          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Derrick Dale Fontroy, I., et al.           :
on his behalf and all that are samely      :
situated,                                  :
                    Petitioner             :
             v.                            :   595 M.D. 2015
                                           :   SUBMITTED: December 23, 2016
John Wetzel, Jamie Luther,                 :
Gail Beers, John Doe and Jane Doe,         :
                                           :
                   Respondents             :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                        FILED: May 17, 2017


             Before us for disposition in our original jurisdiction is the preliminary
objection in the nature of a demurrer filed by Respondents John Wetzel, Jamie
Luther, Gail Beers, John Doe and Jane Doe to the pro se petition for review filed
by Derrick Dale Fontroy, I., et al., on his behalf and all those who are similarly
situated (collectively, Petitioner).    In his petition for review, Petitioner seeks
injunctive and declaratory relief from October 2015 revisions to Department of
Corrections DC-ADM 803 (“Mail and Incoming Publications”) pertaining to
inmates opening and maintaining savings and investment accounts and receiving,
by mail, account statements and correspondence regarding those accounts.1
Specifically, he asserts that the revisions illegally restrict inmates from

    1
        The provisions of DC-ADM 803 at issue read as follows:
                Section 2 – Security Procedures
                 A. Incoming       Correspondence      Other     than   Privileged
                Correspondence
                       8. Account Statements
                         a. Inmate Savings/Investment Accounts
                               (1) An inmate is permitted to maintain a savings
                account that was opened prior to his/her incarceration. An inmate
                who maintains such an account may receive account statements
                and correspondence from the financial institution holding the
                account, provided that he or she informs the facility’s mailroom
                supervisor of the name of the financial institution.
                               (2) An inmate is permitted to open one savings
                account during his or her incarceration. An inmate who maintains
                such an account may receive account statements and
                correspondence from the financial institution holding the account,
                provided that he or she informs the facility’s mailroom supervisor
                of the name of the financial institution.
                                (3) An inmate is permitted to open one investment
                account during his or her incarceration. An inmate who maintains
                such an account may receive account statements and
                correspondence from the licensed investment professional through
                whom the account is established, provided that he or she informs
                the facility’s mailroom supervisor of the name of the licensed
                financial institution or licensed investment professional through
                whom the account is established.
                       ....
                         d. Other investments
                               (1) An inmate is prohibited from acquiring or
                transferring stocks, bonds, or any other form of security or
                investment other than as set forth in Section A.8.a.(3) above.
                            (2) An inmate who wishes to transfer stocks, bonds,
             or any other form of security or investment acquired prior to his or
(Footnote continued on next page…)


                                                  2
communicating and investing with more than one financial or brokerage
institution.     We sustain Respondents’ preliminary objection and dismiss
Petitioner’s petition for review.2
               Currently incarcerated at SCI-Laurel Highlands, Petitioner avers that
DC-ADM 803 violates the First and Fourteenth Amendments to the United States
Constitution and Article I of the Pennsylvania Constitution in that the
aforementioned restriction prevents him from “implement[ing] and institut[ing]
communications and associations with Financial entities/institutions throughout the
United States with as many financial facilities as the petitioner wish [sic] to
become a customer of, [and] to earn interest and dividends on his monies that he
intend [sic] to invest . . . .” December 21, 2015, Petition for Review, ¶ 5. He also
asserts that the restriction prevents him from consolidating existing financial
accounts. Id.
               Moreover, he alleges that the restriction illegally prevents him from
engaging in his business, which he describes as disseminating ideas of investment
projections and developing investment schedules.                   Id., ¶¶ 2, 10, and 11.
Specifically, he avers that he “is organized to disseminate                            financial
communications through the United States Mail that contain[] ideas, purchases &

_____________________________
(continued…)
             her incarceration must place the security under the control of a
             third party who is neither an inmate nor a parolee.
December 21, 2015, Petition for Review, Exhibit DD-III, Section 2 of DC-ADM 803, Subsection
A.8.a.(1)-(3) and d.(1) and (2) at 2-2 - 2-4 (emphasis in original).
     2
       In light of Petitioner’s failure to comply with our order granting him an extension of time
in which to file a brief in opposition to preliminary objections, this Court will proceed without
his brief. In addition, as noted in our order of October 18, 2016, Petitioner is not entitled to
appointed counsel in this type of civil action. See Harris v. Dep’t of Corrs., 714 A.2d 492, 495
(Pa. Cmwlth. 1998).



                                                3
sales of investment instruments in association with numerous financial
establishments[.]” Id., ¶ 8 (emphasis added).
            Based on these allegations, Petitioner requests that this Court: (1)
issue a preliminary and permanent injunction enjoining and restraining
enforcement of Section 2 of DC-ADM-803; (2) issue a preliminary and permanent
injunction enjoining and restraining Respondents from further interference,
hindrance, and prejudicial delay regarding his right to retain and/or establish more
than one financial account at any financial institution; (3) enter a declaratory
judgment adjudging Section 2 of DC-ADM-803 to be null and void; and (4) grant
such other relief as this Court shall deem just and equitable.           In response,
Respondents filed a preliminary objection in the nature of a demurrer.
            It is well established that, “[p]reliminary objections in the nature of a
demurrer are deemed to admit all well-pleaded material facts and any inferences
reasonably deduced therefrom, but not the complaint’s legal conclusions and
averments.” Danysh v. Dep’t of Corr., 845 A.2d 260, 262 (Pa. Cmwlth. 2004),
aff’d, 881 A.2d 1263 (Pa. 2005). “[O]ur role is determine whether the facts pled
are legally sufficient to permit the action to continue.” Dep’t of Pub. Welfare v.
Joyce, 563 A.2d 590, 591 (Pa. Cmwlth. 1989). To sustain such an objection, “it
must appear with certainty upon the facts pled that the law will not permit
recovery.” Id. Where there is doubt, it should be resolved by a refusal to sustain
the demurrer. Id.
            In ruling on the preliminary objection, we note that prison
administrators are to be afforded wide-ranging deference “in adopting and carrying
out policies that in their reasonable judgment are necessary to preserve order,
discipline, and security.” DeHart v. Horn, 694 A.2d 16, 19 n.9 (Pa. Cmwlth.



                                         4
1997). See also Africa v. Horn, 701 A.2d 273, 276 (Pa. Cmwlth. 1997) (holding
that the adoption and execution of departmental policies are discretionary acts). In
addition, a prison authority’s adoption of policies and practices creates neither
rights in inmates nor a constitutionally protected interest triggering an inmate’s due
process protection. Olim v. Wakinekona, 461 U.S. 238 (1983); Weaver v. Pa.
Dep’t of Corr., 829 A.2d 750, 753 (Pa. Cmwlth. 2003).
             In the present case, the Department’s stated mail policy is to permit an
inmate access to communication with members of society through the established
public mail system. Pursuant to that policy, any “[r]estrictions shall be related
directly to facility order and security, public safety, and obscenity laws and
statutes.”   Part III. Policy, DC-ADM-803 at 1 (footnote omitted).                 When
considering the limitation at issue on the number of permissible financial
institutions with which an inmate may do business and, consequently, the
corresponding quantity of account statements and correspondence generated as a
result of having accounts, we have found no constitutional right for an inmate to
have multiple financial accounts. Significantly, Petitioner does not allege that he is
prohibited from having any accounts.
             Further, mindful of the deference and discretion that prison
administrators are to be afforded, there is no indication that the restriction at issue
is unreasonable or that it lacks a legitimate governmental interest. Reasonable
restrictions are part and parcel of the diminution of privileges that an inmate must
endure. See Weaver, 829 A.2d at 752 (citations omitted) (reiterating that, due to
the unique nature and requirements of prisons, inmates do not enjoy the same level
of   constitutional   protections   afforded   to   non-incarcerated    citizens    and
imprisonment results in the circumscription or loss of many significant rights in



                                          5
order to accommodate a variety of institutional needs, foremost among them which
is internal security).
                Another reasonable restriction is the prohibition against running a
business while incarcerated.            As Respondents assert, inmates generally are
prohibited from engaging in a business while under the Department’s supervision.3
In addition, there is no constitutional right to run a business while incarcerated.
French v. Butterworth, 614 F.2d 23, 24 (1st Cir.), cert. denied, 446 U.S. 942 (1980)
(holding that, “[w]hatever protected property or liberty interest the average citizen
may have in holding employment or pursuing a chosen occupation, a prisoner has
no recognized right to conduct a business while incarcerated.”).                     See also
Nachtigall v. Bd. of Charities and Corr., 590 F. Supp. 1223 (D.S.D. 1984) (citation
omitted) (holding that, state prisoners generally have no constitutional right to
engage in business enterprises through the use of the United States mail while
incarcerated).
                Having concluded that Petitioner failed to state a claim for relief, we
sustain Respondents’ preliminary objection in the nature of a demurrer and dismiss
Petitioner’s petition for review.

                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Senior Judge
    3
        The Inmate Handbook provides:
                You are not permitted to incorporate or engage actively in a
                business or profession while under the supervision of the
                Department. If you engaged in a business or profession prior to
                your incarceration, you must assign authority for the operation of
                the business or profession to a person in the community.
Inmate Handbook at 3.          (The handbook is available on the Department’s website:
www.cor.pa.gov).



                                                6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Derrick Dale Fontroy, I., et al.           :
on his behalf and all that are samely      :
situated,                                  :
                    Petitioner             :
             v.                            :   595 M.D. 2015
                                           :
John Wetzel, Jamie Luther,                 :
Gail Beers, John Doe and Jane Doe,         :
                                           :
                   Respondents             :



                                        ORDER


             AND NOW, this 17th day of May, 2017, Respondents’ preliminary
objection in the above-captioned matter is hereby SUSTAINED and Petitioner’s
petition for review is DISMISSED.



                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge
