          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brandon Key,                                    :
                              Petitioner        :
                                                :
               v.                               :   No. 371 M.D. 2015
                                                :   Submitted: October 14, 2016
The Pennsylvania Department                     :
of Corrections,                                 :
                       Respondent               :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION
BY JUDGE SIMPSON1                               FILED: April 10, 2018

               Before this Court in our original jurisdiction are the preliminary
objections of the Pennsylvania Department of Corrections (DOC) to an amended
petition for review (amended petition) filed by inmate Brandon Key (Key). Key’s
amended petition challenges the validity of DOC Policy DC-ADM 803 (entitled,
“Inmate Mail and Incoming Publications”).                Upon review, we sustain DOC’s
preliminary objections and dismiss Key’s amended petition.


                                        I. Background
               Key is an inmate in DOC custody. In July 2015, he filed suit seeking
this Court’s review of DC-ADM 803, which governs inmate mail and incoming
publications. Key challenged the definitions of “publication” and “catalogue” used
in DC-ADM 803 as overly restrictive, as well as DC-ADM 803’s ban on sexually
explicit materials and materials containing nudity as conflicting with Pennsylvania
law and violating his rights under the U.S. and Pennsylvania Constitutions.

      1
          This case was reassigned to the author on February 6, 2018.
                After Key filed his initial petition for review, DOC amended DC-ADM
803 to reflect a new definition of the term “publication.”


                Key subsequently filed the amended petition. Key now concedes that
the amended version of DC-ADM 803 (New 803) permits inmates to receive
catalogues and purchase commercially sold photographs. However, he reiterates his
claims that New 803 is inconsistent with Section 506 of the Administrative Code of
1929,2 with Pennsylvania’s Obscenity Statute (Criminal Obscenity Statute), 18 Pa.
C.S. §5903, and with the U.S. and Pennsylvania Constitutions.


                DOC filed preliminary objections to the amended petition, asserting:
(1) Key lacks standing to sue under the provision of the Pennsylvania Constitution
upon which he relies; (2) Key’s challenge to the prior version of DC-ADM 803 is
moot in light of the changes set forth in New 803; and, (3) the amended petition is
legally insufficient to state a cognizable claim.


                Key filed preliminary objections to DOC’s preliminary objections,
asking that this Court strike DOC’s preliminary objections for failure to comply with
the verification requirements of Pa. R.C.P. Nos. 76 (defining “verified”) and 1024(a)
(“Verification”).       The parties’ preliminary objections are now before us for
disposition.3

       2
           Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §186.
       3
         In ruling on preliminary objections, this Court accepts as true all well-pled allegations of
material fact, as well as all inferences reasonably deducible from those facts. Christ the King
Manor v. Dep’t of Pub. Welfare, 911 A.2d 624 (Pa. Cmwlth. 2006) (en banc). However, this Court
need not accept unwarranted inferences, conclusions of law, argumentative allegations, or



                                                 2
                                II. Discussion
       A. Key’s Preliminary Objections to DOC’s Preliminary Objections
               Initially, we address Key’s preliminary objections to DOC’s
preliminary objections. Through his preliminary objections, Key takes issue with a
footnote to paragraph 31 of DOC’s preliminary objections, which states, “[i]nmates
can and routinely do purchase books from pre-approved vendors.” DOC’s Prelim.
Objs./Suggestion of Mootness to Am. Pet. for Review at 8 n.6. Key asserts that this
fact is not of record, and DOC included no verification to support this factual
averment. However, the crux of Key’s amended petition is a perceived ban on the
receipt of catalogues and commercially sold photographs, not the purchase of books.
Further, in the challenged footnote, DOC indicates that it included this information
“[f]or this Court’s edification.” Id. We do not interpret any statement in DOC’s
footnote as an averment of fact subject to the verification requirements of Pa. R.C.P.
No. 1024(a).      Therefore, we overrule Key’s preliminary objections to DOC’s
preliminary objections.


                            B. DOC’s Preliminary Objections
                                     1. Mootness
               For its part, DOC first asserts, to the extent Key brings a challenge to
the prior version of DC-ADM 803 concerning inmate possession of catalogues,
Key’s claim is moot as DOC amended the policy to permit inmates to possess
catalogues generally. In response, Key concedes his claims concerning former DC-
ADM 803’s ban on catalogues and commercially sold photographs, as well as his



expressions of opinion. Id. For preliminary objections to be sustained, it must appear with
certainty that the law will permit no recovery. Id. Any doubt must be resolved in favor of the non-
moving party. Id.

                                                3
challenge to New 803’s definition of “catalogue” are moot. See Pet’r’s Br. at 4-6,
8. Therefore, no further discussion of these issues is necessary.


                    2. Demurrer to First Amendment Claim
             DOC next argues the rationale for its anti-pornography policy is
constitutionally sufficient under Turner v. Safely, 482 U.S. 78 (1987). Therefore, it
contends, Key cannot prevail on his First Amendment challenge to New 803.


             Key responds that his First Amendment rights under the U.S.
Constitution are violated by the restriction on what publications he can and cannot
receive.


             Pennsylvania courts repeatedly recognize that DOC’s Policy pertaining
to incoming publications containing obscenity passes constitutional muster and is
related to the legitimate penological objectives of security and rehabilitation.
Brittain v. Beard, 974 A.2d 479 (Pa. 2009); Payne v. Dep’t of Corr., 871 A.2d 795
(Pa. 2005); Shore v. Pa. Dep’t of Corr., 168 A.3d 374 (Pa. Cmwlth. 2017); Smith v.
Beard, 26 A.3d 551 (Pa. Cmwlth. 2011).


             Thus, in Smith, this Court explained (with emphasis added):

                    The [U.S.] Supreme Court has held that an inmate
             ‘retains those First Amendment rights that are not
             inconsistent with his status as a prisoner or with the
             legitimate penological objectives of the corrections
             system.’ Pell v. Procunier, 417 U.S. 817, 822 (1974). In
             Turner, the U.S. Supreme Court reconciled the conflicting
             principles that prison walls do not separate inmates from
             Constitutional protections and that courts are ill-suited for
             running prisons by holding that ‘when a prison regulation

                                          4
impinges on inmates’ constitutional rights, the regulation
is valid if it is reasonably related to legitimate penological
interests.’ Turner, 482 U.S. at 84-85, 89. The Turner court
further held that, even if the prison regulation infringed
upon a fundamental right, the strict scrutiny usually
applied to such rights is not applicable in the prison
context. Id. Thus, pursuant to Turner, in assessing a prison
regulation courts should determine:

       (1) whether there is a ‘valid, rational connection’
       between the prison regulation and the legitimate
       governmental interest asserted to justify it; (2)
       whether alternative means are open to inmates to
       exercise the asserted right; (3) what impact an
       accommodation of the asserted constitutional
       right will have on guards, inmates, and prison
       resources; and (4) whether there are ‘ready
       alternatives’ to the rule that would accommodate
       prisoners’ rights at de minimus [sic] cost to
       penological interests.

Brittain, 974 A.2d at 486 (quoting Turner, 482 U.S. at 89-
91).

        Consistent with its holding in Turner, the U.S.
Supreme Court stated in Overton v. Bazzetta, 539 U.S. 126
(2003), that courts ‘must accord substantial deference to
the professional judgment of prison administrators, who
bear a significant responsibility for defining the legitimate
goals of a corrections system and for determining the most
appropriate means to accomplish them.’ Id. at 132.
Moreover, the U.S. Supreme Court, in Overton, stressed
that ‘[t]he burden ... is not on the State to prove the validity
of prison regulations but on the prisoner to disprove it.’
Id.

      Our Supreme Court has relied upon both Turner and
Overton in two cases challenging [DOC] administrative
regulations, which were directed, like [former DC-ADM
803] here, at banning pornography in the corrections
system. In [Payne], an inmate challenged a prior version
of [DC-ADM 803], which prohibited inmates from
sending or receiving correspondence containing obscene

                               5
materials, as violating Article I, Section 7 of the
Pennsylvania Constitution. After concluding that the
Turner deferential standard was applicable to inmate
challenges to prison regulations under the Pennsylvania
Constitution, our Supreme Court held that the policy at
issue in Payne was presumptively reasonable and that the
inmate had not attempted to satisfy his burden of
disproving the validity of the policy. Payne, [871 A.2d at
810 n.11]. Accordingly, our Supreme Court granted
summary judgment in [DOC’s] favor and, in doing so,
clarified that ‘the question is not whether the curtailment
of distribution of obscene materials will remedy the
aforementioned institutional concerns, but whether [DOC]
reasonably believed that it would do so.’ [Id. at 810].

       In Brittain, an inmate challenged [DOC’s]
administrative directive DC–ADM 803-1, which
prohibited inmates from possessing pornography … and
directed inmates to turn over any pornographic material in
their possession, claiming the directive violated the First
and Fourteenth Amendment of the [U.S.] Constitution and
the Pennsylvania Constitution.         Included with the
challenge were affidavits from other inmates, who
indicated that their rehabilitation and treatment was not
hindered by viewing pornography. Brittain, [974 A.2d at
481]. In its answer and new matter, [DOC] asserted
numerous penological reasons for the ban on pornography,
including the ban being consistent with its goal of
rehabilitating the inmate and inmates’ treatment
objectives, preventing a hostile working environment for
[DOC’s] employees, preventing employees and inmates
from being objectified, and preventing materials that were
counter-productive to the goal of sex offender therapy,
which is meant to teach inmates to view people as people.
Id. The inmate responded by demanding ‘strict peer-
review scientific-evidence’ to support [DOC’s]
contentions. Id. The inmate and [DOC] filed cross-
motions for summary judgment, both of which this Court
denied. The Supreme Court considered the matter on an
interlocutory appeal by permission. Relying on Overton,
Turner, and Payne, the Supreme Court held that [DOC]
had stated legitimate penological interests for the ban on
pornography, the ban bore a reasonable relationship to

                            6
             those interests and was not an exaggerated response
             thereto, and the inmate had not ‘set forth specific facts
             that, if believed, would warrant a decision in his favor.’
             [Id. at 488]. The Supreme Court further noted that [DOC]
             alleged that: the policy allowed inmates to preserve their
             pornographic materials by sending them home;
             accommodating the inmates’ asserted constitutional rights
             to unrestricted access to pornography would, inter alia,
             ‘foster a hostile working environment’; and ‘there was no
             other realistic remedy available to [DOC] to address the
             legitimate government interest in: (1) maintaining a non-
             hostile work environment …; (2) discouraging inmates
             from objectifying persons; and (3) impeding inappropriate
             behavior.’ [Id.]. The Supreme Court concluded that
             [DOC’s] policy satisfied the Turner standards and that the
             inmate had not asserted ‘specific facts that, if believed,’
             would prove the invalidity of the policy and, accordingly,
             reversed this Court’s decision denying [DOC’s] Motion
             for Summary Judgment. [Id. at 488, 490].

Smith, 26 A.3d at 557-58. Reviewing the averments in the inmate’s complaint in
Smith, this Court agreed with DOC that the averments did not include the specific
facts necessary to disprove the penological interests asserted by DOC for DC-ADM
803, which were approved in Brittain and Payne as legitimate and reasonably related
to that legitimate interest and satisfying Turner. Because the complaint did not aver
specific facts that would raise a legally sufficient challenge to DOC’s legitimate
penological interests addressed by DC-ADM 803, this Court sustained the
preliminary objection to the inmate’s First Amendment claim. See also Shore, 168
A.3d at 380 (“Pursuant to Brittain and Smith, DC-ADM 803 and 37 Pa. Code § 93.2
are facially constitutional for purposes of the First Amendment and, like the
petitioners in those cases, Shore does not allege any specific facts that tend to
undermine [DOC’s] legitimate penological interests.”). We reach the same result
here.



                                         7
             To that end, our review of the factual averments set forth in the
amended petition reveals that Key does not plead specific facts sufficient to
undermine DOC’s legitimate penological interests. Therefore, he does not state a
cognizable First Amendment claim. Brittain; Shore; Smith.


             Moreover, contrary to Key’s claims, New 803 does not effectuate a total
ban on incoming obscene or sexually explicit publications, and it affords the
Incoming Publications Review Committee discretion. Indeed, New 803 expressly
provides for discretion to permit certain publications, and it offers guidance in the
exercise of that discretion:

                   (2) Correspondence and publications, containing
             nudity or explicit sexual material (other than in
             narrative form), as defined in the Glossary of Terms may
             be permitted if the material has artistic, educational, or
             medical value. The below listed considerations will guide
             [DOC] in determining whether to permit nudity, explicit
             sexual material, or obscene material:

             (a) Is the material in question contained in a publication
                that regularly features sexually explicit content
                intended to raise levels of sexual arousal or to provide
                sexual gratification, or both? If so, the publication will
                be denied for inmate possession.

             (b) Is it likely that the content in question was published
                or provided with the primary intention to raise levels of
                sexual arousal or to provide sexual gratification, or
                both? If so, the publication or content will be denied
                for inmate possession.




                                          8
DC-ADM 803(E)(3)(c)(2) (attached to DOC’s Prelim. Objs.; emphasis by underline
added, emphasis by bold in original). Thus, by its plain language, New 803 is not a
complete ban on incoming obscene publications, and it allows for discretion.

             3. Demurrer to Overly Restrictive Nature of New 803
             DOC further asserts that Pennsylvania courts already determined New
803 is not more restrictive than the Criminal Obscenity Statute; therefore, Key has
not presented a viable claim in this regard.


             In response, Key argues the regulation preventing inmates from
receiving publications containing nudity and sexually explicit material is more
restrictive than the Criminal Obscenity Statute, which only bans for state
correctional inmates possession of material that is considered obscene. See 18 Pa.
C.S. §5903(a)(8). Specifically, he points to Section 506 of the Administrative Code,
which states that agencies and departments are “empowered to prescribe rules and
regulations, not inconsistent with the law, for the government of their respective
departments .…” 71 P.S. §186 (emphasis added). Key asserts that because New
803 is more restrictive, it is inconsistent with the law and is invalid under the
Administrative Code.


             Section 506 of the Administrative Code empowers departments,
independent administrative boards and commissions, and administrative bodies to
promulgate rules and regulations to achieve and advance their respective aims and
goals as articulated by the legislature. 71 P.S. §186. One such department is DOC,




                                          9
which is tasked with administering, managing, and supervising the state’s penal and
correctional facilities, programs, and services.4


               Promulgated pursuant to the pertinent provisions of the Administrative
Code is New 803, which governs inmate mail and incoming publications. New 803
permits inmates to order catalogues, but it limits obscene materials, and photographs
containing obscenity, explicit material, or nudity.5 This “ban,” Key contends, is
more restrictive than the Criminal Obscenity Statute, and therefore not consistent
with the law as required by Section 506 of the Administrative Code. Thus, Key’s
argument turns on an interpretation of the phrase “not inconsistent with the law.” 71
P.S. §186.


               Key argues the differences between New 803 and the Criminal
Obscenity Statute are sufficient to support a finding that the policy is inconsistent
with the law. We disagree, for several reasons.


               First, we do not discern a material inconsistency between New 803 and
the Criminal Obscenity Statute.            This is especially true when comparing the



       4
        Section 201 of the Administrative Code enumerates the executive officers, administrative
departments, and independent administrative boards and commissions charged with performing
the executive and administrative work of the Commonwealth. 71 P.S. §61. DOC is one such
enumerated entity. Section 901-B of the Administrative Code, added by the Act of December 30,
1984, P.L. 1299, sets forth the general powers and duties of DOC. 71 P.S. §310-1.
       5
         “An inmate may not: send or receive … obscene materials.” DC-ADM 803(1)(A)(3)(d).
“Photographs containing obscenity, explicit sexual material or nudity, as specified in Section 3 are
prohibited.” DC-ADM 803(1)(A)(14). As discussed above, an express exception to this “ban”
allows incoming materials containing nudity, explicit sexual material, or obscene material if the
material has artistic, educational or medical value.

                                                10
discretion exception provision of New 803, quoted above, with the definition of
“Obscene” found in the Criminal Obscenity Statute, 18 Pa. C.S. §5903(b).


             Second, and more importantly, New 803 was not enacted under
authority of the Crimes Code, which includes the Criminal Obscenity Statute.
Rather, New 803 was enacted under Sections 506 and 901-B of the Administrative
Code. Any minor difference with a statute other than the enabling statute is not of
the type which would invalidate New 803.


             Consistent with this observation, this Court previously rejected a
similar challenge to the prior version of DC-ADM 803 on the ground that it could
be more restrictive than the Criminal Obscenity Statute. Smith, 26 A.3d at 561
(sustaining preliminary objection; “Given that inmates’ constitutionally-protected
rights may be subject to greater restrictions than those of the general public, we agree
with [DOC] that simply because [DC-ADM 803] is more restrictive than the
[Criminal] Obscenity [Statute], [DC-ADM 803] is not unconstitutionally over
restrictive. This is particularly so where our Supreme Court has twice held that [DC-
ADM 803], or its predecessors, were reasonably related to legitimate penological
interests. Brittain; Payne.”). We reach the same conclusion here.


             Under Section 901-B of the Administrative Code, DOC is

             established as an administrative department, [and] shall
             have the powers and duties granted to and imposed upon
             it by this article and by any other statutory provisions. In
             addition, [DOC] … shall also have all the powers and
             duties … related to the administration, management and
             supervision of penal and correctional facilities, programs
             and services.

                                          11
71 P.S. §310-1.      Section 506 provides that: “The heads of all administrative
departments … are hereby empowered to prescribe rules and regulations, not
inconsistent with the law, for the government of their respective departments ….”
71 P.S. §186. A regulation governing the inmate mail system is consistent with these
provisions, which expressly permit DOC to enact rules and regulations for the
management and supervision of penal correctional facilities. In sum, we cannot
conclude New 803 is materially inconsistent with or in violation of the enabling
statute, Section 506 of the Administrative Code.


            4. Demurrer to Claim Regarding Forwarding of Publications
               DOC also maintains that Key fails to state a First Amendment claim
based on his inability to send rejected publications to his home. DOC contends
Key’s claim is actually rooted in procedural due process rather than First
Amendment protections.


               Key responds that the requirement that publications must be destroyed
or returned violates his First Amendment rights by violating his right to receive the
materials.    He cites Griswold v. Connecticut, 381 U.S. 479 (1965), for the
proposition that the First Amendment includes the right to distribute literature and
to teach.


               Initially, we disagree with DOC’s contention that Key’s claim is based
in due process rather than his First Amendment protections. Due Process requires
notice and opportunity to be heard. Local 85 of Amalgamated Transit Union v. Port
Auth., 840 A.2d 506 (Pa. Cmwlth. 2004). New 803 provides an inmate with a
grievance review process following the rejection of any material that arrives in the

                                          12
mail, including publications that feature nudity or are sexually explicit. Key does
not challenge the adequacy of this process. Instead, he asserts his First Amendment
rights were violated by the requirement that rejected mail be returned to the sender.
Key alleges no claim grounded in due process.


             Instead, we examine DOC’s argument against a First Amendment
backdrop. New 803 states that if incoming correspondence is determined to be
undeliverable for any reason, it shall be marked appropriately and returned to sender
at the inmate’s expense, destroyed, held for investigation, held as evidence or
otherwise disposed of properly. DC-ADM 803(1)(A)(6)(e), (10). It is important to
note exactly what Key is prevented from accomplishing under New 803. New 803
does not provide a mechanism by which an inmate may have rejected publications
forwarded to his home address. However, New 803 does not prevent an inmate from
ordering the same materials to be delivered to his home address. Brittain. Instead,
New 803 only prohibits the forwarding of those materials from the prison at which
they were rejected. Thus, we discern no infringement on Key’s rights to distribute
literature or teach. As such, Key fails to state a First Amendment claim in that
regard.


5. Demurrer to Claim Under Article I, Section 7 of Pennsylvania Constitution
             Finally, DOC argues Key lacks standing to bring a freedom of the press
claim under Article I, Section 7 of the Pennsylvania Constitution, as he is not a
member of the press. DOC asserts Key has no claim based in fact or law in this
regard.




                                         13
             Key responds that New 803’s requirement that rejected publications be
returned to the vendor and not forwarded to an inmate’s home, violates his rights
under Article I, Section 7 of the Pennsylvania Constitution.


             Article I, Section 7 of the Pennsylvania Constitution (entitled “Freedom
of Press and Speech; Libels”) provides, in relevant part:

             The printing press shall be free to every person who may
             undertake to examine the proceedings of the legislature or
             any branch of government, and no law shall ever be made
             to restrain the right thereof. The free communication of
             thoughts and opinions is one of the invaluable rights of
             man, and every citizen may freely speak, write, and print
             on any subject, being responsible for the abuse of that
             liberty. …

PA. CONST. art. I, §7.


             Key is not a member of the press. Further, he does not allege that he
was prevented from freely speaking, writing or printing on any subject. As indicated
above, nothing in New 803 prevents Key from ordering materials from a vendor for
shipment to his home. Brittain. Key is merely not afforded the means to forward
rejected materials from the prison. New 803’s provision that prevents rejected
materials from being mailed to Key’s home address does not violate his rights under
Article I, Section 7 of the Pennsylvania Constitution. Payne (rejecting prisoners’
claim that Criminal Obscenity Statute and former DC-ADM 803 violate Article 1,
Section 7 of the Pennsylvania Constitution).




                                         14
                                III. Conclusion
            For all the foregoing reasons, we overrule Key’s preliminary objections
to DOC’s preliminary objections, we sustain DOC’s preliminary objections to the
amended petition, and we dismiss the amended petition with prejudice.




                                     ROBERT SIMPSON, Judge




                                       15
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brandon Key,                          :
                       Petitioner     :
                                      :
           v.                         :   No. 371 M.D. 2015
                                      :
The Pennsylvania Department           :
of Corrections,                       :
                       Respondent     :


                                    ORDER

           AND NOW, this 10th day of April, 2018, the preliminary objections of
the Pennsylvania Department of Corrections are SUSTAINED. Petitioner Brandon
Key’s preliminary objections to the Pennsylvania Department of Corrections’
preliminary objections are OVERRULED. Petitioner Brandon Key’s Amended
Petition for Review is DISMISSED, with prejudice.




                                     ROBERT SIMPSON, Judge
