                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


    ROBERT BENCHOFF,                          :   No. 43 MAP 2017
                                              :
                     Appellant                :   Appeal from the Order of the
                                              :   Commonwealth Court dated July 13,
                                              :   2017 at No. 110 MD 2017
               v.                             :
                                              :
                                              :
    PA. DEPT. OF CORR.,                       :
                                              :
                     Appellee                 :


                             CONCURRING STATEMENT

JUSTICE WECHT                                                       FILED: June 1, 2018

        I join this Court’s per curiam affirmance.       Although I disagree with the

Commonwealth Court’s characterization of the right at issue in this case, I agree with the

result.1 The Commonwealth Court correctly concluded that it lacked original jurisdiction

pursuant to the rule that we promulgated in Bronson v. Central Office Review Committee,

721 A.2d 357 (Pa. 1998). That rule generally precludes judicial review of prison grievance

decisions unless the matter involves a constitutional right not limited by the Department

of Corrections (“DOC”). I write separately to express my concern that our decision in

Bronson may not be consistent with statutory law or with the mandates of our Constitution.



1      As Benchoff’s petition for review in the nature of mandamus was dismissed
pursuant to DOC’s preliminary objections, our standard of review requires that we “regard
as true all well-pleaded material facts set forth in the mandamus petition and all
reasonable inferences that may be drawn from those facts.” Crozer Chester Med. Ctr. v.
Dep’t of Labor & Indus., Bureau of Workers’ Comp., Health Care Servs. Review Div., 22
A.3d 189, 194 (Pa. 2011) (citing Werner v. Zazyczny, 681 A.2d 1331, 1335 (Pa. 1996)).
To the extent that this is true, Bronson denies inmates a judicial remedy for violations of

their property rights.

       Robert Benchoff disputes assessments to his inmate account for costs associated

with medical treatment, contending that DOC charged him for four prescriptions when he

received only two.2 After failing to receive an explanation of the charges from the prison

medical coordinator, Benchoff sought redress through DOC’s inmate grievance system.

See 37 Pa. Code § 93.9(a).3 Benchoff filed a grievance seeking, inter alia, reimbursement

of the charge and a hearing pursuant to the Administrative Agency Law. See 2 Pa.C.S.

§ 504 (requiring notice and an opportunity to be heard). DOC rejected the grievance upon

the ground that Benchoff, in fact, had received four prescription medications. Throughout

the administrative appeals process, DOC upheld its initial response.



2      The General Assembly has authorized DOC to establish a program that includes
medical copay fees. See 61 Pa.C.S. § 3303(a). DOC charges a copay for, inter alia,
nonemergency medical services provided at the inmate’s request and initial medication
prescriptions. 37 Pa. Code § 93.12(c)(1), (3).
3      Section 93.9, entitled “Inmate complaints,” states as follows:
       (a) The Department will maintain an inmate grievance system which will
       permit any inmate to seek review of problems which the inmate experiences
       during the course of confinement. The system will provide for review and
       resolution of inmate grievances at the most decentralized level possible. It
       will also provide for review of the initial decision making and for possible
       appeal to the Central Office of the Department. An inmate will not be
       disciplined for the good faith use of the grievance systems. However, an
       inmate who submits a grievance for review which is false, frivolous or
       malicious may be subject to appropriate disciplinary procedures. A frivolous
       grievance is one in which the allegations or the relief sought lack any
       arguable basis in fact as set forth in DC-ADM 804—Inmate Grievance
       System, which is disseminated to inmates.
       (b) Inmates may also pursue available remedies in State and Federal court.
37 Pa. Code § 93.9.



                                    [43 MAP 2017] - 2
       Benchoff filed a pro se petition for review in the Commonwealth Court’s original

jurisdiction, seeking a writ of mandamus on the basis that he was entitled to a hearing to

remedy the allegedly improper deductions from his inmate account. Benchoff asserted

that, because the inmate grievance procedure did not meet the minimum standards

established by the Administrative Agency Law, DOC violated his right to due process.

DOC filed preliminary objections arguing that, pursuant to Bronson, the Commonwealth

Court lacked original jurisdiction because Benchoff’s claim did not involve a constitutional

right that was not lawfully limited by DOC’s regulations. DOC further asserted that

medical copay grievances are not appealable to the Commonwealth Court.

       The Commonwealth Court sustained the preliminary objections and dismissed

Benchoff’s petition. See Benchoff v. Dep’t of Corr., 110 M.D. 2017 (Pa. Cmwlth. July 13,

2017) (unpublished). Relying upon lower court decisions that applied Bronson,4 the

Commonwealth Court concluded that it lacked jurisdiction because Benchoff did not have

a constitutional right to free medical services, and because DOC promulgated directives

requiring medical copay fees. Slip Op. at 2. Although the Commonwealth Court correctly

held that original jurisdiction did not lie because DOC directives limited the underlying

right at issue, it is difficult to square the Commonwealth Court’s characterization of

Benchoff’s claim with the facts of this case.

       The court focused upon what it perceived to be a claim to free medical services,

whereas the right at issue is a property interest in an inmate’s money. However, Benchoff

did not request free medical services, nor did he dispute the charges to his inmate account

for the prescriptions that he received. Rather, Benchoff alleged a violation of due process

only with respect to deductions for two medications that he claimed never to have


4      See, e.g., Portalatin v. Dep’t of Corr., 979 A.2d 944 (Pa. Cmwlth. 2009); Weaver
v. Dep’t of Corr., 829 A.2d 750 (Pa. Cmwlth. 2003).


                                    [43 MAP 2017] - 3
received. Brief for Benchoff at 11-12. It is well-settled that a prisoner has a constitutional

property interest in his inmate account, and that “inmates are entitled to due process with

respect to any deprivation of this money.” Buck v. Beard, 879 A.2d 157, 160 (Pa. 2005);

see PA. CONST. ART. I, § 1. Nevertheless, pursuant to Bronson, original jurisdiction does

not lie in the Commonwealth Court unless an inmate can identify a right not limited by

DOC.      As the court aptly noted, DOC medical services regulations limit Benchoff’s

constitutionally protected property interest in his inmate account. Thus, I am constrained

to agree with the Commonwealth Court’s determination that, under Bronson, it lacked

original jurisdiction over Benchoff’s claim.

         This result is troubling. This case echoes the concerns that I expressed in my

dissenting statement in Brown v. Wetzel, 177 A.3d 200 (Pa. 2018) (Wecht, J., dissenting),

in which I made the following observation:

         Although [Bronson] facially appears to deny inmates access to the courts
         for all manner of non-constitutional claims that may or may not be resolved
         adequately through the grievance process—including, ostensibly, those
         premised upon the violation of a statutory right—the regulatory preservation
         of an inmate’s ability to “pursue available remedies” in state or federal court,
         37 Pa.Code § 93.9(b), ensures that some meaningful judicial review of such
         claims may be obtained.

Id. at 210. A grievance process that does not preserve some access to a court of record,

however strictly circumscribed, not only is constitutionally inadequate, but also

undermines traditional notions of fairness and justice.5             Notably, “the regulation

5   In Brown, I explained:
         Absent any type of oversight from a neutral arbiter, which may provide
         unbiased consideration of potentially viable legal claims, may require the
         observance of fundamental procedural protections, and may fashion
         appropriate legal remedies, an internal dispute resolution process in which
         the same entity is both a litigant and the judge allows for the resolution of
         claims in a manner that elevates institutional priorities over the rights of a
         claimant. [See Van Swearingen, Comment, Imprisoning Rights: The Failure



                                       [43 MAP 2017] - 4
promulgated by [DOC] enabling the internal grievance system specifically permits

inmates to pursue any remedies available to them in state or federal forums.” McCray v.

Dep’t of Corr., 872 A.2d 1127, 1131 (Pa. 2005) (citing 37 Pa.Code § 93.9(b)). Thus, it is

the explicit preservation of access to the courts in the regulation that “perhaps rescues

this Court’s holding in Bronson from resting upon what otherwise may be questionable

constitutional footing.” Brown, 177 A.3d at 210 (Wecht, J., dissenting). Nonetheless,

despite this explicit reservation of a right of access to a state or federal court, neither our

statutory nor decisional law provide a clear path to the vindication of that right.6


       of Negotiated Governance in the Prison Inmate Grievance Process, 96 CAL.
       L. REV. 1353, 1377-78 (2008)] (arguing that grievance processes can “alter
       the focus of the complaint process from one concerned primarily with the
       declaration of rights and wrongdoings to one focused on a prison’s
       organizational goal of resolving disputes quickly and to its own advantage,”
       potentially failing “to deter particular forms of constitutionally unlawful
       conduct within the prison walls” while simultaneously providing “a sense of
       legal legitimacy that may limit court-imposed liability”).
177 A.3d at 210.
6      At first blush, it may appear that that an inmate would be free to pursue his claim
in a court of common pleas. The courts of common pleas’ original jurisdiction statute
states, in relevant part, as follows:
       Except where exclusive original jurisdiction of an action or proceeding is by
       statute . . . vested in another court of this Commonwealth, the courts of
       common pleas shall have unlimited original jurisdiction of all actions and
       proceedings, including all actions and proceedings heretofore cognizable
       by law or usage in the courts of common pleas.
42 Pa.C.S. § 931(a) (emphasis added).              However, the plain language of the
Commonwealth Court’s original jurisdiction statute belies that assumption. See 42
Pa.C.S. § 761 (stating that the Commonwealth Court has original jurisdiction of all civil
claims against the Commonwealth government and providing that, subject to exceptions
not applicable here, “[t]he jurisdiction of the Commonwealth Court . . . shall be exclusive”)
(emphasis added)). A simple hypothetical illustrates the problem arising from this conflict
between the statutes. Suppose an inmate files his claim in a court of common pleas
because he knows that, under Bronson, the Commonwealth Court lacks original
jurisdiction over his constitutional claim. When the inmate’s claim arrives upon the desk
of a judge in the court of common pleas, the judge notes that DOC is the defendant in the



                                     [43 MAP 2017] - 5
       The Bronson Court provided no guidance as to how and when an inmate may

pursue available remedies in state and federal court. Bronson does not address how a

prisoner can argue a meritorious claim where, as here, the Commonwealth Court

mischaracterized the nature of the claim, failed to consider Section 93.9, and concluded

that it lacked jurisdiction. In fact, Bronson does not refer to Section 93.9’s grievance

procedure at all. Therefore, inmates must overcome two potentially insurmountable

barriers in order to access the Commonwealth Court. An inmate first must state a

constitutional claim. Next, even if an inmate establishes a protected interest, he must

demonstrate that DOC does not limit that interest as a consequence of incarceration. As

a practical matter, it is difficult to conceive of any personal or property interest that is not

limited by DOC. Indeed, DOC has promulgated rules relating to nearly every facet of a

prisoner’s life, from property (DC-ADM 815) and collection of inmate debts (DC-ADM 005)

to cable television (DC-ADM 002) and telephone calls (DC-ADM 818). Thus, in the

absence of guidance as to the interplay between the regulatory framework of the inmate

grievance process and its holding, the Bronson Court essentially gave the

Commonwealth Court license to close its doors to virtually any incarcerated citizen

seeking redress for a grievance involving constitutionally protected interests.

       In addition to my practical concerns with Bronson, I also am not convinced that our

holding is consistent with the statutory law of this Commonwealth. The plain language of

the statute that provides for the Commonwealth Court’s original jurisdiction states, in


case. Because the Commonwealth Court has exclusive jurisdiction of actions against
DOC, the court of common pleas transfers the case to the Commonwealth Court, which
then dismisses the inmate’s claim pursuant to Bronson. The inmate essentially is faced
with a “heads I win, tails you lose” scenario in which he is expelled from both state courts
for lack of original jurisdiction. Thus, as a practical matter, the courts of this
Commonwealth routinely may, indeed must, close their doors to inmates, regardless of
how egregious the infringements upon their constitutional rights may be, provided that
they do not fall within the narrow Bronson exception.


                                      [43 MAP 2017] - 6
relevant part, that “[t]he Commonwealth Court shall have original jurisdiction of all civil

actions or proceedings. . . [a]gainst the Commonwealth government, including any officer

thereof.”   42 Pa.C.S. § 761(a)(1).     Critically, Section 761 does not state that the

Commonwealth Court shall have original jurisdiction only where “an inmate can identify a

personal or property interest . . . not limited by [DOC] regulations and which has been

affected by a final decision of the department.” Bronson, 721 A.2d at 359. It is well-

settled that, “[i]n the absence of a clear legislative mandate, laws are not to be construed

to decrease the jurisdiction of the courts.” Beneficial Consumer Disc. Co. v. Vukman, 77

A.3d 547, 552 (Pa. 2013) (citing Armstrong Sch. Dist. v. Armstrong Educ. Ass’n, 595 A.2d

1139, 1144 (Pa. 1991)). When evaluating a statute, we “should not add, by interpretation,

a requirement not included by the General Assembly.” Commonwealth v. Giulian, 141

A.3d 1262, 1268 (Pa. 2016). Moreover, in drafting the statute, the General Assembly

specified five situations in which the Commonwealth Court lacks original jurisdiction of

civil actions against the Commonwealth government. See 42 Pa.C.S. § 761(a)(1).7 None


7      The Commonwealth Court lacks original jurisdiction to hear the following civil
actions:
       (i) actions or proceedings in the nature of applications for a writ of habeas
       corpus or post-conviction relief not ancillary to proceedings within the
       appellate jurisdiction of the court;
       (ii) eminent domain proceedings;
       (iii) actions or proceedings conducted pursuant to Chapter 85 (relating to
       matters affecting government units);
       (iv) actions or proceedings conducted pursuant to the act of May 20, 1937
       (P.L. 728, No. 193), referred to as the Board of Claims Act; and
       (v) actions or proceedings in the nature of trespass as to which the
       Commonwealth government formerly enjoyed sovereign or other immunity
       and actions or proceedings in the nature of assumpsit relating to such
       actions or proceedings in the nature of trespass.



                                    [43 MAP 2017] - 7
of these enumerated exceptions relate to DOC or to the inmate grievance system. If the

legislature had intended to exclude inmate grievance issues implicating certain

constitutional rights, it could have done so explicitly. See Atcovitz v. Gulph Mills Tennis

Club, Inc., 812 A.2d 1218, 1223 (Pa. 2002) (“[U]nder the doctrine of expressio unius est

exclusio alterius, the inclusion of a specific matter in a statute implies the exclusion of

other matters.”).

       Finally, I discern no clear legal basis for the rule denying an inmate the right to

challenge a final DOC decision without asserting a constitutional right wholly unlimited by

DOC. In an opinion barely spanning three pages, the Bronson Court considered, inter

alia, whether the Commonwealth Court has original jurisdiction over inmate appeals from

decisions of the Central Office Review Committee (CORC).8 Inmate Purcell Bronson

sought appellate review of the CORC’s decision denying him reimbursement for

confiscated civilian clothing. The Commonwealth Court dismissed Bronson’s petition for

review, holding that it lacked jurisdiction. This Court affirmed, establishing a rule that

effectively denies inmates access to the courts of this Commonwealth, as set forth by

statute and DOC regulations, without conducting a meaningful review of the same.

       The Bronson Court first observed that the “full panoply of rights due a defendant

in a criminal prosecution is not necessary in a prison disciplinary proceeding.” Bronson,

721 A.2d at 358-59 (quoting Robson v. Biester, 420 A.2d 9, 12 (Pa. Cmwlth. 1980) (citing

Wolff v. McDonnell, 418 U.S. 539 (1974)). The Court then noted that prisoners do not

enjoy the same level of constitutional protections as other citizens. Id. at 359 (citing

Robson, 420 A.2d at 13). However, those principles had little bearing upon the question


42 Pa.C.S. § 761(a)(1).
8      A Chief Grievance Officer now performs all of the functions previously performed
by the CORC, such as conducting the final review of an inmate’s grievance appeal. DC-
ADM 804-2, issued Apr. 27, 2015.


                                    [43 MAP 2017] - 8
before the Court. As I opined when evaluating Bronson in Brown, “[m]ere observation

that the full ‘panoply of rights’ are not available to prisoners in all circumstances does not

support a conclusion that a court may select at will the rights to be protected and those

that are to be foregone.” Brown, 177 A.3d at 209. Although incarceration necessarily

entails limiting the constitutional rights of inmates, we nevertheless must honor those

rights that are “not fundamentally inconsistent with imprisonment itself or incompatible

with the objectives of incarceration.” Hudson v. Palmer, 468 U.S. 517, 523 (1984).

       Nevertheless, the Bronson Court at least suggested otherwise. Without reckoning

with the preceding principles, and indeed without material explanation, we held:

       Unless “an inmate can identify a personal or property interest . . . not limited
       by [DOC] regulations and which has been affected by a final decision of the
       department[,]” the decision is not an adjudication subject to the court’s
       review. Lawson v. Dep’t of Corr., 539 A.2d 69, 71 (Pa. Cmwlth. 1988).

Bronson, 721 A.2d at 359. Citing to a non-precedential case in which the lower court

provided no support for that assertion, this Court concluded that the Commonwealth Court

lacked original jurisdiction on the basis that inmates do not have a constitutional right to

civilian clothing and that DOC directives limit inmates’ possession of personal property.

       Given that the original jurisdiction statute does not include inmate grievance issues

amongst its exceptions, given that the regulations governing the inmate grievance

process provide expressly for the pursuit of legal remedies in the courts of our

Commonwealth, given Bronson’s thin reasoning and lack of binding antecedent, and

given the dubious effects of that case upon an inmate’s ability to obtain judicial review of

constitutional claims, I have serious misgivings as to whether the rationale underlying

Bronson is sound. Thus, while I join the Court’s per curiam affirmance in the instant case,

this Court should reconsider Bronson in a suitable case.




                                     [43 MAP 2017] - 9
