           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dennis Richard Stief,                        :
                                             : No. 477 C.D. 2016
                            Appellant        : Submitted: July 29, 2016
                                             :
                     v.                      :
                                             :
Steven Glunt, Superintendent,                :
Timothy Miller, Program Manager,             :
Jeffrey Rackovan, Grievance                  :
Officer and Dorina Varner, Chief             :
Grievance Officer                            :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: November 18, 2016



              Dennis Richard Stief, an inmate at the State Correctional Institution at
Rockview (S.C.I. Rockview), appeals pro se the order of the Centre County Court
of Common Pleas (trial court) sustaining the preliminary objections of prison
officials1 and dismissing his complaint seeking monetary damages and injunctive
relief. We affirm.



       1
          The named defendants are Steven Glunt, the superintendent of S.C.I. Rockview;
Timothy Miller, a program manager at the prison; Jeffrey Rackovan, a grievance officer at the
prison; and Dorina Varner, the prison’s chief grievance officer.
               In 1998, Stief was convicted of a number of offenses including
unlawful restraint, rape, and involuntary deviant sexual intercourse, and he was
subsequently sentenced to serve 102 months to 20 years imprisonment.2 In June
2008, and June 2010, the Department of Corrections (Department), recommended
that Stief participate in the institutional sexual offender treatment program (SOTP).
Stief did not comply with the Department’s recommendation because he refused to
admit his guilt, which is a prerequisite of the SOTP. In March 2013, he was denied
parole based on his failure to participate in the SOTP, and in June 2014, this Court
sustained the preliminary objections of the Pennsylvania Board of Probation and
Parole (Board) and dismissed Stief’s pro se petition for review seeking mandamus

      2
          The Superior Court summarized the facts underlying Stief’s criminal case as follows:

                       On April 16, 1998, [Stief] was convicted by a jury of rape,
               involuntary deviate sexual intercourse, two counts of indecent
               assault, indecent exposure, unlawful restraint, simple assault, and
               seven counts of criminal conspiracy. The evidence established that
               on September 20, 1997, M.M. was on a street in Reading, when
               she was approached by [Stief]’s brother, Francis, who was driving
               a car. She agreed to have sex with Francis for forty dollars, but
               when Francis drove her to a remote location where [Stief] was
               present, M.M. changed her mind and asked to be released. Instead,
               she was raped by Francis, and then assaulted by [Stief], who
               placed a knife to her face and threatened her with harm if she
               failed to cooperate with his demands. [Stief] thereafter raped
               M.M. and forced her to perform oral sex on him. On direct appeal,
               [the Superior Court] affirmed the convictions but remanded for re-
               sentencing. Commonwealth v. Stief, [(Pa. Super., No. 1269 HBG
               1998, filed May 4, 1999), appeal denied, 743 A.2d 919 (Pa. 1999).
               Stief] was re-sentenced on December 6, 1999, to 102 months to
               twenty years imprisonment. He did not file another direct appeal
               challenging the new sentence imposed.

Commonwealth v. Stief, (Pa. Super., Nos. 621 MDA 2012, 855 MDA 2012, filed November 21,
2012), slip op. at 2.


                                                2
relief to compel the Board to reconsider his application for parole. See Stief v.
Pennsylvania Board of Probation and Parole, (Pa. Cmwlth., No. 301 M.D. 2013,
filed June 27, 2014).
               In May 2014, Stief filed the instant petition for review pursuant to 42
U.S.C. §1983,3 alleging that the prison officials violated his equal protection and
due process rights.4 In the petition, Stief alleges that he was transferred to S.C.I.
Rockview in May 2011, and that he was assigned to work in the laundry
department. He states that the superintendent was assigned to the facility in July
2013, “after a brutal rape of a staff member by an inmate,” and that the
superintendent “decided that any inmate convicted of any type of sexual offense
would be forced to participate in [the Department’s SOTP] regardless of the fact
that such inmate was still appealing his conviction in the appellate courts, thus
violating [Stief]’s Fourteenth Amendment Right to Due Process and Equal
Protection.” Petition for Review at ¶2. Stief also asserts that he was removed from
his job “due to his non-compliance of submitting himself to the recommended
[SOTP],” and that the grievance he submitted due to his removal was denied by the


       3
         A complaint alleging a Section 1983 claim “must state that the defendant, under color of
state law, deprived the plaintiff of a right, privilege or immunity guaranteed by federal statutory
or constitutional law.” Clark v. Beard, 918 A.2d 155, 165 (Pa. Cmwlth. 2007). Section 1 of the
Fourteenth Amendment to the United States Constitution states, in relevant part, that “[n]or shall
any State deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

       4
          Stief filed the petition for review in this Court; however, we transferred the matter to the
trial court for disposition. See Fawber v. Cohen, 532 A.2d 429, 432 (Pa. 1987) (“In Balshy [v.
Rank, 490 A.2d 415, 420-21 (Pa. 1985)], we held that the Legislature intended to exclude all tort
actions for money damages from Commonwealth Court’s original jurisdiction, whether based on
common law trespass or Section 1983, because all of these action were in the ‘nature of trespass’
in that they sought money damages as redress for an unlawful injury.”) (emphasis in original).


                                                  3
prison officials based on DC-ADM 816 Section 1.B.6., which states that “[n]o
inmate has a right to be assigned or continue in any specific work/school
assignment,” and DC-ADM 816 Section 1.D.2., which states that an inmate may
forfeit general labor pool (GLP) compensation if he or she fails to “comply with
his/her Correctional Plan.” Id. at ¶¶3-5, 7-10; Exhibits B, C. Stief also contends
that “[t]he actions of all named defendants takes the ‘recommended’ participation
away from [him] and actually ‘mandates’ that [he] participate in treatment, thus
denying [him] any due process protections, pursuant to the Fourteenth
Amendment.” Id. at ¶13.
               The prison officials filed a demurrer to the complaint asserting that
under Section 1983, Stief must first demonstrate that the prison officials deprived
him of a constitutional or statutory right and that he has no such right in his prison
job.5 The prison officials also argued that while an inmate cannot be compelled to
participate in prescriptive programming such as the SOTP, he may be subject to
undesirable consequences based on his refusal,6 and DC-ADM 816 Section 1.D.2.
permits his removal from the laundry assignment due to his nonparticipation.
Finally, the prison officials also averred that they are not liable under Section 1983
because the superintendent was not personally involved in the alleged




       5
         See Miles v. Wiser, 847 A.2d 237, 240 (Pa. Cmwlth.), appeal denied, 864 A.2d 1206
(Pa. 2004) (holding that “an inmate’s interest in keeping a prison job does not amount to a
property right.”) (citation omitted).

       6
          See Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766, 778-79 (Pa.
Cmwlth. 1997) (holding that while an inmate is free to exercise his rights not to participate in the
SOTP or to not admit his guilt, “[h]e is not, however, immunized from all adverse consequences,
if any, arising from that refusal . . . .”).


                                                 4
wrongdoing,7 and that the other officials involved in the grievance process were
likewise not so personally involved to establish liability.8
               On October 5, 2015, the trial court sustained the preliminary
objections and dismissed Stief’s petition for review, finding that the “averments
indicate no personal involvement on the part of [the prison officials]” and that
“[b]ecause [Stief] has no right under the U.S. Constitution [to his prison job], he
cannot make a successful Section 1983 claim.” Trial Court 10/5/15 Opinion at 2.
On November 20, 2015, the trial court filed an order denying Stief’s “Objection to
Decision Rendered on 10-5-15 Non [sic] Pro Tunc,” declining to set aside its
opinion and order of October 5, 2015. On December 14, 2015, Stief filed a notice
of appeal to the Superior Court and the appeal was transferred to this Court.9
               On December 18, 2015, the trial court ordered Stief to file a Concise
Statement of Errors Complained of on Appeal (Concise Statement)10 pursuant to

       7
         See Sutton v. Rasheed, 323 F.3d 236, 249 (3rd Cir. 2003) (holding that a superintendent
who was not personally involved in the application of policy to the inmates was not liable under
Section 1983).

       8
         See Simonton v. Tennis, 437 Fed. Appx. 60, 62 (3rd Cir. 2011) (holding that “[a] bare
allegation of ‘rubber stamping’” or a prison official’s secondary review of an inmate’s grievance
or appeal “does not suffice to establish a cognizable constitutional violation.”).

       9
         Our review of the trial court’s order sustaining preliminary objections in the nature of a
demurrer and dismissing a complaint is limited to determining whether the law states with
certainty that no recovery is possible under the facts alleged. Bush v. Veach, 1 A.3d 981, 984 n.1
(Pa. Cmwlth. 2010). We will accept as true all well-pleaded allegations of material fact in the
complaint as well as all inferences reasonably deduced therefrom, and any doubt should be
resolved in favor of overruling the demurrer. Id.

       10
          Pa. R.A.P. 1925(b) states that “[i]f the judge entering the order giving rise to the notice
of appeal (‘judge’) desires clarification of the errors complained of on appeal, the judge may
enter an order directing the appellant to file of record in the trial court and serve on the judge a
concise statement of the errors complained of on appeal (‘[Concise] Statement’).”


                                                 5
Pa. R.A.P. 1925(b). On January 4, 2016, Stief mailed a timely Concise Statement
to the trial court that the court subsequently filed.
             In this appeal, Stief argues: (1) the trial court erred in sustaining the
preliminary objections because his prison work detail was terminated based on
discrimination and without valid cause thereby violating his equal protection
rights; (2) the trial court erred in sustaining the preliminary objections because his
civil action was to be liberally construed due to his status as a pro se litigant; and
(3) the trial court erred in sustaining the preliminary objections because the
Department does not retain sovereign immunity with respect to his claims.
             However, none of the foregoing claims were raised in Stief’s
Pa. R.A.P. 1925(b) Concise Statement. As the Supreme Court has explained:

             Our jurisprudence is clear and well-settled, and firmly
             establishes that: Rule 1925(b) sets out a simple bright-
             line rule, which obligates an appellant to file and serve a
             Rule 1925(b) statement, when so ordered; any issues not
             raised in a Rule 1925(b) statement will be deemed
             waived; the courts lack the authority to countenance
             deviations from the Rule’s terms; the Rule’s provisions
             are not subject to ad hoc exceptions or selective
             enforcement; appellants and their counsel are responsible
             for complying with the Rule’s requirements; Rule 1925
             violations may be raised by the appellate court sua
             sponte, and the Rule applies notwithstanding an
             appellee’s request not to enforce it; and, if Rule 1925 is
             not clear as to what is required of an appellant, on-the-
             record actions taken by the appellant aimed at
             compliance may satisfy the Rule.
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).
             Because Stief did not raise any of the claims asserted in the instant
appeal in his Concise Statement, or seek amendment or supplementation to the



                                            6
Concise Statement to include these claims,11 they are waived for purposes of
appeal. See Pa. R.A.P. 1925(b)(4)(vii) (“Issues not included in the [Concise]
Statement and/or not raised in accordance with the provisions of the paragraph
(b)(4) are waived.”); Burkett v. St. Francis Country House, 133 A.3d 22, 36 (Pa.
Super. 2016) (“A review of the record reveals St. Francis did not raise these
arguments in its Rule 1925(b) statement. Such an omission constitutes waiver.”)
(citations omitted). Therefore, Stief did not preserve these issues for our review.
              Accordingly, the trial court’s order is affirmed.




                                            MICHAEL H. WOJCIK, Judge




       11
           See Pa. R.A.P. 1925(c)(2) (“Upon application of the appellant and for good cause
shown, an appellate court may remand in a civil case for the filing nunc pro tunc of a [Concise]
Statement for amendment or supplementation of a timely filed and served [Concise] Statement
and for a concurrent supplemental opinion.”).


                                               7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dennis Richard Stief,                  :
                                       : No. 477 C.D. 2016
                        Appellant      :
                                       :
                  v.                   :
                                       :
Steven Glunt, Superintendent,          :
Timothy Miller, Program Manager,       :
Jeffrey Rackovan, Grievance            :
Officer and Dorina Varner, Chief       :
Grievance Officer                      :

                                    ORDER


            AND NOW, this 18th day of November, 2016, the order of the Centre
County Court of Common Pleas dated November 20, 2015, is AFFIRMED.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
