Paluch v. PA Dep't of Corr.

• Decision Date: 28 November 2017
• Docket Number: No. 364 M.D. 2016,364 M.D. 2016
• Citation: 175 A.3d 433
• Parties: James A. PALUCH, Jr., Petitioner v. PA DEPARTMENT OF CORRECTIONS, SCI–Albion, Nancy Giroux, Tammy Turner, Valarie Kusiak, Lisa Sherretts, Terri Bortles, Patrick McElhinny, Karen McMillen, Robin Naas, Sandra Gorniak, Patrick Brady, Anthony S. Pinko, Earl Jones, John Doe Officer #1 and John Doe Officer #2, Respondents
• Court: Pennsylvania Commonwealth Court

175 A.3d 433

James A. PALUCH, Jr., Petitioner

v.PA DEPARTMENT OF CORRECTIONS, SCI–Albion, Nancy Giroux, Tammy Turner, Valarie Kusiak, Lisa Sherretts, Terri Bortles, Patrick McElhinny, Karen McMillen, Robin Naas, Sandra Gorniak, Patrick Brady, Anthony S. Pinko, Earl Jones, John Doe Officer #1 and John Doe Officer #2, Respondents

No. 364 M.D. 2016

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 21, 2017

Decided November 28, 2017

James A. Paluch, Jr., pro se.

Jeffrey M. Paladina, Assistant Counsel, Mechanicsburg, for respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JAMES GARDNER COLINS, Senior Judge

James A. Paluch, Jr. (Petitioner), filed a petition for review¹ in this Court's original jurisdiction alleging a series of common law tort, constitutional, and mandamus claims, and naming as respondents the Pennsylvania Department of Corrections, SCI–Albion, Nancy Giroux, Tammy Turner, Valarie Kusiak, Lisa Sherretts, Terri Bortles, Patrick McElhinny, Karen McMillen, Robin Naas, Sandra Gorniak, Patrick Brady, Anthony S. Pinko, Earl Jones, John Doe Officer # 1 and John Doe Officer # 2 (collectively Respondents). Petitioner requests, inter alia , that this court award punitive and compensatory damages, costs, fees and interest, and that this Court issue: (a) a declaratory judgment, the content of which is specified in paragraph 504(A)(1)–(15) of the petition for review; (b) a preliminary and a permanent injunction; and (c) a legal opinion addressing specific questions of law identified in paragraph 504(c)(1)–(2)² of his petition for review.

In response to Petitioner's petition for review, Respondents filed preliminary objections in the nature of a demurrer pursuant to Pennsylvania Rule of Civil Procedure No. 1028(4).³ Respondents also argue that it is clear from the face of the petition for review that the majority of Petitioner's claims are barred by the doctrine of sovereign immunity. Respondents' preliminary objections separate Petitioner's claims into two categories: first, Respondents identify counts (i)-(xii) as claims challenging spending and purchasing decisions made with funds contained in the Inmate General Welfare Fund (IGWF) by employees of the Pennsylvania Department of Corrections (DOC); next, Respondents identify counts (xiii)-(xvi) as claims related to Petitioner's personal property.⁴

I. IGWF Claims

Petitioner asserts eleven common law tort claims arising from allegations regarding the IGWF. Respondents argue that Petitioner has failed to state valid claims for relief because Petitioner's claims rely upon DOC's Fiscal Administration Policy (FAP) creating mandatory duties that are enforceable by Petitioner and similarly situated prisoners, rely upon erroneous legal interpretations of trust and property law, and are barred by the doctrine of Sovereign Immunity.⁵ We agree.

a. FAP

The allegations underlying Petitioner's IGWF claims center on Respondents' use of the interest and investment income held in the IGWF to purchase items for State Correctional Institution–Albion (SCI–Albion), including a new scoreboard for the gymnasium, stainless steel security furniture to replace existing wooden furniture, and seeds and materials for the SCI–Albion Greenhouse Project. (Petition for Review, ¶¶ 67–89.) Petitioner also alleges that Respondents squandered IGWF monies by purchasing items at grossly inflated prices. (Id. ¶¶ 66, 78–84.) In addition to Petitioner's allegations surrounding the use of IGWF funds, Petitioner challenges the manner in which the IGWF is funded, alleging that it is funded by services provided to prisoners at inflated prices, taxes or levies placed by DOC on the sale of items to prisoners, and interest earned on the principal in prisoner's DOC accounts. (Id. ¶¶ 45, 73, 205.) Petitioner further contends that he and similarly situated prisoners are entitled to determine how the IGWF is funded and how the monies within the fund are spent, which necessarily includes the right to inspect IGWF records and related documents. (Id. ¶¶ 203–212.)

Pennsylvania statutory law mandates that DOC maintain an account for all prisoners. Sections 3124, 3125, and 5904 of the Prisons and Parole Code, 61 Pa. C.S. §§ 3124 – 3125, 5904. The FAP adopted by DOC to implement this statutory requirement both establishes and governs the administration and use of the IGWF. Pursuant to DOC's FAP, the principal from a prisoner's personal account is held in a central fund, the IGWF, and invested by the IGWF Council along with sales from commissary, hobby craft functions, and personal services available to facility employees, as well as donations from individuals or organizations for the benefit of prisoners. FAP 3.1.1, § IV, ¶ K. Although the principal in a prisoner's account remains the individual prisoner's property, the investment income from the IGWF does not accrue to any individual prisoner and instead, pursuant to the FAP, "is used solely for the benefit of inmates of the [DOC] facilities." Id.⁶ The FAP adopted by DOC also specifies the responsibilities of each facility utilizing the IGWF, including that the facility:

Establish inmate input into operation of the fund at each facility. This shall be accomplished by the use of a committee consisting of staff and inmate representatives who shall be used in planning IGWF activities. They shall also be responsible for posting a monthly statement of fund activities on all inmate bulletin boards for the respective facility[.]

FAP 3.1.1, § IV, ¶ K(6)(g). The FAP does not provide prisoner IGWF representatives at each facility with authority to approve, veto, or vote on how the IGWF monies are spent, rather the FAP mandates that each facility establish a committee consisting of staff and prisoner representatives to ensure "inmate input." Id. The FAP, however, is not statutory or constitutional law; the detailed regulations set forth in the FAP concerning the responsibilities a facility has in operating the IGWF cannot form the basis of a cause of action because allegations that DOC has failed to adhere to its own policies and regulations do not state a claim for relief. Shore v. Department of Corrections , 168 A.3d 374, 386 (Pa. Cmwlth. 2017) ; Tindell v. Department of Corrections , 87 A.3d 1029, 1035 (Pa. Cmwlth. 2014) ; Yount v. Department of Corrections , 886 A.2d 1163, 1169 (Pa. Cmwlth. 2005) ; Weaver v. Department of Corrections , 829 A.2d 750, 752 (Pa. Cmwlth. 2003) ; Bullock v. Horn , 720 A.2d 1079, 1082 n.6 (Pa. Cmwlth. 1998). Moreover, in an effort to dispel any notion that the FAP is enforceable by Petitioner and other similarly situated prisoners, the FAP explicitly states, "[t]his policy does not create rights in any person." FAP 3.1.1 § VI.

Accordingly, Petitioner's claims in counts I-XII do not state a cause of action and must be dismissed because these claims allege that Respondents failed to adhere to the FAP.

b. Sovereign Immunity

In addition, even if Petitioner's reliance on the FAP did not prevent him from stating a claim upon which relief may be granted, it is clear from the face of the petition for review that the doctrine of sovereign immunity bars Petitioner's tort claims. Sovereign immunity acts as a bar to suits against Commonwealth parties, including its officials and employees acting within the scope of their duties. 1 Pa. C.S. § 2310. Establishing a limited list of exceptions to immunity, the General Assembly adopted what is commonly referred to as the Sovereign Immunity Act, 42 Pa. C.S. §§ 8501 – 8502, 8521 – 8527. Section 8522 of the Sovereign Immunity Act waives "immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity," for specifically enumerated categories of acts. 42 Pa. C.S. § 8522. A "Commonwealth party" is defined in Section 8501 as "[a] Commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment." 42 Pa. C.S. § 8501. Thus, when an employee of a Commonwealth agency, such as a DOC employee, is acting within the scope of his or her duties, the employee is shielded by the doctrine of sovereign immunity from liability for tort claims arising from negligent acts that do not fall within the statutory exceptions listed in Section 8522(b) of the Sovereign Immunity Act. 1 Pa. C.S. § 2310 ; 42 Pa. C.S. § 8522(a) – (b). Sovereign immunity is not waived for intentional acts committed by a Commonwealth employee acting within the scope of his or her employment. La Frankie v. Miklich , 152 Pa.Cmwlth. 163, 618 A.2d 1145, 1149 (1992).

Each of the state law IGWF claims that Petitioner asserts in his petition for review are either intentional torts or they do not fall within the exceptions in Section 8522 of the Sovereign Immunity Act that would permit Petitioner to maintain a suit against Respondents. 42 Pa. C.S. § 8522(b). For example, in Count I of his petition for review, Petitioner alleges a breach of fiduciary duty. Setting aside the legal conclusions underlying much of Petitioner's allegations, such as Petitioner's assertion that he and similarly situated prisoners are "beneficiaries" and Respondents are "trustees" of the IGWF, Petitioner would still fail to state a claim for relief because the Commonwealth has not waived its immunity for claims alleging a breach of fiduciary duty. Id. ; compare Doe v. Franklin County , 139 A.3d 296, 318 (Pa. Cmwlth. 2016) (holding that what is commonly known as the Tort Claims Act, 42 Pa. C.S. §§ 8541 – 8564, bars the common law tort claim breach of fiduciary duty).⁷ Likewise, in each count where Petitioner is attempting to allege an intentional tort, such as Count VI where he alleges that a subset of Respondents...