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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Craig Moss, v.

Petitioner

Department of Corrections, Respondent

: : : : : : No. 796 C.D. 2003 : Submitted: November 12, 2003

BEFORE:

HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE JIM FLAHERTY, Senior Judge FILED: December 5, 2003

OPINION BY PRESIDENT JUDGE COLINS

Craig Moss petitions for review of the determination of the Department of Corrections Chief Hearing Examiner denying his assessment hearing appeal and sustaining the hearing examiner's decision to assess $3,509.60 in labor expenses against Moss in connection with his actions in intentionally flooding his cell and the surrounding hallways and offices. Moss, an inmate confined at the State Correctional Institution at Greene, was found guilty, at institutional misconduct no. 394619, of flushing the commode and running the water in his sink to cause the flooding of his cell, the restricted housing unit, and surrounding offices while he was confined at SCI Retreat in November 2002. After final review sustaining the charges against Moss, the Department of Corrections served on Moss a notice of assessment for

misconduct, reflecting the facility maintenance manager's report of $5,119.60 in estimated damages. At an assessment hearing conducted on February 4, 2003, at which the facility business manager presented a breakdown of the $3,509.60 in labor costs for the clean up and repair of the restricted housing unit and surrounding offices. She testified that material costs were estimated to be $1,570. Corrections officers Smith, Gibbons, and Lacina testified that the notice of assessment was served on Moss on February 3, 2003 and that he signed the notice. Based on the credited testimony of the business manager, the hearing examiner found Moss responsible for $3,509.60 in labor expenses. The hearing examiner rejected Moss's contentions that the costs should not be accepted as factual and that the staff who performed the clean up and repair work were already on the state payroll. The hearing examiner did not charge Moss with the cost of repair materials because the business manager did not present an itemized breakdown. examiner denied Moss's appeal. Although the Department of Corrections' determination that Moss committed the acts charged in misconduct no. 394619 is not subject to our review, its assessment of the fair value of property destroyed and expenses incurred as a result of that misconduct1 is reviewable in our appellate jurisdiction. Holloway v. Lehman, 671 A.2d 1179 (Pa. Cmwlth. 1996). On appeal, Moss argues that he was denied due process, that the assessment was based on hearsay evidence, and that the Department of Corrections failed to meet its burden of proving the amount of
37 Pa. Code

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