             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Gene Rega,                             :
                    Petitioner                :
                                              :
            v.                                :
                                              :
Pennsylvania Department                       :
of Corrections; John E. Wetzel,               :
(Secretary); Robert Gilmore,                  :
(Superintendent); Karen Patterson,            :
(Business Manager); Leslie Wynn,              :
(Accountant); J. Kennedy,                     :
(Accountant); J. Pauley (Accountant);         :
John and Jane Doe's,                          :     No. 574 M.D. 2014
                   Respondents                :     Submitted: June 19, 2015

BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                   FILED: August 25, 2015
            Before this Court are the preliminary objections of the Pennsylvania
Department of Corrections (DOC), John E. Wetzel, (Secretary); Robert Gilmore,
(Superintendent);    Karen       Patterson,       (Business   Manager);   Leslie   Wynn,
(Accountant); J. Kennedy, (Accountant); J. Pauley (Accountant); and John and
Jane Doe's, (collectively, Respondents), to Robert Gene Rega’s (Rega), petition for
review in the nature of a complaint in equity and in the nature of a complaint for
declaratory judgment in this Court’s original jurisdiction. Also, before this Court
is Rega’s motion for summary relief.
             Rega is incarcerated at the State Correctional Institution at Greene
(SCI-Greene).     Rega commenced an action on October 7, 2014, against the
Respondents.


             In his original petition for review, Rega sought a declaratory judgment
that DOC’s policy, DC-ADM-003(F)(4), violated his property rights and was
unconstitutional as it applied to the charge of a $15.00 search and retrieval fee,
$1.00 for the first page, and $.25 for each additional page for a prisoner who
sought access to information in his personal prisoner account information through
a digital paper printout. Rega also requested a court order that would prohibit the
imposition of fees associated with DC-ADM-003(F)(4), the issuance of a court
order that would prohibit a fee of more than $.25 per page and/or a fee reasonably
related to the cost of reproduction, reimbursement of costs of litigation, and
discovery of the cost of a digital printout.


             The Respondents preliminarily objected. Rega filed an application for
leave to amend his petition which this Court granted by order dated December 5,
2014.


             In the amended petition, Rega alleged:

             3). Petitioner [Rega] is a state prisoner at S.C.I. Greene,
             and due to this, the D.O.C. has a legal duty to maintain
             an account for the Petitioner [Rega] pursuant to, 61
             Pa.C.S.A. [sic] §3124(a). . . .

             4). Petitioner [Rega] avers that the balances of said
             account is [sic] the sole property of the Petitioner [Rega]
             as provided by the property rights retained by Article I,


                                           2
§10 of the Pennsylvania Constitution and the 5 th and 14th
Amendments to the United States Constitution, as
provided by 61 Pa. C.S.A. [sic] §3125(a) 7 (b).

5). Petitioner [Rega] avers that the language contained in,
18 Pa.C.S.A. [sic] §5123(b), establishes that the
monetary balance in a prisoner account is the property of
said prisoner.

6). Petitioner [Rega] avers since 61 Pa.C.S.A. [sic]
§3124(a), is a mandate to maintain an account for the
sole benefit of the . . . prisoner, thus the records
generated by the inmates [sic] account activity; (e.g.)
deposits and withdrawals, makes all records pertaining to
that personal account the prisoners [sic] personal
property, as the D.O.C. merely maintains the monetary
balances due to the provisions of, 18 Pa.C.S.A. [sic]
§5123(b), which prohibits prisoner possession of U.S.
currency.
....
8). Petitioner [Rega] avers that Respondent Wetzel,
through and by the Pennsylvania Department of
Corrections is directly responsible for issuing statewide
administrative directives and/or statements of policy;
namely DC-ADM-003.

9). Petitioner [Rega] avers that Respondents Gilmore,
Patterson, Pauley, Wynn, Kennedy, and John and Jane
Doe’s . . . as subordinates of the Secretary, are
responsible for complying with and/or carrying out the
reasonable application of the above Statement of Policy,
DC-ADM-003, and/or the internal rules of the facility.

10). Respondent Wetzel and/or his predecessor, issued
DC-ADM-003, on or about November 24, 2010.

11). Petitioner [Rega] avers that since 2002, upon
request, Petitioner [Rega] was able to receive a One
Page, (15) day ‘printout’ of his account for a nominal fee
of (10¢), so that Petitioner [Rega] could track . . . recent
deposits/withdrawals and more specifically, the ability to
quickly confirm that legal mailings which were
effectuated by ‘cash slip’, were processed, in the

                             3
mailroom (as that is were [sic] postage by cash slip is
deducted), and not destroyed by a rogue Officer. . . .

12). Petitioner [Rega] avers the timely tracking of his
outgoing mail determines the ability to locate mail
inadvertently or otherwise misplaced. After 30 days
(hiatus between issued statements), will render any hope
in locating the missing mail futile. In short, it’s GONE!
....
14). Petitioner [Rega] avers that on June 2, 2014, June 9,
2014, and June 13, 2014, the Respondents refused to
provide Petitioner [Rega] with a (15) day printout of his
account and/or provide pertinent account activity
information by way of a DC-135A (Request to Staff),
without Petitioner [Rega] first paying a ($15.00) search
and retrieval fee, and ($1.00), for the first page, pursuant
to DC-ADM-003(F)(4). . . .

15). Petitioner [Rega] avers that the above Respondents
have, with contempt for the Petitioners [sic] [Rega] right
to access the data contained in the Petitioner’s [Rega]
account, has on or about June 1, 2014, arbitrarily applied
DC-ADM-003(F)(4), copying charges, as a means to
fleece Petitioner [Rega] with a ($15.00) search and
retrieval fee, and ($1.00) for the first page, and (.25¢) for
each page thereafter, so as to stymie Petitioner’s [Rega]
access to his own account information.

16). Petitioner [Rega] avers that the fees charged are not
reasonably related to the cost of reproducing the account
printout. . . .

17). Petitioner [Rega] believes, therefore avers this
practice violates the Petitioner’s [Rega] constitutional
property rights under the Taking Clause.

18). Petitioner [Rega] believes, and therefore avers this
practice violates the Petitioner’s [Rega] constitutional
property rights under the 5th and 14th Amendments to the
United States Constitution.

19). Petitioner [Rega] believes, and therefore avers this
practice violates the Petitioner’s rights under state tort

                             4
             conversion of property laws, and is actionable pursuant to
             42 Pa. C.S.A. [sic] §8522(b)(3). (Emphasis in original.)
Petition for Review (In the Nature of a Complaint in Equity) (In the Nature of a
Complaint for Declaratory Judgment), December 11, 2014, (Amended Petition),
Paragraph Nos. 3-6, 8-12, and 14-19 at 3-6.


             In Count 1 of the Amended Petition, Rega asserted that his property
rights were violated because the personal financial records were his property. In
Count 2 of the Petition, Rega asserted that his property rights were violated under
“the Taking Clause pursuant to the 5th and 14th Amendments.” Amended Petition,
Paragraph No. 40 at 9.       In Count 3 of the Petition, Rega asserted that the
Respondents have violated his property rights under the “tort of conversion of
property under common law.” Amended Petition, Paragraph No. 43 at 10. Rega
sought the same relief as in the original petition for review.


             On December 8, 2014, Rega moved for summary relief.            In the
motion, Rega asserts that he has a clear right to relief according to DOC’s own
internal rules and the policy, DC-ADM-003(F)(1). Rega also asserts that it is clear
that the policy as applied does not meet the standard of having a legitimate
penological interest because it is applied arbitrarily and lacks adherence to the
fundamental goals asserted by DOC. Rega further states that because he has a
property interest in the funds held in his prison account, he need only compensate
DOC for the cost of the document.


             On January 14, 2015, the Respondents preliminarily objected to the
amended petition for review. First, the Respondents preliminarily object on the


                                           5
basis that this Court lacks subject matter jurisdiction over SCI-Greene
Superintendent Robert Gilmore, SCI-Greene Business Manager Karen Patterson,
and SCI-Greene Accountants J. Pauley, Leslie Wynn, and J. Kennedy because they
are not statewide officers.


             Second, the Respondents preliminarily object in the nature of a
demurrer and allege:

             16. Inmates within the Department’s [DOC] custody are
             provided with a free inmate account statement each
             month. . . .

             17. Additional copies of an inmate’s account statement
             must be paid for by the inmate pursuant to Department
             [DOC] policy DC-ADM 803, ‘Release of Information’. .
             ..

             18. Department policy DC-ADM 003 provides that the
             costs for copying documents other than inmate medical
             records and documents released under the Right to Know
             Law . . . are as follows:
             a. a $15.00 search and retrieval fee, except that the search
             and retrieval fee shall not be charged to any
             Commonwealth agency, criminal justice agency, or
             district attorney;

             b. for records maintained on paper, a fee of $1.00 for the
             first page and $.25 per page thereafter; and

             c. for records maintained on microfiche, photographic
             records or other non-paper records, a fee equal to the
             actual cost of reproducing the records. . . .

             19. Petitioner [Rega] does not allege that he was denied
             his monthly statement or that he was required to pay for
             his regular monthly account statement. . . .




                                          6
              20. Rather, Petitioner [Rega] challenges the cost of
              obtaining additional account statements outside of his
              regular monthly statement.

              21. Rather, he asserts that he should not have to pay the
              costs associated with additional copies of his account
              statement. He requests that a lower cost be assessed: the
              $.10 per page charge associated with copying in-hand
              documents (those in the inmate’s possession); or the $.25
              cent per page charge association with RTKL [Right to
              Know Law] requests. . . .

              22. The Department [DOC] is entitled to charge for costs
              associated with retrieving and copying documents
              requested by inmates. . . .

              23. Because Petitioner [Rega] does not have a clear right
              to free additional copies of his account statement, and
              because the cost of additional copies is clearly provided
              in the Department’s policy, DC-ADM 003, Petitioner’s
              [Rega] claim fails.
              (Citations and footnote omitted.)
Respondents’ Preliminary Objections to Amended Petition for Review, January 14,
2015, Paragraph Nos. 16-23 at 4-6.


              Initially, this Court will address the Respondents’ preliminary
objections. The Respondents preliminarily object on the basis that this Court lacks
subject matter jurisdiction because Robert Gilmore, Karen Patterson, Leslie Wynn,
J. Kennedy, and J. Pauley are not statewide officers but are DOC employees at
SCI-Greene.


              The scope of this Court’s original jurisdiction is set forth in Section
761(a) of the Judicial Code, 42 Pa.C.S. §761(a), which provides in pertinent part:




                                          7
                (a) General Rule—the Commonwealth Court shall have
                original jurisdiction of all civil actions or proceedings:
                (1) against the Commonwealth government, including
                any officer thereof, acting in his official capacity. . . .


                In Opie v. Glasgow, Inc., 375 A.2d 396, 398 (Pa. Cmwlth. 1971), this
Court explained that an officer of the Commonwealth “performs state-wide
policymaking functions and . . . [is] charged with the responsibility of independent
initiation of administrative policy regarding some sovereign function of state
government,” while a Commonwealth employee “functions on an essentially local
or regional basis . . . [and] performs subordinate ministerial functions.”


                In Reider v. Bureau of Corrections, 502 A.2d 272 (Pa. Cmwlth. 1985),
William D. Reider petitioned this Court in its original jurisdiction and sought relief
from the actions of the Bureau of Corrections (Bureau)1 regarding prerelease
status.       Besides the Bureau, also named in the petition were the acting
commissioner of the Bureau, the executive assistant to the commissioner, the
superintendent at the State Correctional Institution at Huntingdon, and the deputy
superintendent at the State Correctional Institution at Huntingdon.               The
respondents in the action preliminarily objected on the basis that this Court lacked
jurisdiction over the superintendent and deputy superintendent. Reider, 502 A.2d
at 273.


                This Court determined that it had jurisdiction over the acting
commissioner of the Bureau and could exercise original jurisdiction over the


          1
                The Bureau of Corrections is now known as DOC.



                                              8
superintendent and deputy superintendent as ancillary to the claims against the
acting commissioner. Reider, 502 A.2d at 274.


            In making that determination, this Court relied on Madden v. Jeffes,
482 A.2d 1162 (Pa. Cmwlth. 1984). In Madden, this Court held that it had original
jurisdiction over the commissioner of the Bureau and also stated:

            [T]he superintendent of a state correctional institution,
            who is not charged with the requisite kind of statewide
            policy making responsibility . . . is an employee rather
            than an officer. . . . However, the claim against [the]
            superintendent is ancillary to the claims against
            Commonwealth parties and, therefore, under 42 Pa.C.S. §
            761(c), we may also exercise original jurisdiction over
            that claim despite the superintendent’s status as
            employee.
Madden, 482 A.2d at 1165.


            Here, Rega makes claims against DOC as well as the Secretary of
DOC, John E. Wetzel (Secretary Wetzel). Although the other respondents are
employees and not officers of the Commonwealth, the claims against DOC and
Secretary Wetzel are within this Court’s original jurisdiction. The claims against
the other respondents are ancillary to those claims. Therefore, this Court will
exercise jurisdiction and deny the Respondents’ preliminary objection.


              The Respondents next object on the basis that Rega fails to state a
claim for deprivation of due process rights and interference with property rights
where no protected interest is implicated and where DOC is entitled to establish
costs for the production and copying of documents.



                                         9
             In considering preliminary objections, this Court must consider as true
all the well-pleaded material facts set forth in the petitioner’s petition and all
reasonable inferences that may be drawn from those facts.                  Mulholland v.
Pittsburgh National Bank, 174 A.2d 861, 863 (Pa. 1961). Preliminary objections
will be sustained only in cases clear and free from doubt that the facts pleaded are
legally insufficient to establish a right to relief. Werner v. Zazyczny, 681 A.2d
1331 (Pa. 1996).


             Rega alleges that DOC’s policy regarding the copying costs for
additional copies of his inmate account statements violates his Fifth and Fourteenth
Amendment rights, as well as his common law property rights, because the costs of
obtaining copies are excessive.


             Inmates under DOC supervision are provided with a free inmate
account statement on a monthly basis. However, if an inmate wants an account
statement apart from the free monthly statement, he must pay for it pursuant to
DOC’s policy contained in DC-ADM 003 which provides that the costs for
copying documents, other than inmate medical records and documents released
under the Right to Know Law (Law),2 are a $15.00 search and retrieval fee plus,
for records maintained on paper, a fee of $1.00 for the first page and $.25 per page
thereafter, and, for records maintained on microfiche, photographic records or
other non-paper records, a fee equal to the actual cost of reproducing the records.




      2
             Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.



                                            10
             Rega does not allege that he was denied access to his monthly
statement. Further, Rega does not allege that he was required to pay for the
statement. Rather, Rega asserts that he should not have to pay as much as DOC
charges for the production and copying of his inmate account records beyond the
free monthly statement.         Rega asserts that DOC’s practice violates his
constitutional rights under the Fifth and Fourteenth Amendments to the United
States Constitution, violates his property rights, and results in a conversion of his
property.


             Regarding Rega’s claims, when a claim is raised that a prison
regulation impinges on an inmate’s constitutional rights, the regulation is valid if it
is reasonably related to legitimate penological interests. Payne v. Department of
Corrections, 871 A.2d 795, 810 (Pa. 2005), citing, Turner v. Safley, 482 U.S. 78
(1987).


             DOC argues that the reasons for the costs are administrative and
budgetary concerns which are legitimate penological interests. This Court noted in
Mobley v. Coleman, 65 A.3d 1048 (Pa. Cmwlth. 2013), that budgetary constraints
constitute a valid penological interest.


             However, while budgetary concerns may be legitimate penological
interests, this Court may not consider them when ruling on preliminary objections,
if the matter is raised collaterally to the petition for review or complaint. In
Mobley, Kevin Mobley brought a class action against state prison officials,
including Secretary Wetzel, to challenge the refusal to allow services for Nation of



                                           11
Islam inmates separate from services for Sunni Muslims. The prison officials filed
preliminary objections in the form of a demurrer and asserted that the reason for
not providing separate services was based on legitimate penological interests
including time and space limitations, safety, security, and resource concerns.
Mobley, 65 A.3d at 1050-1052.


              This Court determined:

              While all of those concerns set forth in their preliminary
              objections are valid penological interests that could
              justify their position, those reasons cannot be advanced
              because when considering a demurrer, a court cannot
              consider matters collateral to the complaint, but must
              limit itself to such matters as appear therein, and an effort
              to supply facts missing from the objectionable pleading
              makes the preliminary objection in the nature of a
              demurrer an impermissible ‘speaking demurrer.’ Stilp v.
              Commonwealth, 910 A.2d 775 (Pa. Cmwlth. 2006); see
              also Regal Industrial Corporation v. Crum & Foster, Inc.,
              890 A.2d 395, 398 (Pa. Super. 2005) (defining a speaking
              demurrer as one which requires the aid of a fact not
              appearing on the face of the pleading being objected to
              and noting that a speaking demurrer cannot be considered
              in sustaining preliminary objections).
Mobley, 65 A.3d at 1053.


              Here, as in Mobley, the assertion that there is a valid penological
interest in limiting an inmate to one free statement a month and the validity of the
amounts charged for any copies of the inmate account in between the issuance of
the monthly statements is a speaking demurrer which this Court may not consider. 3

       3
             The Respondents also argue that this Court lacks subject matter jurisdiction
because Rega cannot identify a personal or property interest not limited by DOC’s regulations
(Footnote continued on next page…)

                                             12
This speaking demurrer may not be used to dismiss Rega’s claims, constitutional
and otherwise, related to his alleged property interest.4


               Accordingly, this Court overrules the preliminary objections of the
Respondents and denies Rega’s motion for summary relief. This Court directs the
Respondents to file and answer within thirty days.




                                              ____________________________
                                              BERNARD L. McGINLEY, Judge




(continued…)

and which has been affected by a final decision of the Department. The Respondents argue that
because DOC has the right to impose costs for copying services that Rega has no claim. This
Court cannot make that determination based on the facts contained in Rega’s amended petition.
        4
                Regarding Rega’s motion for summary relief, Rule 1532(b) of the Pennsylvania
Rules of Appellate Procedure, Pa.R.A.P. 1532(b), provides, “At any time after the filing of a
petition for review in an appellate or original jurisdiction matter the court may on application
enter judgment if the right of the applicant thereto is clear.” “An application for summary relief
is properly evaluated according to the standards for summary judgment.” McGarry v.
Pennsylvania Board of Probation and Parole, 819 A.2d 1211, 1214 n.7 (Pa. Cmwlth. 2003)
(citing Gartner v. Pennsylvania Board of Probation and Parole, 469 A.2d 697 (Pa. Cmwlth.
1983)). “In deciding a motion for summary judgment, an application for summary relief may be
granted if a party’s right to judgment is clear . . . and no issues of material fact are in dispute.”
McGarry, 819 A.2d at 1214 n.7. (citation omitted). Based on what is before this Court, it is not
clear that Rega has a clear right to judgment. As a result, this Court denies the application for
summary relief.



                                                13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Gene Rega,                       :
                    Petitioner          :
                                        :
            v.                          :
                                        :
Pennsylvania Department                 :
of Corrections; John E. Wetzel,         :
(Secretary); Robert Gilmore,            :
(Superintendent); Karen Patterson,      :
(Business Manager); Leslie Wynn,        :
(Accountant); J. Kennedy,               :
(Accountant); J. Pauley (Accountant);   :
John and Jane Doe's,                    :   No. 574 M.D. 2014
                   Respondents          :

                                   ORDER

            AND NOW, this 25th day of August, 2015, this Court overrules the
preliminary objections of the Pennsylvania Department of Corrections; John E.
Wetzel, (Secretary); Robert Gilmore, (Superintendent); Karen Patterson, (Business
Manager); Leslie Wynn, (Accountant); J. Kennedy, (Accountant); J. Pauley
(Accountant); and John and Jane Doe’s (collectively, Respondents) and directs the
Respondents to file an answer within thirty days of the date of this order. This
Court denies Robert Gene Rega’s motion for summary relief.




                                        ____________________________
                                        BERNARD L. McGINLEY, Judge
