        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Curtis,                          :
                                         :
                    Petitioner           :
                                         :
            v.                           : No. 160 M.D. 2015
                                         : Submitted: October 14, 2016
Mary Canino                              :
Hearing Examiner,                        :
                                         :
                    Respondent           :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                        FILED: March 6, 2017


            This case in our original jurisdiction arises out of a pro se petition for
review, in the form of an amended complaint, filed by William Curtis (Petitioner)
naming as respondent Mary Canino (Respondent), a hearing examiner for the
Department of Corrections (DOC).        In his amended complaint, Petitioner, an
inmate who currently and at all relevant times of this litigation has been
incarcerated at the State Correctional Institution (SCI) Graterford, alleges
violations of his due process rights and rights under DOC rules and regulations
during a misconduct hearing that took place at SCI Graterford on April 3, 2007.
Presently before this Court are the preliminary objections in the nature of demurrer
filed by Respondent. As described herein, we sustain Respondent’s preliminary
objections in part and overrule the preliminary objections in part.
             Petitioner initially filed a complaint in the Court of Common Pleas of
Montgomery County on April 30, 2009. Respondent filed preliminary objections
to the initial complaint on August 3, 2011, and Petitioner filed an amended
complaint on August 23, 2011. Respondent then filed preliminary objections on
December 12, 2011. Upon motion by Respondent, the Court of Common Pleas
ordered that this matter be transferred to this Court by an April 9, 2013 order. In
spite of this order, litigation continued in the Court of Common Pleas until January
22, 2015 when the Court of Common Pleas finally transmitted the certified record
to this Court.
             The following facts are taken from the amended complaint.          On
March 30, 2007, Petitioner submitted two witness request forms pursuant to DOC
policy DC-ADM 801 for a misconduct hearing to be held on April 3, 2007 before
Respondent as hearing examiner, but Respondent denied the requests. (Amended
Complaint ¶¶6, 10.) Respondent placed Petitioner under oath for his testimony at
the April 3, 2007 misconduct hearing despite the fact that Respondent’s
commission as a notary public in Pennsylvania had expired in 1998, nine years
prior to the hearing. (Id. ¶¶10, 12, 13, Exhibit 1.) Petitioner was found guilty of
the misconduct charges and given the sanction of 545 days of solitary confinement.
(Id. ¶11.)
             Petitioner alleges that Respondent’s actions violate DOC policy DC-
ADM 801, Respondent’s procedural rights under a DOC regulation, 37 Pa. Code §
93.10, relating to inmate discipline, DOC’s Code of Ethics, the Notary Public



                                          2
Law,1 the Due Process Clause of the 14th Amendment to the United States
Constitution, and the Crimes Code. (Amended Complaint ¶¶8, 9, 12-20 & Relief
Sought.) Petitioner seeks a declaration that witnesses at a misconduct hearing are
required to testify under oath and that Respondent lacked a valid notary
commission. (Id., Relief Sought(a), (d).) Petitioner further asserts that the act of
Respondent swearing him in for testimony without a valid commission violated his
due process rights and that the denial of the testimony of his witnesses without any
threat to institutional safety or correctional goals violated his due process rights.
(Id., Relief Sought(b), (c).) In addition, Petitioner seeks damages pursuant to
Section 8303 of the Judicial Code, 42 Pa. C.S. § 8303. (Amended Complaint,
Relief Sought(e).)
               In her preliminary objections to the amended complaint,2 Respondent
argues that, to the extent Petitioner seeks a declaration that the misconduct hearing
was invalid, such an order is not a final adjudication that is subject to this Court’s
judicial review. Respondent asserts that to the extent Petitioner seeks review of the
disciplinary proceeding under the guise of an original jurisdiction action, this Court

1
 Act of August 21, 1953, P.L. 1323, as amended, 57 P.S. §§ 147-169. In 2013, the General
Assembly passed legislation to adopt the Revised Uniform Law on Notarial Acts, 57 Pa. C.S. §§
301-331, that will replace the Notary Public Law 180 days after the Department of State
publishes notice of approval of basic and continuing education courses under Section 322 of
Revised Uniform Law on Notarial Acts, 57 Pa. C.S. § 322. See Act of October 9, 2013, P.L.
609, §§ 4, 5. The Department of State has not yet published this notice, and therefore the Notary
Public Law remains the operative law.
2
  In ruling on a preliminary objection in the nature of a demurrer, this Court must accept as true
all well-pled allegations of material fact, as well as all of the inferences reasonably deducible
from those facts. Armstrong County Memorial Hospital v. Department of Public Welfare, 67
A.3d 160, 170 (Pa. Cmwlth. 2013). We are not, however, required to accept as true legal
conclusions, unwarranted factual inferences, argumentative allegations or expressions of opinion.
Id. A demurrer is properly sustained where, based on the facts averred, the law says with
certainty that no recovery is possible. Edmunson v. Horn, 694 A.2d 1179, 1180 n.2 (Pa. Cmwlth.
1997).

                                                3
lacks subject matter over such claims.          Respondent objects to Petitioner’s
purported due process claims, arguing that DOC regulations do not provide him
with a protected liberty interest subject to a claim. Respondent further argues that
neither a purported lack of a notary commission by a hearing examiner or the
alleged denial of permission to call an inmate’s witnesses can serve as the basis for
a claim of a violation of due process at an inmate disciplinary proceeding.
             It is well-established that DOC decisions concerning misconduct
charges are beyond the scope of this Court’s appellate or original jurisdiction.
Bronson v. Central Office Review Committee, 721 A.2d 357, 358-59 (Pa. 1998);
Brown v. Department of Corrections, 913 A.2d 301, 305-06 (Pa. Cmwlth. 2006)
(per curiam); Edmunson v. Horn, 694 A.2d 1179, 1181 (Pa. Cmwlth. 1997). As
our Supreme Court explained in Bronson:

             [I]nternal prison operations are more properly left to the
             legislative and executive branches, and [] prison officials
             must be allowed to exercise their judgment in the
             execution of policies necessary to preserve order and
             maintain security free from judicial interference. ...
             Unlike the criminal trial and appeals process where a
             defendant is accorded the full spectrum of rights and
             protections guaranteed by the state and federal
             constitutions, and which is necessarily within the ambit
             of the judiciary, the procedures for pursuing inmate
             grievances and misconduct appeals are a matter of
             internal prison administration and the full panoply of
             rights due a defendant in a criminal prosecution is not
             necessary in a prison disciplinary proceeding...

721 A.2d at 358-59 (citations and quotation marks omitted); see also Brown, 913
A.2d at 305. Thus, to the extent Petitioner’s amended complaint operates as an
appeal of the misconduct hearing or an original jurisdiction challenge to the result
of that hearing, such a claim is not cognizable in this Court.

                                          4
            We next address the allegations in the amended complaint that
Respondent violated Petitioner’s due process rights by the way she conducted the
misconduct hearing. Petitioner sets forth three grounds for the claim that his due
process rights were violated in the amended complaint. First, Petitioner alleges
that the Department violated his due process rights because the April 3, 2007
hearing was contrary to the provisions set forth in DC-ADM 801 and DOC
regulation 37 Pa. Code § 93.10, which empowered DOC to adopt the written
procedures for inmate disciplinary proceedings set forth in DC-ADM 801.
However, as this Court has held, DOC regulations and guidelines, even when
written in mandatory language, do not create a liberty interest that can serve as a
basis of a due process claim. Luckett v. Blaine, 850 A.2d 811, 820 (Pa. Cmwlth.
2004). Therefore, any lack of adherence to DC-ADM 801 or 37 Pa. Code § 93.10
cannot form the basis of a due process claim.
            Petitioner also claims that Respondent violated his due process rights
by denying his request to call two witnesses without any valid reason. In Wolff v.
McDonnell, 418 U.S. 539 (1974), the United States Supreme Court explained that
while the procedural due process rights of an inmate in prison disciplinary
proceedings are limited, the inmate does retain certain protections. Id. at 561-72;
see also Melton v. Beard, 981 A.2d 361, 364 (Pa. Cmwlth. 2009). Among these
due process protections afforded to the inmate is the right to call witnesses and
present documentary evidence in his defense, when permitting him to do so would
not be unduly hazardous to institutional safety or correctional goals. Wolff, 418
U.S. at 566; Jerry v. Department of Corrections, 990 A.2d 112, 115 n.4 (Pa.
Cmwlth. 2010); Melton, 981 A.2d at 364. The Court explained in Wolff that the
inmate does not have an unrestricted right to call witnesses and that any analysis


                                         5
into whether due process was given to the inmate requires the reviewing court to
balance the rights of the inmate with the flexibility and discretion that is required
for prison officials to administer prison affairs “without being subject to unduly
crippling constitutional impediments.” 418 U.S. at 566-67.
             Petitioner alleges that he submitted the requests four days prior to the
April 3, 2007 hearing, that each of these witnesses would have given exculpatory
testimony and that the witnesses were confined on the upper section of the housing
unit directly adjacent to where the hearing was held. (Amended Complaint ¶¶6-7.)
In the amended complaint, Petitioner identifies one of the two witnesses by name
and alleges that this individual was his cellmate at the time that the incident that
was the subject of the misconduct hearing occurred and would have corroborated
Petitioner’s version of the incident. (Id. ¶9.) The amended complaint does not
contain any allegations concerning whether Respondent based the denials on
reasons related to institutional safety or correctional goals or whether Respondent
announced any reason for denying Petitioner’s witness requests. In the absence of
this information, we conclude that Petitioner has stated a claim that Respondent
violated his due process rights by denying his requests to call two witnesses at the
misconduct hearing. Cf. Melton, 981 A.2d at 365 & n.4 (dismissing inmates’ facial
due process challenge to the policy in DC-ADM 801 that allows a hearing
examiner to limit the evidence presented by inmates while noting that “an abuse of
the hearing examiner’s discretion [to grant or deny requests for witnesses] as
applied in a given situation could amount to a due process violation”). While we
recognize that DOC was entitled to broad discretion in prison administration
matters, in the absence of any indication that Respondent based the decision to



                                         6
deny the witnesses for reasons related to institutional security and correctional
goals we are constrained to overrule Respondent’s demurrer to this claim.
            The same fate, however, does not hold for Petitioner’s remaining
claim of a violation of his due process rights based on the fact that Respondent had
at one time been a notary but was not a notary at the time of the April 3, 2007
hearing. Petitioner alleged that Respondent held a commission as a notary public
in Pennsylvania from March 1994 through March 1998, but that commission
expired more than nine years prior to the April 3, 2007 hearing. (Amended
Complaint ¶13, Exhibit 1.) Petitioner alleges that the fact that Respondent swore
in Petitioner to testify at the misconduct hearing despite the fact that she had
allowed her commission to lapse and had ceased taking continuing notary
education courses, was an act of bad faith and dishonesty contrary to DOC’s Code
of Ethics and violated Petitioner’s right to fundamental fairness during the
misconduct hearing.     (Id. ¶¶14, 16, 19, 20.)     Petitioner further alleges that
Respondent acting as a hearing examiner without holding a valid commission was
a criminal act, contrary to Section 4913 of the Crimes Code, 18 Pa. C.S. § 4913,
which prohibits the impersonation of a notary public. (Amended Complaint ¶20.)
            The premise underlying Petitioner’s claim – that a DOC hearing
examiner must hold a notary commission in order to swear in witnesses – is
baseless. Petitioner cites no statute, regulation or rule that would require that a
DOC hearing examiner be a notary. Furthermore, we are aware of no authority
that would impose a notary requirement on DOC hearing examiners or any hearing
officer, referee, judge, magistrate, court officer or any other individual who may
administer an oath or affirmation to a witness, whether during a court or
administrative hearing. While Section 16(a) of the Notary Public Law provides


                                         7
that “[n]otaries shall have power to administer oaths and affirmations,” 57 P.S. §
162(a), nothing in the Notary Public Law states that only notaries shall have that
power.3 In fact, Section 517 of the Administrative Code of 1929 provides heads of
administrative departments, deputy heads of departments and members of boards
or commissions with the power to administer oaths or affirmations or to designate
any officer or employee of those agencies to administer an oath or affirmation.4
Accordingly, we sustain the demurrer to Petitioner’s due process claim related to
Respondent’s alleged failure to maintain her commission as a notary.
                 In addition to Petitioner’s claims seeking a declaration that his due
process rights were violated, he also requests an award of damages pursuant to
Section 8303 of the Judicial Code, which provides that a successful plaintiff in a
mandamus action is entitled to damages when the defendant failed to perform a
duty required by law.5 42 Pa. C.S. § 8303; Maurice A. Nernberg & Associates v.
Coyne, 920 A.2d 967, 970 (Pa. Cmwlth. 2007). While Petitioner entitled the
amended complaint “Amended Mandamus and Declaratory Judgment,” he does
not in any way seek to compel the performance of a mandatory duty or a
ministerial act, which is an essential aspect of a mandamus claim. 6 Kretchmar v.


3
  The Revised Uniform Law of Notarial Acts, which the General Assembly has enacted but
which has not yet gone into effect, see Footnote 1 above, similarly provides that a notary is
authorized to administer oaths or affirmations under the laws of the Commonwealth, 57 Pa. C.S.
§ 302, but does not restrict this authority to notaries.
4
    Act of April 9, 1929, P.L. 177, § 517, as amended, 71 P.S. § 197.
5
  Section 8303 provides that “[a] person who is adjudged in an action in the nature of mandamus
to have failed or refused without lawful justification to perform a duty required by law shall be
liable in damages to the person aggrieved by such failure or refusal.” 42 Pa. C.S. § 8303.
6
  Petitioner alleges that Respondent failed to perform a duty required by law by not keeping her
notary commission through the date of the misconduct hearing (Amended Complaint ¶14), but
the amended complaint does not seek to compel Respondent to perform a mandatory duty or
ministerial act.

                                                  8
Commonwealth, 831 A.2d 793, 797 (Pa. Cmwlth. 2003); Saunders v. Department
of Corrections, 749 A.2d 553, 556 (Pa. Cmwlth. 2000). Thus, Petitioner’s action
does not sound in mandamus and he would not be entitled to damages under
Section 8303.
            Accordingly, we overrule Respondent’s preliminary objections to the
extent they seek the dismissal of the due process claim based upon Respondent’s
denial of Petitioner’s request to call witnesses at the April 3, 2007 misconduct
hearing and sustain Respondent’s preliminary objections in all other respects.



                                    _______________ ______________________
                                    JAMES GARDNER COLINS, Senior Judge




                                         9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Curtis,                          :
                                         :
                    Petitioner           :
                                         :
            v.                           : No. 160 M.D. 2015
                                         :
Mary Canino                              :
Hearing Examiner,                        :
                                         :
                    Respondent           :


                                   ORDER

            AND NOW, this 6th day of March, 2017, the preliminary objections
filed by Respondent Mary Canino, Hearing Examiner are OVERRULED to the
extent that they seek dismissal of Petitioner William Curtis’s claim that his due
process rights were violated because Respondent denied his request to call two
witnesses at an April 3, 2007 misconduct hearing and SUSTAINED in all other
respects.
            Within thirty (30) days of this Order, Respondent shall file an answer
responding to the remaining paragraphs and claims of the amended complaint that
have not been dismissed by this Order.



                                   _______________ ______________________
                                   JAMES GARDNER COLINS, Senior Judge
