                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Allen Hayes,                               :
Similar Situated Inmates (Including              :
but not Limited to David Lusik,                  :
Edgar Murphy, Gregory Cupic,                     :
Dewitt Clifford, Louis Rigna,                    :
Harry Zimmerman, Zeke Coffee),                   :
                         Petitioners             :
                                                 :
                       v.                        :
                                                 :
Pennsylvania Department of                       :
Corrections,                                     :   No. 90 M.D. 2017
                       Respondent                :   Submitted: January 5, 2018


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                          FILED: March 26, 2018

               Before this Court are the Pennsylvania Department of Corrections’
(Department) preliminary objections (Preliminary Objections) to Terry Allen Hayes’
(Hayes)1 pro se petition for review in the nature of a complaint for declaratory judgment
(Petition) filed in this Court’s original jurisdiction.
               On February 22, 2017, Hayes filed the Petition on behalf of himself and
similarly-situated inmates including, but not limited to, Gregory Cupic (Cupic) 2
(collectively, Petitioners), 3 seeking a declaratory order that the Department’s policy of

       1
         Hayes’ in forma pauperis application was granted on March 30, 2017.
       2
         Cupic’s in forma pauperis application was granted on April 20, 2017.
       3
         David Lusik’s (Lusik) in forma pauperis application was granted on March 30, 2017, but
was revoked on June 6, 2017, pursuant to Section 6602(f) of the Prison Litigation Reform Act, 42 Pa.
C.S. § 6602(f) (relating to abusive prison conditions litigation), and he was ordered to pay his filing
denying paroled sex offenders access to Community Corrections Centers/halfway
houses (CCC),4 while permitting non-sex offenders immediate access to CCCs upon
parole, violates their equal protection rights.5 On May 31, 2017, Petitioners filed a
Motion for Certification of Class (Class Certification Motion), wherein they alleged
that they and “others not named” have been affected by the Department’s policy, and
“collectively and individually have a personal stake” in the case’s outcome. 6 Class
Cert. Motion at 1.
               On June 1, 2017, the Department filed the Preliminary Objections in the
nature of a demurrer for Petitioners’ failure to state a viable equal protection claim,
and, for lack of standing. See Department Prelim. Obj. at 3. On June 15, 2017,
Petitioners filed a response to the Department’s Preliminary Objections entitled
“Preliminary Objections to the Respondents[’] Preliminary Objections” (Response).
Notwithstanding, the Response does not reference any of the objections permitted
under Pennsylvania Rule of Civil Procedure No. 1028 (i.e., lack of jurisdiction, failure
to conform to law or rule of court, insufficient specificity, legal insufficiency, lack of


fee on or before June 21, 2017 or his complaint would be dismissed. By July 6, 2017 order, Lusik
was dismissed from this action because he failed to pay his filing fee. Brown v. Dep’t of Corr., 58
A.3d 118, 121 (Pa. Cmwlth. 2012) (“When a plaintiff’s in forma pauperis status is revoked, a court
may dismiss the plaintiff’s complaint if the plaintiff thereafter fails to pay the filing fees and costs
associated with the litigation.”).
         Edgar Murphy, Dewitt Clifford (Clifford), Louis Rigna (Rigna), Harry Zimmerman
(Zimmerman) and Zeke Coffee (Coffee) were not granted in forma pauperis status, and they have not
paid the Court’s filing fee. Accordingly, they did not perfect their individual actions.
         The Department expressed that “there is nothing in [its] inmate directory showing that
[Clifford, Rigna, Zimmerman and Coffee] ha[ve] ever been incarcerated with the Department.”
Department Prelim. Obj. at 2 n.1.
         4
           Section 5001 of the Prisons and Parole Code (Parole Code) defines a CCC as “[a] residential
program that is supervised and operated by the [D]epartment[,]” whereas a community corrections
facility is “[a] residential facility operated by a private contractor . . . .” 61 Pa. C.S. § 5001.
         5
           Although Petitioners do not use the phrase equal protection in the Petition, we can reasonably
interpret their claims as equal protection violation claims.
         6
           To date, this Court has not rendered a decision on the Class Certification Motion.
                                                   2
capacity to sue or nonjoinder/misjoinder, pendency of a prior action, failure to exhaust
statutory remedies, and/or available adequate legal remedy). Nor did Petitioners, in
their Response, specifically answer the Department’s Preliminary Objections. On July
12, 2017, this Court ordered this matter to be decided on briefs without oral argument.7
                The law is well-settled:

               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 [petition for review in the
               nature of a] 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 [petition for review in the
               nature of a] complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (emphasis added; citations
omitted). Thus, when deciding preliminary objections, our analysis is limited to only
the Petition’s contents.
               According to the Petition, Petitioners remain incarcerated in state
correctional institutions. However, this Court takes judicial notice of the Department’s
public records reflecting that since the time the Petition, and the Department’s


       7
          Due to Petitioners’ failure to timely respond to this Court’s order to file and serve their brief
in opposition to the Department’s Preliminary Objections, “the [C]ourt will proceed without
[P]etitioners’ brief.” November 28, 2017 Order.

                                                    3
Preliminary Objections and brief were filed, Hayes and Cupic have been released from
the Department’s custody.8 Because Petitioners have been released, their declaratory
judgment claim is moot. See Harris v. Rendell, 982 A.2d 1030 (Pa. Cmwlth. 2009),
aff’d, 992 A.2d 121 (Pa. 2010); see also Cobb v. Yost, 342 Fed.Appx. 858, 859 (3d Cir.
2009) (“[A]n inmate’s claim for . . . declaratory relief becomes moot on his release
from prison.”) (unreported); Sutton v. Rasheed, 323 F.3d 236 (3d Cir. 2003).

               Under the mootness doctrine, an actual case or controversy
               must exist at all stages of review, not just when the complaint
               is filed. Pub. Defender’s Office of Venango C[ty.] v.
               Venango C[ty.] Court of Common Pleas, . . . , 893 A.2d 127
               (Pa. 2006); Harris . . . . The existence of a case or
               controversy requires ‘a real and not a hypothetical legal
               controversy and one that affects another in a concrete manner
               so as to provide a factual predicate for reasoned adjudication.
               . . . ’ City of Phila[.] v. [Se. Pa. Transp. Auth.], 937 A.2d
               1176, 1179 (Pa. Cmwlth. 2007).

Finn v. Rendell, 990 A.2d 100, 104-05 (Pa. Cmwlth. 2010). This Court has ruled:
“Absent an ‘actual controversy,’ any opinion rendered would be advisory, and we do
not issue advisory opinions. Rendell v. P[a.] State Ethics Comm[’n], 938 A.2d 554,
559 (Pa. Cmwlth. 2007).” Buehl v. Beard, 54 A.3d 412, 419 (Pa. Cmwlth. 2012), aff’d,
91 A.3d 100 (Pa. 2014); see also Chruby v. Dep’t of Corr., 4 A.3d 764, 771 (Pa.
Cmwlth. 2010) (“This Court will not decide moot questions.”). Because it “appear[s]
with certainty that the law will not permit [Petitioners’] recovery,” Torres, 997 A.2d at
1245, we sustain the Department’s demurrer.9




       8
           Hayes was released on January 25, 2018. Cupic completed his sentence on February 16,
2018. See the Department’s Inmate Locator; see also https://www.vinelink.com/#/searchResults/1
(last visited February 26, 2018).
         9
           In light of this holding on Petitioners’ substantive claim, the Court need not address the
Department’s objection to Petitioners’ standing.
                                                 4
             Based on the foregoing, the Department’s Preliminary Objection in the
nature of a demurrer is sustained, and the Petition is dismissed. In light of this holding,
Petitioners’ Class Certification Motion is denied as moot.


                                        ___________________________
                                        ANNE E. COVEY, Judge




                                            5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Terry Allen Hayes,                       :
Similar Situated Inmates (Including      :
but not Limited to David Lusik,          :
Edgar Murphy, Gregory Cupic,             :
Dewitt Clifford, Louis Rigna,            :
Harry Zimmerman, Zeke Coffee),           :
                         Petitioners     :
                                         :
                   v.                    :
                                         :
Pennsylvania Department of               :
Corrections,                             :   No. 90 M.D. 2017
                       Respondent        :


                                ORDER

            AND NOW, this 26th day of March, 2018, the Pennsylvania
Department of Corrections’ preliminary objection in the nature of a demurrer
is SUSTAINED.
            Terry Allen Hayes’ (Hayes) pro se petition for review in the
nature of a complaint for declaratory judgment on behalf of himself and
similarly-situated inmates including Gregory Cupic (Cupic) (collectively,
Petitioners) is DISMISSED.
            Petitioners’ Motion for Certification of Class is DENIED as
moot.


                                       ___________________________
                                       ANNE E. COVEY, Judge
