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

p reliminary o bjections 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 natur e of Petitioner’s request, we construe this action as a civil complaint for declaratory judgment.2

complaint in the Centre Co unty 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 sente nces “cease, ” although it is unclear if Petitioner is requesting that
we enjoin courts from impos ing 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

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

, (2) “[investigate] claims of a civil/criminal R ICO 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 taxp ayer standing to
bring his claim and, further, that the complaint is insufficiently specific under

Pa. R.C.P. No. 1 019(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 p ossible. ” McMahon v. Shea, 688 A.2d 1179, 1181 (Pa. 1997)

.

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

act ion if: (1) the govern mental 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 channe ls 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 det ermine if Petitioner has standing, we need not do
so because, as discussed below, Petitioner’s claim s 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 permitte d. See M cMahon,

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 predicat es a mandatory minimum penalt y upon non

- elemental facts and requir es such facts to be determined by a preponderance of the evidence at se ntencing. See Com monwealth 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, s ubmitted 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

f ix 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 permitte d is required.”). Petitioner provide s 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 define s the offense of c riminal u se of a c ommunication f acility.
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 bald l y asserts that Section 7512 authorizes government officers to conduct unconstitutional
searches and seizures. By its express terms, S ection 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, contravene s the Pennsylvania

Constitution. As Petitioner asserts no other reason why th is particular act is invalid
under the Pennsylvania or U.S. Const itution s , 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

perman ent 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, Re spondents’ preliminary objections

are sustained

, and Petitioner’s c omplaint 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, Peti tioner has failed to state a claim upo n 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 , 201 6

, Respondents’
preliminary objections are SUSTAINED

, and Petitioner’s c omplaint is

DISMISSED

.

P. KEVIN BROBSON, Judge