J. Baney v. M. Fisher

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeremy Baney, :

:

Plaintiff :

:

v. : No. 752 M.D. 2018

: Submitted: May 22, 2020

Mike Fisher, Michael T. Madeira, :

Kevin Barr, Christopher Schmidt, :

and Josh Shapiro of the Pa. Attorney :

General’s Office, Russ Burcher of :

the Pa. State Police, :

:

Defendants :

OPINION NOT REPORTED

MEMORANDUM OPINION

PER CURIAM FILED: August 26, 2020

Before the Court are the preliminary objections (POs) of Jeremy

Baney, an inmate at the State Correctional Institution (SCI) at Smithfield (Inmate),

to the POs in the nature of a demurrer of Mike Fisher, Michael T. Madeira, Kevin

Barr, Christopher Schmidt, and Josh Shapiro, former and current members of the

Pennsylvania Office of Attorney General, and Russ Burcher of the Pennsylvania

State Police, a former trooper (collectively, Commonwealth Respondents), to the

Amended Civil Complaint (Amended Complaint) that Inmate filed in our original

jurisdiction.1 We overrule Inmate’s POs, sustain Commonwealth Respondents’

POs, and dismiss the Amended Complaint with prejudice.

1

Although Inmate styled his filing as an Amended Complaint, he should have filed a

petition for review because that is the pleading that is used to commence an action against the

Commonwealth and its officers under Chapter 15 of the Pennsylvania Rules of Appellate

(Footnote continued on next page…)

The Pennsylvania Superior Court has summarized the criminal

proceedings underlying Inmate’s present incarceration, in relevant part, as follows:

On March 3, 2002, [Inmate] was arrested and charged

with numerous counts of drug-related offenses based on

his involvement in a drug-distribution ring that operated

across Lycoming, Clinton, and Centre Counties between

1997 and 2001. [Inmate] ultimately entered a negotiated

guilty plea to one count of corrupt organizations, twenty-

one counts of possession with intent to deliver (PWID) a

controlled substance (marijuana), one count of criminal

conspiracy, five counts of dealing in proceeds of

unlawful activities, and one count of criminal use of a

communication facility [in the Clinton County Common

Pleas Court (trial court)]. In exchange for [Inmate’s]

guilty plea, the Commonwealth nol prossed 61 counts of

various other criminal charges. On August 11, 2003,

[Inmate] was sentenced, in accordance with his plea

agreement, to a term of 20 to 39 years’ incarceration.

The trial court also imposed the . . . costs of prosecution

and restitution[.]

[Inmate] filed a timely appeal from his judgment

of sentence. On appeal, [Inmate’s] counsel sought to

withdraw pursuant to Anders v. California, 386 U.S. 738

(1967). . . . After reviewing counsel’s Anders Brief, this

Court agreed that [Inmate’s] claims were frivolous.

Accordingly, we granted counsel’s petition to withdraw

and affirmed [Inmate’s] judgment of sentence in a

published opinion[, and our] Supreme Court later denied

(continued…)

Procedure. See, e.g., MFW Wine Co., LLC v. Pennsylvania Liquor Control Board, ___ A.3d

___, ___ n.1 (Pa. Cmwlth., No. 251 M.D. 2020, filed May 1, 2020), slip op. at 1 n.1 (“Consistent

with the applicable rules of appellate procedure, the Court treats the Amended Complaint as a

petition for review directed to this Court’s original jurisdiction. See Pa. R.A.P. 1501(a)(3), 1502,

1503.”). For the sake of clarity, we refer to Inmate’s filing as the Amended Complaint in this

memorandum opinion; however, consistent with the foregoing, we refer to the named defendants

in the Amended Complaint as Commonwealth Respondents.

2

[Inmate’s] petition for permission to appeal.

Commonwealth v. Baney, 860 A.2d 127, 132 (Pa. Super.

2004), appeal denied, 877 A.2d 459 (Pa. 2005).

Commonwealth v. Baney (Pa. Super., No. 581 MDA 2013, filed October 30, 2013),

slip op. at 1-3.2

On April 4, 2019, Inmate filed the instant five-count Amended

Complaint in which he alleges, inter alia, that Commonwealth Respondents

violated his rights under Article I, Section 10 of the Pennsylvania Constitution3 and

the Wiretapping and Electronic Surveillance Control Act (Act)4 in the investigation

and criminal prosecution culminating in his guilty pleas and judgment of sentence.

Specifically, Inmate contends that the initial investigatory pen register, of the total

of 5 that were ultimately obtained, was used illegally by Commonwealth

Respondents 9 to 10 hours before a valid order was issued by the trial court under

the Act. Amended Complaint at 8, 9-11, 20, 29-30, 57. Inmate asserts that, as a

result, all of the subsequent pen registers, search warrants, and wiretaps, and the

subsequent investigation and criminal prosecution, were pursued and obtained by

Commonwealth Respondents in bad faith, are invalid, and are actionable under

Sections 5725 and 5726 of the Act.5 See id. at 19-65.6 Accordingly, Inmate seeks

2

Inmate subsequently filed a number of unsuccessful petitions collaterally attacking his

judgment of sentence, which are not relevant to our disposition of the instant POs. See Baney,

slip op. at 3-11 (outlining Inmate’s past petitions seeking to vacate his judgment of sentence).

3

Pa. Const. art. I, §10. Article I, Section 10 states, in relevant part: “Each of the several

courts of common pleas may, with the approval of the Supreme Court, provide for the initiation

of criminal proceedings therein by information filed in the manner provided by law. No person

shall, for the same offense, be twice put in jeopardy of life or limb[.]”

4

18 Pa. C.S. §§5701-5781.

5

18 Pa. C.S. §§5725, 5726. Section 5725 states:

(Footnote continued on next page…)

3

(continued…)

(a) Cause of action.—Any person whose wire, electronic or oral

communication is intercepted, disclosed or used in violation of this

chapter shall have a civil cause of action against any person who

intercepts, discloses or uses or procures any other person to

intercept, disclose or use, such communication; and shall be

entitled to recover from any such person:

(1) Actual damages, but not less than liquidated damages

computed at the rate of $100 a day for each day of

violation, or $1,000, whichever is higher.

(2) Punitive damages.

(3) A reasonable attorney’s fee and other litigation costs

reasonably incurred.

(b) Waiver of sovereign immunity.—To the extent that the

Commonwealth and any of its officers, officials or employees

would be shielded from liability under this section by the doctrine

of sovereign immunity, such immunity is hereby waived for the

purposes of this section.

(c) Defense.—It is a defense to an action brought pursuant to

subsection (a) that the actor acted in good faith reliance on a court

order or the provisions of this chapter.

In turn, Section 5726 states:

(a) Cause of action.—Any aggrieved person shall have the right

to bring an action in Commonwealth Court against any

investigative or law enforcement officer, public official or public

employee seeking the officer’s, official’s or employee’s removal

from office or employment on the grounds that the officer, official

or employee has intentionally violated the provisions of this

chapter. If the court shall conclude that such officer, official or

employee has in fact intentionally violated the provisions of this

chapter, the court shall order the dismissal or removal from office

of said officer, official or employee.

(Footnote continued on next page…)

4

Commonwealth Respondents’ “[r]emoval from office as per [Section 5726 of] the

[Act] for violating the pen register by starting the first one early.” Id. at 67.

Pursuant to Section 5725, Inmate also seeks monetary damages “in the amount of

$50,000,000.00,” pre- and post-judgment interest, attorney fees, costs of this

lawsuit, postage, and “[s]uch other and further relief as this Honorable Court

deems just and proper.” Id. at 67-70.7

(continued…)

(b) Defense.—It is a defense to an action brought pursuant to

subsection (a) that the actor acted in good faith reliance on a court

order or the provisions of this chapter.

6

Counts One and Two of the Amended Complaint assert direct claims under the Act

based on Commonwealth Respondents’ illegal use of the first pen register prior to obtaining a

trial court order. See Amended Complaint at 19-36. Count Three asserts an “Abuse of Power”

claim based on an “abuse of power and/or prosecutor misconduct” to “provoke” Inmate’s

“involvement in the importation of cocaine” and to deny him a fair trial in violation of his double

jeopardy rights under Article I, Section 10 of the Pennsylvania Constitution. Id. at 37-45. Count

Four asserts “Malicious Prosecution and Malicious Abuse of Process” claims because

Commonwealth Respondents “acted with deliberate indifference or reckless disregard for

[Inmate’s] civil rights by targeting [him] for an unauthorized capture of the first pen register

without a proper court order,” and “by overcharging” him “to provoke [him] into action or

conduct” in order “to prejudice [him] to the point where he has been denied a fair trial,” again in

violation of Article I, Section 10. Id. at 46-55. Finally, Count Five asserts a “Malicious Use of

Criminal Process” claim because, again, Commonwealth Respondents “started 9-10 hours before

the court authorized the capture of the first pen register,” “and acted with reckless disregard for

[his] civil rights” “by targeting [him] for malicious use of criminal process by overcharging

[him] with criminal counts in [his] criminal information” “and plea offers” in violation of his

double jeopardy rights under Article I, Section 10. Id. at 56-64.

7

Inmate has filed numerous additional, intervening pleadings, as well as an appeal to the

Pennsylvania Supreme Court, which have been disposed of by this Court and that Court and are

not relevant to our disposition of the instant POs, which were timely filed pursuant to this

Court’s November 15, 2019 order directing the filing of the same.

5

On December 18, 2019, Commonwealth Respondents filed the instant

POs to the Amended Complaint alleging, inter alia, that the Amended Complaint

should be dismissed because all of the claims raised therein are barred by the

relevant statute of limitations. Commonwealth Respondent POs ¶¶8-20. Inmate

then filed his POs in response asserting, inter alia, that Commonwealth

Respondents’ statute of limitations POs should be overruled because such a

defense may only be raised by answer and new matter, and the time for filing suit

should be tolled due to his lack of knowledge of the illegal pen registers and

Commonwealth Respondents’ fraudulent concealment of them during discovery in

the criminal prosecution. Inmate POs ¶¶2-11. Inmate also outlines his subsequent

requests for the records related thereto under the Right-to-Know Law (RTKL),8 the

federal Freedom of Information Act (FOIA),9 and petitions filed pursuant to the

Post Conviction Relief Act (PCRA).10 Inmate POs ¶¶1-11.

Although this Court cannot award the requested monetary damages

under Section 5725 of the Act,11 we will consider the cross-POs relating to the

8

Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.

9

5 U.S.C. §552.

10

42 Pa. C.S. §§9541-9546.

11

As outlined above, Section 5726(a) provides, in relevant part, “Any aggrieved person

shall have the right to bring an action in Commonwealth Court against [Commonwealth

Respondents] seeking the[ir] removal from office or employment on the grounds that the[y]

ha[ve] intentionally violated the provisions of this chapter.” 18 Pa. C.S. §5726(a) (emphasis

added). In contrast, Section 5725(a) states, in pertinent part, “Any aggrieved person whose wire,

electronic, or oral communication is intercepted, disclosed or used in violation of this chapter

shall have a civil cause of action against [Commonwealth Respondents] . . . .” 18 Pa. C.S.

§5725(a). Regarding the distinct language in the foregoing provisions, we have explained:

(Footnote continued on next page…)

6

(continued…)

Notwithstanding the basic tenet of statutory construction

that the omission of language from a provision and inclusion of it

in a similar provision is indicative of a different legislative intent,

[the petitioner] argues that we have ancillary jurisdiction over his

civil damages claim because we have jurisdiction over his claim

seeking removal. Although we have found no direct authority

indicating that the issue of jurisdiction has been definitively

determined, we have observed as follows regarding the inclusion

of jurisdictional language in Section 5726 and its omission in

Section 5725:

Significantly, [Section 5726(a)] expressly provides that an

aggrieved person shall bring [his or her equitable cause of]

action in the Commonwealth Court, although the

immediately preceding section, which creates a civil action

for money damages, 18 Pa. C.S. §5725, provides no such

language vesting this court with jurisdiction. Fundamental

in statutory construction is the rule that, where a section of

a statute contains a given provision, the omission of that

provision from a similar section is significant to show a

different intention existed.

Boettger [v. Miklich, 481 A.2d 972, 975 n.2 (Pa. Cmwlth. 1984)]

(emphasis added) (citations omitted). See also Birdseye v.

Driscoll, [534 A.2d 548, 550 n.2 (Pa. Cmwlth. 1987)] (a removal

case noting the distinction made in Boettger “between actions for

damages under Section 5725 and an equitable cause of action for

removal created by Section 5726, which contains express language

vesting this Court with original jurisdiction”)[,] and Welch v.

Palka, (Pa. Cmwlth., No. 274 M.D. 2008, filed November 29,

2010), slip op. at 8 n.4, aff’d, [40 A.3d 1185 (Pa. 2012)] (single-

judge opinion reiterating the distinction made in Boettger and

noting: “[I]n the absence of specific language stating otherwise,

this Court is arguably not vested with jurisdiction to hear claims

made under either Sections 5741 or 5747 [of the Act, 18 Pa. C.S.

§§5741 and 5747 (relating to civil and criminal proceedings for

violations of the subchapter]). Accordingly, where the legislature

specifically afforded jurisdiction to this Court in Sections 5726 and

5728 of the [Act], 18 Pa. C.S. §§5726 and 5728 [(conferring

(Footnote continued on next page…)

7

applicable statute of limitations for all of Inmate’s claims in the interest of judicial

economy.12 See McCulligan v. Pennsylvania State Police, 123 A.3d 1136, 1140

(continued…)

jurisdiction on this Court to restrain violations of the Act)], for

example, the absence of such language in other provisions

indicates its intent not to afford this Court jurisdiction over other

provisions even in situations where ancillary jurisdiction arguably

could apply.

McCulligan v. Pennsylvania State Police, 123 A.3d 1136, 1139-40 (Pa. Cmwlth. 2015)

(footnotes omitted). Accordingly, it is doubtful that jurisdiction over Inmate’s Section 5725(a)

cause of action has been conferred upon this Court.

Additionally, it is clear that Inmate has not presented a viable cause of action under

Section 5726(a) of the Act. See id. at 1141 (“As former Chief Justice Castille stated in a

concurring and dissenting statement regarding Section 5726 of the [Act]: ‘The removal cause of

action . . . [is] an extreme sanction that has rarely if ever been deployed, [and] was clearly

intended to deter the most egregious intentional violations of personal privacy.’”) (citation and

footnote omitted).

12

As this Court has stated:

In ruling on preliminary objections, we must accept as true

all well-pleaded material allegations in the petition for review, as

well as all inferences reasonably deduced therefrom. The Court

need not accept as true conclusions of law, unwarranted inferences

from facts, argumentative allegations, or expressions of opinion.

In order to sustain preliminary objections, it must appear with

certainty that the law will not permit recovery, and any doubt

should be resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits

every well-pleaded fact in the complaint and all inferences

reasonably deducible therefrom. It tests the legal sufficiency of the

challenged pleadings and will be sustained only in cases where the

pleader has clearly failed to state a claim for which relief can be

granted. When ruling on a demurrer, a court must confine its

analysis to the complaint.

(Footnote continued on next page…)

8

(Pa. Cmwlth. 2015) (“[E]ven if we were to conclude that it would be appropriate to

transfer the damage claim to the court of common pleas,[13] that would be an

unnecessary waste of judicial resources here, because [the petitioner’s] action

under Section 5725 of the [Act] is barred by the statute of limitations found in

Section 5524(7) of the Judicial Code.[14]”).

Commonwealth Respondents committed the acts underlying the

instant action between 1998 and 2003. As indicated above, Counts One and Two

in the Amended Complaint have a two-year statute of limitations under Section

5524(7) of the Judicial Code. McCulligan. Likewise, the remaining Counts in the

(continued…)

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted). Therefore, in

considering Inmate’s claims, we are limited to the allegations raised in the Amended Complaint;

any additional claims or arguments contained in his brief filed in opposition to Commonwealth

Respondents’ POs, and in support of his POs, will not be considered in disposing of any of the

POs. Id. See also Feigley v. Department of Corrections, 872 A.2d 189, 193 n.3 (Pa. Cmwlth.

2005) (“[The inmate] attempts to augment the averments in his Petition [for Review] by making

various allegations in his three briefs and by attaching documents thereto. Factual disputes are

framed by pleadings, not briefs, therefore, we do not consider these additional allegations and

documents.”).

13

See Section 5103(a) of the Judicial Code, 42 Pa. C.S. §5103(a) (“If [a] . . . matter is . . .

brought in a court . . . of this Commonwealth which does not have jurisdiction of the . . . matter,

the court . . . shall not . . . dismiss the matter, but shall transfer the record thereof to the proper

tribunal of this Commonwealth, where the . . . matter shall be treated as if originally filed in the

transferee tribunal on the date when the . . . matter was first filed in a court . . . of this

Commonwealth.”).

14

18 Pa. C.S. §5524(7). Section 5524(7) states, “The following actions . . . must be

commenced within two years: . . . Any other action . . . to recover damages for injury to person

or property which is founded on . . . intentional . . . conduct or any other action . . . sounding in

trespass, including deceit or fraud, except an action . . . subject to another limitation specified in

this subchapter.”

9

Amended Complaint each have a two-year statute of limitations.15 Id. See also

Section 5524(1) of the Judicial Code, 42 Pa. C.S. §5524(1) (“The following actions

15

Moreover, the unviability of Inmate’s causes of action in these Counts is apparent from

the face of the Amended Complaint as well. Indeed, as this Court has explained:

In order to sustain a cause of action for malicious

prosecution relating to a criminal prosecution, the plaintiff must

prove that the defendant (1) instituted proceedings against the

plaintiff, (2) without probable cause, (3) with malice, and (4) that

the proceedings were terminated in favor of the plaintiff. Probable

cause is a reasonable ground of suspicion supported by

circumstances sufficient to warrant that an ordinary prudent person

in the same situation could believe a party is guilty of the offense

charged. Lack of probable cause is an indispensable element of the

action, and an ultimate adjudication of innocence does not

establish lack of probable cause to prosecute. If a defendant can

demonstrate probable cause, an absolute defense is established

against an action for malicious prosecution, and the prosecutor’s

motive, malicious or otherwise, is immaterial.

***

[The plaintiff] however, argues that it was error for the trial

court to grant summary judgment because it did not address the

[charging authorities’] active prosecution of the case after the

filing of the complaint and after being advised of [the plaintiff’s]

legal defenses. In other words, [the plaintiff] asserts that the

failure of [the charging authorities] to discontinue their criminal

prosecution is actionable in tort.

Malicious prosecution of civil matters distinguishes

between malicious use of process and malicious abuse of process;

the former addresses the initiation of civil process and the latter its

continuation. However, there is no authority for [the plaintiff’s]

position that a prosecutor’s failure to discontinue promptly a

criminal process is actionable, and we decline to so expand the

bounds of this common law tort. A “[m]alicious prosecution is an

action which runs counter to obvious policies of the law in favor of

encouraging proceedings against those who are apparently

(Footnote continued on next page…)

10

. . . must be commenced within two years: . . . An action for assault, battery, false

imprisonment, false arrest, malicious prosecution or malicious abuse of process.”);

Section 5524(2) of the Judicial Code, 42 Pa. C.S. §5524(2) (“The following actions

. . . must be commenced within two years: . . . An action to recover damages for

injuries to the person . . . caused by the wrongful act or neglect or unlawful

violence or negligence of another.”).16

(continued…)

guilty. . . . It never has been regarded with any favor by the courts,

and it is hedged with restrictions which make it very difficult to

maintain.” “If this were not so, it would deter men from

approaching the courts of justice for relief.”

Corrigan v. Central Tax Bureau of Pa., Inc., 828 A.2d 502, 505-06 (Pa. Cmwlth. 2003) (citations

and footnotes omitted and emphasis in original). See also Heck v. Humphrey, 512 U.S. 477, 484

(1994) (“One element that must be alleged and proved in a malicious prosecution action is the

termination of the prior criminal proceeding in favor of the accused.”); Townes v. City of New

York, 176 F.3d 138, 148 (2d Cir. 1999) (“Victims of unreasonable searches or seizures may

recover damages directly related to the invasion of their privacy—including (where appropriate)

damages for physical injury, property damage, injury to reputation, etc.; but such victims cannot

be compensated for injuries that result from the discovery of incriminating evidence and

consequent criminal prosecution.”).

16

Inmate preliminarily objects to Commonwealth Respondents’ interposition of the

statute of limitations POs at this stage of the proceedings because it is an affirmative defense that

is properly raised as new matter in an answer to the Amended Complaint under Pa. R.C.P. Nos.

1028(a)(4) and 1030(a). However, it is appropriate for this Court to overlook the technical

requirements and dispose of the matter on these POs where, as here, the application of the

relevant statute of limitations is apparent on the face of the Amended Complaint; Inmate merely

raises the technical challenge and does not identify any additional facts that he would assert in

response if this affirmative defense was raised later in new matter; and, as outlined above, the

causes of action asserted in the Amended Complaint cannot be sustained and the continuation of

this matter would not aid Inmate nor affect the result. Greenberg v. Aetna Insurance Company,

235 A.2d 576, 579-80 (Pa. 1967); Feldman v. Hoffman, 107 A.3d 821, 829-36 (Pa. Cmwlth.

2014); Iudicello v. Department of Transportation, 383 A.2d 1294, 1295 (Pa. Cmwlth. 1978);

Pelagatti v. Cohen, 536 A.2d 1337, 1346 (Pa. Super. 1987); Cooper v. Downingtown School

District, 357 A.2d 619, 621 (Pa. Super. 1976).

11

Inmate did not initiate this action until 2018, well outside the relevant

statute of limitations. Accordingly, Inmate’s POs will be overruled,

Commonwealth Respondents’ POs will be sustained, and the Amended Complaint

will be dismissed as its filing is barred by the foregoing provisions of the Judicial

Code. See, e.g., In re Risperdal Litigation, 223 A.3d 633, 640 (Pa. 2019)

(“Generally, ‘a cause of action accrues, and thus the applicable limitations period

begins to run, when an injury is inflicted.’ ‘Once a cause of action has accrued and

the prescribed statutory period has run, an injured party is barred from bringing his

cause of action.’”) (citations omitted).17

Nevertheless, Inmate claims that the statute of limitations has been

tolled because he was not aware of the illegal use of the initial pen register until

Melissa Kessler (Kessler) visited him in prison in 2014,18 and he was not made

17

As the Superior Court has stated, in relevant part:

Once the prescribed statutory period for commencing a cause of

action has expired, the complaining party is barred from bringing

suit. Lack of knowledge, mistake or misunderstanding does not

toll the running of the statute of limitations. The defense of statute

of limitations is not a technical defense, but substantial and

meritorious. “Mere delay, extended to the limit prescribed, is itself

a conclusive bar.” There is a strong policy in Pennsylvania courts

favoring the strict application of statutes of limitation. It is the

duty of a party asserting a cause of action to use all reasonable

diligence to be properly informed of the facts and circumstances

upon which a potential right of recovery is based and to institute

suit within the prescribed statutory period. An action may be

commenced by filing either a praecipe for a writ of summons or a

complaint with the prothonotary.

Booher v. Olczak, 797 A.2d 342, 345 (Pa. Super. 2002) (citations omitted).

18

Regarding his interaction with Kessler, the Amended Complaint states, in relevant part:

(Footnote continued on next page…)

12

aware of the illegality of the initial pen register, and the subsequent criminal

investigation and prosecution based thereon, by Commonwealth Respondents

within the controlling limitations period.19 Inmate contends that because he was

not provided discovery in the criminal prosecution demonstrating the alleged

illegality of the initial pen register, Commonwealth Respondents’ actions have

tolled the applicable statute of limitations in the instant civil action under the Act.

The doctrine of equitable tolling protects any party who, “through no

fault of [his] own, is unable to assert [his] rights in a timely manner.”

(continued…)

[Kessler] came to visit [Inmate] in prison at [SCI-]

Smithfield on or about March 21-22, 2014.

[Kessler] told [Inmate] that she heard that “the first pen

register was started early without a valid court order.” [Kessler]

then asked [Inmate] “if he knew this fact.” [Inmate] responded,

“No I did not know the pen register was started early without a

valid court order.” Then [Kessler] asked [Inmate] “if he knew if

any of the co-defendants challenged the illegal pen register.”

[Inmate] responded, “No I do not believe any of the co-defendants

challenged the illegal pen register.” [Kessler] asked Inmate “if any

of the co-defendants knew if the pen register was started illegally.”

[Inmate] responded, “No I do not believe that they knew the pen

register was started early without a valid court order.”

Amended Complaint at 24-25, 34, 42, 52, 61-62.

19

In considering the issue of the equitable tolling of the applicable statute of limitations,

we are limited to considering the allegations raised in Inmate’s POs and in his Answer to

Commonwealth Respondents’ POs. See, e.g., Prevish v. Northwest Medical Center—Oil City

Campus, 692 A.2d 192, 197-98 (Pa. Super. 1997), aff’d, 717 A.2d 1023 (Pa. 1998) (holding that

a plaintiff waived the claim that the discovery rule tolled the applicable statute of limitations

where the plaintiff did not plead sufficient facts in the complaint or in the responsive pleading to

the defendant’s preliminary objections that implicitly raised the statute of limitations issue, but

first raised the claim in a statement of errors complained of on appeal).

13

DaimlerChrysler Corporation v. Commonwealth, 885 A.2d 117, 119 n.5 (Pa.

Cmwlth. 2005), aff’d, 927 A.2d 201 (Pa. 2007). As a result, the “discovery rule

applies to toll the statute of limitations in any case in which a party is reasonably

unaware of his or her injury at the time his or her cause of action accrued.”

Gleason v. Borough of Moosic, 15 A.3d 479, 485 (Pa. 2011). Under the discovery

rule, “the point at which a party should have been reasonably aware of his or her

injury and its cause” fixes the commencement date of the statute of limitations

period. Id. See also Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997) (“The

discovery rule provides that where the existence of the injury is not known to the

complaining party and such knowledge cannot reasonably be ascertained within

the prescribed statutory period, the limitations period does not begin to run until

the discovery of the injury is reasonably possible.”).

Likewise, equitable tolling may apply “[i]f through fraud or

concealment the defendant causes the plaintiff to relax his or her vigilance or

deviate from his or her right of inquiry.” DEEK Investment, L.P. v. Murray, 157

A.3d 491, 497 (Pa. Super. 2017). If a defendant “has actively misled” a plaintiff,

“then the statute of limitations may be equitably tolled.” Glover v. State Farm

Mutual Automobile Insurance Company, 950 A.2d 335, 339 (Pa. Super. 2008).

However, a defendant must have committed an affirmative,

independent act of concealment upon which the plaintiff justifiably relied for the

doctrine of fraudulent concealment to apply. Kingston Coal Company v. Felton

Mining Company, Inc., 690 A.2d 284, 291 (Pa. Super. 1997). “[M]ere silence in

the absence of a duty to speak cannot suffice to prove fraudulent concealment.”

Lange v. Burd, 800 A.2d 336, 339 (Pa. Super. 2002) (citation omitted).

14

Taken as true, the allegations asserted in Inmate’s Amended

Complaint and Answer to Commonwealth Respondents’ POs do not support the

equitable tolling of the applicable statute of limitations herein. As noted above, as

alleged in these pleadings, Inmate has filed a number of actions under the RTKL,

the FOIA, and the PCRA, seeking to vindicate his rights upon learning of the

illegality of the initial pen register in 2014. More specifically, on May 5, 2014,

Inmate filed his fourth PCRA petition20 in which he sought, inter alia, to unseal the

documents relating to the initial pen register to demonstrate its illegality and to

collaterally attack the underlying guilty pleas and the judgment of sentence

imposed thereon. See Inmate’s Brief of Support of POs and in Opposition to

Commonwealth Respondents’ POs, Exhibit A. Thus, as Inmate acknowledges, the

information and documents that he seeks from Commonwealth Respondents to

support his causes of action herein have been sealed by the trial court pursuant to

20

This Court may take judicial notice of official court records and public documents at

the preliminary objection stage. See Pa. R.E. 201(b)(2) (“The court may judicially notice a fact

that is not subject to reasonable dispute because it . . . can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.”); Williams v. Department of

Corrections (Pa. Cmwlth., No. 448 M.D. 2013, filed February 17, 2016), slip op. at 6 n.11

(holding that while the petitioner did not append the trial court’s judgment of sentence to his

petition for review, this Court would take judicial notice of it from the docket entries of his direct

appeal to Superior Court in the matter); Doxsey v. Pennsylvania Bureau of Corrections, 674

A.2d 1173, 1174 (Pa. Cmwlth. 1996) (taking judicial notice of copies of official criminal court

records, which the respondent had attached to its preliminary objection); Styers v. Bedford

Grange Mutual Insurance Company, 900 A.2d 895, 899 (Pa. Super. 2006) (holding that a court

may take judicial notice of a fact “which is incorporated into the complaint by reference to a

prior court action”) (citation omitted). See also 210 Pa. Code §69.414(a) (“Parties may also cite

an unreported panel decision of this Court issued after January 15, 2008, for its persuasive value,

but not as binding precedent.”).

15

the Act21 and, therefore, may not be disclosed by Commonwealth Respondents in

the absence of a court order directing such disclosure.

21

Indeed, Section 5715 of the Act states:

Applications made, final reports, and orders granted pursuant to

this subchapter and supporting papers and monitor’s records shall

be sealed by the court and shall be held in custody as the court

shall direct and shall not be destroyed except on order of the court

and in any event shall be kept for ten years. They may be disclosed

only upon a showing of good cause before a court of competent

jurisdiction except that any investigative or law enforcement

officer may disclose such applications, orders and supporting

papers and monitor’s records to investigative or law enforcement

officers of this or another state, any of its political subdivisions, or

of the United States to the extent that such disclosure is appropriate

to the proper performance of the official duties of the officer

making or receiving the disclosure. In addition to any remedies

and penalties provided by this subchapter, any violation of the

provisions of this section may be punished as contempt of the

court.

18 Pa. C.S. §5715 (emphasis added).

Additionally, Section 5714(b) states, in relevant part:

Immediately upon the expiration of the order or extensions or

renewals thereof, all monitor’s records, tapes and other recordings

shall be transferred to the judge issuing the order and sealed

under his direction. Custody of the tapes, or other recordings shall

be maintained wherever the court directs. They shall not be

destroyed except upon an order of the court and in any event shall

be kept for ten years . . . . The presence of the seal provided by this

section, or a satisfactory explanation for its absence shall be a

prerequisite for the disclosure of the contents of any wire,

electronic or oral communication, or evidence derived therefrom[.]

18 Pa. C.S. §5714(b) (emphasis added). See also 210 Pa. Code §65.75 (“A motion by an

interested party to unseal an application, report, order, or other document previously placed

under seal shall be in writing, shall state specifically the reason for the unsealing order and the

(Footnote continued on next page…)

16

Inmate’s knowledge that the information and documents that he seeks

from Commonwealth Respondents to bolster his causes of action were

automatically sealed by the trial court pursuant to the provisions of the Act is

evidenced by the numerous lawsuits that he and others have filed seeking to

compel the trial court to unseal these items. See, e.g., Baney v. Clerk of Court (Pa.

Cmwlth., No. 280 M.D. 2014, filed July 29, 2014), aff’d, 118 A.3d 383 (Pa. 2015),

slip op. at 1, 2 (“[Inmate] filed a Petition for Writ of Mandamus seeking to compel

the Clinton County Clerk of Courts or Court Administrator to provide him with

documents. [Inmate] avers that he sent the Clerk a request for documents he

needed in order to support claims he sought to raise in a PCRA petition. On March

20, 2014, he requested from the case of Commonwealth v. Carl Johnson, the most

recent filed PCRA; the amended PCRA from David Lindsay; the first four pen

registers and wire taps from around 2001 prior to arrest; and the re-sentencing

order where Johnson received a lower sentence. . . . [Inmate] fails to plead facts

sufficient to establish a right to the relief he requests.”); Kessler v. Public

Documents Pen Register and Wire Taps, 180 A.3d 406, 407 (Pa. Super. 2018)

(“[Kessler] appeals pro se from the [trial court’s] order denying her motion to

intervene and request to view sealed wiretap records in [Inmate’s] completed

criminal case.”); In re Thomas (Pa. Super., No. 1915 MDA 2017, filed May 8,

2018), slip op. at 1 (“April Thomas (Rinehart) appeals pro se from the [trial

court’s] order denying her motion to intervene, requesting to view sealed wiretap

(continued…)

use to be made of the unsealed application, report, order, or other document, and . . . shall be

presented to the judge who ordered the same sealed. The Court, upon good cause shown, may

order an application, report, order, or other document within the Prothonotary’s file to be

unsealed[.]”).

17

records in [Inmate’s] completed criminal case and for recusal of the presiding

judge. Specifically, [Rinehart] seeks, inter alia, the unsealing of records relating to

wiretapped conversation which stemmed from an investigation of illegal drug

activity against her brother, [Inmate] (and others).”).

However, unlike in the underlying criminal proceeding, the named

Commonwealth Respondents are under no duty, and are actually precluded by

court order, from releasing the documents that Inmate seeks from them to support

the causes of actions that he has asserted against them in the instant Amended

Complaint. See, e.g., State ex rel. State Highway Commission v. Texaco, Inc., 502

S.W.2d 284, 289 (Mo. 1973) (“By its very language [Brady v. Maryland, 373 U.S.

83, 86 (1963) (holding that the prosecution has a constitutional duty to disclose

exculpatory evidence to the accused),] obviously applies only to criminal

cases[.]”). As a result, Inmate has failed to allege or demonstrate the requisite

fraudulent concealment on Commonwealth Respondents’ part to toll the statute of

limitations applicable to the causes of action raised in the Amended Complaint.

See Burd, 800 A.2d at 339 (“[M]ere silence in the absence of a duty to speak

cannot suffice to prove fraudulent concealment.”).

Moreover, Inmate’s difficulty in marshalling the sealed evidence that

he seeks to support the causes of action asserted in the Amended Complaint against

Commonwealth Respondents does not toll the applicable statute of limitations for

those causes of actions under the discovery rule as well. See Rivera v. City of

Philadelphia, (E.D. Pa., Civil Action No. 18-2066, filed August 3, 2018), slip op.

at 3 (“Accepting Plaintiff’s allegations as true, which the Court must at this stage,

Plaintiff knew at least as early as the time she was acquitted in 2015 that she had

been injured. Although Plaintiff alleges she obtained better evidence of

18

Defendant[ police officer’s] improper conduct (related to a separate case) in March

[] 2018, that is not a valid basis for invoking the discovery rule to toll the relevant

statute of limitations period, which only applies where it was ‘the latent nature of

the injury that prevented [the claimant] from knowing of it.’”) (citation omitted).

Based on the foregoing, the allegations raised in the Amended

Complaint and the Answer to Commonwealth Respondents’ POs show that, at a

minimum, Inmate was reasonably aware of the injury and its cause as asserted in

the causes of action against the named Commonwealth Respondents in this matter

in March of 2014. As a result, the applicable two-year statute of limitations for

these causes of action began to run at that time and ultimately expired in March of

2016. However, as noted above, Inmate did not file the instant Amended

Complaint until April of 2018, so the causes of action contained therein are barred

by the applicable statute of limitations.

Accordingly, Inmate’s POs are overruled; Commonwealth

Respondents’ POs are sustained; and Inmate’s Amended Complaint is dismissed

with prejudice.

19

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeremy Baney, :

:

Plaintiff :

:

v. : No. 752 M.D. 2018

:

Mike Fisher, Michael T. Madeira, :

Kevin Barr, Christopher Schmidt, :

and Josh Shapiro of the Pa. Attorney :

General's Office, Russ Burcher of :

the Pa. State Police, :

:

Defendants :

PER CURIAM

ORDER

AND NOW, this 26th day of August, 2020, Plaintiff Jeremy Baney’s

preliminary objections to the preliminary objections of the above-named

Defendants are OVERRULED; the preliminary objections of the above-named

Defendants to Plaintiff Jeremy Baney’s Amended Complaint are SUSTAINED;

and Plaintiff Jeremy Baney’s Amended Civil Complaint is DISMISSED with

prejudice. Plaintiff’s Petition to Disclose and Inspect Pen Registers and Wiretaps

is DISMISSED as moot.