B. Key v. PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandon Key, :
Petitioner :
:
v. : No. 62 M.D. 2022
:
Pennsylvania Department :
of Corrections, :
Respondent : Submitted: March 17, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: May 8, 2023
Currently before us are Respondent Pennsylvania Department of Corrections’
(DOC) preliminary objections to Petitioner Brandon Key’s (Key) Petition for
Review (PFR). Through his PFR, which was filed in our original jurisdiction, Key,
who is currently incarcerated within our Commonwealth’s state prison system at the
State Correctional Institution at Somerset (SCI-Somerset), argues that certain
aspects of DOC’s procedures regarding the handling of mail sent to inmates are
unlawful and requests that we issue judgments in his favor that formally declare
them as such. After thorough review, we overrule DOC’s preliminary objections and
direct it to answer the PFR within 30 days.
I. Background
The relevant facts are as follows. DOC’s administrative regulation regarding
inmate correspondence has been codified as 37 Pa. Code § 93.2,1 in which the rules
1
This administrative regulation states, in relevant part:
(Footnote continued on next page…)
(a) Permitted correspondence. Inmates are permitted to correspond
with friends, family members, attorneys, news media, legitimate
business contacts and public officials. There may be no limit to the
number of correspondents.
(b) Restrictions. The following restrictions apply:
(1) Correspondence with inmates of other facilities, former
inmates, probationers or victims of the criminal acts of the
inmate will not be permitted except upon approval of the
facility manager or a designee.
(2) Correspondence containing threatening, obscene or
explicit sexual material, or nudity as well as correspondence
containing criminal solicitation or furthering a criminal plan
or institution misconduct is prohibited.
(3) An inmate shall refrain from writing to persons who have
stated in writing that they do not wish to receive mail from
the inmate. This will not be interpreted to restrict the right of
inmates to correspond with public officials with respect to
the official duties of the latter.
(4) Correspondence with prohibited parties through a third
party is also prohibited.
(5) Mail addressed to an inmate organization will not be
accepted unless the facility manager and [the] Secretary [of
DOC] have approved the organization and it is addressed to
the staff coordinator of the organization.
....
(f) Rejection of correspondence. An item of correspondence which
appears to violate subsection (b) may be rejected by facility
mailroom staff. The inmate and the sender, in cases when the inmate
is not the sender, will be notified when the letter is rejected. The
letter will be held for at least 7 business days after mailing of the
notification to permit reasonable opportunity to protest the decision.
If the letter is rejected, it will be returned to the sender.
(g) Incoming publications.
....
(Footnote continued on next page…)
2
are articulated regarding the handling of “incoming letters, photographs, etc., sent to
inmates from outside the . . . facilities [in which the inmates are incarcerated].” PFR
¶4; see 37 Pa. Code § 93.2. DOC has distilled its interpretation of 37 Pa. Code § 93.2(2) Publications shall be received directly from a publisher,
bookstore, book club, distributor or department store.
Newspapers shall be mailed directly from the publisher.
(3) Publications may not be received by an inmate if they:
(i) Contain information regarding the manufacture of
explosives, incendiaries, weapons, escape devices,
poisons, drugs or intoxicating beverages or other
contraband.
(ii) Advocate, assist or are evidence of criminal
activity, inmate misconduct, violence, insurrection
or guerrilla warfare against the government.
(iii) Threaten the security of a facility.
(iv) Contain nudity, obscene material or explicit
sexual materials as defined in subsection (i).
(v) Constitute a bulk mailing specifically intended
for the purpose of advertising or selling merchandise.
....
(5) A publication will not be prohibited solely on the basis
that the publication is critical of penal institutions in general,
of a particular facility, staff member, or official of [DOC],
or of a correctional or penological practice in this or any
other jurisdiction.
....
(8) Covers of hardbound publications may be damaged or
removed during inspection in the discretion of mailroom
staff.
....
37 Pa. Code § 93.2(a)-(b), (f), (g)(2)-(3), (5), and (8).
3
into a policy statement, titled DC-ADM 803.2 PFR ¶9. In 2018, DOC amended DC-
ADM 803 to add language mandating that inmates are barred from receiving any
original photographs that have been mailed to them, but will instead be provided
with DOC-generated copies of any such materials instead. Id. ¶10. DC-ADM 803
does not address whether those copies must contain a certain image quality or show
true fidelity to the original. Id.Key takes issue with two aspects of how DOC handles inmate mail, regarding
both the aforementioned copies and the DOC’s alleged failure to provide notice to
inmates when rejecting incoming mail. With regard to the former, Key has been
displeased for roughly five years with the quality of the copies provided to him by
DOC, especially as to what he asserts is their “exaggerated darkness.” Id. ¶11(emphasis in original). According to Key, “[s]ince 2018, all of the copied mail [he
has] received has been overly darkened. Original [versions] on white paper are made
into gray copies, and this is what [has been] given to [him].” Id. ¶17. These copies
are often so dark that the images they contain cannot be discerned. See id. ¶21. Key
is not the only inmate that has been so affected, as numerous other inmates at SCI-
Somerset have, in recent years, also received “photograph copies that have been
overly darkened[.]” Id. ¶20. Key sought to address this problem by filing an
administrative grievance at SCI-Somerset in July 2021, through which he
“complain[ed] about the overly darkened photograph copies[,]” but the grievance
was subsequently denied. Id. ¶¶12-13. He then administratively appealed this denial
to SCI-Somerset’s facility manager, who affirmed the initial decision, prompting
2
DEP’T OF CORR., DC-ADM 803 (2020), https://www.cor.pa.gov/About%20Us/
Documents/DOC%20Policies/803%20Inmate%20Mail%20and%20Incoming%20Publications
.pdf (last visited May 5, 2023).
4
Key to lodge a final appeal with DOC Secretary’s Office of Inmate Grievances and
Appeals, which upheld the initial decision as well. Id. ¶¶14-16, Exs. F-I.
As for the latter, the explanation for Key’s displeasure regarding DOC’s mail
rejection notification procedures is far more involved. In 2019, Key ordered books
and photo catalogs for delivery to him at SCI-Somerset, but inexplicably received
only the books, sans their dust jackets. Key v. Dep’t of Corr. (Pa. Cmwlth. No. 521
M.D. 2020, filed Aug. 3, 2021), slip op. at 1-2, 2021 WL 3354888, at *1 (Key I).3
Eventually, Key learned that staffers in SCI-Somerset’s mailroom had discarded the
dust jackets while processing the books and, in addition, had completely rejected the
catalogs because Key’s prisoner inmate number had not been properly listed on the
catalogs’ mailing labels. Id. This state of affairs prompted Key to file multiple inmate
grievances, including one “in which he argued that the mailroom staffers’ decision
to reject his catalogs without affording him notice or an opportunity to contest the
rejection violated 37 Pa. Code § 93.2[.]” Id., slip op. at 2, 2021 WL 3354888, at *1;
PFR ¶23.
These grievances were denied, whereupon Key filed a two-count action in our
original jurisdiction on September 4, 2020, in which he requested that
we order [DOC] to “amend DC-ADM 803 to give effect
to the notice-and-hearing language of 37 Pa. Code §
3“Generally, when considering preliminary objections in the nature of a demurrer, a court
may not take judicial notice of the records in another case. This general rule is subject to limited
exceptions. ‘It is appropriate for a court to take notice of a fact which the parties have admitted or
which is incorporated into the complaint by reference to a prior court action.’” Guarrasi v. Scott,
25 A.3d 394, 397 n.3 (Pa. Cmwlth. 2011) (quoting Styers v. Bedford Grange Mut. Ins. Co., 900
A.2d 895, 899 (Pa. Super. 2006)).
Here, Key discusses Key I at length in his PFR, and has even included as attachments part
of our opinion that disposed of that case, as well as a number of other evidentiary items that were
filed in that action. See PFR ¶¶22-27, 29, 31, 33; see generally id., Exs. (many of the PFR’s exhibits
lack individual identifying designations). Accordingly, we may take judicial notice of the record
from that prior matter.
5
93.2(f) . . . [and] conduct its inspections of inmates’
incoming hardbound publications within the bounds of 37
Pa. Code § 93.2(g) by ceasing confiscations of hardbound
publications’ paper dust jackets that do not contain
contraband.”
Key I, slip op. at 2-4, 2021 WL 3354888, at *1-*2 (quoting Key I Petition for Review,
Wherefore Clause). Key ordered additional books for delivery to him at SCI-
Somerset while that action was pending in our Court, but an unspecified number
were rejected by the facility’s mailroom staffers without them notifying Key about
the rejections. PFR ¶27. On August 3, 2021, we sustained DOC’s preliminary
objections in part to the Key I action, thereby dismissing Key’s suit in that matter
with prejudice in part and without prejudice in part. Key I, slip op. at 6-9, 2021 WL
3354888, at *2-*4. Then, on August 9, 2021, the United States Court of Appeals for
the Third Circuit (Third Circuit) issued its decision in Vogt v. Wetzel, in which it
held, as a matter of law, that DOC violates an inmate’s right to procedural due
process under the Fourteenth Amendment4 if it rejects incoming mail without
providing the inmate with adequate notice and an opportunity to challenge the
rejection. 8 F.4th 182, 186-87 (3d Cir. 2021); see PFR ¶¶18, 28. Shortly thereafter,
on August 16, 2021, Key filed an application for reargument or reconsideration
(Application) in Key I. PFR ¶27. In its response to this Application, DOC admitted
that it provides notice to inmates regarding rejected mail, which it defined as “mail
which contains improper nude photos or books advocating violence and insurrection
or a letter from another inmate[,]” but does not do so for refused mail, which it
defined as “mail that is returned to the sender, because the inmate name or number
is wrong, there is no return address, or staff cannot verify the vendor.” Id. ¶29;
DOC’s Key I Motion for Extension of Time ¶¶7-8. DOC also stated that “[c]hanges
4
U.S. CONST. amend. XIV.
6
are being made to . . . DC-ADM 803 in light of the [Third Circuit’s] Vogt decision.”
PFR ¶31; DOC’s Key I Motion for Extension of Time ¶9.5 Despite these statements,
though, DOC still persistently rejects all manner of incoming mail without notifying
affected inmates. PFR ¶¶32-33.
Due to his continuing concerns regarding DOC’s handling of incoming inmate
mail, Key elected to file the instant, two-count action in our Court on February 11,
2022. In Count I, Key asserts that DOC’s policy of providing inmates with poor
quality photograph copies constitutes an absurd and unreasonable interpretation of
37 Pa. Code § 93.2. Id. ¶¶4-21. In Count II, he maintains that DOC’s failure to
institute a policy of always notifying inmates about rejected incoming mail and
providing those inmates with an adequate opportunity to challenge such rejections
violates DOC’s administrative regulations, Pennsylvania law, and the Fourteenth
Amendment’s Due Process Clause. Id. ¶¶22-39. Accordingly, he requests that we
grant him declaratory judgments on both counts, as well as “any appropriate relief.”
Id., Wherefore Clause. In response, DOC filed the preliminary objections that are
the subject of this opinion.
II. Discussion
DOC presents three arguments for our consideration, which we summarize as
follows. First, DOC demurs to Count I, because “[DOC] policies do not create rights
in individuals and allegations concerning violations of policy do not state a valid
claim of relief” and “[t]he only allegation [Key] has made is that the quality of the
photograph[] [copies] is absurd and unreasonable and damages the photo images by
routinely making the photographs unviewable [sic].” DOC’s Br. at 8-9. Accordingly,
in DOC’s view, Key lacks the ability to state a viable claim against DOC pursuant
5
Our Court did not rule upon Key’s Application, rendering it denied by operation of law
on September 2, 2021.
7
to DC-ADM 803 about the allegedly poor quality of those copies. Id. Second,
regarding Count II, DOC asserts that Key lacks standing to make that claim, because
he did not aver in his PFR that DOC had rejected any of his incoming mail without
notifying him that it had done so. Id. at 9-11. Finally, DOC maintains that Count II
is moot, because one of its officials sent a memo to each of DOC’s “mailroom and
security officers” on March 31, 2022, in which the official stated that DOC staff
must notify an affected inmate “any time mail is addressed to an inmate, the inmate’s
identity is known, and the mail is being returned to sender, confiscated or otherwise
will not be delivered to the inmate by the mailroom.” Id. at 12-13. As such, DOC
contends that Count II should be dismissed, because that claim has been rendered
moot. Id. We address each of these arguments in turn.
In ruling on preliminary objections, we accept as true all
well-pleaded material allegations in the petition for review
and any reasonable inferences that we may draw from the
averments. Meier v. Maleski, . . . 648 A.2d 595, 600 ([Pa.
Cmwlth.] 1994). The Court, however, is not bound by
legal conclusions, unwarranted inferences from facts,
argumentative allegations, or expressions of opinion
encompassed in the petition for review. Id. We may
sustain preliminary objections only when the law makes
clear that the petitioner cannot succeed on his claim, and
we must resolve any doubt in favor of the petitioner. Id.We review preliminary objections in the nature of a
demurrer under the above guidelines and may sustain a
demurrer only when a petitioner has failed to state a claim
for which relief may be granted. Clark v. Beard, 918 A.2d
155, 158 (Pa. Cmwlth. 2007).
Armstrong Cnty. Mem’l Hosp. v. Dep’t of Pub. Welfare, 67 A.3d 160, 170 (Pa.
Cmwlth. 2013).
DOC, through its first argument, has completely misapprehended the nature
of the claim Key presents in Count I. Key does not insist that he has some sort of
8
actionable right under DC-ADM 803 itself to receive copies of mailed photographs
that are of a certain quality; rather, he states that, as “37 Pa. Code § 93.2[] allows
inmates to receive photographs through the mail . . . it is absurd and unreasonable .
. . for . . . DOC to interpret [that regulation] in a manner that permits [it] to employ
a copying process that does such damage to the photo images as to routinely make
them unviewable [sic].” PFR ¶21 (emphasis in original). In other words, Count I is
predicated upon Key’s contention that DOC has, in effect, contravened its own
administrative regulations by adhering to an apparently informal policy of providing
inmates with poor quality copies of such photographs. Therefore, as DOC has
attacked a claim that Key did not make, and has neglected to contest the one he did
make, we are constrained to overrule its demurrer to Count I.
Moving on, DOC fares no better regarding its assertion that Key lacks
standing to pursue the notice-related claim he makes in Count II.
“In seeking judicial resolution of a controversy, a party
must establish as a threshold matter that he has standing to
maintain the action.” Stilp v. Com., 940 A.2d 1227, 1233
(Pa. 2007). In Pennsylvania, the requirement of standing
is prudential in nature. City of Philadelphia v. Com., 838
A.2d 566, 577 (Pa. 2003). A challenge to the standing of a
party to maintain the action raises a question of law. In re
Milton Hershey Sch., 911 A.2d 1258 (Pa. 2006). As this
Court explained in William Penn Parking Garage v. City
of Pittsburgh, 346 A.2d 269, 280-81 (Pa. 1975) (plurality),
the core concept of standing is that a person who is not
adversely affected in any way by the matter he seeks to
challenge is not aggrieved thereby and has no standing to
obtain a judicial resolution of his challenge.
An individual can demonstrate that he has been aggrieved
if he can establish that he has a substantial, direct and
immediate interest in the outcome of the litigation. In re
Hickson, 821 A.2d 1238, 1243 (Pa. 2003). A party has a
substantial interest in the outcome of litigation if his
interest surpasses that “of all citizens in procuring
9
obedience to the law.” Id. at 1243. “The interest is direct
if there is a causal connection between the asserted
violation and the harm complained of; it is immediate if
that causal connection is not remote or speculative.” City
of Philadelphia, 838 A.2d at 577.
Fumo v. City of Philadelphia, 972 A.2d 487, 496 (Pa. 2009).
In this instance, Key’s standing to pursue Count II is readily apparent from
the face of the PFR. Specifically, he avers therein that “while the [Key I] proceedings
[were] ongoing, . . . DOC . . . rejected incoming books [he] had ordered[, but] did
not notify [him that it had done so]. From the book company, [he received] a copy
of the envelope [in which the books had been sent], which [bore] . . . DOC’s
markings.” PFR ¶27 (emphasis in original). Per Key’s own words, a third party or
parties mailed him items at his request, but that mail was rejected by DOC staffers,
who did not give Key a chance to contest the rejection, let alone inform Key that the
rejection had taken place. This undoubtedly gives Key an interest regarding Count
II that is substantial, direct, and immediate. Consequently, we overrule DOC’s
preliminary objection to Key’s standing.
Finally, DOC’s remaining argument, regarding the alleged mootness of Count
II, is procedurally improper.6 It is well settled that “a court reviewing preliminary
objections may only consider the facts pled in the [petition for review] and
documents or exhibits attached to it.” Keith v. Com. ex rel. Pa. Dep’t of Agric., 116
A.3d 756, 758 n.4 (Pa. Cmwlth. 2015) (citing Lawrence v. Dep’t of Corr., 941 A.2d
70, 71 (Pa. Cmwlth. 2007)). Therefore, given that DOC’s mootness assertion relies
entirely upon a memo that is not referenced in Key’s PFR or attached thereto, we
6
We note that mootness is not one of the permissible bases for lodging a preliminary
objection. See Pa. R.Civ.P. 1028(b). However, as Key did not file a preliminary objection of his
own regarding DOC’s improperly raised assertion of mootness, he has waived his ability to
challenge that procedural deficiency. Bradford Cnty. Citizens in Action v. Bd. of Comm’rs of
Bradford Cnty., 439 A.2d 1346, 1347 (Pa. Cmwlth. 1982).
10
may neither consider the memo, nor dismiss Count II on mootness grounds at this
point. Furthermore, to the extent that DOC’s mootness argument can be construed
as a demurrer to Count II, it is improper as well. “[W]hen considering a demurrer, a
court cannot consider matters collateral to the [petition for review], but must limit
itself to such matters as appear therein, and an effort to supply facts missing from
the objectionable pleading makes the preliminary objection in the nature of a
demurrer an impermissible ‘speaking demurrer.’” Mobley v. Coleman, 65 A.3d
1048, 1053 (Pa. Cmwlth. 2013). Accordingly, we overrule DOC’s preliminary
objection regarding the putative mootness of Count II.
III. Conclusion
In light of the foregoing analysis, we overrule DOC’s preliminary objections
to Key’s PFR and direct DOC to file an answer to the PFR within 30 days.
____________________________
ELLEN CEISLER, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandon Key, :
Petitioner :
:
v. : No. 62 M.D. 2022
:
Pennsylvania Department :
of Corrections, :
Respondent :
ORDER
AND NOW, this 8th day of May, 2023, it is hereby ORDERED that
Respondent Pennsylvania Department of Corrections’ (DOC) preliminary
objections to Petitioner Brandon Key’s Petition for Review (PFR) are
OVERRULED. It is FURTHER ORDERED that DOC shall file an answer to the
PFR within 30 days.
____________________________
ELLEN CEISLER, Judge