             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn Little,                                 :
                        Petitioner            :
                                              :
                 v.                           :    No. 489 C.D. 2019
                                              :    Submitted: August 23, 2019
Pennsylvania Department of                    :
Corrections,                                  :
                 Respondent                   :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge
                 HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                          FILED: February 18, 2020

                 Shawn Little (Requester), pro se, petitions for review of a final
determination of the Office of Open Records (OOR) dismissing as untimely his
appeal of the Department of Corrections’ (Department) denial of his request for
documents under the Right-to-Know Law.1 Requester argues that his appeal was
not untimely under the “prisoner mailbox rule.” We vacate and remand.
                 On December 7, 2018, Requester, an inmate incarcerated at the State
Correctional Institution at Camp Hill (SCI-Camp Hill), filed a request for records
from the Department. Specifically, Requester requested (1) copies of all subpoenas
served on the Department by Eva C. Stroup seeking telephone recordings of calls
made by Requester at SCI-Camp Hill; and (2) a copy of a report filed by an agent
from the Bureau of Investigation and Intelligence on October 5, 2018, concerning
the subpoenas.


1
    Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101 - 67.3104.
              On December 10, 2018, the Department sent Requester a letter
informing him that it would require a 30-day extension to consider the request.2
Seemingly unaware of the 30-day extension, Requester appealed to OOR on
December 24, 2018, claiming the Department had failed to respond to his request
within the required five-day period, resulting in a deemed denial. The Department
responded that the appeal was premature because it had informed Requester of the
30-day extension.       On January 28, 2019, OOR issued a final determination
dismissing Requester’s appeal as premature, but stating that Requester was not
prohibited from filing a new appeal once the Department responded to his request.
              The Department issued its response to the records request on December
31, 2018.     The Department found that the requested records were exempt from
disclosure under several provisions of the Right-to-Know Law, i.e., the personal
security exemption,3 the public safety exemption,4 the criminal investigation
exemption5 and the noncriminal investigation exemption.6 As such, the request was
denied.
              On February 26, 2019, Requester filed a second appeal to OOR.
Therein, Requester explained that he received OOR’s January 28, 2019, final
determination on February 6, 2019. He filed the second appeal in accordance with


2
  An agency must respond to a request for records within five business days. Section 901 of the
Right-to-Know Law, 65 P.S. §67.901. If more time is needed, the agency’s open records officer
may unilaterally extend the time to respond as long as (1) the extension does not exceed 30 days
and (2) notice is given to the requester. Section 902(b)(2) of the Right-to-Know Law, 65 P.S.
§67.902(b)(2). If more than 30 days is needed, the requester must agree to the extension or the
request will be deemed denied. Id.
3
  Section 708(b)(1)(ii) of the Right-to-Know Law, 65 P.S. §67.708(b)(1)(ii).
4
  Section 708(b)(2) of the Right-to-Know Law, 65 P.S. §67.708(b)(2).
5
  Section 708(b)(16) of the Right-to-Know Law, 65 P.S. §67.708(b)(16).
6
  Section 708(b)(17) of the Right-to-Know Law, 65 P.S. §67.708(b)(17).
                                               2
OOR’s instruction that he could do so after he received the Department’s merits
response to his Right-to-Know Law request. Requester asserted that he mailed the
appeal on February 15, 2019, which was “nine days after receiving [OOR’s final
determination and in compliance with] the Prison[er] Mailbox Rule[.]” Certified
Record (C.R.), Item 4, Attachment D at 7.
             On February 27, 2019, OOR notified both parties by letter that they had
until March 8, 2019, to submit information or legal argument in support of their
positions. OOR further stated that “[t]he record closing date is seven (7) business
days from the date of th[e] letter[.]” C.R., Item 2 at 1. In response, the Department
argued that Requester’s appeal was untimely because it was not filed within the 15-
day appeal period mandated by Section 1101(a) of the Right-to-Know Law, 65 P.S.
§67.1101(a) (“If a written request for access to a record is denied or deemed denied,
the requester may file an appeal with [OOR or the appropriate appeals officer] within
15 business days of the mailing date of the agency’s response or within 15 business
days of a deemed denial.”). Requester did not respond to OOR’s notice before the
deadline.
             On March 22, 2019, Requester filed a request (dated March 15) to OOR
to appeal nunc pro tunc. Requester stated that he did not receive OOR’s notice until
March 11, 2019, which was after the March 8 deadline for a response. In support,
he submitted a copy of the envelope dated and “signed by the witness who is
[Requester’s] unit manager” on March 11, 2019. C.R., Item 4 at 1-2. Requester
further stated that he did not receive the response the Department filed with OOR
until March 15, 2019. In support, he submitted a copy of the envelope dated and
signed by “the Corrections Officer assigned to [his] prison block” on March 15,
2019. C.R., Item 4 at 1, 3.


                                         3
              Requester stated that mail sent to inmates at SCI-Camp Hill is first
processed at a facility in St. Petersburg, Florida.7 Consequently, it was impossible
for him to respond in a timely manner to OOR’s directive to submit information or
legal argument in support of his position. Requester argued that OOR was violating
his right to due process by not taking into account the processing time for inmate
mail.
              Additionally, Requester claimed that he received the Department’s
December 31, 2018, merits response to his record request on January 9, 2019. On
January 11, 2019, Requester appealed the Department’s merits response to OOR.
Requester also attached several documents in support of his appeal. See C.R., Item
4, Attachment A (letter and documents in support of records request).
              On March 27, 2019, OOR issued a final determination dismissing
Requester’s appeal as untimely. OOR explained that the Department’s merits
response was dated December 31, 2018, and Requester’s appeal was filed on
February 26, 2019. As such, Requester did not file his appeal within the 15-day
appeal period mandated by Section 1101(a) of the Right-to-Know Law, 65 P.S.
§67.1101(a). OOR’s determination did not address the prisoner mailbox rule or
Requester’s request for nunc pro tunc relief. Requester petitioned for this Court’s
review.
              On appeal,8 Requester argues that OOR erred in dismissing his appeal
as untimely without applying the prisoner mailbox rule. He also argues that OOR


7
  The record supports Requester’s claim. All of the filings from the Department and OOR list
Requester’s address as SCI-Camp Hill, PO Box 33028, St. Petersburg, FL 33733. Requester
suggested that legal mail may be sent directly to SCI-Camp Hill, but OOR has chosen to send
correspondence to the Florida address.
8
  When reviewing a decision by OOR, our standard of review is de novo, and our scope of review
is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
                                              4
erred by not addressing his request to appeal nunc pro tunc. The Department
responds that Requester’s appeal was not filed within 15 days; thus, it was untimely.
The Department does not address the prisoner mailbox rule or Requester’s request
for nunc pro tunc relief.
              Under the prisoner mailbox rule, a pro se prisoner’s appeal is deemed
“filed when such appeal is deposited with prison officials or placed in the prison
mailbox.” Pettibone v. Pennsylvania Board of Probation and Parole, 782 A.2d 605,
607 (Pa. Cmwlth. 2001) (citing Smith v. Pennsylvania Board of Probation and
Parole, 683 A.2d 278 (Pa. 1996)). “At the heart of the ‘prisoner mailbox rule’ are
the constitutional notions of due process and fundamental fairness.” Id. at 608
(internal footnote omitted).
              Nunc pro tunc relief is available where the delay in filing an appeal was
caused by extraordinary circumstances involving fraud or a breakdown in the
administrative process or non-negligent circumstances related to the appellant, his
attorney, or a third party. Smith v. Pennsylvania Board of Probation and Parole, 81
A.3d 1091, 1094 (Pa. Cmwlth. 2013). A delay in receipt of mail attributable to
prison officials warrants nunc pro tunc relief. Bradley v. Pennsylvania Board of
Probation and Parole, 529 A.2d 66, 67-68 (Pa. Cmwlth. 1987). Further, an inmate
alleging “a delay in the receipt of his mail” is entitled to an evidentiary hearing in
order to “present evidence on whether he is entitled to a nunc pro tunc appeal.”
Rivera v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 1122 C.D.
2017, filed July 19, 2018), slip op. at 6.9



9
 Unreported memorandum opinions of this Court may be cited “for [their] persuasive value, but
not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
                                              5
             Recently, we addressed OOR’s failure to consider the prisoner mailbox
rule in Jones v. Department of Corrections (Pa. Cmwlth., No. 1213 C.D. 2018, filed
August 14, 2019). There, the requester, an inmate, filed a Right-to-Know Law
request with the Department, which it denied. The requester filed a timely appeal to
OOR. However, OOR rejected the requester’s appeal as deficient because he did
not attach copies of his original request and the Department’s response to his appeal.
OOR then advised the requester that he had seven calendar days from the date of the
notice to cure the defect or his appeal would be dismissed. Eight days later, having
received no response from the requester, OOR dismissed the appeal.
             On appeal to this Court, the requester asserted that he had mailed the
required documents within the seven-day period. In support, he provided a dated
“cash slip” reflecting that he had purchased postage for a mailing to OOR. He
argued that OOR violated his due process rights by dismissing his appeal without
consideration of the prisoner mailbox rule. We agreed with the requester, vacated
OOR’s dismissal of the appeal and remanded for OOR to conduct a hearing to
determine whether the requester’s appeal was timely under the prisoner mailbox
rule.
             Jones is on point. Accordingly, we vacate OOR’s final determination
dismissing Requester’s appeal as untimely and remand for OOR to conduct an
evidentiary hearing on the timeliness of Requester’s appeal giving due consideration
to the prisoner mailbox rule and the claims raised in his request for nunc pro tunc
relief.
                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                          6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn Little,                            :
                  Petitioner             :
                                         :
            v.                           :   No. 489 C.D. 2019
                                         :
Pennsylvania Department of               :
Corrections,                             :
                 Respondent              :


                                   ORDER

            AND NOW, this 18th day of February, 2020, the Final Determination
of the Office of Open Records (OOR), dated March 27, 2019, is VACATED and the
matter is REMANDED to OOR for proceedings consistent with the attached
opinion.
            Jurisdiction relinquished.


                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
