           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darren R. Gentilquore,                   :
                         Petitioner      :
                                         :
                   v.                    :   No. 495 M.D. 2016
                                         :   Submitted: June 2, 2017
Pennsylvania Department of               :
Corrections,                             :
                       Respondent        :



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




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: July 28, 2017


      Darren R. Gentilquore (Gentilquore), pro se, filed an Amended Petition for
Review with exhibits (Amended Petition) in this Court’s original jurisdiction,
wherein he claims that when he filed a grievance alleging that employees of the
Pennsylvania Department of Corrections (Department) either lost, stole, or
damaged his personal property, the Department failed to follow its grievance
policy, DC-ADM-804 (Grievance Policy), in a manner that amounts to bad faith.
The Department filed a preliminary objection in the nature of a demurrer to
Gentilquore’s Amended Petition, asserting it fails to state any claims upon which
relief may be granted. This demurrer is presently before the Court.
       A preliminary objection in the nature of a demurrer “admit[s] all well-
pleaded material facts and any inferences reasonably deduced therefrom.” Danysh
v. Dep’t of Corr., 845 A.2d 260, 262 (Pa. Cmwlth. 2004). In determining whether
such preliminary objections should be sustained, we “need not accept as true
conclusions of law, unwarranted inferences from facts, argumentative allegations,
or expressions of opinion.” Pa. State Lodge, Fraternal Order of Police v. Dep’t of
Conservation & Nat. Res., 909 A.2d 413, 416 (Pa. Cmwlth. 2006). This Court
may sustain the objection and dismiss this case only if it appears with certainty that
recovery is not permitted under the law. Dep’t of Corr. v. Tate, 133 A.3d 350, 352
(Pa. Cmwlth. 2016). “[W]here any doubt exists as to whether the preliminary
objections should be sustained, the doubt must be resolved in favor of overruling
the preliminary objections.” Id. (quoting Pa. State Lodge, Fraternal Order of
Police, 909 A.2d at 416).
       Accepting all facts asserted in the Amended Petition, as we must, the
relevant facts here are as follows.         Gentilquore was incarcerated in the State
Correctional Institution at Forest (SCI-Forest) at the time he filed his Amended
Petition.1 Prior to filing his Amended Petition, Gentilquore filed a grievance
pursuant to the Grievance Policy alleging missing, lost, and/or stolen property.
Gentilquore received an initial review response (IRR) to his grievance from a Unit
Manager, who “is the third named individual on the B section of the Grievance.”2
(Amended Petition ¶ 6). Gentilquore then appealed the IRR, citing a violation of
the Grievance Policy, which prohibits a named party from responding to a

       1
          According to Gentilquore’s brief, he has since been transferred twice and currently
resides at a different SCI.
        2
          “Block B” of the Grievance Form asks for the identity of staff members the inmate has
contacted before submitting the grievance.



                                              2
grievance. The facility manager subsequently responded that no Grievance Policy
violations had occurred. Gentilquore appealed this response to the Secretary’s
Office of Inmate Grievance and Appeals (SOIGA), who responded that simply
naming a party in a grievance does not disqualify the named party from
responding.    Gentilquore claims this response is in direct violation of the
Grievance Policy and that the Department’s “[b]latant disregard” for said policy
reveals an “attempt to cover for the rogue staff that intentionally steal and damage
inmate property.”     (Amended Petition ¶ 10.)        Gentilquore alleges that the
Department’s written accounts of where his property was taken conflict with each
other, with one stating that the property was moved to security while the other
states that it was not. Gentilquore asserts that the Department has denied or
ignored Gentilquore’s requests that video footage be reviewed to show who took
the property and to where it was taken.       Similarly, Gentilquore’s requests to
perform a hands-on inspection in order to have a better account of what is missing
have been denied by inaction.
      Gentilquore was later reunited with his property, at which point he
discovered that some of the seized items had been “damaged and stolen.”
(Amended Petition ¶ 14.) The items alleged to be stolen include: a used and worn
law dictionary; 2011 Pennsylvania Rules of Court; approximately 600 sheets of
copy paper; 1 white 3-outlet extension cord; an AM/FM Sentry Radio serial
number #022482; size 11 shower shoes; 2 record center boxes; size 11 Reebok
sneakers; copies of the Department’s policies; 1 deck of playing cards; and right-
to-know documents.        Additionally, 10 legal envelopes were returned to
Gentilquore damaged. After fully complying with the Grievance Policy in seeking
relief, Gentilquore filed the Amended Petition in this Court’s original jurisdiction,



                                         3
averring that the Department acted in bad faith throughout the grievance process.
He requests that this Court “issue an order directing the [Department] to return
and/or replace all [m]issing, [l]ost, and/or [s]tolen property” and to reimburse him
the cost of postage and all copies made in filing. (Amended Petition Discussion.)
      The Department has filed a demurrer asserting that Gentilquore has failed to
state any claims in his Amended Petition. Specifically, the Department asserts
that: (1) it is entitled to sovereign immunity from Gentilquore’s intentional tort
claims; (2) Gentilquore failed to state a claim for negligence regarding his
damaged property; and (3) Gentilquore’s due process claims related to the alleged
failure to follow the Grievance Policy should be dismissed because Gentilquore
has no constitutional right to particular grievance procedures. We will address
each of these reasons in turn.    We recognize that by accepting Gentilquore’s
allegations as fact, we accept that he has damaged or lost property that has taken
him extensive time and energy to compile.
      The Department correctly asserts that Gentilquore’s allegations of
intentional theft and destruction of his property are barred by sovereign immunity.
Section 8521 of the Judicial Code, commonly known as the Sovereign Immunity
Act,3 “protects Commonwealth officials and employees acting within the scope of
their duties from civil liability. 1 Pa.[]C.S. § 2310.” Kull v. Guisse, 81 A.3d 148,
154 (Pa. Cmwlth. 2013).

      A commonwealth party is not liable unless (1) the alleged act of the
      commonwealth party is a negligent act for which damages would be
      recoverable under common law or by statute, 42 Pa.[]C.S. § 8522(a),
      and (2) the act of the commonwealth party falls within one of the


      3
          42 Pa. C.S. § 8521.



                                         4
       exceptions listed in 42 Pa.[]C.S. § 8522(b).[4] These exceptions must
       be strictly construed and narrowly interpreted. Bufford v. P[a.]
       Dep[’t] of Transp[.], 670 A.2d 751[, 753] (Pa. Cmwlth. 1996).

Brown v. Blaine, 833 A.2d 1166, 1173 (Pa. Cmwlth. 2003). This Court has held
that “state employees do not lose their immunity for intentional torts, provided they
are acting within the scope of their employment.”                    Kull, 81 A.3d at 157.
Gentilquore does not assert that any of the Department’s employees involved were
acting outside the scope of their employment, and the exception to sovereign
immunity set forth in Section 8522(b)(3) (related to damage to personal property in
the care, custody, or control of a Commonwealth party), does not apply to
intentional damage or takings, Tate, 133 A.3d at 359-60. Therefore, Gentilquore’s
intentional tort claims are barred by sovereign immunity.
       To the extent that Gentilquore alleges his property was lost or damaged due
to negligence, Gentilquore is required “to plead all the facts that he must prove in
order to achieve recovery on the alleged cause of action.” McCulligan v. Pa. State
Police, 123 A.3d 1136, 1141 (Pa. Cmwlth. 2015), aff’d, 135 A.3d 580 (Pa. 2016).
“Pennsylvania is a fact-pleading jurisdiction; consequently, a pleading must not
only apprise the opposing party of the asserted claim, it must also formulate the
issues by summarizing those facts essential to support the claim.” Richardson v.
Wetzel, 74 A.3d 353, 356-57 (Pa. Cmwlth. 2013) (internal quotation marks
omitted). Thus, in order to establish a cause of action for negligence under the


       4
          Pursuant to Section 8522(b) of the Sovereign Immunity Act, a Commonwealth party
may be liable for damages due to: (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) 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).



                                                5
common law, Gentilquore’s Amended Petition must allege that the Department
owed him a duty of care, the Department breached that duty, the breach resulted in
Gentilquore’s injury, and Gentilquore suffered an actual loss or damage. Martin v.
Evans, 711 A.2d 458, 461 (Pa. 1998).
       Here, Gentilquore fails to plead a claim for negligence in his Amended
Petition.    The majority of Gentilquore’s property is noted as missing, but
Gentilquore has not pleaded that the Department owed him a duty, that such duty
was breached, or how it was breached, regarding the lost property. Regarding the
10 damaged legal envelopes, Gentilquore does not plead facts in the Amended
Petition as to how the envelopes were damaged, what the damage was, or whether
that damage was intentional or negligent.5 Moreover, nowhere in the Amended
Petition does Gentilquore allege that his property was damaged due to a breach of
the standard of care. As the necessary elements for a negligence claim are absent
from Gentilquore’s Amended Petition, he has failed to state a negligence claim.
However, “[i]f it is possible that the pleading can be cured by amendment, a court
‘must give the pleader an opportunity to file an amended complaint . . . . This is
not a matter of discretion with the court but rather a positive duty.’” Jones v. City
of Phila., 893 A.2d 837, 846 (Pa. Cmwlth. 2006) (quoting Framlau Corp. v. Cnty.
of Delaware, 299 A.2d 335, 337 (Pa. Super. 1972)). As it may be possible for
Gentilquore to state a claim for relief on the grounds of negligence, we will afford
him the opportunity to amend his Amended Petition rather than dismiss the action.




       5
          Gentilquore attempts to explain the damage to the envelopes in more detail in his brief,
but as these facts were not included in the Amended Petition, they may not be considered in this
decision.



                                                6
        Finally, we address Gentilquore’s assertion that the Department’s failure to
follow its Grievance Policy by allowing a named party to respond to a grievance
and ignoring his requests to review the video amounts to bad faith, which we
interpret as implicating the right to due process. Gentilquore alleges that the
Department’s Policy, “DC-ADM 804 Section 1 (c)(3) which prohibits a Named
party from responding to the Grievance,”6 was violated here because the Unit
Manager who responded to the Grievance “is the third named individual on the B
section of the Grievance.” (Amended Petition ¶ 6.) Gentilquore contends that the
Department did not follow its Grievance Policy.7
       The Department is correct that “[t]he Constitution does not require strict
adherence to administrative regulations and guidelines.” Luckett v. Blaine, 850
A.2d 811, 820 (Pa. Cmwlth. 2004).                  We have previously stated that “[t]he
providing of a prison grievance system does not confer constitutional rights on

       6
           The relevant policy states the following:

       If the Facility Grievance Coordinator/designee determines that the grievance is
       properly submitted according to this procedures manual, the Facility Grievance
       Coordinator/designee will designate a staff member to serve as the Grievance
       Officer for that grievance. The staff member who serves as the Grievance Officer
       shall not be directly involved in or named as the subject of the grievance in
       Section A and/or B of the DC-804, Part 1.

(Amended Petition, Ex. 3 (emphasis in original).)
       7
         Section B asks for a list of actions taken and the identity of staff members the inmate
has contacted to resolve the matter before submitting the grievance. The decision of the SOIGA
contains the following explanation. “A review of your grievance reveals that [Unit Manager]
was not a grieved party. There is a difference between being a party to the grievance and simply
being mentioned as someone who you spoke to or had written a request. Your request for
remand based on this is unwarranted.” (Amended Petition, Ex. 2 at 7.) We note that Unit
Manager was not named in the Grievance as being “directly involved in,” or “named as the
subject of the grievance” in either section A or B, and was not named in connection with the
alleged missing, lost and/or stolen property.



                                                  7
inmates concerning the handling of grievances and no cause of action exists for
improper investigation or handling of an inmate grievance.”                               Owens v.
Commonwealth, (Pa. Cmwlth., No. 2624 C.D. 2015, filed Sept. 23, 2016), slip op.
at 7 (affirming the dismissal of a claim that prison employees failed to properly
investigate a grievance regarding missing property, but allowing allegations of
negligence in the loss of the property to go forward);8 see Wilson v. Horn, 971 F.
Supp. 943, 947 (E.D. Pa. 1997), aff’d without op., 142 F.3d 430 (3d Cir. 1998).
The referenced Grievance Policy also advises inmates that the Policy does not
create rights concerning the handling of grievances.9                   “The Constitution only
requires compliance with minimal federal due process standards protected by the
Due Process Clause of the Fourteenth Amendment”10 when administrative
regulations and guidelines are concerned, Luckett, 850 A.2d at 820, and “[a]n
agency’s failure to follow its rules and regulations . . . is not a per se violation of
due process,” Tolchin v. Supreme Court of the State of New Jersey, 111 F.3d 1099,
1115 (3d Cir. 1997) (citing U.S. v. Caceres, 440 U.S. 741 (1979)). Because an


       8
           Pursuant to this Court’s Internal Operating Procedures:

       An unreported opinion of this court may be cited and relied upon when it is
       relevant under the doctrine of law of the case, res judicata or collateral estoppel.
       Parties may also cite an unreported panel decision of this court issued after
       January 15, 2008, for its persuasive value, but not as binding precedent.

210 Pa. Code § 69.414(a).
        9
          DC-ADM 815(VI): Rights Under this Policy at 2 (stating “[t]his policy does not create
rights in any person nor should it be interpreted or applied in such a manner as to abridge the
rights of any individual”), available at http://www.cor.pa.gov/About%20Us/Documents/DOC%
20Policies/815%20Personal%20Property%20State%20Issued%20Items%20and%20Commissary
%20-%20Outside%20Purchases.pdf (last visited June 28, 2017).
        10
            “No State shall . . . deprive any person of life, liberty, or property, without due process
of law . . . .” U.S. Const. amend. XIV, § 1.



                                                  8
agency’s failure to follow its policy is not a per se violation of due process, an
allegation of a violation of the Grievance Policy, without more, does not state a
claim for a violation of due process. Accordingly, Gentilquore has failed to state a
claim upon which relief can be granted based on his assertion that the Department
did not strictly adhere to its Grievance Policy.
      Based on the foregoing conclusions, this Court will sustain the preliminary
objections regarding the intentional tort and violation of the Grievance Policy
claims on their merits, and dismiss them with prejudice. We also sustain the
demurrer regarding the negligence claim with leave to amend the Petition for
Review within 30 days.




                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                           9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darren R. Gentilquore,                   :
                         Petitioner      :
                                         :
                  v.                     :   No. 495 M.D. 2016
                                         :
Pennsylvania Department of               :
Corrections,                             :
                       Respondent        :


                                      ORDER


      NOW, July 28, 2017, the preliminary objection in the nature of a demurrer
filed by the Pennsylvania Department of Corrections is SUSTAINED. Darren R.
Gentilquore’s intentional tort and violation of the Grievance Policy claims in his
Amended Petition for Review are DISMISSED WITH PREJUDICE.
Gentilquore is granted leave to amend his Petition for Review regarding the
negligence claim within 30 days of this date in accordance with the accompanying
opinion.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
