KELVIN SUTTON AND CLIFFORD SMITH, ON BEHALF OF THE INMATE GENERAL POPULATION, S.C.I., FRACKVILLE Appellant
TABB BICKELL, MICHAEL WENEROWICZ, AND THE PENNSYLVANIA DEPARTMENT OF CORRECTIONS APPEAL OF: KELVIN SUTTON
SUBMITTED: November 20, 2019
from the Order of the Commonwealth Court at No. 314 MD 2018
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
SAYLOR, CHIEF JUSTICE
direct appeal, we address whether the Department of
Corrections acted permissibly in mandating that certain types
of boots possessed by inmates be surrendered or sent home.
February 2018, a Pennsylvania Department of Corrections
prison guard died after an inmate attacked him and kicked him
in the head with Timberland boots. Later that month, the
Department suspended commissary sales of such boots.
Thereafter, in March 2018, Tabb Bickell, Executive Deputy
Secretary of Institutional Operations, Michael Wenerowics,
Deputy Secretary of the Eastern Region, and Trevor Wingard,
described as "A/Deputy Secretary Western Region,"
issued a memorandum to all inmates stating that, effective
immediately, Timberland and Rocky boots could no longer be
purchased by prisoners. The memorandum added:
Inmates that have these boots . . . in their possession will
have until Friday, May 11, 2018, to make arrangements to send
them home or turn them in. Inmate boot orders that were
placed prior to the suspension of boot sales on February 21,
2018, and that have not been received/issued will be returned
to the vendor upon receipt. The inmate will receive a full
refund for the cost of the boots. Any boots found after
Friday, May 11, 2018, will be considered contraband.
* * * * *
Inmates [for whom] state issued boots are unavailable . . .
due to sizing and have been issued a boot or walking shoe in
place of the standard issue state brown boots may retain
those issued boots/shoes unless the boots are Timberland or
Rocky boots. If they are Timberland or Rocky boots, they will
be replaced with a security-approved shoe or boot.
The Department will be working . . . in the coming weeks to
offer a significant increase in the variety of sneakers being
Department of Corrections Memorandum to All Inmates, dated
March 26, 2018 (emphasis omitted) (the
an inmate at SCI-Frackville, filed papers in the Commonwealth
Court styled as a motion for "Special Relief and
Injunctions," which the court treated as a petition for
review directed to its original jurisdiction (the
"Petition"). The Petition named as respondents
Executive Deputy Secretary Bickell, Deputy Secretary
Wenerowics, and the Department of Corrections (collectively,
Petition, Appellant alleged that he owned a pair of
Timberland boots which he previously purchased through the
prison's commissary for approximately $99.00, which was
deducted from his inmate account. He averred that, per the
Memorandum's requirements, his boots, and those of
approximately 50, 000 other inmates, would effectively be
confiscated without a refund. He maintained that this action
would be contrary to the Department's policy statement
relating to personal property and commissary purchases, as
set forth in a directive known as "DC-ADM 815."
stated causes of action under the federal Due Process Clause,
see U.S. Const. amend. XIV, §1; and the Unfair
Trade Practices and Consumer Protection Law, see 73
P.S. §§201-1 to 201-9.3 (the "UTPCPL").
He additionally included a claim sounding in tort, namely,
the intentional tort of conversion. Appellant sought
injunctive relief in the form of an order directing the
Department to return his boots or, in the alternative, refund
the purchase price.
Department requested a stay of the litigation, noting that
numerous similar petitions had been filed, and that the
Department had designated another matter, O'Toole v.
Department of Corrections, No. 228 M.D. 2018 (Pa.
Cmwlth.), as the lead case. The Commonwealth Court initially
granted the request, staying the matter pending its decision
in O'Toole. After Appellant requested
reconsideration, the court vacated the stay and directed the
Department to file a responsive pleading.
Department filed preliminary objections in the nature of a
demurrer, asserting, inter alia, that: the
Memorandum gave Appellant constitutionally adequate notice
for due process purposes, as it provided him with an
opportunity to send his boots home; Appellant failed to
allege that the Department had engaged in any conduct
prohibited by the UTPCPL, such as deceptive representation or
the breach of a warranty; and the Department and its
employees are protected by sovereign immunity from claims
based on alleged intentional torts.
two-page filing, the Commonwealth Court sustained the
Department's demurrer and dismissed the Petition. See
Sutton v. Bickell, No. 314 M.D. 2018, Memorandum and
Order, slip op. at 1 (Pa. Cmwlth. Nov. 28, 2018).
The court explained that, per the Petition's factual
averments: the confiscation of Appellant's boots was
accomplished pursuant to statewide policy; Appellant lacked a
protected property interest in possessing Timberland boots
while in prison; DC-ADM 815 did not create any rights in any
person; the Department has broad discretion to modify its
policies to address evolving security needs; Appellant failed
to plead facts sufficient to support a claim of conversion
and, moreover, the Department is protected by the doctrine of
sovereign immunity from liability for intentional torts; and
Appellant failed to plead facts sufficient to set forth a
claim under the UTPCPL. See id. at 2. In stating its
holdings with regard to due process and sovereign immunity,
the court relied on its recent decision in the
O'Toole matter, which had been published in the
interim. See O'Toole v. Dep't of Corr., 196
A.3d 260 (Pa. Cmwlth. 2018).
Arguments and analysis
this is an appeal from an order sustaining preliminary
objections in the nature of a demurrer, Appellant's
well-pleaded factual allegations will be accepted as true for
purposes of the following discussion. See Sernovitz v.
Dershaw, 633 Pa. 641, 645 n.2, 127 A.3d 783, 785 n.2
(2015). As described above, Appellant set forth several
causes of action in the Petition. The argument section of his
brief to this Court also includes a claim under the Eighth
Amendment and a brief reference to the Equal Protection
Clause. These issues, however, have not been preserved for
review. See Pa.R.A.P. 302(a). Thus, we will only
address Appellant's arguments based on the Due Process