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 LEAVITT, 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), petition 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 Correctional 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 digital 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 December 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 5th and 14th

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 property 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 receive 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 the 
4

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 

inadvertently 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 to 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 [sic] [Rega] right 

to access the data contained in the Petitioner’s [Rega] 

account, has on or about June 1, 2014, arbitrarily applied 

DC-ADM-003(F)(4), copying charges, as a means to 

fleece Petitioner [Rega] with a ($15.00) search and 

retrieval fee, and ($1.00) 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 

printout. . . .

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 Petitioner’s [Rega] constitutional 

property rights under the 5th and 14th Amendments to the 

United States Constitution.

19). Petitioner [Rega] believes, and therefore avers this 

practice violates the Petitioner’s rights under state tort 
5

conversion of property laws, 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), 

Paragraph Nos. 3-6, 8-12, and 14-19 at 3-6.

In Count 1 of the Amended Petition, Rega asserted that his property 

rights were violated because the personal financial records were his property. In 

Count 2 of the Petition, Rega asserted that his property rights were violated under 

“the Taking Clause pursuant to the 5th and 14th Amendments.” Amended Petition, 

Paragraph No. 40 at 9. In Count 3 of the Petition, Rega asserted that the 

Respondents have 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 

penological 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 of the document.

On January 14, 2015, the Respondents preliminarily objected to the 

amended petition for review. First, the Respondents preliminarily object on the 
6

basis that this Court lacks subject matter jurisdiction over SCI-Greene 

Superintendent Robert 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, ‘Release 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 statement 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 should 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’ Preliminary Objections to Amended Petition for Review, January 14, 

2015, Paragraph Nos. 16-23 at 4-6.

Initially, this Court will address the Respondents’ preliminary 

objections. The Respondents preliminarily object on the basis that this Court lacks 

subject matter 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 Judicial 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 independent 

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 272 (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)1regarding 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 

commissioner 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 Madden 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 kind 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 respondents 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 

exercise 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 implicated 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 

reasonable 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 his 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 Constitution, violates his property rights, and results in a conversion of his

property.

Regarding Rega’s claims, when a claim is raised that a prison 

regulation impinges on an inmate’s constitutional rights, the regulation is valid if it 

is reasonably related 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 legitimate 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 Court 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 challenge the refusal to allow services for Nation of 
12

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 based on legitimate penological interests 

including time and space limitations, safety, security, and resource concerns. 

Mobley, 65 A.3d at 1050-1052.

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 effort 

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. Crum & 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 charged 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 his alleged property interest.4

Accordingly, this Court overrules the preliminary objections of the 

Respondents and denies Rega’s motion for summary relief. This Court directs the 

Respondents to file and answer within thirty days.

____________________________

BERNARD L. McGINLEY, Judge

 

 

(continued...)

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 25th day of August, 2015, this Court overrules the 

preliminary objections 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 directs the 

Respondents to file an answer within thirty days of the date of this order. This 

Court denies Robert Gene Rega’s motion for summary relief. 

____________________________

BERNARD L. McGINLEY, Judge