           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rasheed Nifas,                           :
                         Appellant       :
                                         :
                   v.                    :   No. 831 C.D. 2018
                                         :   Submitted: December 7, 2018
Susan Darr and Andrea Weimer             :
                                         :

BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: April 18, 2019


      Rasheed Nifas (Nifas), pro se, appeals from a Memorandum and Order of the
Court of Common Pleas of Somerset County (trial court) that granted Susan Darr’s
(Darr) and Andrea Weimer’s (Weimer) (collectively, Defendants) Motion for
Summary Judgment (Motion) and dismissed Nifas’ Complaint. Nifas alleged that
Defendants, both employees of the Pennsylvania Department of Corrections
(Department), had impermissibly opened, read, and copied mail addressed to him
from courts and his attorneys in violation of his constitutional rights while he was
incarcerated at the State Correctional Institution at Somerset (SCI-Somerset).
Defendants have filed a Motion to Quash the appeal as untimely on the basis that it
was filed more than 30 days after the Order. However, Nifas’ appeal is timely, and
the trial court erred in granting summary judgment; we, therefore, deny Defendants’
Motion to Quash and reverse the trial court’s Order.
 I.    Background
       In June 2014, Nifas commenced this action by filing a Complaint, captioned
as an action under 42 U.S.C. § 1983,1 in the trial court.2 Nifas alleged the following.
Nifas was incarcerated at SCI-Somerset from April 3, 2013, through March 27,
2015, during which time Defendants “constantly opened, read, and reproduced” his
privileged mail. (Complaint (Compl.) ¶¶ 4, 13; Memorandum at 2.) Nifas filed and
exhausted remedies on three relevant grievances: the first two relating to two parcels
of mail addressed to Nifas from Attorney Cheryl Sturm (legal mail), and one relating
to a letter addressed to Nifas from the Fayette County Prothonotary’s Office (court
mail) (collectively, privileged mail). (Compl. ¶¶ 13-15; Memorandum at 2-3.) Nifas
alleged that Defendants’ actions violated his rights under the First Amendment to




       1
           This section provides in relevant part:

       Every person who, under color of any statute, ordinance, regulation, custom, or
       usage, of any State or Territory or the District of Columbia, subjects, or causes to
       be subjected, any citizen of the United States or other person within the jurisdiction
       thereof to the deprivation of any rights, privileges, or immunities secured by the
       Constitution and laws, shall be liable to the party injured in an action at law, suit in
       equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. Federal laws, such as 42 U.S.C. § 1983, are enforceable in state courts because
“[t]he Supremacy Clause makes those laws ‘the supreme Law of the Land,’ and charges state
courts with a coordinate responsibility to enforce that law according to their regular modes of
procedure.” Howlett v. Rose, 496 U.S. 356, 367 (1990). Plaintiffs bringing suit under 42 U.S.C.
§ 1983 in state court must show that a person, acting under the color of state law, deprived the
plaintiff of a cognizable federal right. Heinly v. Commonwealth, 621 A.2d 1212, 1216 (Pa.
Cmwlth. 1993).
        2
          Upon Nifas’ filing of the Complaint, the trial court dismissed the action as frivolous,
based upon this Court’s decision in Brown v. Pennsylvania Department of Corrections, 932 A.2d
316 (Pa. Cmwlth. 2007). Appellant appealed, and the Superior Court vacated the trial court’s
dismissal and remanded. Nifas v. Darr (Pa. Super., No. 1133 W.D.A. 2014, filed March 19, 2015),
slip op. at 5.


                                                     2
the United States Constitution and sought declaratory judgment and compensatory,
punitive, and nominal damages. (Compl. ¶ 18, Wherefore Clause.)
       Defendants filed an Answer and New Matter, denying that Darr, a mailroom
supervisor at SCI-Somerset, or Weimer, the SCI-Somerset Business Manager, had
impermissibly opened, read, and copied the privileged mail. (Answer ¶¶ 5-6, 13-
15.) Defendants admitted that Nifas filed three grievances and appealed the denials
of those grievances.         (Id. ¶¶ 10-12.)          Defendants denied the two allegations
concerning legal mail, responding that the mail in question did not contain an
attorney control number, as required by Department Policy DC-ADM 803 (DC-
ADM 803) and was accordingly treated as regular mail. (Id. ¶¶ 13-14.) Defendants
also denied the allegation as to court mail addressed to Nifas, contending that they
did not open, read, or reproduce that mail. (Id. ¶ 15.) However, if a Department
employee did open the court mail, it was done by accident and the mail was neither
read nor reproduced. (Id. ¶ 16.) Defendants asserted in New Matter that the claims
are barred by reasons of sovereign immunity, and Defendants are immune because
their actions were carried out in accordance with statutory or regulatory directives,
and Defendants were not personally involved in the alleged actions. (Id. ¶¶ 33-34,
37.) Last, Defendants asserted that the claims are barred because Nifas did not
exhaust administrative remedies, as required by Section 1997e(a) of the Prisoner
Litigation Reform Act.3 (Id. ¶ 38.)
       Defendants filed a Motion for Leave to Depose Nifas, which the trial court
granted. (Record (R.) Item Nos. 33, 37.) Nifas was deposed on February 25, 2016,
and testified as follows. Nifas first noticed that his mail was being opened outside

       3
         42 U.S.C. § 1997e(a) (providing that “[n]o action shall be brought with respect to prison
conditions under [S]ection 1983 of this title, or any other Federal law, by a prisoner . . . until such
administrative remedies as are available are exhausted”).


                                                  3
of his presence in April 2013 and estimated that over 50 pieces of privileged mail
were improperly opened outside of his presence over the time in question. (Dep. Tr.
at 10-11, 14.) However, Nifas was only pursuing those instances that occurred in
2013, not 2014 or 2015. (Id. at 16-17.) Fellow inmates, whose names Nifas said he
would later supply, witnessed that the privileged mail had been opened by the time
it was delivered to Nifas. (Id. at 17-18.) Nifas noticed that the staples were taken
out of the mail in question and the envelopes were ripped up, which is why he
believed the letters had been opened, read, and copied. (Id. at 18-19, 33-34.) By
opening, reading, and copying privileged mail outside the presence of Nifas, the
Defendants would be able to learn his legal strategies in the various suits he had
against Department officials and employees. (Id. at 21.) Nifas believed Darr was
responsible for opening his legal mail because she was the mail room supervisor.
(Id. at 25-26.) The Defendants’ position that mail without an attorney control
number will be treated as non-privileged mail is contrary to DC-ADM 803 and
federal regulations. (Id. at 27.) Nifas admitted that one envelope of legal mail,
which resembled the other one in question, lacked an attorney control number;
however, he stated Department employees removed or blacked out the attorney
control numbers from the envelopes when the letters arrived. (Id. at 29-31.) Nifas
acknowledged that the response to his grievance regarding the court mail determined
that the mail was opened as an “unintentional mistake,” but disagreed with that
characterization because employees in the mail room have experience with court and
legal mail, particularly for Nifas. (Id. at 35-36.) Nifas believed Darr to be personally
involved because the responses to his grievances acknowledged that the privileged
mail was opened. (Id. at 40-41.) Further, Nifas had witnessed Darr speaking with
corrections officers in the hallway before delivering the mail, although he could not



                                           4
hear what she was saying. (Id.) Nifas stated that Weimer was personally involved
in opening his mail because the responses to his grievances admitted that three
envelopes were opened outside of his presence, although he admitted the grievance
responses did not address his specific contentions that Defendants were reading and
reproducing his mail. (Id. at 43.)

   a. Motion for Summary Judgment
      Shortly after Nifas’ deposition, Defendants filed their Motion. Attached to
the Motion was the transcript from Nifas’ deposition, as well as two sworn
declarations, one by Darr and one by Amanda West (West), a former Grievance
Review Officer for SCI-Somerset. West stated in her declaration that, upon review
of the inmate grievance tracking system, Nifas had filed three grievances for the
alleged opening and reading of his privileged mail and appealed those grievances to
completion. (West Declaration ¶¶ 9-12.) In the other declaration, Darr stated that
incoming legal mail without an attorney control number could be opened and
inspected outside of the presence of an inmate, but the staff will not read or copy the
mail unless they are permitted to under DC-ADM 803. (Darr Declaration ¶ 5.) Darr
also stated that “[m]y staff and I did not copy or read the contents of the inmate’s
incoming legal mail. My staff made notations on the fronts of the copies of the
envelopes.” (Id. ¶ 10.) Attached to Darr’s Declaration were copies of the envelopes
from the Fayette County Prothonotary’s Office and Attorney Sturm addressed to
Nifas without an attorney control number, as well as a copy of DC-ADM 803, mail
logs for Nifas, and copies of other envelopes from courts or attorneys, some of which
were marked non-legal and some of which were marked privileged.
      In the Motion, Defendants argued they were entitled to judgment as a matter
of law because Nifas had not exhausted administrative remedies for any mail he


                                          5
alleged was improperly opened beyond the three letters specified in his grievances;
Nifas had no proof that Defendants personally opened, read, and copied his
privileged mail; and Defendants were justified in opening the legal mail because it
was without an attorney control number. (Motion ¶ 9.) Defendants also argued that
they are immune from suit for state law claims under sovereign immunity.
(Memorandum of Law in Support of the Motion at 18-19.)
      Nifas opposed the Motion, arguing that there were genuine issues of material
fact precluding summary judgment.        Nifas contended that he had exhausted
administrative remedies, as he filed grievances on three separate occasions on the
basis that Defendants were consistently opening, reading, and copying his privileged
mail. According to Nifas, Defendants removed or blacked out the attorney control
number on the privileged mail and then opened that privileged mail outside of his
presence, which violated his constitutional rights.     In support, Nifas cited his
deposition testimony as well as provided copies of the grievances, copies of the
envelopes for the legal mail and court mail noted specifically in the grievances, and
copies of other envelopes for legal mail that he alleged was opened outside of his
presence.
      At argument before the trial court on the Motion, Defendants argued that Nifas
had no evidence that Weimer had any personal involvement in the actions alleged
by Nifas, and that while Darr may have had some involvement in opening the legal
mail, that opening was justified and permissible based upon DC-ADM 803.
Defendants also asserted that any opening of court mail was a one time, unintentional
mistake, and that there was no evidence of the mail room staff reading or copying
the mail. Nifas argued that any opening of his court mail was not by mistake, as he
contended this mistake had occurred over 200 times. With regard to the legal mail,



                                         6
Nifas argued that the envelope clearly indicated it was sent from an attorney and the
mail room staff had removed or scratched out a sticker from the envelope with the
attorney control number. As for the issue of exhaustion of remedies, Nifas explained
that if he was required to file a grievance for each letter that was impermissibly
opened, he “would have thousands of documents,” and further, filing a grievance for
each instance would be against Department Policy DC-ADM 804 (DC-ADM 804),
governing grievances. (Argument Hr’g Tr. at 13-14.)

   b. Memorandum and Order
      Following the hearing, the trial court issued its Memorandum and Order
granting Defendants’ Motion. Relying upon this Court’s decisions in Jones v. Doe,
126 A.3d 406 (Pa. Cmwlth. 2015), and Brown v. Pennsylvania Department of
Corrections, 932 A.2d 316 (Pa. Cmwlth. 2007), the trial court set forth the standards
for establishing a constitutional violation relating to an inmate’s mail. While
Defendants admitted to opening the legal mail, the trial court reasoned that action
was justified under DC-ADM 803 because it did not have an attorney control
number. The trial court determined the legal mail did not qualify as privileged mail,
the court mail was unintentionally opened, and Nifas did not “put forth any evidence
of [Department] employees reading or copying the contents of any of his mail,” or
“evidence to support the claim that there was a pattern or practice of opening [his]
legal mail in violation of his First Amendment rights.” (Memorandum at 8.)
Although Nifas had produced evidence that his court mail was opened, the trial court
found that one instance alone was insufficient to show a pattern or practice in order
to establish a constitutional violation. Because Nifas had not provided evidence of




                                         7
facts essential to his cause of action, the trial court concluded that summary
judgment must be granted.4
       The trial court’s Order was exited on December 19, 2017, to Nifas and
Defendants. A subsequent docket entry, and a returned envelope in the original
record, show that the copy of the Order sent to Nifas was returned to the sender on
January 5, 2018, as refused and unable to be forwarded. The next docket entry shows
that the Order was remailed to Nifas on April 2, 2018. Nifas filed his Notice of
Appeal on April 9, 2018. The trial court issued an order on June 22, 2018, directing
a Rule 1925(b) Statement to be filed within 21 days, and Nifas filed his Rule 1925(b)
Statement on July 5, 2018. The trial court declined to supplement its Order with a
Rule 1925(a) Opinion. Defendants then filed the Motion to Quash the appeal with
this Court, arguing that the Notice of Appeal, which was filed more than 30 days
after the Order, was untimely, as was the 1925(b) Statement. By Orders of this
Court, the parties were directed to address the question of timeliness in their briefs
on the merits for disposition of the Motion to Quash along with the merits of this
appeal.

II.            Discussion
       The issues before this Court are whether the appeal is timely and whether the
trial court erred in granting Defendants’ Motion.5 Because it is a threshold issue, we
will address the timeliness of the appeal first.


       4
         Because the trial court found that summary judgment was proper based upon this
reasoning, it determined that Defendants’ alternative arguments in support of summary judgment
were moot. (Memorandum at 10 n.4.)
       5
         “Our review of a trial court order granting summary judgment is limited to determining
whether the trial court erred as a matter of law or abused its discretion.” Stuski v. Phila. Auth. for
Indus. Dev., 162 A.3d 1196, 1199 n.2 (Pa. Cmwlth. 2017) (citation omitted).


                                                  8
   a. Whether the appeal is timely.
      Defendants assert that because Nifas did not file his Notice of Appeal within
30 days of the date of the Order, as required by Pennsylvania Rule of Appellate
Procedure 903(a), Pa.R.A.P. 903(a) (Rule 903(a)), the appeal should be quashed as
untimely. Although Defendants assert in the Motion to Quash that Nifas untimely
filed his 1925(b) Statement, they acknowledge in their brief that the trial court docket
entries show that the 1925(b) Statement was timely filed. Nonetheless, Defendants
argue in their brief that they have no record of being served with the 1925(b)
Statement; thus Nifas has waived any issues on appeal.
      In his Answer to the Motion to Quash, Nifas argues that the Order was first
mailed to him on April 2, 2018, as reflected by the trial court docket entries. Nifas
contends that he received the Order on April 4, 2018, and mailed his notice of appeal
that day. Nifas argues that he timely filed the 1925(b) Statement, which is also
reflected in the docket entry.
      Rule 903(a) provides that a notice of appeal “shall be filed within 30 days
after the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). An
order is not considered “appealable until it is entered on the docket with the required
notation that appropriate notice has been given.” Frazier v. City of Philadelphia,
735 A.2d 113, 115 (Pa. 1999). When a notice of appeal is filed more than 30 days
after the entry of the order in question, the appeal is untimely, and we are without
jurisdiction to consider it. See City of Philadelphia v. Tirrill, 906 A.2d 663, 665-66
(Pa. Cmwlth. 2006). Rule 236(a) and (b) of the Pennsylvania Rules of Civil
Procedure provides that upon entry of an order, the prothonotary “shall immediately
give written notice of the entry of . . . judgment to each party’s attorney of record or,
if unrepresented, to each party,” and note in the docket the mailing of the notice.



                                           9
Pa.R.C.P. No. 236(a), (b). “The date of entry of an order” in a civil matter “shall be
the day on which the clerk makes the notation in the docket that notice of entry of
the order has been given as required by Pa.R.[C].P [No.] 236(b).” Pennsylvania
Rule of Appellate Procedure 108(b), Pa.R.A.P. 108(b). Therefore, the appeal period
begins to run only when “the clerk notes on the docket that notice of the entry of
judgment has been sent to the prospective appellant.” Calabrese v. Zeager, 976 A.2d
1151, 1152 (Pa. Super. 2009).6
       Under the mailbox rule, proof that an order was properly mailed creates a
rebuttable presumption that it was received. Douglas v. Unemployment Comp. Bd.
of Review, 151 A.3d 1188, 1191 (Pa. Cmwlth. 2016); Donegal Mut. Ins. Co. v. Ins.
Dep’t, 719 A.2d 825, 827 (Pa. Cmwlth. 1998). The trial court docket shows that the
Memorandum and Order was filed and mailed to Nifas on December 19, 2017.
Therefore, there is a rebuttable presumption of receipt. However, the record and
docket entries also show that it was returned to the sender as unable to be forwarded
on January 5, 2018. The next docket entry confirms that the Order was resent on
April 2, 2018. Nifas could not have received the Order until it was resent, meaning
the appeal period did not begin to run until that time. See Calabrese, 976 A.2d at
1152. Therefore, Nifas had 30 days after the Order was sent to him on April 2, 2018,
to file his notice of appeal. Nifas acted promptly upon receiving the Order, filing
his notice of appeal on April 9, 2018, only 7 days after it was remailed, which is well
within the 30 days required by Rule 903(a). Therefore, we will not quash Nifas’
appeal as untimely.



       6
        Although not binding on this Court, Superior Court decisions “offer persuasive precedent
where they address analogous issues.” Lerch v. Unemployment Comp. Bd. of Review, 180 A.3d
545, 550 (Pa. Cmwlth. 2018).


                                              10
      With regard to Defendants’ contention that the 1925(b) Statement is untimely
or was not properly served, we disagree. First, as Defendants now acknowledge in
their brief, Nifas filed the 1925(b) Statement within 21 days from entry of the order
from the trial court, which is timely. (R. Item. No. 126.) Second, to the extent
Defendants argue improper service of the 1925(b) Statement, we disagree. The
Certificate of Service, filed along with the 1925(b) Statement, shows that Nifas
served the Statement on the trial court judge, this Court, and Defendants’ counsel.
Thus, it appears Defendants were properly served with notice. Therefore, the
1925(b) Statement is timely and the issues presented therein are preserved and
properly before us now.

   b. Whether the trial court properly granted summary judgment.
      On the merits of the appeal, Nifas contends that the trial court erred in granting
summary judgment because Defendants had a pattern or practice of opening legal
mail outside of his presence, which chills communication, confidentiality, and
freedom of speech in violation of his First Amendment rights. Nifas asserts that his
legal mail was properly marked, and Defendants removed the attorney control
number and then impermissibly read and copied this mail. Nifas contends that his
deposition testimony provides evidence that Darr and Weimer were individually
involved in opening the privileged mail based upon admissions to such in the
responses to his grievances. Nifas disagrees with Defendants’ position that he did
not exhaust administrative remedies, noting that he exhausted three grievances on
the matter and further arguing that the extent of Defendants’ actions in
impermissibly opening and reading his privileged mail was not realized until this
litigation began. In any event, Nifas contends he could not grieve every violation,
as they would all be based upon the same set of facts, which is not permissible under


                                          11
the Department’s policy on grievance procedures.             Last, Nifas asserts that
Defendants are not immune from suit based on sovereign immunity because Nifas’
cause of action arises out of federal law, 42 U.S.C. § 1983.
      Defendants urge us to affirm the trial court, arguing that Nifas did not produce
evidence to show a pattern or practice of his privileged mail being opened outside
his presence, nor did he present evidence that Defendants read and copied that mail.
Defendants argue that the three instances specifically referenced in the grievances
are insufficient for Nifas to establish a pattern of impermissible conduct. Defendants
also note that the Department’s policy requiring an attorney control number for legal
mail is constitutional; thus Defendants were justified in opening legal mail that did
not comply with that requirement, as was detailed in the grievance responses.
Because the Department policy is constitutional and Nifas did not prove a pattern or
practice in violation of that policy nor the personal involvement of Darr and Weimer
in opening the privileged mail, Defendants assert that their actions were permissible
and the trial court properly granted summary judgment. Defendants do not address
Nifas’ arguments regarding the exhaustion of administrative remedies or sovereign
immunity.
      Initially, a party is entitled to summary judgment where there is no genuine
issue of material fact for a necessary element of the claim, or if, after discovery, the
party that will bear the burden of proof at trial has not produced evidence of facts
essential to the claim. Pennsylvania Rule of Civil Procedure 1035.2, Pa.R.C.P. No.
1035.2. Therefore, “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue of material fact and that the moving party is entitled to a judgment as a matter
of law,” summary judgment may be granted. Stuski v. Phila. Auth. for Indus. Dev.,



                                          12
162 A.3d 1196, 1199 (Pa. Cmwlth. 2017) (citation omitted). The evidence of record
is reviewed in the light most favorable to the non-moving party, and “[a] genuine
issue of material fact . . . exists if a reasonable jury could find in favor of the non-
moving party on that issue.” Perry v. Erie Cty., 169 A.3d 1232, 1239 (Pa. Cmwlth.
2017). Non-moving parties may show the existence of genuine issues of material
fact through their “depositions, answers to interrogatories, admissions or affidavits.”
Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991). Therefore, the trial court properly
granted summary judgment if no genuine issue of material fact exists as to
Defendants’ actions, and Defendants are entitled to judgment as a matter of law that
they did not violate Nifas’ constitutional rights.
      When prisoners allege a constitutional challenge, courts follow a two-step
analysis. The court first considers whether the policy or conduct in question
infringes upon the inmate’s constitutional rights. Bussinger v. Dep’t of Corr., 29
A.3d 79, 83 (Pa. Cmwlth. 2011), aff’d, 65 A.3d 289 (Pa. 2013). If so, the court
determines whether the policy is reasonable, meaning it is “reasonably related to
legitimate penological interests.”      Id. (citation omitted).      Prisoners have a
constitutional right “not to have properly marked legal mail opened outside of their
presence.” Doe, 126 A.3d at 408. While “a single, inadvertent opening of properly
marked legal mail outside an inmate’s presence may not infringe a prisoner’s right
to free speech or his right to court access absent a showing of actual injury,” repeated
actions of this nature may give rise to a constitutional violation. Id. at 409. A pattern
or practice of this nature “interferes with protected communications . . . and




                                           13
accordingly impinges upon the inmate’s right to freedom of speech.” Jones v.
Brown, 461 F.3d 353, 359 (3d Cir. 2006).7
       The controlling Department policy on this matter, DC-ADM 803, provides:

       Incoming privileged correspondence that is hand-delivered to the
       Department in accordance with 37 Pa. Code § 93.2(c)(1)(i) or which is
       identified by a control number issued by The Office of Chief Counsel
       in accordance with 37 Pa. Code § 93.2(c)(1)(ii) and correspondence
       sent by a court will be opened and inspected for contraband in the
       presence of the inmate to whom it is addressed.

Section 2(B), DC-ADM 803 § 2(B). A legal mail policy, such as DC-ADM 803,
that burdens First Amendment rights is not automatically unconstitutional. Jones,
461 F.3d at 360. If the policy is reasonably related to legitimate penological
interests, it is valid. Brown, 932 A.2d at 319. This Court determined in Brown that
Department policy DC-ADM 803 does not impermissibly infringe on First
Amendment rights. Id. at 322. The petitioner in Brown alleged that the Department
violated his constitutional rights by allowing officials to open privileged mail outside
of his presence pursuant to DC-ADM 803. Id. at 317. Although acknowledging that
inspecting outside of an inmate’s presence an inmate’s privileged mail without an
attorney control number infringed on constitutional rights, we concluded that
infringement was not impermissible, as it was reasonably related to legitimate
penological interests. Id. at 319, 321-22 (citing Turner v. Safley, 482 U.S. 78, 89
(1987)). Because the requirement of an attorney control number is rationally
connected to the Department’s interest in ensuring that contraband is not transmitted
through purported legal mail, and the policy still provides a means for privileged


       7
         This Court is not obligated to follow decisions of the United States Court of Appeals for
the Third Circuit on issues of federal law, but nonetheless may find them persuasive. Doe, 126
A.3d at 409.


                                               14
communications, we concluded that DC-ADM 803, as it pertained to legal mail,
satisfied constitutional requirements. Brown, 932 A.2d at 320-21.
      However, Nifas does not contend that DC-ADM 803 violates his First
Amendment rights, but asserts that Defendants’ repeated opening his legal mail in
violation of this policy does. As noted, one single, inadvertent opening of properly
marked legal mail is not sufficient to prove a deprivation; thus, if there is no evidence
of repeated actions, there is no issue of material fact and summary judgment is
appropriate. See Schreane v. Holt, 482 F. App’x. 674 (3d Cir. 2012). The plaintiff
in Schreane, a federal prison inmate, alleged that a prison employee interfered with
his access to the courts by opening his legal mail outside of his presence, in particular
one letter from the United States District Court for the Middle District of
Pennsylvania. Id. at 676. The defendants contended that the letter in question was
treated as regular correspondence because it did not have the name of the sender, as
required by the mail policy in the federal regulations. Id. at 677. The federal district
court granted summary judgment to the defendants, and the United States Court of
Appeals for the Third Circuit affirmed on the basis that the plaintiff had not
established a pattern or practice of the defendants opening his privileged mail outside
of his presence. The Third Circuit reiterated that “a single instance of opening
special mail outside an inmate’s presence does not rise to a constitutional
deprivation.” Id. Because the plaintiff had not provided evidence of any other
instances where his legal mail was improperly opened, the Third Circuit concluded
that the district court properly granted summary judgment to the defendants. Id.
      Unlike the plaintiff in Schreane, and contrary to Defendants’ assertion
otherwise, Nifas does not allege only the three instances relating to two parcels of
legal mail and one parcel of court mail. Each of the three grievances filed by Nifas,



                                           15
which were fully appealed through the administrative process, assert a violation of
his rights beyond these three instances. As Nifas contended in his grievances, his
claim relates to a repeated course of conduct. Specifically, in his first grievance,
Nifas asserts that “[o]n June 7, 2013, an[d] many other occasions . . . [Defendants]
constantly opened” his incoming mail. (R. Item No. 102 (emphasis added).) In his
second grievance, Nifas states that he received incoming legal mail on July 15, 2013,
that was opened and “Defendants[’] constant violations infringes” upon his rights.
(Id. (emphasis added).) In his third grievance, Nifas states “On Sept[ember] 9, 2013,
Defendants . . . continued to infringe upon [Nifas’] freedom of speech rights” and
confidential communications. (Id. (emphasis added).) This is consistent with what
he alleged in his Complaint, where he stated four separate times that Defendants
“constantly” and on “numerous occasions” opened, read, and copied his privileged
mail outside of his presence, (Compl. ¶¶ 1, 13, 15-16), at his deposition, and in his
response to the Motion, (see Grievances, R. Item No. 102; Dep. Tr. at 14, 27; Nifas’
Brief (Br.) at 6). Therefore, Nifas has maintained throughout that Defendants
constantly opened, read, and copied his legal mail. Although Defendants have
provided affidavits that they did not open, read, or copy privileged mail, and argue
that the three specified parcels in question were opened permissibly or as an
unintentional error, Nifas contends otherwise as to numerous pieces of privileged
mail.   Further, Defendants, as the moving party, cannot rely upon their own
testimonial affidavits in support of summary judgment. Borough of Nanty-Glo v.
Am. Sur. Co. of New York, 163 A. 523, 524 (Pa. 1932); Sanchez-Guardiola v. City
of Philadelphia, 87 A.3d 934, 938 (Pa. Cmwlth. 2014). As a result, although
Defendants have presented affidavits in support of their position that they did not
open, read, or copy Nifas’ privileged mail, that alone cannot eliminate an issue of



                                         16
material fact, particularly in light of Nifas’ deposition testimony to the contrary and
the supporting documents he submitted to the trial court. See Marks, 589 A.2d at
207 (concluding that a non-moving party’s deposition created a genuine issue of
material fact for trial). Defendants argue, as the trial court found, that Nifas did not
have any evidence that Defendants impermissibly opened privileged mail outside of
his presence, but this overlooks Nifas’ deposition, which creates genuine issues of
material fact that preclude a determination of whether Defendants are entitled to
summary judgment. Nifas testified in his deposition that there were more than
simply the three pieces of legal mail and court mail noted in the grievances that were
opened in violation of DC-ADM 803 and his constitutional rights. Nifas also asserts
that Defendants removed the stickers on the envelopes containing the attorney
control number. Further, Nifas presented to the trial court in opposition to summary
judgment various legal envelopes and mail logs to support the contention that
Defendants removed the attorney control number stickers from his legal mail and
repeatedly opened that mail in violation of his constitutional rights. These are further
issues of material fact that Defendants have not addressed and preclude summary
judgment. Defendants and the trial court appear to interpret the Complaint as
asserting only three incidents based upon the specific letters Nifas referenced in his
grievances; however, Nifas has consistently maintained his allegations relate to a
repeated course of conduct over the course of a year. Therefore, the trial court erred
in granting Defendants’ Motion.
      Further, while Defendants argued before the trial court that Nifas has not
exhausted his administrative remedies for every privileged letter other than the three
specified in his Complaint, we find no support for the proposition that Nifas was
required to file a separate grievance for every single privileged letter of the now



                                          17
200 letters he contends were impermissibly opened. DC-ADM 804, the Department
policy governing grievances, does not directly address this issue. However, it does
state that “[a]ny grievance issue that has been or is currently being addressed will
not be re-addressed in a subsequent grievance.” Section 1(A)(15), DC-ADM 804
§ 1(A)(15). Based upon this, Nifas contends that if he would have filed a grievance
each day or for each privileged letter, it would have been “based on the same set of
fact[s],” and “the Grievance Coordinator would not have addressed the issue.”
(Nifas’ Br. at 18 (alteration in original).) We find persuasive the Third Circuit’s
decision in Diaz v. Palakovich, 448 F. App’x. 211 (3d Cir. 2011). The plaintiff in
Diaz alleged that prison officials engaged in a pattern or practice of opening his
privileged mail outside of his presence. Id. at 212. The plaintiff had filed eight
grievances relating to the opening of his legal mail and in seven responses to those
grievances, the prison employees admitted or did not contest the claims. The
plaintiff only completed the full appeals process for one of those eight grievances,
in which he stated that another parcel of his legal mail had been opened outside of
his presence, even though he had filed several grievances about this course of
conduct, which had been marked denied or resolved. Id. at 213. The plaintiff filed
his complaint in federal court and, after discovery, the district court granted the
defendants’ motion for summary judgment.        The district court interpreted the
plaintiff’s complaint as asserting only two claims, one for access to the courts and
one for improper handling of legal mail. Based upon this and a review of the record,
the district court determined there were only two occurrences where legal mail was
opened outside of the plaintiff’s presence, which did not constitute a pattern or
practice. Id. at 214. The Third Circuit disagreed. Reasoning that the seven
unappealed grievances “are contemporaneous parts of the prison record as they all



                                        18
address the same practice of improper legal mail handling,” and “[t]aken together
. . . suffice to state a claim for a pattern or practice of opening legal mail outside [the
plaintiff’s] presence,” the Third Circuit found that the plaintiff could state a claim of
a pattern or practice of opening his privileged mail. Id. at 216. Therefore, the Third
Circuit held that the district court improperly granted summary judgment. Id.
       Much like the plaintiff in Diaz, Nifas filed three grievances, and the trial court
and Defendants’ interpretation of the grievances and complaint as limiting his claims
to only three letters ignores the language of the grievances, the Complaint, and the
arguments Nifas has consistently maintained.              Each of the three grievances
complained of Defendants’ repeated conduct in impermissibly opening the legal
mail outside of his presence. Further, if we were to agree with the Defendants that
Nifas had to file a new grievance for every privileged letter he believed was
improperly opened outside of his presence, it seems unlikely Nifas would ever
sufficiently exhaust his administrative remedies to allow him to file suit. 8 In any
event, we need not determine whether Nifas needed to file a grievance for every
single letter, as his grievances sufficiently preserved the issue for which he filed his
Complaint, as they encompass claims of repeated and ongoing violations. In all
three grievances, Nifas asserts that Defendants continued to constantly open his
privileged mail, meaning that he has exhausted his administrative remedies for the
violations he alleges occurred in 2013 beyond the three specific letters referenced in
each grievance. Therefore, all privileged mail sent to Nifas during that time is at
issue in Nifas’ Complaint and Nifas’ deposition creates genuine issues of material

       8
         A review of the mail log Nifas attached to his memorandum in opposition to the Motion
shows that Nifas receives an extraordinary amount of legal mail from attorneys and state and
federal courts. Over two pages of the mail log document the legal mail that Nifas received from
April 2013 to December 2013. (R. Item No. 102.)



                                              19
fact as to whether that privileged mail was in fact impermissibly opened, read, and
copied. 9

III.   Conclusion
       Because Nifas did not receive the Memorandum and Order until April 2, 2018,
Nifas’ appeal is timely, and we deny Defendants’ Motion to Quash. Further, because
genuine issues of material fact remain as to all of the privileged mail that forms the
basis for Nifas’ Complaint, the trial court erred in granting summary judgment.
Accordingly, we reverse and remand for further proceedings.


                                             _____________________________________
                                             RENÉE COHN JUBELIRER, Judge



Judge Covey did not participate in this matter.



       9
         The trial court did not address the remaining arguments raised by Defendants in support
of summary judgment. Nifas addresses those arguments in his appeal, although Defendants do not
respond. As for the issue of whether summary judgment was proper because Nifas did not have
proof establishing the individual involvement of Darr and Weimer, we note that issues of material
fact remain that preclude resolution of that question at this stage. Defendants rely upon Darr’s
affidavit denying her individual involvement, but Nifas contests this in his deposition; thus
Defendants are not entitled to judgment as a matter of law.
        With regard to whether summary judgment was proper because Defendants are immune
from suit for sovereign immunity, it should first be noted that Defendants did not raise this
argument in the Motion nor did they assert it in the argument before the trial court, but only
mentioned it briefly in the memorandum in support of summary judgment. Nonetheless, Nifas has
asserted a cause of action seeking declaratory judgment and damages, and “the law is clear that
sovereign immunity does not bar . . . declaratory judgment actions.” Brimmeier v. Pa. Turnpike
Comm’n, 147 A.3d 954, 961 (Pa. Cmwlth. 2016), aff’d, 161 A.3d 253 (Pa. 2017). To the extent
that Nifas seeks other relief, the application of sovereign immunity turns on whether Darr and
Weimer were acting within the course and scope of their duties during the actions in question. See
Paluch v. Pa. Dep’t of Corr., 175 A.3d 433, 438 (Pa. Cmwlth. 2017). Such a determination can
only be made after the genuine issues of material fact set forth above are resolved.


                                               20
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rasheed Nifas,                         :
                        Appellant      :
                                       :
                  v.                   :   No. 831 C.D. 2018
                                       :
Susan Darr and Andrea Weimer           :
                                       :



                                    ORDER


     NOW, April 18, 2019, Susan Darr’s and Andrea Weimer’s Motion to Quash
is DENIED, and the Order of the Court of Common Pleas of Somerset County is
REVERSED and this matter is REMANDED.
     Jurisdiction relinquished.



                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
