:

[The Department] filed preliminary objections, [to inmate’s 

mandamus action] asserting, inter alia, that [i]nmate failed 

to state a cause 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 Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 

69.414(a), unreported opinions 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, 2014).

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 the [Ethics] Code is identified as 

‘rules and regulations’ in the document itself. This Court 

agrees with [the Department] that the [Ethics Code] 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 Code 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 Petition: “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 violative [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 Equal Protection 

Clause because all inmates are banned from possessing Timberland boots. In support 

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

 

7 The Equal Protection Clause is included in Section 1 of the Fourteenth 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 does not allege that only male inmates were banned from 

purchasing/possessing Timberland boots, but only male inmates were affected by the 

policy. Indeed, the 2018 Memo expressly states: “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 in.” Amended Petition, Ex. B. The 2018 Policy provides: “Effective 

immediately, Timberland and Rocky boots are no longer permitted 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 Equal Protection Clause. Accordingly,

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 ¶ 57.

DOC contends that Ross failed to state an implied contract claim 

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

Department of Corrections 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 Loss [(CAT)] Fund, . . . 546 

A.2d 1327 ([Pa. Cmwlth.] 1988), aff’d per curiam, . . . 565 

A.2d 157 ([Pa.] 1989), we held that where a health care 

provider’s participation in the CAT fund is not consensual, 
10

but is instead required by statute, there is no mutual 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 Department’s policies. Because 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 boots under the 

expectancy that Ross’ property would be protected under existing [Department] 

policies and procedures, however, as a result of [DOC’s] conversion, [Ross] 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 against 

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 challenging 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.” LaFrankie, 618 A.2d at 1149. Here, DOC was acting within the scope of its 
11

duties when it issued the policy and when it confiscated Ross’ boots. Thus, sovereign 

immunity bars Ross from pursuing his state tort claims against DOC. Accordingly, 

DOC’s Preliminary Objection to this claim is sustained.

Remaining Claims

Finally, DOC argues that, to the extent there are any remaining claims in 

the Amended Petition, 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 issue 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 omitted). 

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 for 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. 

Accordingly, DOC’s Preliminary Objections are sustained as to Ross’ remaining 

claims. 

 

8 The 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. COVEY, Judge
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

Respondents :

O R D E R

AND NOW, this 11th day of October, 2019, 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 Bickell’s preliminary objections to 

Salvatore Ross’ (Ross) pro se amended petition for review (Amended Petition) are 

SUSTAINED and Ross’ Amended Petition is DISMISSED.

___________________________

ANNE E. COVEY, Judge