          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey James Beers,                        :
                           Petitioner       :
                                            :
             v.                             :   No. 338 M.D. 2018
                                            :   Submitted: July 20, 2018
Pennsylvania State Police                   :
                         Respondent         :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                            FILED: August 29, 2018

             Before us in our original jurisdiction are the Pennsylvania State Police’s
(PSP) preliminary objections to Jeffrey James Beers’ (Beers) petition for review
seeking mandamus relief and monetary damages for alleged harm to his reputation.
Representing himself, Beers filed a complaint in the nature of mandamus alleging the
Sexual Offender Registration and Notification Act (SORNA)1 was unconstitutional
as applied to him pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),
cert. denied, __ U.S. __, 138 S. Ct. 925 (2018). PSP argues Beers fails to state a
claim for mandamus relief because he is currently incarcerated, and it challenges his
standing.   Notably, PSP’s preliminary objections did not acknowledge Beers’
damages claim. Upon consideration, we overrule PSP’s preliminary objections, and
we direct it to file an answer to the petition for review.


      1
          Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§9799.10-9799.41,
effective December 20, 2012. SORNA, commonly known as Megan’s Law IV, was enacted “[t]o
bring the Commonwealth into substantial compliance with the Adam Walsh Child Protection and
Safety Act of 2006[,] [42 U.S.C. §§16901-16945].” 42 Pa. C.S. §9799.10(1).
                                       I. Background
              Beers is currently serving an aggregated sentence of 10 to 25 years in
prison for involuntary deviate sexual intercourse. See Pet. for Review (Pet.) at ¶¶5-6.
In 2008, when Beers pled guilty and was sentenced for this offense, Megan’s Law
III2 was in effect.


              Megan’s Law III was replaced by SORNA. Muniz. Beers’ offense,
relating to involuntary deviate sexual intercourse, is classified as a Tier III offense
requiring lifetime registration under SORNA. 42 Pa. C.S. §9799.14(d)(4). SORNA
vests regulatory authority in PSP, and PSP maintains the sex offender registry.


              In January 2017, our Supreme Court decided Muniz, holding that
SORNA’s registration provisions were punitive in nature. As a result, it reasoned
the retroactive application of those provisions violated the ex post facto clauses of
the United States and Pennsylvania Constitutions.3 In addition, the Court held
“SORNA’s registration and online publication provisions place a unique burden on
the right to reputation, which is particularly protected in Pennsylvania.” Muniz, 164
A.3d at 1223.


       2
          The General Assembly enacted Megan’s Law III, the Act of November 24, 2004, P.L.
1243, when our Supreme Court deemed portions of Megan’s Law II, the Act of May 10, 2000,
P.L. 74, constitutionally infirm in Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003). Megan’s
Law II followed Megan’s Law I, the Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), 42
Pa. C.S. §§9791-9799.6, which our Supreme Court held unconstitutional in Commonwealth v.
Williams, 733 A.2d 593 (Pa. 1999).
       3
         Article I, Section 10 of the United States Constitution provides, in pertinent part: “No
State shall … pass any … ex post facto Law ….” U.S. CONST. art. I, §10. Article I, Section 17 of
the Pennsylvania Constitution provides, in pertinent part that, “No ex post facto law … shall be
passed.” PA. CONST. art. I, §17.
                                               2
              In May 2018, Beers filed a petition for review consisting of two counts.
In the first count, he sought mandamus relief from SORNA’s registration
requirements pursuant to Muniz.4 Specifically, he alleged “SORNA is incapable of
being utilized in [his] situation based upon the fact that SORNA did not exist at the
time of either his original conviction or sentencing.” Pet. at ¶8. He requested this
Court direct his removal from the SORNA registry and shield him from additional
sanctions imposed by SORNA, and direct “place[ment] on the correct version of
Megan’s Law or remov[al] completely based upon proper application of stare
decisis.” Pet. at ¶13.


              In the second count, Beers sought monetary damages for violation of
his right to reputation under the Pennsylvania Constitution based on publication on
the SORNA registry. Pet. at ¶¶14-19. He alleged claims sounding in tort, including
negligent and intentional infliction of emotional distress. Id. at ¶¶15, 19.


              PSP filed preliminary objections asserting Beers fails to state a
cognizable claim because he is not subject to SORNA’s registration requirements
while he is incarcerated. Because SORNA has not been applied to Beers, and he is
not listed in the registry, PSP contends Beers’ claim is not ripe. For the same reason,
PSP also asserts Beers lacks standing.


       4
          In his petition for review, Beers cites SORNA, 42 Pa. C.S. §§9799.10-9799.41, as the
basis for his mandamus claim based on Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert.
denied, __ U.S. __, 138 S. Ct. 925 (2018). However, the General Assembly amended certain
provisions of SORNA through the Act of February 21, 2018, P.L. 27, No. 10 (commonly known
as Act 10), and added new sections, 42 Pa. C.S. §§9799.42, 9799.51-9799.75. Various provisions
of Act 10 were reenacted and amended by the Act of June 12, 2018, P.L. 140, No. 29 (Act 29),
which became effective immediately. Beers’ petition seeks no relief based on legislation enacted
subsequent to SORNA.
                                               3
               Beers filed a response to the preliminary objections, acknowledging his
current incarceration.        Because he is unable to consult the sexual offender
registration, Beers denied that he is not presently listed in the registry. Beers alleges
that some inmates were listed on the registry despite their incarceration. See
Response to Prelim. Objs. at ¶14. Beers also filed a brief in support of his response.5


               After briefing, the matter is ready for disposition.


                                         II. Discussion
               A demurrer contests the legal sufficiency of a complaint. Barge v. Pa.
Bd. of Prob. & Parole, 39 A.3d 530 (Pa. Cmwlth. 2012), aff’d, 96 A.3d 360 (Pa.
2014). When assessing legal sufficiency, this Court must accept as true all well-
pled, material and relevant facts alleged in the complaint and every inference fairly
deducible from those facts. Markham v. Wolf, 147 A.3d 1259 (Pa. Cmwlth. 2016)
(en banc). This Court, however, is not required to accept as true conclusions of law,
unwarranted inferences from facts or expressions of opinion. Doe v. Miller, 886
A.2d 310 (Pa. Cmwlth. 2005). “To sustain preliminary objections, it must appear
with certainty the law will not permit recovery, and any doubts should be resolved
by a refusal to sustain them.” Id. at 314. With these principles in mind, we address
PSP’s preliminary objections.




       5
          In his brief, Beers argues for the first time that he should not be subjected to any sexual
offender registration “regardless of any legislative enactment such as Act 10 of 2018, or any future
enacted statutory provision.” Pet’r’s Br. at 7 (emphasis in original). Nevertheless, Beers did not
amend his petition to include a claim for relief from subsequent sexual offender registration or
request leave to amend. Thus, such a claim is not properly before us.

                                                 4
                                 A. Mandamus Claim
             To state a mandamus claim, the petitioner must prove “a clear legal right
to relief … a corresponding duty in the respondent and the lack of any other adequate
and appropriate remedy.” Smires v. O’Shell, 126 A.3d 383, 387 (Pa. Cmwlth. 2015).
Mandamus cannot lie “to compel performance of a discretionary act or to govern the
manner of performing [the] required act.” Coppolino v. Noonan, 102 A.3d 1254,
1263 (Pa. Cmwlth. 2014) (en banc), aff’d, 125 A.3d 1196 (Pa. 2015) (citation
omitted). Mandamus only offers a remedy to enforce established rights. Smires.


                              1. Standing & Ripeness
             First, we address PSP’s challenge to Beers’ standing and related
challenge to the ripeness of his claim.


             Our Supreme Court recognizes the “considerable overlap” between
standing and ripeness, especially where the objecting party’s challenge to
justiciability “focused on arguments that the interest asserted by the petitioner is
speculative, not concrete, or would require the court to offer an advisory opinion.”
Yocum v. Pa. Gaming Control Bd., 161 A.3d 228, 234 (Pa. 2017) (citation omitted).
However, “[s]tanding and ripeness are distinct concepts insofar as ripeness also
reflects the separate concern that relevant facts are not sufficiently developed to
permit judicial resolution of the dispute.” Id.


             “[T]he doctrine of ripeness mandates the presence of an ‘actual
controversy’ and requires consideration of ‘whether the issues are adequately
developed and the hardships that the parties will suffer if review is delayed.’” Bucks


                                          5
Cty. Servs., Inc. v. Phila. Parking Auth., 71 A.3d 379, 390 (Pa. Cmwlth. 2013)
(quoting Bayada Nurses, Inc. v. Dep’t of Labor & Indus., 8 A.3d 866, 874 (Pa.
2010)).


             To have standing, a litigant must show his interest in the litigation is
substantial, direct and immediate. Van Doren v. Mazurkiewicz, 695 A.2d 967 (Pa.
Cmwlth. 1997) (rejecting ripeness challenge under Megan’s Law I; holding inmate
had standing to challenge registration requirements). The three elements of standing
are well-established. As this Court explained:

             [A] ‘substantial’ interest is an interest in the outcome of the
             litigation which surpasses the common interest of all citizens in
             procuring obedience to the law. A ‘direct’ interest requires a
             showing that the matter complained of caused harm to the
             party’s interest. An ‘immediate’ interest involves the nature of
             the causal connection between the action complained of and the
             injury to the party challenging it ....

Markham, 147 A.3d at 1282 n.9 (quoting S. Whitehall Twp. Police Serv. v. S.
Whitehall Twp., 555 A.2d 793, 795 (Pa. 1989)).


             In the instant matter, there is no dispute that Beers is currently
incarcerated in a state correctional institution for involuntary deviate sexual
intercourse. Pet. at ¶2. This felony in the first degree is a sexual offense requiring
registration as a sexual offender.


             PSP contends Beers is not adversely impacted by SORNA because he
is not subject to its registration requirements while he is incarcerated. We disagree.



                                          6
             That the statute tolls registration requirements while Beers is
incarcerated, see 42 Pa. C.S. §9799.15(c)(1)(i), does not deprive him of standing.
A sexual offender has standing to challenge registration requirements to which he
may be subject upon his release from prison. Padgett v. Noonan (Pa. Cmwlth., No.
412 M.D. 2017, filed July 30, 2018) (unreported) (granting inmate summary relief
from SORNA as construed in Muniz); Van Doren; see also Gregory v. Pa. State
Police, 160 A.3d 274 (Pa. Cmwlth. 2017) (single j. op.) (overruling PSP’s
preliminary objection challenging inmate’s standing to request relief from SORNA
registration); accord Gregory v. Pa. State Police, 185 A.3d 1202 (Pa. Cmwlth. 2018)
(granting inmate’s application for relief from SORNA) (Gregory (2018)).


             Recently, in Padgett, this Court considered PSP’s challenge to an
inmate’s standing to obtain relief from SORNA registration requirements based on
his incarceration. Like this case, in Padgett PSP contended an inmate could not state
a claim in mandamus to preclude SORNA’s retroactive application because SORNA
was not yet applied to him. PSP maintained that the inmate’s claim would not ripen
until the registration requirement was imposed, upon his release from prison.


             We rejected PSP’s ripeness argument, and we overruled PSP’s
preliminary objection to standing on that ground. Id. In so doing, we adopted the
reasoning Judge Cohn Jubelirer set forth in Gregory. Prior to this Court’s panel
decision granting the inmate summary relief in Gregory (2018), this Court concluded
incarcerated inmates have standing to challenge the retroactive application of
SORNA’s registration requirements to them under Muniz. Because SORNA’s
registration requirements would be imposed on the inmate by operation of law, this


                                         7
Court recognized the inmate’s substantial and direct interest in relief from SORNA
that surpassed that of other citizens. Padgett.


             Like the inmate in Gregory, Beers has a direct and substantial interest
in protecting himself from the retroactive application of SORNA. Our Supreme
Court deemed the registration requirements punitive in nature, and it held that
application of SORNA to persons whose convictions for sexual offenses predated
SORNA’s enactment was unconstitutional. Muniz. Beers would be aggrieved by
the unconstitutional application of SORNA to him.


             Further, the harm Beers complains of is not speculative or remote.
Padgett; Van Doren. Beers claims he has been placed on SORNA’s sexual offender
registry, and that “was the proximate cause of [him] being harassed, threatened, and
vilified by others … subject[ing] him to additional scrutiny based upon the ‘scarlet
letter’ of ‘sex offender.’” Pet. at ¶18. These are allegations of fact that, if true, may
form the basis for a claim for relief. While PSP makes contrary factual assertions,
at the preliminary objection stage, we are constrained to accept Beers’ averments as
true. Markham.


             Application of subsequent legislation (SORNA) that requires sexual
offender registration upon release from prison, although not yet imposed, aggrieves
an inmate who is subject to such registration by operation of law. See Van Doren;
Gregory. Even if Beers’ release from prison is not imminent, this fact does not render
the harm remote. Padgett.



                                           8
             Further, we are unpersuaded that Beers faces no concrete injury to the
extent he is subjected to sexual offender registration upon his release from prison.
PSP acknowledges Beers would be required to register as a sexual offender, “if
released today,” under Act 10. Resp’t’s Br. at Section III (B) (unpaginated). Our
Supreme Court and this Court recognize the punitive effect that sexual offender
registration exacts. Muniz; see Coppolino, 102 A.3d at 1272 n.26 (citing E.B. v.
Verniero, 119 F.3d 1077 (3d Cir. 1997), as to negative consequences of Megan’s
Law registration).


             Therefore, because Beers alleges a substantial and direct injury that will
be imposed by operation of law, as well as an injury to his reputation by virtue of
placement on the sexual offender registry, we overrule PSP’s challenge to his
standing.


                                    2. Demurrer
             Next, we consider PSP’s demurrer to Beers’ mandamus claim.
Significantly, PSP argues mandamus relief is not cognizable because Beers has no
current obligation to register based on his incarceration.


             We rejected PSP’s identical argument in Padgett. Muniz pertained to
the retroactive application of SORNA and held it was unconstitutional as applied to
those whose sexual offense convictions predated its enactment.           Beers’ 2008
convictions predate SORNA. Because the holding in Muniz was not limited to
sexual offenders who were registered under a prior version of Megan’s Law or
SORNA, Beers may state a claim for relief from SORNA’s application to him.


                                          9
               Moreover, here, Beers asserts he was placed on the SORNA sexual
offender registry despite the fact that Megan’s Law III was in effect at the time of
his conviction. He is seeking his removal if not already removed, and protection
from any other SORNA punitive measures pursuant to Muniz. Because application
of SORNA to Beers’ 2008 conviction is unconstitutional, he may state a claim for
relief from SORNA’s provisions. Padgett.


                                      B. Damages Claim
               Significantly, PSP did not file a preliminary objection to Beers’
damages claim. Indeed, PSP did not acknowledge that Beers sought any relief other
than mandamus.


               Specifically, PSP’s objection for failure to state a claim avers “[Beers]
cannot succeed on a mandamus action, when the relief he requests is not cognizable.”
Resp’t’s Prelim. Objs. at ¶9. Although damages can be recovered in mandamus if
the damages relate to the mandate sought, School District of Pittsburgh v. City of
Pittsburgh, 352 A.2d 223 (Pa. Cmwlth. 1976), Beers did not seek damages related
to PSP’s alleged failure to perform a mandatory duty.6

       6
           Beers raised two theories of recovery in his damages claim: (1) PSP’s violation of his
constitutional right to reputation, for which he cited Muniz; and, (2) PSP’s tortious infliction of
emotional distress, for which he cited the Restatement (Third) of Torts. PSP did not address either
theory in its preliminary objections, or its brief in support.
        To the extent his claim for damages relates to a constitutional violation, to date, this Court
has declined to recognize a cause of action for damages for violating a constitutional right. See
Balletta v. Spadoni, 47 A.3d 183, 192 (Pa. Cmwlth. 2012) (declining to recognize damages claim
for constitutional defamation; stating “To date, neither Pennsylvania statutory authority, nor
appellate case law has authorized the award of monetary damages for a violation of the
Pennsylvania Constitution.”); Jones v. City of Phila., 890 A.2d 1188, 1208 (Pa. Cmwlth.) (en
banc), appeal denied, 909 A.2d 1291 (Pa. 2006) (stating “neither statutory authority, nor appellate
case law has authorized the award of monetary damages for a violation of the Pennsylvania
Constitution”; declining to recognize cause of action for damages for alleged violations of search
                                                 10
                PSP did not assert any objection to Beers’ damages claim, which is
separate from and set forth different legal and factual grounds than his mandamus
claim. See Pet. at ¶14-19. Therefore, we decline to dismiss it at this juncture
regardless of its likelihood of success. Bell v. Rockview State Corr. Facility, 620
A.2d 645 (Pa. Cmwlth. 1993); see Lutweiler v. Northchester Corp., 319 A.2d 899,
901 n.5 (Pa. 1974) (explaining dismissal of cause of action on court’s own motion
was inappropriate; “limiting [its] consideration of the decree appealed from to the
preliminary objections which were raised”); see, e.g., Taylor v. Pa. State Police, 132
A.3d 590 (Pa. Cmwlth. 2016) (addressing each preliminary objection in the nature
of a demurrer to each legal challenge sex offender raised to SORNA); Malone v. Pa.
State Police (Pa. Cmwlth., No. 577 M.D. 2015, filed April 28, 2017) (unreported),
2017 WL 1533870 (addressing PSP’s demurrer to each claim separately; recognizing
PSP did not demur to challenge to SORNA notification provisions and requiring
PSP to answer claims to which it did not object).


                                          III. Conclusion
                For the foregoing reasons, PSP’s preliminary objections are overruled,
and we direct PSP to file an answer to the petition for review.



                                                ROBERT SIMPSON, Judge



and seizure clause of Pennsylvania Constitution, based in part on sufficient protection of
equivalent right under federal constitution).
         To the extent his damages claim relates to the torts involving infliction of emotional distress,
PSP did not challenge its legal sufficiency or otherwise object to the claim. Beers alleged that “by
presenting him on the SORNA website as a public display with a ‘scarlet letter’ of ‘sex offender,’”
Pet. at ¶14, PSP committed a tortious act that subjected him to harassment. Id. at ¶¶15, 18.
         If appropriate, PSP may file an application for summary relief as to these claims.
                                                  11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey James Beers,                     :
                          Petitioner     :
                                         :
              v.                         :   No. 338 M.D. 2018
                                         :
Pennsylvania State Police                :
                         Respondent      :


                                       ORDER

              AND NOW, this 29th day of August, 2018, Respondent Pennsylvania
State Police’s (PSP) preliminary objections to Petitioner Jeffrey James Beers’
Petition for Review in the Nature of a Complaint in Mandamus are OVERRULED.
Accordingly, PSP is directed to file an answer within thirty (30) days of the date of
this order.




                                        ROBERT SIMPSON, Judge
