IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Department of Corrections : : v. : No. 1119 C.D. 2020 : Submitted: April 23, 2021 Lamar Alston, :

Appellant :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE MICHAEL H. WOJCIK , Judge HONORABLE ELLEN CEISLER , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE LEAVITT 1 FILED: February 15, 2022

Lamar Alston appeals an order of the Court of Common Pleas of Centre County (trial court), dated September 29, 2020, granting the Department of Corrections (Department) an indefinite injunction to allow its medical staff to
conduct involuntary physical exa mination s of Alston and administ er medical

treatment when deemed necessary to preserve Alston’s health and life. T he effect
of th e order was to indefinitely continue an ex parte preliminary injunction granted by the trial court on September 25, 2020. We vacate the trial court’s order and
remand for further proceedings

.

Alston is incarcerated at the State Correctional Institution at Benner Township (SCI

- Benner Township). On September 25, 2020, the Department filed a complaint, a petitio n for a preliminary injunction, and an application for an ex parte

1 This matter was assigned to the panel before January 3, 2022, when President Judge Emerita Leavitt became a senior judge on the Court.2

preliminary injunction to au thorize its medical staff to examine Alston, and to

a dminister medical treatment, including nutrition, hydration and medication , whenever necessary to preserve Alston’s health and life. The complaint alleged that
Alston had previously engaged in several h unger strikes and, after September 12, 2020, began a new hunger strike. Alston missed 39 meals and was treated for dehydration at the Mount Nittany Medical Center. Original Record ( O .R.), Item 1, Complaint ¶

¶6, 9. Alston refused to “take his medication” or allow “any type of medical evaluation or assessment to be performed.” O.R., Item 1, Complaint ¶¶5,
8. The complaint included an affidavit signed by Dr. Kevin Kollman, treating physician at SCI

- Benner Township, which provided that to “ a reasonable deg ree of medical certainty[, Alston] will be in imminent danger of the loss of life or other irreparable harm unless he takes nourishment.” O.R., Item 1, Affidavit ¶12.

T he trial court immediately granted the Department’s application for an ex parte preli minary injunction and scheduled a hearing for September 29, 2020.
O .R., Item 4. At the beginning of the September 29, 2020, hearing, the Department , through its counsel, advised the trial court that it was seeking “ a preliminary injunction to preserve th e health and life of [Alston.]” Notes of Testimony
, 9/29/2020, at 3 (N.T. __) (emphasis added)

.

In support of its request for a preliminary injunction , the Department presented testimony from three witnesses. First, Dr. Kollman testified that Alston
ha d been on a hunger strike for 19 days. He was drinking water but not eating . He missed 42 out of 52 meals and lost approximately 20 pounds. He refused t o take his

ant i

- seizure medication regularly. During this and previous hunger strikes, Alston was treated for dehydration, which adversely affected his skin, lips, tongue, blood pressure, and heart. Dr. Kollman testified that Alston ha d “chronic cumulative3

signs” of s tarvation and was in imminent physical danger if he continue d his hunger
strike

. N.T. 15, 23. Dr. Kollman testified that he and the medical staff would administer tube feedings to Alston , when necessary, should the court grant the injunction

. The Depar tment also presented the testimony of Jeffrey Boland, the
C orrections H ealth C are A dministrator. He oversees the prison’s medical department and the two contract companies that provide psychiatric and medical
services to inmates

. Boland did not have “an accurate answer” for Alston’s reason
for the hunger strike

. N.T. 27. He testified that Alston mentioned “wanting a tablet”
in his cell and suggested that he could be “striking against a disciplinary action.” Id.

Bradley Booher, the Department’s D eputy S uperintendent for
C entralized S ervices, testified that Alston had been housed in the restrictive housing unit. Due to his hunger strike, the Department admitted Alston to a psychiatric observation cell in the infirmary for medical monitoring. Booher te stified that hunger strike monitoring increases the responsibilities of medical and security staff, who must work additional hours, prepare paperwork, attend hearings and administer tube feedings. The Department bears the cost of these measures. Booher op i ned
that the death of a hunger striker would cause other inmates to “lose confidence in the facility as a whole,” particularly the medical department. N.T. 37.

A lston testified on his own behalf. H e claimed that his hunger strike was a response to targeted antagonistic treatment by prison staff, such as placing
Alston in the restrictive housing unit for an extended period of time . He attempted
to commit suicide because he was denied showers, phone calls, and the ability to write to his family . Alston testified that he is currently housed “as a person [who is] suicidal when the psych[iatric] department has not deemed [him] suicidal[.]” N.T.4

42. The prison staff told Alston that “things were going to change [for the better],” but things did not change, which prompted his current hunger strike. N.T. 41. Alston testified that he ate dinner the day before the hearing, and he has been “monitoring things so that [he ] will not be harmed.” N.T. 43. Alston testified that

a hunger strike has been the only effective way to present his problems to the prison
staff

. By order of September 29, 2020, the trial court granted the Department

an indefinite injunction permittin g it to examine and perform invasive diagnostic tests on Alston, including blood and urine testing , and to administer medical treatment, including nutrition, hydration, and medication, whenever the medical
staff determines that such treatment is necessary to preserve Alston’s health and life.
The trial court stated that the order “shall remain in effect as long as [Alston] is committed to the custody of the [Department].” Trial Court Order, 9/29/2020.

Alston appealed to this Court. In its opinion issued pursuant to Rule of Appellate Procedure 1925( a ) , the trial court explained that the Department established “a clear right to relief in the nature of a permanent injunction” because, in part, Alston “would not hesitate to use hunger strikes in the future to address his concerns with the corrections officers[.]” Trial Court 1925(a) O p. , 1/20/2021, at 5.

On appeal, 2 Alston raises one issue for our review: whether the trial court exceeded its authority in granting the Department a n indefinite injunction
bec ause the September 29, 2020, hearing was conducted solely on the Department’s request for a preliminary injunction . The Department does not respond to Alston’s

2 In reviewing a trial court’s grant or denial of a permanent injunction , this Court determines whether the trial court committed an error of law. Buffalo Township v. Jones , 813 A.2d 659, 663

- 64 (Pa. 2002). Our standard of review for a question of law is de novo , and ou r scope of review is plenary. Id . at 664 n.4.5

argument. Instead, it contends that it satisfied the burden for permanent injunctive
relief. We begin with a review of Pennsylvania Rule of Civil Procedure 1531, which provides, in pertinent part, as follows:

(a) A court shall issue a preliminary or special injunction only after written notice and hearing unless it appears to the satisfact ion of the court that immediate and irreparable injury will be sustained before notice can be given or a hearing held, in which case the court may issue a preliminary or special injunction without a hearing or without notice

. In determining whether a prel iminary or special injunction should be granted and whether notice or a hearing should be required, the court may act on the basis of the averments of the pleadings or petition and may consider affidavits of parties or third persons or any other proof whic h the court may require. * * * (d) An injunction granted without notice to the defendant shall be deemed dissolved unless a hearing on the continuance of the injunction is held within five days after the granting of the injunction or within such other time as the parties may agree or as the court upon cause shown shall direct. (e) After a preliminary hearing, the court shall make an order dissolving, continuing or modifying the injunction.

P A .R.C IV .P

. 1531 (a), (d), (e) (emphasis added). In short, a hearing after the grant of

an ex parte preliminary injunction is solely for the purpose of enabling the court to dissolve, continue or modify the preliminary injunction. Pennsylvania Interscholastic Athletic Association, Inc. v. Greater John stown School District , 463 A.2d 1198 (Pa. Cmwlth. 1983) ; s ee also Petro v. Kennedy Township Board of
Commissioners , 411 A.2d 849 , 851 (Pa. Cmwlth. 1980) (purpose of hearing after grant of ex parte preliminary injunction is to allow court to dissolve, continue or6

modify the preliminary injunction)

. In other words, an order granting a permanent injunction is not authorized by Rule 1531

.

In Pennsylvania Interscholastic Athletic Association , 463 A.2d 1198,
the association ruled that a student who transferred to a new school district was ineligible to participate in interscholastic athletic contests because the transfer was athletically motivated . The school district filed a request for a “preliminary injunction [] without a hearing.” Id. at 1199. T he trial court granted the request

. At the hearing that followed the grant of the ex parte injunction , the school district moved for a permanent injunction. After receiving testimony, the trial court ruled
in favor of the school district , holding that “t he preliminary injunction now in effect by order of this court be and hereby is made permanent [

. ] ” Id

.

The association appealed to this Court. In reversing the trial court, we held that the trial court’s order granting the permanent inju nction “ was not authorized by [ Pa.R.Civ.P. ] 1531(e) and that the effect of that order was to continue
the preliminary injunction granted without a hearing [.]” Pennsylvania
Interscholastic Athletic Association , 463 A.2d at 1200 (emphasis in original). On
the merits of the preliminary injunction, we held that because there was no property right to participate in interscholastic athletics , the association did not violate the
student athlete ’ s constitutional rights. In other word s, neither the school district nor the student athlete could show the immediate and irreparable harm necessary for a preliminary injunction

. Id. at 1202.

A court may not treat a hearing for a preliminary injunction as a final hearing on the merits of a pe rmanent injunction unless the parties stipulate to that
effect

. City of Chester v. Chester Redevelopment Authority , 686 A.2d 30, 35 (Pa. Cmwlth. 1996) (citing Soja v. Factoryville Sportsmen’s Club , 522 A.2d 1129 (Pa.7

Super. 1987)). This is because “[i]t is

. . . unfair to reach a final decision after a preliminary proceeding. A litigant may not prepare as completely as he would have had he realized that he was not going to receive a second chan c e to present his case.” City of Chester , 686 A.2d at 3 5 (ci ting Soja , 522 A.2d at 1133). Further, the standards for a preliminary injunction and a permanent injunction differ. A preliminary injunction requires imminent, irreparable harm, while a permanent injunction is founded on the lack of an adequate remedy. City of Chester , 686 A.2d
at 35.
In Lindeman v. Borough of Meyersdale , 131 A.3d 145 (Pa. Cmwlth. 2015), taxpayers sought a preliminary injunction to en join the borough from contracting with a new waste disposal company. In granting the preliminary injunction, t he trial court directed the borough to terminate the new contract and to accept the bid of the former waste disposal contractor . On appeal, this Court held that the trial court erred in treating a hearing for a preliminary injunction as a final hearing on the merits and effectively granting a permanent injunct ion

. For that and other reasons, this Court vacated the trial court’s order and remanded the matter to the trial court for further findings consistent with the opinion.

H ere, the trial court granted the Department’s application for an ex parte preliminary injunction on September 25, 2020, and directed that a preliminary injunction hearing be held on September 29, 2020. The parties understood that the purpose of this hearing was to determine whether the ex parte preliminary injunction
should be continued. P A

. R

. C IV

. P

. 1531(d). T he Department’s counsel confirmed
on the record that the Department was requesting “ a preliminary injunction.” N.T.
3. As such, t he trial court could only dissolv e , continu e , or modify the ex parte preliminary injunction previously entered under Rule 1531 (e). Pennsylvania8

Interscholastic Athletic Association , 463 A.2d at 1200

. By contrast, in Department of Corrections v. Fattah (Pa. Cmwlth., No. 1468 C.D. 2011, filed April 9, 2012) (unreported) , this Court affirmed the grant of an indefinite injunction where a permanent injunction hearing was conducted. Here , conversely, there has not been a hearing on a permanent injunction

. 3 Thus, the trial court erred by grant ing the Department a permanent injunction.

Accordingly, we vacate the trial court’s September 29, 2020, order , and remand for disposition of the Department’s petition for a preliminary injunction under the appropriate legal standard, as outlined supra

.

____________________________________________ MARY HANNAH LEAVITT, President Judge Emerita

3 Nowhere in its complaint or other pleadings did the Department request a permanent injunction.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Department of Corrections : : v. : No. 1119 C.D. 2020
: Lamar Alston, :

Appellant :

O R D E R

AND NOW, this 15 t h day of February, 20 2 2 , the order of the Court of
Common Pleas of Centre County dated September 29, 2020, in the above

- captioned

matter is VACATED , and the matter is REMANDED for disposition of the Department of Correction s’ petition for preliminary injunction in accordance with the attached opinion

.

Jurisdiction relinquished.

____________________________________________ MARY HANNAH LEAVITT, President Judge Emerita