K.J. Bard v. PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kirk J. Bard, :

Petitioner :

: No. 201 M.D. 2024

v. :

: Submitted: July 7, 2025

Pennsylvania Department of :

Corrections, :

Respondent :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE DUMAS FILED: October 24, 2025

Kirk J. Bard (Petitioner) has pro se filed a petition for review (Petition)

in this Court’s original jurisdiction. Petitioner seeks relief in the form of an

injunction directing prison staff to advance postage to non-indigent litigants.

Petitioner also filed an application for summary relief. In response, the Pennsylvania

Department of Corrections (DOC) has filed three preliminary objections asserting

that (1) Petitioner has failed to state a claim upon which relief can be granted, (2)

this Court lacks jurisdiction over claims regarding DOC’s grievance process, and (3)

Petitioner is precluded from injunctive relief because DOC has sovereign immunity.

After careful review, we sustain DOC’s preliminary objections in the nature of a

demurrer and for lack of jurisdiction over DOC’s grievance process, overrule DOC’s

preliminary objection raising sovereign immunity, dismiss the Petition without

prejudice and grant Petitioner 30 days from the date of this decision and order within

which to file an amended petition for review, and dismiss Petitioner’s application

for summary relief as moot.

I. BACKGROUND1

Petitioner is an inmate currently incarcerated at the State Correctional

Institution Somerset (SCI-Somerset). On March 4, 2024, Petitioner filed the instant

Petition, naming DOC as respondent. Petitioner originally filed his Petition in the

Court of Common Pleas, which transferred it to this Court. In his Petition, Petitioner

alleges that the failure of mailroom staff at SCI-Somerset to send his outgoing legal

mail due to insufficient funds for postage in his inmate account at the time of mailing

constitutes an obstruction of his access to courts in violation of article I, section 20

of the Pennsylvania Constitution2 and the First and Fourteenth Amendments3 of the

United States Constitution. Additionally, Petitioner challenges the adequacy and

outcome of the grievance process, asserting that DOC officials failed to

meaningfully address his concerns regarding the postage policy and ultimately

1

Unless stated otherwise, we derive this background from those facts alleged in Petitioner’s

Petition for Review (Petition). See Pet., 3/4/24.

2

This Section provides for the right of petition, that “[t]he citizens have a right in a peaceable

manner to assemble together for their common good, and to apply to those invested with the

powers of government for redress of grievances or other proper purposes, by petition, address or

remonstrance.” Pa. Const. art. I, § 20. We construe Petitioner’s implication of the right of petition

as a further advancement of his First Amendment claim.

3

Petitioner asserts that “the mailroom supervisor’s capricious decision to obstruct prisoners’

right to petition the government for a redress of grievances violates the Equal Protection Clauses

of the Pennsylvania and the United States Constitution, as similarly situated prisoners in

Pennsylvania’s other state prisons are not being subjected to the same obstruction.” See Pet. at 5-

6 (cleaned up). However, Petitioner provides no further facts in support of this claim beyond a

further bald assertion that in his 30 years of incarceration, he has never previously had mail

returned for insufficient postage and that he “knows of no Pennsylvania state prison other than

SCI-Somerset” where legal mail is returned under such circumstances. See id. at 2. Such

conclusory allegations, without any factual or evidentiary support, are insufficient to state a

cognizable Equal Protection claim, and therefore, we decline to address it further.

2

denied him relief despite the constitutional implications alleged in his claim. See

Mem. of L., 5/17/24.4

Petitioner submitted two articles of mail to prison authorities on

February 6, 2024, to be mailed on the following day. One piece of mail was non-

privileged and addressed to a private citizen, while the other piece of mail was legal

mail and contained Petitioner’s civil complaint against DOC, which was addressed

to the Somerset County Courthouse. According to Petitioner, he left $6.68 in his

inmate account for the purpose that it would cover the postage charges for both

pieces of mail. On February 7, 2024, Petitioner received a receipt that $2.85 had

been deducted from his inmate account to cover postage on the non-privileged mail.

However, Petitioner did not receive a similar receipt for funds deducted that went

toward the postage for his legal mail. Two days later, Petitioner’s legal mail was

returned to him due to insufficient funds for postage in his inmate account.

Petitioner contends that the mailroom supervisor has misapplied the

DOC mailroom policy governing the advancement of postage for legal mail for

indigent litigants.5 Petitioner asserts that although the applicable policy permits

4

This filing includes additional allegations and documents attached which pertain to

Petitioner’s frustration with the grievance process. Accordingly, we construe this submission as a

supplement to the Petition; any citations to exhibits are specifically noted. See 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). DOC acknowledged this filing when it filed a preliminary

objection to the extent that Petitioner challenges the grievance process.

5

Petitioner references DOC policy “DC-ADM 803” regarding “Stationery, Pen, and Postage

for Indigent Inmates.” See Pet. at 3. This policy provides:

Upon written request, an indigent inmate, as defined in the Glossary of Terms,

shall be provided with stationery and a pen, and shall be able to anticipate the cost

for postage to file papers necessary for the good faith pursuit of legal remedies.

3

DOC to advance postage without reimbursement for indigent inmates, the customary

practice for non-indigent inmates—such as Petitioner, who temporarily lacked

sufficient funds—is to allow their inmate accounts to be overdrawn (i.e., “placed in

the red”) until adequate funds become available for reimbursement. According to

Petitioner, this practice is critical to preserving his access to the courts. By refusing

to process his legal mail due to insufficient funds, DOC has effectively imposed a

blanket prohibition on all legal correspondence of all non-indigent inmates with low

account balances, thereby violating Petitioner’s constitutional right of access to the

courts.

Additionally, Petitioner asserts that there is no policy prohibiting DOC

from advancing postage fees on a non-indigent prisoner’s legal mail and allowing

reimbursement once a prisoner is able to pay the postage fee. Petitioner states that

in over thirty years of incarceration, he has never previously had outgoing legal mail

returned due to insufficient funds in his inmate account to cover postage. “In fact,”

Petitioner avers, “it is absolutely necessary that [DOC] employ this procedure in

order to facilitate prisoners availing themselves of their constitutionally guaranteed

right to access the courts.” Pet. at 4. Further, Petitioner highlights how it is

unrealistic to expect prisoners to “forever have money in their prison accounts, at

the ready for postage on legal mail.” Id. at 4-5.

Meanwhile, Petitioner also sought relief through the Department’s

internal grievance process. See Mem. of L., Ex. A. After receiving a final decision

Pa. Dep’t of Corr., DC-ADM 803, Inmate Mail and Incoming Publications Procedures Manual §

1(L) (Oct. 29, 2015), available at https://www.pa.gov/content/dam/copapwp-

pagov/en/cor/documents/about-us/doc-

policies/803%20Inmate%20Mail%20and%20Incoming%20Publications.pdf (last visited Oct. 24,

2025).

4

regarding his grievance, Petitioner filed a supplement to the Petition. See Mem. of

L. Herein, Petitioner details his use of the DOC grievance process to raise the same

concerns regarding the denial of postage advancement for non-indigent legal mail as

set forth in his Petition. See id. Petitioner contends that prison officials “are giving

an obstructive effect to a policy that is intended to [e]nsure that every prisoner has

the means to avail [him or herself] of [his or her] constitutional right to seek, without

impediment, a remedy to grievances.” See id. at 4. Additionally, Petitioner

challenges the handling of his grievance by certain DOC officials, asserting that the

grievance was remanded for further consideration but never received a substantive

response. See id. at 4-6. Petitioner maintains that the issues raised in his grievance

and subsequent appeals were not fully addressed by DOC. See id. at 5-8. As further

relief, Petitioner requests that this Court penalize a DOC official for “willfully

flouting established DOC policy and corruptly attempting to cover up the wrongful

conduct of fellow DOC officials.” See id. at 9.

On July 10, 2024, this Court ordered DOC to file an answer or other

responsive pleading to the Petition, and on August 9, 2024, DOC filed three

preliminary objections. See Order, 7/10/24; DOC’s Prelim. Objs., 8/9/24.

Specifically, in DOC’s view, Petitioner failed to state a First Amendment access to

courts claim because the Petition contains only conclusory allegations and lacks

sufficient factual detail. See DOC’s Prelim. Objs. According to DOC, Petitioner

does not identify the nature or subject of the legal mail at issue, the rights he was

attempting to assert, whether his underlying legal claims were nonfrivolous, or how

he suffered actual injury as a result. See id. at 3-5. Second, DOC asserts that to the

extent Petitioner is appealing the result of a grievance he filed with DOC, this Court

lacks jurisdiction over internal prison proceedings. See id. at 5. Third, DOC

5

contends that Petitioner’s prayer for injunctive relief is barred by sovereign

immunity, as sovereign immunity bars claims seeking mandatory injunctions to

compel affirmative action by Commonwealth officials. See id. at 6.

Petitioner filed a response in opposition to the preliminary objections,

titled “Petitioner’s Preliminary Objections to Respondent’s Preliminary Objections

. . .” that both objects to DOC’s assertion of sovereign immunity and responds to

DOC’s remaining preliminary objections. See Answer to Prelim. Objs., 9/18/24.6

To the extent this filing contains additional facts not pleaded in the Petition, we will

not consider such facts. See Cardella v. Pub. Sch. Emps.’ Ret. Bd., 827 A.2d 1277,

1282 (Pa. Cmwlth. 2003) (“[P]reliminary objections in the nature of a demurrer

require the court to resolve the issues solely on the basis of the pleadings.”).

Additionally, on July 12, 2024, Petitioner filed an application for

summary relief, stating that his Petition and supplement to the Petition clearly

establish his right to relief. See Appl. for Summ. Relief, 7/12/24. DOC responds to

Petitioner’s application for summary relief, stating that the application for summary

relief is not ripe for review while DOC’s preliminary objections are pending. See

DOC’s Answer, 8/19/24.

Then, on September 25, 2024, this Court directed DOC to file a brief in

support of its preliminary objections and in opposition to summary relief by October

25, 2024, and directed Petitioner to file a brief in opposition to preliminary

objections and in support of summary relief by November 25, 2024. See Order,

6

DOC contends that this response to the preliminary objections is untimely and therefore does

not address it. DOC’s Br. at 9-10. However, this Court granted Petitioner’s application to extend

the deadline in which to file this pleading. See Order Granting Application for Extension of Time

to File, 9/3/24, which gave Petitioner until September 23, 2024, to file his response to the

preliminary objections. Petitioner filed his response on September 18, 2024. See Answer to

Prelim. Objs. Therefore, it is timely.

6

9/25/24. DOC timely filed its brief. See DOC’s Br., 10/25/24. Petitioner did not

file his brief until January 2, 2025.7 See Pet’r’s Br., 1/2/25.

II. DISCUSSION

A. DOC’s Preliminary Objections8

In support of its preliminary objections, DOC argues that we should

dismiss the Petition for several reasons. First, DOC contends that the First

Amendment claim is not cognizable based on the facts Petitioner alleges. See DOC’s

Prelim. Objs. at 3-5; DOC’s Br. at 12-13. Second, DOC asserts that this Court lacks

original and appellate jurisdiction over internal prison proceedings such as the

grievance process. See DOC’s Prelim. Objs. at 5; DOC’s Br. at 14-15. Lastly, DOC

presents that it is immune under the doctrine of sovereign immunity. See DOC’s

Prelim. Objs. at 6; DOC’s Br. at 16-17.

1. Failure to State a Cognizable Claim

DOC demurs, asserting that Petitioner has failed to state a cognizable

First Amendment access to the courts claim. See DOC’s Prelim. Objs. at 3-4; DOC’s

Br. at 12-13. Specifically, DOC argues that Petitioner has neither alleged nor

demonstrated any actual injury resulting from the challenged conduct, nor has he

shown that the underlying legal claims he seeks to pursue are nonfrivolous. See id.

7

Petitioner makes several additional factual assertions and claims not presented in his Petition.

We will not consider any additional facts or claims not presented in the Petition. See Cardella,

827 A.2d at 1282.

8

When reviewing preliminary objections to petitions for review in our original jurisdiction,

we “must treat as true all well-pleaded, material and relevant facts together with any reasonable

inference[s] that can be drawn from those facts.” Cnty. of Berks v. Pa. Off. of Open Recs., 204

A.3d 534, 539 n.7 (Pa. Cmwlth. 2019) (citations omitted). We are not required to accept as true

“conclusions of law, unwarranted inferences from facts, expressions of opinion or argumentative

allegations.” See id. “[W]here any doubt exists as to whether the preliminary objections should

be sustained, the doubt must be resolved in favor of overruling the preliminary objections.” Pa.

State Lodge, Fraternal Ord. of Police v. Dep’t of Conservation & Nat. Res., 909 A.3d 413, 416

(Pa. Cmwlth. 2006).

7

Accordingly, DOC contends that the demurrer should be sustained, and the Petition

dismissed in its entirety. See id.

In response, Petitioner argues that DOC’s current mailroom practices

will likely result in future harm, thereby satisfying the pleading threshold to

withstand demurrer. See Pet’r’s Br. at 6-7 (citing Giles v. Tate, 907 F.Supp. 1135

(S.D. Ohio 1995), for the proposition that anticipated harm stemming from denial of

access may suffice where institutional practices are shown to be unreasonable).

Petitioner outlines specific litigation costs and deadlines associated with his pending

civil case, contending that without access to advance postage, his filing will be

procedurally deficient and dismissed. See Pet’r’s Br. at 7-10.

A “demurrer is a preliminary objection to the legal sufficiency of a

pleading and raises questions of law[.]” Raynor v. D’Annunzio, 243 A.3d 41, 52

(Pa. 2020) (cleaned up). We sustain a demurrer only when the law undoubtedly

precludes recovery; if doubt exists, we should overrule the demurrer. Bilt-Rite

Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 274 (Pa. 2005). “When

ruling on a demurrer, a court must confine its analysis to the [petition for review].”

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010). “Thus, the court may

determine only whether, on the basis of the [petitioner’s] allegations, he or she

possesses a cause of action recognized at law.” Fraternal Ord. of Police Lodge No.

5 by McNesby v. City of Phila., 267 A.3d 531, 541 (Pa. Cmwlth. 2021).

“Where a trial court sustains preliminary objections on [their] merits, it

is generally an abuse of discretion to dismiss a [petition for review] without leave to

amend. If it is possible that the pleading can be cured by amendment, a court must

give the pleader an opportunity to file an amended [petition for review].” Jones v.

City of Phila., 893 A.2d 837, 846 (Pa. Cmwlth. 2006) (cleaned up). Also, “we are

8

generally inclined to construe pro se materials liberally.” Robinson v. Schellenberg,

729 A.2d 122, 124 (Pa. Cmwlth 1999).

The right of access to the courts is an express provision in the

Pennsylvania Constitution,9 and multiple provisions of the United States

Constitution.10 To state a cognizable claim for violation of the right of access to the

courts, a prisoner must allege and offer proof that he suffered an “actual injury” to

court access as a result of the denial. Lewis v. Casey, 518 U.S. 343 (1996) (limiting

Bounds v. Smith, 430 U.S. 817, 822 (1977), holding that the right of access to the

courts requires “States to shoulder affirmative obligations to assure all prisoners

meaningful access to the courts,” and stating that inmate access to the courts should

be “adequate, effective, and meaningful”); see also Page v. Rogers, 324 A.3d 661,

682 (Pa. Cmwlth. 2024); Moss v. Pa. Dep’t of Corr., 868 A.2d 615, 617-18 (Pa.

Cmwlth. 2004); Hackett v. Horn, 751 A.2d 272, 275-76 (Pa. Cmwlth. 2000);

Bronson v. Horn, 830 A.2d 1092, 1094-95 (Pa. Cmwlth. 2003), affirmed, 848 A.2d

917 (Pa. 2004), cert. denied, 543 U.S. 944 (2004) (DOC’s policy of restricting the

dollar amount on the costs it advances was permissible, noting that indigent inmates

should prioritize their legal filings accordingly).

The United States Supreme Court has defined “actual injury” in the

access to courts context as a hindrance to a prisoner’s ability to bring a nonfrivolous

legal claim concerning their conviction, sentence, or conditions of confinement. See

Lewis, 518 U.S. at 351-55; Page, 324 A.3d at 682 (quoting Moss, 868 A.2d at 617-

9

Pa. Const. art. I, § 11 (“All courts shall be open; and every man for an injury done him in his

lands, goods, person or reputation shall have remedy by due course of law, and right and justice

administered without sale, denial or delay.”).

10

See Christopher v. Harbury, 566 U.S. 403, 415 n.12 (2002) (discussing First Amendment’s

petition clause, U.S. Const. amend. I, and Fourteenth Amendment’s equal protection and due

process clauses, U.S. Const. amend. XIV, as sources of prisoners’ right to access the courts).

9

18). This includes direct appeals from criminal convictions involving incarceration,

habeas petitions, and civil rights actions under 42 U.S.C. § 1983 to “vindicate basic

constitutional rights.” See Lewis, 518 U.S. at 354; Moss, 868 A.2d at 618.

Additionally, the Lewis Court stressed that inmates are not guaranteed “the

wherewithal to transform themselves into litigating engines capable of filing

everything from shareholder derivative actions to slip-and-fall claims.” See Lewis,

518 U.S. at 355; Moss, 868 A.2d at 618. The Court clarified that the right of access

to the courts does not obligate the state to assist prisoners in discovering potential

grievances or to ensure effective litigation once in court, as such obligations would

effectively amount to providing prisoners with ongoing legal representation, which

the Constitution does not require. See Lewis, 518 U.S. at 354. Rather, the Court

indicated, prison authorities are merely required to provide inmates with the tools

they need “in order to attack their sentences, directly or collaterally, and in order to

challenge the conditions of their confinement.” Id. at 353; Moss, 868 A.2d at 618.

“Impairment of any other litigating capacity is simply one of the incidental (and

perfectly constitutional) consequences of conviction and incarceration.” Lewis, 518

U.S. at 355.

In his Petition, Petitioner alleges that the mailroom supervisor at SCI-

Somerset is “misapplying” DOC policy by refusing to advance postage for legal mail

sent by inmates who are not indigent. See Pet. at 2-3. Petitioner contends that the

relevant policy is intended to prevent non-indigent inmates from receiving free

postage but does not prohibit the advancement of postage with the expectation of

later reimbursement. See id. at 3-5. He argues that this misinterpretation imposes

an unreasonable and impractical burden on inmates, many of whom lack a reliable

income, by requiring them to maintain a sufficient balance at the exact time legal

10

mail must be sent. See id. Petitioner further asserts that this practice effectively

denies prisoners meaningful access to the courts and violates constitutional

protections, including equal protection, as Petitioner claims this restrictive

“application” is not consistently applied across all Pennsylvania SCIs. See id.

While we acknowledge Petitioner’s concerns, we find that his current

pleadings do not satisfy the requirements of a First Amendment access to the courts

claim. Petitioner does not allege the loss of a non-frivolous legal claim concerning

his sentence or conditions of confinement as a result of the returned legal mail, which

he vaguely describes as relating to a civil matter. See id. Petitioner has not pleaded

sufficient facts regarding the substance of that legal claim. See id. The United States

Supreme Court was clear in Lewis, 518 U.S. at 351, that prisoners are not guaranteed

the tools to discover grievances or to litigate effectively once in court. Such

expansions of the right of access to the courts were explicitly disclaimed by the Court

as effectively demanding permanent counsel, which the Constitution does not

require. See id.

Moreover, Petitioner seemingly recognizes that he has not pleaded an

actual injury, as he asks this Court to adopt a prospective harm standard, arguing

that he will suffer harm in the future if DOC is not compelled to advance postage to

non-indigent inmates who temporarily lack sufficient funds. See Pet’r’s Br. at 6-7.

In support, Petitioner cites Giles, 907 F.Supp. 1135, which relies on Bounds, 430

U.S. at 817, and predates Lewis. Further, although Petitioner references DOC’s

alleged “policy” and “common practice” of denying postage advances to non-

indigent inmates, he fails to cite any official written policy or present evidence

substantiating the existence or uniform application of such practices across DOC.

Instead, Petitioner relies on the inverse of the indigent-postage policy, suggesting

11

that non-indigent inmates who temporarily lack funds are thereby disadvantaged.

See Pet. He asserts that it cannot lawfully be the intent of the indigent inmate postage

policy “to give DOC carte blanche to refuse to send out the legal mail of every

prisoner whose account has reflected a balance in excess of $10 within 30 days of

the date when a prisoner attempts to send out legal mail but lacks sufficient funds to

do so at that moment.” See Pet. at 4. However, such speculative harm does not

constitute an “actual injury” as required under the established precedent. See Lewis,

518 U.S. at 354-55; Moss, 868 A.2d at 617-18; Hackett, 751 A.2d at 272; Bronson,

830 A.2d 1092. Indeed, even if such a practice existed, Petitioner has failed to

demonstrate that it resulted in any specific denial of access to the courts or prejudice

to his legal claims.

That said, we recognize that Petitioner references additional factual

allegations in his Answer to Preliminary Objections and his supporting Brief that, if

properly pleaded, may cure the defects in his initial Petition.11 Accordingly, while

Petitioner has failed to state a claim upon which relief can presently be granted, we

sustain DOC’s demurrer without prejudice and grant Petitioner leave to file an

amended petition for review that consolidates all relevant factual allegations and

supporting arguments. See Jones, 893 A.2d at 846.

2. Lack of Jurisdiction

DOC additionally objects that, to the extent that Petitioner is

challenging the result of his grievance or the grievance process itself, this Court lacks

11

Petitioner states that the underlying civil action relates to prison disciplinary proceedings

that could adversely impact his parole eligibility and notes that he must submit over 100 pages of

legal documents, which imposes a financial burden. See Answer to Prelim. Objs. at 12-13; Pet’r’s

Br. at 7-10. Petitioner also challenges DOC’s broader policy and “practice” of denying postage

advancement for non-indigent prisoners’ legal mail as unreasonable. See Answer to Prelim. Objs.

at 7, 11-15; Pet’r’s Br. at 16-17, 25.

12

both original and appellate jurisdiction over internal prison proceedings. See DOC’s

Prelim. Objs. at 5; DOC’s Br. at 14-15. According to DOC, Petitioner’s claims

amount to an appeal of internal decisions that are not subject to judicial review, and

therefore, the Petition should be dismissed for lack of jurisdiction. See id.

Petitioner responds, asserting that this Court has jurisdiction over his

claims because they arise from a final decision by DOC and implicate

constitutionally protected rights. See Pet’r’s Br. at 18-21. He contends that DOC

has misapplied relevant precedents, particularly Bronson v. Cent. Off. Rev. Comm.,

721 A.2d 357, 359 (Pa. 1998), and Weaver v. Pa. Dep’t of Corr., 829 A.2d 750, 751

(Pa. Cmwlth. 2003), arguing that those decisions involved non-final internal

determinations or failed to implicate constitutional concerns, rendering them

distinguishable. See id. Petitioner emphasizes that he fully exhausted administrative

remedies before seeking judicial intervention and further relies on article V, section

9 of the Pennsylvania Constitution and 37 Pa.Code § 93.9(b), which states that

inmates may pursue remedies in state and federal court.

It is well established, however, that “internal prison operations are more

properly left to the legislative and executive branches,” and that “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.” Bronson, 721

A.3d at 358. Inmate grievance procedures are administrative mechanisms internal

to DOC and are not the functional equivalent of adjudications by government

agencies. See id. Accordingly, decisions stemming from those processes are

generally not subject to judicial review, and “the full panoply” of protections

afforded to litigants in judicial proceedings does not apply in the prison disciplinary

context. See Bronson, 721 A.2d at 358-59; Weaver, 829 A.2d at 751.

13

While incarcerated individuals retain certain constitutional rights, those

rights are significantly circumscribed by the fact of lawful imprisonment. See

Sandin v. Conner, 515 U.S. 472, 485 (1995) (“[L]awful incarceration brings about

the necessary withdrawal or limitation of many privileges and rights . . .”); Feliciano

v. Dep’t of Corr., 250 A.3d 1269, 1274 (Pa. Cmwlth. 2021) (en banc) (citation

omitted), aff’d, 283 A.3d 196 (Pa. 2022). One such limitation applies to judicial

review of prison grievance and misconduct decisions, which are considered internal

matters generally outside the scope of this Court’s appellate and original jurisdiction.

See Bronson, 721 A.2d at 359; Weaver, 829 A.2d at 751; Gentilquore v. Pa. Dep’t

of Corr., 326 A.3d 512, 516 (Pa. Cmwlth. 2024) (en banc); 42 Pa.C.S. §§ 761,

763(a)(1).

Nonetheless, a narrow class of prisoner claims invoking

constitutionally protected liberty or property interests may fall within this Court’s

original jurisdiction. See Williams v. Wetzel, 232 A.3d 652, 653-54 (Pa. 2020);

Gentilquore, 326 A.3d at 516. To qualify, the asserted right must not be subject to

limitation by DOC policy and must be impacted by a final decision. See Bronson,

721 A.2d at 359; Gentilquore, 326 A.3d at 516; Feliciano, 250 A.3d at 1275.

Additionally, due process protections may arise where a prison condition imposes

an “atypical and significant hardship . . . in relation to the ordinary incidents of prison

life.” Sandin, 515 U.S. at 483-84.12

Here, although Petitioner acknowledges the controlling precedent, he

fails to meaningfully distinguish Bronson, 721 A.2d 357, Weaver, 829 A.2d 750, or

their progeny from the circumstances presented. His allegations, while framed in

12

In Sandin, 515 U.S. at 487, the United States Supreme Court determined that a 30-day

placement in disciplinary segregation did not constitute a significant disruption to the inmate’s

environment sufficient to trigger due process protections.

14

constitutional terms, center on DOC’s interpretation of its internal policy and the

outcome of its grievance process—matters which fall squarely within the DOC’s

discretionary authority and are not subject to judicial review, absent the involvement

of a constitutionally protected, non-regulated interest affected by a final agency

decision. Because Petitioner has not established that such an interest is at stake, this

Court lacks original and appellate jurisdiction to entertain the claim. See Bronson,

721 A.2d at 359; Gentilquore, 326 A.3d at 516; Weaver, 829 A.2d at 751.

3. Sovereign Immunity

Lastly, DOC asserts that it is entitled to sovereign immunity from

Petitioner’s claim for injunctive relief, arguing that it is evident on the face of the

Petition that the action is directed against a Commonwealth agency and no

applicable exception to immunity has been pleaded. See DOC’s Prelim. Objs. at 6;

DOC’s Br. at 16-17. Subsequently, Petitioner objects to DOC’s assertion of

sovereign immunity in its Answer to Preliminary Objections, stating that sovereign

immunity should “be pleaded in a responsive pleading under the subheading ‘New

Matter.’” See Answer to Prelim. Objs. at 3.

It is well established that “sovereign immunity bars claims seeking

mandatory injunctions to compel affirmative action by Commonwealth officials[.]”

Stackhouse v. Pa. State Police, 892 A.2d 54, 61 (Pa. Cmwlth. 2006) (clarifying that

sovereign immunity bars claims seeking mandatory injunctions to compel

affirmative action by Commonwealth officials, but not those seeking prohibitory

injunctions to restrain state action). As an affirmative defense, sovereign immunity

must typically be raised in a “responsive pleading under the heading ‘New Matter.’”

Pa.R.Civ.P. 1030(a). Nevertheless, Pennsylvania courts have consistently permitted

the defense to be raised by preliminary objection where it is clear from the face of

15

the pleading that the claim is asserted against a government entity and no exception

applies. See Mazur v. Cuthbert, 186 A.3d 490, 498 (Pa. Cmwlth. 2018); Orange

Stones Co. v. City of Reading, 87 A.3d 1014, 1022 (Pa. Cmwlth. 2014).

A party may object to the improper procedural posture of such a defense

by filing preliminary objections in the nature of a motion to strike. See McCreary v.

City of Phila., 505 A.3d 385, 386 (Pa. Cmwlth. 1986) (holding that the trial court

erred in sustaining a sovereign immunity preliminary objection where the appellant

properly objected and the defense should have been raised in a new matter); see also

Swartz v. Masloff, 437 A.2d 472, 474 (Pa. Cmwlth. 1981); Com. ex rel. Milk Mktg.

Bd. v. Sunnybrook Dairies, Inc., 379 A.2d 330 (Pa. Cmwlth. 1977). These cases

imply that if the opposing party does object, courts may not consider the defense on

preliminary objection. However, there are instances where this Court has declined

to adhere to this rule “where no purpose would be served by a delay in ruling on the

matter and it would expedite the disposition of the case.” Feldman v. Hoffman, 107

A.3d 821, 832, 836 (Pa. Cmwlth. 2014) (finding no reversible error in sustaining a

preliminary objection raising immunity despite a procedural objection, because the

immunity defense was apparent on the face of the complaint and further proceedings

would serve no purpose).

Here, Petitioner has objected to the improper procedural posture of

raising sovereign immunity in a preliminary objection. See Answer to Prelim. Objs.

at 3. We agree with Petitioner that DOC should have raised its assertion of sovereign

immunity in a new matter. See McCreary, 505 A.3d at 386. Because it is unclear

whether Petitioner has requested a mandatory or prohibitory injunction,13 we

13

In his Petition, Petitioner requests that this Court “grant emergency injunctive relief in favor

of Plaintiff and against [DOC], barring [DOC] from refusing to send out Plaintiff’s legal mail due

16

overrule DOC’s sovereign immunity preliminary objection at this time. See

Stackhouse, 892 A.2d at 61; McCreary, 505 A.3d at 386.

B. Petitioner’s Application for Summary Relief

Applications for summary relief addressed to this Court’s original

jurisdiction are authorized under Rule 1532(b) of the Pennsylvania Rules of

Appellate Procedure, which provides: “[a]t any time after the filing of a petition for

review in an . . . original jurisdiction matter the court may on application enter

judgment if the right of the applicant thereto is clear.” Summary relief is similar to

summary judgment under the Pennsylvania Rules of Civil Procedure, in that the

requested relief is only appropriate where there are no disputed issues of material

fact and it is clear that the applicant is entitled to the requested relief under the law.

See Scarnati v. Wolf, 173 A.3d 1110, 1118 (Pa. 2017). Also, we review the record

in the light most favorable to the nonmoving party, resolving all doubts as to the

existence of disputed material facts against the moving party. See Marcellus Shale

Coal v. Dep’t of Env’t Prot., 216 A.3d 448, 458 (Pa. Cmwlth. 2019).

Though Petitioner seeks summary relief against DOC, he is not entitled

to do so at this juncture, because Petitioner’s claims against DOC did not survive

preliminary objections. Consequently, we dismiss Petitioner’s application for

summary relief as moot.

III. CONCLUSION

In accordance with the foregoing analysis, we sustain DOC’s

preliminary objections in the nature of a demurrer and for lack of jurisdiction over

to insufficient funds at the time of mailing.” Pet. at 6. However, in his supplement to the Petition,

Petitioner requests that this Court “order prison mail room staff at SCI-Somerset to cease and desist

from their practice of refusing to send out prisoners’ legal mail due to insufficient funds for postage

in their inmate accounts at the time of mailing.” Mem. of L. at 9.

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DOC’s grievance process, overrule DOC’s preliminary objection raising sovereign

immunity, dismiss the petition for review without prejudice and grant Petitioner

leave to file an amended petition for review within 30 days of the date of this

decision and order, and dismiss Petitioner’s application for summary relief as moot.

LORI A. DUMAS, Judge

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kirk J. Bard, :

Petitioner :

: No. 201 M.D. 2024

v. :

:

Pennsylvania Department of :

Corrections, :

Respondent :

ORDER

AND NOW, this 24th day of October, 2025, we OVERRULE the

preliminary objection asserting sovereign immunity filed by the Pennsylvania

Department of Corrections (DOC), SUSTAIN the remaining preliminary objections

filed by DOC, DISMISS the petition for review without prejudice, GRANT Kirk J.

Bard leave to file an amended petition for review within 30 days of the date of this

decision and order, and DISMISS Petitioner’s application for summary relief as

moot.

LORI A. DUMAS, Judge