               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Dunbar,                             :
                            Petitioner      :
                                            :
                    v.                      :
                                            :
John E. Wetzel, Secretary for the Pa.       :
Dept. of Corrections,                       :   No. 484 M.D. 2018
                         Respondent         :   Submitted: March 15, 2019


OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                  FILED: July 10, 2019

             Before this Court are the Pennsylvania Department of Corrections’
(Department) Secretary John Wetzel’s (Wetzel) preliminary objections (Preliminary
Objections) to Gregory Dunbar’s (Dunbar) pro se petition for review in the nature of
a complaint for declaratory judgment and injunctive relief (Petition) filed in this
Court’s original jurisdiction. After review, we sustain the Preliminary Objections,
and dismiss the Petition.


                                           Facts
             On July 16, 2018, Dunbar filed the Petition seeking: (1) a declaratory
order directing that portions of the Department’s DC-ADM Policy 803 issued
September 16, 2015 (2015 DC-ADM 803)1 and Section 93.2 of the Department’s
Regulations2 prohibiting nudity and non-obscene sexually explicit material in prison
null and void based on fraud, that Wetzel exceeded his jurisdiction by extending the

      1
          The Department’s DC-ADM 803 issued October 3, 2018 superseded 2015 DC-ADM 803.
However, because the sections pertinent to this appeal remained unchanged in 2018 and the
allegations concerning 2015 DC-ADM 803 are intertwined with the allegations pertaining to the
Department’s Regulation, the Petition is not moot.
        2
          37 Pa. Code § 93.2 (relating to restrictions on inmate correspondence).
obscenity ban to include non-obscene material, nudity and sexually explicit material
even for inmates over 18 years of age, and that 2015 DC-ADM 803 and Section 93.2
of the Department’s Regulations violated Dunbar’s rights under the First and
Fourteenth Amendments to the United States Constitution; and (2) an injunction
removing all prohibitions against nudity and sexually explicit material from 2015
DC-ADM 803 and Section 93.2 of the Department’s Regulations. On August 7,
2018, Wetzel filed the Preliminary Objections in the nature of a demurrer.
               On September 17, 2018, Dunbar filed a Motion for Summary Relief
pursuant to Pennsylvania Rule of Appellate Procedure 1532(b)3 and Pennsylvania
Rule of Civil Procedure No. 1035.3(2)(d)4 (Motion for Summary Relief).                           On
September 24, 2018, Dunbar filed a Petition to Strike Unserved Preliminary
Objections.      On September 25, 2018, Dunbar filed a Motion for Preliminary
Injunction/Motion to Strike Preliminary Objections. On October 11, 2018, Wetzel
filed his brief in support of the Preliminary Objections. On October 16, 2018,
Dunbar filed Preliminary Objections/Petition to Strike Objections. By October 18,
2018 order, this Court: (1) overruled Dunbar’s Preliminary Objections/Petition to
Strike Objections; (2) dismissed Dunbar’s Motion for Summary Relief as moot; and
(3) dismissed Dunbar’s Motion for Preliminary Injunction/Motion to Strike
Preliminary Objections and Strike Unserved Preliminary Objections as moot.
               On November 6, 2018, Dunbar filed a Petition for Rule to Show Cause
why Respondent Should not be Held in Contempt of this Court’s September 11, 2018
Order (Petition for Rule to Show Cause). By November 14, 2018 order, this Court
denied Dunbar’s Petition for Rule to Show to Cause. On November 29, 2018,

       3
          Pennsylvania Rule of Appellate Procedure 1532(b) provides: “At any time after the filing
of a petition for review in an appellate or original jurisdiction matter the court may on application
enter judgment if the right of the applicant thereto is clear.” Pa.R.A.P. 1532(b).
        4
          Pennsylvania Rule of Civil Procedure No. 1035.3(2)(d) provides: “Summary judgment
may be entered against a party who does not respond.” Pa.R.C.P. No. 1035.3(2)(d).
                                                 2
Dunbar filed an Application to Strike Unserved Brief. By December 13, 2018 order,
this Court denied Dunbar’s Application to Strike Unserved Brief and directed Wetzel
to re-serve his brief and file a proof of service therefor. On December 19, 2018,
Wetzel filed his Proof of Service and Certificate of Service.
              On December 24, 2018, Dunbar filed a Motion for Sanctions Against
Attorney Dorian5 (Motion for Sanctions). On January 3, 2019, Wetzel filed an
Answer thereto. By January 9, 2019 order, this Court denied Dunbar’s Motion for
Sanctions. On January 25, 2019, Dunbar filed a Motion for Reconsideration of the
Order Denying Sanctions (Motion for Reconsideration). By February 7, 2019 order,
this Court denied Dunbar’s Motion for Reconsideration. On February 21, 2019,
Dunbar filed his brief in opposition to the Preliminary Objections.6


                                           Discussion
              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

       5
         Raymond W. Dorian, Esquire, is the Department’s Assistant Counsel.
       6
         Rather than respond to Wetzel’s brief, Dunbar sets forth procedural reasons for overruling
the Preliminary Objections. See Dunbar Br.


                                                3
             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). “[C]ourts reviewing preliminary objections may not only consider the facts
pled in the complaint, but also any documents or exhibits attached to it.” Allen v.
Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).              Thus, when deciding
preliminary objections, this Court’s analysis is limited to the Petition’s contents and
the exhibits attached thereto.
             Wetzel first argues that the Petition should be dismissed because
Dunbar’s civil rights claim is barred by the applicable statute of limitations.
Specifically, Wetzel contends, inter alia, that under Section 5524(2) of the Judicial
Code, 42 Pa.C.S. § 5524(2), Dunbar had only two years to file his action. Dunbar
rejoins that Wetzel waived the statute of limitations defense by not raising it in new
matter.
             Pennsylvania Rule of Civil Procedure No. 1030(a) provides, in relevant
part: “all affirmative defenses including but not limited to the defense[] of . . . statute
of limitations . . . shall be pleaded in a responsive pleading under the heading ‘New
Matter’.” Pa.R.C.P. No. 1030(a). However, the law is clear that

             [w]here a party erroneously asserts substantive defenses in
             preliminary objections rather than to [sic] raise these
             defenses by answer or in new matter, the failure of the
             opposing party to file preliminary objections to the
             defective preliminary objections, raising the erroneous
             defenses, waives the procedural defect and allows the []
             court to rule on the preliminary objections.

Borough of Nanty Glo v. Fatula, 826 A.2d 58, 64 (Pa. Cmwlth. 2003) (quoting
Preiser v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992)).
             Here, the record reveals that Dunbar did file preliminary objections to
Wetzel’s preliminary objections raising the fact that Wetzel improperly asserted the
                                            4
statute of limitations defense. See Dunbar’s Preliminary Objections/Petition to Strike
Objections at 3 ¶8. Therefore, Dunbar has not waived this procedural defect and can
raise it now. Accordingly, this Court cannot address Wetzel’s statute of limitations
defense at this time.
              Wetzel next argues that the Petition should be dismissed because 2015
DC-ADM 803 was valid and properly promulgated pursuant to what is frequently
referred to as the Commonwealth Documents Law7 and the Regulatory Review Act.8
Dunbar alleges in his Petition that Wetzel exceeded his authority under Section 506
of the Administrative Code of 1929 (Administrative Code),9 because 2015 DC-ADM
803 is inconsistent with the law. Specifically, Dunbar claims that 2015 DC-ADM
803 is inconsistent with Section 93.2 of the Department’s Regulations, the
Commonwealth Documents Law and Section 5903 of the Crimes Code.10

              At the outset, we note that the Commonwealth Documents
              Law, [and] the Regulatory Review Act . . . establish a
              mandatory, formal rulemaking procedure that is, with rare
              exceptions, required for the promulgation of all regulations.
              Under the Commonwealth Documents Law, an agency must
              give notice to the public of its proposed rulemaking and an
              opportunity for the public to comment.            Under the
              Regulatory Review Act, the agency must also submit its
              proposed regulation to [the Independent Regulatory Review
              Commission        (]IRRC[)]      for    public     comment,
              recommendation from IRRC, and, ultimately, IRRC’s
              approval or denial of a final-form regulation.




       7
         Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602. “Agency ‘regulations’
must be promulgated pursuant to the notice and comment procedures contained in the
Commonwealth Documents Law in order to have the force and effect of law. However, an agency
may also set forth guidelines in ‘statements of policy.’” Mulberry Square Elder Care & Rehab. Ctr.
v. Dep’t of Human Servs., 191 A.3d 952, 963 (Pa. Cmwlth. 2018) (footnotes and citation omitted).
       8
         Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§ 745.1-745.15.
       9
         Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 186.
       10
          18 Pa.C.S. § 5903 (relating to obscene and other sexual materials and performances).
                                                5
Naylor v. Dep’t of Pub. Welfare, 54 A.3d 429, 433-34 (Pa. Cmwlth. 2012), aff’d, 76
A.3d 536 (Pa. 2013) (footnote and citations omitted).
            Dunbar avers in the Petition that 2015 DC-ADM 803 and Section 93.2 of
the Department’s Regulations are contrary to a prior injunction issued by this Court
in Vance v. Beard (Pa. Cmwlth. No. 592 M.D. 2006, filed December 15, 2009), see
Petition, Ex. 1, and that former Deputy Chief Counsel Randall Sears (Sears)
committed fraud during the legislative process by not raising the Vance case in the
promulgation of Section 93.2 of the Department’s Regulations. See Petition ¶¶14-15.
            Dunbar is correct that the Vance Court enjoined the Department from
enforcing DC-ADM 803 amended April 28, 2008 (2008 DC-ADM 803) to the extent
that its provisions differed from a former version of Section 93.2 of the Department’s
Regulations. However, the reason therefor was that 2008 DC-ADM 803 conflicted
with Section 93.2 of the Department’s Regulations in that, pursuant to the Regulation,
inmates had the right to incoming publications containing nudity unless they included
obscenity as defined in Section 5903 of the Crimes Code. By issuing 2008 DC-ADM
803, the Department effectively amended Section 93.2 of the Department’s
Regulations without the “mandatory, formal rulemaking procedure.” Naylor, 54 A.3d
at 433. Thus, the Vance Court ruled 2008 DC-ADM 803 invalid.
            However, subsequent to Vance, the Department amended Section 93.2 of
the Department’s Regulations to correspond with 2008 DC-ADM 803. In doing so,
as evidenced by the Petition’s exhibit, the Department complied with both the
Commonwealth Documents Law and the Regulatory Review Act. See Petition Ex. 2.
(Documents filed with the Legislative Reference Bureau pursuant to the
Commonwealth Documents Law, and the Regulatory Analysis Form filed with the
IRRC). Consequently, properly promulgated Section 93.2 of the Department’s
Regulations presently precludes inmates from receiving publications that “[c]ontain


                                          6
nudity, obscene material or explicit sexual materials as defined in subsection (i).”11
37 Pa. Code § 93.2(g)(3)(iv). Accordingly, neither 2015 DC-ADM 803 nor Section
93.2 of the Department’s Regulations are contrary to Vance.12
                    Relative to Dunbar’s assertion that 2015 DC-ADM 803 is invalid
because it conflicts with Section 5903 of the Crimes Code, this Court rejected that
argument in Key v. Department of Corrections, 185 A.3d 421 (Pa. Cmwlth. 2018),
wherein this Court explained:

                    ‘Given that inmates’ constitutionally[]protected rights may
                    be subject to greater restrictions than those of the general
                    public, we agree . . . 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 [v. Beard, 974 A.2d 479 (Pa. 2009)]; Payne [v.
                    Dep’t of Corr., 871 A.2d 795 (Pa. 2005)].’[] [Smith v.
                    Beard, 26 A.3d 551, 561 (Pa. Cmwlth. 2011)]. . . .
                    Under Section 901-B of the Administrative Code,[13] [the
                    Department] 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, [the Department] . . .
                       shall also have all the powers and duties . . . related to
                       the administration, management and supervision of
                       penal and correctional facilities, programs and
                       services.
                    71 P.S. § 310-1. Section 506 [of the Administrative Code]
                    provides that: ‘The heads of all administrative departments .

           11
                Subsection (i) defines explicit sexual material, nudity, and obscene. See 37 Pa. Code §
93.2(i).
           12
           Given this determination, Dunbar cannot establish a clear legal right to relief for his claim
that fraud was committed in the promulgation of Section 93.2 of the Department’s Regulations for
Sears’ failure to raise Vance during the legislative process.
        13
           Added by Section 4 of the Act of December 30, 1984, P.L. 1299, 71 P.S. § 310-1.
                                                     7
             . . 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 [the Department] to
             enact rules and regulations for the management and
             supervision of penal correctional facilities. In sum, we
             cannot conclude [2015 DC-ADM] 803 is materially
             inconsistent with or in violation of the enabling statute,
             Section 506 of the Administrative Code.

Key, 185 A.3d at 427-28. Accordingly, because Section 93.2 of the Department’s
Regulations was properly promulgated pursuant to the Commonwealth Documents
Law and the Regulatory Review Act, and 2015 DC-ADM 803 is valid, this
Preliminary Objection is sustained.
             Lastly, Wetzel argues that the Petition should be dismissed because
Dunbar has failed to state a claim for injunctive relief. Specifically, Wetzel contends
that Dunbar has not alleged that he will suffer irreparable harm if the requested relief
is denied.

             In order to establish a claim for a permanent injunction, a
             party must establish its clear right to relief. Buffalo Twp. v.
             Jones, . . . 813 A.2d 659 ([Pa.] 2002). However, unlike a
             claim for a preliminary injunction, the party need not
             establish either irreparable harm or immediate relief and a
             court ‘may issue a final injunction if such relief is necessary
             to prevent a legal wrong for which there is no adequate
             redress at law.’ Id. at 663. A party must also show
             greater injury will result from refusing rather than
             granting the relief requested.

Berwick Twp. v. O’Brien, 148 A.3d 872, 891 (Pa. Cmwlth. 2016) (emphasis added).
             Here, Dunbar has not alleged, let alone shown, that a greater injury will
result from refusing rather than granting his requested relief. In fact, Dunbar has not
alleged anywhere in the Petition that he has suffered an injury. Although Dunbar
avers that 2015 DC-ADM 803 “violated his federal [First A]mendment right and


                                           8
[Fourteenth Amendment] due process rights[,]”14 Petition ¶20, the Petition contains
no factual allegations to support such a claim. Because Dunbar has failed to “show
greater injury will result from refusing rather than granting the relief requested[,]” he
cannot establish a claim for injunctive relief.              Berwick Twp., 148 A.3d at 891.
Accordingly, this Preliminary Objection is sustained.


                                            Conclusion
               Because Section 93.2 of the Department’s Regulations was properly
promulgated pursuant to the Commonwealth Documents Law and the Regulatory
Review Act, 2015 DC-ADM 803 is valid, and Dunbar has failed to state a claim for
injunctive relief, he cannot establish a clear legal right to relief.15
               For all of the above reasons, Wetzel’s Preliminary Objections are
sustained and Dunbar’s Petition is dismissed.




       14
         The alleged rights violations are the closest resemblance to an injury in the entire Petition.
       15
         Dunbar’s only remaining allegation is an isolated statement alleging that 2015 DC-ADM
803 and Section 93.2 of the Department’s Regulations violated his civil rights with no averments to
support the claim. See Petition ¶20. “Pennsylvania courts repeatedly recognize that [the
Department’s] Policy pertaining to incoming publications containing obscenity passes constitutional
muster and is related to the legitimate penological objectives of security and rehabilitation.” Key,
185 A.3d at 424. Thus, Dunbar’s unsupported claim is insufficient to permit the Petition to go
forward.
                                                  9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Dunbar,                          :
                         Petitioner      :
                                         :
                   v.                    :
                                         :
John E. Wetzel, Secretary for the Pa.    :
Dept. of Corrections,                    :   No. 484 M.D. 2018
                         Respondent      :

PER CURIAM

                                        ORDER

            AND NOW, this 10th day of July, 2019, the Pennsylvania Department of
Corrections’ Secretary John Wetzel’s preliminary objections to Gregory Dunbar’s pro
se petition for review in the nature of a complaint for declaratory judgment and
injunctive relief (Petition) are SUSTAINED and the Petition is DISMISSED.
