IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn Little, :

Petitioner :

:

v. : No. 489 C.D. 2019

: Submitted: August 23, 2019

Pennsylvania Department of :

Corrections, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: February 18, 2020

Shawn Little (Requester), pro se, petitions for review of a final 

determination of the Office of Open Records (OOR) dismissing as untimely his 

appeal of the Department of Corrections’ (Department) denial of his request for 

documents under the Right-to-Know Law.

1

 Requester argues that his appeal was 

not untimely under the “prisoner mailbox rule.” We vacate and remand. 

On December 7, 2018, Requester, an inmate incarcerated at the State 

Correctional Institution at Camp Hill (SCI-Camp Hill), filed a request for records 

from the Department. Specifically, Requester requested (1) copies of all subpoenas 

served on the Department by Eva C. Stroup seeking telephone recordings of calls 

made by Requester at SCI-Camp Hill; and (2) a copy of a report filed by an agent 

from the Bureau of Investigation and Intelligence on October 5, 2018, concerning 

the subpoenas. 

 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101 - 67.3104. 
2

On December 10, 2018, the Department sent Requester a letter 

informing him that it would require a 30-day extension to consider the request.2 

Seemingly unaware of the 30-day extension, Requester appealed to OOR on 

December 24, 2018, claiming the Department had failed to respond to his request 

within the required five-day period, resulting in a deemed denial. The Department

responded that the appeal was premature because it had informed Requester of the

30-day extension. On January 28, 2019, OOR issued a final determination 

dismissing Requester’s appeal as premature, but stating that Requester was not 

prohibited from filing a new appeal once the Department responded to his request. 

The Department issued its response to the records request on December 

31, 2018. The Department found that the requested records were exempt from 

disclosure under several provisions of the Right-to-Know Law, i.e., the personal 

security exemption,3the public safety exemption,4the criminal investigation 

exemption5and the noncriminal investigation exemption.

6

 As such, the request was 

denied.

On February 26, 2019, Requester filed a second appeal to OOR. 

Therein, Requester explained that he received OOR’s January 28, 2019, final 

determination on February 6, 2019. He filed the second appeal in accordance with 

 

2 An agency must respond to a request for records within five business days. Section 901 of the 

Right-to-Know Law, 65 P.S. §67.901. If more time is needed, the agency’s open records officer 

may unilaterally extend the time to respond as long as (1) the extension does not exceed 30 days 

and (2) notice is given to the requester. Section 902(b)(2) of the Right-to-Know Law, 65 P.S. 

§67.902(b)(2). If more than 30 days is needed, the requester must agree to the extension or the 

request will be deemed denied. Id. 

3 Section 708(b)(1)(ii) of the Right-to-Know Law, 65 P.S. §67.708(b)(1)(ii).

4 Section 708(b)(2) of the Right-to-Know Law, 65 P.S. §67.708(b)(2).

5 Section 708(b)(16) of the Right-to-Know Law, 65 P.S. §67.708(b)(16).

6 Section 708(b)(17) of the Right-to-Know Law, 65 P.S. §67.708(b)(17). 
3

OOR’s instruction that he could do so after he received the Department’s merits

response to his Right-to-Know Law request. Requester asserted that he mailed the 

appeal on February 15, 2019, which was “nine days after receiving [OOR’s final 

determination and in compliance with] the Prison[er] Mailbox Rule[.]” Certified 

Record (C.R.), Item 4, Attachment D at 7. 

On February 27, 2019, OOR notified both parties by letter that they had 

until March 8, 2019, to submit information or legal argument in support of their 

positions. OOR further stated that “[t]he record closing date is seven (7) business 

days from the date of th[e] letter[.]” C.R., Item 2 at 1. In response, the Department 

argued that Requester’s appeal was untimely because it was not filed within the 15-

day appeal period mandated by Section 1101(a) of the Right-to-Know Law, 65 P.S. 

§67.1101(a) (“If a written request for access to a record is denied or deemed denied, 

the requester may file an appeal with [OOR or the appropriate appeals officer] within 

15 business days of the mailing date of the agency’s response or within 15 business 

days of a deemed denial.”). Requester did not respond to OOR’s notice before the 

deadline. 

On March 22, 2019, Requester filed a request (dated March 15) to OOR 

to appeal nunc pro tunc. Requester stated that he did not receive OOR’s notice until 

March 11, 2019, which was after the March 8 deadline for a response. In support, 

he submitted a copy of the envelope dated and “signed by the witness who is 

[Requester’s] unit manager” on March 11, 2019. C.R., Item 4 at 1-2. Requester 

further stated that he did not receive the response the Department filed with OOR 

until March 15, 2019. In support, he submitted a copy of the envelope dated and 

signed by “the Corrections Officer assigned to [his] prison block” on March 15, 

2019. C.R., Item 4 at 1, 3. 
4

Requester stated that mail sent to inmates at SCI-Camp Hill is first 

processed at a facility in St. Petersburg, Florida.7 Consequently, it was impossible 

for him to respond in a timely manner to OOR’s directive to submit information or 

legal argument in support of his position. Requester argued that OOR was violating 

his right to due process by not taking into account the processing time for inmate 

mail. 

Additionally, Requester claimed that he received the Department’s 

December 31, 2018, merits response to his record request on January 9, 2019. On

January 11, 2019, Requester appealed the Department’s merits response to OOR. 

Requester also attached several documents in support of his appeal. See C.R., Item 

4, Attachment A (letter and documents in support of records request).

On March 27, 2019, OOR issued a final determination dismissing

Requester’s appeal as untimely. OOR explained that the Department’s merits

response was dated December 31, 2018, and Requester’s appeal was filed on 

February 26, 2019. As such, Requester did not file his appeal within the 15-day

appeal period mandated by Section 1101(a) of the Right-to-Know Law, 65 P.S. 

§67.1101(a). OOR’s determination did not address the prisoner mailbox rule or 

Requester’s request for nunc pro tunc relief. Requester petitioned for this Court’s 

review.

On appeal,8 Requester argues that OOR erred in dismissing his appeal 

as untimely without applying the prisoner mailbox rule. He also argues that OOR 

 

7 The record supports Requester’s claim. All of the filings from the Department and OOR list 

Requester’s address as SCI-Camp Hill, PO Box 33028, St. Petersburg, FL 33733. Requester 

suggested that legal mail may be sent directly to SCI-Camp Hill, but OOR has chosen to send 

correspondence to the Florida address.

8 When reviewing a decision by OOR, our standard of review is de novo, and our scope of review 

is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013). 
5

erred by not addressing his request to appeal nunc pro tunc. The Department

responds that Requester’s appeal was not filed within 15 days; thus, it was untimely. 

The Department does not address the prisoner mailbox rule or Requester’s request 

for nunc pro tunc relief.

Under the prisoner mailbox rule, a pro se prisoner’s appeal is deemed 

“filed when such appeal is deposited with prison officials or placed in the prison 

mailbox.” Pettibone v. Pennsylvania Board of Probation and Parole, 782 A.2d 605, 

607 (Pa. Cmwlth. 2001) (citing Smith v. Pennsylvania Board of Probation and 

Parole, 683 A.2d 278 (Pa. 1996)). “At the heart of the ‘prisoner mailbox rule’ are 

the constitutional notions of due process and fundamental fairness.” Id. at 608

(internal footnote omitted). 

Nunc pro tunc relief is available where the delay in filing an appeal was 

caused by extraordinary circumstances involving fraud or a breakdown in the 

administrative process or non-negligent circumstances related to the appellant, his 

attorney, or a third party. Smith v. Pennsylvania Board of Probation and Parole, 81 

A.3d 1091, 1094 (Pa. Cmwlth. 2013). A delay in receipt of mail attributable to 

prison officials warrants nunc pro tunc relief. Bradley v. Pennsylvania Board of 

Probation and Parole, 529 A.2d 66, 67-68 (Pa. Cmwlth. 1987). Further, an inmate 

alleging “a delay in the receipt of his mail” is entitled to an evidentiary hearing in 

order to “present evidence on whether he is entitled to a nunc pro tunc appeal.” 

Rivera v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 1122 C.D. 

2017, filed July 19, 2018), slip op. at 6.9

 

9 Unreported memorandum opinions of this Court may be cited “for [their] persuasive value, but 

not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating 

Procedures, 210 Pa. Code §69.414(a).
6

Recently, we addressed OOR’s failure to consider the prisoner mailbox 

rule in Jones v. Department of Corrections (Pa. Cmwlth., No. 1213 C.D. 2018, filed 

August 14, 2019). There, the requester, an inmate, filed a Right-to-Know Law 

request with the Department, which it denied. The requester filed a timely appeal to 

OOR. However, OOR rejected the requester’s appeal as deficient because he did 

not attach copies of his original request and the Department’s response to his appeal. 

OOR then advised the requester that he had seven calendar days from the date of the 

notice to cure the defect or his appeal would be dismissed. Eight days later, having 

received no response from the requester, OOR dismissed the appeal.

On appeal to this Court, the requester asserted that he had mailed the 

required documents within the seven-day period. In support, he provided a dated

“cash slip” reflecting that he had purchased postage for a mailing to OOR. He 

argued that OOR violated his due process rights by dismissing his appeal without 

consideration of the prisoner mailbox rule. We agreed with the requester, vacated 

OOR’s dismissal of the appeal and remanded for OOR to conduct a hearing to 

determine whether the requester’s appeal was timely under the prisoner mailbox 

rule. 

Jones is on point. Accordingly, we vacate OOR’s final determination 

dismissing Requester’s appeal as untimely and remand for OOR to conduct an 

evidentiary hearing on the timeliness of Requester’s appeal giving due consideration 

to the prisoner mailbox rule and the claims raised in his request for nunc pro tunc

relief. 

 _____________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn Little, :

Petitioner :

:

v. : No. 489 C.D. 2019

: 

Pennsylvania Department of :

Corrections, :

Respondent :

O R D E R

AND NOW, this 18th day of February, 2020, the Final Determination 

of the Office of Open Records (OOR), dated March 27, 2019, is VACATED and the 

matter is REMANDED to OOR for proceedings consistent with the attached 

opinion.

Jurisdiction relinquished. 

 _____________________________________

 MARY HANNAH LEAVITT, President Judge