# K.J. Bard v. PA DOC

> Commonwealth Court of Pennsylvania · October 24, 2025

URL: https://www.frixlaw.com/law-library/cases/11176985

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** October 24, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Dumas
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11176985

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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.

17
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

18
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11176985. Public record. Not legal advice.