IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Anderson, :

Petitioner :

:

v. :

:

Superintendent Coleman; Deputy :

Armel; Captain Trempus; Lieutenant :

Bursey; Officer Shipley; Officer :

Jennings; Doctor Herbic; Mrs. Berrier :

Mrs. Mankey, Unit Manager; Captain :

PA State Trooper B Area 4, : No. 179 M.D. 2016

Respondents : Submitted: October 21, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: November 14, 2016

Before this Court in our original jurisdiction are preliminary 

objections filed by Respondents Superintendent Coleman, Deputy Superintendent 

Armel, Intelligence Security Captain Trempus, Corrections Officers Bursey, 

Shipley and Jennings, Health Care Administrator Berrier, Unit Manager Mankey 

(Corrections Respondents) and Dr. Herbik1(collectively, Respondents) to an 

 

1 Dr. Herbik, incorrectly identified in the petition for review as Dr. Herbic, is separately 

represented in this action and, therefore, filed his own separate preliminary objections. We note 

that while the caption of the amended petition lists a “Captain PA State Trooper B Area 4” as a 

respondent and the body of the petition refers to a “Defendant Epstein” allegedly with the 

(Footnote continued on next page...)
2

amended petition for review filed by pro se petitioner Thomas Anderson 

(Anderson) seeking declaratory relief and compensatory damages for various 

constitutional claims and intentional torts.2 For the reasons that follow, the 

preliminary objections are sustained.

Anderson, an inmate, brought this action for an incident that occurred 

when he was incarcerated at SCI Fayette.3 According to his amended petition,4on 

January 14, 2011, Anderson was involved in a physical altercation at SCI Fayette 

with Officer Shipley and both individuals fell to the ground. Twelve unnamed 

corrections officers responded to the altercation and punched and kicked Anderson 

while handcuffing him behind his back. While the other officers held Anderson 

down, Officer Shipley struck Anderson in his face with a closed fist approximately 

 

(continued...)

Pennsylvania State Police, it does not appear that any individuals from the State Police have been 

properly served and no counsel has entered an appearance on behalf of any State Police 

Respondent.

2 Because Anderson failed to file an appropriate brief in opposition to either set of 

preliminary objections, despite being granted an extension of time in which to do so, on October 

17, 2016, we issued an order stating we would consider the Respondents’ preliminary objections 

without Anderson’s brief.

3 Anderson filed his initial petition for review in the Court of Common Pleas of Fayette 

County (lower court) on January 16, 2013, and an amended petition on February 24, 2014. On 

March 1, 2016, the lower court issued an order transferring the matter to this Court because the 

Respondents are state employees.

4 When addressing preliminary objections, we are “required to accept as true the wellpled averments set forth in the . . . complaint, and all inferences reasonably deducible 

therefrom.” Pa. State Lodge, Fraternal Order of Police v. Department of Conservation & 

Natural Resources, 909 A.2d 413, 415 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007).
3

35 to 45 times. Lieutenant Bursey witnessed the incident and failed to intervene. 

Anderson also alleges that Officer Jennings then lifted him by his arms and 

dragged him throughout the institution.

Once in the medical department, Anderson told Administrator Berrier 

that he had been assaulted. Lieutenant Bursey and Officer Jennings verbally 

abused and threatened him. Anderson told Dr. Herbik that he had been assaulted, 

but Dr. Herbik failed to report the assault and refused to examine Anderson. Dr. 

Herbik instructed a physician’s assistant to place stitches in Anderson’s eye and 

cheek areas.

Anderson claims he was then placed in the restricted housing unit 

(RHU) without a blanket or mattress and with no clothing other than a suicide 

gown. Anderson contacted Superintendent Coleman, Deputy Superintendent 

Armel and Captain Trempus via inmate request slips, advising them that he had 

been assaulted and was forced to reside in a bare cell without protection from the 

cold, but they all refused to answer Anderson’s request slips. Anderson filed 

numerous sick call requests complaining of pain in his neck, back, ribs and face 

and severe headaches; however, medical personnel did not perform any physical 

examinations and only prescribed Tylenol for his pain.

Anderson alleges that Officer Shipley’s actions amount to excessive 

force and cruel and unusual punishment in violation of the Eighth Amendment to 

the United States Constitution, as well as state law tort claims of assault and 

battery. He alleges that Officer Jennings’ actions and Lieutenant Bursey’s failure 

to intervene also constitute cruel and unusual punishment. Anderson claims that 
4

Respondents Coleman, Trempus and Armel’s failure to take disciplinary action or 

otherwise curb the pattern of physical abuse by the officers constitutes deliberate 

indifference in violation of the Eighth Amendment, and that their failure to remove 

him from the RHU was a violation of his Eighth Amendment right to be free from 

cruel and unusual punishment. Finally, Anderson alleges that Dr. Herbik and 

Administrator Berrier’s failure to notify prison officials about the assault 

constitutes cruel and unusual punishment, and that Dr. Herbik failed to provide 

him with medical care in violation of the Eighth Amendment.

The Corrections Respondents filed preliminary objections contending 

that all of Anderson’s federal claims against them should be dismissed with 

prejudice because he failed to exhaust his administrative remedies pursuant to the 

Department of Corrections’ (Department) Inmate Grievance Review System 

(Grievance Policy), DC-ADM 804.

5

 An affidavit was attached to their preliminary 

objections indicating that Anderson did not file any grievances related to the 

allegations in the amended complaint, and none of the grievances he did file during 

the relevant time period were exhausted to final review.

The Corrections Respondents also filed a preliminary objection to 

Anderson’s intentional state tort claims against Officer Shipley, the officer alleged 

to have beaten him, because Officer Shipley is immune from suit under the

Sovereign Immunity Act.6 See LaFrankie v. Miklich, 618 A.2d 1145, 1149 (Pa. 

 

5

The Department’s Administrative Directives, including DC-ADM 804, are available at 

http://www.cor.pa.gov.

6

42 Pa. C.S. §§ 8521–8528.
5

Cmwlth. 1992). Finally, they argue that the federal civil rights claims brought 

pursuant to 42 U.S.C. § 1983 must fail because Anderson has not demonstrated 

that Respondents Coleman, Armel, Trempus and Mankey were personally involved 

in, had actual knowledge of or acquiesced in the conduct of which Anderson 

complains. See Rizzo v. Good, 423 U.S. 862 (1976); Rode v. Dellarciprete, 845 

F.2d 1195, 1207 (3d Cir. 1988).

Dr. Herbik7filed separate preliminary objections asserting that the 

claims against him should also be dismissed for failure to exhaust administrative 

 

7

The lower court transferred this matter to this Court because the Respondents were 

Commonwealth employees. Dr. Herbik’s brief notes that he was not an employee of the 

Commonwealth, but of a private company that contracted with the Commonwealth to provide 

medical services within state correctional facilities. Though it makes no difference to our 

analysis, we note that an “employee” is defined for purposes of tort immunity as:

Any person who is acting or who has acted on behalf of a 

government unit whether on a permanent or temporary basis, 

whether compensated or not and whether within or without 

territorial boundaries of the government unit, including any 

volunteer fireman and any elected officer, member of a governing 

body or other person designated to act for the governing unit. 

Independent contractors under contract to the government unit and 

their employees and agents and persons performing tasks over 

which the government unit has no legal right or control are not 

employees of the government unit.

42 Pa. C.S. § 8501. Under this definition, there is no requirement that a person be an employee 

in the traditional sense, but only that the employee is acting on behalf of the governmental entity. 

In Walls v. Hazleton State Hospital, 629 A.2d 232 (Pa. Cmwlth. 1993), an action was brought by 

a patient alleging that he received negligent medical care from a doctor employed by a medical 

group retained as an independent contractor to provide medical services to a state hospital. 

While the doctor was not a traditional “employee,” he was held to be an employee of a 

Commonwealth party because he fell within the definition as “a person who acted on behalf of 

the government unit whether on a temporary or permanent basis.” See also County of Schuylkill 

v. Maurer, 536 A.2d 479 (Pa. Cmwlth. 1988).
6

remedies, and that Anderson’s claims are legally and factually insufficient to make 

out a claim for cruel and unusual punishment or deliberate indifference.

8

Regarding the Respondents’ preliminary objection to dismiss the 

amended petition due to Anderson’s failure to exhaust his administrative remedies 

before bringing an action alleging cruel and unusual punishment under the Eighth 

Amendment to the United States Constitution, the federal Prison Litigation Reform 

Act (PLRA) states that exhaustion of administrative remedies is mandatory when 

federal claims are asserted. See 42 U.S.C. § 1997e; Kittrell v. Watson, 88 A.3d 

1091, 1095 (Pa. Cmwlth. 2014). Exhaustion must also be “proper” and “[p]roper 

exhaustion demands compliance with an agency’s deadlines and other critical 

procedural rules because no adjudicative system can function effectively without 

imposing some orderly structure on the course of its proceedings.” Woodford v. 

Ngo, 548 U.S. 81, 90-91 (2006).

The administrative remedies available at the state prison level are set 

forth in the Department’s Grievance Policy and regulations. Specifically, “Section 

93.9 [of the Department’s regulations] establishes an inmate grievance system that 

provides a forum for prison inmates to complain to the Department about problems 

that arise ‘during the course of confinement.’ 37 Pa. Code § 93.9.” Morgalo v. 

Gorniak, 134 A.3d 1139, 1150 (Pa. Cmwlth. 2016) (quoting McCray v. 

 

8

“The court will sustain a preliminary objection if, after accepting all well-pleaded facts 

as true and accepting all reasonable inferences that follow from those facts, the law will not 

allow recovery. . . . Only in circumstances that are free from doubt may preliminary objections 

be sustained.” Humphrey v. Department of Corrections, 939 A.2d 987, 990 n.4 (Pa. Cmwlth. 

2007), aff’d, 955 A.2d 348 (Pa. 2008) (citations omitted).
7

Department of Corrections, 872 A.2d 1127, 1131 (Pa. 2005)). The Department’s

Grievance Policy and Inmate Handbook provide that:

the inmate grievance process begins with the filing of a 

grievance with the Facility Grievance Coordinator. . . . 

‘The [process] requires an inmate who has received an 

initial determination on his grievance to appeal to the 

Superintendent and, thereafter, seek final review with 

[the Department]. If the inmate fails to complete each of 

these steps, he fails to exhaust his administrative 

remedies.’ Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa. 

Cmwlth. 2014).

Morgalo, 134 A.3d at 1150-51.

Here, there is an affidavit attached to the Corrections Respondents’ 

preliminary objections stating that Anderson has not filed any grievances related to 

the underlying incident. Anderson’s amended petition also fails to allege that he 

filed a grievance pertaining to his federal claims, he appealed a grievance officer’s 

decision to final review, or even that he is appealing any Department order to this 

Court, all of which must occur before he is able to maintain his federal claims. 

Because Anderson has failed to exhaust all administrative remedies, his Section 

1983 claims against Respondents for cruel and unusual punishment and deliberate 

indifference under the Eighth Amendment to the United States Constitution are 

dismissed. See Humphrey v. Department of Corrections, 939 A.2d 987, 993 (Pa.

Cmwlth. 2007), aff’d, 955 A.2d 348 (Pa. 2008) (citing St. Clair v. Board of 

Probation and Parole, 493 A.2d 146, 152-53 (Pa. Cmwlth. 1985)).
8

The Corrections Respondents also assert that Officer Shipley is 

immune from liability for the intentional torts of assault and battery. It is well 

established 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 (citing Yakowicz v. McDermott, 548 A.2d 1330 (Pa. 

Cmwlth. 1988)); see also Holt v. Northwest Pennsylvania Training Partnership 

Consortium, Inc., 694 A.2d 1134, 1140 (Pa. Cmwlth. 1997) (stating “willful 

misconduct does not vitiate a Commonwealth employee’s immunity because 

sovereign immunity protects a Commonwealth employee acting within the scope 

of his or her employment from liability, even for intentional acts which cause 

emotional distress.”). Because Officer Shipley is immune from liability, we will 

grant the Commonwealth Respondents’ preliminary objection and dismiss 

Anderson’s intentional tort claims.

Accordingly, the Respondents’ preliminary objections are sustained 

and Anderson’s petition for review is dismissed.9

___________________________________

DAN PELLEGRINI, Senior Judge

 

9 Because of the manner in which we resolve this matter, we do not reach the remainder 

of the preliminary objections raised by the Respondents.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Anderson, :

Petitioner :

:

v. :

:

Superintendent Coleman; Deputy :

Armel; Captain Trempus; Lieutenant :

Bursey; Officer Shipley; Officer :

Jennings; Doctor Herbic; Mrs. Berrier :

Mrs. Mankey, Unit Manager; Captain :

PA State Trooper B Area 4, :

Respondents : No. 179 M.D. 2016

O R D E R

AND NOW, this 14th day of November, 2016, the preliminary 

objections filed by the Corrections Respondents and Respondent Dr. Herbik are 

sustained and the petition for review filed by Thomas Anderson is dismissed.

___________________________________

DAN PELLEGRINI, Senior Judge