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Sutton v. Bickell

Supreme Court of Pennsylvania

November 20, 2019

KELVIN SUTTON AND CLIFFORD SMITH, ON BEHALF OF THE INMATE GENERAL POPULATION, S.C.I., FRACKVILLE Appellant
v.
TABB BICKELL, MICHAEL WENEROWICZ, AND THE PENNSYLVANIA DEPARTMENT OF CORRECTIONS APPEAL OF: KELVIN SUTTON

          SUBMITTED: November 20, 2019

          Appeal from the Order of the Commonwealth Court at No. 314 MD 2018 dated 11/28/18

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          SAYLOR, CHIEF JUSTICE

         In this 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.

         I. Background

         In 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 offered.

         Pennsylvania Department of Corrections Memorandum to All Inmates, dated March 26, 2018 (emphasis omitted) (the "Memorandum").

         Appellant, 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").[1] The Petition named as respondents Executive Deputy Secretary Bickell, Deputy Secretary Wenerowics, and the Department of Corrections (collectively, the "Department").

          In the 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."

         Appellant stated causes of action under the federal Due Process Clause, see U.S. Const. amend. XIV, §1;[2] 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.[3]

         The 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.

         The 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.

         In a 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).

         II. Arguments and analysis

         Because 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 ...


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