              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David D. Richardson,                    :
                         Appellant      :
                                        :
             v.                         :
                                        :
Commonwealth of Pennsylvania,           :
Department of Corrections,              :   No. 114 C.D. 2014
John E. Wetzel, Secretary               :   Submitted: June 6, 2014

BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge

OPINION BY
JUDGE COVEY                                 FILED: July 30, 2014
             David D. Richardson (Richardson), pro se, an inmate at State
Correctional Institution – Mercer (SCI-Mercer), appeals from the Mercer County
Common Pleas Court’s (trial court) December 27, 2013 order sustaining the
preliminary objections filed by the Department of Corrections and Secretary John E.
Wetzel (collectively, Department) and dismissing with prejudice Richardson’s
complaint challenging the constitutionality of Section 6602(f) of the statute
commonly known as the Prison Litigation Reform Act (PLRA), 42 Pa.C.S. § 6602(f).
The sole issue for this Court’s review is whether Richardson failed to state a claim
upon which relief could be granted. Upon review, we vacate the trial court’s order,
assume original jurisdiction, and after consideration of the Department’s preliminary
objections, we sustain the preliminary objections and dismiss Richardson’s
complaint.
                Richardson filed several legal actions which were dismissed under
Section 6602(f) of the PLRA,1 known as the “three strikes rule.” This Section
permits a court to revoke a prisoner’s in forma pauperis status:

                if the [prisoner] filed three or more civil actions involving
                prison conditions and these civil actions have been
                dismissed as frivolous or malicious or for failure to state a
                claim. When a [prisoner’s] in forma pauperis status is
                revoked, a court may dismiss the [prisoner’s] complaint if
                the [prisoner] thereafter fails to pay the filing fees and costs
                associated with the litigation.

Brown v. Dep’t of Corr., 58 A.3d 118, 121 (Pa. Cmwlth. 2012).
                On October 16, 2013, Richardson filed a complaint with the trial court
requesting the trial court to declare Section 6602(f) of the PLRA unconstitutional in
violation of the Due Process Clauses of the 14th Amendment to the United States




       1
           Section 6602(f) of the PLRA provides:

                Abusive litigation.--If the prisoner has previously filed prison
                conditions litigation and:

                (1) three or more of these prior civil actions have been dismissed
                pursuant to subsection (e)(2) [relating to false allegations of indigency
                or frivolous, malicious or invalid prison conditions litigation]; or

                (2) the prisoner has previously filed prison conditions litigation
                against a person named as a defendant in the instant action or a person
                serving in the same official capacity as a named defendant and a court
                made a finding that the prior action was filed in bad faith or that the
                prisoner knowingly presented false evidence or testimony at a hearing
                or trial; the court may dismiss the action. The court shall not,
                however, dismiss a request for preliminary injunctive relief or a
                temporary restraining order which makes a credible allegation that the
                prisoner is in imminent danger of serious bodily injury.

42 Pa.C.S. § 6602(f).

                                                   2
(U.S.) Constitution2 and Article 1, Section 26 of the Pennsylvania Constitution,3
and/or Article 3, Section 32 of the Pennsylvania Constitution (prohibiting special
legislation).4 On November 25, 2013, the Department filed preliminary objections to
Richardson’s complaint on the basis that it fails to state a claim upon which relief
may be granted. On December 27, 2013, the trial court, relying upon this Court’s
opinion in Jae v. Good, 946 A.2d 802 (Pa. Cmwlth. 2008), sustained the
Department’s preliminary objections and dismissed Richardson’s complaint with
prejudice. Richardson appealed to this Court.5


       2
           U.S. Const. amend. XIV, § 1. The 14th Amendment to the U.S. Constitution, states:

                All persons born or naturalized in the United States, and subject to the
                jurisdiction thereof, are citizens of the United States and of the State
                wherein they reside. No State shall make or enforce any law which
                shall abridge the privileges or immunities of citizens of the United
                States; nor shall any State deprive any person of life, liberty, or
                property, without due process of law; nor deny to any person within
                its jurisdiction the equal protection of the laws.
       3
           “Neither the Commonwealth nor any political subdivision thereof shall deny to any person
the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil
right.” Pa. Const. art. I, § 26.
         4
            Article 3, Section 32 of the Pennsylvania Constitution states in relevant part, “[t]he
General Assembly shall pass no local or special law in any case which has been or can be provided
for by general . . . .” Pa. Const. art III, § 32.
         5
           Pursuant to Section 761(a)(1) of the Judicial Code, “[t]he Commonwealth Court shall have
original jurisdiction of all civil actions or proceedings . . . [a]gainst the Commonwealth government
. . . .” 42 Pa.C.S. § 761(a)(1). Thus, the trial court did not have jurisdiction to decide the instant
matter since Section 761(a)(1) of the Judicial Code required that this action be brought in this
Court’s original jurisdiction. However, Richardson’s erroneous filing does not require dismissal of
his action. Section 5103(c) of the Judicial Code provides:

                If an appeal or other matter is taken to, brought in, or transferred to a
                division of a court to which such matter is not allocated by law, the
                court shall not quash such appeal or dismiss the matter, but shall
                transfer the record thereof to the proper division of the court, where
                the appeal or other matter shall be treated as if originally filed in the
                transferee division on the date first filed in a court or magisterial
                district.

                                                   3
               In its preliminary objections, the Department asserts that, as recognized
by the Jae Court, the right to access the courts is not absolute, and that denying a
prisoner the ability to proceed in forma pauperis does not deprive the prisoner of that
right. Richardson, however, argues that Section 6602(f) of the PLRA penalizes him
for exercising his constitutional rights to access the courts, in violation of the 14th
Amendment to the U.S. Constitution and Article 1, Section 26 of the Pennsylvania
Constitution. He further contends that Jae is inapplicable to his claim that Section
6602(f) of the PLRA violates his due process rights because Jae involved an equal
protection challenge to Section 6602(f) of the PLRA, rather than a due process
challenge. We disagree.
               Initially, we note that the law is well-established that “legislation will
not be declared unconstitutional unless it clearly, palpably and plainly violates the
Constitution, with any doubts being resolved in favor of constitutionality.”
Harristown Dev. Corp. v. Dep’t of Gen. Servs., 614 A.2d 1128, 1132 (Pa. 1992).
Thus, “[t]he party seeking to overcome the presumption of validity bears a heavy
burden of persuasion.” W. Mifflin Area Sch. Dist. v. Zahorchak, 4 A.3d 1042, 1048
(Pa. 2010).
               The Pennsylvania Supreme Court has stated:

               When confronted with a constitutional challenge premised
               upon substantive due process grounds, the threshold inquiry
               is whether the challenged statute purports to restrict or
               regulate a constitutionally protected right. If the statute

42 Pa.C.S. § 5103(c). As this matter was originally brought to this Court in its appellate
jurisdiction, pursuant to Section 5103(c) of the Judicial Code, we order the Commonwealth Court
Chief Clerk to transfer Richardson’s action from our appellate jurisdiction to our original
jurisdiction. Having assumed original jurisdiction, we examine the Department’s preliminary
objections and Richardson’s responses thereto. “In considering preliminary objections, we must
accept as true all well-pled allegations of material fact and all inferences reasonably deducible from
those allegations. We need not accept as true conclusions of law, unwarranted inferences from
facts, argumentative allegations or expressions of opinion.” Brendley v. Dep’t of Labor & Indus.,
926 A.2d 1276, 1280 (Pa. Cmwlth. 2007) (citation omitted).
                                                  4
             restricts a fundamental right, it must be examined under
             strict scrutiny. Pursuant to that analysis, legislation that
             significantly interferes with the exercise of a fundamental
             right will be upheld only if it is necessary to promote a
             compelling state interest and is narrowly tailored to
             effectuate that state purpose.

Khan v. State Bd. of Auctioneer Exam’rs, 842 A.2d 936, 947 (Pa. 2004) (citations
omitted). Where a fundamental right is not impaired, the statute is reviewed under
the rational basis test. See id.; see also Doe v. Miller, 886 A.2d 310 (Pa. Cmwlth.
2005), aff’d, 901 A.2d 495 (Pa. 2006).
             In Jae, this Court held that Section 6602(f) of the PLRA did not violate
the Equal Protection Clauses of the U.S. and Pennsylvania Constitutions. The Jae
Court explained:

             [T]he right of access to courts is not absolute. Further,
             requiring a prisoner to pay the filing fees that are imposed
             on all litigants in a civil case does not, standing alone,
             violate that prisoner’s right of meaningful access to the
             courts. Because there is no fundamental right to proceed in
             court in forma pauperis, we do not apply the strict scrutiny
             test but, rather, the rational basis test.

Jae, 946 A.2d at 808-09 (citation omitted). The Jae Court concluded that Section
6602(f) of the PLRA was rationally related to a legitimate state interest, stating:

             The ‘three strikes rule’ of Section 6602(f) of the PLRA does
             not prevent prisoners from filing any number of civil
             actions challenging prison conditions. It only restricts their
             ability to pursue such actions in forma pauperis. There is a
             legitimate governmental interest in deterring frivolous law
             suits, and Section 6602(f) advances that goal rationally by
             depriving an abusive litigator of the ability to proceed in
             forma pauperis. Further, the legislation balances the need
             to deter prisoners from filing frivolous litigation against the
             need to protect prisoners from physical harm.

Jae, 946 A.2d at 809 (footnote omitted).



                                            5
              This Court has explained that “the analysis of a substantive Due Process
claim is the same analysis as that performed under an Equal Protection claim.”
Zauflik v. Pennsbury Sch. Dist., 72 A.3d 773, 792 n.28 (Pa. Cmwlth. 2013); see also
Doe, 886 A.2d at 314. Thus, the Court’s analysis in Jae is clearly applicable to
Richardson’s due process claim.
              We also reject Richardson’s contention that Section 6602(f) of the
PLRA impairs his right to access the courts; more specifically, that Section 6602(f) of
the PLRA acts as an unconstitutional penalty imposing “strikes” because his prior
prison condition lawsuits were dismissed. He asserts that he is being penalized “for
doing what the law plainly allows him to do[.]” Richardson’s Reply Br. (filed
December 10, 2013) at 5.6 However, the law does not “plainly allow” a litigant to
prosecute a frivolous claim. See Jae, 946 A.2d at 809 n.14. Further, Section 6602(f)
of the PLRA does not violate Richardson’s right of meaningful access to the courts
since Richardson may pursue his claims, but he must pay the same filing fees as other
litigants. As this Court recognized in Jae, “there is no fundamental right to proceed
in court in forma pauperis . . . .”        Id. at 808. Thus, consistent with this Court’s
holding in Jae that Section 6602(f) of the PLRA does not violate the Equal Protection
Clauses of the U.S. and Pennsylvania Constitutions, we similarly conclude that it
does not violate substantive due process.
              Richardson further asserts that Section 6602(f) of the PLRA violates the
constitutional prohibition on special legislation because it creates a closed class with
one member – prisoners. We disagree.




       6
          Richardson relies upon U.S. v. Goodwin, 457 U.S. 368, 372 (1982) (“To punish a person
because he has done what the law plainly allows him to do is a due process violation ‘of the most
basic sort.’”).
                                               6
Our Pennsylvania Supreme Court has explained:

Pennsylvania’s proscription against local or special laws is
currently found in Article III, Section 32, and was first
adopted in the Pennsylvania Constitution of 1874. Like
many constitutional provisions, it was adopted in response
to immediate past abuses. The main purpose behind Article
III, Section 32 was to put an end to the flood of privileged
legislation for particular localities and for private purposes
which was common in 1873. Over the years, the underlying
purpose of Article III, Section 32 has been recognized to be
analogous to federal principles of equal protection under the
law, see U.S. Const. amend. XIV, § 1, and thus, special
legislation claims and equal protection claims have been
reviewed under the same jurisprudential rubric. The
common constitutional principle at the heart of the special
legislation proscription and the equal protection clause is
that like persons in like circumstances should be treated
similarly by the sovereign. Nonetheless, it is settled that
equal protection principles do not vitiate the Legislature’s
power to classify, which necessarily flows from its general
power to enact regulations for the health, safety, and
welfare of the community, nor do these principles prohibit
differential treatment of persons having different needs. As
this Court explained in Curtis [v. Kline, 666 A.2d 265 (Pa.
1995)]:
      The prohibition against treating people
      differently under the law does not preclude the
      Commonwealth from resorting to legislative
      classifications,     provided     that    those
      classifications are reasonable rather than
      arbitrary and bear a reasonable relationship to
      the object of the legislation. In other words, a
      classification must rest upon some ground of
      difference, which justifies the classification
      and has a fair and substantial relationship to
      the object of the legislation.
Curtis, 666 A.2d at 268 (citations omitted). Thus, there are
a legion of cases recognizing that a legislative classification
which appears to be facially discriminatory may
nevertheless be deemed lawful if the classification has a
rational relationship to a legitimate state purpose.
Furthermore . . . legislative classifications must be founded
                              7
               on real distinctions in the subjects classified and not on
               artificial or irrelevant ones used for the purpose of evading
               the constitutional prohibition. Finally, in analyzing a
               special legislation/equal protection challenge, a reviewing
               court is free to hypothesize reasons the General Assembly
               might have had for the classification of certain groups.

Pa. Tpk. Comm’n v. Commonwealth, 899 A.2d 1085, 1094-95 (Pa. 2006) (citations,
quotation marks and footnotes omitted); see also Robinson Twp. v. Commonwealth,
83 A.3d 901 (Pa. 2013). However, “a statute may be deemed per se unconstitutional
if, under the classification, the class consists of one member and is closed or
substantially closed to future membership.”7 Pa. Tpk. Comm’n., 899 A.2d at 1098.
               In Pennsylvania Turnpike Commission, the act at issue applied to a
single public employer – the Pennsylvania Turnpike Commission (Commission) - and
mandated collective bargaining with the Commission’s first-level supervisors. The
distinguishing factor in the act mandating the differing treatment was the fact that the
first-level supervisors worked for the Commission, as opposed to some other public
employer. The Court concluded that the act was special legislation because there
were “no significant distinctions between the Commission’s first-level supervisors
and other publicly employed first-level supervisors to justify such special differential
treatment.”     Id. at 1097.       The Court also determined that the act was per se
unconstitutional because “the General Assembly created a class with one member
[(the Commission)] and did so in a fashion that makes it impossible for another
member to join the class. The class will never open to more than one member
because the General Assembly defined ‘public employer’ therein as ‘The
Pennsylvania Turnpike Commission.’” Id. at 1098.


       7
          Richardson asserts only that Section 6602(f) of the PLRA is per se special legislation
because it creates a closed class of one. He does not argue in his brief that Section 6602(f) of the
PLRA is not based “upon some ground of difference, which justifies the classification and has a fair
and substantial relationship to the object of the legislation.” Curtis, 666 A.2d at 268. Therefore, we
shall only address Richardson’s per se special legislation argument.
                                                  8
             By arguing that the General Assembly impermissibly created a closed
class with one member – prisoners, Richardson misinterprets the prohibition on per
se special legislation. The constitutional prohibition against per se special legislation
does not proscribe the creation of a single classification, so long as the classification
does not consist of one class member, such as “prisoners incarcerated at SCI-
Mercer,” as differentiated from prisoners at all state correctional institutions. The
classification at issue here is in contrast to that in Pennsylvania Turnpike Commission
where the “public employer” classification was drafted to restrict class membership
only to the Turnpike Commission as distinct from all other Commonwealth agencies
and commissions. The classification before the Court in the instant matter applies to
“prisoner[s,]” defined in Section 6601 of the PLRA as “person[s] subject to
incarceration, detention or admission to prison.”         42 Pa.C.S. § 6601.         The
classification at issue does not apply only to a single prisoner or prisoners
incarcerated within a specified facility. Class membership consists of all “person[s]
subject to incarceration, detention or admission to prison.” Id. Accordingly, Section
6602(f) of the PLRA is not per se special legislation, and Richardson’s argument is
meritless.
             For all of the above reasons, the trial court’s order is vacated, original
jurisdiction is assumed, the Department’s preliminary objections are sustained and
Richardson’s complaint is dismissed.




                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David D. Richardson,                     :
                         Appellant       :
                                         :
            v.                           :
                                         :
Commonwealth of Pennsylvania,            :
Department of Corrections,               :   No. 114 C.D. 2014
John E. Wetzel, Secretary                :



                                     ORDER


            AND NOW, this 30th day of July, 2014, the Mercer County Common
Pleas Court’s December 27, 2013 order is vacated. The Commonwealth Court Chief
Clerk is ordered to transfer this matter to our original jurisdiction. The preliminary
objections of the Department of Corrections and Secretary John E. Wetzel are
sustained and David D. Richardson’s complaint is dismissed.


                                             ___________________________
                                             ANNE E. COVEY, Judge
