IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Graziano, :

 Petitioner :

:

 v. : No. 468 M.D. 2019

: Submitted: December 4, 2023

John Wetzel, Secretary of the : 

Pennsylvania Department of :

Corrections, :

 Respondent :

 

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WALLACE FILED: March 6, 2024

Edward Graziano (Graziano), pro se, filed a petition for review in this Court’s 

original jurisdiction seeking a declaratory judgment and injunctive relief against the 

Pennsylvania Department of Corrections’ (Department) implementation of its 

inmate sanctioning scheme referred to as “Swift, Certain and Fair” (SCF). Presently 

before the Court for our disposition is Department Secretary John Wetzel’s (Wetzel) 

Application for Summary Relief, pursuant to Rule 1532(b) of the Pennsylvania 

Rules of Appellate Procedure, Pa.R.A.P. 1532(b), requesting dismissal of 

Graziano’s amended petition for review for lack of a justiciable controversy. After 
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careful review, we grant Wetzel’s Application for Summary Relief and dismiss 

Graziano’s amended petition for review, with prejudice.

I. Factual and Procedural History

Pursuant to Act 115 of 2019, also referred to as the Justice Reinvestment 

Initiative 2 (JRI2), the Department introduced SCF to streamline prison discipline 

for minor behavioral infractions and divert technical parole violators from prison. 

See Act of Dec. 18, 2019, P.L. 776, No. 115. According to the Department’s SCF 

procedures, prison staff members who observe a violation of an applicable rule (e.g., 

failure to stand for an inmate count or interfering with the count) must first complete 

an SCF infraction sheet. See Graziano v. Wetzel (Pa. Cmwlth., No. 468 M.D. 2019, 

filed Nov. 9, 2021) (Graziano III), slip op. at 1. Next, the staff member provides

this sheet to the Housing Unit Sergeant who: (i) reviews the circumstances of the 

infraction, (ii) counsels the accused inmate and obtains his or her signature 

acknowledging the sanction to be imposed, and (iii) sanctions the inmate. Id. 

Depending upon the inmate’s history of misconduct, a Housing Unit Sergeant can 

impose discipline ranging from a reprimand and warning to 21 days of cell 

restriction. Id., slip op. at 2. The maximum sanction under SCF, 30 days of cell 

restriction, can only be imposed by a Department hearing examiner after an inmate 

accumulates eight or more infractions within a single 365-day period. Id. SCF 

sanctions for multiple violations are served consecutively. Id.

On August 22, 2019, Graziano, then incarcerated at the State Correctional 

Institution (SCI) at Forest, filed a pro se petition for review challenging the 

Department’s use of SCF at SCI Forest. See Petition for Review ¶¶ 29-34. Wetzel 

submitted preliminary objections to Graziano’s petition for review. See Wetzel’s 

Preliminary Objection to Petition for Review (Pa. Cmwlth., No. 468 M.D. 2019, 
3

filed Sept. 13, 2019). After the Court granted him leave to do so, Graziano filed an 

amended petition for review on February 11, 2021, denouncing SCF as applied to 

every inmate housing unit within the SCI system. See Amended Petition for Review 

¶ 4. Wetzel refiled preliminary objections. See Wetzel’s Preliminary Objection to 

Amended Petition for Review (Pa. Cmwlth., No. 468 M.D. 2019, filed Feb. 25, 

2020). While Wetzel’s objections were pending, Graziano filed an application for a 

preliminary injunction, which this Court denied by memorandum opinion and order 

dated December 4, 2020. See Graziano v. Wetzel (Pa. Cmwlth., No. 468 M.D. 2019, 

filed Dec. 4, 2020) (Graziano I) (Fizzano Cannon, J., single-judge op.). Thereafter, 

Graziano filed an amended motion for a preliminary injunction, which this Court

likewise denied by memorandum opinion and order dated March 1, 2021. See 

Graziano v. Wetzel (Pa. Cmwlth., No. 468 M.D. 2019, filed Mar. 1, 2021) (Graziano 

II) (Fizzano Cannon, J., single-judge op.).

After reviewing the merits of Graziano’s amended petition for review and 

Wetzel’s preliminary objections, a panel of this Court, by memorandum opinion and 

order dated November 9, 2021, dismissed, with prejudice, Graziano’s (i) federal 

substantive due process claim, (ii) state law claims concerning agency procedure, 

and (iii) claim of an implied right to bring a private cause of action under 

Pennsylvania’s Mental Health and Intellectual Disability Act.1 See Graziano, slip 

op. at 10. The Court also dismissed, without prejudice, Graziano’s federal 

procedural due process claim and overruled Wetzel’s objections concerning 

Graziano’s state constitutional claims. Id. This Court did not dismiss Graziano’s 

claim that SCF is “void for vagueness” because Wetzel failed to raise an objection

to the claim. Id. Lastly, the Court granted Graziano’s request for leave to file a 

1 Act of October 20, 1966, Spec. Sess. No. 3, P.L. 96, as amended, 50 P.S. §§ 4101-4704.
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second amended petition for review and set his deadline to plead a viable federal 

procedural due process claim as March 25, 2022. Id., slip op. at 10-11.

On December 10, 2021, Wetzel filed an Answer and New Matter to 

Graziano’s amended petition for review. Wetzel also filed an application for 

summary relief on December 14, 2021, arguing “it is clear the Court is unable to 

provide [Graziano’s] requested relief and the claim should be dismissed as moot.” 

Wetzel’s Application for Summary Relief at 2, ¶ 8. Wetzel averred Graziano’s 

claims were moot because the Department moved Graziano to SCI Camp Hill, which 

does not utilize SCF, in July 2021.2 See Department’s Br. at 7.

This Court subsequently provided a briefing schedule to the parties regarding 

Wetzel’s Application for Summary Relief. By per curiam order dated May 1, 2023, 

we denied Graziano’s request for an extension of time to file a second amended 

petition for review, denied Graziano’s third motion for a preliminary injunction, and 

granted Graziano an additional extension of time to file a brief in opposition to 

Wetzel’s Application for Summary Relief. Graziano failed to timely file both a 

second amended petition for review and a brief in opposition to Wetzel’s 

Application for Summary Relief before the respective deadlines. Graziano 

ultimately attempted to file a second amended petition for review more than 400 

days after the deadline. By per curiam order dated June 6, 2023, this Court dismissed 

Graziano’s second amended petition for review as unauthorized, and we precluded 

Graziano from filing a brief in opposition to Wetzel’s Application for Summary 

Relief.

Accordingly, we presently evaluate Wetzel’s contention that Graziano’s 

amended petition for review is moot. If we do not dismiss Graziano’s amended 

2 Graziano is currently in the custody of the Department at SCI Huntingdon. See Graziano’s Letter

(Pa. Cmwlth., No. 468 M.D. 2019, filed Jan. 4, 2024).
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petition for review as moot, we must then determine whether Wetzel is entitled to 

summary relief on: (i) Graziano’s void for vagueness claim, (ii) Graziano’s 

Pennsylvania constitutional claims, and (iii) Graziano’s federal procedural due 

process claim.

II. Discussion

Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure provides that 

we “may” grant an application for summary relief “[a]t any time after the filing of a 

petition for review in an . . . original jurisdiction matter . . . if the right of the applicant 

thereto is clear.” Pa.R.A.P. 1532(b). In evaluating whether to award summary relief, 

“the court must view the evidence of record in the light most favorable to the nonmoving party and enter judgment only if there are no genuine issues as to any 

material facts and the right to judgment is clear as a matter of law.” Allen v. Dep’t 

of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014) (citation omitted).

A. Mootness

Under the mootness doctrine, a petitioner must establish that “an actual case 

or controversy” exists “at all stages” of the litigation. Dep’t of Env’t Prot. v. 

Cromwell Twp., Huntingdon Cnty., 32 A.3d 639, 651 (Pa. 2011). An actual case or 

controversy is one which (i) “is real and not hypothetical[,]” (ii) “affects an 

individual in a concrete manner so as to provide the factual predicate for a reasoned 

adjudication[,]” and (iii) has “sufficiently adverse parties so as to sharpen the issues 

for judicial resolution.” California Borough v. Rothey, 185 A.3d 456, 463 (Pa. 

Cmwlth. 2018) (citation omitted). The parties must also have a continuous, 

“personal stake in the outcome” of the controversy. Mistich v. Pa. Bd. of Prob. & 

Parole, 863 A.2d 116, 119 (Pa. Cmwlth. 2004). If the petitioner cannot establish

each of these factors, the Court must then determine if an exception to the mootness 
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doctrine applies. We will adjudicate a case that is moot if: (i) “[the] conduct 

complained of is capable of repetition yet likely to evade judicial review,” (ii) “the 

case involves issues of great public importance,” or (iii) “one party will suffer a 

detriment without the court’s decision.” Rothey, 185 A.3d at 463 (citation omitted). 

The first exception to the mootness doctrine, that the conduct complained of 

is capable of repetition yet likely to evade judicial review, is properly established 

where “the duration of the challenged action is too short to be fully litigated prior to 

its cessation or expiration” and “there is a reasonable expectation that the same 

complaining party will be subjected to the same action again.” Phila. Pub. Sch.

Notebook v. Sch. Dist. of Phila., 49 A.3d 445, 449 (Pa. Cmwlth. 2012). The 

maximum SCF sanction is 30 days of cell restriction, which means an inmate could 

never fully litigate his discipline before the discipline ended. There is also a 

reasonable expectation Graziano could be subjected to SCF again. While Graziano 

is not currently incarcerated at an SCI facility that utilizes SCF, Graziano alleges 

SCF is prevalent throughout the entire SCI system. Wetzel and the Department 

maintain total control over where Graziano is housed throughout the duration of his 

sentence. Therefore, the Department could transfer Graziano to a facility that 

implements SCF at any given time. In addition, the Department could easily avoid 

judicial review of its SCF program by temporarily transferring any inmates who file 

appeals, similar to Graziano’s, to an SCI facility that does not implement SCF.

Accordingly, we conclude Graziano’s claims are not moot because the 

Department’s conduct is capable of repetition and likely to evade judicial review by 

this Court. We, therefore, deny Wetzel’s request for summary relief on the basis 

that Graziano’s claims are moot.
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B. Void for Vagueness

Turning to the merits of Graziano’s claims, Graziano first contends that SCF 

violates the void for vagueness doctrine.

As generally stated, the void for vagueness doctrine requires that a 

penal statute define the criminal offense with sufficient definiteness 

that ordinary people can understand what conduct is prohibited and in 

a manner that does not encourage arbitrary and discriminatory 

enforcement. [A] statute is void for vagueness if it fails to give a person 

of ordinary intelligence fair notice that his contemplated conduct is 

forbidden by the statute. Due process requirements are satisfied if the 

statute provides reasonable standards by which a person may gauge 

their future conduct.

Commonwealth v. McCoy, 895 A.2d 18, 30 (Pa. Super. 2006) (quoting 

Commonwealth. v. Barud, 681 A.2d 162, 165 (Pa. 1996)) (emphasis added).3 The 

void for vagueness doctrine does not apply to SCF because SCF is not a penal statute, 

but rather a protocol of disciplinary procedures to guide the Department’s handling 

of an inmate’s violation of prison rules. Accordingly, Wetzel is entitled to judgment 

as a matter of law on this issue.

C. Pennsylvania Constitution

Graziano next argues that SCF violates article I, section 9, and article I, section 

11 of the Pennsylvania Constitution. Article 1, section 9, entitled “Rights of 

Accused in Criminal Prosecutions,” provides:

In all criminal prosecutions the accused hath a right to be heard by 

himself and his counsel, to demand the nature and cause of the 

accusation against him, to be confronted with the witnesses against him, 

to have compulsory process for obtaining witnesses in his favor, and, 

in prosecutions by indictment or information, a speedy public trial by 

3 Decisions of the Superior Court are not binding authority on this Court but may be cited for 

persuasive value. Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 

2018).
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an impartial jury of the vicinage; he cannot be compelled to give 

evidence against himself, nor can he be deprived of his life, liberty or 

property, unless by the judgment of his peers or the law of the land. . . .

Pa. Const., art. 1, § 9 (emphasis added). In Horan v. Wetzel (Pa. Cmwlth., No. 1425 

C.D. 2013, filed May 28, 2014),4an inmate alleged the Department violated his 

article 1, section 9 rights because he was not permitted to introduce witness 

testimony during a prison disciplinary hearing. A panel of the Court observed, 

however, that article 1, section 9 was not applicable because prison disciplinary 

hearings are not criminal prosecutions. Id., slip op. at 4. Moreover, this Court has 

recognized that “prison officials must be accorded wide ranging deference on the 

adoption and execution of policies and practices . . . necessary to preserve internal 

order and to maintain institutional security.” Robson v. Biester, 420 A.2d 9, 12 (Pa. 

Cmwlth. 1980).

Article 1, section 9 of the Pennsylvania Constitution, does not, therefore,

apply to the Department’s use of SCF. Accordingly, Wetzel’s right to relief is clear, 

and he is entitled to judgment as a matter of law with respect to Graziano’s article I, 

section 9 claim.

Regarding Graziano’s claim under article 1, section 11 of the Pennsylvania 

Constitution, Graziano asserts SCF “creates an impermissible commingling of 

functions” in violation of article 1, section 11. See Amended Petition for Review ¶ 

21. Article 1, section 11, also known as the due course of law provision or the 

remedies clause, provides:

All courts shall be open; and every man for an injury done him in his 

lands, goods, person or reputation shall have remedy by due course of 

4 Unreported memorandum opinions of this Court issued on or after January 15, 2008, may be 

cited for their persuasive value. See Section 414(a) of this Court’s Internal Operating Procedures, 

210 Pa. Code § 69.414(a).
9

law, and right and justice administered without sale, denial or delay. 

Suits may be brought against the Commonwealth in such manner, in 

such courts and in such cases as the Legislature may by law direct.

Pa. Const., art. 1, § 11. Our Supreme Court, on this point, has clarified:

[T]he due course of law protects only vested rights — meaning “a title, 

legal or equitable, to the present or future enforcement of a demand, or 

a legal exemption from a demand made by another.” [Lewis v. Pa. R. 

Co., 69 A. 821, 823 (Pa. 1908)]. Accordingly, and as the 

Commonwealth Court aptly explained: “the due course of law 

provision is invoked when a change in the legislation attempts to alter 

or eliminate a vested or accrued cause of action.” [Dana Holding Corp. 

v. Workers’ Comp. Appeal Bd. (Smuck), 195 A.3d 635, 643 (Pa. 

Cmwlth. 2018) (citations omitted)].

Dana Holding Corp. v. Workers’ Comp. Appeal Bd. (Smuck), 232 A.3d 629, 649 

(Pa. 2020). Graziano has not presented us with any arguments that SCF eliminates

or alters a vested or accrued cause of action. See, e.g., Ieropoli v. AC&S Corp., 842 

A.2d 919, 930 (Pa. 2004). For these reasons, Wetzel’s right to judgment is clear, 

and he is entitled to judgment as a matter of law on Graziano’s article 1, section 11 

claim.

D. Procedural Due Process

Finally, Graziano claims SCF violates his federal procedural due process 

rights. As fully outlined above, this Court’s memorandum opinion dated November 

9, 2021, explained that “[t]here is nothing in the amended petition, as currently 

constituted, that would allow us to conclude that [Graziano’s] procedural due 

process rights were violated.” Graziano, slip op. at 10. This Court, however, 

granted Graziano leave to file a second amended petition for review to “provide him 

with the opportunity to plead a viable federal procedural due process claim.” Slip 

op. at 11. Graziano failed to timely file a second amended petition for review and 

has been precluded from doing so. Accordingly, Graziano has failed to plead a 
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viable federal procedural due process claim, and therefore, Wetzel is entitled to 

judgment as a matter of law on this issue.

III. Conclusion

Based on the foregoing, although this Court denied relief on his mootness 

claim, Wetzel is entitled to judgment as a matter of law on each of Graziano’s 

remaining claims. We accordingly dismiss Graziano’s amended petition for review, 

with prejudice.

______________________________

STACY WALLACE, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Graziano, :

 Petitioner :

:

 v. : No. 468 M.D. 2019

: 

John Wetzel, Secretary of the : 

Pennsylvania Department of :

Corrections, :

 Respondent :

O R D E R 

 AND NOW, this 6th day of March 2024, the Application for Summary Relief 

filed by John Wetzel, Secretary of Corrections is GRANTED, and Edward 

Graziano’s Amended Petition for Review is DISMISSED, with prejudice.

______________________________

STACY WALLACE, Judge