         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey Tillman,                              :
                                              :
                     Petitioner               :
                                              :
              v.                              :    No. 327 M.D. 2016
                                              :    Submitted: December 30, 2016
Pennsylvania Department of                    :
Corrections, SCI Houtzdale, SCI               :
Somerset, Allen G. Joseph, CCPM Lt.           :
Brothers, BCI/PREA Coordinator,               :
                                              :
                     Respondents              :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                              FILED: June 9, 2017

              Before this Court are the preliminary objections of the Pennsylvania
Department of Corrections (DOC), filed in response to a pro se Petition for Review
filed in this Court’s original jurisdiction by Jeffrey Tillman (Inmate), who is
currently incarcerated at the State Correctional Institution at Somerset (SCI-
Somerset) and during the time of events pertinent in this matter, had also been
incarcerated at the State Correctional Institution at Houtzdale (SCI-Houtzdale).1

1
  On November 13, 2007, Inmate entered a plea of nolo contendere to one count of indecent
assault by forcible compulsion, a misdemeanor of the first degree, and one count of burglary, a
(Footnote continued on next page…)
              In the Petition for Review, Inmate challenges DOC’s March 21, 2016
decision as to his Prison Rape Elimination Act (PREA)2 Complaint #2015-P-1523
(PREA Complaint) dated September 22, 2015, which the DOC deemed as
“Unfounded.”        (Petition for Review, Exhibit 5, March 21, 2016 PREA
Investigation-Inmate Notification.) Inmate’s PREA Complaint alleges that DOC
Counselor Melissa Urbanick (Counselor) committed multiple acts of voyeurism by
watching him while he showered, during an unspecified period in 2011-2012.
(Petition for Review, Attachment.) The PREA Complaint further alleges that when
Inmate attempted, periodically, to avoid Counselor’s voyeuristic actions by
retreating to a different level of shower stalls, Counselor retaliated with
“aggressive, angry and adversarial behavior.” (Id.)            In the Petition for Review,
Inmate further alleges that DOC; Allen G. Joseph, Corrections Classification and
Program Manager at SCI-Somerset (Joseph); Lt. Brothers (Brothers), the DOC
PREA Coordinator (PREA Coordinator); Counselor; and James C. Barnacle,
Director of the Office of Special Investigations and Intelligence (OSII) (Barnacle)

(continued…)
felony of the second degree. With regard to the indecent assault charge, the parties had agreed
that in exchange for Inmate’s plea, he would receive some court determined period of probation
to run consecutively to the sentence imposed for burglary. Inmate was sentenced to a term of
two to ten years for burglary and two years of probation for the indecent assault to run
consecutively to the burglary sentence. The Superior Court subsequently granted Inmate’s
appeal of the sentence on the indecent assault charge, and vacated as illegal the probation
component of Inmate’s sentence, but otherwise affirmed the judgment of sentence.
Commonwealth v. Tillman, 981 A.2d 2234 (Pa. Super. 2009) (unpublished memorandum).

2
  42 U.S.C. §§ 15601-15606. According to the DOC website, Pennsylvania’s PREA standards
are designed to prevent, detect, respond and eliminate incidences of sexual abuse and sexual
harassment; PREA applies to confinement facilities, which include federal and state prisons;
investigative outcomes of a PREA investigation can result in findings that are ‘substantiated’,
‘unsubstantiated’ or ‘unfounded’. See http://www.cor.pa.gov. (last visited on April 26, 2017).



                                              2
acted in concert to commit various acts of fraud, an intentional tort, and official
oppression in the course of their investigation of the allegations made in Inmate’s
PREA Complaint. Inmate requests a writ of mandamus,3 compelling DOC to
reopen his PREA Complaint, with an investigation conducted by the Pennsylvania
State Police; requiring DOC to remove inaccurate information from his criminal
history record; and granting Inmate relief requested in various grievances and
complaints referenced in his Petition for Review.
               In its preliminary objections, DOC asserts that this Court has neither
original nor appellate jurisdiction to review DOC’s final decision regarding
Inmate’s PREA Complaint or to reopen its investigation thereof. DOC asserts that
insofar as Inmate seeks the issuance of criminal charges against DOC, Joseph,
Brothers, the PREA Coordinator, Counselor, or Barnacle, this Court lacks
jurisdiction to do so.       Finally, to the extent that Inmate alleges that Joseph,
Brothers, the PREA Coordinator, Counselor, or Barnacle committed fraud, an
intentional tort, DOC asserts that these individuals are immune from suit for
intentional torts committed within the scope of employment. For the reasons set
forth below, we sustain DOC’s preliminary objections, and dismiss the Petition for
Review.
              By way of background, we note that Inmate has previously filed a
number of grievances and a Petition for Review in this Court’s original


3
  Mandamus is an extraordinary writ that compels the official performance of a ministerial act or
mandatory duty. Barndt v. Department of Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006).
“A writ of mandamus may be issued only where there is a clear legal right in the petitioner, a
corresponding duty in the respondent, and a lack of any other appropriate and adequate remedy.”
McGriff v. Pennsylvania Board of Probation and Parole, 809 A.2d 455, 458 (Pa. Cmwlth. 2002),
affirmed, 838 A.2d 564 (Pa. 2003).



                                               3
jurisdiction, all related to Counselor’s alleged falsification of his criminal history
record. As part of his Petition for Review, Inmate provides information regarding
a complaint he made to DOC’s Office of Special Investigations and Intelligence
(the OSII Complaint), wherein he alleged that Counselor, in an effort to justify
mandated attendance in a sex offender’s treatment program, violated DOC’s Code
of Ethics by falsifying his criminal history record and illegally labelling him a
violent offender.4 (Petition for Review, Attachment, OSII Complaint.) Inmate was
advised by letter that the allegations made in his OSII Complaint did not meet the
criteria of a formal OSII inquiry and his letter was forwarded to the SCI-Houtzdale
Superintendent for review. (Id., Attachment.) According to Inmate, the SCI-
Houtzdale Superintendent determined in December 2012 that no further action was
warranted. (Petition for Review, Procedural History and Statement of Facts, ¶ 12.)
Inmate thereupon filed, in July 2013, a grievance against said Superintendent and
Counselor, which was rejected as not having been submitted within fifteen (15)
working days after the events upon which his claims were based, and a final appeal
decision in October 2013 upheld that decision. (Id., ¶¶ 14-15.)



4
  Exhibit 1 to Inmate’s OSII Complaint is a Form DC-135A “Inmate Request to Staff Member,”
addressed to Counselor and submitted by Inmate on September 8, 2011, which asks for an
explanation as to why the parole board could mandate that Inmate attend a sex offender program
when he had no conviction to warrant it. (Petition for Review, Attachment, Exhibit 1.) The
Counselor’s response is written on the DC-135A form and states, “Tillman – the psychology
dept. determines whether you need sex offender treatment…you were evaluated on 5/7/08 and
determined to need sex offender moderate to high intensity. Available records indicate 8 arrests
for sexual offenses and 7 convictions – miscellaneous sex offense – 1988; miscellaneous sex
offense – 1989; sexual assault – 1993; indecent exposure – 1995; indecent exposure – 1996;
indecent exposure – 2005; indecent assault – 2005.” (Petition for Review, Attachment.)




                                               4
                 Inmate further states that in March 2014, he filed another grievance,
against a DOC records supervisor, concerning the inaccurate criminal history
record information he alleges was submitted by Counselor, which he identifies as
“Grievance #500193.” (Id., ¶ 17.) The record does not contain this submission,
but does include DOC’s response, dated March 3, 2014, in which DOC denied
Grievance #500193. (Petition for Review, Attachment, DOC Grievance Decision.)
Noting that in this grievance, Inmate had expressed many concerns previously
addressed on numerous occasions by DOC, the response verifies that DOC’s
record office cannot correct or remove information that is not part of Inmate’s
record, and can only verify that there is no inaccurate criminal history information
within the records maintained by DOC’s Record Office.5
              Also, in 2012, Inmate petitioned for a writ of mandamus in this
court’s original jurisdiction, requesting that this Court direct DOC to remove the
requirement that he complete a sex offender treatment program as a condition of
parole.   In that petition, Inmate asserted that Counselor violated DOC’s Code of
Ethics by fraudulently reporting and misrepresenting Inmate’s indecent assault
conviction in an illegal attempt to require his participation in the sex offender
treatment program. DOC filed preliminary objections, asserting, inter alia, that
Inmate failed to state a cause of action for a writ of mandamus for alleged
violations of its Code of Ethics by Counselor because its administrative policies do

5
  With regard to Inmate’s vacated sentence, the DOC decision issued in response to his grievance
states that this information has been “accurately removed” from what is identified as “Version 3
of the DC16E Sentence Status Summary Sheet” issued through the Records Office on October
10, 2013, and that the Pennsylvania Board of Probation and Parole (PBPP) has been notified of
Inmate’s contention that inaccurate information may exist within its records and has provided
information for PBPP’s review . (Petition for Review, Attachment, DOC Grievance Decision.)



                                               5
not create any enforceable rights in inmates; in an unreported opinion, Tillman v.
Pennsylvania Board of Probation and Parole, (Pa. Cmwlth. No. 575 M.D. 2011,
filed February 22, 2013), this Court agreed, and sustained the preliminary
objections.6 See also, Tillman v. Pennsylvania Board of Probation and Parole,
(Pa. Cmwlth. No. 575 M.D. 2011, filed December 2, 2014).7 To the extent that
Inmate argues here that Joseph, Brothers, the PREA Coordinator, Counselor, or
Barnacle violated DOC’s Code of Ethics, we echo our Court’s February 2013
determination, and find that Inmate is not entitled to any relief based on alleged
violations of the Code of Ethics, since administrative regulations and policies do
not create rights in inmates.



6
    In that decision, this Court stated:

                  With respect to DOC’s position that [Inmate] fails to state a cause
                  of action for a writ of mandamus for violation of its Code of Ethics
                  for the conduct of [Counselor], DOC asserts that its administrative
                  policies do not create any enforceable rights in inmates. In Bullock
                  v. Horn, 720 A.2d 1079 (Pa. Cmwlth. 1998), this Court noted that
                  administrative regulations or policies do not create any rights in
                  inmates. A review of the Code of Ethics, attached as an exhibit to
                  the Amended Petition, reflects that the Code is identified as “rules
                  and regulations” in the document itself. This Court agrees with
                  DOC that the Code of Ethics for DOC employees does not create a
                  clear right to relief in Tillman. Consequently, there is no basis for
                  mandamus to issue and this Court sustains DOC’s preliminary
                  objection.

Tillman v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth. No. 575 M.D. 2011, filed
February 22, 2013), slip op. at 12-13.
7
  Because these are unreported decisions, the opinions are not binding precedent, but are
considered by the Court for their persuasive value. 210 Pa. Code § 69.414(a).



                                                   6
               In his Petition for Review, Inmate challenges DOC’s determination
that his allegations of a PREA violation by Counselor in the form of voyeurism
were unfounded. Inmate contends that DOC failed to properly investigate his
PREA complaint, and further contends that in the course of the investigation,
Joseph, Brothers, the PREA Coordinator, Counselor, and Barnacle violated the
Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §§ 9101-9183.
Inmate alleges that when he attempted to prevent Counselor’s voyeuristic actions
by showering in an alternate location where she could not observe him, Counselor
retaliated by fabricating false criminal history record information and DOC staff
and investigators abdicated their duties under CHRIA to correct such false
information.
               Initially, we note that DOC’s determination with regard to Inmate’s
PREA Complaint is akin to the final appeal decision of a grievance, and is beyond
this Court’s original or appellate jurisdiction.   See Bronson v. Central Office
Review Committee, 721 A.2d 357, 358-59 (Pa. 1998); Brown v. Pennsylvania
Department of Corrections, 913 A.2d 301, 305 (Pa. Cmwlth. 2006). Moreover,
Inmate is prohibited from asserting a claim pursuant to PREA, because PREA does
not provide a private right of action. See Nestor v. Director of Northeast Region
Bureau of Prisons, (D. N.J. No. 11-4683, filed Dec. 20, 2012), 2012 U.S. Dist.
LEXIS 180710, 2012 WL 6691791, at *3 (granting summary judgment to
defendants on the plaintiff’s attempt to recover under PREA). Inmate attaches
documentation of his complaint, mailed to the DOC PREA Coordinator in
November 2015; he acknowledges that he was provided a PREA interview on
December 2015 and received notice of the PREA investigation results in March
2016. (Petition for Review, Exhibits 1, 5.)


                                         7
            Inmate’s next claim, regarding inaccurate information in his criminal
history record was, as noted above, most recently addressed in his grievance
#500193, with a March 3, 2014 denial issued by the grievance officer at SCI-
Somerset. In the Petition for Review, Inmate invokes CHRIA, alleging that in the
course of the PREA investigation, Joseph, Brothers, the PREA Coordinator, and
Barnacle acted in concert with Counselor, as they became aware that she had
fabricated convictions and made them a part of his criminal history record, and
they failed in their duty under CHRIA to correct this inaccurate information.
Section 9152(e) of CHRIA establishes the appeals process whereby an individual
who challenges the accuracy of his or her criminal history record information
through the inmate grievance procedure and whose challenge is ruled invalid may
appeal that decision to the Attorney General within 30 days of notification of the
decision by the criminal justice agency. 18 Pa. C.S. § 9152(e). The statute
provides that the Attorney General shall conduct a hearing de novo and the
decision may then be appealed to this Court. 18 Pa. C.S. § 9152(e)(3). To the
extent that Inmate may be considered to have previously asserted a CHRIA claim
through the inmate grievance procedure, via his grievance #500193, it appears that
his claims were timely considered and rejected by DOC and there is no evidence
that he filed a timely appeal with the Attorney General; in any event, Inmate did
not assert a violation of CHRIA as part of his PREA Complaint.
            Inmate alleges that Counselor committed fraud, an intentional tort,
insofar as she fraudulently fabricated information and entered it into his criminal
history records and that Joseph, Brothers, the PREA Coordinator, and Barnacle
committed fraud in failing to disseminate corrected information to criminal justice
agencies.   However, “[t]his Court has held that, ‘when an employee of a


                                        8
Commonwealth agency was acting within the scope of his or her duties, the
Commonwealth employee is protected by sovereign immunity from the imposition
of liability for intentional tort claims.’” Williams v. Stickman, 917 A.2d 915, 917
(Pa. Cmwlth. 2007) (quoting La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa.
Cmwlth. 1992)). Inmate avers that Counselor acted outside the scope of her
employment by fabricating criminal convictions, as such action is not included in
her job description, and is thus not immune from suit.       We disagree. All of
Inmate’s allegations center around her duties and powers as a DOC employee, and
as such, his intentional tort claim is barred by sovereign immunity. See LaFrankie,
618 A.2d at 1148.
             Finally, DOC asserts that this Court lacks jurisdiction insofar as
Inmate is alleging the crime of official oppression by Counselor, in the form of
retaliation, and official oppression by Joseph, Brothers, the PREA Coordinator,
and Barnacle, insofar as they acted in concert with Counselor to cover up her
retaliatory acts. The writ of mandamus is not an available remedy in this case, as
this Court cannot, sua sponte, issue criminal charges.
              Accordingly, DOC’s preliminary objections are sustained and
Inmate’s Petition for Review is dismissed.




                                    ______________________________________
                                    JAMES GARDNER COLINS, Senior Judge




                                         9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey Tillman,                      :
                                      :
                   Petitioner         :
                                      :
            v.                        :   No. 327 M.D. 2016
                                      :
Pennsylvania Department of            :
Corrections, SCI Houtzdale, SCI       :
Somerset, Allen G. Joseph, CCPM Lt.   :
Brothers, BCI/PREA Coordinator,       :
                                      :
                   Respondents        :


                                 ORDER


            AND NOW, this 9th day of June, 2017, the preliminary objections
filed by the Pennsylvania Department of Corrections (DOC) on behalf of DOC;
Allen G. Joseph, Corrections Classification and Program Manager at SCI-
Somerset; Lt. Brothers; DOC’s Prison Rape Elimination Act Coordinator; Melissa
Urbanick (SCI-Benner); and James Barnacle, Director of the DOC’s Office of
Special Investigations and Intelligence are SUSTAINED, and the petition for
review filed by Jeffrey Tillman is DISMISSED.




                                 _______________________________________
                                  JAMES GARDNER COLINS, Senior Judge
                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey Tillman,                                   :
                        Petitioner                 :
                                                   :    No. 327 M.D. 2016
                v.                                 :
                                                   :    Submitted: December 30, 2016
Pennsylvania Department of                         :
Corrections, SCI Houtzdale,                        :
SCI Somerset, Allen G. Joseph,                     :
CCPM Lt. Brothers, BCI/PREA                        :
Coordinator,                                       :
                  Respondents                      :


BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE McCULLOUGH                                                FILED: June 9, 2017


                I respectfully dissent from the portion of the majority opinion that
grants the preliminary objection of the Pennsylvania Department of Corrections
(Department) and dismisses an intentional tort claim asserted by Jeffrey Tillman
(Tillman) against Counselor Mellissa Urbanick (Counselor).1
                In the petition for review, Tillman averred that he is an inmate at the
State Correctional Institution at Houtzdale and Counselor is his assigned counselor.
Tillman alleged that, on multiple occasions while he showered in the facility’s
stalls, Counselor left her office, entered into the “bubble console” to obtain a

      1
          In all other respects, I join the majority opinion.
vantage point, and watched him voyeuristically. (Petition for Review, Ex. 1.)
Tillman further alleged that, after discovering Counselor’s conduct, he attempted
to avoid her voyeuristic actions on a few occasions by moving upstairs to the upper
tier of the shower stalls. However, Tillman contends, Counselor responded by
displaying “aggressive, angry, and adversarial behavior” toward him, apparently
during counseling sessions, and out of “fear” of retaliation, he returned to the lower
tier shower stalls and permitted Counselor to watch him. Id.
               Based on this contention, Tillman asserts against Counselor an
intentional tort sounding in invasion of privacy – intrusion upon seclusion.2
               Under Pennsylvania law, a Commonwealth employee is protected by
sovereign immunity for conduct occurring within the scope of his employment but
remains liable for willful misconduct and intentional torts committed outside the
scope of his employment. Kull v. Guisse, 81 A.3d 148, 157-158 (Pa. Cmwlth.
2013). An employee acts within the scope of his employment when he engages in
conduct of the kind the employee is employed to perform, when the conduct occurs
substantially within the authorized time and space limits, and when the conduct is
actuated, at least in part, by a purpose to serve the employer. Natt v. Labar, 543
A.2d 223, 213-14 (Pa. Cmwlth. 1988).
               “Where the alleged intentional tort was unprovoked, unnecessary or
unjustified by security concerns or penological goals, courts have ruled that such
conduct does not, as a matter of law, fall within the scope of employment.” Wesley


       2
         “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion
of another or his private affairs or concerns, is subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a reasonable person.” Harris by Harris v.
Easton Publication Co., 483 A.2d 1377, 1383 (Pa. Super. 1984) (citation omitted).



                                              PAM - 2
v. Hollis, (E.D. Pa., No. 03-3130, filed June 6, 2007) (unpublished).3 Based upon
the facts averred, if it can “be reasonably inferred that the [employee] was
motivated by personal concerns, he was not acting within the scope of his
employment . . . .” Gray v. Wakefield, (M.D. Pa., No. 3:CV-09-0979, filed June 4,
2014) (unpublished).4 Ordinarily, the question of whether an individual has acted
within the scope his employment is a question of fact for the jury to decide. Orr v.
William J. Burns International Detective Agency, 12 A.2d 25, 27 (Pa. 1940).
               At this stage, the Court must accept the allegations in Tillman’s
petition for review as true, Aviles v. Pennsylvania Department of Corrections, 875
A.2d 1209, 1211 n.3 (Pa. Cmwlth. 2005), and in so doing, it is not clear and free
from doubt that these alleged acts would establish that Counselor was acting within
the scope of her employment at the time of the alleged misconduct. Initially, it is
reasonable to infer that, in her official capacity as a counselor to inmates, it was not
part of Counselor’s job duties to supervise an inmate while he showers, for security
reasons or any other reason for that matter.         Although the alleged incidents
occurred during work hours, because these allegations are plausibly indicative of
an underlying personal motivation to inflict dignitary harm upon Tillman, and do
not reflect a desire to perform the Department’s business or affairs, it cannot be
said with certainty that Counselor was acting within the scope of her employment.
“Where any doubt exists as to whether or not the preliminary objections should be
sustained, that doubt should be resolved by refusing to sustain the objections.”
Schott v. Westinghouse Electric Corp., 259 A.2d 443, 449 (Pa. 1969). Therefore,


      3
          2007 U.S. Dist. LEXIS 41562 at **50-51.

      4
          2014 U.S. Dist. LEXIS 77590 at *10.


                                          PAM - 3
based on the facts as averred in the petition for review, I would conclude that
Counselor is not entitled to sovereign immunity and would permit Tillman’s
intentional tort claim in this regard only to proceed in the pleading stage.5
              Accordingly, I respectfully dissent from the part of the majority
opinion that dismisses Tillman’s above-mentioned claim against Counselor.




                                                ________________________________
                                                PATRICIA A. McCULLOUGH, Judge




       5
         Without doubt, Tillman has made serious accusations against Counselor and he carries
the burden of proof in this matter. Notably, Tillman has made identical allegations in his
complaint to the Department’s Office of Professional Responsibility and he verified their
truthfulness in an unsworn declaration. (Petition for Review, Ex. 1). Consequently, the present
averments in Tillman’s petition for review are potentially subject to the penalty of perjury, a
felony of the third degree. See Section 4902 of the Crimes Code, 18 Pa.C.S. §4902.


                                          PAM - 4
