           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeremy Baney,                        :
                                     :
                         Plaintiff   :
                                     :
                  v.                 : No. 752 M.D. 2018
                                     : Submitted: May 22, 2020
Mike Fisher, Michael T. Madeira,     :
Kevin Barr, Christopher Schmidt,     :
and Josh Shapiro of the Pa. Attorney :
General’s Office, Russ Burcher of    :
the Pa. State Police,                :
                                     :
                         Defendants :


OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                 FILED: August 26, 2020


              Before the Court are the preliminary objections (POs) of Jeremy
Baney, an inmate at the State Correctional Institution (SCI) at Smithfield (Inmate),
to the POs in the nature of a demurrer of Mike Fisher, Michael T. Madeira, Kevin
Barr, Christopher Schmidt, and Josh Shapiro, former and current members of the
Pennsylvania Office of Attorney General, and Russ Burcher of the Pennsylvania
State Police, a former trooper (collectively, Commonwealth Respondents), to the
Amended Civil Complaint (Amended Complaint) that Inmate filed in our original
jurisdiction.1 We overrule Inmate’s POs, sustain Commonwealth Respondents’
POs, and dismiss the Amended Complaint with prejudice.

       1
          Although Inmate styled his filing as an Amended Complaint, he should have filed a
petition for review because that is the pleading that is used to commence an action against the
Commonwealth and its officers under Chapter 15 of the Pennsylvania Rules of Appellate
(Footnote continued on next page…)
               The Pennsylvania Superior Court has summarized the criminal
proceedings underlying Inmate’s present incarceration, in relevant part, as follows:

               On March 3, 2002, [Inmate] was arrested and charged
               with numerous counts of drug-related offenses based on
               his involvement in a drug-distribution ring that operated
               across Lycoming, Clinton, and Centre Counties between
               1997 and 2001. [Inmate] ultimately entered a negotiated
               guilty plea to one count of corrupt organizations, twenty-
               one counts of possession with intent to deliver (PWID) a
               controlled substance (marijuana), one count of criminal
               conspiracy, five counts of dealing in proceeds of
               unlawful activities, and one count of criminal use of a
               communication facility [in the Clinton County Common
               Pleas Court (trial court)]. In exchange for [Inmate’s]
               guilty plea, the Commonwealth nol prossed 61 counts of
               various other criminal charges. On August 11, 2003,
               [Inmate] was sentenced, in accordance with his plea
               agreement, to a term of 20 to 39 years’ incarceration.
               The trial court also imposed the . . . costs of prosecution
               and restitution[.]

                     [Inmate] filed a timely appeal from his judgment
               of sentence. On appeal, [Inmate’s] counsel sought to
               withdraw pursuant to Anders v. California, 386 U.S. 738
               (1967). . . . After reviewing counsel’s Anders Brief, this
               Court agreed that [Inmate’s] claims were frivolous.
               Accordingly, we granted counsel’s petition to withdraw
               and affirmed [Inmate’s] judgment of sentence in a
               published opinion[, and our] Supreme Court later denied


(continued…)

Procedure. See, e.g., MFW Wine Co., LLC v. Pennsylvania Liquor Control Board, ___ A.3d
___, ___ n.1 (Pa. Cmwlth., No. 251 M.D. 2020, filed May 1, 2020), slip op. at 1 n.1 (“Consistent
with the applicable rules of appellate procedure, the Court treats the Amended Complaint as a
petition for review directed to this Court’s original jurisdiction. See Pa. R.A.P. 1501(a)(3), 1502,
1503.”). For the sake of clarity, we refer to Inmate’s filing as the Amended Complaint in this
memorandum opinion; however, consistent with the foregoing, we refer to the named defendants
in the Amended Complaint as Commonwealth Respondents.


                                                 2
                [Inmate’s] petition for permission to appeal.
                Commonwealth v. Baney, 860 A.2d 127, 132 (Pa. Super.
                2004), appeal denied, 877 A.2d 459 (Pa. 2005).
Commonwealth v. Baney (Pa. Super., No. 581 MDA 2013, filed October 30, 2013),
slip op. at 1-3.2
                On April 4, 2019, Inmate filed the instant five-count Amended
Complaint in which he alleges, inter alia, that Commonwealth Respondents
violated his rights under Article I, Section 10 of the Pennsylvania Constitution3 and
the Wiretapping and Electronic Surveillance Control Act (Act)4 in the investigation
and criminal prosecution culminating in his guilty pleas and judgment of sentence.
Specifically, Inmate contends that the initial investigatory pen register, of the total
of 5 that were ultimately obtained, was used illegally by Commonwealth
Respondents 9 to 10 hours before a valid order was issued by the trial court under
the Act. Amended Complaint at 8, 9-11, 20, 29-30, 57. Inmate asserts that, as a
result, all of the subsequent pen registers, search warrants, and wiretaps, and the
subsequent investigation and criminal prosecution, were pursued and obtained by
Commonwealth Respondents in bad faith, are invalid, and are actionable under
Sections 5725 and 5726 of the Act.5 See id. at 19-65.6 Accordingly, Inmate seeks


       2
          Inmate subsequently filed a number of unsuccessful petitions collaterally attacking his
judgment of sentence, which are not relevant to our disposition of the instant POs. See Baney,
slip op. at 3-11 (outlining Inmate’s past petitions seeking to vacate his judgment of sentence).

       3
          Pa. Const. art. I, §10. Article I, Section 10 states, in relevant part: “Each of the several
courts of common pleas may, with the approval of the Supreme Court, provide for the initiation
of criminal proceedings therein by information filed in the manner provided by law. No person
shall, for the same offense, be twice put in jeopardy of life or limb[.]”

       4
           18 Pa. C.S. §§5701-5781.

       5
           18 Pa. C.S. §§5725, 5726. Section 5725 states:
(Footnote continued on next page…)
                                                  3
(continued…)

            (a) Cause of action.—Any person whose wire, electronic or oral
            communication is intercepted, disclosed or used in violation of this
            chapter shall have a civil cause of action against any person who
            intercepts, discloses or uses or procures any other person to
            intercept, disclose or use, such communication; and shall be
            entitled to recover from any such person:

                    (1) Actual damages, but not less than liquidated damages
                    computed at the rate of $100 a day for each day of
                    violation, or $1,000, whichever is higher.

                    (2) Punitive damages.

                    (3) A reasonable attorney’s fee and other litigation costs
                    reasonably incurred.

            (b) Waiver of sovereign immunity.—To the extent that the
            Commonwealth and any of its officers, officials or employees
            would be shielded from liability under this section by the doctrine
            of sovereign immunity, such immunity is hereby waived for the
            purposes of this section.

            (c) Defense.—It is a defense to an action brought pursuant to
            subsection (a) that the actor acted in good faith reliance on a court
            order or the provisions of this chapter.

     In turn, Section 5726 states:

            (a) Cause of action.—Any aggrieved person shall have the right
            to bring an action in Commonwealth Court against any
            investigative or law enforcement officer, public official or public
            employee seeking the officer’s, official’s or employee’s removal
            from office or employment on the grounds that the officer, official
            or employee has intentionally violated the provisions of this
            chapter. If the court shall conclude that such officer, official or
            employee has in fact intentionally violated the provisions of this
            chapter, the court shall order the dismissal or removal from office
            of said officer, official or employee.

(Footnote continued on next page…)
                                             4
Commonwealth Respondents’ “[r]emoval from office as per [Section 5726 of] the
[Act] for violating the pen register by starting the first one early.” Id. at 67.
Pursuant to Section 5725, Inmate also seeks monetary damages “in the amount of
$50,000,000.00,” pre- and post-judgment interest, attorney fees, costs of this
lawsuit, postage, and “[s]uch other and further relief as this Honorable Court
deems just and proper.” Id. at 67-70.7




(continued…)

               (b) Defense.—It is a defense to an action brought pursuant to
               subsection (a) that the actor acted in good faith reliance on a court
               order or the provisions of this chapter.

       6
          Counts One and Two of the Amended Complaint assert direct claims under the Act
based on Commonwealth Respondents’ illegal use of the first pen register prior to obtaining a
trial court order. See Amended Complaint at 19-36. Count Three asserts an “Abuse of Power”
claim based on an “abuse of power and/or prosecutor misconduct” to “provoke” Inmate’s
“involvement in the importation of cocaine” and to deny him a fair trial in violation of his double
jeopardy rights under Article I, Section 10 of the Pennsylvania Constitution. Id. at 37-45. Count
Four asserts “Malicious Prosecution and Malicious Abuse of Process” claims because
Commonwealth Respondents “acted with deliberate indifference or reckless disregard for
[Inmate’s] civil rights by targeting [him] for an unauthorized capture of the first pen register
without a proper court order,” and “by overcharging” him “to provoke [him] into action or
conduct” in order “to prejudice [him] to the point where he has been denied a fair trial,” again in
violation of Article I, Section 10. Id. at 46-55. Finally, Count Five asserts a “Malicious Use of
Criminal Process” claim because, again, Commonwealth Respondents “started 9-10 hours before
the court authorized the capture of the first pen register,” “and acted with reckless disregard for
[his] civil rights” “by targeting [him] for malicious use of criminal process by overcharging
[him] with criminal counts in [his] criminal information” “and plea offers” in violation of his
double jeopardy rights under Article I, Section 10. Id. at 56-64.

       7
         Inmate has filed numerous additional, intervening pleadings, as well as an appeal to the
Pennsylvania Supreme Court, which have been disposed of by this Court and that Court and are
not relevant to our disposition of the instant POs, which were timely filed pursuant to this
Court’s November 15, 2019 order directing the filing of the same.


                                                5
                On December 18, 2019, Commonwealth Respondents filed the instant
POs to the Amended Complaint alleging, inter alia, that the Amended Complaint
should be dismissed because all of the claims raised therein are barred by the
relevant statute of limitations. Commonwealth Respondent POs ¶¶8-20. Inmate
then filed his POs in response asserting, inter alia, that Commonwealth
Respondents’ statute of limitations POs should be overruled because such a
defense may only be raised by answer and new matter, and the time for filing suit
should be tolled due to his lack of knowledge of the illegal pen registers and
Commonwealth Respondents’ fraudulent concealment of them during discovery in
the criminal prosecution. Inmate POs ¶¶2-11. Inmate also outlines his subsequent
requests for the records related thereto under the Right-to-Know Law (RTKL),8 the
federal Freedom of Information Act (FOIA),9 and petitions filed pursuant to the
Post Conviction Relief Act (PCRA).10 Inmate POs ¶¶1-11.
                Although this Court cannot award the requested monetary damages
under Section 5725 of the Act,11 we will consider the cross-POs relating to the


       8
           Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.

       9
           5 U.S.C. §552.

       10
            42 Pa. C.S. §§9541-9546.

       11
          As outlined above, Section 5726(a) provides, in relevant part, “Any aggrieved person
shall have the right to bring an action in Commonwealth Court against [Commonwealth
Respondents] seeking the[ir] removal from office or employment on the grounds that the[y]
ha[ve] intentionally violated the provisions of this chapter.” 18 Pa. C.S. §5726(a) (emphasis
added). In contrast, Section 5725(a) states, in pertinent part, “Any aggrieved person whose wire,
electronic, or oral communication is intercepted, disclosed or used in violation of this chapter
shall have a civil cause of action against [Commonwealth Respondents] . . . .” 18 Pa. C.S.
§5725(a). Regarding the distinct language in the foregoing provisions, we have explained:

(Footnote continued on next page…)
                                                 6
(continued…)

                   Notwithstanding the basic tenet of statutory construction
           that the omission of language from a provision and inclusion of it
           in a similar provision is indicative of a different legislative intent,
           [the petitioner] argues that we have ancillary jurisdiction over his
           civil damages claim because we have jurisdiction over his claim
           seeking removal. Although we have found no direct authority
           indicating that the issue of jurisdiction has been definitively
           determined, we have observed as follows regarding the inclusion
           of jurisdictional language in Section 5726 and its omission in
           Section 5725:

                  Significantly, [Section 5726(a)] expressly provides that an
                  aggrieved person shall bring [his or her equitable cause of]
                  action in the Commonwealth Court, although the
                  immediately preceding section, which creates a civil action
                  for money damages, 18 Pa. C.S. §5725, provides no such
                  language vesting this court with jurisdiction. Fundamental
                  in statutory construction is the rule that, where a section of
                  a statute contains a given provision, the omission of that
                  provision from a similar section is significant to show a
                  different intention existed.

           Boettger [v. Miklich, 481 A.2d 972, 975 n.2 (Pa. Cmwlth. 1984)]
           (emphasis added) (citations omitted). See also Birdseye v.
           Driscoll, [534 A.2d 548, 550 n.2 (Pa. Cmwlth. 1987)] (a removal
           case noting the distinction made in Boettger “between actions for
           damages under Section 5725 and an equitable cause of action for
           removal created by Section 5726, which contains express language
           vesting this Court with original jurisdiction”)[,] and Welch v.
           Palka, (Pa. Cmwlth., No. 274 M.D. 2008, filed November 29,
           2010), slip op. at 8 n.4, aff’d, [40 A.3d 1185 (Pa. 2012)] (single-
           judge opinion reiterating the distinction made in Boettger and
           noting: “[I]n the absence of specific language stating otherwise,
           this Court is arguably not vested with jurisdiction to hear claims
           made under either Sections 5741 or 5747 [of the Act, 18 Pa. C.S.
           §§5741 and 5747 (relating to civil and criminal proceedings for
           violations of the subchapter]). Accordingly, where the legislature
           specifically afforded jurisdiction to this Court in Sections 5726 and
           5728 of the [Act], 18 Pa. C.S. §§5726 and 5728 [(conferring
(Footnote continued on next page…)
                                             7
applicable statute of limitations for all of Inmate’s claims in the interest of judicial
economy.12 See McCulligan v. Pennsylvania State Police, 123 A.3d 1136, 1140


(continued…)

                 jurisdiction on this Court to restrain violations of the Act)], for
                 example, the absence of such language in other provisions
                 indicates its intent not to afford this Court jurisdiction over other
                 provisions even in situations where ancillary jurisdiction arguably
                 could apply.

McCulligan v. Pennsylvania State Police, 123 A.3d 1136, 1139-40 (Pa. Cmwlth. 2015)
(footnotes omitted). Accordingly, it is doubtful that jurisdiction over Inmate’s Section 5725(a)
cause of action has been conferred upon this Court.

       Additionally, it is clear that Inmate has not presented a viable cause of action under
Section 5726(a) of the Act. See id. at 1141 (“As former Chief Justice Castille stated in a
concurring and dissenting statement regarding Section 5726 of the [Act]: ‘The removal cause of
action . . . [is] an extreme sanction that has rarely if ever been deployed, [and] was clearly
intended to deter the most egregious intentional violations of personal privacy.’”) (citation and
footnote omitted).

       12
            As this Court has stated:

                         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 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 complaint.
(Footnote continued on next page…)
                                                  8
(Pa. Cmwlth. 2015) (“[E]ven if we were to conclude that it would be appropriate to
transfer the damage claim to the court of common pleas,[13] that would be an
unnecessary waste of judicial resources here, because [the petitioner’s] action
under Section 5725 of the [Act] is barred by the statute of limitations found in
Section 5524(7) of the Judicial Code.[14]”).
               Commonwealth Respondents committed the acts underlying the
instant action between 1998 and 2003. As indicated above, Counts One and Two
in the Amended Complaint have a two-year statute of limitations under Section
5524(7) of the Judicial Code. McCulligan. Likewise, the remaining Counts in the


(continued…)


Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted). Therefore, in
considering Inmate’s claims, we are limited to the allegations raised in the Amended Complaint;
any additional claims or arguments contained in his brief filed in opposition to Commonwealth
Respondents’ POs, and in support of his POs, will not be considered in disposing of any of the
POs. Id. See also Feigley v. Department of Corrections, 872 A.2d 189, 193 n.3 (Pa. Cmwlth.
2005) (“[The inmate] attempts to augment the averments in his Petition [for Review] by making
various allegations in his three briefs and by attaching documents thereto. Factual disputes are
framed by pleadings, not briefs, therefore, we do not consider these additional allegations and
documents.”).

       13
          See Section 5103(a) of the Judicial Code, 42 Pa. C.S. §5103(a) (“If [a] . . . matter is . . .
brought in a court . . . of this Commonwealth which does not have jurisdiction of the . . . matter,
the court . . . shall not . . . dismiss the matter, but shall transfer the record thereof to the proper
tribunal of this Commonwealth, where the . . . matter shall be treated as if originally filed in the
transferee tribunal on the date when the . . . matter was first filed in a court . . . of this
Commonwealth.”).

       14
           18 Pa. C.S. §5524(7). Section 5524(7) states, “The following actions . . . must be
commenced within two years: . . . Any other action . . . to recover damages for injury to person
or property which is founded on . . . intentional . . . conduct or any other action . . . sounding in
trespass, including deceit or fraud, except an action . . . subject to another limitation specified in
this subchapter.”


                                                  9
Amended Complaint each have a two-year statute of limitations.15 Id. See also
Section 5524(1) of the Judicial Code, 42 Pa. C.S. §5524(1) (“The following actions

       15
          Moreover, the unviability of Inmate’s causes of action in these Counts is apparent from
the face of the Amended Complaint as well. Indeed, as this Court has explained:

                      In order to sustain a cause of action for malicious
              prosecution relating to a criminal prosecution, the plaintiff must
              prove that the defendant (1) instituted proceedings against the
              plaintiff, (2) without probable cause, (3) with malice, and (4) that
              the proceedings were terminated in favor of the plaintiff. Probable
              cause is a reasonable ground of suspicion supported by
              circumstances sufficient to warrant that an ordinary prudent person
              in the same situation could believe a party is guilty of the offense
              charged. Lack of probable cause is an indispensable element of the
              action, and an ultimate adjudication of innocence does not
              establish lack of probable cause to prosecute. If a defendant can
              demonstrate probable cause, an absolute defense is established
              against an action for malicious prosecution, and the prosecutor’s
              motive, malicious or otherwise, is immaterial.

                                              ***

                      [The plaintiff] however, argues that it was error for the trial
              court to grant summary judgment because it did not address the
              [charging authorities’] active prosecution of the case after the
              filing of the complaint and after being advised of [the plaintiff’s]
              legal defenses. In other words, [the plaintiff] asserts that the
              failure of [the charging authorities] to discontinue their criminal
              prosecution is actionable in tort.

                      Malicious prosecution of civil matters distinguishes
              between malicious use of process and malicious abuse of process;
              the former addresses the initiation of civil process and the latter its
              continuation. However, there is no authority for [the plaintiff’s]
              position that a prosecutor’s failure to discontinue promptly a
              criminal process is actionable, and we decline to so expand the
              bounds of this common law tort. A “[m]alicious prosecution is an
              action which runs counter to obvious policies of the law in favor of
              encouraging proceedings against those who are apparently
(Footnote continued on next page…)
                                               10
. . . must be commenced within two years: . . . An action for assault, battery, false
imprisonment, false arrest, malicious prosecution or malicious abuse of process.”);
Section 5524(2) of the Judicial Code, 42 Pa. C.S. §5524(2) (“The following actions
. . . must be commenced within two years: . . . An action to recover damages for
injuries to the person . . . caused by the wrongful act or neglect or unlawful
violence or negligence of another.”).16

(continued…)

               guilty. . . . It never has been regarded with any favor by the courts,
               and it is hedged with restrictions which make it very difficult to
               maintain.” “If this were not so, it would deter men from
               approaching the courts of justice for relief.”

Corrigan v. Central Tax Bureau of Pa., Inc., 828 A.2d 502, 505-06 (Pa. Cmwlth. 2003) (citations
and footnotes omitted and emphasis in original). See also Heck v. Humphrey, 512 U.S. 477, 484
(1994) (“One element that must be alleged and proved in a malicious prosecution action is the
termination of the prior criminal proceeding in favor of the accused.”); Townes v. City of New
York, 176 F.3d 138, 148 (2d Cir. 1999) (“Victims of unreasonable searches or seizures may
recover damages directly related to the invasion of their privacy—including (where appropriate)
damages for physical injury, property damage, injury to reputation, etc.; but such victims cannot
be compensated for injuries that result from the discovery of incriminating evidence and
consequent criminal prosecution.”).

       16
            Inmate preliminarily objects to Commonwealth Respondents’ interposition of the
statute of limitations POs at this stage of the proceedings because it is an affirmative defense that
is properly raised as new matter in an answer to the Amended Complaint under Pa. R.C.P. Nos.
1028(a)(4) and 1030(a). However, it is appropriate for this Court to overlook the technical
requirements and dispose of the matter on these POs where, as here, the application of the
relevant statute of limitations is apparent on the face of the Amended Complaint; Inmate merely
raises the technical challenge and does not identify any additional facts that he would assert in
response if this affirmative defense was raised later in new matter; and, as outlined above, the
causes of action asserted in the Amended Complaint cannot be sustained and the continuation of
this matter would not aid Inmate nor affect the result. Greenberg v. Aetna Insurance Company,
235 A.2d 576, 579-80 (Pa. 1967); Feldman v. Hoffman, 107 A.3d 821, 829-36 (Pa. Cmwlth.
2014); Iudicello v. Department of Transportation, 383 A.2d 1294, 1295 (Pa. Cmwlth. 1978);
Pelagatti v. Cohen, 536 A.2d 1337, 1346 (Pa. Super. 1987); Cooper v. Downingtown School
District, 357 A.2d 619, 621 (Pa. Super. 1976).


                                                11
                  Inmate did not initiate this action until 2018, well outside the relevant
statute of limitations.               Accordingly, Inmate’s POs will be overruled,
Commonwealth Respondents’ POs will be sustained, and the Amended Complaint
will be dismissed as its filing is barred by the foregoing provisions of the Judicial
Code.        See, e.g., In re Risperdal Litigation, 223 A.3d 633, 640 (Pa. 2019)
(“Generally, ‘a cause of action accrues, and thus the applicable limitations period
begins to run, when an injury is inflicted.’ ‘Once a cause of action has accrued and
the prescribed statutory period has run, an injured party is barred from bringing his
cause of action.’”) (citations omitted).17
                  Nevertheless, Inmate claims that the statute of limitations has been
tolled because he was not aware of the illegal use of the initial pen register until
Melissa Kessler (Kessler) visited him in prison in 2014,18 and he was not made

        17
             As the Superior Court has stated, in relevant part:

                  Once the prescribed statutory period for commencing a cause of
                  action has expired, the complaining party is barred from bringing
                  suit. Lack of knowledge, mistake or misunderstanding does not
                  toll the running of the statute of limitations. The defense of statute
                  of limitations is not a technical defense, but substantial and
                  meritorious. “Mere delay, extended to the limit prescribed, is itself
                  a conclusive bar.” There is a strong policy in Pennsylvania courts
                  favoring the strict application of statutes of limitation. It is the
                  duty of a party asserting a cause of action to use all reasonable
                  diligence to be properly informed of the facts and circumstances
                  upon which a potential right of recovery is based and to institute
                  suit within the prescribed statutory period. An action may be
                  commenced by filing either a praecipe for a writ of summons or a
                  complaint with the prothonotary.

Booher v. Olczak, 797 A.2d 342, 345 (Pa. Super. 2002) (citations omitted).

        18
             Regarding his interaction with Kessler, the Amended Complaint states, in relevant part:

(Footnote continued on next page…)
                                                   12
aware of the illegality of the initial pen register, and the subsequent criminal
investigation and prosecution based thereon, by Commonwealth Respondents
within the controlling limitations period.19 Inmate contends that because he was
not provided discovery in the criminal prosecution demonstrating the alleged
illegality of the initial pen register, Commonwealth Respondents’ actions have
tolled the applicable statute of limitations in the instant civil action under the Act.
               The doctrine of equitable tolling protects any party who, “through no
fault of [his] own, is unable to assert [his] rights in a timely manner.”


(continued…)

                      [Kessler] came to visit [Inmate] in prison at [SCI-]
               Smithfield on or about March 21-22, 2014.

                       [Kessler] told [Inmate] that she heard that “the first pen
               register was started early without a valid court order.” [Kessler]
               then asked [Inmate] “if he knew this fact.” [Inmate] responded,
               “No I did not know the pen register was started early without a
               valid court order.” Then [Kessler] asked [Inmate] “if he knew if
               any of the co-defendants challenged the illegal pen register.”
               [Inmate] responded, “No I do not believe any of the co-defendants
               challenged the illegal pen register.” [Kessler] asked Inmate “if any
               of the co-defendants knew if the pen register was started illegally.”
               [Inmate] responded, “No I do not believe that they knew the pen
               register was started early without a valid court order.”

Amended Complaint at 24-25, 34, 42, 52, 61-62.

       19
           In considering the issue of the equitable tolling of the applicable statute of limitations,
we are limited to considering the allegations raised in Inmate’s POs and in his Answer to
Commonwealth Respondents’ POs. See, e.g., Prevish v. Northwest Medical Center—Oil City
Campus, 692 A.2d 192, 197-98 (Pa. Super. 1997), aff’d, 717 A.2d 1023 (Pa. 1998) (holding that
a plaintiff waived the claim that the discovery rule tolled the applicable statute of limitations
where the plaintiff did not plead sufficient facts in the complaint or in the responsive pleading to
the defendant’s preliminary objections that implicitly raised the statute of limitations issue, but
first raised the claim in a statement of errors complained of on appeal).


                                                 13
DaimlerChrysler Corporation v. Commonwealth, 885 A.2d 117, 119 n.5 (Pa.
Cmwlth. 2005), aff’d, 927 A.2d 201 (Pa. 2007). As a result, the “discovery rule
applies to toll the statute of limitations in any case in which a party is reasonably
unaware of his or her injury at the time his or her cause of action accrued.”
Gleason v. Borough of Moosic, 15 A.3d 479, 485 (Pa. 2011). Under the discovery
rule, “the point at which a party should have been reasonably aware of his or her
injury and its cause” fixes the commencement date of the statute of limitations
period. Id. See also Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997) (“The
discovery rule provides that where the existence of the injury is not known to the
complaining party and such knowledge cannot reasonably be ascertained within
the prescribed statutory period, the limitations period does not begin to run until
the discovery of the injury is reasonably possible.”).
             Likewise, equitable tolling may apply “[i]f through fraud or
concealment the defendant causes the plaintiff to relax his or her vigilance or
deviate from his or her right of inquiry.” DEEK Investment, L.P. v. Murray, 157
A.3d 491, 497 (Pa. Super. 2017). If a defendant “has actively misled” a plaintiff,
“then the statute of limitations may be equitably tolled.” Glover v. State Farm
Mutual Automobile Insurance Company, 950 A.2d 335, 339 (Pa. Super. 2008).
             However, a defendant must have committed an affirmative,
independent act of concealment upon which the plaintiff justifiably relied for the
doctrine of fraudulent concealment to apply. Kingston Coal Company v. Felton
Mining Company, Inc., 690 A.2d 284, 291 (Pa. Super. 1997). “[M]ere silence in
the absence of a duty to speak cannot suffice to prove fraudulent concealment.”
Lange v. Burd, 800 A.2d 336, 339 (Pa. Super. 2002) (citation omitted).




                                          14
               Taken as true, the allegations asserted in Inmate’s Amended
Complaint and Answer to Commonwealth Respondents’ POs do not support the
equitable tolling of the applicable statute of limitations herein. As noted above, as
alleged in these pleadings, Inmate has filed a number of actions under the RTKL,
the FOIA, and the PCRA, seeking to vindicate his rights upon learning of the
illegality of the initial pen register in 2014. More specifically, on May 5, 2014,
Inmate filed his fourth PCRA petition20 in which he sought, inter alia, to unseal the
documents relating to the initial pen register to demonstrate its illegality and to
collaterally attack the underlying guilty pleas and the judgment of sentence
imposed thereon. See Inmate’s Brief of Support of POs and in Opposition to
Commonwealth Respondents’ POs, Exhibit A. Thus, as Inmate acknowledges, the
information and documents that he seeks from Commonwealth Respondents to
support his causes of action herein have been sealed by the trial court pursuant to




       20
            This Court may take judicial notice of official court records and public documents at
the preliminary objection stage. See Pa. R.E. 201(b)(2) (“The court may judicially notice a fact
that is not subject to reasonable dispute because it . . . can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.”); Williams v. Department of
Corrections (Pa. Cmwlth., No. 448 M.D. 2013, filed February 17, 2016), slip op. at 6 n.11
(holding that while the petitioner did not append the trial court’s judgment of sentence to his
petition for review, this Court would take judicial notice of it from the docket entries of his direct
appeal to Superior Court in the matter); Doxsey v. Pennsylvania Bureau of Corrections, 674
A.2d 1173, 1174 (Pa. Cmwlth. 1996) (taking judicial notice of copies of official criminal court
records, which the respondent had attached to its preliminary objection); Styers v. Bedford
Grange Mutual Insurance Company, 900 A.2d 895, 899 (Pa. Super. 2006) (holding that a court
may take judicial notice of a fact “which is incorporated into the complaint by reference to a
prior court action”) (citation omitted). See also 210 Pa. Code §69.414(a) (“Parties may also cite
an unreported panel decision of this Court issued after January 15, 2008, for its persuasive value,
but not as binding precedent.”).



                                                 15
the Act21 and, therefore, may not be disclosed by Commonwealth Respondents in
the absence of a court order directing such disclosure.

       21
            Indeed, Section 5715 of the Act states:

                  Applications made, final reports, and orders granted pursuant to
                 this subchapter and supporting papers and monitor’s records shall
                 be sealed by the court and shall be held in custody as the court
                 shall direct and shall not be destroyed except on order of the court
                 and in any event shall be kept for ten years. They may be disclosed
                 only upon a showing of good cause before a court of competent
                 jurisdiction except that any investigative or law enforcement
                 officer may disclose such applications, orders and supporting
                 papers and monitor’s records to investigative or law enforcement
                 officers of this or another state, any of its political subdivisions, or
                 of the United States to the extent that such disclosure is appropriate
                 to the proper performance of the official duties of the officer
                 making or receiving the disclosure. In addition to any remedies
                 and penalties provided by this subchapter, any violation of the
                 provisions of this section may be punished as contempt of the
                 court.

18 Pa. C.S. §5715 (emphasis added).

       Additionally, Section 5714(b) states, in relevant part:

                 Immediately upon the expiration of the order or extensions or
                 renewals thereof, all monitor’s records, tapes and other recordings
                 shall be transferred to the judge issuing the order and sealed
                 under his direction. Custody of the tapes, or other recordings shall
                 be maintained wherever the court directs. They shall not be
                 destroyed except upon an order of the court and in any event shall
                 be kept for ten years . . . . The presence of the seal provided by this
                 section, or a satisfactory explanation for its absence shall be a
                 prerequisite for the disclosure of the contents of any wire,
                 electronic or oral communication, or evidence derived therefrom[.]

18 Pa. C.S. §5714(b) (emphasis added). See also 210 Pa. Code §65.75 (“A motion by an
interested party to unseal an application, report, order, or other document previously placed
under seal shall be in writing, shall state specifically the reason for the unsealing order and the
(Footnote continued on next page…)
                                                   16
              Inmate’s knowledge that the information and documents that he seeks
from Commonwealth Respondents to bolster his causes of action were
automatically sealed by the trial court pursuant to the provisions of the Act is
evidenced by the numerous lawsuits that he and others have filed seeking to
compel the trial court to unseal these items. See, e.g., Baney v. Clerk of Court (Pa.
Cmwlth., No. 280 M.D. 2014, filed July 29, 2014), aff’d, 118 A.3d 383 (Pa. 2015),
slip op. at 1, 2 (“[Inmate] filed a Petition for Writ of Mandamus seeking to compel
the Clinton County Clerk of Courts or Court Administrator to provide him with
documents. [Inmate] avers that he sent the Clerk a request for documents he
needed in order to support claims he sought to raise in a PCRA petition. On March
20, 2014, he requested from the case of Commonwealth v. Carl Johnson, the most
recent filed PCRA; the amended PCRA from David Lindsay; the first four pen
registers and wire taps from around 2001 prior to arrest; and the re-sentencing
order where Johnson received a lower sentence. . . . [Inmate] fails to plead facts
sufficient to establish a right to the relief he requests.”); Kessler v. Public
Documents Pen Register and Wire Taps, 180 A.3d 406, 407 (Pa. Super. 2018)
(“[Kessler] appeals pro se from the [trial court’s] order denying her motion to
intervene and request to view sealed wiretap records in [Inmate’s] completed
criminal case.”); In re Thomas (Pa. Super., No. 1915 MDA 2017, filed May 8,
2018), slip op. at 1 (“April Thomas (Rinehart) appeals pro se from the [trial
court’s] order denying her motion to intervene, requesting to view sealed wiretap

(continued…)

use to be made of the unsealed application, report, order, or other document, and . . . shall be
presented to the judge who ordered the same sealed. The Court, upon good cause shown, may
order an application, report, order, or other document within the Prothonotary’s file to be
unsealed[.]”).


                                              17
records in [Inmate’s] completed criminal case and for recusal of the presiding
judge. Specifically, [Rinehart] seeks, inter alia, the unsealing of records relating to
wiretapped conversation which stemmed from an investigation of illegal drug
activity against her brother, [Inmate] (and others).”).
             However, unlike in the underlying criminal proceeding, the named
Commonwealth Respondents are under no duty, and are actually precluded by
court order, from releasing the documents that Inmate seeks from them to support
the causes of actions that he has asserted against them in the instant Amended
Complaint. See, e.g., State ex rel. State Highway Commission v. Texaco, Inc., 502
S.W.2d 284, 289 (Mo. 1973) (“By its very language [Brady v. Maryland, 373 U.S.
83, 86 (1963) (holding that the prosecution has a constitutional duty to disclose
exculpatory evidence to the accused),] obviously applies only to criminal
cases[.]”). As a result, Inmate has failed to allege or demonstrate the requisite
fraudulent concealment on Commonwealth Respondents’ part to toll the statute of
limitations applicable to the causes of action raised in the Amended Complaint.
See Burd, 800 A.2d at 339 (“[M]ere silence in the absence of a duty to speak
cannot suffice to prove fraudulent concealment.”).
             Moreover, Inmate’s difficulty in marshalling the sealed evidence that
he seeks to support the causes of action asserted in the Amended Complaint against
Commonwealth Respondents does not toll the applicable statute of limitations for
those causes of actions under the discovery rule as well. See Rivera v. City of
Philadelphia, (E.D. Pa., Civil Action No. 18-2066, filed August 3, 2018), slip op.
at 3 (“Accepting Plaintiff’s allegations as true, which the Court must at this stage,
Plaintiff knew at least as early as the time she was acquitted in 2015 that she had
been injured.     Although Plaintiff alleges she obtained better evidence of


                                          18
Defendant[ police officer’s] improper conduct (related to a separate case) in March
[] 2018, that is not a valid basis for invoking the discovery rule to toll the relevant
statute of limitations period, which only applies where it was ‘the latent nature of
the injury that prevented [the claimant] from knowing of it.’”) (citation omitted).
             Based on the foregoing, the allegations raised in the Amended
Complaint and the Answer to Commonwealth Respondents’ POs show that, at a
minimum, Inmate was reasonably aware of the injury and its cause as asserted in
the causes of action against the named Commonwealth Respondents in this matter
in March of 2014. As a result, the applicable two-year statute of limitations for
these causes of action began to run at that time and ultimately expired in March of
2016.    However, as noted above, Inmate did not file the instant Amended
Complaint until April of 2018, so the causes of action contained therein are barred
by the applicable statute of limitations.
             Accordingly,     Inmate’s      POs   are   overruled;    Commonwealth
Respondents’ POs are sustained; and Inmate’s Amended Complaint is dismissed
with prejudice.




                                            19
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeremy Baney,                        :
                                     :
                         Plaintiff   :
                                     :
                  v.                 : No. 752 M.D. 2018
                                     :
Mike Fisher, Michael T. Madeira,     :
Kevin Barr, Christopher Schmidt,     :
and Josh Shapiro of the Pa. Attorney :
General's Office, Russ Burcher of    :
the Pa. State Police,                :
                                     :
                         Defendants :


PER CURIAM
                                   ORDER


            AND NOW, this 26th day of August, 2020, Plaintiff Jeremy Baney’s
preliminary objections to the preliminary objections of the above-named
Defendants are OVERRULED; the preliminary objections of the above-named
Defendants to Plaintiff Jeremy Baney’s Amended Complaint are SUSTAINED;
and Plaintiff Jeremy Baney’s Amended Civil Complaint is DISMISSED with
prejudice. Plaintiff’s Petition to Disclose and Inspect Pen Registers and Wiretaps
is DISMISSED as moot.
