B. Sherwood v. PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brentt Sherwood, :
Petitioner :
:
v. : No. 767 M.D. 2018
: Submitted: December 13, 2019
Pennsylvania Department of :
Corrections; John E. Wetzel; :
Bruce Beemer; Robert Gilmore; :
Karen Patterson; Tiffany Pauley; :
Joan Kennedy; J. Carter; Theron R. :
Perez; Dorina Varner; Keri Moore; :
Justin Dunkelberger; Jamie Saleski; :
Sarah Snyder; Tracy Shawley; :
Crystal Greenawalt; Leslie Wynn; :
Mindy Andreetti; John/Jane Doe :
(1-99), :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: September 9, 2020
Presently before the Court are the preliminary objections in the nature of
demurrers filed by: the Pennsylvania Department of Corrections (DOC), John E.
Wetzel, Robert Gilmore, Karen Patterson, Tiffany Pauley, Joan Kennedy, J. Carter,
Theron R. Perez, Dorina Varner, Keri Moore, Tracy Shawley, Crystal Greenawalt,
Leslie Wynn, and Mindy Andreetti, all of whom are employed by DOC
(collectively, DOC Respondents); Justin Dunkelberger, Jamie Saleski, and Sarah
Snyder, all of whom are or were employed by Northumberland County (County
Respondents); and former Attorney General Bruce Beemer (Beemer) (together,
Respondents) to Brentt Sherwood’s (Sherwood) Amended Petition for Review
(Amended Petition) filed in our original jurisdiction.1 Also before the Court are
Sherwood’s preliminary objections to some of Respondents’ preliminary
objections. Sherwood, an inmate at the State Correctional Institution at Greene
(SCI-Greene), challenges the deduction of $15,560.22 from his inmate account for
alleged outstanding fines, costs, fees, and restitution arising from his various
criminal convictions. Sherwood argues these deductions were contrary to the
various sentencing court orders entered in his criminal matters, are not authorized
under any law or DOC Administrative Policy, and/or violate his rights under
several provisions of the United States and Pennsylvania Constitutions.
1
At the time of the allegations in Sherwood’s Amended Petition: Wetzel was Secretary
of Corrections; Gilmore was superintendent of the State Correctional Institution at Greene (SCI-
Greene); Patterson was SCI-Greene’s business manager; Pauley was an accountant at SCI-
Greene; Kennedy was an accounting clerk at SCI-Greene; Carter worked in SCI-Greene’s inmate
accounting department; Perez was DOC’s chief counsel; Varner was DOC’s Chief Grievance
Officer; Moore was DOC’s Assistant Chief Grievance Officer; Shawley was SCI-Greene’s
Grievance Coordinator and Superintendent’s Assistant; Greenawalt was an Administrative
Officer 2 of SCI-Greene and designee of Shawley; Wynn was a Fiscal Management Specialist at
SCI-Greene; Andreetti was an Administrative Officer 1 of SCI-Greene and designee of Shawley;
Dunkelberger was the Prothonotary for Northumberland County (County); Saleski was the
subsequent Prothonotary of County; Snyder was the Court Costs Supervisor for County; and
Beemer was the Attorney General. (Amended (Am.) Petition ¶¶ 3-20.) Because it appears that
Sherwood contends that Kennedy and Carter may be the same person, we will refer to that
person as Kennedy or Kennedy/Carter.
Although not affecting the Court’s analysis or resolution, we note for the sake of
accuracy that Beemer served as Attorney General from August 31, 2016, to January 17, 2017,
see https://www.attorneygeneral.gov/the-office/ (last visited September 8, 2020), which is not
during the relevant times alleged in the Amended Petition.
2
Initially, we observe that when ruling on preliminary objections, the Court
must accept all well-pleaded factual allegations as true, along with any inferences
reasonably deduced therefrom. Neely v. Dep’t of Corr., 838 A.2d 16, 19 n.4 (Pa.
Cmwlth. 2003). Preliminary objections should not be sustained unless it
“appear[s] with certainty that the law will not permit recovery and any doubt
should be resolved by a refusal to sustain them.” Id. With these standards in mind,
we now turn to the facts as alleged by Sherwood.
I. Amended Petition
A. Factual Allegations
Sherwood filed his initial Petition for Review on December 10, 2018, and
the Amended Petition on April 22, 2019. In the Amended Petition, Sherwood
alleges as follows. Sherwood is currently serving sentences for the following
criminal convictions from Northumberland County (County). On November 25,
2002, Sherwood was sentenced for convictions at Docket Numbers CP-49-CR-
0000633-2002 (Docket 633), CP-49-CR-0000634-2002 (Docket 634), and CP-49-
CR-0000827-2002 (Docket 827). Sherwood pled guilty at Docket 634 and was
sentenced “to pay costs, a $365.00 fine, fees, $175.00 in restitution[,] and [serve]
nine (9) [to] twenty-three (23) months.” (Amended (Am.) Petition ¶ 27.) At
Docket 633, Sherwood pled nolo contendere and was initially sentenced on that
date “to pay all costs, a $300.00 fine, fees and [serve] three (3) [to] twenty-three
(23) months on Count 2” and to “pay costs, a $365.00 fine, fees, $8,768 in
restitution and [serve] twelve[ ](12) months[’] probation on Count 5 to run
consecutive to” his conviction on Count 1 of Docket 634. (Id. ¶ 21.) Upon the
revocation of Sherwood’s probation on December 21, 2004, Sherwood was
resentenced at Docket 633 “on February 3, 2005[,] to ‘pay all costs, fines and fees
3
as previously imposed’ and [serve] fourteen . . . [to] twenty-four (24) months on
Count 5 to run consecutive to” Count 3 of CP-49-CR-0000126-2004 (Docket 126).
(Id. ¶ 22.) The sentencing court issued an amended order in Docket 633 on
February 28, 2005, sentencing Sherwood “to ‘pay all costs, fines and fees as
previously imposed’ and [serve] four[ ](4) [to] twelve[ ](12) months to run
consecutive to” Count 1 of Docket 126. (Id. ¶ 23.) Sherwood pled guilty at
Docket 827 and was sentenced “to pay costs, a $500.00 fine, $90.00 restitution[,]
and [serve] nine (9) [to] twenty-three (23) months.” (Id. ¶ 29.) Sherwood asserts
that his sentences at Dockets 633, 634, and 827, which occurred “on the same date,
at the same time, and by the same judge,” constitute “one sentencing event,
pursuant to DC-ADM 005, sec. 3.8.7.a,” meaning he was liable only for one Crime
Victims Compensation Fund (CVCF) fee at those dockets. (Id. ¶¶ 30, 53, 75, 78,
81.)
On April 6, 2004, Sherwood was sentenced at Docket 126, based on his
guilty plea, “to pay costs, a $300.00 fine[,] and [serve] twelve[ ](12) months[’]
probation on Count 1” and to “pay costs, a $500.00 fine[,] and [serve] twelve[
](12) months[’] probation on Count 3 to run consecutive to Count 1.” (Id. ¶ 32.)
Sherwood’s probation was revoked on December 21, 2004, and he was resentenced
“on February 3, 2005[,] to ‘pay all costs, fines[,] and fees as previously imposed’
and [serve] four[ ](4) [to] twelve[ ](12) months with credit consecutive to Count 1
on Count 1 and to ‘pay all costs, fines[,] and fees as previously imposed and
[serve] fourteen (14) [to] twenty-eight (28) months on Count 3.’” (Id. ¶ 33.) Also
as in Docket 633, the sentencing court issued an “Amended Order” on February
28, 2005, that “sentenced [Sherwood] to ‘pay all costs, fines[,] and fees as
4
previously imposed’ and [serve] twelve[ ](12) [to] twenty-four[ ](24) months on
Count 1 to run consecutive to . . . Count 3.” (Id. ¶ 34.)
Finally, Sherwood was tried and convicted at Docket Number CP-49-
0000342-2005 (Docket 342) and was sentenced to death on Count 1 on July 30,
2007. In addition, Sherwood was sentenced to “pay costs, a $2,500.00 fine[,] and
[serve] three-and-a-half[ ](3 ½) [to] seven[ ](7) years on Count 3 to run
consecutive to Count 1.” (Id. ¶ 37.)
Between April 2005, when Sherwood entered DOC’s custody, and April 6,
2017, no deductions were made from Sherwood’s inmate account other than a $60
CVCF fee in April 2008. (Id. ¶ 43.) On or about March 24, 2017, Sherwood
received a $15,000 settlement check to resolve an action he had filed in federal
court against Jeffrey A. Beard, DOC’s then-Secretary, and other DOC employees
in Sherwood v. Beard, (W.D. Pa., 11-CV-040). (Id. ¶¶ 45, 62.) The settlement
proceeds were “paid from funds appropriated from the Employee Liability Self-
Insurance Program (ELSIP)[,]” not “from funds appropriated by the General
Assembl[]y or by a political subdivision or an insurance policy purchased by the
Commonwealth or political subdivision.” (Id. ¶ 62 (quoting Section 6608 of the
Prison Litigation Reform Act (PLRA), 42 Pa.C.S. § 66082).) Over Sherwood’s
2
Section 6608 provides, in relevant part:
Monetary damages awarded to a prisoner in connection with prison conditions
litigation or paid in settlement of prison conditions litigation which is payable
from funds appropriated by the General Assembly or by a political subdivision or
an insurance policy purchased by the Commonwealth or political subdivision
shall first be used to satisfy any outstanding court orders requiring the prisoner to
pay restitution, costs, bail, judgments, fines, fees, sanctions or other court-
imposed amounts in connection with a criminal prosecution or sentence. Upon
receipt of a copy of an outstanding court order, the government party or person
designated by the government party shall deduct the full amount owed from the
(Footnote continued on next page…)
5
“adamant object[ions],” Beemer, by and through an agent of his office, deposited
those settlement monies into Sherwood’s inmate account. (Id. ¶¶ 48-49.) On
March 29, 2017, Sherwood requested Pauley, the SCI-Greene Accountant, to issue
a check for $5000 to his mother. (Id. ¶ 50.) Kennedy denied Sherwood’s request
asserting that a 10-day hold was required for all transactions over $3500, requiring
Sherwood to resubmit his request on April 7, 2017. (Id.)
Before Sherwood could resubmit his request, Pauley notified Sherwood on
April 4, 2017, of his “purported court-related monetary obligations” and provided a
listing of those obligations. (Id. ¶ 51.) This notice stated in relevant part:
You received a settlement check in the amount of $15,000 from the
Commonwealth of PA which was credited to your account on
3/24/1[73]. Pursuant to [Section 6608 of the PLRA] . . . . “By statute
in the Pennsylvania state PLRA, any settlement [sic] favor of
inmate regarding prison conditions litigation must go first to pay
off any outstanding restitution, costs, etc. associated with the
criminal sentence. We are specifically forbidden by statute to
take this into account in negotiations.” This is a separate statute
from [Section 9728(b)(5) of the Sentencing Code, which is commonly
referred to as] Act 84[, 42 Pa.C.S. § 9728(b)(5)].
(Am. Petition, Ex. 6-A (emphasis in original).) The notice included “some, but not
all, of the ‘outstanding’ court orders and other court documents . . . Pauley used to
determine [Sherwood’s] obligations,” including: $9838.99 from Docket 633;
_____________________________
(continued…)
remaining moneys and arrange to pay it directly to the person or entity owed in
accordance with Pennsylvania law.
42 Pa.C.S. § 6608.
3
The notice uses “3/24/16” as the date the settlement check was deposited in Sherwood’s
account; however, it is apparent from the Amended Petition’s averments and Sherwood’s inmate
account records that the check was deposited on March 24, 2017.
6
$252.92 from Docket 634; and $4113.27 from Docket 342, for a total of
$14,205.18 to be deducted from Sherwood’s inmate account in a lump sum. (Am.
Petition ¶ 51.) In addition to these obligations, the notice also stated “that the
following purported court-related obligations would be ‘put into the system and
deductions will occur pursuant to DC-ADM 005’” for $1608.07 from Docket 126
and $855.71 from Docket 827, for a total of $2463.78. (Id.) The notice attached
court orders and “Itemized Account of Fines, Costs, Fees, and Restitution”
(Itemized Accounts) certified by Dunkelberger for Dockets 633, 634, and 342. (Id.
¶ 59.) On April 7, 2017, the following amounts were deducted from Sherwood’s
prison account by Kennedy pursuant to “Act 84,” 42 Pa.C.S. § 9728(b)(5),4 not
Section 6608 or DC-ADM 005:5 $9798.99 (Docket 633), $4113.27 (Docket 634),
$815.71 (Docket 827), and $252.92 (Docket 634). (Id. ¶¶ 54-55.) Pauley sent
4
Act 84 provides, in relevant part:
(i) [DOC] shall make monetary deductions of at least 25% of deposits made to
inmate wages and personal accounts for the purpose of collecting restitution, costs
imposed under section 9721(c.1), filing fees to be collected under section 6602(c)
(relating to prisoner filing fees) and any other court-ordered obligation.
....
(iii) . . . . Any amount deducted shall be transmitted [by DOC] to the probation
department of the county or other agent designated by the county commissioners
of the county with the approval of the president judge of the county in which the
offender was convicted.
(iv) [DOC] . . . shall develop guidelines relating to its responsibilities under this
paragraph. . . .
42 Pa.C.S. § 9728(b)(5)(i), (iii), (iv).
5
DC-ADM 005 is DOC’s administrative policy that relates to the collection of inmate
debts, and the policy can be found at https://www.cor.pa.gov/About%20Us/Documents/DOC
%20Policies/005%20Collection%20of%20Inmate%20Debts.pdf (last visited September 8,
2020).
7
Sherwood a corrected version of the notice on April 10, 2017, reflecting that
certain CVCF fees had not been included in the amounts for Dockets 633, 634,
342, and 827, which increased the total amount to be deducted “pursuant to
[Section ]6608” for those cases to $14,980.89, and an additional amount would be
deducted “pursuant to DC-ADM 005” for the CVCF fee for Docket 126. (Id.
¶ 52.)
Sherwood corresponded with Pauley and Kennedy on April 12 and 13, 2017,
regarding his concerns about the deductions, including the lack of all the
outstanding court orders. (Id. ¶ 73.) Kennedy responded that these obligations
were Act 84 deductions despite the earlier notice identifying Section 6608 as
authorizing the deduction. (Id.) Sherwood filed a grievance on April 15, 2017,
challenging all of the deductions. (Id. ¶ 64.) After Sherwood filed his grievance,
additional deductions were made for CVCF fees at Dockets 633, 827, and 126.
(Id. ¶ 65.) Regular deductions were then made from Sherwood’s inmate account
whenever funds were deposited into the account, and deductions continued despite
his pending grievance. (Id. ¶¶ 66-67.) Sherwood filed additional grievances
regarding these continuing deductions and the additional CVCF fee deductions.
(Id. ¶¶ 81, 101.) Sherwood continued to send letters to various SCI-Greene
officials and employees explaining why the deductions were not authorized. (Id.
¶¶ 81, 85-86.) Sherwood’s grievances were denied, and those denials were upheld
all the way up through Varner, DOC’s Chief Grievance Officer.
B. Legal Claims
Sherwood asserts five counts based on the above facts. Count 1 seeks
declaratory judgment under the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-
7541, on the basis that the lump sum deductions and multiple CVCF fees for a
8
single sentencing event were not authorized by Act 84, Section 6608, DC-ADM
005,6 the various sentencing orders, or statutes purporting to impose fees, and,
therefore, violated a number of Sherwood’s rights under the United States and
Pennsylvania Constitutions. (Id. ¶¶ 153-60.) He asserts the unauthorized
deductions violate the Supremacy Clause; the ex post facto clauses found in Article
I, Section 10 of the United States Constitution and article I, section 17 of the
Pennsylvania Constitution;7 the separation of powers clause found in article V,
sections 1 and 10 of the Pennsylvania Constitution;8 and the due process clauses of
the Fifth and Fourteenth Amendments to the United States Constitution and article
I, section 1 of the Pennsylvania Constitution.9 Count 2 asserts that: DOC
Respondents acted negligently, either on their own part or through the actions of
those they supervised, in the care, custody, and control of Sherwood’s property, the
money in his inmate account; County Respondents acted negligently in calculating
6
Sherwood cites Section 3(A)(2)(e)(2) of DC-ADM 005, which authorizes the collection
of “[a]n initial deduction of 20% of any remaining account balance exceeding $10.00 to satisfy
other financial obligations set forth this policy . . . .” (Am. Petition, Ex. 1-C.)
7
Article I, section 17 of the Pennsylvania Constitution provides that “No ex post facto
law . . . shall be passed.” PA. CONST. art. I § 17. Article I, Section 10 of the United States
Constitution also forbids the passage of a law that would impose punishment for an act that was
not punishable at the time the act was committed or would impose additional punishment to that
then imposed. See Weaver v. Dep’t of Corr., 720 A.2d 178, 182 (Pa. Cmwlth. 1998).
8
Article V, sections 1 and 10 relate to the creation of the unified judicial system and the
Supreme Court’s “authority over all the courts.” PA. CONST. art. V, §§ 1, 10.
9
The due process clauses of the Fifth and Fourteenth Amendments to the United States
Constitution provide, respectively, that “[n]o person shall . . . be deprived of life, liberty, or
property, without due process of law,” “nor shall any State deprive any person of life, liberty, or
property, without due process of law.” U.S. CONST. amends. V, XIV. Article I, section 1 of the
Pennsylvania Constitution states “[a]ll men are born equally free and independent, and have
certain inherent and indefeasible rights, among which are those of enjoying and defending life
and liberty of acquiring, possessing and protecting property and reputation, and of pursuing their
own happiness.” PA. CONST. art. I, § 1.
9
Sherwood’s monetary obligations to include amounts he did not owe and retaining
the amounts transmitted from DOC; and Beemer acted negligently in allowing the
settlement proceeds to be deposited into Sherwood’s inmate account, which
ultimately resulted in the unlawful deductions by DOC Respondents. (Id. ¶¶ 161-
67.) Count 3 asserts that Respondents’ actions have violated the Supremacy
Clause of the United States Constitution10 because Section “6608 is preempted by
Federal Law[,] 18 U.S.C.[] §[ ]3626, [§] 807 . . . .” (Id. ¶ 169.) Count 4 maintains
that Sherwood’s due process rights guaranteed by the United States and
Pennsylvania Constitutions were violated by the deduction of his funds without
any pre-deprivation hearing/process or adequate, meaningful post-deprivation
process. (Id. ¶¶ 172-76.) Finally, Count 5 asserts that Respondents have violated
the separation of powers doctrine set forth in article V, sections 1 and 10 of the
Pennsylvania Constitution by not giving effect to the sentencing court’s orders that
contained “delay language” when they deducted as a lump sum costs and fees that
should have been delayed. (Id. ¶¶ 102, 177-80.) Sherwood seeks the return of the
amounts deducted from his account, as well as costs, attorney fees, interest, and
delay damages.
10
Article VI, Clause 2 of the United States Constitution provides:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
U.S. CONST. art. VI, cl. 2.
10
II. Preliminary Objections
Respondents have filed separate preliminary objections in the nature of
demurrers. DOC Respondents and County Respondents argue that the deductions
were properly made pursuant to Section 6608 of the PLRA and/or Act 84 and,
therefore, Sherwood has not stated any causes of action. Respondents assert that
Sherwood’s negligence claims are barred by either sovereign immunity or the act
commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act),
42 Pa.C.S. §§ 8541-8542, which DOC Respondents and Beemer11 argue can be
raised as a preliminary objection under these circumstances. Respondents contend
Sherwood has failed to state any claims for his alleged constitutional violations or
violations of any of DOC’s policies. DOC Respondents and Beemer maintain that
to the extent the claims against them are based on the actions of their subordinates,
rather than their own conduct, or on their participation in handling or responding to
Sherwood’s grievances, such conduct will not impose liability. Sherwood filed
preliminary objections to some of these preliminary objections.12 We will address
the preliminary objections in turn.13
11
On August 9, 2019, Sherwood filed a Praecipe to Enter Default Judgment against
Beemer on the basis that Beemer had not timely responded to the Amended Petition. However,
Beemer filed an application for extension of time to file a responsive pleading nunc pro tunc on
July 29, 2019, which the Court granted by order dated July 30, 2019. Beemer was given until
August 28, 2019, to file his preliminary objections, and he did so on August 28, 2019. Because
Beemer filed a responsive pleading in accordance with the Court’s July 30, 2019 order,
Sherwood’s Praecipe to Enter Default Judgment is denied.
12
Sherwood’s preliminary objections to County Respondents’ preliminary objections are
untimely, but he requests that they be accepted as timely because County Respondents’
preliminary objections, filed with the Court and mailed to him on May 21, 2017, were not
forwarded to him when they arrived at SCI-Greene, but were returned to sender as being “Unable
to Forward.” (Sherwood’s Preliminary Objections to County Respondents’ Preliminary
Objection ¶ 2.) Because of this, Sherwood maintains, he did not receive the preliminary
objections until June 17, 2019, after the deadline to file a responsive pleading had passed. (Id.
(Footnote continued on next page…)
11
III. Discussion
A. Authority for Deductions - Section 6608 and Act 84
DOC Respondents and County Respondents14 argue that Sherwood fails to
state any claims because the deductions were authorized under Section 6608 and/or
Act 84. They argue that the exhibits to the Amended Petition establish that costs,
fees, fines, and restitution were imposed at each of the criminal dockets, as well as
the amounts owed at each docket. According to DOC Respondents, “it does not
appear that [Sherwood] is challenging the accuracy of the clerk of
court/prothonotary’s accounting of the amount of money he owes to the
county . . . .” (DOC Respondents’ Brief (Br.) at 15.) Instead, DOC Respondents
_____________________________
(continued…)
¶ 3.) County Respondents have not objected to this request or otherwise indicated they would be
prejudiced by accepting Sherwood’s filing as timely. Therefore, Sherwood’s preliminary
objections to County Respondents’ preliminary objections are accepted as timely.
13
County Respondents also demurred that injunctive relief is not available here because
Sherwood has an adequate remedy at law through the prison grievance system and post-
conviction relief within the sentencing court. In his preliminary objections, Sherwood objects to
these allegations because he did not raise a claim for injunctive relief. Our review of the
Amended Petition supports Sherwood’s preliminary objection, and, therefore, we sustain
Sherwood’s preliminary objection to that portion of County Respondents’ preliminary
objections.
14
Sherwood has filed an Application for Relief (Application) asking the Court to
essentially strike County Respondents’ Brief in Support of their Preliminary Objections because
it was untimely filed. The basis for his Application is that, by order dated September 25, 2019,
this Court directed that all Respondents’ briefs in support of their preliminary objections be filed
on or before October 25, 2019. Without filing a request for an extension or providing an
explanation, County Respondents did not file their brief until October 30, 2019, thereby making
it untimely. Sherwood argues that, because the due date on his brief was also established in that
Court Order, and was not delayed by the County Respondents’ late filing, he was prejudiced.
County Respondents did not file a response to Sherwood’s Application. Because of Sherwood’s
prejudice, we will grant the Application and strike County Respondents’ brief in support of their
preliminary objections. The Court will only consider that which is set forth in County
Respondents’ preliminary objections themselves.
12
argue, Sherwood is objecting on the basis that some of the obligations are subject
to “delay language” because certain sentences are to run consecutively to other
sentences, and, therefore, are not due until the prior sentence is complete. DOC
Respondents assert Act 84 does not contain this limitation in its authorizing
language, and that DOC’s Policies, such as DC-ADM 005 relied upon by
Sherwood, do not create any rights in inmates. Further, DOC Respondents
maintain that not all of the costs imposed required a separate court order to be
deducted, Sherwood has not adequately alleged facts to support his claim that some
of the sentences constituted a single sentencing event, and Sherwood was provided
the pre-deduction notice required by Section 6608 and Act 84.
Sherwood responds that he has stated a claim for declaratory relief based on
the allegations that the deductions are improper because there is a “lack of
outstanding court order(s) for such costs, etc., not all said costs, fines, fees and/or
restitution were legitimately owed and/or actually ordered,” the statutes upon
which the costs were calculated “were repealed, found unconstitutional or were ex
post facto laws,” or the costs were miscalculated, waivable, or not yet due as they
were imposed consecutively to other court orders. (Sherwood’s Br. at 4-5, 7.) He
further asserts that any deductions from the settlement monies pursuant to Section
6608 were improper because the settlement proceeds were paid from the ELSIP,
not from Commonwealth funds or a Commonwealth insurance plan, and, therefore,
are exempt from attachment. Finally, Sherwood asserts that, even if the deductions
were permitted, the lump sum deductions and the imposition of multiple CVCF
fees for Dockets 633, 634, and 827, were contrary to Section 3 of DOC’s Policy
DC-ADM 005, which limits Act 84 deductions to 20% of an inmate account
13
balance and provides for the imposition of only one CVCF fee for a single
sentencing event.
Section 6608 authorizes DOC to deduct certain fines, costs, and fees from
certain monetary settlements an inmate may receive. In particular, Section 6608
provides that a monetary settlement that an inmate may receive from prison
conditions litigation be first used to satisfy any outstanding court orders mandating
an inmate to pay restitution, costs, fees, fines, and other court-imposed costs. 42
Pa.C.S. § 6608. However, Sherwood alleges that, by its terms, Section 6608 is
applicable to and allows deductions from only those settlement monies that were
“payable from funds appropriated by the General Assembly or a political
subdivision or by an insurance policy purchased by the Commonwealth or political
subdivision.” Id. Here, Sherwood asserts that the settlement monies were not paid
in this fashion, but by the ELSIP, which “was purchased by the individual
defendants themselves.” (Am. Petition ¶ 62.) This is a factual allegation that we
must accept as true at this stage of these proceedings, Neely, 838 A.2d at 19 n.4,
and none of Respondents’ preliminary objections challenge Sherwood’s allegation
that Section 6608 is inapplicable and cannot provide the legal authority for the
deductions for this reason. Thus, we will not consider Section 6608 as providing
such authorization at this stage of the litigation.
Act 84 authorizes DOC to deduct restitution, any other court-ordered
obligations, or costs imposed under Section 9721(c.1) of the Sentencing Code15
15
Section 9721(c.1) was added by Section 2 of the Act of October 27, 2010, P.L. 949.
While Section 9721(c.1) provides, in pertinent part, that “[i]n the event the court fails to issue an
order for costs pursuant to section 9728, costs shall be imposed upon the defendant under this
section” and that “[n]o court order shall be necessary for the defendant to incur liability for costs
under this section,” 42 Pa.C.S. § 9721(c.1), Respondents do not rely on this provision to support
the deductions from Sherwood’s inmate account.
14
from an inmate’s prison account. 42 Pa.C.S. § 9728(b)(5). There are some
statutorily mandated costs or fees that need not be included in a court order in
order to be valid, including costs under Section 1101(e) of the Crime Victims
Act,16 which states that “[n]o court order shall be necessary in order for the
defendant to incur liability for costs under [that] section.” 18 P.S. § 11.1101(e).
Statutorily mandated costs are not waivable and can be deducted from an inmate’s
account without a court order. Saxberg v. Pa. Dep’t of Corr., 42 A.3d 1210, 1215-
16 (Pa. Cmwlth. 2012); Spotz v. Commonwealth, 972 A.2d 125, 134 (Pa. Cmwlth.
2009). Waivable costs, on the other hand, must be expressly ordered by the
sentencing court to be collectible. Spotz, 972 A.2d at 134.
With regard to the preliminary objections challenging Sherwood’s
averments based on there being “delay language” in the sentencing orders, that the
deductions violated DOC’s Policy DC-ADM 005 by exceeding the 20% cap
imposed therein on deductions or by imposing more than one CVCF fee for a
single sentencing event, we agree that these averments do not state a claim.
Sherwood bases his “delay language” claims on the sentencing court’s use of the
term “consecutive” in the various sentencing orders. A “sentencing court’s orders
govern [DOC’s] collections from inmate accounts,” and any “delay language”
contained in such orders that clearly and expressly “defer[s] an inmate’s financial
obligations to a later date or event,” “like parole or release,” must be given effect.
Freemore v. Dep’t of Corr., __ A.3d __, __ (Pa. Cmwlth., No. 536 M.D. 2019,
filed May 1, 2020), slip op. at 9-10, 12-13. However, language in an order that
directs sentences to be served consecutively does not fall within the type of “delay
language” that defers an inmate’s payment of financial obligations to a later date.
16
Act of November 24, 1998, P.L. 882, as amended, 18 P.S. §§ 11.101-11.5102.
15
Id. at __, slip op. at 13-14. This is particularly true where one of the sentences
involved is, as here, a sentence of death. Id. at __, slip op. at 14 (citation omitted).
As for Sherwood’s contention that DC-ADM 005 limits any deductions to
20% or the number of CVCF fees for one sentencing event, it is well settled that
DOC’s policies create no rights for inmates. Bullock v. Horn, 720 A.2d 1079,
1082 n.6 (Pa. Cmwlth. 1998). Notably, while Sherwood asserts other bases for
why the deduction of certain costs and restitution were improper, he relies only on
the allegations regarding the delay language and violation of the 20% cap to
challenge the deduction of the imposed fines in the amount of $4830. Because it
“appear[s] with certainty that the law will not permit recovery,” Neely, 838 A.2d at19 n.4, we sustain DOC Respondents’ and County Respondents’ preliminary
objections to these claims, and Sherwood’s Amended Petition is dismissed to the
extent it asserts that the deductions were improper due to being premature or in
violation of DC-ADM 005, and that the deduction of fines in particular was
improper.
However, with regard to Sherwood’s other claims challenging the
deductions as being unauthorized, we overrule DOC Respondents’ and County
Respondents’ preliminary objections. Although the Amended Petition does
reference court orders that imposed fines and costs, a fact DOC Respondents
contend distinguishes this matter from Rega v. Pennsylvania Department of
Corrections (Pa. Cmwlth., No. 244 M.D. 2017, filed January 31, 2018), wherein
we overruled preliminary objections because the petitioner alleged there were no
such court orders, (DOC Respondents’ Br. at 17 n.3), Sherwood argues that some
of the amounts deducted, such as sheriff’s fees, costs of transportation, and
restitution at Docket 633, were not imposed in those court orders or relevant
16
amended court orders. (Am. Petition ¶¶ 25, 40, 61, 100, 110.) Further, Sherwood
maintains that some of the alleged statutorily mandated costs and/or fees were
improperly deducted because the relevant statutes were repealed, found
unconstitutional, or were not in effect when he committed his crimes, and,
therefore, could not support the deductions from his inmate account. (Id. ¶¶ 41-42,
78, 109, 156-57, 163-64.) DOC Respondents and County Respondents do not
respond to these allegations, which challenge not only the authority to make all of
the deductions in the first instance, but also the accuracy of the deductions actually
made. Nor do they otherwise identify which costs or fees were statutorily
mandated, non-waivable costs that could be deducted based on when Sherwood
was convicted. Given the state of the record and the lack of response to many of
Sherwood’s allegations, we cannot determine whether he has failed to state a claim
on these bases. Accordingly, the preliminary objections challenging these claims
are overruled and answers to these claims shall be filed within 30 days of the filing
of this decision.
B. Immunity
All Respondents argue that Sherwood’s negligence claims are barred by
either sovereign immunity or governmental immunity. DOC Respondents and
Beemer assert these defenses can be raised as preliminary objections under these
circumstances. On the merits, Respondents argue Sherwood’s claims, which are
based on their alleged negligence relating to the deduction of funds from his
inmate account, do not fall within any of the exceptions to sovereign or
governmental immunity and, therefore, Sherwood fails to state a claim upon which
relief can be granted. Sherwood filed preliminary objections to these preliminary
17
objections asserting these affirmative defenses may be raised only as new matter
and not as preliminary objections pursuant to Pennsylvania Rule of Civil Procedure
1030, Pa.R.C.P. No. 1030. On the merits, Sherwood argues he has stated a claim
for negligence because Respondents handled his property without following and/or
enforcing the law and the sentencing courts’ orders and he does not allege any
intentional conduct or an intentional taking by Respondents. (Sherwood’s Answer
to DOC Respondents’ Preliminary Objections ¶¶ 49, 54-56.)
We first address Sherwood’s preliminary objections to Respondents’
preliminary objections. Rule of Civil Procedure 1030(a) provides that “all
affirmative defenses including . . . immunity from suit . . . shall be pleaded in a
responsive pleading under the heading ‘New Matter.’” Pa.R.C.P. No. 1030(a).
However, Section 6602(e)(2) of the PLRA allows a court to “dismiss prison
conditions litigation at any time, . . . if the court determines any of the following:
[that] the defendant is entitled to assert a valid affirmative defense, including
immunity . . . .” 42 Pa.C.S. § 6602(e)(2) (emphasis added). As the Amended
Petition is “[a] civil proceeding arising in whole or in part under Federal or State
law with respect to . . . the effects of actions by a government party on the life of
an individual confined in prison,” it qualifies as prison conditions litigation.
Section 6601 of the PLRA, 42 Pa.C.S. § 6601. Further, even in the absence of
Section 6602(e)(2), “courts have permitted [a] limited exception to [Rule of Civil
Procedure 1030(a)] and have allowed parties to raise the affirmative defense of
immunity as a preliminary objection if the defense is clearly applicable on the face
of the [petition for review].” Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth.
2017) (internal quotation marks and citation omitted). Accordingly, Respondents
18
can raise these affirmative defenses as preliminary objections, and we overrule
Sherwood’s preliminary objections in this regard.
Pursuant to article I, section 11 of the Pennsylvania Constitution,17 the
General Assembly declared that “the Commonwealth, and its officials and
employees acting within the scope of their duties, shall continue to enjoy sovereign
immunity and official immunity and remain immune from suit except as the
General Assembly shall specifically waive the immunity.” 1 Pa.C.S. § 2310. This
is reiterated in Section 8521 of the Judicial Code, part of which is commonly
known as the Sovereign Immunity Act, 42 Pa.C.S. § 8521. This Court determines
whether a Commonwealth employee is protected by sovereign immunity by
considering whether the “employee was acting within the scope of his or her
employment; whether the alleged act which causes injury was negligent and
damages would be recoverable but for the availability of the immunity defense;
and whether the act fits within one of the nine exceptions to sovereign immunity.”
La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992). Section 8522(b)
of the Sovereign Immunity Act sets forth nine situations in which a
Commonwealth party may be liable: (1) vehicle liability; (2) medical-professional
liability; (3) care, custody, or control of personal property; (4) Commonwealth real
estate, highways, and sidewalks; (5) potholes and other dangerous conditions; (6)
17
Article I, section 11 of the Pennsylvania Constitution states:
All courts shall be open; and every man for an injury done him in his lands,
goods, person or reputation shall have remedy by due course of law, and right and
justice administered without sale, denial or delay. Suits may be brought against
the Commonwealth in such manner, in such courts and in such cases as the
Legislature may by law direct.
PA. CONST. art. I, § 11.
19
care, custody, or control of animals; (7) liquor store sales; (8) National Guard
activities; and (9) toxoids and vaccines. 42 Pa.C.S. § 8522(b). The Tort Claims
Act similarly provides that local agency employees are immune from liability for
injuries caused by negligent acts committed within the scope of their offices or
duties. Section 8542(a)(2) of the Tort Claims Act, 42 Pa.C.S. § 8542(a)(2). The
Tort Claims Act provides eight exceptions to immunity: (1) vehicle liability;
(2) care, custody, or control of personal property; (3) real property; (4) trees, traffic
controls, and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks;
and (8) care, custody, or control of animals. 42 Pa.C.S. § 8542(b). These
exceptions are to “be narrowly construed to effect the General Assembly’s intent to
insulate state and local agencies from tort liability.” Williams v. Phila. Hous.
Auth., 873 A.2d 81, 86 (Pa. Cmwlth. 2005).
Of the exceptions to immunity, the only ones potentially applicable to
Sherwood’s negligence claims are those related to the care, custody, or control of
personal property. 42 Pa.C.S. §§ 8522(b)(3), 8542(b)(2). While the
Commonwealth and its employees and officials may be held liable for damage to
or the negligent handling of an inmate’s personal property, there is no liability for
the taking of that property. Dep’t of Corr. v. Tate, 133 A.3d 350, 359-60 (Pa.
Cmwlth. 2016); Goodley v. Folino (Pa. Cmwlth., No. 2376 C.D. 2010, filed July
22, 2011), slip op. at 8.18 Although Tate and Goodley involved the personal
property exception under the Sovereign Immunity Act, their rationale applies
equally to the personal property exception found in the Tort Claims Act because
18
Goodley is an unreported opinion of this Court that is cited for its persuasive value, not
as binding precedent, pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P.
126(b), and Section 414(a) of the Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a).
20
both “immunity statutes deal with the same subject matter [and] we read them
consistently.” Jones v. Se. Pa. Transp. Auth., 772 A.2d 435, 440 (Pa. 2001).
Sherwood argues he is not alleging that his property was intentionally taken,
but that his property was negligently handled due to Respondents disregarding the
law and the sentencing courts’ orders in calculating the deductions and deducting
the monies and then in handling his grievances challenging those deductions.
Sherwood’s negligence claims are based on Respondents’ actions relating to the
deduction of money from Sherwood’s inmate account, and to “deduct” means “to
take away (an amount) from a total.”19 Thus, it is the taking of Sherwood’s
personal property that is in dispute. Although Sherwood claims not to be averring
that this taking was intentional, his allegations contend that Respondents were
disregarding or ignoring the relevant statutes, DOC’s administrative policies,
sentencing orders, and the United States and Pennsylvania Constitutions in taking
monies from his account, in resolving the grievances challenging those deductions,
and in calculating the amounts owed on which the deductions were based.
“Disregard” means “to pay no attention to” or to “treat as unworthy of regard or
notice.”20 Such allegations speak to intentional, not negligent, conduct. As these
claims are based on intentional conduct, immunity precludes liability for that
conduct. Further, we do not view Sherwood’s allegations that Beemer negligently
allowed the monies to be deposited into Sherwood’s inmate account, which led to
the alleged improper deductions, to fall within these exceptions. Beemer observes,
and we agree, that there are no allegations that he was ever in possession or control
19
Deduct, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/
deduct (emphasis added) (last visited September 8, 2020).
20
Disregard, Merriam-Webster Dictionary, https://www.merriam-webster.com/
dictionary/disregard (last visited September 8, 2020).
21
of Sherwood’s property. Therefore, Respondents are immune from those
negligence claims. Because it “appear[s] with certainty that the law will not permit
recovery” on these claims, Neely, 838 A.2d at 19 n.4, we sustain Respondents’
preliminary objections and dismiss Count 2 of Sherwood’s Amended Petition.
C. Constitutional and DOC Policy Claims
Respondents contend Sherwood has failed to state any claims for his alleged
constitutional violations or violations of any of DOC’s policies. In Counts 3
through 5 of the Amended Petition, Sherwood asserts violations of the Supremacy
Clause, due process, and the separation of powers doctrine, respectively. In
addition, throughout the Amended Petition, Sherwood claims Respondents have
violated various DOC policies. Respondents contend that none of these allegations
state a claim upon which relief can be granted and, therefore, Sherwood’s claims in
these regards must be dismissed. Sherwood contends he has stated valid claims
based on Respondents’ improper actions, which violate not only the United States
and Pennsylvania Constitutions, but also the Department’s Administrative Policies.
Initially, as we stated previously in response to Sherwood’s claim that
Respondents violated Section 3 of DOC’s Policy DC-ADM 005, DOC’s policies
create no rights for inmates. Bullock, 720 A.2d at 1082 n.6. Thus, to the extent
Sherwood asserts claims based on Respondents allegedly violating DOC’s policies,
Respondents’ preliminary objections thereto are sustained and those claims are
dismissed.
In Count 3, Sherwood claims that Section 6608 is preempted by federal law
and Respondents’ reliance thereon violates the Supremacy Clause. However, the
United States Supreme Court has held that the Supremacy Clause “does not create
22
rights enforceable under [42 U.S.C.] § 1983.”21 Golden State Transit Corp. v. City
of Los Angeles, 493 U.S. 103, 107-08 (1989). Therefore, it “appear[s] with
certainty that the law will not permit recovery” on this claim, Neely, 838 A.2d at19 n.4, and we sustain Respondents’ preliminary objections and dismiss Count 3 of
the Amended Petition.
In Count 4, Sherwood alleges due process violations based on Respondents’
failure to provide him with any pre-deprivation due process or with adequate,
meaningful post-deprivation due process based on how his grievances were
handled.22 He relies on the standard set forth in Montanez v. Secretary
Pennsylvania Department of Corrections, 773 F.3d 472 (3d Cir. 2014), to support
his claimed due process violations. Respondents contend Sherwood received the
process due because he received notice of what he owed and multiple opportunities
to challenge the deductions through DOC’s grievance system.
In Bundy v. Wetzel, 184 A.3d 551, 558-59 (Pa. 2018), our Supreme Court
adopted the Montanez standard and held that due process for Act 84 deductions is
21
Section 1983 provides, in part:
Every person who, under color of any statute, ordinance, regulation, custom or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person with the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress[.]
42 U.S.C. § 1983.
22
Although Sherwood cites both the Fifth and Fourteenth Amendments to the United
States Constitution as the bases for his due process claims, the Fifth Amendment is not
applicable because it affords enforceable rights only against the federal government and its
actors, not state or local governments and their actors. Moore v. Richman, 797 F. Supp. 2d 572,
580 (W.D. Pa. 2011).
23
satisfied where DOC, prior to the first deduction, provides notice “inform[ing] the
inmate of the total amount of his financial liability as reflected in his sentencing
order,” and of DOC’s “policy concerning the rate at which funds will be deducted
from his account and which funds are subject to deduction,” and “give[s] the
inmate a reasonable opportunity to object to the application of [DOC’s] policy to
his account.” Bundy does not identify any specific time period prior to the first
deduction that the notice must be provided to the inmate. Applying this standard
here, we agree Sherwood has not stated a claim for a violation of his due process
rights.
Here, Sherwood was aware of DOC’s Policy, as he attached a portion
thereof to the Amended Petition. More importantly, prior to the first deduction
from his inmate account on April 7, 2017, DOC sent Sherwood a notice on April 4,
2017, setting forth the amounts owed and attaching copies of the court orders and
Itemized Accounts supporting the deductions. (Am. Petition, Exs. 6-A—6-I.)
DOC sent another notice on April 10, 2017, reflecting that the amounts identified
in the April 4, 2017 notice had not included the CVCF fees, which were not
deducted from Sherwood’s account until May 2, 2017. (Id., Exs. 7, 10.) Thus,
Sherwood received the requisite notice of his financial liabilities prior to the first
deduction. And, while these notices did not expressly indicate how Sherwood
could challenge the deductions, it is undisputed that Sherwood availed himself of
DOC’s grievance procedure, during which he had the opportunity to object to the
deductions. He filed his first grievance challenging the deductions on April 15,
2017, and continued to file grievances regarding other deductions thereafter. (Id.,
Exs. 27-A, 36-A, 44-A—B, 52-A—B, 83-A, 89-A.) An initial response to the
April 15, 2017 grievance was issued on May 8, 2017, denying the grievance. (Id.,
24
Ex. 28.) The deductions were suspended as of August 23, 2017, pending the
resolution of Sherwood’s final level appeal. (Id., Ex. 46.) These grievances
ultimately culminated in decisions by Varner/Moore that the deductions were
authorized either by Section 6608 or Act 84, that the amounts of the deductions
were correct, or that the prior grievance decisions adequately addressed the
grievances. (Id., Exs. 35-A, 35-B, 42, 50, 59, 88, 93.) Our Court has held “that
[DOC]’s grievance procedure . . . is a constitutionally sufficient remedy with
respect to inmates’ claims that [DOC] unlawfully withheld and/or confiscated
personal property.” Shore v. Pa. Dep’t of Corr., 168 A.3d 374, 383 (Pa. Cmwlth.
2017). For these reasons, it “appear[s] with certainty that the law will not permit
recovery” on this claim, Neely, 838 A.2d at 19 n.4, and we sustain Respondents’
preliminary objections and dismiss Count 4 of the Amended Petition.
Finally, in Count 5, Sherwood contends that the deductions have violated the
separation of powers doctrine because Respondents have not given effect to the
delay language contained in the sentencing courts’ orders. Consistent with this
Court’s rejection of separation of powers arguments related to DOC’s deductions
from inmate accounts in the past, we do so again here. Richardson v. Pa. Dep’t of
Corr., 991 A.2d 394, 396 (Pa. Cmwlth. 2010); Boyd v. Pa. Dep’t of Corr., 831
A.2d 779, 783 n.8 (Pa. Cmwlth. 2003), aff’d, 886 A.2d 222 (Pa. 2005). Further, as
explained above, language in a sentencing order directing that sentences be served
consecutively is not the type of delay language that precludes the deductions made
here. Freemore, __ A.3d at __, slip op. at 13-14. Accordingly, we sustain the
preliminary objections and dismiss Count 5 of the Amended Petition.
25
D. Respondeat Superior and Vicarious Liability
DOC Respondents and Beemer maintain that to the extent the claims against
them are based on the actions of their subordinates, rather than their own conduct,
the doctrines of vicarious liability or respondeat superior will not impose liability
under the PLRA. DOC Respondents further argue that issuing or reviewing a
grievance decision alone does not give rise to the requisite level of personal
involvement that imposes liability. Sherwood responds that he has sufficiently
alleged personal action by all DOC Respondents and Beemer and these preliminary
objections should be overruled.
Our Supreme Court has explained that “a public servant who has not himself
engaged in actionable conduct” and “those in the ‘chain of command’” are
“protect[ed] from the possibility of suit” under “any theory of vicarious
responsibility.” DuBree v. Commonwealth, 393 A.2d 293, 295 (Pa. 1978)
(plurality opinion); Shick v. Wetzel (Pa. Cmwlth., No. 583 M.D. 2016, filed Sept.
10, 2018), slip op. at 5. Further, a respondent “‘must have personal involvement in
the alleged wrongs[;] liability cannot be predicated solely on the operation of
respondeat superior. . . . [P]ersonal involvement can be shown through allegations
of personal direction or actual knowledge and acquiescence.’ Allegations of
participation or actual knowledge and acquiescence, however, must be made with
appropriate particularity.” Bush v. Veach, 1 A.3d 981, 986 (Pa. Cmwlth. 2010)
(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). The
participation in or an alleged inappropriate response to a grievance does not
establish the requisite level of personal involvement to impose liability. Martin v.
Giroux (Pa. Cmwlth., No. 1934 C.D. 2016, filed May 26, 2017), slip op. at 8;
Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006).
26
With regard to Beemer’s actions leading to the deductions, Sherwood alleges
that “Beemer, through and by an agent of his office, did deposit the settlement of
$15,000 into [Sherwood’s] prison account” and “directly and/or through and by an
agent, caused [Sherwood’s] settlement to be deposited into [Sherwood’s] prison
account.” (Am. Petition ¶¶ 49, 113.) We agree with Beemer that these allegations
do not allege personal action by him with sufficient particularity that would make
Beemer liable on theories other than respondeat superior or vicarious liability.
Therefore, Sherwood did not state a claim against Beemer. Accordingly, we
sustain Beemer’s preliminary objection based on his lack of personal involvement
and dismiss him as a party from this litigation.
With regard to DOC Respondents, they argue that Sherwood’s allegations
against Wetzel, Gilmore, Patterson, Pauley, and Kennedy/Carter are based on their
supervisory authority over their subordinates, rather than their personal actions.
Reviewing the Amended Petition, we agree as to Wetzel and Gilmore and,
therefore, the Amended Petition does not state viable claims against these
respondents. (Id. ¶¶ 4, 6, 97-98, 116-18.) But we disagree as to Patterson, Pauley,
and Kennedy/Carter, whose personal involvement in the alleged unauthorized
deductions from Sherwood’s account was more specifically pled. (Id. ¶¶ 7-10, 50-
55, 61, 64, 70-71, 73, 75, 78, 85-86, 120-22.) DOC Respondents further argue that
Sherwood’s allegations as to Varner, Moore, Shawley, Greenawalt, Wynn, and
Andreetti are premised on their handling of or responding to Sherwood’s
grievances. (Id. ¶¶ 12-13, 17-20, 79-82, 84, 87-91, 95-96, 124-25, 132-36.) We
agree, and because such conduct does not provide the necessary level of personal
involvement that will give rise to liability, Martin, slip op. at 8; Brooks, 167 F.
App’x at 925, the Amended Petition has not stated viable claims against them.
27
Finally, Sherwood’s allegations against Perez are based on both his general
supervisory authority as chief counsel and his overview of the grievance process,
neither of which provide a viable claim against Perez. (Am. Petition ¶¶ 11, 93-94,
123.) Accordingly, this preliminary objection is sustained as to Wetzel, Gilmore,
Perez, Varner, Moore, Shawley, Greenawalt, Wynn, and Andreetti, and they are
dismissed from this litigation.
IV. Conclusion
For the foregoing reasons, we hold as follows. Sherwood’s Application for
Relief seeing to strike County Respondents’ brief as untimely is granted, and the
brief is stricken. Sherwood’s Praecipe to Enter Default Judgment against Beemer
is denied. Sherwood’s preliminary objections, which are accepted as timely, to
County Respondents’ preliminary objection based on Sherwood’s failing to state a
claim for injunctive relief is sustained, and County Respondents’ preliminary
objection on that basis is dismissed. Sherwood’s other preliminary objections to
Respondents’ preliminary objections are overruled. Respondents’ preliminary
objections asserting sovereign or governmental immunity to Count 2 are sustained,
and Count 2 is dismissed. Respondents’ preliminary objections in the nature of
demurrers to Counts 3, 4, and 5 are sustained, and those Counts are dismissed.
Beemer’s and DOC Respondents’ preliminary objections based on a lack of the
required personal involvement, Sherwood’s reliance on respondeat superior or
vicarious liability, and/or the handling of or responding to Sherwood’s grievances
are sustained as to Beemer, Wetzel, Gilmore, Perez, Varner, Moore, Shawley,
Greenawalt, Wynn, and Andreetti, and they are dismissed as parties from this
litigation. However, these preliminary objections are overruled as to Patterson,
Pauley, and Kennedy/Carter. Finally, Respondents’ preliminary objections as to
28
Count 1 are sustained to the extent that Sherwood has not stated any claims upon
which relief can be granted based on the allegations that the deductions were
improper because they violated delay language found in the sentencing courts’
orders or violated any DOC policy, and those claims, including the challenges to
the deduction of the fines, are dismissed. The remainder of Respondents’
preliminary objections relating to Count 1 based on Sherwood’s claims that the
deductions were not authorized by Section 6608, Act 84, that the statutes imposing
the costs or fees are inapplicable, and/or that the deductions were improperly
calculated are overruled. The remaining Respondents shall file an answer to the
remaining allegations relevant to Count 1 within 30 days of the filing of this
opinion.
_____________________________________
RENÉE COHN JUBELIRER, Judge
29
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brentt Sherwood, :
Petitioner :
:
v. : No. 767 M.D. 2018
:
Pennsylvania Department of :
Corrections; John E. Wetzel; :
Bruce Beemer; Robert Gilmore; :
Karen Patterson; Tiffany Pauley; :
Joan Kennedy; J. Carter; Theron R. :
Perez; Dorina Varner; Keri Moore; :
Justin Dunkelberger; Jamie Saleski; :
Sarah Snyder; Tracy Shawley; :
Crystal Greenawalt; Leslie Wynn; :
Mindy Adreetti; John/Jane Doe :
(1-99), :
Respondents :
ORDER
NOW, September 9, 2020, the Application for Relief filed by Brentt
Sherwood (Sherwood) seeking to strike the brief in support of Respondents Justin
Dunkelberger, Jamie Saleski, and Sarah Snyder’s (County Respondents)
preliminary objections is GRANTED, and the brief is stricken. Sherwood’s
Praecipe for Default Judgment against Bruce Beemer (Beemer) is DENIED.
Sherwood’s preliminary objections are accepted as timely. Sherwood’s
preliminary objection to County Respondents’ preliminary objections based on
Sherwood failing to state a claim for injunctive relief is SUSTAINED, and County
Respondents’ preliminary objection in that regard is DISMISSED. Sherwood’s
preliminary objections to the remaining preliminary objections of County
Respondents, and the preliminary objections of Beemer, and the Pennsylvania
Department of Corrections (DOC), John E. Wetzel, Robert Gilmore, Karen
Patterson, Tiffany Pauley, Joan Kennedy, J. Carter, Theron R. Perez, Dorina
Varner, Keri Moore, Tracy Shawley, Crystal Greenawalt, Leslie Wynn, and Mindy
Andreetti, (collectively, DOC Respondents), are OVERRULED. In accordance
with the foregoing opinion, the preliminary objections in the nature of a demurrer
to Counts 2, 3, 4, and 5, as well as claims in the Amended Petition asserting
violations of DOC Administrative Policies by DOC Respondents, Beemer, and/or
County Respondents (collectively, Respondents) are SUSTAINED, and those
counts and claims are DISMISSED. Further, as set forth in the foregoing opinion,
the preliminary objections challenging the claims against various respondents
based on their being liable under the doctrines of respondeat superior or vicarious
liability for their actions in handling or responding to Sherwood’s grievances are
SUSTAINED IN PART and OVERRULED IN PART, and the following are
dismissed as parties from this litigation: Beemer, Wetzel, Gilmore, Perez, Varner,
Moore, Shawley, Greenawalt, Wynn, and Andreetti. Finally, as to Count 1,
Respondents’ preliminary objections are SUSTAINED IN PART and
OVERRULED IN PART as set forth in the foregoing opinion. The remaining
Respondents are directed to file an answer to the remaining allegations relevant to
Count 1 within 30 days of this Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge