IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Gene Rega, :

Petitioner :

:

v. :

: Pennsylvania Department : of Corrections; John E. Wetzel, : (Secretary); Robert Gilmore, : (Superintendent); Karen Patterson, : (Business Manager); Leslie Wynn, : (Accountant); J. Kennedy, : (Accountant); J. Pauley (Accountant); : John and Jane Doe's, : No. 574 M.D. 2014

Respondents : Submitted: June 19, 2015

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE MARY HANNAH LEAV ITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McGINLEY FILED: August 25, 2015

Before this Court are the preliminary objections of the Pennsylvania
Department of Corrections (DOC) , John E. Wetzel, (Secretary) ; Robert Gilmore,
(Superintendent); Karen Patterson, (Business Manager) ; Leslie Wynn,
(Accountant); J. Kennedy, (Accountant); J. Pauley (Accountant); and John and
Jane Doe's, (collectively, Respondents) , to Robert Gene Rega’s (Rega), pet ition for
review in the nature of a complaint in equity and in the nature of a complaint for
declaratory judgment in this Court’s original jurisdiction. Also, before this Court
is Rega’s motion for summary relief.2 Rega is incarcerated at the State Corre ctional Institution at Greene

(SCI

- Greene). Rega commenced an action on October 7, 2014, against the
Respondents.

In his original petition for review , Rega sought a declaratory judgment

that DOC’s policy, DC

- ADM

- 003(F)(4)

, violated his property rights and was
unconstitutional as it applied to the charge of a $15.00 search and retrieval fee,
$1.00 for the first page, and $.25 for each additional page for a prisoner who
sought access to information in his personal prisoner account information through

a di gital paper printout . Rega also requested a court order that would prohibit the
imposition of fees associated with DC

- ADM

- 003(F)(4), the issuance of a court

order that would prohibit a fee of more than $.25 per page and/or a fee reasonably

related to the cost of reproduction, reimbursement of costs of litigation, and
discovery of the cost of a digital printout.

The Respondents preliminarily objected. Rega filed an application for
leave to amend his petition which this Court granted by order dated Decemb er 5,

2014.

In the amended petition, Rega alleged:

3) . Petitioner [Rega] is a state prisoner at S.C.I. Greene, and due to this, the D.O

. C. has a legal duty to maintain an account for the Petitioner [Rega] pursuant to, 61 Pa.C.S.A. [sic] §3124(a). . . .

4 ) . Petitioner [Rega] avers that the balances of said account is [sic] the sole property of the Petitioner [Rega] as provided by the property rights retained by Article I,3 §10 of the Pennsylvania Constitution and the 5 th and 14 th Amendments to the United States Constitution, as provided by 61 Pa. C.S.A. [sic] §3125(a) 7 (b).

5) . Petitioner [Rega] avers that the language contained in, 18 Pa.C.S.A. [sic] §5123(b), establishes that the monetary balance in a prisoner account is the p roperty of said prisoner.

6) . Petitioner [Rega] avers since 61 Pa.C.S.A. [sic] §3124(a), is a mandate to maintain an account for the sole benefit of the . . . prisoner, thus the records generated by the inmates [sic] account activity; (e.g.) deposits and withdrawals, makes all records pertaining to that personal account the prisoners [sic] personal property, as the D.O.C. merely maintains the monetary balances due to the provisions of, 18 Pa.C.S.A. [sic] §5123(b), which prohibits prisoner possession of U.S

. currency.

. . . . 8) . Petitioner [Rega] avers that Respondent Wetzel, through and by the Pennsylvania Department of Corrections is directly responsible for issuing statewide administrative directives and/or statements of policy; namely DC

- ADM

- 003.

9). Petitioner [Rega] avers that Respondents Gilmore, Patterson, Pauley, Wynn, Kennedy, and John and Jane Doe’s

. . . as subordinates of the Secretary, are responsible for complying with and/or carrying out the reasonable application of the above Statement of Policy, DC

- ADM

- 003, and/or the internal rules of the facility.

10) . Respondent Wetzel and/or his predecessor, issued DC

- ADM

- 003, on or about November 24, 2010.

11) . Petitioner [Rega] avers that since 2002, upon request, Petitioner [Rega] was able to rece ive a One Page

, (15) day ‘printout’ of his account for a nominal fee of (10¢), so that Petitioner [Rega] could track . . . recent deposits/withdrawals and more specifically, the ability to quickly confirm that legal mailings which were effectuated by ‘cash slip’, were processed, in the4 mailroom (as that is were [sic] postage by cash slip is deducted), and not destroyed by a rogue Officer. . . .

12). Petitioner [Rega] avers the timely tracking of his outgoing mail determines the ability to locate mail inadv ertently or otherwise misplaced. After 30 days (hiatus between issued statements), will render any hope in locating the missing mail futile. In short, it’s GONE!

. . . . 14). Petitioner [Rega] avers that on June 2, 2014, June 9, 2014, and June 13, 2014, the Respondents refused to provide Petitioner [Rega] with a (15) day printout of his account and/or provide pertinent account activity information by way of a DC

- 135A (Request t o Staff), without Petitioner [Rega] first paying a ($15.00) search and retrieval fee, and ($1.00), for the first page, pursuant
to DC

- ADM

- 003(F)(4). . . .

15). Petitioner [Rega] avers that the above Respondents have, with contempt for the Petitioners [si c] [Rega] right to access the data contained in the Petitioner’s [Rega] account, has on or about June 1, 2014, arbitrarily applied DC

- ADM

- 00 3( F )(4), copying charges, as a means to fleece Petitioner [Rega] with a ($15.00) search and retrieval fee, and ($1.0 0) for the first page, and (.25¢) for each page thereafter, so as to stymie Petitioner’s [Rega] access to his own account information.

16) . Petitioner [Rega] avers that the fees charged are not reasonably related to the cost of reproducing the account pri ntout. . . .

17) . Petitioner [Rega] believes, therefore avers this practice violates the Petitioner’s [Rega] constitutional property rights under the Taking Clause.

18) . Petitioner [Rega] believes, and therefore avers this practice violates the Petitione r’s [Rega] constitutional property rights under the 5 th and 14 th Amendments to the United States Constitution.

19). Petitioner [Rega] believes, and therefore avers this practice violates the Petitioner’s rights under state tort5 conversion of property law s, and is actionable pursuant to 42 Pa. C.S.A. [sic] §8522(b)(3). (Emphasis in original.)
Petition for Review (In the Nature of a Complaint in Equity) (In the Nature of a
Complaint for Declaratory Judgment), December 11, 2014, (Amended Petition),
Paragrap h Nos. 3

- 6, 8

- 12, and 14

- 19 at 3

- 6.

In Count 1 of the Amended Petition, Rega asserted that his property
right s were violated because the personal financial records were his property. In
Count 2 of the Petition, Rega asserted that his property rights wer e violated under
“the Taking Clause pursuant to the 5 th and 14 th Amendments.” Amended Petition,
Paragraph No. 40 at 9 . In Count 3 of the Petition, Rega asserted that the
Respondents ha ve violated his property rights under the “tort of conversion of
property under common law.” Amended Petition, Paragraph No. 43 at 10. Rega
sought the same relief as in the original petition for review

.

On December 8, 2014, Rega moved for summary relief. In the
motion, Rega asserts that he has a clear right to relief according to DOC’s own
internal rules and the policy, DC

- ADM

- 003(F)(1). Rega also asserts that it is clear
that the policy as applied does not meet the standard of having a legitimate
penol ogical interest because it is applied arbitrarily and lacks adherence to the
fundamental goals asserted by DOC. Rega further states that because he has a
property interest in the funds held in his prison account, he need only compensate

DOC for the cost o f the document.

On January 14, 2015, the Respondents preliminarily objected to the
amended petition for review. First, the Respondents preliminarily object on the6

basis that this Court lacks subject matter jurisdiction over SCI

- Greene
Superintendent Rob ert Gilmore, SCI

- Greene Business Manager Karen Patterson,

and SCI

- Greene Accountants J. Pauley, Leslie Wynn, and J. Kennedy because they

are not statewide officers.

Second, the Respondents preliminarily object in the nature of a

demurrer and allege:

16. Inmates within the Department’s [DOC] custody are provided with a free inmate account statement each month. . . .

17. Additional copies of an inmate’s account statement must be paid for by the inmate pursuant to Department [DOC] policy DC

- ADM 803, ‘Rel ease of Information’. .

. . 18. Department policy DC

- ADM 003 provides that the costs for copying documents other than inmate medical records and documents released under the Right to Know Law . . . are as follows:

a. a $15.00 search and retrieval fee, except that the search and retrieval fee shall not be charged to any Commonwealth agency, criminal justice agency, or district attorney;

b. for records maintained on paper, a fee of $1.00 for the first page and $.25 per page thereafter; and

c. for records maintained on microfiche, photographic records or other non

- paper records, a fee equal to the actual cost of reproducing the records. . . .

19. Petitioner [Rega] does not allege that he was denied his monthly statem ent or that he was required to pay for his regular monthly account statement. . . .7 20. Rather, Petitioner [Rega] challenges the cost of obtaining additional account statements outside of his regular monthly statement.

21. Rather, he asserts that he sh ould not have to pay the costs associated with additional copies of his account statement. He requests that a lower cost be assessed: the $.10 per page charge associated with copying in

- hand documents (those in the inmate’s possession); or the $.25
cent per page charge association with RTKL [Right to Know Law] requests. . . .

22. The Department [DOC] is entitled to charge for costs associated with retrieving and copying documents requested by inmates. . . .

23. Because Petitioner [Rega] does not have a clear right to free additional copies of his account statement, and because the cost of additional copies is clearly provided in the Department’s policy, DC

- ADM 003, Petitioner’s [Rega] claim fails. (Citations and footnote omitted.) Respondents’ Prelimin ary Objections to Amended Petition for Review, January 14,
2015, Paragraph Nos. 16

- 23 at 4

- 6.

Initially, this Court will address the Respondent s ’ preliminary
objections. The Respondents preliminarily object on the basis that this Court lacks
subject mat ter jurisdiction because Robert Gilmore, Karen Patterson, Leslie Wynn,
J. Kennedy, and J. Pauley are not statewide officers but are DOC employees at

SCI

- Greene.

The scope of this Court’s original jurisdiction is set forth in Section

761(a) of the Judicia l Code, 42 Pa.C.S. §761(a), which provides in pertinent part:8 (a) General Rule

—

the Commonwealth Court shall have original jurisdiction of all civil actions or proceedings: (1) against the Commonwealth government, including any officer thereof, acting in his official capacity. . . .

In Opie v. Glasgow, Inc. , 375 A.2d 396, 398 (Pa. Cmwlth. 1971), this
Court explained that an officer of the Commonwealth “performs state

- wide
policymaking functions and . . . [is] charged with the responsibility of independen t
initiation of administrative policy regarding some sovereign function of state
government,” while a Commonwealth employee “functions on an essentially local
or regional basis . . . [and] performs subordinate ministerial functions.”

In Reider v. Bureau of Corrections , 502 A.2d 2 72 (Pa. Cmwlth. 1985),
William D. Reider petitioned this Court in its original jurisdiction and sought relief
from the actions of the Bureau of Corrections (Bureau) 1 regarding prerelease

status. Besides the Bureau, also named in the petition were the acting

commissioner of the Bureau, the executive assistant to the commissioner, the
superintendent at the State Correctional Institution at Huntingdon, and the deputy
superintendent at the State Correctional Institution at Huntingdon. The
respondents in the action preliminarily objected on the basis that this Court lacked
jurisdiction over the superintendent and deputy superintendent. Reider , 502 A.2d

at 273.

This Court determined that it had jurisdiction over the acting

commission er of the Bureau and could exercise original jurisdiction over the

1 The Bureau of Corrections is now known as DOC.9

superintendent and deputy superintendent as ancillary to the claims against the
acting commissioner. Reider , 502 A.2d at 274.

In making that determination, this Court relied on Mad den v. Jeffes

, 482 A.2d 1162 (Pa. Cmwlth. 1984). In Madden

, this Court held that it had original
jurisdiction over the commissioner of the Bureau and also stated:

[T]he superintendent of a state correctional institution, who is not charged with the requisite k ind of statewide policy making responsibility . . . is an employee rather than an officer. . . . However, the claim against [the] superintendent is ancillary to the claims against Commonwealth parties and, therefore, under 42 Pa.C.S. § 761(c), we may also exercise original jurisdiction over that claim despite the superintendent’s status as employee.

Madden , 482 A.2d at 1165.

Here, Rega makes claims against DOC as well as the Secretary of

DOC, John E. Wetzel (Secretary Wetzel) . Although the other respond ents are
employees and not officers of the Commonwealth, the claims against DOC and
Secretary Wetzel are within this Court’s original jurisdiction. The claims against
the other respondents are ancillary to those claims. Therefore, this Court will

exercis e jurisdiction and deny the Respondents’ preliminary objection.

The Respondents next object on the basis that Rega fails to state a
claim for deprivation of due process rights and interference with property rights
where no protected interest is implica ted and where DOC is entitled to establish
costs for the production and copying of documents.10 In considering preliminary objections, this Court must consider as true

all the well

- pleaded material facts set forth in the petitioner’s petition and all

reason able inferences that may be drawn from those facts. Mulholland v.
Pittsburgh National Bank , 174 A.2d 861, 863 (Pa. 1961). Preliminary objections
will be sustained only in cases clear and free from doubt that the facts pleaded are
legally insufficient to establish a right to relief. Werner v. Zazyczny , 681 A.2d

1331 (Pa. 1996).

Rega alleges that DOC’s policy regarding the copying costs for
additional copies of his inmate account statements violates his Fifth and Fourteenth
Amendment rights, as well as h is common law property rights, because the costs of
obtaining copies are excessive.

Inmates under DOC supervision are provided with a free inmate

account statement on a monthly basis. However, if an inmate wants an account
statement apart from the free monthly statement, he must pay for it pursuant to
DOC’s policy contained in DC

- ADM 003 which provides that the costs for
copying documents

, other than inmate medical records and documents released
under the Right to Know Law (Law)

, 2 are a $15.00 search and retrieval fee plus,
for records maintained on paper, a fee of $1.00 for the first page and $.25 per page

thereafter, and, for records maintained on microfiche , photographic records or

other non

- paper records, a fee equal to the actual cost of reproducing the records.

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

- 67.3104

.11 Rega does not allege that he was denied access to his monthly

statement . Further, Rega does not allege that he was required to pay for the
statement. Rather, Rega asserts that he should not have to pay as much as DOC
charges for the production and copying of his inmate account records beyond the
free monthly statement. Rega asserts that DOC’s practice violates his
constitutional rights under the Fifth and Fourteenth Amendments to the United

States C onstitution , violates his property rights, and results in a conversion of his

property.

Regarding Rega’s claim s , when a claim is raised that a prison
regulation impinges on an inmate’s constitutional rights, the regulation is valid if it
is reasonably re lated to legitimate penological interests. Payne v. Department of

Corrections , 871 A.2d 795, 810 (Pa. 2005), citing, Turner v. Safley , 482 U.S. 78

(1987).

DOC argues that the reasons for the costs are administrative and
budgetary concerns which are legi timate penological interests. This Court noted in
Mobley v. Coleman , 65 A.3d 1048 (Pa. Cmwlth. 2013)

, that budgetary constraints
constitute a valid penological interest.

However, while budgetary concerns may be legitimate penological

interests, this Co urt may not consider them when ruling on preliminary objections

, if the matter is raised collaterally to the petition for review or complaint . In
Mobley , Kevin Mobley brought a class action against state prison officials,
including Secretary Wetzel, to ch allenge the refusal to allow services for Nation of12

Islam inmates separate from services for Sunni Muslims. The prison officials filed
preliminary objections in the form of a demurrer and asserted that the reason for
not providing separate services was ba sed on legitimate penological interests
including time and space limitations, safety, security, and resource concerns.
Mobley , 65 A.3d at 1050

- 105 2

.

This Court determined:

While all of those concerns set forth in their preliminary objections are valid penological interests that could justify their position, those reasons cannot be advanced because when considering a demurrer, a court cannot consider matters collateral to the complaint, but must limit itself to such matters as appear therein, and an effo rt to supply facts missing from the objectionable pleading makes the preliminary objection in the nature of a demurrer an impermissible ‘speaking demurrer.’ Stilp v. Commonwealth, 910 A.2d 775 (Pa. Cmwlth. 2006); see also Regal Industrial Corporation v. C rum & Foster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005) (defining a speaking demurrer as one which requires the aid of a fact not appearing on the face of the pleading being objected to and noting that a speaking demurrer cannot be considered in sustaining preliminary objections).
Mobley , 65 A.3d at 1053.

Here, as in Mobley , the assertion that there is a valid penological
interest in limiting an inmate to one free statement a month and the validity of the

amounts charg ed for any copies of the inmate account in between the issuance of
the monthly statements is a speaking demurrer which this Court may not consider. 3

3 The Respondents also argue that this Court lacks subject matter jurisdiction because Rega cannot identify a personal or property interest not limited by DOC’s regulations (Footnote continued on next page...)13

This speaking demurrer may not be used to dismiss Rega’s claims , constitutional

and otherwise, related to hi s alleged property interest. 4

Accordingly, this Court overrules the preliminary objection s of the
Respondents and d enies Rega’s motion for summary relief. This Court d irects the
Respondents to file and answer within thirty days

.

___________ _________________ BERNARD L. McGINLEY, Judge

(continu ed...)

and which has been affected by a final decision of the Department. The Respondents argue that because DOC has the right to impose costs for copying services that Rega has no claim. This Court cannot make that determination based on the facts contained in Rega’s amended petition.

4 Regarding Rega’s motion for summary relief, Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1532(b), provides, “At any time after the filing of a petition for review in an appellate or original jurisdiction matter the court may on application enter judgment if the right of the applicant thereto is clear.” “An application for summary relief is properly evaluated according to the standards for summary judgment.” McGarry v. Pennsylvania Board of Probation and Parole , 819 A.2d 1211, 1214 n.7 (Pa. Cmwlth. 2003) (citing Gartner v. Pennsylvania Board of Probation and Parole , 469 A.2d 697 (Pa. Cmwlth. 1983)). “In deciding a motion for summary judgment, an application for summary relief may be granted if a party’s right to judgment is clear . . . and no issues of material fact are in dispute.” McGarry , 819 A.2d at 1214 n.7. (citation omitted). Based on what is before this Court, it is not clear that Rega has a clear right to judgment. As a result, this Court denies the application for summary relief.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Gene Rega, :

Petitioner :

:

v. :

: Pennsylvania Department : of Corrections; John E. Wetzel, : (Secretary); Robert Gilmore, : (Superintendent); Karen Patterson, : (Business Manager); Leslie Wynn, : (Accountant); J. Kennedy, : (Accountant); J. Pauley (Accountant); : John and Jane Doe's, : No. 574 M.D. 2014

Respondents :

O R D E R

AND NOW, this 25 th day of August , 20 1 5

, this Court overrules the
preliminary objection s of the Pennsylvania Department of Corrections; John E.

Wetzel, (Secretary); Robert Gilmore, (Superintendent); Karen Patterson, (Business
Manager); Leslie Wynn, (Accountant); J. Kennedy, (Accountant); J. Pauley
(Accountant); and John and Jane Doe ’ s (collectively, Respondents) and di rects the
Respondents to file an answ er within thirty days of the date of this order. This
Court denies Robert Gene Rega’s motion for summary relief.

____________________________ BERNARD L. McGINLEY, Judge