           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joshua Payne,                               :
                            Appellant       :
                                            :
              v.                            :    No. 587 C.D. 2018
                                            :    Submitted: July 6, 2018
Scott Whalen                                :
Adam S. Huber                               :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: April 25, 2019


              Appellant Joshua Payne (Payne) appeals, pro se, from an order of the
Court of Common Pleas of Cumberland County (trial court), dated March 29, 2018.
The trial court granted the motion for summary judgment filed by Scott Whalen
(Whalen) and Adam Shane Huber (Huber) (collectively, Appellees) and denied
Payne’s motion for the same, thereby dismissing an amended complaint (Amended
Complaint) filed by Payne. For the reasons below, we affirm.
              On May 1, 2014, Payne, an inmate then housed at the State Correctional
Institution at Camp Hill (SCI-Camp Hill),1 filed a complaint against Appellees and
numerous other employees of SCI-Camp Hill (collectively, Department Defendants)

       1
       It appears that Payne is now housed at the State Correctional Institution at Mahanoy
(SCI-Mahanoy).
in their capacity as correctional officers employed by the Department of Corrections
(Department). Payne asserted that Department Defendants negligently lost seven
hundred family photos that he received in the mail. Department Defendants filed
preliminary objections, raising the affirmative defense of sovereign immunity. The
trial court sustained Department Defendants’ preliminary objections and dismissed
Payne’s complaint with prejudice. Payne appealed to this Court, and we reversed,
concluding that sovereign immunity did not apply to bar Payne’s negligence claim.
See Payne v. Whalen (Pa. Cmwlth., No. 2100 C.D. 2014, filed August 20, 2015).
              Thereafter, Payne filed the Amended Complaint. In so doing, Payne
named only Appellees as defendants. (Amended Complaint ¶¶ 1-2.) Payne also
made the following factual averments. The Department has a policy that an inmate
may not have more than ten publications or photographs in his cell at any given time.
(Id. ¶ 10.) If an inmate receives additional publications or photographs when he
already has ten inside his cell, the Department will confiscate them. (Id.) After
confiscation, Huber maintains possession of the items, as he is the Special
Management Unit’s Property Officer. (Id. ¶¶ 10-11.) In addition to this policy, the
Department has a Code of Ethics by which Department employees must abide.2
(Id. ¶ 4.) The Code of Ethics provides, inter alia, that “[t]he personal property of
inmates will be handle[d] with extreme care and disposed of only by properly
designated authority in a manner designated by official [Department] policy.”
(Id. ¶ 5 (citing Department Code of Ethics).)
       2
        We take judicial notice of the Department’s Code of Ethics, which appears on the
Department’s official website at:
       https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/Code%20of
       %20Ethics.pdf.
(last visited March 21, 2019). See Figueroa v. Pa. Bd. of Prob. & Parole, 900 A.2d 949, 950 n.1
(Pa. Cmwlth. 2006) (taking judicial notice of information found on Department website).

                                              2
             Payne, while apparently already maintaining ten publications or
photographs in his cell, received seven hundred photographs in the mail. (Id. ¶ 9.)
Payne avers that Whalen ordered the confiscation of the photographs, after which
time Huber maintained possession of them. (Id.) Thereafter, the photographs were
lost, which Payne attributes to Huber’s negligence. (Id. ¶¶ 8-10.) In support of this
accusation, Payne attached a document entitled “Confiscated Items Receipt,” which
purports to show that a Department employee confiscated seven hundred
photographs from Payne, on June 13, 2013, which were placed into property storage.
(Id. at Exhibit A.)
             In light of these averments, Payne alleged negligence against Appellees
due to the loss of his photographs. (Id. ¶¶ 15-22.) Against Huber, Payne alleged
that Huber owed a duty to Payne to exercise reasonable care over his property and
failed to exercise such care in allowing the photographs to become lost.
(Id. ¶¶ 15-16.) Against Whalen, Payne alleged that Whalen owed him a duty to
appoint competent staff members to oversee his property, and Whalen breached that
duty by appointing Huber as the Property Officer. (Id. ¶¶ 19-20.) Payne further
alleges that Whalen knew or should have known that Huber’s incompetence would
render Huber incapable of performing the Property Officer’s duties. (Id. ¶ 20.)
Payne asserts that Appellees’ negligence caused him physical and emotional harm.
(Id. ¶¶ 17-18, 21-22.)
             Thereafter, Appellees filed an Answer with New Matter.           While
Appellees admitted that they both worked as employees within the Special
Management Unit at SCI-Camp Hill, they denied that Whalen ordered the
confiscation of the photographs or that Huber confiscated and/or lost them. To that
point, Appellees appeared to question the existence of the photographs and alleged


                                         3
that Payne forged the Confiscated Items Receipt. Further, Appellees raised the
defense of sovereign immunity and asserted that Payne failed to exhaust his
administrative remedies.
               Following discovery, the parties filed cross-motions for summary
judgment. In Payne’s motion, he argued that no dispute existed as to Appellees’
confiscation and subsequent loss or destruction of his photographs and that no
rational trier of fact could find in Appellees’ favor. Conversely, Appellees asserted
that they did not confiscate or lose Payne’s photographs. Further, Appellees argued
that sovereign immunity barred Payne’s claim, as Payne did not assert that Appellees
acted outside the course and scope of their employment and Payne’s claim does not
fit into one of the enumerated exceptions to sovereign immunity.
               By opinion and order dated March 29, 2018, the trial court granted
Appellees’ motion, denied Payne’s motion, and dismissed the Amended Complaint.
In so doing, the trial court explained that Payne did not establish “a duty owed to
him by [Appellees], and, therefore, [Appellees] are entitled to summary judgment.”
(Trial Court Opinion at 3.)3 Payne now appeals the trial court’s order.
               On appeal,4 Payne argues that the trial court erred or abused its
discretion in granting Appellees’ motion for summary judgment and denying his

       3
         Additionally, the trial court’s opinion states that Payne also alleged a breach of contract
claim, and the trial court granted summary judgment in favor of Appellees on this claim as well.
We note that the Amended Complaint did not include a breach of contract claim. Further, the trial
court did not address the applicability of sovereign immunity.
       4
         This Court’s review of a trial court’s order granting a motion for summary judgment is
limited to considering whether the trial court erred as a matter of law or abused its discretion.
Lambert v. Katz, 8 A.3d 409, 413 n.3 (Pa. Cmwlth. 2010), overruled on other grounds by Cagey
v. Commonwealth, 179 A.3d 458 (Pa. 2018). A court may grant a motion for summary judgment
only when there is no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Bronson v. Horn, 830 A.2d 1092, 1094 (Pa. Cmwlth. 2003), aff’d,


                                                 4
motion of the same. Payne maintains that he established prima facie evidence of
Appellees’ negligence as to survive a motion for summary judgment. Specifically,
Payne asserts that he established that (1) Appellees owed him a duty to not
negligently lose or destroy his property, and (2) Appellees breached that duty.
               We begin by addressing Payne’s first claim of error—that the trial court
erroneously concluded that Appellees did not owe a duty to Payne. Payne, again
citing the Department’s Code of Ethics, argues that the record establishes that
Appellees owed him a duty not to lose or destroy his property.
               In order to maintain an action for negligence, one must prove: (1) the
defendant had a duty or obligation recognized by law; (2) the defendant breached
that duty; (3) a causal connection between the defendant’s conduct and the resulting
injury; and (4) actual damages. Page v. City of Philadelphia, 25 A.3d 471, 475 (Pa.
Cmwlth. 2011), appeal denied, 40 A.3d 124 (Pa. 2012). “The question of whether
a duty exists is purely a question of law.” Brown v. Dep’t of Transp., 11 A.3d 1054,
1056 (Pa. Cmwlth. 2011).
               Here, the trial court concluded that Payne failed to establish that
Appellees owed a duty to Payne with respect to his personal belongings. Analogous
jurisprudence from this Court, however, differs with the trial court’s conclusion.
               In Samuels v. Walsh (Pa. Cmwlth., No. 318 C.D. 2014, filed
November 17, 2014),5 an inmate (Samuels) filed a complaint against Department

848 A.2d 917 (Pa. 2004), cert. denied, 543 U.S. 944 (2004). The right to judgment must be clear
and free from doubt. Id. In reviewing the granting of a motion for summary judgment, this Court
must “view the record in the light most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved against the moving party.” Pappas
v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001), cert. denied, 536 U.S. 938 (2002).
       5
          Pursuant to Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code
§ 69.414(a), an unreported panel decision of this Court, issued after January 15, 2008, may be cited
for its persuasive value.

                                                 5
employees for the negligent loss of personal property. In so doing, Samuels averred
that he maintained personal property and legal documents in his cell. Later, Samuels
was transferred to a Restricted Housing Unit (RHU) for a short time. Upon his return
from the RHU, Samuels’ property and documents were no longer in his cell.
Samuels filed a complaint and alleged that the Department employees’ negligence
caused the loss of his personal property. Citing to the Department’s internal policies,
Samuels averred that the Department employees had a duty to safely secure his
property. The Department employees filed preliminary objections, arguing, inter
alia, that Samuels failed to state a claim for which relief may be granted. A court of
common pleas sustained the Department employees’ preliminary objections, and
Samuels appealed. This Court reversed, opining that Samuels’ complaint adequately
alleged that “consistent with Department policies and regulations, [the Department
employees] had a duty to secure and protect Samuels’ property.” Samuels, slip op.
at 9.
             We encountered a similar situation in Palmer v. Doe (Pa. Cmwlth.,
No. 2451 C.D. 2015, filed May 5, 2016). In Palmer, an inmate (Palmer) purchased
two items—a lamp and typewriter ribbons—which he maintained in his cell.
Thereafter, Palmer was transferred to the RHU for a short time. Upon his transfer
from the RHU to a new cell, Palmer found that those items were missing from the
rest of his personal belongings. Palmer filed a complaint sounding in negligence in
which he alleged that Department employees failed to follow their own policy of
properly inventorying and returning his personal property. A court of common pleas
dismissed Palmer’s complaint as frivolous, and Palmer appealed.            This Court
reversed, concluding that Palmer’s complaint included sufficient facts and
allegations such that the Department’s policy imposed a duty upon the Department


                                          6
employees to secure and protect inmate property. Palmer, slip op. at 10. In so doing,
we cited to another unreported case, Pelzer v. Pry (Pa. Cmwlth., No. 50 C.D. 2012,
filed May 15, 2013), wherein we reviewed a similar complaint and opined:
             In his [a]ction [the inmate] describes the [Department
             employees’] duties in their roles as property officers or
             security officers, which include transporting, receiving,
             inventorying, and searching inmate property at [the State
             Correctional Institution]. It is reasonable to infer that [the
             Department employees] are to perform these duties in a
             non-negligent manner. [The inmate] alleges that [the
             Department employees] negligently performed their work
             duties, thereby causing the loss or destruction of his
             property. We are satisfied that [the inmate’s] allegations
             have sufficiently set forth the necessary elements for a
             negligence claim . . . .
Pelzer, slip op. at 11 (citations omitted).
             Though the above cases are unreported, this Court appears to have
adopted the logic espoused in Palmer in the reported decision of Whitaker v. Wetzel,
170 A.3d 568 (Pa. Cmwlth. 2017), where an inmate filed suit after Department
employees confiscated and later destroyed pictures that were sent to him via mail.
Notably, the inmate did not allege negligence but instead alleged constitutional
violations. While noting that the inmate did not sufficiently claim constitutional
violations, we explained that a claim in negligence could have been available to him
if he pleaded accordingly. Specifically, we explained:
                    While prisoners obviously surrender a great many
             rights benefitting society at large, they remain entitled to
             possess undisturbed the property to which they are
             permitted in their confined setting, subject to the
             appropriate rules of the penal institution. To the extent
             [the inmate] claims that the photographs were destroyed
             as a result of [the Department employees’] intentional acts,
             these claims are properly dismissed. However, had [the
             inmate] alleged that [the Department employees] acted
             negligently in protection of his property which was “in the
                                              7
               prison officials’ care, custody and control,” he would “not
               be precluded from pursuing [a] claim [for negligence]”
               against them. Palmer[, slip op. at 10].
               ....
               The [Department employees] at issue may (or may not)
               have been negligent in doing their job, but [the inmate’s]
               filings cannot be read as alleging anything but the most
               devious conduct on their part, and certainly cannot be seen
               as claiming that he is victim of their negligence. In
               proceeding in this way, [the inmate] has foregone his
               opportunity to pursue an avenue which may have
               otherwise been open to him.
Whitaker, 170 A.3d at 574-75 (footnotes omitted) (internal citation omitted).
               Here, the trial court provided no discussion regarding Appellees’ duty
to handle Payne’s property in a non-negligent manner. The extent of the trial court’s
discussion on this matter includes one conclusory sentence: “[Payne] has not
established a duty owed to him by [Appellees], and, therefore, [Appellees] are
entitled to summary judgment.”            (Trial Court Opinion at 3.)          As previously
mentioned, however, the Department’s Code of Ethics provides that “[t]he personal
property of inmates will be handled with extreme care and disposed of only by
properly designated authority in a manner designated by official [Department]
policy.”     (Department Code of Ethics, at 3.)            Upon review of the Amended
Complaint and the jurisprudence highlighted above, we determine that Payne
established that Appellees owed him a duty to “secure and protect” his property. See
Samuels, slip op. at 9. Accordingly, we conclude that the trial court erred in
determining that Appellees owed no duty to Payne with respect to his personal
property.6

       6
        In their brief in support of their summary judgment motion, Appellees cited to Tillman v.
Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 575 M.D. 2011, filed
February 22, 2013) for the proposition that the Department’s Code of Ethics is an administrative


                                               8
               Although the trial court concluded that Appellees did not owe a duty to
Payne, it concluded that even if a duty existed, Appellees did not breach that duty.
To this point, the trial court opined:
               Even if [Payne] had established [that Appellees] owed a
               duty to him, [Payne] failed to establish a breach of duty
               occurred. [Payne’s] deposition admits that: (1) [Payne]
               does not know if [Whalen] ever handled his personal
               property; (2) [Whalen] never personally confiscated
               anything from him[;] and (3) [Payne] never saw, counted,
               or had access to the 700 photographs at issue. [Payne] has
               offered no evidence supporting that [Huber] acted
               unreasonably or that he negligently handled the
               photographs.
(Trial Court Opinion at 3-4.)
               In order to withstand a motion for summary judgment, a nonmoving
party “must adduce sufficient evidence on an issue essential to his case and on which
he bears the burden of proof such that a jury could return a verdict in his favor.”
Ertrel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa.), cert. denied, 519 U.S. 1008
(1996). A non-movant’s failure to adduce such evidence “establishes that there is
no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law.” Id. If a plaintiff fails to establish one of the essential elements of
actionable negligence, the defendant has valid grounds for summary judgment.
Braxton v. Dep’t of Transp., 634 A.2d 1150, 1158 (Pa. Cmwlth. 1993), appeal
denied, 652 A.2d 1326 (Pa. 1994).



policy that does not create a right for a cause of action. To that point, we agree. This Court has
held multiple times that a failure to comply with a Department policy is not a basis for a cause of
action. See, e.g., Bullock v. Horn, 720 A.2d 1079, 1082 n.6 (Pa. Cmwlth. 1998). This proposition,
however, does not negate the fact that Appellees had a duty not to lose or destroy Payne’s property
through negligence. This proposition, although memorialized in the Department’s Code of Ethics,
could also stand independent of Payne’s citation thereto. See Whitaker, 170 A.3d at 574-75.

                                                9
            Here, we agree with the trial court that Payne failed to establish that
either Appellee breached his duty. During discovery, Appellees deposed Payne.
During this deposition, Payne made a number of admissions. With respect to
Whalen, Payne admitted that Whalen never confiscated anything from him, and he
only brought suit against him because he enforced the Department’s confiscation
policy. Specifically, Payne’s deposition testimony provided:
            Q: All right. And you also sued [Whalen], W-H-A-L-E-
               N. Why did you sue him?
            A: Because he was the one to enforce the practice of
               confiscating incoming magazines, books, and
               photographs.
            Q: All right. Do you know if he ever handled your
               property—
            A: No.
            Q: —personally?
            A: No.
            Q: Did he ever confiscate anything from you?
            A: No.
(Original Record (O.R.), Item 41, Exhibit A, at 35-36.)        Payne made similar
concessions with respect to Huber. After being asked if Huber took the photographs,
Payne stated:
            A: Yes, he’s the one—I don’t know, did he take the
               photographs, he gave me the confiscation slip. I don’t
               know that he took the photographs. Whoever did the
               mail that day was the one that confiscated [them].
            Q: Well, when he gave you the slip, did he say we’re
               taking your photographs or I’m taking your
               photographs?
            A: No, he never—he gave me a confiscation slip.
(Id. at 41.) Further, with respect to the Confiscated Items Receipt itself, Payne
admits that he does not know who signed it. (Id. at 38.)

                                        10
             In attempting to establish Appellees’ negligence, Payne failed to put
forward any evidence that establishes either Whalen or Huber had any involvement
in the negligent loss or destruction of his photographs. The extent of Payne’s
evidence is a Confiscated Items Receipt signed by an unknown actor. Although the
Confiscated Items Receipt potentially establishes that an unknown Department
employee confiscated Payne’s photographs, Payne has put forward no evidence
establishing that either Whalen or Huber participated in any way in the negligent
loss or destruction thereof. Payne is merely relying on his allegation that Appellees
were responsible for the loss of his photographs, but mere conclusory allegations in
the pleadings are not sufficient to establish a breach of duty. Hughes v. Council 13,
Am. Fed. of State, Cty., & Mun. Emps., AFL-CIO, 629 A.2d 194, 195 (Pa. Cmwlth.),
aff’d per curiam, 640 A.2d 410 (Pa. 1994).
             Moreover, Whalen cannot be liable based solely on his supervisory
position. A negligence action may not lie against a public official if there is no
averment that the individual committed a wrongful act in his official capacity or by
his personal action, and the action is solely predicated upon a theory of respondeat
superior. See Witt v. Dep’t of Banking, 409 A.2d 932, 934 (Pa. Cmwlth. 1980), aff’d
per curiam, 425 A.2d 374 (Pa. 1981). Specifically, “[c]onsistent with the interest in
unimpaired decisionmaking, we believe it appropriate to protect from the possibility
of suit a public servant who has not himself engaged in actionable conduct. Thus,
those in the ‘chain of command’ should not be subject to suit on any theory of
vicarious responsibility.” Id. (quoting DuBree v. Commonwealth, 393 A.2d 293,
295 (Pa. 1978) (plurality)). Thus, the trial court correctly concluded that Appellees
did not breach their duty owed to Payne.




                                         11
               Accordingly, the order of the trial court, granting Appellees’ motion for
summary judgment and denying Payne’s motion of the same, is affirmed.7




                                                P. KEVIN BROBSON, Judge




       7
         As we have concluded that the trial court did not err or abuse its discretion in granting
Appellees’ motion for summary judgment, we conclude for the same reasons that the trial court
did not err or abuse its discretion in denying Payne’s motion of the same. As the trial court
correctly determined that Payne did not establish that Appellees breached their duty owed to
Payne, Payne’s right to judgment was not clear and free from doubt, as is required for summary
judgment. See Bronson, 830 A.2d at 1094.

                                               12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joshua Payne,                        :
                       Appellant     :
                                     :
           v.                        :   No. 587 C.D. 2018
                                     :
Scott Whalen                         :
Adam S. Huber                        :



                                   ORDER


           AND NOW, this 25th day of April, 2019, the order of the Court of
Common Pleas of Cumberland County, granting the motion for summary judgment
filed by Scott Whalen and Adam S. Huber and denying the motion for summary
judgment filed by Joshua Payne, is AFFIRMED.




                                     P. KEVIN BROBSON, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joshua Payne,                             :
                   Appellant              :
                                          :   No. 587 C.D. 2018
             v.                           :
                                          :   Submitted: July 6, 2018
Scott Whalen                              :
Adam S. Huber                             :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge



OPINION NOT REPORTED

CONCURRING/DISSENTING OPINION
BY JUDGE McCULLOUGH                                         FILED: April 25, 2019


             I concur with the Majority insofar as it affirms the order of the Court of
Common Pleas of Cumberland County (trial court) granting the motion for summary
judgment in favor of Scott Whalen. However, I respectfully disagree with the
Majority to the extent it affirms the order of the trial court granting the motion for
summary judgment in favor of Adam S. Huber.
             With respect to Huber, Joshua Payne (Appellant) specifically alleged
in his amended complaint that the Department of Corrections (Department) had
promulgated a Code of Ethics which required “[t]he personal property of inmates
[to] be handle [sic] with extreme care and disposed of only by properly designated
authority in a manner designated by official [Department] policy.” (Amended
Complaint ¶¶ 4-5.) Appellant also alleged that Huber, who served as the property
officer for the special management unit, failed to abide by this Code of Ethics and
failed to exercise extreme care when he lost Appellant’s personal photographs that
were placed in his possession. (Amended Complaint ¶8.) Appellant stated that the
Department maintains a policy limiting an inmate to no more than 10 publications
or photographs in his cell at any given time, that any excess publications or
photographs are confiscated upon arrival, and that Huber maintains possession of
the items after confiscation consistent with his duties as property officer. (Amended
Complaint ¶¶ 10-11.) Appellant further testified by way of deposition that Huber
provided him with a confiscation slip relating to several hundred personal
photographs that have gone missing. (Original Record, Item 41.)
             While the Majority correctly notes that Appellant admitted in his
deposition that he did not know if Huber had actually confiscated the photographs
or signed the confiscation slip, I do not believe such admissions were sufficient to
warrant the trial court’s grant of summary judgment in Huber’s favor, as the Majority
so concluded. The Majority aptly describes the burden on a nonmoving party in
order to withstand a motion for summary judgment, i.e., he “must adduce sufficient
evidence on an issue essential to his case and on which he bears the burden of proof
such that a jury could return a verdict in his favor.” Ertel v. Patriot-News Co., 674
A.2d 1038, 1042 (Pa. 1996). Additionally, the failure to adduce such evidence
“establishes that there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Id.
             Here, the allegations of Appellant’s amended complaint, coupled with
his deposition testimony, establish that genuine issues of material fact remain as to
whether or not Huber took possession of Appellant’s personal photographs and
whether he exercised the “extreme care” required by the Department’s Code of


                                      PAM - 2
Ethics relating to the handling of inmate property and/or properly disposed of the
same. For these reasons, I would reverse the order of the trial court to the extent it
granted summary judgment in Huber’s favor.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                      PAM - 3
