G. Dunbar v. Sup. Houser, Capt. Bookheimer

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory Dunbar, :
Appellant :
: No. 1305 C.D. 2023
v. :
: Submitted: October 8, 2024
Superintendent Houser, :
Capt. Bookheimer :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE DUMAS FILED: November 19, 2024
Gregory Dunbar (Appellant) appeals from the order of the Court of
Common Pleas of Centre County (trial court) entered October 3, 2023, which
sustained preliminary objections filed by Superintendent Houser and Captain
Bookheimer of the Department of Corrections (DOC) (collectively, DOC Officials),
overruled Appellant’s preliminary objection to DOC Officials’ preliminary
objections, and dismissed Appellant’s complaint. Upon review, we affirm.
I. BACKGROUND1
Appellant is an inmate at State Correctional Institution at Benner (SCI-
Benner). He alleges that various Bucks County officials have colluded to forge his
entire criminal record to conceal his kidnapping and incarceration. Appellant drafted
private criminal complaints against these officials, but DOC Officials have refused
to process them. Appellant alleged that he sent letters to both the Director of
Inspector Generals and Governor’s General Counsel who then directed DOC
Officials to investigate Appellant’s complaint. According to Appellant, DOC
Officials’ failure to investigate his private complaints constitutes a violation of
policy DC-ADM 004.2
Appellant commenced this action in mandamus, seeking to compel
DOC Officials to comply with DC-ADM 004 and “process” his criminal complaints.
In response, DOC Officials filed preliminary objections in the nature of a demurrer,
pleading their lack of personal involvement in the matter and Appellant’s failure to
state a claim.
Appellant then filed preliminary objections to DOC Officials’
preliminary objections, pleading DOC Officials’ failure to comply with
Pennsylvania Rule of Civil Procedure 1023.1(b) and a conflict of interest with
former attorney general Josh Shapiro. Pl.’s Prelim Objs., 6/14/23, ¶¶ 1-4.
1
We derive this background from the pleadings. We glean the relevant facts from Appellant’s
complaint and attached exhibits. See Compl., 3/10/23; see also Foxe v. Pa. Dep’t of Corr., 214
A.3d 308, 310 n.1 (Pa. Cmwlth. 2019) (observing that courts reviewing preliminary objections
may not only consider the facts pleaded in the petition for review, but also any documents or
exhibits attached to it).
2
DC-ADM 004 states, in relevant part, that “[i]t is the policy of the Department to ensure that
all alleged criminal acts by inmates and employees are processed, investigated, and disposed of,
by prosecution and/or administrative action.” DC-ADM 004 at III; see also id. at 1-1 (“Criminal
Complaints by Inmates”).
2
Additionally, Appellant filed “new matter” asserting “the affirmative
defense/offense of ‘res judicata’” based on “successfully litigat[ing] pro se”
Commonwealth ex rel. Vance v. Beard, (Pa. Cmwlth., No. 592 M.D. 2006, filed May
12, 2008). Id., ¶¶ 9-11.
Upon review, the trial court sustained DOC Officials’ preliminary
objections, overruled Appellant’s preliminary objections, and dismissed Appellant’s
complaint. Thereafter, Appellant filed a motion to strike, which the trial court
construed as a motion for reconsideration and denied. Appellant timely appealed
and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a
responsive opinion.
II. ISSUES
Appellant raises three issues on appeal.3 First, Appellant asserts that
the trial court erred in concluding that he failed to state a claim for mandamus relief.
See Appellant’s Br. at 4-8. Second, Appellant asserts that the trial court erred by
failing to address his new matter for “offensive collateral estoppel.” See id. Third,
Appellant asserts that the trial court erred by failing to rule on his motion to strike.
See id. In response, DOC Officials maintain that Appellant’s arguments are waived,
frivolous, and otherwise devoid of merit. See Appellees’ Br. at 12-21.
3
In the “Statement of Questions” section of his brief, Appellant asserts five issues for this
Court to address. See Appellant’s Br. at 4. However, as DOC Officials point out, only three of
those issues were preserved. See Appellant’s 1925(b) Statement, 11/22/23. An issue not raised in
a 1925(b) statement ordered by the trial court will be deemed waived. Morley v. City of Phila.
Licenses & Inspections Unit, 844 A.2d 637, 639 (Pa. Cmwlth. 2004) (per curiam). Thus, we only
address those issues preserved by Appellant.
Additionally, Appellant’s remaining issues lack development or proper citation to legal
authority, and this has hampered our review. See Pa.R.A.P. 2119. Nevertheless, mindful of
Appellant’s pro se status, the Court shall endeavor to address his claims. See Bowen v.
Unemployment Comp. Bd. of Rev., 311 A.3d 641, 646 (Pa. Cmwlth. 2024).
3
III. DISCUSSION4
Appellant first asserts that he has the right to choose the remedy most
appropriate to resolve a breach of duty. See Appellant’s Br. at 7-8. According to
Appellant, the appropriate remedy is an action in mandamus. See id. (baldly citing
Mueller v. Pa. State Police Headquarters, 532 A.2d 900 (Pa. Cmwlth. 1987)).5
The common law writ of mandamus is an extraordinary remedy that
seeks to compel a public official to perform a ministerial act or mandatory duty.
Baron v. Dep’t of Hum. Servs., 169 A.3d 1268, 1272 (Pa. Cmwlth. 2017) (en banc),
aff’d, 194 A.3d 563 (Pa. 2018). Accordingly, a mandamus action is not the proper
vehicle to establish legal rights; it “is only appropriately used to enforce those rights
which have already been established.” Weaver v. Dep’t of Corr., 720 A.2d 178, 182
n.9 (Pa. Cmwlth. 1998). To state a claim for mandamus, a plaintiff must establish
the following three elements: (1) a clear legal right to relief in the plaintiff; (2) a
corresponding duty in the defendant; and (3) the lack of any other adequate and
appropriate remedy. Baron, 169 A.3d at 1272.
Generally, DOC policies do not create legal rights enforceable through
mandamus. See Shore v. Dep’t of Corr., 168 A.3d 374, 386 (Pa. Cmwlth. 2017).
This is particularly so, when the policy contains “disclaimer language” that it does
4
Our standard of review is de novo, and our scope of review is plenary. Raynor v.
D’Annunzio, 243 A.3d 41, 52 (Pa. 2020). A demurrer is a preliminary objection to the legal
sufficiency of a pleading and raises questions of law. Id. “[W]e must therefore accept as true all
well-pleaded, material, and relevant facts alleged in the complaint and every inference that is fairly
deducible from those facts.” Id. (cleaned up). A preliminary objection in the nature of a demurrer
should be sustained only when there is no doubt that the plaintiff has failed to state a claim for
which relief may be granted. Id.5
In Mueller v. Pennsylvania. State Police Headquarters, 532 A.2d 900 (Pa. Cmwlth. 1987),
this Court sustained a demurrer and dismissed an action in mandamus that invoked a department
policy directing inmates be informed of their right to make a criminal complaint. Id. at 903-04.
While relevant, this case does not support Appellant’s claim.
4
not create any enforceable rights. See Weaver v. Dep’t of Corr., 829 A.2d 750, 753
(Pa. Cmwlth. 2003).
Here, Appellant sought an order to compel DOC Officials to comply
with DC-ADM 004. As explained by the trial court, see 1925(b) Op., 1/2/24, at 2-
3, such a policy does not create rights enforceable through mandamus. See Shore,
168 A.3d at 386. Further, the policy contains “disclaimer language” and does not
require any DOC employees to file a criminal complaint with an issuing authority.
See DC-ADM 004 at VI (“This policy does not create rights in any person . . . .”);
Mueller, 532 A.2d at 904 (observing that department policy does not require its
employees to initiate or file a criminal complaint). Accordingly, the trial court
properly concluded that DC-ADM 004 did not create a clear legal right to relief in
Appellant. See Weaver, 829 A.2d at 753.
Next, Appellant asserts that the trial court failed to address his claim of
offensive collateral estoppel set forth in his new matter. See Appellant’s Br. at 4, 8.
According to Appellant, DOC Officials’ preliminary objections are collaterally
estopped. See id. at 7 (citing Commonwealth ex rel. Vance v. Beard (Pa. Cmwlth.,
No. 592 M.D. 2006, filed May 12, 2008)) (Vance). This claim is wholly without
merit.
The doctrine of collateral estoppel works to preclude relitigation of an
issue of fact or law, provided (1) the issue is identical to one decided in a prior case;
(2) there was a final adjudication on the merits; (3) there is privity among the relevant
parties; (4) there was a full and fair opportunity to address the issue in the prior
proceeding; and (5) the prior determination was essential to the judgment. Blanda
v. Somerset Cnty. Bd. of Assessment Appeals, 313 A.3d 345, 353 (Pa. Cmwlth.
2024). “Collateral estoppel is used offensively when the plaintiff seeks to foreclose
5
the defendant from litigating an issue the defendant has previously litigated
unsuccessfully in an action with another party.” Shaffer v. Smith, 673 A.2d 872, 874
(Pa. 1996) (cleaned up).
In Vance, a state inmate challenged a DOC policy restricting access to
pornographic material. Vance, slip op. at 1. Upon reviewing preliminary objections,
this Court permitted the action for declaratory judgment and injunctive relief to
proceed on First and Fourteenth Amendment grounds, U.S. Const. amends. I, XIV.
Id. at 3-4. The relevant issues are clearly different. Simply put, this Court’s decision
in Vance is inapposite. Therefore, the trial court correctly denied Appellant’s claim
of offensive collateral estoppel. See Shaffer, 673 A.2d at 874; Blanda, 313 A.3d at
353.
Lastly, Appellant asserts that the trial court failed to address his motion
to strike. See Appellant’s Br. at 4, 8. We disagree. Appellant filed this motion after
the trial court had issued its order dismissing Appellant’s complaint. See Mot. to
Strike, 10/13/23, ¶¶ 19-33 (asserting, for the first time, that the Bucks County
officials responsible for his prosecution and incarceration lacked jurisdiction over
Appellant). Notwithstanding this new claim, the trial court declined to reconsider
its dismissal of Appellant’s complaint. See Trial Ct. Order, 11/1/23.
It is well settled that an order denying reconsideration is not reviewable
on appeal. See City of Phila. v. Frempong, 865 A.2d 314, 318 (Pa. Cmwlth. 2005);
Thorn v. Newman, 538 A.2d 105, 108 (Pa. Cmwlth. 1988). Accordingly, Appellant
is due no relief.
For these reasons, we affirm.
________________________________
LORI A. DUMAS, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory Dunbar, :
Appellant :
: No. 1305 C.D. 2023
v. :
:
Superintendent Houser, :
Capt. Bookheimer :
ORDER
AND NOW, this 19th day of November, 2024, the order of the Court of
Common Pleas of Centre County, entered October 3, 2023, is AFFIRMED.
__________________________________
LORI A. DUMAS, Judge