                  IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn Freemore,                                   :
                        Petitioner                :
                                                  :
                v.                                :
                                                  :
                                                  :
Department of Corrections,                        :    No. 536 M.D. 2019
                 Respondent                       :    Submitted: March 13, 2020


OPINION
PER CURIAM                                             FILED: May 1, 2020

                Before this Court are the Department of Corrections’ (Department)
preliminary objections (Preliminary Objections) to Shawn Freemore’s (Freemore) pro
se petition for review in the nature of a complaint for declaratory judgment and
injunctive relief (Petition) filed in this Court’s original jurisdiction. After review, we
sustain the Preliminary Objections and dismiss the Petition.


                                            Background1
                 On December 12, 2011, Freemore was convicted of first-degree murder
(Count I), for which the Monroe County Common Pleas Court (sentencing court)
sentenced him to life in prison without the possibility of parole. See Petition Ex. A
(Sentencing Order) at 1; see also Petition Exs. B, C. He was also convicted of
criminal conspiracy to commit criminal homicide (Count II), for which he was
sentenced to 96 to 216 months (i.e., 8 to 18 years) in prison, “to run consecutive[ly]
with that imposed on Count I,” and “pay the costs of the[] proceedings.” Sentencing
Order at 2; see also Petition Exs. B, C. Lastly, Freemore was convicted of tampering
with and/or fabricating physical evidence (Count IV), for which he was sentenced to

      1
          The following facts are as alleged in the Petition.
serve 6 to 24 months in prison, “for a total aggregate [] sentence of life imprisonment
followed by a period of incarceration of not less than eight and [one-]half (8½) years
with the maximum not to exceed twenty (20) years.” Sentencing Order at 2; see also
Petition Exs. B, C. Freemore is currently incarcerated at the State Correctional
Institution (SCI) at Houtzdale.
               On May 31, 2019, the Department sent Freemore notice that he owed
$667.50 in costs pursuant to Section 9728(b)(5) of the Sentencing Code (Act 84), 42
Pa.C.S. § 9728(b)(5),2 and $60.00 for Crime Victim Compensation/Victim Services
Fund (CVC) fees (Notice).3 See Petition Ex. D. The Notice informed Freemore that
“[t]he [Department would] begin making deductions from [his] inmate account to
satisfy [his] financial obligations in accordance with [Act 84] and DC-ADM 005,
‘Collection of Inmate Debts.’” Notice at 1.
               On June 8, 2019, Freemore challenged the Notice by filing a grievance,
wherein he argued that because the Sentencing Order directed his Count II sentence
to be served consecutive to his Count I sentence, and he is still serving his Count I
sentence, the Department may not now collect Count II costs. See Petition Ex. E
(Grievance).     Freemore requested the Department to “[c]ease commencement of
deductions until Count II is being served.” Petition Ex. E at 1.
               On June 12, 2019, the Grievance Officer denied the Grievance because
“Freemore supplied nothing to support his claim that costs are not due because he is
not currently serving [C]ount II . . . .” Petition Ex. F (Initial Review Response) at 1.

       2
         “[Act 84] provides a procedure for [the Department] to collect fines and court costs for
which a defendant is liable pursuant to a previous court order.” Russell v. Donnelly, 827 A.2d 535,
537 (Pa.Cmwlth. 2003).
       3
          The $60.00 CVC fee is statutorily mandated and does not require imposition by a
sentencing court order. See Section 1101 of the Crime Victims Act, Act of November 24, 1998,
P.L. 882, as amended, 18 P.S. § 11.1101; Dep’t of Corr. v. Tate, 133 A.3d 350 (Pa. Cmwlth. 2016)
(holding that deductions from an inmate account to pay into the CVC fund are statutorily
authorized).


                                                2
On June 27, 2019, Freemore appealed to the Facility Manager, see Petition Ex. G
(Facility Manager Appeal), therein quoting DC-ADM 005 Section 3.A.2.a (relating to
deferred restitution, costs and Act 84 penalty payments) and the Sentencing Order.
See Facility Manager Appeal, Attachment 1 at 1.
              On July 1, 2019, the Facility Manager upheld the Grievance Officer’s
Initial Review Response on the following basis:

              The Grievance Officer appropriately addressed the issues
              contained in the [G]rievance. [The] appeal is completely
              based on [Freemore’s] opinion that the [Department] lacks
              jurisdiction to deduct funds . . . . The [Grievance] Officer
              has clearly explained the policy and how it [is] applied.
              [Freemore has] failed to show any proof that support[s]
              [his] [Grievance] and [he] lack[e]d anything in the appeal to
              argue the [Grievance] Officer’s findings. There is no
              violation of policy and procedure in handling [Freemore’s]
              debt collection.

Petition Ex. H (Facility Manager’s Appeal Response) at 1.                  On July 12, 2019,
Freemore appealed from the Facility Manager’s Appeal Response. See Petition Ex. I.
              On August 8, 2019, the Department notified Freemore that his appeal
was referred to the Department’s Office of Chief Counsel. See Petition Ex. J. On
August 21, 2019, the Department issued its Final Appeal Decision, denying the
appeal because “the Office of Chief Counsel . . . determined that the Initial Review
Response was correct . . . .” Petition Ex. K (Final Appeal Decision) at 1. On
September 18, 2019, Freemore filed the Petition with this Court.4




       4
         On October 10, 2019, Freemore filed a motion for preliminary injunction seeking to enjoin
the Department from deducting the subject costs from his inmate account pending his appeal, and
from filing a motion for summary relief. Although it appears that no further action was taken on
Freemore’s motion for preliminary injunction, the matter is rendered moot by this opinion.
                                                3
                                          Facts
             On November 25, 2019, the Department filed its Preliminary Objections,
arguing: (1) this Court lacks jurisdiction because Freemore failed to serve the Petition
on the Department; and (2) Freemore failed to state a cause of action upon which
relief may be granted (demurrer) because the term consecutive in the Sentencing
Order refers only to the order in which Freemore’s sentences were to be served, and
not his financial obligation, which is due immediately. See Prelim. Objs. at 1-4. The
Department averred:

             20. [Freemore’s] position would lead to an untenable
             interpretation of the [sentencing] court’s orders because if
             the life sentence is carried out, [Freemore] will be deceased
             and unable to pay costs imposed at Count [II].
             21. Moreover, as a general rule, the victims of second or
             subsequent crimes, for which consecutive sentences are
             imposed, should not be forced to wait for restitution where
             an inmate has the money in his or her inmate account to pay
             it.
             22. Such [a]n interpretation runs counter to public policy
             and undervalues the rights of crime victims to restitution.

Prelim. Objs. at 4.     The Department asks this Court to hold that delaying the
collection of Act 84 monies for consecutive sentences is not legally required. See
Department Br. at 5.
             On December 17, 2019, Freemore filed a response to the Preliminary
Objections, declaring that: (1) he properly served the Petition on the Department by
placing it in the prison mailbox on September 13, 2019 (and attached proof that the
mailing costs were thereafter deducted from his account and the Petition was sent to
the Department by certified mail on September 16, 2019); and (2) he states a viable
claim in the Petition, since the Sentencing Order controls, and it clearly stated that the



                                            4
Count II costs were to be paid when he served his Count II sentence.5 See Freemore
Response to Prelim. Objs. at 1-2.
              By December 19, 2019 order, this Court overruled the Department’s
objection that this Court lacked jurisdiction, and directed that the remaining demurrer
be submitted on briefs. See December 19, 2019 Order. On January 17, 2020, the
Department filed its Brief in Support of the Preliminary Objections. On February 19,
2020, Freemore filed his Brief in Opposition to the Preliminary Objections.
Accordingly, this matter is ready for disposition.


                                         Discussion
              The law is well settled:

              In ruling on preliminary objections, we must accept as true
              all well-pleaded material allegations in the petition for
              review, as well as all inferences reasonably deduced
              therefrom. The Court need not accept as true conclusions
              of law, unwarranted inferences from facts, argumentative
              allegations, or expressions of opinion. In order to sustain
              preliminary objections, it must appear with certainty that
              the law will not permit recovery, and any doubt should be
              resolved by a refusal to sustain them.
              A preliminary objection in the nature of a demurrer admits
              every well-pleaded fact in the [petition for review in the
              nature of a] complaint and all inferences reasonably
              deducible therefrom. It tests the legal sufficiency of the
              challenged pleadings and will be sustained only in cases
              where the pleader has clearly failed to state a claim for
              which relief can be granted. When ruling on a demurrer,
              a court must confine its analysis to the [petition for
              review in the nature of a] complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (emphasis added; citations
omitted). “[C]ourts reviewing preliminary objections may not only consider the facts

       5
         Freemore further claims that the $60.00 CVC fees are no longer due because he paid them
in 2014. See Freemore Response to Prelim. Objs. at 2.
                                               5
pled in the complaint, but also any documents or exhibits attached to it.” Allen v.
Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014). This Court recognizes:

               ‘The allegations of a pro se complainant are held to a less
               stringent standard than that applied to pleadings filed by
               attorneys. If a fair reading of the complaint shows that the
               complainant has pleaded facts that may entitle him to relief,
               the preliminary objections will be overruled.’ Danysh v.
               Dep’t[] of Corr., 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004)
               (citation and emphasis omitted), aff’d, . . . 881 A.2d 1263
               ([Pa.] 2005).
Dep’t of Corr. v. Tate, 133 A.3d 350, 354 n.8 (Pa. Cmwlth. 2016).
               First, the Department argues, based on public policy, that where an
inmate is serving consecutive sentences, his obligation to pay Act 84 costs and
restitution is due regardless of when the later sentence commences, particularly where
Freemore’s Count I sentence concludes at his death, and he will thereafter be unable
to meet his financial obligations.
               The law is well established, and Freemore does not refute, that Act 84
authorizes the Department to deduct monies from his account to pay his court-ordered
fines, costs and restitution after he was afforded notice and an opportunity to grieve
the deductions. See 42 Pa.C.S. § 9728(b)(5); see also Bundy v. Wetzel, 184 A.3d 551
(Pa. 2018). Section 9728 of Act 84 also specifies, in relevant part:

               (b) Procedure.--
               ....
               (3) The county clerk of courts shall, upon sentencing, . . .
               transmit . . . to the [Department] . . . copies of all orders for
               restitution and amendments or alterations thereto,
               reparation, fees, costs, fines and penalties. This paragraph
               also applies in the case of costs imposed under [S]ection
               9721(c.1) [of the Sentencing Code, 42 Pa.C.S. § 9721(c.1)6]
               (relating to sentencing generally).

      6
          Section 9721(c.1) of the Sentencing Code provides:

                                                 6
              ....
              (5) Deductions shall be as follows:
                     (i) The [Department] shall make monetary
                     deductions of at least 25% of deposits made to
                     inmate wages and personal accounts for the
                     purpose of collecting restitution [and] costs
                     imposed under [S]ection 9721(c.1) [of the
                     Sentencing Code] . . . and any other court-
                     ordered obligation.
                     ....
                     (iv) The [Department] . . . shall develop
                     guidelines relating to its responsibilities under
                     this paragraph.      The guidelines shall be
                     incorporated into any contract entered into
                     with a correctional facility.
              (b.1) Restitution file.--Upon receipt of each order from the
              clerk of courts as provided in subsection (b)(3), the
              department of probation of the respective county . . . shall
              open a restitution file for the purposes of recording the
              amounts of restitution deducted by the [Department] . . . .
              (b.2) Mandatory payment of costs.--Notwithstanding any
              provision of law to the contrary, in the event the court fails
              to issue an order under subsection (a) imposing costs upon
              the defendant, the defendant shall nevertheless be liable for

              Notwithstanding the provisions of [S]ection 9728 [of Act 84] (relating
              to collection of restitution, reparation, fees, costs, fines and penalties)
              or any provision of law to the contrary, in addition to the alternatives
              set forth in subsection (a), the court shall order the defendant to pay
              costs. In the event the court fails to issue an order for costs pursuant
              to [S]ection 9728 [of Act 84], costs shall be imposed upon the
              defendant under this section. No court order shall be necessary for
              the defendant to incur liability for costs under this section. The
              provisions of this subsection do not alter the court’s discretion under
              [Pennsylvania Rule of Criminal Procedure] 706(C) (relating to fines
              or costs).
42 Pa.C.S. § 9721(c.1). Pennsylvania Rule of Criminal Procedure 706(C) states: “The court, in
determining the amount and method of payment of a fine or costs shall, insofar as is just and
practicable, consider the burden upon the defendant by reason of the defendant’s financial means,
including the defendant’s ability to make restitution or reparations.” Pa.R.Crim.P. 706(C).
                                                  7
             costs, as provided in [S]ection 9721(c.1) [of the Sentencing
             Code], unless the court determines otherwise pursuant to
             [Pennsylvania Rule of Criminal Procedure] 706(C) (relating
             to fines or costs). The absence of a court order shall not
             affect the applicability of the provisions of this section.
             (c) Period of time.-- . . . [T]he period of time during which
             such judgments shall have full effect may exceed the
             maximum term of imprisonment to which the offender
             could have been sentenced for the crimes of which he was
             convicted or the maximum term of confinement to which
             the offender was committed.
             ....
             (g) Costs, etc.--Any sheriff’s costs, filing fees and costs of
             the . . . appropriate governmental agency, including, but not
             limited to, any reasonable administrative costs associated
             with the collection of restitution, transportation costs and
             other costs associated with the prosecution, shall be borne
             by the defendant and shall be collected by the . . .
             appropriate governmental agency along with the total
             amount of the judgment and remitted to the appropriate
             agencies at the time of or prior to satisfaction of judgment.
             (g.1) Payment.--No less than 50% of all moneys collected
             by the county probation department . . . and deducted
             pursuant to subsection (b)(5) shall, until the satisfaction of
             the defendant’s restitution obligation, be used to pay
             restitution to victims. Any remaining moneys shall be used
             to pay fees, costs, fines, penalties and other court-ordered
             obligations.

42 Pa.C.S. § 9728.
             In accordance with Section 9728(b)(5)(iv) of Act 84, the Department
developed the collection guidelines set forth in DC-ADM 005 Section 3. Boyd v. Pa.
Dep’t of Corr., 831 A.2d 779 (Pa. Cmwlth. 2003), aff’d, 886 A.2d 222 (Pa. 2005).
DC-ADM 005 Section 3.A (“Collection of Restitution, Reparation, Fees, Costs,
Fines, and Penalties . . . Act 84[]”) provides:

             1.    When the County Clerk of Courts provides official
             court documents showing that restitution, reparation, fees,

                                            8
costs, fines, and/or penalties were assessed against the
inmate, the Inmate Records Supervisor/designee shall file
the original and forward a copy of the official court
documents to the business office of the facility having
custody of the inmate.
2.    The Business Manager/designee shall:
      a.     If the Department is in possession of a
      court order or sentencing transcript, then the
      Business Manager/designee shall determine if
      the order that imposes financial obligations
      on the inmate defers the payment of those
      obligations to a later date or event (‘delay
      language’). If so, collection of costs as a
      result of that court order must not begin until
      the date or event indicated in the court order.
      In all such cases, the specific terms of a court
      order will control. Questions concerning the
      terms of a court order shall be referred to the
      Act 84 Coordinator.
      b. Determine the type of financial obligation
      and the amount to be entered into the Inmate
      Accounting System as set forth below.
      ....
            (2) Court costs – if the official court
      documents show that court costs were
      assessed against the inmate, then the
      Business Manager/designee shall determine
      the date the inmate was sentenced.
      ....
         (b) If the sentencing took place on or
         after December 26, 2010, then the
         costs reflected in the official court
         documents are collectible unless the
         court specifically waives the court
         costs.
      ....



                             9
                  c. Determine the amount of [CVC] costs that
                  are owed . . . and enter them into the Inmate
                  Accounting System.

DC-ADM 005, Section 3.A (italic and bold emphasis in original). Accordingly, a
sentencing court’s orders govern the Department’s collections from inmate accounts.
            Here, the Sentencing Order specified, in relevant part:

            AND NOW, this 12th day of December 2011, [Freemore]
            having been found guilty after trial by jury of Count I,
            Murder [i]n the First Degree, it is the sentence of the
            [sentencing] court that [Freemore] shall undergo
            incarceration to be served in the [SCI] for the remainder of
            his natural life without the possibility of parole.
            WE ALSO DIRECT that with respect to Count II,
            Criminal Conspiracy To Commit Criminal Homicide, a
            felony of the first degree, it is the sentence of the
            [sentencing]     court     that   [Freemore]      undergo
            incarceration to be served in the [SCI] for a period of not
            less than ninety-six (96) months with the maximum not to
            exceed two hundred sixteen (216) months, and pay the
            costs of these proceedings.
            This sentence shall run consecutive [sic] with that
            imposed on Count I.
            With respect to Count IV, Tampering and/or Fabricating
            Physical Evidence, a second degree misdemeanor, WE
            DIRECT that [Freemore] undergo incarceration in the [SCI]
            for a period of not less than six (6) months with the
            maximum not to exceed twenty-four (24) months, for a total
            aggregate [] sentence of life imprisonment followed by a
            period of incarceration of not less than eight and [one-]half
            (8½) years with the maximum not to exceed twenty (20)
            years.
            [Freemore] shall receive a time credit with respect to the
            ultimate sentence of life imprisonment commencing the
            11th of February 2009.

Sentencing Order at 1-2 (emphasis added).



                                         10
            The parties do not dispute that the sentencing court imposed Freemore’s
Act 84 costs relative to Count II, and that Freemore’s Count II sentence is to be
served consecutive to Count I. See Department Br. at 7. The sole issue is whether
the Department may collect Freemore’s Act 84 financial obligation now or wait until
his Count II sentence commences.
            Freemore does not cite to any provision in Act 84, or case law
interpreting it, to support his position that where sentences are to be served
consecutively, the Department’s collection of fines, costs and restitution is delayed
until the consecutive sentence commences.          Section 1921 of the Statutory
Construction Act of 1972 (SCA) declares, in pertinent part:

            (a) The object of all interpretation and construction of
            statutes is to ascertain and effectuate the intention of the
            General Assembly. Every statute shall be construed, if
            possible, to give effect to all its provisions.
            (b) When the words of a statute are clear and free from all
            ambiguity, the letter of it is not to be disregarded under the
            pretext of pursuing its spirit.
            (c) When the words of the statute are not explicit, the
            intention of the General Assembly may be ascertained by
            considering, among other matters:
                (1) The occasion and necessity for the statute.
                (2) The circumstances under which it was enacted.
                (3) The mischief to be remedied.
                (4) The object to be attained.
                ....
                (6) The consequences of a particular interpretation.
1 Pa.C.S. § 1921. Section 1922 of the SCA provides, in relevant part:




                                          11
              In ascertaining the intention of the General Assembly in the
              enactment of a statute the following presumptions, among
              others, may be used:
              (1) That the General Assembly does not intend a result that
              is absurd, impossible of execution or unreasonable.
              ....
              (5) That the General Assembly intends to favor the public
              interest as against any private interest.
1 Pa.C.S. § 1922.
              Although both Act 84 and Section 3.A of DC-ADM 005 authorize the
Department to deduct costs, fines and restitution from inmate accounts, neither
expressly impose specific dates or deadlines for doing so.                   However, Section
9728(b)(3) of Act 84 directs the county clerk of courts to send orders for payment of
costs to the Department “upon sentencing[.]” 42 Pa.C.S. § 9728(b)(3); see also DC-
ADM 005 Section 3.A.1. Once in possession of the sentencing order, the SCI’s
business manager must determine if it expressly “defers the payment of those
obligations to a later date or event” and, only if it does, may the Department delay
making deductions from an inmate account therefor. DC-ADM 005 Section 3.A.2.a
(emphasis omitted). Otherwise, Section 9728(b)(5)(i) of Act 84 mandates that “[t]he
[Department] shall make [the] monetary deductions . . . .”7                       42 Pa.C.S. §
9728(b)(5)(i). Notably, Section 9728(b.2) of Act 84 makes the inmate liable for
paying costs even if the sentencing court fails to order them.8 See 42 Pa.C.S. §
9728(b.2), (g); see also DC-ADM 005 Section 3.A.2.b (the SCI’s business manager

       7
           “The term ‘shall’ rather than ‘may’ imports the mandatory, rather than discretionary,
nature of the statute.” Gillespie v. Dep’t of Corr., 527 A.2d 1061, 1065 (Pa. Cmwlth. 1987).
        8
           The CVC fund is also statutorily mandated and does not require imposition by a
sentencing court. See Section 1101(a), (e) of the Crime Victims Act ((a) requiring a person
convicted of a crime to “pay costs of at least $60[.00]” to the CVC fund and (e) stating that “[n]o
court order shall be necessary in order for the defendant to incur liability for costs under this
section”); Tate (holding that deductions from an inmate account to pay into the CVC fund are
statutorily authorized).
                                                12
calculates costs and CVC). Moreover, Section 9728(c) of Act 84 anticipates that an
inmate’s cost judgments “may exceed the maximum term of imprisonment[.]” 42
Pa.C.S. § 9728(c). Accordingly, this Court concludes that the General Assembly did
not intend by Act 84 that the Department is authorized to collect costs, fines and
restitution only during the corresponding confinement. Such conclusion is consistent
with this Court’s ruling that “whether incarcerated or not, persons have an obligation
to pay [] costs, fines and restitution.” Sweeney v. Lotz, 787 A.2d 449, 452 (Pa.
Cmwlth. 2001); see also Russell v. Donnelly, 827 A.2d 535 (Pa. Cmwlth. 2003).
              Moreover, based upon this Court’s research, the reference in DC-ADM
005 Section 3.A.2.a to sentencing orders that defer an inmate’s financial obligations
to a later date or event, are those in which the sentencing court clearly and expressly
specified a date or event, like parole or release. See Morgalo v. Gorniak, 134 A.3d
1139 (Pa. Cmwlth. 2016); see also Lambing v. Dep’t of Corr. (Pa. Cmwlth. No. 488
M.D. 2017, filed December 19, 2018); Zellie v. Dep’t of Corr. (Pa. Cmwlth. No. 97
M.D. 2011, filed March 1, 2012).9 This Court located no case law in which the mere
association of such payments to a consecutive sentence were deemed delayed until
the commencement of that consecutive term of incarceration. In fact, when faced
with a similar argument in Rega v. Pennsylvania Department of Corrections (Pa.
Cmwlth. No. 244 M.D. 2017, filed January 31, 2018), aff’d, (Pa. No. 12 WAP 2018,
filed January 23, 2019), this Court stated:

              Rega argues that his sentence . . . was to run consecutive to
              another sentence and therefore, his fines are not due until
              that sentence is completed. Rega cites no authority for this
              position. Nor are we convinced that the sentencing court
              intended that Rega pay the fines after his other sentence

       9
         This Court acknowledges that its unreported memorandum opinions may only 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). Accordingly, the unreported
opinions cited herein are cited for their persuasive value.
                                              13
            was completed, particularly since that sentence was
            death.

Slip op. at 9 (emphasis added). This Court is no more convinced that the sentencing
court in the instant matter intended to delay Freemore’s costs and CVC fee until after
he completed his life sentence (i.e., after his death).         Certainly, where the
Commonwealth’s interest in Act 84 is “rehabilitation of the criminal and
compensation to the victim of wrongful conduct[,]” Sweeney, 787 A.2d at 452,
weighing public policy of reimbursing taxpayers and victims against Freemore’s
private interest, this Court must conclude that the public interest is better served by
promptly collecting Freemore’s costs and CVC fee than, in effect, waiving them.


                                     Conclusion
            Based on the foregoing, accepting the allegations in Freemore’s Petition
as true, as we must, because it “appear[s] with certainty that the law will not permit
recovery,” Torres, 997 A.2d at 1245, this Court sustains the Department’s
Preliminary Objections and dismisses Freemore’s Petition.




                                          14
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Shawn Freemore,                          :
                   Petitioner            :
                                         :
            v.                           :
                                         :
                                         :
Department of Corrections,               :   No. 536 M.D. 2019
                 Respondent              :


PER CURIAM
                                     ORDER

            AND NOW, this 1st day of May, 2020, the Department of Corrections’
preliminary objections to Shawn Freemore’s (Freemore) pro se petition for review in
the nature of a complaint for declaratory judgment and injunctive relief (Petition) are
SUSTAINED, and Freemore’s Petition is DISMISSED.
            Freemore’s motion for preliminary injunction is DISMISSED as moot.
