IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph P. Frankenberry , : Appellant :

: v. : No. 1 05 C.D. 2017

: Submitt ed : April 28 , 2017 Tammy S. Ferguson, Superintendent : at S.C.I. Benner, in her official as well : as her personal capacity; R. Rupert, : A

- Block Unit Mngr at S.C.I. Benner, : in her official capacity; A. Nelson, : AB

- Blocks Counselor, in her official : capacity and, Dr. Xue, Chief : Psychiatrist, CHCA at S.C.I. Benner, : in his official capacity :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY , Judge HONORABLE JAMES GARDNER COLINS , Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: July 12, 2017
Joseph P. Frankenberry (Frankenberry) appeals, pro se , from an O rder of the Court of Common Pleas of Centre County (trial court) sustaining the preliminary objection s (POs) filed by Appellees Tammy S. Ferguson, R. Rupert, and A. Nelson (Appellees)

. 1 T he trial court granted Appellees’ demurrer and dismissed

1 Employed at State Correctional Institution at Benner Township , respectively, as Superintendent, A

- Block Unit M a n a g e r, and AB

- Blocks Counselor. Dr. Xue filed separate (Footnote continued on next page...)2

Frankenberry’s Complaint and First Amendment to Complaint ( together, Complaint) , with prejudice.

I. Background In his C omplaint, Frankenberry, who is currently incarcerated in the State Correctional Institution at Benner Township (SCI

- Benner), argues the following : his “Z” Code status (single cell classification) was arbitrarily and capriciously
removed , and removal of his “Z” Code status was discriminatory and violated his rights under the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution

. Frankenberry alleges that A ppellees removed his “Z” Code status after meeting for a Housing Status Review and completing a DC

- 46
Vote Sheet. He asserts that Appellee Ferguson, Superintendent at SCI

- Benner,
makes the final determination i n inmate housing matters and chose to remove his
“Z” Co de status despite the other A ppellees’ vo tes that such should be maintained. Frankenberry argues that his “Z” Code status should be retained because he is 73 years old, has been incarcerated for 35 years , is serving a life sentence, has had “Z” Code status for 20 years, suffers from mental and p hysical health problems, is active on the Psychiatric Review Team (PRT) Roster, and has a record that demonstrates aggressive behavior toward others. Accordingly, Frankenberry asserts that removal of his “Z” Code status was arbitrary and capricious and
vi olates his constitutional rights. Frankenberry claims that these factors, considered together, show that removal of “Z” Code status places him in imminent and inevitable harm’s way. Frankenberry is seeking monetary damages for these

_____________________________ (continued...) preliminary objections , which were sustained in a subsequent order and are not at issue in this appeal.3

actions , as well as injunctive relief

. The Complaint was accompanied by a petition for a temporary restraining order and/or preliminary injunction ( Petition ) to prevent Appellees from removing his “Z” Code status. Frankenberry then requested related documents for discovery. Frankenberry subsequently filed his First Amendment to Complai nt, incorporating his original C omplaint with his new claim: that double

- celling ( i.e. housing two inmates in the same cell) amounts to cruel and unusual punishment in
violation of the Eighth Amendment to the U nited S tates Constitution

. Frankenberry asserts that double

- celling under the conditions averred at SCI

Benner is a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment because of the size of the cells and the t ime inmates are confined daily therein

. Appellees filed PO s in the nature of a demurrer , accompanied by a motion to stay discovery, which crossed in the mail with Frankenberry’s First Amendment to Complaint. In their PO s , Appellees assert that Frankenberry’s C omplaint makes no viable claim with regard to equal protection, discrimination, or cruel and unusual punishment

. Appellees also argue that Frankenberry failed to plead any viable claim against Rupert and Nelson, as Frankenberry failed to establish that they “ engaged in any action or decision contrary to what Plaintiff alleges his
interest is, i.e. retaining his Z Code

. ” (Appellees’ Br. in Support of PO s at 8.) Upon receipt of the First Amendment to Complaint , Appel lee s filed an additional
demurrer , stating that Frankenberry failed to state a cruel and unusual punishment
claim based on the size of his shared cell. 2

2 In the time between the filing of the Complaint and First Amendment to Complaint, Frankenberry’s “Z” Code status was revoked and he was double

- celled

.4

Frankenberry filed objections to the POs , asserting that Appellees’ objections were without legal merit . Accordin g ly, Frankenberry request ed that discovery be allowed to continue. The trial court granted Appellees’ motion to stay discovery

. After a hearing , the trial court denied Frankenberry’s P etition

. The trial court then issued the August 29, 201 6 Opinion and O rder sustaining Appellees ’ POs and dismissing Frankenberry’s C omplaint. With regard to the equal protection and discrimination clai ms, t he trial court
reasoned that all of Frankenberry’s allegations in regard to this matter are mere
conclusi ons unsupported by facts. The trial court explained that, to the extent Frankenberry asserts an equal protection claim, prisoners are not a suspect classification and the decision to remove “Z” Code status must be evaluated under
a rational basis test. T hus, as Appellees’ “Z” Code status review process falls within their discretion, the trial court found that Frankenberry failed to allege an equal protection claim. With regard to the removal of “Z” Code status constituting cruel and unusual punishment, the trial court reasoned that Frankenberry failed to show that this
resulted in a denial of the minimum civilized measure of life’s necessities. The
trial court add ed that Frankenberry’s allegations of “mental anguish” and “imminent harm” are speculative and , accordingly , fail to set forth a claim. (Trial Ct. Op. at 5.)
The trial court next addressed Frankenberry’s allegations of cruel and unusual punishment based on cell size, reasoning that double

- celling alone is not a denial of life’s necessities nor does it violate contemporary norms of decency. As Frankenberry did not allege any other issue with housing conditions at SCI

-5

Benner, the trial court found that he had failed to state a cruel and unusual punishment claim based on the cell size.
As the t rial court found that double

- celling is not, per se, unconstitutional, Appellees Rupert and Nelson were dismissed as parties . The trial court reasoned that Frankenberry does not have a claim against them based solely on their alleged
failure to adhere to a policy statement and, as no constitutional violation was committed, no claims remain ed against Appellees Rupert and Nelson.

II. Frankenberry’s Appeal Frankenberry filed a timely notice of appeal 3 from the trial court’s August 29, 2016 O rder accompanied by an Application for Relief r equesting a Temporary Restraining Order with the Superior Court of Pennsylvania , which noted that this matter is within the appell ate jurisdiction of the Commonwealth Court. 4 The Superior Court directed Frankenbe rry to show cause as to why this appeal should
not be transferred , to which he timely responded acknowledging this Court’s jurisdiction in this matter. Accordingly, the Superior Court transferred this appeal , along with Frankenberry’s A pplication for Reli ef to this Court for disposition.

3 Though the notice of appeal was not filed with the clerk of the trial court as required by Rule 905(a)(1) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 905(a)(1), Rule 905(a)(4) mandates that when appeals are
filed in an incorrect office within the unified judicial system, the clerk shall immediately stamp it with the date of receipt and transmit it to the clerk of the court which entered the order appealed from, and . . . the notice of appeal shall be deemed f iled in the trial court on the date originally filed.
Pa. R.A.P. 905(a)(4); s ee also Howard v. Dep ’ t of Transp. , 73 A.3d 648, 649 (Pa. Cmwlth. 2013). 4 See Sections 761(a)(1) (v) and 762(a)(1)(i) of the Judicial Code, 42 Pa. C.S. §§ 761(a)(1) (v) , 762(a)(1)(i); Balshy v. Rank , 490 A.2d 415, 416 (Pa. 1985).6

On appeal, Frankenberry argues that : the trial court erred in sustaining the
de murrer when A ppellees removed his longstanding “Z” Code status wit hout rationale or justification ; Appellees’ demurrer should not have been sustained with regard to his claim that double

- celling constitutes cruel and unusual punishment under the Eighth Ame ndment to the U nited S tates Constitution ; removal of his “Z” Code status was discriminatory, which implicates the Fourteenth Amendment Equa l Protection claim that he had specifically asserted in his Complaint ; and the
trial court’s decision to grant Appellees’ protective order resulting in a stay of discovery denied him the opportunity to support his arguments with evidence and
seek redress f

or his claims. 5 B ecause the trial court did not err in finding that Frankenberry failed to state a cause of action under the alleged facts and did not abuse its discretion in staying discovery , we affirm the dismissal of the Complaint. Preliminarily, w e note that, w hen an appellate court reviews a trial court’s order sustaining preliminary objections in the nature of a demurrer, “ the standard
of review is de novo and the scope of review is plenary. ” Balletta v. Spadoni , 47 A.3d 183, 18 8 n.2 (Pa. Cmwlth. 2012). This Court’s review is limited to determining whether there has been an error of law or an abuse of discretion. Jones v. City of Phila

. , 893 A.2d 837, 842 n.3 (Pa. Cmwlth. 2006). The standard of review for a demurrer is limited, as the question presented by a demurrer is whether the law says with certainty that no recovery is possible on the facts set forth in the complaint. Bilt

- Rite Contr actors , Inc. v. The Architectural Studio , 866 A.2d 270, 274 (Pa. 2005); MacElree v. Phila

. Newspapers, Inc. , 674 A.2d 1050, 1056 (Pa. 1996). C ourt s evaluate such objections by accepting as true all well

- pled

5 Though Frankenberry argues these points in a different order in brief, we have rearranged these points for ease of resolution.7

facts in the complaint and reasonable inferences arising from those facts

. Kull v.
Guisse , 81 A.3d 148, 154 n.3 (Pa. Cmwlth. 2013). A d emurrer does not admit any conclusions of law in the complaint. Hoffman v. Misericordia Hosp. of Phila

. , 267 A.2d 867, 868 (Pa. 1970). A demurrer should be sustained if the complaint shows prima facie that the claim is devoid of merit. Id. If any doubt exists as to whether a demurrer should be sustained, such doubt should be resolved in favor of overruling it. Bilt

- Rite , 866 A.2d at 274; Hoffman , 267 A.2d at 868.

A. “Z” Code Status Removal Frankenberry alleges that the trial court erred as a matter of law by sustaining Appellees’ demurrer when Appellees removed Frankenberry’s longstanding “Z” Code status without rationale or justification. DOC has a p olicy which applies to determin ations ab out an inmate ’s eligibility for “Z” Code status

. 6 In accordance with the Policy, “DOC considers several factors, including misconduct reports, recommendations from medical and psychiatric staff and reports from other staff members who have knowledge of th e inmate’s behavior.”
Johnson v. Horn , 782 A.2d 1073, 1074 (Pa. Cmwlth. 2001). In addition , inmates who are “evaluated by psychiatric or psychological staff as having mental health problems [such that they are viewed as] (1) dangerous to self; (2) danger ous to others; (3) self

- mutilative; (4) unable to care for self; and/or (5) active on the [PRT] roster” shall be “carefully reviewed by staff and considered ” for the

program. Policy at 5

- 2 (emphasis added) (footnote omitted)

. W hen an annual “Z”
Code stat us review results in a recommended change, “a DC

- 46 , [ v ] ote [ s ] heet

6 DOC Policy 11.2.1: Reception and Classification , 5

- 1

— 5

- 4, ava ilable at http://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/11.02.01%20Reception%20a nd%20Classification.pdf (last visited July 1 1 , 2017 ).8

along with other relevant information shall be circulated to the Facility Manager [Appellee Ferguson] who shall make the final decision. The staff action and rationale for “Z” Code housin g status shall be documented . . . .” Policy at 5

- 3. Frankenberry argues that the trial court failed to note that Appellee Ferguson
revoke d his “Z” Code status despite the other Appelle es’ votes that it be
maintained and did not provide him with the ratio nale for her decision , which he deems was arbitrary and capricious . Accepting all of these allegations as fact, as we must, Frankenberry has not state d a claim by arguing that Appellee Ferguson’s actions in implementing DOC policy were arbitrary and capricious. Under state law, an inmate does not have the right to confinement in a housing unit of his choosing. 37 Pa. Code § 93.11(a); see Yount v. Dep’t of Corr. , 966 A.2d 1115, 1117 n.1 (Pa. 2009). Additionally, prison officials have discretion to t ransfer a prisoner for any reason or for no reason at all. Meachum v. Fano , 427 U.S. 215 , 228 (1976); Yount , 966 A.2d at 1117 n. 1

. When adopting and executing policies and practices, “prison officials must be accorded wide ranging deference ,” as they

are best situated to adopt solutions “that in their judgment are necessary to preserve internal order and to maintain institutional security.” Robson v. Biester, 420 A.2d 9, 12 (Pa. Cmwlth. 1980 ) (citing Bell v. Wolfish , 4 4 1 U.S. 520 (1979)). Federal
law si milarly holds that the placement of prisoners within the prison system falls within the “wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than the federal courts. ” Meachum , 427
U.S. at 225. Applying the law to this case, Appellee Ferguson has discretion to make final decisions regarding an inmate ’ s “Z” Code status. Appellee Ferguson
followed the P olicy when decidin g to revoke Frankenberry’s “Z” C ode status.9

Indeed, prior to the revocation of his “Z” Code status, a vote sheet was circulated, it was presented to Appellee Ferguson for review and a final decision, and t he
action and rationale were properly documented. Nowhere does the P olicy require
that the Fac ility Manager communicate the rationale for a “Z” Code status decision to the inmate. Further, simply because an inmate meets the qualifications for “Z”
Code status does not mean that inmate is “entitled to a declara tion that he be assigned single cell st atus under the Policy.” Johnson , 782 A.2d at 1077 (holding that an inmate with Hepatitis C was not entitled to “Z” code status) . Inmates that fit these criteria are only entitled to be considered for “Z” Code status. Therefore,
the trial court did not e rr in deferring to Appellee Ferguson’s decision to revoke Frankenberry’s “Z” Code status and finding that Frankenberry failed to state a
claim.

B. Double

- Celling and Eighth Amendment Frankenberry next asserts that revocation of his “Z” Code status caused him to be placed in a double

- cell and that double

- celling inmates violat es the Eighth
Amendment 7 prohibition against cruel and unusual punishment. The Eighth Amendment is “intended to protect and safeguard a prison inmate from an environment where degenerati on is probable and self

- improvement unlikely because of the conditions existing which inflict needless suffering, whether physical or mental.” Battle v. Anderson , 564 F.2d 388, 393 (10th Cir. 1977) (citing
Estelle v. Gamble , 429 U.S. 97 (1976); Gregg v. Georgia , 428 U.S. 153 (1976) )

. Though there is “[n]o static ‘test’ .

. . by which courts determine whether

7 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflic ted.” U.S. Const. amend. VIII.10

conditions of conf

inement are cruel and unusual,” it is “measured by ‘the evolving standards of decency that mark the progress of a maturing society .’” Tillery v.
Owens , 907 F.2d 418, 426 (3d Cir. 1990) (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Prison officials must ensure that inmates are not deprived of the “minimal civilized measure of life ’ s necessities,” including food, clothing, s helter, sanitation, medical care, and personal safety. Tindell v. Dep ’ t of Corr. , 87 A.3d 1029, 1041 (Pa. Cmwlth. 2014) (quoting Rhodes , 452 U.S. at 346)

. In order to succeed on an Eighth Amendment claim against a prison official,
an inmate must show two requirements: First, the deprivation alleged must be, objectively, sufficiently serious ; a prison official ’ s act or omission must result in the denial of the minimal civilize d measure of life ’ s necessities. For a claim (like the one here) based on a failu re to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. The second requirement f ollows from the principle that only the unnecessary and wanton infliction of pain i mplicates the Eighth A mendment. To violate the Cruel and Unusual Punishments Clause, a prison official must have a suffi ciently culpable state of mind. In prison

- conditions cases that state of mind is one of deliberate indifference to inmate health or safety

.

Farmer v. Brennan , 511 U.S. 825, 83 4 (1994) (internal quotation marks , footnote, and citations omitted) ; see also Neely v. Dep ’ t of Corr. , 838 A.2d 16, 20 n.6 (Pa. Cmwlth. 2003).
This C ourt has determined that “[i]n the absence of substantial evidence in
the record to indicate that the officials have exaggerated the response to these considerations, the Court should defer to [prison officials’] expert judgment in
such matters.” Robson , 420 A.2d at 12

. Thus, “ when a prison regulation impinges11

on inmates ’ constituti onal rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley , 482 U.S. 78, 89 (1987). Frankenberry’s C omplaint alleges that double

- celling inmates in cells that are approximately 8 5 square feet for 17 hours a day is per se unconstitutional, citing Till e ry

. However, Till e ry did not establish a per se rule, holding i nstead that

a court must consider the totality of the circumstances in determining the constitutional adequacy of the housing. 907 F.2d at 427

- 28. I n Till e ry , the conditions of the prison included overcrowding, pervasive violence and insecurity, deficient medical and mental health care, subnormal ventilation, plumbing, showers, fire safety concerns , limited opportunities for out

- of

- c ell recreation, long periods of double

- celling, and inadequate screening before double

- celling , which
result ed in “fatal pairings” of inmates. Id. Accordingly, Tillery determined that “the constitutionality of double

- celling must be analyzed in the conte xt . . . that almost every element of the physical plant and provision of services [in this case] falls below constitutional norms.” Id

. at 427. Th erefore , u nder the totality of the
circumstances in Tillery , “double

- celling violate d the Eighth Amendment prohibition against cruel and unusual punishment.” Id. at 428. However, o ther
courts have found double

- celling to be permissible, where “ the general prison conditions [are] otherwise adequate. ” Id. at 427. Frankenberry argues that double

- celling, when considered in combination
with the other conditions of confinement at SCI

- Benner, deprives the inmates of the minimal civilized measure of life’s necessities and violates the norms of decency, resulting in cruel and unusual punishment in violation of the Eighth Amendment. Taking Frankenberry’s descriptions of conditions within SCI

- Benner as true, the cells are approximately 85 sq uare f ee t (42.5 square feet per man, per12

cell) and inmates spend approximately 17 hours per day confined th erein

. Frankenberry has both a psychologist and psychiatrist who see him on a semi

monthly basis , in addition to a Unit Team that has knowledge of his behavior and sees him on a daily basis

. The Court can infer based on the list of medications prescribed to Frankenberry and discussions of treatment for various health problems that he has regular access to a physician , and there are no allegations that
other SCI

- Benner inmates do not also

. Frankenberry supplies no further allegations of the conditions wit hin SCI

- Benner in his Complaint. 8 Rather, he argues that there is physical and mental suffering inherent in two men confined in a small space for extended periods of time.
The conditions tha t Frankenberry describes in his C omplaint fall short of the totality of the circumstances standard in Tillery . While we accept as true that
inmates at SCI

- Benner are confined to 85 sq uare

- f oo t double

- cells for long periods of time, Frankenberry presents no evidence that the facilities ar e otherwise inadequate. There is no evidence that i nmates at SCI

- Benner are not provided with adequate medical and mental health care. There is n o evidence that prison officials
at SCI

- Benner are not adequately screening for “fatal p airings” when double

celling inmates , especially as Frankenberry was “advised to find a cellie” of his
choice to share with when he was notified that his “Z” Code status would be
removed

. ( Complaint Exhibit A. ) T he re is no evidence that conditions at SCI

Benner are not other wise adequate and square footage alone is insufficient to constitute cruel and unusual punishment . Though Frankenberry avers that the length of time spent in his 85 square foot cell is what makes this cruel and unusual,

8 Frankenberry raises additional adverse conditions in his brief on appeal, but as they were not pled in his Complaint, they will not be considered by this C ourt.13

when viewed in the totality of the circumstances, this C ourt agrees with the trial court in finding that Frankenberry failed to state a claim regarding a violation of the Eighth Amendment.

C. Discrimination and Equal Protection Claim Though Frankenberry does not expressly raise his Equal Protection argument as an issue on appeal, he does mention discrimination in his brief, and accordingly this C ourt will briefly address this argument as it was contained in his Complaint and is addressed by Appellees in their brief to this Court

. In his Complaint, Frankenberry alleges that Appellees ’ decision to remove his “Z” Code status was discriminatory in violation of the Equal Protection Clause of the
Fourteenth Amendment. 9

The E qual Protection Clause is not a command that all persons be treated alike but, rather, “a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center , 473 U.S. 432, 439

. . . (1985) (emphasis added). The level of scrutiny applied to ensure that classifications comply with this guarantee differs depending on the nature of the classification. Classifications involving suspect or quasi

suspect class, or impacting certain fundamental constitutional right s, are subject to heightened scrutiny. Id

. Other classifications, however, need only be rationally related to a legitimate government goal. See Chapman v. United States, 500 U.S. 453, 465

. . . (1991) (applying rational basis test to classification based on nature of offense).

9 “No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.14

Artway v. Attorney Gen

. of State of N.J. , 81 F.3d 1235 , 126 7 (3d Cir. 1996). “Neither prisoners nor indigents are suspect classes.” Abdul

- Akbar v. McKelvie , 239 F.3d 307, 317 (3d Cir. 2001). Additionally,

n o two prisoners, being different human beings, will possess identical backgrounds and characters. Indeed, it is difficult to believe that any two prisoners could ever be considered “similarly situated” for the purpose of judicial review on equal protection grounds of broadly d iscretionary decisions because such decisions may legitimately be informed by a broad variety of an individual’s characteristics.

Reider v. Com.. Bureau of Corr. , 502 A.2d 272, 276 (Pa. Cmwlth. 1985) ( quoting Rowe v. Cuyler , 534 F. Supp. 297, 301 (E.D. Pa .), aff’d , 696 F.2d 985 ( 3d Cir. 1982)). In his Complaint, Frankenberry states that his “Z” Code status was removed in order to grant “Z” Code status to trans

- gender inmates, while he simultaneously

argu es that his “Z” Code status was arbitrar il y and capriciously removed. Neither of these arguments is supported by facts, but taken as true, the arguments are contradictory. Even so, Frankenberry does not argue that he is similarly situated
with trans

- gender inmates and so , as prisoners are not a suspec t class, any equal protection claim must be evaluated under a rational basis test. DOC ’s P olicy require s that Appellees consider the unique characteristics of the inmate. Viewed in light of the discretionary authority granted to corrections officials, a rational basis existed to remove Frankenberry’s “Z” Code status. Accordingly, Frankenberry fails to state a claim under the Equal Protection Clause of the
Fourteenth Amendment.15

D. Stay of Discovery This Court finds no merit to Frankenberry’s claim that the trial court’s order staying discovery amounts to judicial error. Discovery matters are within a trial court’s discretion and should only be overturned by a reviewing court if abuse of
that discret ion is evident

. Luckett v. Blaine , 850 A.2d 811, 818 (Pa. Cmwlth. 2004). As a challenge to a discovery order constitutes a legal question, our scope of review is plenary. In re Hasay , 686 A.2d 809, 812 (Pa. 1996).
The trial court ’s decision to stay di scovery was granted upon Appellees’ motion for a protective order . The Pennsylvania Rules of Civil Procedure permit parties to file such a motion 10 and for the court to order a stay of proceedings until
its disposition. 11 Luckett , 850 A.2d at 819. Indeed, the trial court “has the inherent power to schedule disposition of the cases on its docket to advance a fair and efficient adjudication. Incidental to this power is the power to stay proceedings,

10 Rule 4012(a)(1) of the Pennsylvania Rule s of Civil Procedure states:
( a) Upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including one or more of the following:
(1) that th e discovery or deposition shall be prohibited . . .

.
Pa. R.C.P. No. 4012 (a)(1)

.

11 Rule 4013 of the Pennsylvania Rule s of Civil Procedure provides:
The filing of a motion for a protective order shall not stay the deposition, production, entry on land or other discovery to which the motion is directed unless the court shall so order. The court for good cause shown may stay any or all proceedings in the action until disposition of the motion.

Pa. R.C.P. No. 4013.16

including discovery. How this can best be done is a decis ion properly within the discretion of the trial courts.” Id. (citation omitted). Thus, the court may grant a protective order and stay discovery upon good cause “for the convenience of parties

. . . and in the interest s of justice.” Rule 4007.3 of the P ennsylvania Rule s of Civil Procedure, Pa. R.C.P. No. 4007.3. 12 Frankenberry argues that the trial court’s decision to stay discovery denied him the opportunity to pursue and prosecute allegations that would b e supported by
evidence in the A ppellees ’ records. While Pennsylvania allows discovery to aid in preparing pleadings , 13 this does not “authorize a ‘fishing expedition’ to determine
whether a cause of action exists.” Luckett , 850 A.2d at 818 (citation omitted)

. When a complaint has been filed, d iscovery may be granted provided that the plaintiff has presented a prima facie case therein. Id. (citing McNeil v. Jordan , 814 A.2d 234, 246 (Pa. Super. 2002) ) . As Frankenberry asserts that he cannot establish his case without the requested discovery, h is right to discovery is defeated for

12 This Rule states:

Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not o perate to delay any other party ’ s discovery.

Pa. R.C.P. No 4007.3.

13 Rule 4001(c) of the Pennsylvania Rules of Civil Procedure provides:
Subject to the provisions of this chapter, any party may take the testimony of any person, including a party, by depo sition upon oral examination or written interrogatories for the purpose of discovery, or for preparation of pleadings, or for preparation or trial of a case, or for use at a hearing upon petition, motion or rule, or for any combination of the foregoing pur poses.
Pa. R.C.P. No. 4001(c)

.17

failing to set forth a prima facie case. Because Frankenberry did not present a prima facie case, t he trial court ’s decision to grant the demurrer is wholly appropriate. Therefore, there was no abuse of discretion in the trial court’s decision to grant a stay of discovery before ruling on the Appellees’ POs

.

III. Conclusion For the foregoing reasons, this Court hereby affirms the Order of the trial court granting Appellees’ POs and dismissing Frankenberry’s Complaint with prejudice against Tammy S. Ferguson, R. Rupert, and A. Nelson. 14

_____________________________________ RENÉE COHN JUBELIRER, Judge

14 As the trial court’s ruling on the POs is affirmed, Frankenberry’s A pplication for Relief transferred from the Superior Court to this Court for disposition is dismissed as moot.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph P. Frankenberry, : Appellant :

: v. : No. 105 C.D. 2017

: Tammy S. Ferguson, Superintendent : at S.C.I. Benner, in her official as well : as her personal capacity; R. Rupert, : A

- Block Unit Mngr at S.C.I. Benner, : in her of ficial capacity; A. Nelson, : AB

- Blocks Counselor, in her official : capacity and, Dr. Xue, Chief : Psychiatrist, CHCA at S.C.I. Benner, : in his official capacity :

O R D E R

NOW , July 12, 2017 , the O rder of the Court of Common Pleas of Centre County, in the above

- captioned matter, is AFFIRMED

. Joseph P. Frankenberry’s A pplication for Relief is hereby DISMISSED as moot.

_____________________________________ RENÉE COHN JUBELIRER, Judge