IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joshua Payne, :

Appellant :

:

v. : No. 587 C.D. 2018

: Submitted: July 6, 2018

Scott Whalen :

Adam S. Huber :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: April 25, 2019

Appellant Joshua Payne (Payne) appeals, pro se, from an order of the 

Court of Common Pleas of Cumberland County (trial court), dated March 29, 2018. 

The trial court granted the motion for summary judgment filed by Scott Whalen 

(Whalen) and Adam Shane Huber (Huber) (collectively, Appellees) and denied 

Payne’s motion for the same, thereby dismissing an amended complaint (Amended 

Complaint) filed by Payne. For the reasons below, we affirm. 

On May 1, 2014, Payne, an inmate then housed at the State Correctional 

Institution at Camp Hill (SCI-Camp Hill),1filed a complaint against Appellees and 

numerous other employees of SCI-Camp Hill (collectively, Department Defendants) 

 

1

It appears that Payne is now housed at the State Correctional Institution at Mahanoy 

(SCI-Mahanoy).
2

in their capacity as correctional officers employed by the Department of Corrections

(Department). Payne asserted that Department Defendants negligently lost seven 

hundred family photos that he received in the mail. Department Defendants filed 

preliminary objections, raising the affirmative defense of sovereign immunity. The 

trial court sustained Department Defendants’ preliminary objections and dismissed 

Payne’s complaint with prejudice. Payne appealed to this Court, and we reversed, 

concluding that sovereign immunity did not apply to bar Payne’s negligence claim. 

See Payne v. Whalen (Pa. Cmwlth., No. 2100 C.D. 2014, filed August 20, 2015).

Thereafter, Payne filed the Amended Complaint. In so doing, Payne 

named only Appellees as defendants. (Amended Complaint ¶¶ 1-2.) Payne also 

made the following factual averments. The Department has a policy that an inmate 

may not have more than ten publications or photographs in his cell at any given time. 

(Id. ¶ 10.) If an inmate receives additional publications or photographs when he 

already has ten inside his cell, the Department will confiscate them. (Id.) After 

confiscation, Huber maintains possession of the items, as he is the Special 

Management Unit’s Property Officer. (Id. ¶¶ 10-11.) In addition to this policy, the 

Department has a Code of Ethics by which Department employees must abide.2 

(Id. ¶ 4.) The Code of Ethics provides, inter alia, that “[t]he personal property of 

inmates will be handle[d] with extreme care and disposed of only by properly 

designated authority in a manner designated by official [Department] policy.” 

(Id. ¶ 5 (citing Department Code of Ethics).) 

 

2 We take judicial notice of the Department’s Code of Ethics, which appears on the 

Department’s official website at:

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/Code%20of

%20Ethics.pdf.

(last visited March 21, 2019). See Figueroa v. Pa. Bd. of Prob. & Parole, 900 A.2d 949, 950 n.1 

(Pa. Cmwlth. 2006) (taking judicial notice of information found on Department website).
3

Payne, while apparently already maintaining ten publications or 

photographs in his cell, received seven hundred photographs in the mail. (Id. ¶ 9.) 

Payne avers that Whalen ordered the confiscation of the photographs, after which 

time Huber maintained possession of them. (Id.) Thereafter, the photographs were 

lost, which Payne attributes to Huber’s negligence. (Id. ¶¶ 8-10.) In support of this 

accusation, Payne attached a document entitled “Confiscated Items Receipt,” which 

purports to show that a Department employee confiscated seven hundred 

photographs from Payne, on June 13, 2013, which were placed into property storage. 

(Id. at Exhibit A.) 

In light of these averments, Payne alleged negligence against Appellees 

due to the loss of his photographs. (Id. ¶¶ 15-22.) Against Huber, Payne alleged 

that Huber owed a duty to Payne to exercise reasonable care over his property and 

failed to exercise such care in allowing the photographs to become lost. 

(Id. ¶¶ 15-16.) Against Whalen, Payne alleged that Whalen owed him a duty to 

appoint competent staff members to oversee his property, and Whalen breached that 

duty by appointing Huber as the Property Officer. (Id. ¶¶ 19-20.) Payne further 

alleges that Whalen knew or should have known that Huber’s incompetence would 

render Huber incapable of performing the Property Officer’s duties. (Id. ¶ 20.) 

Payne asserts that Appellees’ negligence caused him physical and emotional harm. 

(Id. ¶¶ 17-18, 21-22.) 

Thereafter, Appellees filed an Answer with New Matter. While 

Appellees admitted that they both worked as employees within the Special 

Management Unit at SCI-Camp Hill, they denied that Whalen ordered the 

confiscation of the photographs or that Huber confiscated and/or lost them. To that 

point, Appellees appeared to question the existence of the photographs and alleged 
4

that Payne forged the Confiscated Items Receipt. Further, Appellees raised the 

defense of sovereign immunity and asserted that Payne failed to exhaust his 

administrative remedies. 

Following discovery, the parties filed cross-motions for summary 

judgment. In Payne’s motion, he argued that no dispute existed as to Appellees’

confiscation and subsequent loss or destruction of his photographs and that no 

rational trier of fact could find in Appellees’ favor. Conversely, Appellees asserted 

that they did not confiscate or lose Payne’s photographs. Further, Appellees argued 

that sovereign immunity barred Payne’s claim, as Payne did not assert that Appellees 

acted outside the course and scope of their employment and Payne’s claim does not 

fit into one of the enumerated exceptions to sovereign immunity.

By opinion and order dated March 29, 2018, the trial court granted 

Appellees’ motion, denied Payne’s motion, and dismissed the Amended Complaint. 

In so doing, the trial court explained that Payne did not establish “a duty owed to 

him by [Appellees], and, therefore, [Appellees] are entitled to summary judgment.” 

(Trial Court Opinion at 3.)3 Payne now appeals the trial court’s order. 

On appeal,4 Payne argues that the trial court erred or abused its 

discretion in granting Appellees’ motion for summary judgment and denying his 

 

3 Additionally, the trial court’s opinion states that Payne also alleged a breach of contract 

claim, and the trial court granted summary judgment in favor of Appellees on this claim as well. 

We note that the Amended Complaint did not include a breach of contract claim. Further, the trial 

court did not address the applicability of sovereign immunity. 

4 This Court’s review of a trial court’s order granting a motion for summary judgment is 

limited to considering whether the trial court erred as a matter of law or abused its discretion. 

Lambert v. Katz, 8 A.3d 409, 413 n.3 (Pa. Cmwlth. 2010), overruled on other grounds by Cagey 

v. Commonwealth, 179 A.3d 458 (Pa. 2018). A court may grant a motion for summary judgment 

only when there is no genuine issue of material fact and the moving party is entitled to judgment 

as a matter of law. Bronson v. Horn, 830 A.2d 1092, 1094 (Pa. Cmwlth. 2003), aff’d, 
5

motion of the same. Payne maintains that he established prima facie evidence of 

Appellees’ negligence as to survive a motion for summary judgment. Specifically, 

Payne asserts that he established that (1) Appellees owed him a duty to not 

negligently lose or destroy his property, and (2) Appellees breached that duty. 

We begin by addressing Payne’s first claim of error—that the trial court 

erroneously concluded that Appellees did not owe a duty to Payne. Payne, again 

citing the Department’s Code of Ethics, argues that the record establishes that 

Appellees owed him a duty not to lose or destroy his property. 

In order to maintain an action for negligence, one must prove: (1) the 

defendant had a duty or obligation recognized by law; (2) the defendant breached 

that duty; (3) a causal connection between the defendant’s conduct and the resulting 

injury; and (4) actual damages. Page v. City of Philadelphia, 25 A.3d 471, 475 (Pa. 

Cmwlth. 2011), appeal denied, 40 A.3d 124 (Pa. 2012). “The question of whether 

a duty exists is purely a question of law.” Brown v. Dep’t of Transp., 11 A.3d 1054, 

1056 (Pa. Cmwlth. 2011).

Here, the trial court concluded that Payne failed to establish that 

Appellees owed a duty to Payne with respect to his personal belongings. Analogous 

jurisprudence from this Court, however, differs with the trial court’s conclusion. 

In Samuels v. Walsh (Pa. Cmwlth., No. 318 C.D. 2014, filed 

November 17, 2014),5an inmate (Samuels) filed a complaint against Department 

 

848 A.2d 917 (Pa. 2004), cert. denied, 543 U.S. 944 (2004). The right to judgment must be clear 

and free from doubt. Id. In reviewing the granting of a motion for summary judgment, this Court 

must “view the record in the light most favorable to the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved against the moving party.” Pappas 

v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001), cert. denied, 536 U.S. 938 (2002).

5 Pursuant to Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code 

§ 69.414(a), an unreported panel decision of this Court, issued after January 15, 2008, may be cited 

for its persuasive value.
6

employees for the negligent loss of personal property. In so doing, Samuels averred 

that he maintained personal property and legal documents in his cell. Later, Samuels 

was transferred to a Restricted Housing Unit (RHU) for a short time. Upon his return 

from the RHU, Samuels’ property and documents were no longer in his cell. 

Samuels filed a complaint and alleged that the Department employees’ negligence 

caused the loss of his personal property. Citing to the Department’s internal policies, 

Samuels averred that the Department employees had a duty to safely secure his 

property. The Department employees filed preliminary objections, arguing, inter 

alia, that Samuels failed to state a claim for which relief may be granted. A court of 

common pleas sustained the Department employees’ preliminary objections, and 

Samuels appealed. This Court reversed, opining that Samuels’ complaint adequately 

alleged that “consistent with Department policies and regulations, [the Department 

employees] had a duty to secure and protect Samuels’ property.” Samuels, slip op. 

at 9. 

We encountered a similar situation in Palmer v. Doe (Pa. Cmwlth., 

No. 2451 C.D. 2015, filed May 5, 2016). In Palmer, an inmate (Palmer) purchased 

two items—a lamp and typewriter ribbons—which he maintained in his cell. 

Thereafter, Palmer was transferred to the RHU for a short time. Upon his transfer 

from the RHU to a new cell, Palmer found that those items were missing from the 

rest of his personal belongings. Palmer filed a complaint sounding in negligence in 

which he alleged that Department employees failed to follow their own policy of 

properly inventorying and returning his personal property. A court of common pleas 

dismissed Palmer’s complaint as frivolous, and Palmer appealed. This Court 

reversed, concluding that Palmer’s complaint included sufficient facts and 

allegations such that the Department’s policy imposed a duty upon the Department 
7

employees to secure and protect inmate property. Palmer, slip op. at 10. In so doing, 

we cited to another unreported case, Pelzer v. Pry (Pa. Cmwlth., No. 50 C.D. 2012, 

filed May 15, 2013), wherein we reviewed a similar complaint and opined:

In his [a]ction [the inmate] describes the [Department 

employees’] duties in their roles as property officers or 

security officers, which include transporting, receiving, 

inventorying, and searching inmate property at [the State 

Correctional Institution]. It is reasonable to infer that [the

Department employees] are to perform these duties in a 

non-negligent manner. [The inmate] alleges that [the 

Department employees] negligently performed their work 

duties, thereby causing the loss or destruction of his 

property. We are satisfied that [the inmate’s] allegations 

have sufficiently set forth the necessary elements for a 

negligence claim . . . .

Pelzer, slip op. at 11 (citations omitted). 

Though the above cases are unreported, this Court appears to have 

adopted the logic espoused in Palmer in the reported decision of Whitaker v. Wetzel, 

170 A.3d 568 (Pa. Cmwlth. 2017), where an inmate filed suit after Department 

employees confiscated and later destroyed pictures that were sent to him via mail. 

Notably, the inmate did not allege negligence but instead alleged constitutional 

violations. While noting that the inmate did not sufficiently claim constitutional 

violations, we explained that a claim in negligence could have been available to him 

if he pleaded accordingly. Specifically, we explained:

While prisoners obviously surrender a great many 

rights benefitting society at large, they remain entitled to 

possess undisturbed the property to which they are 

permitted in their confined setting, subject to the 

appropriate rules of the penal institution. To the extent 

[the inmate] claims that the photographs were destroyed 

as a result of [the Department employees’] intentional acts, 

these claims are properly dismissed. However, had [the 

inmate] alleged that [the Department employees] acted 

negligently in protection of his property which was “in the 
8

prison officials’ care, custody and control,” he would “not 

be precluded from pursuing [a] claim [for negligence]” 

against them. Palmer[, slip op. at 10].

. . . . 

The [Department employees] at issue may (or may not) 

have been negligent in doing their job, but [the inmate’s] 

filings cannot be read as alleging anything but the most 

devious conduct on their part, and certainly cannot be seen 

as claiming that he is victim of their negligence. In 

proceeding in this way, [the inmate] has foregone his 

opportunity to pursue an avenue which may have 

otherwise been open to him.

Whitaker, 170 A.3d at 574-75 (footnotes omitted) (internal citation omitted). 

Here, the trial court provided no discussion regarding Appellees’ duty 

to handle Payne’s property in a non-negligent manner. The extent of the trial court’s 

discussion on this matter includes one conclusory sentence: “[Payne] has not 

established a duty owed to him by [Appellees], and, therefore, [Appellees] are 

entitled to summary judgment.” (Trial Court Opinion at 3.) As previously 

mentioned, however, the Department’s Code of Ethics provides that “[t]he personal 

property of inmates will be handled with extreme care and disposed of only by 

properly designated authority in a manner designated by official [Department] 

policy.” (Department Code of Ethics, at 3.) Upon review of the Amended 

Complaint and the jurisprudence highlighted above, we determine that Payne 

established that Appellees owed him a duty to “secure and protect” his property. See 

Samuels, slip op. at 9. Accordingly, we conclude that the trial court erred in 

determining that Appellees owed no duty to Payne with respect to his personal 

property.6

 

6

In their brief in support of their summary judgment motion, Appellees cited to Tillman v. 

Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 575 M.D. 2011, filed 

February 22, 2013) for the proposition that the Department’s Code of Ethics is an administrative 
9

Although the trial court concluded that Appellees did not owe a duty to 

Payne, it concluded that even if a duty existed, Appellees did not breach that duty. 

To this point, the trial court opined:

Even if [Payne] had established [that Appellees] owed a 

duty to him, [Payne] failed to establish a breach of duty 

occurred. [Payne’s] deposition admits that: (1) [Payne] 

does not know if [Whalen] ever handled his personal 

property; (2) [Whalen] never personally confiscated 

anything from him[;] and (3) [Payne] never saw, counted, 

or had access to the 700 photographs at issue. [Payne] has 

offered no evidence supporting that [Huber] acted 

unreasonably or that he negligently handled the 

photographs.

(Trial Court Opinion at 3-4.)

In order to withstand a motion for summary judgment, a nonmoving 

party “must adduce sufficient evidence on an issue essential to his case and on which 

he bears the burden of proof such that a jury could return a verdict in his favor.” 

Ertrel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa.), cert. denied, 519 U.S. 1008 

(1996). A non-movant’s failure to adduce such evidence “establishes that there is 

no genuine issue of material fact and the moving party is entitled to judgment as a 

matter of law.” Id. If a plaintiff fails to establish one of the essential elements of 

actionable negligence, the defendant has valid grounds for summary judgment. 

Braxton v. Dep’t of Transp., 634 A.2d 1150, 1158 (Pa. Cmwlth. 1993), appeal 

denied, 652 A.2d 1326 (Pa. 1994).

 

policy that does not create a right for a cause of action. To that point, we agree. This Court has 

held multiple times that a failure to comply with a Department policy is not a basis for a cause of 

action. See, e.g., Bullock v. Horn, 720 A.2d 1079, 1082 n.6 (Pa. Cmwlth. 1998). This proposition, 

however, does not negate the fact that Appellees had a duty not to lose or destroy Payne’s property

through negligence. This proposition, although memorialized in the Department’s Code of Ethics, 

could also stand independent of Payne’s citation thereto. See Whitaker, 170 A.3d at 574-75. 
10

Here, we agree with the trial court that Payne failed to establish that 

either Appellee breached his duty. During discovery, Appellees deposed Payne. 

During this deposition, Payne made a number of admissions. With respect to 

Whalen, Payne admitted that Whalen never confiscated anything from him, and he 

only brought suit against him because he enforced the Department’s confiscation 

policy. Specifically, Payne’s deposition testimony provided:

Q: All right. And you also sued [Whalen], W-H-A-L-EN. Why did you sue him?

A: Because he was the one to enforce the practice of 

confiscating incoming magazines, books, and 

photographs.

Q: All right. Do you know if he ever handled your 

property—

A: No.

Q: —personally?

A: No.

Q: Did he ever confiscate anything from you?

A: No.

(Original Record (O.R.), Item 41, Exhibit A, at 35-36.) Payne made similar 

concessions with respect to Huber. After being asked if Huber took the photographs, 

Payne stated:

A: Yes, he’s the one—I don’t know, did he take the 

photographs, he gave me the confiscation slip. I don’t 

know that he took the photographs. Whoever did the 

mail that day was the one that confiscated [them].

Q: Well, when he gave you the slip, did he say we’re 

taking your photographs or I’m taking your 

photographs?

A: No, he never—he gave me a confiscation slip. 

(Id. at 41.) Further, with respect to the Confiscated Items Receipt itself, Payne 

admits that he does not know who signed it. (Id. at 38.) 
11

In attempting to establish Appellees’ negligence, Payne failed to put 

forward any evidence that establishes either Whalen or Huber had any involvement 

in the negligent loss or destruction of his photographs. The extent of Payne’s 

evidence is a Confiscated Items Receipt signed by an unknown actor. Although the 

Confiscated Items Receipt potentially establishes that an unknown Department 

employee confiscated Payne’s photographs, Payne has put forward no evidence 

establishing that either Whalen or Huber participated in any way in the negligent 

loss or destruction thereof. Payne is merely relying on his allegation that Appellees 

were responsible for the loss of his photographs, but mere conclusory allegations in 

the pleadings are not sufficient to establish a breach of duty. Hughes v. Council 13, 

Am. Fed. of State, Cty., & Mun. Emps., AFL-CIO, 629 A.2d 194, 195 (Pa. Cmwlth.), 

aff’d per curiam, 640 A.2d 410 (Pa. 1994). 

Moreover, Whalen cannot be liable based solely on his supervisory 

position. A negligence action may not lie against a public official if there is no 

averment that the individual committed a wrongful act in his official capacity or by 

his personal action, and the action is solely predicated upon a theory of respondeat 

superior. See Witt v. Dep’t of Banking, 409 A.2d 932, 934 (Pa. Cmwlth. 1980), aff’d 

per curiam, 425 A.2d 374 (Pa. 1981). Specifically, “[c]onsistent with the interest in 

unimpaired decisionmaking, we believe it appropriate to protect from the possibility 

of suit a public servant who has not himself engaged in actionable conduct. Thus, 

those in the ‘chain of command’ should not be subject to suit on any theory of 

vicarious responsibility.” Id. (quoting DuBree v. Commonwealth, 393 A.2d 293, 

295 (Pa. 1978) (plurality)). Thus, the trial court correctly concluded that Appellees 

did not breach their duty owed to Payne.
12

Accordingly, the order of the trial court, granting Appellees’ motion for 

summary judgment and denying Payne’s motion of the same, is affirmed.7

P. KEVIN BROBSON, Judge

 

7 As we have concluded that the trial court did not err or abuse its discretion in granting 

Appellees’ motion for summary judgment, we conclude for the same reasons that the trial court 

did not err or abuse its discretion in denying Payne’s motion of the same. As the trial court 

correctly determined that Payne did not establish that Appellees breached their duty owed to 

Payne, Payne’s right to judgment was not clear and free from doubt, as is required for summary 

judgment. See Bronson, 830 A.2d at 1094. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joshua Payne, :

Appellant :

:

v. : No. 587 C.D. 2018

:

Scott Whalen :

Adam S. Huber :

O R D E R

AND NOW, this 25th day of April, 2019, the order of the Court of 

Common Pleas of Cumberland County, granting the motion for summary judgment 

filed by Scott Whalen and Adam S. Huber and denying the motion for summary 

judgment filed by Joshua Payne, is AFFIRMED. 

P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joshua Payne, :

Appellant :

: No. 587 C.D. 2018

v. :

: Submitted: July 6, 2018

Scott Whalen :

Adam S. Huber :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

CONCURRING/DISSENTING OPINION 

BY JUDGE McCULLOUGH FILED: April 25, 2019

I concur with the Majority insofar as it affirms the order of the Court of 

Common Pleas of Cumberland County (trial court) granting the motion for summary 

judgment in favor of Scott Whalen. However, I respectfully disagree with the 

Majority to the extent it affirms the order of the trial court granting the motion for 

summary judgment in favor of Adam S. Huber.

With respect to Huber, Joshua Payne (Appellant) specifically alleged 

in his amended complaint that the Department of Corrections (Department) had 

promulgated a Code of Ethics which required “[t]he personal property of inmates 

[to] be handle [sic] with extreme care and disposed of only by properly designated 

authority in a manner designated by official [Department] policy.” (Amended 

Complaint ¶¶ 4-5.) Appellant also alleged that Huber, who served as the property 
PAM - 2

officer for the special management unit, failed to abide by this Code of Ethics and 

failed to exercise extreme care when he lost Appellant’s personal photographs that 

were placed in his possession. (Amended Complaint ¶8.) Appellant stated that the 

Department maintains a policy limiting an inmate to no more than 10 publications 

or photographs in his cell at any given time, that any excess publications or 

photographs are confiscated upon arrival, and that Huber maintains possession of 

the items after confiscation consistent with his duties as property officer. (Amended 

Complaint ¶¶ 10-11.) Appellant further testified by way of deposition that Huber 

provided him with a confiscation slip relating to several hundred personal 

photographs that have gone missing. (Original Record, Item 41.) 

While the Majority correctly notes that Appellant admitted in his 

deposition that he did not know if Huber had actually confiscated the photographs 

or signed the confiscation slip, I do not believe such admissions were sufficient to 

warrant the trial court’s grant of summary judgment in Huber’s favor, as the Majority 

so concluded. The Majority aptly describes the burden on a nonmoving party in 

order to withstand a motion for summary judgment, i.e., he “must adduce sufficient 

evidence on an issue essential to his case and on which he bears the burden of proof 

such that a jury could return a verdict in his favor.” Ertel v. Patriot-News Co., 674 

A.2d 1038, 1042 (Pa. 1996). Additionally, the failure to adduce such evidence 

“establishes that there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law.” Id. 

Here, the allegations of Appellant’s amended complaint, coupled with 

his deposition testimony, establish that genuine issues of material fact remain as to 

whether or not Huber took possession of Appellant’s personal photographs and 

whether he exercised the “extreme care” required by the Department’s Code of 
PAM - 3

Ethics relating to the handling of inmate property and/or properly disposed of the 

same. For these reasons, I would reverse the order of the trial court to the extent it 

granted summary judgment in Huber’s favor. 

________________________________

PATRICIA A. McCULLOUGH, Judge