K. Small v. PA DOC, PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin Small, :
Petitioner :
:
v. :
:
Pennsylvania Department of :
Corrections, Pennsylvania Board :
of Probation and Parole,1 et al., : No. 406 M.D. 2020
Respondents : Submitted: November 19, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge2
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 14, 2022
Before this Court are the Pennsylvania Department of Corrections’
(DOC) and the Pennsylvania Parole Board’s (Board) (collectively, Respondents)
preliminary objections (Preliminary Objections) to Kevin Small’s (Petitioner)
Petition for Review (Petition) filed in this Court’s original jurisdiction, and
Petitioner’s Motion for Summary Judgment (Summary Judgment Motion).
1
The Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole
Board. See Sections 15, 16, and 16.1 of the Act of December 18, 2019, P.L. 776, No. 115 (effective
February 18, 2020); see also Sections 6101 and 6111(a) of the Prisons and Parole Code, 61 Pa.C.S.
§§ 6101, 6111(a).
2
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
Background3
Petitioner is currently an inmate at the Federal Bureau of Prisons
completing a 135-month sentence. During Petitioner’s federal trial, Petitioner’s
former attorney, Joseph M. Sembrot, Esquire (Counsel), advised Petitioner that the
United States (U.S.) government had entered numerous documents into discovery
reflecting that Petitioner had testified in front of a federal grand jury against several
DOC inmates regarding a credit card scam. Counsel gave Petitioner a two-page
document explaining the circumstances and naming the DOC inmates from whom
Petitioner should be kept separated because of his testimony. See Petition Exs. 1-2.
The document is also maintained in Petitioner’s official file, and in the files of the
individuals from whom Petitioner should be separated.
Petitioner claims he has never testified against anyone, let alone the
named individuals, pertaining to a credit card scam within DOC or anyplace else,
and the only way these entries could have been made a part of Petitioner’s permanent
file was by a DOC staff member. Because Petitioner’s and the other individuals’
files can be viewed by the inmates at any time, those individuals are also aware of
the allegations, but do not know that they are false. As a result, Petitioner’s family
members have received threatening correspondence by U.S. mail, with no return
address, on numerous occasions expressing the intentions of certain individuals to
bring harm to Petitioner when the opportunity presents itself. Because Petitioner
does not know the listed individuals, he assumes the only way they could have
obtained Petitioner’s family’s address is from a DOC employee. Accordingly,
Petitioner believes the threat was made by a DOC staff member.
Petitioner requested through Counsel to subpoena any and all records
that the Office of the U.S. Attorney (U.S. Attorney) may have in its possession that
3
The facts are as alleged in Petitioner’s Petition.
2
indicate he testified before a federal grand jury about a credit card scam, or any other
subject at any time. The U.S. Attorney’s Office responded that it could find no such
records. See Petition Exs. 3, 4.
Although Petitioner is currently confined in the federal prison system,
he will eventually return to DOC’s custody for completion of an anticipated parole
violation sentence, which will place Petitioner’s life in extreme danger because the
involved DOC staff and the inmates who have become aware of the false allegations
have ill feelings toward Petitioner.
When an individual is in fear for his life within DOC, he is usually
housed in the prison’s Restricted Housing Unit (RHU), and transferred to another
prison within DOC to neutralize any further threat. However, Petitioner declares
that is not an option for him. First, it is not clear which DOC staff member caused
the false entries to be placed in his official record and, even if the entries were to be
removed, the damage has already been done. Moreover, Petitioner should not be
expected to spend his time in an RHU, which is usually reserved for punitive
purposes, when DOC employees manufactured the circumstances. And, even with
placement in an RHU, Petitioner’s safety cannot be guaranteed when there is no way
of knowing the friends and/or family members of the named individuals.4 Finally,
Petitioner should not have to anticipate the possibility of bodily harm coming to him
because someone manufactured allegations. Petitioner believes the threat is genuine
because almost all of the listed individuals are convicted murderers.
Petitioner has written numerous letters to DOC’s Secretary, but he has
not received any response.
4
Additional entries have been entered into Petitioner’s file concerning inmate Eric
Rambert, who purportedly has a close relationship with one of the individuals from whom the
document states that Petitioner should be separated.
3
Facts
On July 2, 2020, Petitioner filed the Petition which he entitled “Motion
for Out-of-State Transfer or Safe Alternative,” Pet. at 1, seeking
an investigation be initiated to locate the individual(s)
responsible for these acts of what amounts to attempted
murder, and that [DOC] in conjunction with the Board . . .
make the necessary arraingments [sic] to place []
[P]etitioner in a facility outside of [DOC] prisons to serve
his sentence for violation of his parole that won’t be a
burden on his family as it pertains to visits[.]
Pet. at 5. Therein, Petitioner further “request[s] that [DOC] cut a check that is
payable to [] [P]etitioner in the amount of [o]ne [m]illion [(]$1,000,000.00[)] U.S.
[d]ollars to cover the cost of pain and suffering expirienced [sic] by [] [P]etitioner
upon discovering that individuals employed by [DOC] conspired to bring him bodily
harm.” Pet. at 6.
On September 9, 2020, Respondents filed the Preliminary Objections
to the Petition, alleging: (1) lack of proper service; (2) failure to state a cognizable
claim for numerous reasons; and (3) laches or equitable estoppel. By September 11,
2020 Order, this Court directed Petitioner to properly serve Respondents. After
Petitioner complied, by October 22, 2020 Order, this Court overruled Respondents’
Preliminary Objection alleging lack of proper service. On October 24, 2021,
Petitioner filed the Summary Judgment Motion. The Preliminary Objections and
Summary Judgment Motion are now ripe for disposition.
Discussion
Preliminarily, Petitioner framed the Petition as a transfer motion and
presented it in letter form, rather than in accordance with the Pennsylvania Rules of
Civil Procedure. See Pa.R.Civ.P. 1018.1-1022 (relating to pleading form).
However, the allegations appear to set forth a mandamus action requesting this Court
4
to compel DOC and the Board to place Petitioner in a non-DOC facility if and when
he is committed as a parole violator. Further, the Petition sets forth possible claims
against DOC for the actions of its staff that resulted in the need for the transfer, and
seeks monetary damages. This Court will review the Preliminary Objections filed
in response thereto accordingly.
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). “‘[C]ourts reviewing preliminary objections may not only
consider the facts pled in the [petition for review in the nature of a ]complaint, but
also any documents or exhibits attached to it.’ Allen v. Dep’t of Corr., 103 A.3d
365, 369 (Pa. Cmwlth. 2014).” Foxe v. Pa. Dep’t of Corr., 214 A.3d 308, 311 n.1
(Pa. Cmwlth. 2019).
Statute of Limitations
Respondents first argue that Petitioner’s claim is barred by the
applicable statute of limitations and/or by the doctrines of laches and/or equitable
5
estoppel.5 Specifically, Respondents contend that a one-year statute of limitations
applies to defamation actions, and a two-year statute of limitations applies to
negligence actions, and, since the Petition’s attachments reflect that Counsel made
Petitioner aware of the alleged false statements in DOC’s inmate records as early as
May 23, 2013, Petitioner’s claim is barred.6
Section 5523 of the Judicial Code provides: “The following actions and
proceedings must be commenced within one year: [] An action for libel, slander or
invasion of privacy.” 42 Pa.C.S. § 5523.
However, . . . [S]ection 5523 [of the Judicial Code] is a
statute of limitations, not a statute of repose, and is thus
subject to the discovery rule. The discovery rule tolls the
running of a statute of limitation until the plaintiff knows
or reasonably should know that an injury has occurred.
Altoona Area Sch. Dist. v. Campbell, 618 A.2d 1129, 1135 (Pa. Cmwlth. 1992).
Here, Petitioner became aware of the allegedly false allegations no later
than May 23, 2013, the date of Counsel’s letter advising Petitioner of the U.S.
Attorney’s response to his subpoena. See Petition Ex. 4. Because the Petition was
filed on July 2, 2020, more than seven years later, to the extent Petitioner is pursuing
a cause of action for libel or slander, Petitioner’s claim is barred by a one-year statute
of limitations.
5
Although the statute of limitations is an affirmative defense which is required to be raised
by new matter, courts will review it as a preliminary objection where there is no objection to the
preliminary objection. See Feldman v. Hoffman, 107 A.3d 821 (Pa. Cmwlth. 2014). Here,
Petitioner did not object to the form of Respondents’ pleading.
6
Petitioner rejoined by attaching 32 new exhibits to his brief. However, in reviewing
preliminary objections, this Court cannot consider exhibits attached to an inmate’s brief. See
Thomas v. Corbett, 90 A.3d 789 (Pa. Cmwlth. 2014). Petitioner also attempted to amend his
Petition by adding a respondent, i.e., “Tanya Brandt[,]” and a request for “$12,000,000.00” in
“punitive damages.” Petitioner’s Br. at 14.
6
Section 5524 of the Judicial Code mandates, in relevant part:
The following actions and proceedings must be
commenced within two years:
....
7. Any [] action or proceeding to recover damages for
injury to person or property which is founded on negligent,
intentional, or otherwise tortious conduct or any other
action or proceeding sounding in trespass, including deceit
or fraud, except an action or proceeding subject to another
limitation specified in this subchapter.
42 Pa.C.S. § 5524.
The Pennsylvania Superior Court has explained that this two-year
period begins to run
“as soon as the right to institute and maintain a suit arises;
lack of knowledge, mistake or misunderstanding do not
toll the running of the statute of limitations.” Pocono Int’l
Raceway v. Pocono Produce, . . . 468 A.2d 468, 471 ([Pa.]
1983). A person asserting a claim is under a duty to use
“all reasonable diligence to be properly informed of the
facts and circumstances upon which a potential right of
recovery is based and to institute suit within the prescribed
statutory period.” Id. In those circumstances where the
plaintiff cannot reasonably be expected to be aware of the
injury or of its cause, the discovery rule may apply to toll
the running of the statute of limitations. Id. The discovery
rule is a judicially created device which provides that the
limitations period begins to run when “the plaintiff knows
or reasonably should know: (1) that he has been injured,
and (2) that his injury has been caused by another party’s
conduct.” Redenz by Redenz v. Rosenberg, 520 A.2d 883,
885 [(Pa. Super. 1987)] . . . . The statute begins to run
when the injured party “possess[es] sufficient critical facts
to put him on notice that a wrong has been committed and
that he need investigate to determine whether he is entitled
to redress.” Brunea v. Gustin, 775 F. Supp. 844, 846
(W.D. Pa. 1991)[] [(]quoting Zeleznik v. United States,
770 F.2d 20, 23 (3[]d Cir. 1985)[)].
7
Haggart v. Cho, 703 A.2d 522, 526 (Pa. Super. 1997) (quoting A. McD. v. Rosen,
621 A.2d 128, 130 (Pa. Super. 1993)).
Here, Petitioner possessed sufficient critical facts to put him on notice
that a wrong had been committed no later than May 23, 2013, the date of Counsel’s
letter advising Petitioner of the U.S. Attorney’s response to his subpoena. See
Petition Ex. 4. Because the Petition was filed more than seven years later, on July
2, 2020, to the extent Petitioner is alleging a cause of action for negligent, intentional
or otherwise tortious conduct, Petitioner’s claim is barred by a two-year statute of
limitations.
Accordingly, Respondents’ Preliminary Objection alleging that, to the
extent Petitioner claims an action for libel, slander, negligent, intentional or other
tortious conduct, Petitioner’s claim is barred by the statute of limitations is
sustained.7
Mandamus
To the extent Petitioner is alleging a mandamus claim against DOC,
Respondents argue that Petitioner has not established a clear legal right to have the
statements in his prison record investigated or expunged, nor a corresponding duty
on the part of DOC to investigate or expunge those statements. The Petition reveals
that Petitioner is not seeking expungement of his prison record. Rather, Petitioner
is seeking an investigation into his allegedly fabricated prison record and a transfer
out of DOC custody.
This Court has explained:
The common law writ of mandamus lies to compel an
official’s performance of a ministerial act or a mandatory
7
Given this disposition, this Court does not reach the issue of whether the Petition is barred
by laches or equitable estoppel.
8
duty. “The burden of proof falls upon the party seeking
this extraordinary remedy to establish his legal right to
such relief.” Werner v. Zazyczny, . . . 681 A.2d 1331, 1335
([Pa.] 1996). Mandamus requires “[1] a clear legal right
in the plaintiff, [2] a corresponding duty in the defendant,
and [3] a lack of any other adequate and appropriate
remedy at law.” Crozer Chester Med[.] [Ctr.] v. Dep[’t]
of Lab[.] [&] Indus[.], Bureau of Workers’ Comp[.],
Health Care Serv[s.] Rev[.] Div[.], . . . 22 A.3d 189, 193
([Pa.] 2011) (citations omitted). Mandamus is not
available to establish legal rights but only to enforce rights
that have been established. Wilson v. [Pa.] [Bd.] of Prob[.]
[&] Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008).
Sinkiewicz v. Susquehanna Cnty. Bd. of Comm’rs, 131 A.3d 541, 546 (Pa. Cmwlth.
2015) (citation omitted).
Here, even accepting Petitioner’s allegations as true, as this Court must,
Petitioner has not established a clear legal right to an investigation and/or transfer,
nor a corresponding duty in DOC to investigate the matter or transfer him. “[A]
prisoner has no [clear] right to seek . . . []transfer even under a claim of a retaliatory
transfer, absent a violation of state law, which [Petitioner] has not alleged in this
case.” Yount v. Pa. Dep’t of Corr., 966 A.2d 1115, 1130 (Pa. 2009) (McCaffery, J.,
concurring). In addition, “[p]arole prior to the expiration of his maximum sentence
is an act of executive grace to which an inmate has no entitlement.” Evans v. Pa.
Bd. of Prob. & Parole, 820 A.2d 904, 913 (Pa. Cmwlth. 2003).
Further,
[Petitioner] has not pointed to any legal authority
indicating that [DOC] has a duty to conduct an
investigation at his request or to disclose the results of an
investigation to him, nor has our research discovered any
authority supporting his claim. A petition for mandamus
relief which does not allege that the defendant has a legal
duty which the defendant is required to perform, does not
state a claim upon which relief can be granted.
9
Bronson v. Investigations Div., Bureau of Special Servs., Dep’t of Corr., 650 A.2d
1160, 1163 (Pa. Cmwlth. 1994). Accordingly, because Petitioner has not alleged
that he has a clear legal right to relief or that DOC has a corresponding duty, this
Preliminary Objection is sustained.8
Summary Judgment Motion
After sustaining the above Preliminary Objections, there are no
remaining claims in the Petition.9 Thus, the Summary Judgment Motion is denied
as moot.
Conclusion
For all of the above reasons, the Respondents’ Preliminary Objections
are sustained, Petitioner’s Petition is dismissed, and Petitioner’s Summary Judgment
Motion is denied as moot.
_________________________________
ANNE E. COVEY, Judge
8
Notwithstanding, this Court strongly urges DOC to investigate Petitioner’s claims and to
address his security issues. Fairness and decency dictate that DOC and the Board constructively
and effectively respond to Petitioner’s concerns under the specific circumstances.
9
Thus, this Court does not reach the remaining Preliminary Objections.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin Small, :
Petitioner :
:
v. :
:
Pennsylvania Department of :
Corrections, Pennsylvania Board :
of Probation and Parole, et al., : No. 406 M.D. 2020
Respondents :
ORDER
AND NOW, this 14th day of March, 2022, the Pennsylvania Department
of Corrections’ and the Pennsylvania Parole Board’s preliminary objections to Kevin
Small’s (Petitioner) Petition for Review (Petition) are SUSTAINED, and
Petitioner’s Petition is DISMISSED. Petitioner’s Motion for Summary Judgment is
DENIED as moot.
_________________________________
ANNE E. COVEY, Judge