Karolski v. PA Dept of Corr.

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Clifford Karolski, Petitioner v. PA Dept of Corrections, et al., Respondents

No. 151 M.D. 2023

Commonwealth Court of Pennsylvania

October 11, 2024

OPINION NOT REPORTED

Submitted: September 9, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

MEMORANDUM OPINION

ANNE E. COVEY, JUDGE

Before this Court is the Pennsylvania Department of Corrections' (DOC), and DOC Sergeants Leonard's (Sgt. Leonard) and Swarigin's (Sgt. Swarigin)^[1] (collectively, Respondents) Preliminary Objection^[2] to Clifford Karolski's (Karolski) pro se Petition for Review in the nature of a Complaint (Petition) filed in this Court's original jurisdiction. After review, this Court sustains Respondents' Preliminary Objection and dismisses the Petition.

Facts

Karolski is currently incarcerated at the State Correctional Institution (SCI) at Forest. On March 16, 2023, Karolski filed the Petition against DOC and Sgt. Swarigin and Sgt. Leonard in their official and individual capacities.^[3] Karolski averred in the Petition:

FACTS

8. The [R]espondents [Sgts.] Leonard [and] Swarigin stole [] [Karolski's] following listed property while [Karolski] was being held in the Restrictive Housing Unit [(RHU)] of [SCI-]Camphill [sic].

List of stolen items

* * *

values^[4]

^{* * *}

Total of [S]tolen Property

Total=$1,231.09.

9. The [R]espondents [Sgts.] Leonard [and] Swarigin violated their employment duties to provide [c]are, [c]ustody [and] [c]ontrol when they stole [Karolski's] personal property.

10. The [R]espondents [Sgts.] Leonard [and] Swarigin violated [DOC's] [C]ode of [E]thics when they stole [Karolski's] personal property.

11. [DOC,] being the employer of the [R]espondents [Sgts.] Leonard [and] Swarigin[,] it is liable for the actions of its employees [R]espondents [Sgts.] Leonard [and] Swarigin stealing [Karolski's] personal property.

12. The [R]espondents [Sgts.] Leonard [and] Swarigin committed the criminal act of [Section 5301 of the Crimes Code,] 18 Pa.[C.S.] § 5301[,] official oppression when they stole [Karolski's] personal property.

Petition at 2-5.

In the Petition, Karolski also avers that at all relevant times, DOC was responsible for the care, custody, and control of his property, see Petition ¶ 3, and that Sgt Leonard and Sgt. Swarigin were responsible for his personal property while he was being housed in the RHU at SCI-Camp Hill. See Petition ¶¶ 4-5. Karolski claims that he has exhausted his administrative remedies.^[5] See Petition ¶ 13. Karolski seeks $1,231.09 for the loss of property allegedly stolen from him, and $49.70 to cover the cost of copies made in litigating this matter thus far. See Petition ¶¶ 14-15. In addition, Karolski requests "[c]osts of litigation to be determined." Petition ¶ 16.

On June 14, 2023, Respondents filed their Preliminary Objection in the nature of a demurrer, asserting therein that since Karolski has failed to allege sufficient facts establishing that anything occurred beyond the intentional confiscation of his personal property, Respondents are protected by sovereign immunity, and this action must be dismissed.^[6] On that same date, Respondents filed a brief in support of their Preliminary Objection.^[7] By August 11, 2023 Order, this Court directed Karolski to file a brief in opposition to the Preliminary Objection, which he did on September 1, 2023.

Discussion

Initially,

[i]n ruling on preliminary objections, we must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. Th[is] Court 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 any doubt should be resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits every well-pleaded fact in the [petition for review] and all inferences reasonably deducible therefrom. It tests the legal sufficiency of the challenged pleadings and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief can be granted. When ruling on a demurrer, a court must confine its analysis to the [petition for review].

McNew v. E. Marlborough Twp., 295 A.3d 1, 8-9 (Pa. Cmwlth. 2023) (emphasis added) (quoting Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted)).

Respondents argue that Karolski has failed to state a claim upon which relief may be granted. Specifically, Respondents contend that because Karolski has failed to allege sufficient facts to establish that anything occurred beyond the intentional confiscation of his personal property, Respondents are entitled to sovereign immunity.

Although the Commonwealth [of Pennsylvania (Commonwealth)] and its agencies are generally shielded by the defense of sovereign immunity, our General Assembly has waived that defense "as a bar to an action against Commonwealth parties[] for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity." 42 Pa.C.S. § 8522(a). Thus, "[t]o impose liability on a Commonwealth party, (1) the alleged negligent act must involve a cause of action that is recognized at common law or by a statute, and (2) the case must fall within one of [the] exceptions to sovereign immunity listed in Section 8522(b)" of what is commonly referred to as the Sovereign Immunity Act. Bufford v. Pa. Dep't of Transp., 670 A.2d 751, 753 (Pa. Cmwlth. 1996) (citing 42 Pa.C.S. § 8522(b)).

Young v. Wetzel, 260 A.3d 281, 289 (Pa. Cmwlth. 2021) (footnotes omitted). However, "[s]overeign immunity is not waived for intentional acts committed by a Commonwealth employee acting within the scope of his or her employment." Paluch v. Pa. Dep't of Corr., 175 A.3d 433, 438 (Pa. Cmwlth. 2017). Further, "[t]he tort of conversion of property does not sound in negligence; it embodies a claim of intentional wrongdoing." Sutton v. Bickell, 220 A.3d 1027, 1035 (Pa. 2019). Moreover, this Court "recognize[s] that intentional conduct may fall within, or outside, the scope of a state employee's duties, depending on the circumstances." Id.

Here, Karolski averred: "[Sgts.] Leonard [and] Swarigin stole [] [Karolski's] following listed property while [Karolski] was being held in the [RHU] of [SCI-]Camp[ H]ill[,]" Petition ¶ 8, and that "[Sgts.] Leonard [and] Swarigin violated their employment duties to provide [c]are, [c]ustody[, and] [c]ontrol when they stole [Karolski's] personal property." Petition ¶ 9. This is the entirety of his "FACTS" as alleged in the Petition. Petition at 2. The Petition is devoid of any facts averring specifically (1) when the alleged takings occurred, i.e., what dates did the alleged takings occur; (2) what occurred, i.e., did Sgts. Leonard and Swarigin allegedly take Karolski's property while Karolski was present or when Karolski was away from his cell; (3) where the property was taken from, i.e., was the property out in the open, in a foot locker, or in storage; and/or (4) which individual or individuals did the taking, i.e., did Sgt. Leonard allegedly take some property and Sgt. Swarigin allegedly take other property, or did one allegedly take the property while the other allegedly watched the taking of his property.

Further Karolski asserts that the alleged intentional taking was in violation of Sgts. Leonard's and Swarigin's job duties, see Petition ¶ 9, and that the alleged taking was in violation of DOC's Code of Ethics. See Petition ¶ 10. However, he does not plead any facts to support those bald assertions, i.e., what are Sgts. Leonard's and Swarigin's job duties, and how did they allegedly violate them, what does DOC's Code of Ethics include, and how did Sgts. Leonard and Swarigin allegedly violate the same. Because Karolski has not presented any allegations to substantiate his claims that anything occurred beyond the intentional confiscation of his personal...