                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                  :
Department of Corrections                     :
Secretary of Corrections                      :
John E. Wetzel                                :
SCI Pittsburgh Accounting Manager             :
SCI Camp Hill Accounting Manager              :
SCI Chester Accounting Manager                :
SCI Benner Accounting Manager                 :
Erie County Court of Common Pleas             :
Judge John Garhart                            :
Erie County Common Pleas                      :
Clerk of Record John Catalde,                 :
                         Respondents          :
                                              :
                     v.                       :
                                              :
Amos Tate,                                    :   No. 614 M.D. 2014
                            Petitioner        :   Submitted: August 14, 2015


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE MARY HANNAH LEAVITT, Judge2
              HONORABLE ANNE E. COVEY, Judge


OPINION BY
JUDGE COVEY                                       FILED: February 8, 2016

              Amos Tate (Tate), pro se, filed an Amended Petition for Review
(Amended Petition) in this Court’s original jurisdiction, wherein he challenges
deductions the Pennsylvania Department of Corrections (Department) made from his
inmate account and seeks damages for emotional distress.3 The Department filed

       1
         This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
       2
         This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
       3
         Tate filed a Request to Stop Deduction(s) and Return Monies from Inmate’s Account in the
Erie County Common Pleas Court on November 18, 2014. The matter was transferred to this Court
and designated a petition for review. On January 22, 2015, this Court ordered Tate to file an
preliminary objections to dismiss Tate’s Amended Petition pursuant to Pennsylvania
Rule of Civil Procedure Number 1028(a)(4) due to its failure to state a claim upon
which relief may be granted (demurrer). Specifically, the Department avers that (1)
Tate received proper due process, and (2) the deductions were authorized regardless
of the source from which the inmate’s funds were derived.                     The Department’s
preliminary objections are currently before the Court.
               This Court’s review of preliminary objections is limited to the pleadings.
Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Natural Res.,
909 A.2d 413 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007).

             [This Court is] required to accept as true the well-pled
             averments set forth in the . . . complaint, and all inferences
             reasonably deducible therefrom. Moreover, the [C]ourt
             need not accept as true conclusions of law, unwarranted
             inferences from facts, argumentative allegations, or
             expressions of opinion. In order to sustain preliminary
             objections, it must appear with certainty that the law will
             not permit recovery, and, where 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. at 415-16 (citations omitted).
               Tate is incarcerated in the State Correctional Institution in Benner
Township, Centre County, Pennsylvania (SCI-Benner).                       According to Tate’s
Amended Petition, on July 25, 2012, the Erie County Common Pleas Court (trial
court) sentenced Tate to 9 to 24 months’ incarceration for simple assault under
Docket No. 874 of 2011, and ordered him to pay court costs and fines totaling
$636.15, plus $60.00 to the Crime Victim Compensation Fund (Crime Victim Fund).


amended petition naming the Department and the Erie County Clerk of Courts as parties. Due to
Tate’s failure to timely comply with the order, this Court dismissed Tate’s petition for review. Tate
filed the Amended Petition on March 11, 2015 and asked this Court to reconsider its dismissal. On
March 31, 2015, this Court reinstated Tate’s action.


                                                 2
Amended Pet. at ii. On that same day, the trial court sentenced Tate to 12 to 24
months’ incarceration for simple assault under Docket No. 226 of 2012 and ordered
him to pay costs and fines totaling $943.35, plus $60.00 to the Crime Victim Fund.
Amended Pet. at ii.
              Although Tate’s Amended Petition does not specify exactly when, it
appears that in early August 2012,4 the Department began making monthly
deductions from Tate’s inmate account to satisfy his court costs and restitution
obligations pursuant to Section 9728(b) of the Sentencing Code,5 42 Pa.C.S. §
9728(b), commonly known as Act 84. Amended Pet. at ii. Section 9728(b) of the
Sentencing Code provides in pertinent part:

              (3) The county clerk of courts shall, upon sentencing, . . .
              transmit to . . . the [Department] . . . copies of all orders for
              restitution . . . , reparation, fees, costs, fines and penalties.
              This paragraph also applies in the case of costs imposed
              under [S]ection 9721(c.1) [of the Sentencing Code]
              (relating to sentencing generally).[6]


       4
           Tate averred that he had 15 days to file his grievance and that he filed it on August 17,
2012. See Amended Pet. at ii, 3. Moreover, Tate seeks reimbursement of funds deducted between
August 2012 and March 2015. See Amended Pet. at 16-17. Exhibit Z (Tate’s July 2015 Monthly
Account Statement), which Tate filed with this Court without leave on August 20, 2015, does not
reflect when the deductions began.
        5
          42 Pa.C.S. §§ 9701-9799.41. The Sentencing Code was amended by Section 4 of the Act
of June 18, 1998, P.L. 640.
        6
           Section 9721(c.1) of the Sentencing Code states:

              Mandatory payment of costs.--Notwithstanding the provisions of
              [S]ection 9728 [of the Sentencing Code] (relating to collection of
              restitution, reparation, fees, costs, fines and penalties) or any
              provision of law to the contrary, in addition to the alternatives set
              forth in subsection (a), the court shall order the defendant to pay
              costs. In the event the court fails to issue an order for costs pursuant
              to [S]ection 9728 [of the Sentencing Code], costs shall be imposed
              upon the defendant under this section. No court order shall be
              necessary for the defendant to incur liability for costs under this
              section. The provisions of this subsection do not alter the court’s
                                                 3
              ....
              (5) The . . . [Department] shall be authorized to make
              monetary deductions from inmate personal accounts for
              the purpose of collecting restitution or any other court-
              ordered obligation or costs imposed under [S]ection
              9721(c.1) [of the Sentencing Code]. Any amount deducted
              shall be transmitted by the [Department] . . . to the
              probation department of the county or other agent
              designated by the county . . . in which the offender was
              convicted. The [Department] shall develop guidelines
              relating to its responsibilities under this paragraph.

42 Pa.C.S. § 9728(b) (emphasis added). Section 3.A of Department DC-ADM 005
(Collection of Inmate Debts Procedures Manual) (Debt Collection Manual)
referenced by Tate in his Amended Petition provides, in pertinent part:

              Collection of Restitution, Reparation, Fees, Costs, Fines
              and Penalties 42 Pa. C.S. § 9728, Act 84 of 1998 (Act 84)
           1. When the County Clerk of Courts provides a copy(s) of an
              order(s) for restitution, reparation, fees, costs, fines, and/or
              penalties associated with the criminal proceedings, the
              records office shall file the original and shall forward a
              copy of the order to the business office of the facility
              having custody of the inmate. The court order, the DC-
              300B, Court Commitment Form, or supporting
              information, must indicate the status of the debt including
              the current balance due and any special conditions, which
              would [a]ffect payments.
           2. The business office, through inmate account deductions,
              makes:
              a. payments of 20% of the inmate’s account balance and
              monthly income for restitution, reparation, fees, costs, fines,
              and/or penalties associated with the criminal proceedings
              pursuant to 42 Pa.C.S. § 9728, Act 84 of 1998, provided
              that the inmate has a balance that exceeds $10.00; and


              discretion under Pa.R.Crim.P. No. [sic] 706(C) (relating to fines or
              costs).
42 Pa.C.S. § 9721(c.1).
                                               4
              b. payments of 10% of all the inmate’s account balance and
              monthly income, for the Crime Victim’s Compensation and
              Victim/Witness Services Funds, provided that the inmate
              has a balance that exceeds $10.00.
         3. The business office shall send the funds deducted to the
            county probation department or other designated agency.
(Bolded in original); see Amended Pet. at 11.
              Tate initially sought relief from the deductions and for return of monies
from his inmate account through the Department’s inmate grievance system. 7 On
August 17, 2012, he filed Grievance No. 430224 regarding the allegedly improper
Act 84 deductions, and appears to have completed the grievance review process. See
Amended Pet. at ii-iii, 3-4.
              Although not the model of clarity,8 we can glean from the Amended
Petition that Tate alleges that his due process rights were violated because: (1) the
trial court did not afford him the opportunity to object to the costs, fines and Crime
Victim Fund assessments (see Amended Pet. at 1-2, 8-10); (2) the Crime Victim Fund
deductions were not statutorily authorized (see Amended Pet. at 2); (3) he was
deprived of a pre-deduction hearing (see Amended Pet. at 3-4, 11-12); and, (4)
deductions were made from earned income and gifts (see Amended Pet. at 2, 5-6, 13).
Tate requests this Court to order the Department to discontinue the deductions and
reimburse him those funds that were illegally deducted. See Amended Pet. at iii, 17-
18. He also seeks $200,000.00 in damages for emotional distress, headaches and
resultant outbursts he contends are related to the deductions. See Amended Pet. at 6-
7, 16.

         7
         DC-ADM 804 (Inmate Grievance System).
         8
         “The allegations of a pro se complainant are held to a less stringent standard than that
applied to pleadings filed by attorneys. If a fair reading of the complaint shows that the
complainant has pleaded facts that may entitle him to relief, the preliminary objections will be
overruled.” Danysh v. Dep’t. of Corr., 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004) (citation and
emphasis omitted), aff’d, 881 A.2d 1263 (Pa. 2005).


                                               5
             Tate first appears to claim that his due process rights were violated
because the trial court ordered the payment of costs, fines and the Crime Victim Fund
assessment in absentia and he was not afforded the opportunity to object thereto. We
disagree.
             It is unclear if Tate is alleging that he was not present during sentencing,
or that he was present, but was not advised by the trial court that it was ordering him
to pay costs, fines and restitution, so that he could contest the trial court’s action at
that time. A plaintiff is required to “plead all the facts that must be proved in order to
achieve recovery on the alleged cause of action.” Commonwealth v. Peoples Benefit
Servs., Inc., 895 A.2d 683, 689 n.10 (Pa. Cmwlth. 2006). Tate’s averment that he
was ordered to pay costs, fines and restitution in absentia, without any facts regarding
the circumstances thereof, is insufficient to support his alleged claim or that what
occurred was improper. Moreover, the law is clear that “[w]hile in custody under
sentence, the avenue to challenge the payment of criminal fines is in a direct appeal
or in post[-]conviction relief under the Post Conviction Relief Act, 42 Pa.C.S. §§
9541-9546.” Neely v. Dep’t of Corr., 838 A.2d 16, 19 (Pa. Cmwlth. 2003). “[An
inmate] may not challenge the substance of the court’s order by seeking an injunction
against [the Department].” Harding v. Stickman, 823 A.2d 1110, 1112 (Pa. Cmwlth.
2003).
             Accordingly, Tate’s Amended Petition fails to state facts sufficient to
support his claim that his due process rights were violated. Further, Tate may not
challenge the trial court’s order by requesting this Court to enjoin the Department
from fulfilling its statutory obligations.




                                             6
               Tate also argues that deductions for the Crime Victim Fund are not
statutorily authorized.      We disagree.      Section 1101 of the Crime Victims Act9
expressly provides:

               (a) Imposition.
               (1) A person who pleads guilty or nolo contendere or who is
               convicted of a crime shall, in addition to costs imposed
               under 42 Pa.C.S. § 3571(c) (relating to Commonwealth
               portion of fines, etc.), pay costs of at least $60 and may be
               sentenced to pay additional costs in an amount up to the
               statutory maximum monetary penalty for the offense
               committed.
               ....
               (b) Disposition.
               (1) There is established a special nonlapsing fund, known as
               the Crime Victim’s Compensation Fund. This fund shall
               be used by the Office of Victims’ Services for payment to
               claimants and technical assistance. Thirty-five dollars of
               the costs imposed under subsection (a)(1) and (2) plus 30%
               of the costs imposed under subsection (a)(1) which exceed
               $60 shall be paid into this fund. All costs imposed under
               subsection (a)(3) shall be paid into this fund.
               ....
               (c) Payment. This cost shall be imposed notwithstanding
               any statutory provision to the contrary.
               ....
               (e) Court order. No court order shall be necessary in
               order for the defendant to incur liability for costs under this
               section. Costs under this section must be paid in order for
               the defendant to be eligible for probation, parole or
               accelerated rehabilitative disposition.

18 P.S. § 11.1101 (text emphasis added). Moreover, the Pennsylvania Superior Court
in Commonwealth v. LeBar, 860 A.2d 1105 (Pa. Super. 2004), held that the

      9
          Act of November 24, 1998, P.L. 882, as amended, 18 P.S. §§ 11.101-11.5102.
                                                7
Department was authorized to deduct costs assessed under Section 1101 of the Crime
Victims Act from the inmate’s account under Act 84.                       See also Greer v.
Commonwealth (Pa. Cmwlth. No. 43 M.D. 2008, filed July 25, 2008). Because
inmate account deductions for Crime Victim Fund obligations are statutorily
mandated, Tate’s Amended Petition fails to state facts sufficient to support his claim
that they are not authorized.
              Tate next contends that the Department’s inmate account deductions
violated his due process rights because he did not receive a pre-deduction hearing.
We disagree. We acknowledge that Section 9730(b) of the Sentencing Code provides
that “[b]efore an offender can be confined solely for nonpayment of financial
obligations he or she must be given an opportunity to establish inability to pay.” 10
George v. Beard, 824 A.2d 393, 396 (Pa. Cmwlth.), aff’d, 831 A.2d 597 (Pa. 2003);
see 42 Pa.C.S. § 9730(b). However, Section 9730 of the Sentencing Code applies
only when the defendant’s sentence prescribes financial obligations without
confinement, which is not the case here. See George. The Pennsylvania Supreme
Court explained:

              [P]ursuant to Section 9730(b) of the Sentencing Code, when
              a defendant is in default, the court of common pleas
              conducts a hearing to determine the defendant’s ability to
              pay, and then may order an appropriate payment plan.
              Section 9730(b) [of the Sentencing Code] directs the court
              to consider the defendant’s financial resources. However,
              we agree . . . that in granting to the Department the
              supplementary power to collect court-ordered financial
              obligations from inmate accounts, the Legislature
              recognized that the deducted amounts were relatively small
              and that it was impractical and burdensome for trial courts
              to conduct an ability to pay hearing anytime the funds in an
              inmate’s account fluctuated. . . . Section 9728(b)(5) [of the

       10
          The Post Conviction Relief Act applies to offenders sentenced to imprisonment or special
supervision, and not a sentence imposing only financial obligations. See George v. Beard, 824 A.2d
393 (Pa. Cmwlth.), aff’d, 831 A.2d 597 (Pa. 2003).
                                                8
            Sentencing Code, Act 84] provides an additional procedure
            for deducting restitution, fines, and costs directly from
            inmate accounts pursuant to a legally[-]imposed sentence.
Buck v. Beard, 879 A.2d 157, 161 (Pa. 2005).
            [Section 9728](b)(5) [of the Sentencing Code, Act 84]
            authorizes [the Department] to make monetary deductions
            from an inmate’s account to pay court ordered fines and
            costs and does not impose prior court authorization as a
            threshold condition. As noted, [Tate] concedes that fines
            and costs were imposed as part of his criminal sentence.
            [Amended Pet. at ii]. It is the judgment of sentence which
            enables [the Department] to deduct the funds. Thus, [Tate]
            may not challenge that judgment by seeking to enjoin [the
            Department] from carrying out its statutorily[-]mandated
            duty to deduct the funds.
            Nor is [Tate] entitled to reimbursement from [the
            Department] for funds deducted from his account. Pursuant
            to Section 9728(b)(5) of the Sentencing Code, [Act 84,] the
            funds deducted from his inmate account were sent to the
            appropriate county agent for payment of his court ordered
            obligations. As such, he has no right to reimbursement
            from [the Department].

George, 824 A.2d at 396-97 (citations omitted).
            Tate bases his due process violation claim on Montanez v. Secretary
Pennsylvania Department of Corrections, 773 F.3d 472 (3rd Cir. 2014), and Mathews
v. Eldridge, 424 U.S. 319 (1976). See Amended Pet. at 8, 10-11, 14-15. The
Montanez Court held:

            Procedural due process claims are governed by the standard
            first enunciated in [Mathews]. Under that standard, a court
            is to weigh three factors: (1) ‘the private interest that will be
            affected by the official action’, (2) ‘the risk of an erroneous
            deprivation of such interest through the procedures used’
            and the value of ‘additional or substitute procedural
            safeguards’, and (3) the governmental interest, ‘including
            the function involved and the fiscal and administrative
            burdens that the additional or substitute procedural
            requirements would entail.’ Id.


                                           9
            State prisoners plainly have a property interest in the funds
            in their inmate accounts. See, e.g., Reynolds [v. Wagner],
            128 F.3d [166,] 179 [(3rd Cir. 1997)]. As other courts have
            held, however, this interest is reduced because inmates ‘are
            not entitled to complete control over their money while in
            prison.’ See Mahers v. Halford, 76 F.3d 951, 954 (8th
            Cir.1996). Further, the government has an ‘important state
            interest’ in collecting restitution, costs, and fines from
            incarcerated criminal offenders to compensate victims. See
            id. at 956.

Id. at 483. However, the Montanez Court acknowledged that “considering the factors
required by Mathews, the government’s interest in collecting restitution, fines, and
other costs from convicted criminals does not overcome the default requirement that
inmates be provided with process before being deprived of funds in their inmate
accounts[,]” and that sentencing hearings and post-deprivation grievance procedures
alone may be insufficient to comply with the standard established in Mathews.
Montanez, 773 F.3d at 485.

            The Montanez Court expounded:
            In Buck, the Pennsylvania Supreme Court held that the
            Pennsylvania and federal Constitutions did not require the
            [Department] to obtain a judicial determination of ability to
            pay prior to deducting funds from an inmate account. Id. at
            159–60. As the prior Third Circuit panel in this very case
            noted, the ‘Court’s reasoning in Buck informs our analysis,’
            but ‘it is not dispositive.’ Montanez [v. Beard, 344
            Fed.Appx. 833,] 835 [(3d Cir. 2009)].
Id.
            The Court continued:
            At a minimum, federal due process requires inmates to be
            informed of the terms of the [Department] Policy and the
            amount of their total monetary liability to the
            Commonwealth. See Higgins [v. Beyer], 293 F.3d [683,]
            694 [(3d Cir. 2002)]. In particular, the [Department]
            must disclose to each inmate before the first deduction:
            the total amount the [Department] understands the
            inmate to owe pursuant to the inmate’s sentence; the
                                         10
               rate at which funds will be deducted from the inmate’s
               account; and which funds are subject to deduction.
               Further, inmates must have a meaningful opportunity to
               object to the application of the [Department] Policy to
               their inmate accounts before the first deductions
               commence. This opportunity to object is required to
               protect against the possibility of error in the application of
               the [Department] Policy, such as mistakes in reporting of an
               inmate’s total liability or to ensure that deductions are not
               made from funds that are exempt. See Id. at 693 (Veterans
               Administration disability benefits are not subject to
               deduction to satisfy criminal fines).
               To be clear, we do not suggest that the [Department]
               must provide each inmate with a formal, judicial-like
               hearing before the onset of deductions. Moreover, we
               find nothing substantively unreasonable about the
               [Department’s] refusal to provide exceptions to its across-
               the-board 20% rate of deduction, in light of the fact that the
               [Department] will not make deductions when an inmate’s
               account falls below a certain minimum. Because we find
               the deduction rate to be reasonable, the [Department] need
               not entertain a challenge to the rate of deduction, though it
               must provide an opportunity for inmates to object to
               potential errors in the deduction process.
               We also do not mean to suggest that inmates must have an
               opportunity to be heard prior to each deduction. Rather,
               after providing the required initial notice the [Department]
               could provide inmates with an informal opportunity to
               supply written objections to prison administrators prior to
               the first deduction. See, e.g., Iowa Code § 904.702(1); Ohio
               Admin. Code 5120–5–03(C). We need not set forth
               specific procedures, and the [Department] retains discretion,
               consistent with its constitutional obligations, to implement
               such procedures in a flexible and cost-effective manner.

Montanez, 773 F.3d at 486 (emphasis added).
               Even if we view Montanez as instructive,11 it does not support Tate’s
claim that the Department’s inmate account deductions violated his due process rights

      11
        The Pennsylvania Supreme Court has held: “While we certainly find [Third Circuit
Appeals Court] decisions instructive, their holdings . . . are not binding on us or any other court of
this Commonwealth.” Goldman v. Se. Pa. Transp. Auth., 57 A.3d 1154, 1169 n.12 (Pa. 2012).
                                                 11
because he did not receive a pre-deduction hearing. The decision has little value
when determining whether Tate’s Amended Petition alone sets forth a due process
violation against the Department to withstand preliminary objections because the
Amended Petition, on its face, reflects that Tate was aware of what he owed in costs,
fines and restitution, and that he sought review under the Department’s grievance
procedures. Moreover, the Amended Petition does not state that he was deprived of
pre-deduction notice by way of the inmate handbook or written notice, but rather that
he was not afforded a pre-deprivation hearing which, even the Montanez Court
acknowledged, was not required. Accordingly, the Amended Petition fails to state
facts sufficient to support a claim that the Department’s failure to afford Tate a pre-
deduction hearing violated his due process rights.
             Tate further asserts that the Department improperly made deductions
from his earned income and gifts.          We disagree.       Section 9728(b)(5) of the
Sentencing Code, Act 84, expressly authorizes the Department, subject to its
developed guidelines, “to make monetary deductions from inmate personal accounts
for the purpose of collecting restitution or any other court-ordered obligation . . . . ”
42 Pa.C.S. § 9728(b)(5). This Court held that

             [t]he Legislature has not provided an exception for gifts
             placed in an inmate’s personal account, and it does not
             require the Department to account for the source of all
             funds in an inmate’s personal account before making
             deductions. The personal account of an inmate may be
             derived from various sources, including wages, gifts and
             government benefits. The source of funds is of no
             moment.

Danysh v. Dep’t of Corr., 845 A.2d 260, 263 (Pa. Cmwlth. 2004) (emphasis added),
aff’d, 881 A.2d 1263 (Pa. 2005). Moreover, although wages in an employer’s hands
are exempt from garnishment under Section 8127 of the Judicial Code, 42 Pa.C.S. §
8127, there is a specific exception “[f]or restitution to crime victims, costs, [or] fines .

                                            12
. . pursuant to an order entered by a court in a criminal proceeding.” 42 Pa.C.S. §
8127(a)(5). Further, this Court has recognized that

                [i]t has long been settled that an inmate at a correctional
                facility is not an employee of the correctional facility
                because there is no employer/employee relationship as an
                inmate’s labor belongs to the prison, and the remuneration
                paid to the inmate is a gratuitous payment authorized by the
                state as a rehabilitative tool rather than wages.

Heffran v. Dep’t of Labor & Indus., 863 A.2d 1260, 1263 (Pa. Cmwlth. 2004) aff’d,
886 A.2d 222 (Pa. 2005) (holding that an inmate was not an employee with standing
to file a complaint for violations of the Worker and Community Right-to-Know
Act12); see also Mays v. Fulcomer, 552 A.2d 750 (Pa. Cmwlth. 1989) (holding that
inmate remuneration for prison labor does not constitute wages under Section 8127 of
the Judicial Code). Thus, because “Act 84 allows the Department to make deductions
from all money in an inmate’s account, regardless of whether the source was the
inmate’s earned income or gifts from friends or family[,]” Tate’s Amended Petition
fails to state facts sufficient to support a claim that the Department improperly made
deductions from his earned income and gifts. Rosario v. Beard, 920 A.2d 931,
935 n.7 (Pa. Cmwlth. 2007).
                Tate finally argues that he is entitled to damages for mental anguish and
mental distress stemming from the deductions.                We disagree.   In the Amended
Petition, Tate specifically avers that his reduced inmate account funds left him with
“no money to buy[] basic cosmetic[s] for personal hygiene for personal usage,”
which caused emotional distress.            Amended Pet. at 16.       He contends that the
emotional distress caused headaches and increased blood pressure, and that he “[h]ad
numerous irrational outbursts, . . . lashing out towards commissary workers,



      12
           Act of October 5, 1984, P.L. 734, 35 P.S. §§ 7301-7320.
                                                13
counselors, unit managers and [Department] staff.” Amended Pet. at 7: see also
Amended Pet. at 16, 18.
              It is unclear whether Tate is alleging negligence or Department
employees intentionally and unlawfully took his money. The law is well settled that
under Section 8521 of the Judicial Code, commonly known as the Sovereign
Immunity Act,13 42 Pa.C.S. § 8521, “sovereign immunity 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).

              [S]overeign immunity may be overcome where the party
              can establish: (1) a common law or statutory cause of action
              under which damages could be recoverable if not for the
              immunity defense, and (2) the alleged negligent act falls
              within one of the nine specific exceptions provided in 42
              Pa.C.S. § 8522(b).[14]
              However, state employees do not lose their immunity for
              intentional torts, provided they are acting within the scope
              of their employment.

Id. at 157 (citation omitted; emphasis added).                Arguably, only the exception
pertaining to the care, custody or control of personal property applies to Tate’s claim.
This Court has held that the Commonwealth may be liable to an inmate for damage
to or negligent handling of personal property under its care, custody or control,
Williams v. Stickman, 917 A.2d 915 (Pa. Cmwlth. 2007). However, this Court has
also held that the taking of the property is not conduct that falls within that
exception. See Goodley v. Folino (Pa. Cmwlth. No. 2376 C.D. 2010, filed July 1,


       13
          42 Pa.C.S. §§ 8521-8528.
       14
          In 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). None of these
exceptions expressly apply in this case.
                                                14
2011). Thus, Tate may not recover in negligence for the alleged taking of money
from his inmate account. Moreover, because the Department employees’ deductions
from Tate’s inmate account and transfer to the clerk of courts were statutorily
mandated, sovereign immunity bars a claim for intentional conduct.
            Based upon the foregoing, the Department’s preliminary objections are
sustained and Tate’s Amended Petition is dismissed.

                                     ___________________________
                                     ANNE E. COVEY, Judge




                                        15
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania             :
Department of Corrections                :
Secretary of Corrections                 :
John E. Wetzel                           :
SCI Pittsburgh Accounting Manager        :
SCI Camp Hill Accounting Manager         :
SCI Chester Accounting Manager           :
SCI Benner Accounting Manager            :
Erie County Court of Common Pleas        :
Judge John Garhart                       :
Erie County Common Pleas                 :
Clerk of Record John Catalde,            :
                         Respondents     :
                                         :
                  v.                     :
                                         :
Amos Tate,                               :   No. 614 M.D. 2014
                        Petitioner       :


                                     ORDER

             AND NOW, this 8th day of February, 2016, the Pennsylvania
Department of Corrections’ preliminary objections are sustained, and Amos Tate’s
Amended Petition for Review is dismissed.


                                       ___________________________
                                       ANNE E. COVEY, Judge
