IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Ulrich. :

Petitioner :

:

v. : No. 534 M.D. 2015

: Submitted: July 22, 2016

Governor Tom Wolf, :

Attorney General Kathleen Kane, :

Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: September 15, 2016 

Respondents Governor Tom Wolf and Attorney General Kathleen 

Kane, through the Office of Attorney General, (Respondents) have filed 

preliminary objections in the nature of demurrer seeking dismissal of 

Richard Ulrich’s (Petitioner) declaratory judgment action (complaint).

1

 For the 

reasons set forth below, we sustain Respondents’ preliminary objections and 

dismiss Petitioner’s complaint.

Petitioner is currently incarcerated at the State Correctional Institution 

at Benner Township (SCI-Benner Township). On July 9, 2015, Appellant filed his 

 

1

Petitioner titled his original filing as a “Petition for Preliminary Injunction/Injunctive 

Relief.” On the civil cover sheet attached to that filing, however, Petitioner indicated that the 

filing was both a petition and a complaint. Because of the nature of Petitioner’s request, we 

construe this action as a civil complaint for declaratory judgment. 
2

complaint in the Centre County Court of Common Pleas, naming Governor Wolf 

and Attorney General Kane as Respondents. Although disjointed, 

Petitioner’s complaint seems to seek to have the Commonwealth’s mandatory 

minimum sentencing laws and Section 7512 of the Crimes 

Code, 18 Pa. C.S. § 7512, relating to Criminal Use of a Communication Facility,

declared unconstitutional. The complaint also appears to request that all 

mandatory sentences “cease,” although it is unclear if Petitioner is requesting that 

we enjoin courts from imposing mandatory minimum sentences or that all 

prisoners currently serving mandatory sentences be released. (Compl. ¶ 13).

2

 The 

complaint alleges that the mandatory minimum sentencing laws are 

unconstitutional under the separation of powers doctrine, because they usurp the 

authority of the judiciary to impose criminal sentences. Petitioner further alleges 

that, by imposing mandatory minimum sentences, the legislature has created a 

“special temporary criminal tribunal” in violation of Article 1, Section 15 of the 

Pennsylvania Constitution. (Compl. ¶ 18). 

On August 14, 2015, Respondents filed preliminary objections 

challenging the jurisdiction of the common pleas court pursuant to Section 761 of 

the Judicial Code, 42 Pa. C.S. § 761. By order dated October 5, 2015, the 

 

2

Petitioner also requests numerous forms of relief ancillary to his request that mandatory 

sentencing laws be declared unconstitutional, including ordering Respondents to: (1) cease 

enforcement of the Crimes Code, 18 Pa. C.S. § 7512, relating to Criminal Use of a 

Communication Facility, (2) “[investigate] claims of a civil/criminal RICO organization with 

the misappropriation of public monies,” (3) “retrain Law Enforcement in the application of the 

law,” and (4) “correct the violations of those [a]ffected by the interception of communication 

without warrants or prior approval.” (Compl. ¶ 13). Petitioner also requests this Court to declare 

that “said acts stated in petition amount[] to treason punishable by law.” 
3

Centre County Court of Common Pleas transferred the case to this Court. On 

December 14, 2015, Respondents filed the instant preliminary objections asserting

that Petitioner’s claim is legally insufficient, Petitioner lacks taxpayer standing to 

bring his claim and, further, that the complaint is insufficiently specific under 

Pa. R.C.P. No. 1019(a), (f).

3

 

When reviewing preliminary objections in a case filed in our original 

jurisdiction, we must consider as true all well-pled facts that are material and 

relevant. Preliminary objections should be sustained only if it is clear and free 

from doubt that the law will not permit recovery. Where doubt exists as to whether 

preliminary objections should be sustained, that doubt should be resolved by a 

refusal to sustain them. Singleton v. Lavan, 834 A.2d 672, 673 (Pa. 

Cmwlth. 2003) (internal citations omitted). “The question presented by the 

demurrer is whether, on the facts averred, the law says with certainty that no 

recovery is possible.” McMahon v. Shea, 688 A.2d 1179, 1181 (Pa. 1997).

As a preliminary matter, we note that Petitioner asserts that he has 

taxpayer standing to bring the instant suit. Respondents argue that Petitioner lacks 

taxpayer standing, but do not argue that Petitioner does not have alternative 

standing to raise his claim. A taxpayer has standing to challenge a government

action if: (1) the governmental action would otherwise go unchallenged; (2) those 

directly and immediately affected by the complained-of matter are beneficially 

affected and not inclined to challenge the action; (3) judicial relief is 

appropriate; (4) redress through other channels is unavailable; and (5) no other 

 

3 By order dated March 29, 2016, this Court precluded Petitioner from filing a brief due 

to his failure to adhere to filing deadlines set forth by our prior orders.
4

persons are better situated to assert the claim. Stilp v. Com., Gen.

Assembly, 940 A.2d 1227, 1233 (Pa. 2007). Petitioner bases his capacity to bring 

suit as a taxpayer solely on the fact that he pays sales tax within the 

Commonwealth and a “20% installment payment to the Court of Common Pleas of 

Blair County.” (Compl. ¶¶ 1-3). He alleges no facts which would satisfy the 

elements set forth above for taxpayer standing. Thus, Petitioner has failed to meet 

his burden to demonstrate that he has standing to sue as a taxpayer. There is 

insufficient evidence in the record for this Court to determine if Petitioner 

otherwise lacks standing to bring his claim. While we recognize that we could 

hold an evidentiary hearing to determine if Petitioner has standing, we need not do 

so because, as discussed below, Petitioner’s claims fail as a matter of law.

Respondents argue that Petitioner’s claims are without merit 

and that the law states with certainty that no recovery is permitted. See McMahon,

688 A.2d at 1181. Petitioner’s complaint alleges that the legislature and the office 

of the Governor usurped the authority of the judiciary by creating mandatory 

minimum sentencing laws.4 We have long held that it is within the authority

of the legislature to create sentencing statutes. Commonwealth v. 

Glover, 156 A.2d 114, 116 (Pa. 1959) (“There is no question that it is within the 

 

4 Notably, Petitioner does not argue that any sentencing statute should be declared 

unconstitutional because it predicates a mandatory minimum penalty upon non-elemental facts 

and requires such facts to be determined by a preponderance of the evidence at sentencing. See 

Commonwealth v. Wolfe, ___ A.3d ___, ___ (Pa., No. 68 MAP 2015, filed June 20, 2016), slip 

op. at 1 (“The [U.S. Supreme] Court held that any fact that, by law, increases the penalty for a 

crime must be treated as an element of the offense, submitted to a jury rather than a 

judge, and found beyond a reasonable doubt.”) (citing Alleyne v. United 

States, ___ U.S. ___, 133 S.Ct. 2151, 2162-63 (2013).)
5

province of the legislature to pronounce what acts . . . are crimes and to 

fix the punishment of all crimes.”); see also Commonwealth v. 

Church, 522 A.2d 30, 37 (Pa. 1987) (“The legislative power clearly includes the 

power to enact criminal laws; no specific statement that the promulgation of 

criminal laws is permitted is required.”). Petitioner provides no argument or 

compelling justification for altering this long-standing precedent. 

Petitioner similarly asserts that the legislature usurped the authority of 

the Courts by promulgating Section 7512 of the Crimes Code, 18 Pa. 

C.S. § 7512, which defines the offense of criminal use of a communication facility. 

As stated above, it is the province of the legislature to pronounce what acts are 

crimes within the Commonwealth. Church, 522 A.2d at 35 (“It is recognized that 

the legislature has the exclusive power to pronounce which acts are crimes, to 

define crimes, and to fix the punishment for all crimes.”). Petitioner baldly asserts 

that Section 7512 authorizes government officers to conduct unconstitutional 

searches and seizures. By its express terms, Section 7512 creates no exceptions to 

the normal search and seizure requirements. Further, Petitioner has asserted no 

facts which demonstrate that the law, in any way, contravenes the Pennsylvania 

Constitution. As Petitioner asserts no other reason why this particular act is invalid 

under the Pennsylvania or U.S. Constitutions, Petitioner’s claims that the 

mandatory sentencing statutes and Section 7512 of the Crimes Code should be 

invalidated fail as a matter of law.5 

 

5

To the extent that Petitioner’s filing could be construed as seeking a preliminary or 

permanent injunction, Petitioner’s claim must fail. In order for a court to grant a petition for a 

preliminary or permanent injunction, the party seeking the injunction must establish, inter alia,

his or her clear right to relief. See Singleton, 834 A.2d at 674 (Pa. Cmwlth. 2003);

Boyle by Boyle v. Pa. Interscholastic Athletic Ass’n, Inc., 676 A.2d 695, 699 (Pa. 

(Footnote continued on next page...)
6

For the reasons set forth above, Respondents’ preliminary objections 

are sustained, and Petitioner’s complaint is dismissed. 

 

 P. KEVIN BROBSON, Judge

 

(continued...)

Cmwlth.), appeal denied sub nom. Boyle v. Pa. Interscholastic Athletic Ass’n, 

Inc., 686 A.2d 1313 (Pa. 1996). As stated above, Petitioner has failed to state a claim upon 

which relief may be granted. Petitioner, therefore, has failed to establish a clear right to relief

and, thus, has failed to satisfy the requirements for a preliminary or permanent injunction. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Ulrich. :

Petitioner :

:

v. : No. 534 M.D. 2015

:

Governor Tom Wolf, :

Attorney General Kathleen Kane, :

Respondents :

O R D E R

AND NOW, this 15th day of September, 2016, Respondents’ 

preliminary objections are SUSTAINED, and Petitioner’s complaint is 

DISMISSED.

 

 P. KEVIN BROBSON, Judge