IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph P. Frankenberry, :

Appellant :

 :

v. : No. 105 C.D. 2017

 : Submitted: 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 Order of the 

Court of Common Pleas of Centre County (trial court) sustaining the preliminary

objections (POs) filed by Appellees Tammy S. Ferguson, R. Rupert, and A. Nelson 

(Appellees).

1

 The trial court granted Appellees’ demurrer and dismissed 

 

1

Employed at State Correctional Institution at Benner Township, respectively, as 

Superintendent, A-Block Unit Manager, 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 Complaint, 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 Appellees 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 in inmate housing matters and chose to remove his 

“Z” Code status despite the other Appellees’ votes 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 physical 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 

violates 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 Complaint, 

incorporating his original Complaint 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 United States Constitution.

Frankenberry asserts that double-celling under the conditions averred at SCIBenner is a violation of the Eighth Amendment’s prohibition against cruel and 

unusual punishment because of the size of the cells and the time inmates are 

confined daily therein. 

Appellees filed POs 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 POs, Appellees assert that Frankenberry’s Complaint 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 POs at 8.) 

Upon receipt of the First Amendment to Complaint, Appellees 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. Accordingly, Frankenberry requested that 

discovery be allowed to continue. 

The trial court granted Appellees’ motion to stay discovery. After a hearing, 

the trial court denied Frankenberry’s Petition. The trial court then issued the 

August 29, 2016 Opinion and Order sustaining Appellees’ POs and dismissing 

Frankenberry’s Complaint. 

With regard to the equal protection and discrimination claims, the trial court 

reasoned that all of Frankenberry’s allegations in regard to this matter are mere 

conclusions 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. Thus, 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 added 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 trial 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 remained against Appellees Rupert and Nelson. 

II. Frankenberry’s Appeal

Frankenberry filed a timely notice of appeal3from the trial court’s August 

29, 2016 Order accompanied by an Application for Relief requesting a Temporary 

Restraining Order with the Superior Court of Pennsylvania, which noted that this 

matter is within the appellate jurisdiction of the Commonwealth Court.4 The 

Superior Court directed Frankenberry 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 Application for Relief 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 filed in the trial court on the date originally filed. 

Pa. R.A.P. 905(a)(4); see 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 

demurrer when Appellees removed his longstanding “Z” Code status without 

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 Amendment to the United States Constitution; removal of his 

“Z” Code status was discriminatory, which implicates the Fourteenth Amendment 

Equal 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 for his claims.5 Because 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, we note that, when 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, 188 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 Contractors, Inc. v. The Architectural Studio, 866 

A.2d 270, 274 (Pa. 2005); MacElree v. Phila. Newspapers, Inc., 674 A.2d 1050, 

1056 (Pa. 1996). Courts 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 demurrer 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 policy 

which applies to determinations about 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 the 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) dangerous 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). When an annual “Z” 

Code status 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, available at

http://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/11.02.01%20Reception%20a

nd%20Classification.pdf (last visited July 11, 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 housing status shall be documented . . . .” Policy at 5-3.

Frankenberry argues that the trial court failed to note that Appellee Ferguson 

revoked his “Z” Code status despite the other Appellees’ votes that it be 

maintained and did not provide him with the rationale for her decision, which he 

deems was arbitrary and capricious. Accepting all of these allegations as fact, as 

we must, Frankenberry has not stated 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 transfer 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, 441 U.S. 520 (1979)). Federal 

law similarly 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 Policy when deciding to revoke Frankenberry’s “Z” Code 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 the 

action and rationale were properly documented. Nowhere does the Policy require 

that the Facility 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 declaration that he be 

assigned single cell status 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 err 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 violates the Eighth 

Amendment7prohibition against cruel and unusual punishment. The Eighth 

Amendment is “intended to protect and safeguard a prison inmate from an 

environment where degeneration 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 inflicted.” U.S. Const. amend. VIII.
10

conditions of confinement 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, shelter, 

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 civilized measure of life’s necessities. For a claim (like the 

one here) based on a failure to prevent harm, the inmate must show 

that he is incarcerated under conditions posing a substantial risk of 

serious harm. 

The second requirement follows from the principle that only the 

unnecessary and wanton infliction of pain implicates the Eighth 

Amendment. To violate the Cruel and Unusual Punishments Clause, a 

prison official must have a sufficiently 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, 834 (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 Court 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 impinges 
11

on inmates’ constitutional 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 Complaint alleges that double-celling inmates in cells that 

are approximately 85 square feet for 17 hours a day is per se unconstitutional, 

citing Tillery. However, Tillery did not establish a per se rule, holding instead that

a court must consider the totality of the circumstances in determining the 

constitutional adequacy of the housing. 907 F.2d at 427-28. In Tillery, 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-cell recreation, long 

periods of double-celling, and inadequate screening before double-celling, which 

resulted in “fatal pairings” of inmates. Id. Accordingly, Tillery determined that 

“the constitutionality of double-celling must be analyzed in the context . . . that 

almost every element of the physical plant and provision of services [in this case] 

falls below constitutional norms.” Id. at 427. Therefore, under the totality of the 

circumstances in Tillery, “double-celling violated the Eighth Amendment 

prohibition against cruel and unusual punishment.” Id. at 428. However, other 

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 square feet (42.5 square feet per man, per 
12

cell) and inmates spend approximately 17 hours per day confined therein. 

Frankenberry has both a psychologist and psychiatrist who see him on a semimonthly 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 within 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 that Frankenberry describes in his Complaint 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 square-foot double-cells for long periods 

of time, Frankenberry presents no evidence that the facilities are otherwise 

inadequate. There is no evidence that inmates at SCI-Benner are not provided with 

adequate medical and mental health care. There is no evidence that prison officials 

at SCI-Benner are not adequately screening for “fatal pairings” when doublecelling 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.) There is no evidence that conditions at SCIBenner are not otherwise 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 Court. 
13

when viewed in the totality of the circumstances, this Court 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 Court 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 Equal 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 quasisuspect class, or impacting certain fundamental constitutional rights, 

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, 1267 (3d Cir. 1996). 

“Neither prisoners nor indigents are suspect classes.” Abdul-Akbar v. McKelvie, 

239 F.3d 307, 317 (3d Cir. 2001). Additionally,

no 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 

discretionary 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 

argues that his “Z” Code status was arbitrarily 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 suspect class, any equal 

protection claim must be evaluated under a rational basis test. DOC’s Policy 

requires 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 discretion 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 discovery was granted upon Appellees’ 

motion for a protective order. The Pennsylvania Rules of Civil Procedure permit 

parties to file such a motion10 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 Rules 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 the discovery or deposition shall be prohibited . . . .

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

11 Rule 4013 of the Pennsylvania Rules 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 decision 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 interests of justice.” Rule 4007.3 of the Pennsylvania Rules

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 be supported by 

evidence in the Appellees’ 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, discovery 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, his 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 operate 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 deposition 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 purposes.

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, the 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 Application 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 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 :

O R D E R

NOW, July 12, 2017, the Order of the Court of Common Pleas of 

Centre County, in the above-captioned matter, is AFFIRMED. Joseph P. 

Frankenberry’s Application for Relief is hereby DISMISSED as moot. 

_____________________________________

RENÉE COHN JUBELIRER, Judge