           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfonso Percy Pew,                                         :
                            Petitioner                     :
                                                           :
                     v.                                    :    No. 581 M.D. 2018
                                                           :    Submitted: August 9, 2019
John E. Wetzel, Secretary of Corrections,                  :
Shirley M. Smeal, Executive Deputy                         :
Secretary of Corrections, Steven Glunt,                    :
Regional Deputy Secretary of Corrections,                  :
Marcia Noles, Bureau Health Care Service                   :
Department of Corrections, Ulrich Klemm,                   :
Bureau Treatment Services Department of                    :
Corrections, Tracey Smith, Director Religious              :
Accommodation Committee Department of                      :
Corrections, Mahally, Superintendent PA. D.O.C.,           :
Demming, Deputy PA. D.O.C., Ronald Ott,                    :
Food Service Manager Pennsylvania                          :
Department of Corrections, Lt. Filipiak,                   :
Pennsylvania Department of Corrections,                    :
John Doe, Deputy Pennsylvania Department                   :
of Corrections, Sued in individual and official            :
capacities for monetary damages,                           :
                          Respondents                      :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ROBERT SIMPSON, Judge1
              HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                     FILED: November 21, 2019
              Before this Court in our original jurisdiction are the preliminary
objections of John E. Wetzel, Secretary of Corrections, to the pro se civil rights
complaint filed by Alfonso Percy Pew (Inmate). The complaint seeks a declaratory


1
  This matter was assigned to this panel before September 1, 2019, when Judge Simpson assumed
the status of senior judge.
judgment, injunctive relief, and monetary damages for Wetzel’s alleged violation of
Inmate’s constitutional rights. After review, we sustain the preliminary objections
and dismiss the complaint.
              On August 23, 2018, Inmate filed a complaint in the Court of Common
Pleas of Cumberland County (common pleas court) against Wetzel and numerous
other employees of the Department of Corrections (Department) in their individual
and official capacities (collectively Department Respondents).2 The complaint
averred that while Inmate was incarcerated at the State Correctional Institution at
Dallas (SCI-Dallas), he was entitled to a vegan diet for religious reasons. For eight
days in October of 2016, however, Inmate was given bologna sandwiches that made
him sick.     Complaint at 3, ¶3.        The complaint also averred that Department
Respondents have adopted a policy to feed bologna sandwiches to inmates in
medical observation rooms. Inmate was repeatedly denied his vegan diet despite
filing grievances. Department Respondents were aware of the situation but made
“excuses such as prison lock down.” Complaint at 5, ¶6. The complaint further
averred that a corrections officer destroyed Inmate’s property in retaliation for a
complaint he filed under the Prison Rape Elimination Act of 2003.3 Department
Respondents refused to “properly investigate and compensate [Inmate] for [his]
personal property loss.” Complaint at 9, ¶16.




2
  The named respondents are Shirley M. Smeal, Executive Deputy Secretary of Corrections; Steven
Glunt, Regional Deputy Secretary of Corrections; Marcia Noles, an official with the Department’s
Bureau of Health Care Services; Ulrich Klemm, an official with the Department’s Bureau of
Treatment Services; Tracey Smith, Director of the Department’s Religious Accommodation
Committee; Superintendent Mahally; Deputy Demming; Ronald Ott, the Department’s Food
Service Manager; Lieutenant Filipiak and Deputy John Doe.
3
  34 U.S.C. §§30301-30309.
                                               2
               Based upon the foregoing allegations, Inmate asserted a civil rights
action under 42 U.S.C. §19834 alleging violations of his rights under numerous
provisions of the Pennsylvania and United States Constitutions.5 Inmate sought a
declaratory judgment that his constitutional rights were violated; punitive and
compensatory damages from each Department Respondent; and an injunction
directing Department Respondents to serve him a vegan diet.
               The common pleas court transferred the matter to this Court pursuant
to Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. §761(a)(1).6 By order of

4
  42 U.S.C. §1983 provides in pertinent part:
        Every person who, under color of any statute, ordinance, regulation, custom, or
        usage, of any State or Territory or the District of Columbia, subjects, or causes to
        be subjected, any citizen of the United States or other person within the jurisdiction
        thereof to the deprivation of any rights, privileges, or immunities secured by the
        Constitution and laws, shall be liable to the party injured in an action at law, suit in
        equity, or other proper proceeding for redress….
5
  Inmate asserted that Department Respondents violated his rights under the following provisions
of the Pennsylvania Constitution: Article I, Section 1 (inherent rights of mankind); Article I,
Section 3 (religious freedom); Article I, Section 7 (freedom of press and speech); Article I, Section
8 (security from searches and seizures); and Article I, Section 13 (bails, fines and punishments).
PA. CONST. art. I, §§1, 3, 7, 8, 13. Inmate alleged violations of his rights under the First
Amendment to the United States Constitution (free exercise of religion) and the Eighth
Amendment to the United States Constitution (prohibition of cruel and unusual punishments).
U.S. CONST. amends. I, VIII.
6
  Inmate filed a motion with this Court “to fix jurisdiction and commence action,” in which he
asserted that the common pleas court rather than this Court has original jurisdiction over his claim
for monetary damages. Application for Relief (10/19/2018). By order of November 1, 2018, this
Court denied Inmate’s motion. Section 761(a)(1) of the Judicial Code provides:
       (a) General rule.–The Commonwealth Court shall have original jurisdiction of
       all civil actions or proceedings:
                (1) Against the Commonwealth government, including any official
                thereof, acting in his official capacity, except:
                        (i) actions or proceedings in the nature of
                        applications for a writ of habeas corpus or post-
                        conviction relief not ancillary to proceedings within
                        the appellate jurisdiction of the court;
                                                 3
November 28, 2018, this Court dismissed Inmate’s complaint against all Department
Respondents, except for Secretary Wetzel, because Inmate had failed to serve the
complaint as required by Pennsylvania Rule of Appellate Procedure 1514(c), PA.
R.A.P. 1514(c).        Secretary Wetzel, the only remaining respondent, has filed
preliminary objections in the nature of a demurrer seeking to dismiss the complaint
in its entirety.
               In ruling on preliminary objections, this Court “must accept as true all
well pleaded material allegations in the petition for review, as well as all inferences


                        (ii) eminent domain proceedings;
                        (iii) actions or proceedings conducted pursuant to
                        Chapter 85 (relating to matters affecting government
                        units);
                        (iv) actions or proceedings conducted pursuant to
                        the act of May 20, 1937 (P.L. 728, No. 193), referred
                        to as the Board of Claims Act; and
                        (v) actions or proceedings in the nature of trespass
                        as to which the Commonwealth government formerly
                        enjoyed sovereign or other immunity and actions or
                        proceedings in the nature of assumpsit relating to
                        such actions or proceedings in the nature of trespass.
42 Pa. C.S. §761(a)(1) (emphasis added). Our Supreme Court has held that this Court lacks
original jurisdiction over tort actions for monetary damages that are premised on either common
law trespass or a civil action for deprivation of civil rights under 42 U.S.C. §1983, because they
are within the exclusion found in Section 761(a)(1)(v). Balshy v. Rank, 490 A.2d 415 (Pa. 1985).
However, this Court has original jurisdiction over actions for injunctive and declaratory relief
because they are not actions “as to which the Commonwealth government formerly enjoyed
sovereign or other immunity.” 42 Pa. C.S. §761(a)(1)(v); Fawber v. Cohen, 532 A.2d 429, 433
(Pa. 1987). Further, to the extent prescribed by general rule, this Court has ancillary jurisdiction
over any claim that is related to a claim within its exclusive original jurisdiction. 42 Pa. C.S.
§761(c). See also Diess v. Department of Transportation, 935 A.2d 895 (Pa. Cmwlth. 2007)
(where alleged statutory violations and equity claims outweighed allegations of common law
nuisance, Section 761(c) of the Judicial Code vests this Court with ancillary jurisdiction to hear
the matter). Thus, even though this Court would not normally have jurisdiction over Inmate’s
claim for monetary damages, we do in this case because it is ancillary to Inmate’s requests for
injunctive and declaratory relief.
                                                 4
reasonably deduced therefrom.” Buoncuore v. Pennsylvania Game Commission,
830 A.2d 660, 661 (Pa. Cmwlth. 2003). We are not required to accept as true
“conclusions of law, unwarranted inferences from facts, argumentative allegations,
or expressions of opinion.” Id. For this Court to sustain preliminary objections, “it
must appear with certainty that the law will permit no recovery[.]” McCord v.
Pennsylvania Gaming Control Board, 9 A.3d 1216, 1219 (Pa. Cmwlth. 2010). If
there is any doubt, this Court should overrule the preliminary objections. Id. This
Court “may sustain a demurrer only when a petitioner has failed to state a claim for
which relief may be granted.” Armstrong County Memorial Hospital v. Department
of Public Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013).
             Section 1983 provides a remedy for deprivations of federally protected
rights committed by persons acting under color of state law. In order to state a claim
under Section 1983, a plaintiff must (1) allege a violation of rights secured by the
United States Constitution or the laws of the United States and (2) show that the
alleged deprivation was committed by a person acting under the color of state law.
Owens v. Shannon, 808 A.2d 607, 609 n.6 (Pa. Cmwlth. 2002). Notably, Section
1983 damage actions against state officials in their official capacity are barred
because a suit against a state official acting in his or her official capacity constitutes
a suit against the state itself, which is not a “person” under Section 1983. Watkins
v. Department of Corrections, 196 A.3d 272, 275 (Pa. Cmwlth. 2018) (quoting Will
v. Michigan Department of State Police, 491 U.S. 58, 64-71 (1989)). Nevertheless,
a state official acting in his or her official capacity, when sued for injunctive relief,
is a “person” under Section 1983 because “official-capacity actions for prospective
relief are not treated as an action against the state.” Verrichia v. Department of
Revenue, 639 A.2d 957, 962 n.11 (Pa. Cmwlth. 1994). Further, state officials “may


                                            5
be sued in their individual capacities and found liable for damages for violating
protected rights while in the course of their employment.” Schnupp v. Port Authority
of Allegheny County, 710 A.2d 1235, 1238 n.4 (Pa. Cmwlth. 1998). Finally, a claim
for monetary damages to remedy a violation of constitutional rights cannot be based
on vicarious liability or respondeat superior; to state such a cause of action against
a government official under Section 1983, the plaintiff must allege that the
individual defendant was personally involved in the alleged wrongdoings. Watkins,
196 A.3d at 276.
               In his complaint, Inmate does not allege any specific wrongdoings
perpetrated upon him by Secretary Wetzel. The complaint avers that Wetzel,
together with the other Department Respondents, adopted a policy that inmates
housed in medical observation rooms would receive bologna sandwiches. It avers
that Wetzel was aware of Inmate’s diet restrictions but did not take action. The
grievance attached to the complaint indicates, however, that Inmate started to receive
his vegan diet on October 20, 2016, after the “medical and officer in [the medical
observation room]” was informed of the issue. Complaint, Exhibit 1. The complaint
does not identify Inmate’s religious affiliation nor does it allege that Wetzel was
personally involved in denying Inmate a vegan diet. Likewise, the complaint does
not allege that Wetzel was personally involved in destroying Inmate’s personal
property in retaliation for his complaint under the Prison Rape Elimination Act. In
short, Inmate’s conclusory complaint fails to specify how Wetzel infringed on his
free exercise of religion or any other rights secured by the United States and
Pennsylvania Constitutions. To the extent Inmate seeks to hold Wetzel vicariously
liable for the actions of his subordinates, his claim must be dismissed. Watkins, 196
A.3d at 276.


                                          6
             In sum, Inmate has failed to allege any specific acts on the part of
Wetzel that, if accepted as true, would establish his liability or entitle Inmate to the
relief that he seeks. Because the complaint does not state a legally cognizable cause
of action against Wetzel, we sustain Wetzel’s preliminary objections in the nature of
a demurrer and dismiss Inmate’s complaint with prejudice.


                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                           7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfonso Percy Pew,                                  :
                         Petitioner                 :
                                                    :
                  v.                                :   No. 581 M.D. 2018
                                                    :
John E. Wetzel, Secretary of Corrections,           :
Shirley M. Smeal, Executive Deputy                  :
Secretary of Corrections, Steven Glunt,             :
Regional Deputy Secretary of Corrections,           :
Marcia Noles, Bureau Health Care Service            :
Department of Corrections, Ulrich Klemm,            :
Bureau Treatment Services Department of             :
Corrections, Tracey Smith, Director Religious       :
Accommodation Committee Department of               :
Corrections, Mahally, Superintendent PA. D.O.C.,    :
Demming, Deputy PA. D.O.C., Ronald Ott,             :
Food Service Manager Pennsylvania                   :
Department of Corrections, Lt. Filipiak,            :
Pennsylvania Department of Corrections,             :
John Doe, Deputy Pennsylvania Department            :
of Corrections, Sued in individual and official     :
capacities for monetary damages,                    :
                          Respondents               :



                                      ORDER

            AND NOW, this 21st day of November, 2019, the preliminary
objections in the nature of a demurrer to the complaint filed by Alfonso Percy Pew
are SUSTAINED, and the complaint is DISMISSED with prejudice.


                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
