E. Graziano v. J. Wetzel, Sec., PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Graziano, :

Petitioner :

:

v. : No. 468 M.D. 2019

: Submitted: August 28, 2020

John Wetzel, Secretary of the :

Pennsylvania Department of :

Corrections, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge1

HONORABLE ANNE E. COVEY, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: November 9, 2021

Before the Court in our original jurisdiction are the preliminary objections of

John Wetzel, Secretary of the Pennsylvania Department of Corrections

(Department), to inmate Edward Graziano’s pro se amended petition for review

(amended petition). Graziano seeks a declaratory judgment that the Department’s

“Swift, Certain and Fair” (SCF) sanction procedure violates his constitutional rights

and various state laws and injunctive relief to prohibit further implementation of the

SCF sanction procedure.2 Graziano also seeks leave to file a second amended

1

This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson

became President Judge.

2

In an unreported, single-judge opinion of this Court, Judge Fizzano Cannon denied an

amended motion for preliminary injunction filed by Graziano. Graziano v. Wetzel (Pa. Cmwlth.,

petition for review. For the following reasons, we sustain the Secretary’s

preliminary objections, in part, overrule the Secretary’s preliminary objections, in

part, and grant Graziano’s application for leave to file a second amended petition for

review.

I. BACKGROUND

Graziano avers in the amended petition that the Department adopted the SCF

sanction procedure that is being implemented within the Department’s state

correctional institution (SCI) housing units. (Amended Petition (Am. Pet.) ¶ 4.)

Graziano avers that the SCF sanction procedure applies to all inmates in the housing

unit with or without the inmate’s consent. (Am. Pet. ¶ 13.) The SCF sanction

procedure has its own guidelines and targets preexisting rule infractions.3

The SCF sanction procedure requires staff members who witness any

infractions in the housing unit to complete a SCF infraction sheet, setting forth the

inmate’s name and inmate number, the date of the infraction, and the type of rule

infraction involved for review by the Unit Sergeant. (Am. Pet. ¶¶ 5-6; Ex. A.1 ¶

1(a), (b); Ex. A.2.) With a level one sanction, which is applicable when an inmate

has four or fewer SCF infractions within the last 365 days, the Unit Sergeant can

punish the inmate with a reprimand and warning or provide a greater punishment up

to and including five days of cell restriction. (Am. Pet. ¶ 6; Ex. A.2.) The Unit

No. 468 M.D. 2019, filed March 1, 2021). In so doing, Judge Fizzano Cannon described the

amended petition for review as differing from the original petition for review in two notable

respects. “First, the amended petition names [Secretary Wetzel (Secretary)] as the sole respondent.

Second, the amended petition makes no allegations relating to any application of the SCF program

to Graziano. Instead, the amended petition alleges that the SCF policy is being implemented in

every housing unit within the SCI system.” Id., slip op. at 3 (record citations omitted).

3

The Department and the parties use the words “violation,” “infraction,” and “misconduct”

interchangeably in the relevant regulations, policies, procedures, and pleadings. In this opinion,

we consider all three terms that describe the event when an inmate violates a Department rule to

have the same meaning.

2

Sergeant then counsels the inmate, requests the inmate sign the SCF infraction sheet,

and provides the inmate with a copy of the form. (Am. Pet. ¶ 6; Ex. A.1 at ¶ 1(c).)

The accused inmate is not afforded the opportunity to be heard. (Am. Pet. ¶ 6.)

If the inmate’s misconduct history reveals that it is the inmate’s fifth, sixth, or

seventh SCF infraction in the past 365 days, the Unit Manager completes the “level

two” section on the SCF infraction sheet and determines the inmate’s sanction based

on the level two sanction guidelines. (Am. Pet. ¶ 9; Ex. A.1 ¶ 1(d); Ex. A.2.) The

level two sanction guidelines require that the matter be treated as an informal

misconduct, resulting in seven to twenty-one days of cell restriction, depending on

if it is the inmate’s fifth, sixth, or seventh infraction. (Am. Pet. ¶ 9; Ex. A.1 ¶ 1(d);

Ex. A.2.) The decision is not the result of a formal adjudication based on the

inmate’s guilt or innocence of the charge. (Id.)

If the SCF infraction is the eighth or more of its kind within the prior 365 days,

a Department hearing examiner (Hearing Examiner) becomes involved for a formal

resolution. (Am. Pet. ¶ 10.) If the inmate is found or pleads guilty to the SCF

infraction before the Hearing Examiner, the Hearing Examiner is required to

sanction the inmate to thirty days of cell restriction in accordance with the SCF

infraction sheet “level three” guidelines. (Am. Pet. ¶ 11; Ex. A.2.) All SCF

sanctions run consecutively to any previously incurred sanction. (Am. Pet. ¶ 12.)

Graziano contends that the SCF sanction procedure violates his rights under

numerous provisions of the United States and Pennsylvania Constitutions;

specifically, he appears to assert violations of his procedural due process rights and

substantive due process rights.4 Graziano argues that the SCF sanction procedure is

4

The guarantee of due process emanates from the Fourteenth Amendment to the United

States Constitution and from Article I, Section 1 (Inherent rights of mankind); Section 9 (Rights

3

facially unconstitutional and unconstitutional as applied to him. Much of his due

process argument focuses on his characterization of impermissible commingling of

functions.

Graziano also seeks declaratory relief that the SCF sanction procedure

constitutes an invalid regulation. In support of that position, Graziano asserts that

the SCF sanction procedure functions as a regulation but was not promulgated

pursuant to the Commonwealth Documents Law (CDL),5 the Regulatory Review

Act (RRA),6 and the Commonwealth Attorneys Act (CAA).7 Furthermore, Graziano

contends that the SCF sanction procedure is unreasonable, inconsistent with the

Department’s Inmate Discipline regulation (37 Pa. Code § 93.10) and its Inmate

Discipline policy (DC-ADM 801), and void for vagueness because it does not

interpret or reference the Inmate Discipline regulation and Inmate Discipline policy.8

Graziano also appears to seek declaratory relief arguing that the SCF sanction

procedure fails to protect or provide equitable provisions for inmates in violation of

of accused in criminal prosecutions); and Section 11 (Courts to be open; suits against the

Commonwealth) of the Pennsylvania Constitution.

5

Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602, and 45 Pa. C.S.

§§ 501-907, which, collectively, are known as the “Commonwealth Documents Law.”

6

Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§ 745.1-.14.

7

Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§ 732-101 to -506.

8

37 Pa. Code § 93.10(a) requires the Department to provide inmates with “[r]ules which

define expectations and prohibitions for inmate behavior.” The regulation also establishes two

classes of misconduct charges, Class I and Class II, and the types of sanctions that may be imposed

for a violation of the prison rules. Id. The regulation mandates that the Department provide written

procedures for inmate discipline that include written notice of charges; the opportunity for the

inmate to tell his or her story and to present relevant evidence; assistance from an inmate or staff

member at the hearing if the inmate is unable to collect and present evidence effectively; a written

statement of the decision; and the opportunity to appeal. 37 Pa. Code § 93.10(b). The Department

must provide the written procedures in the Inmate Handbook and its policy DC-ADM 801—

Inmate Discipline. Id.

4

the Mental Health and Intellectual Disability Act of 1966 (Mental Health Act).9

Graziano seeks an injunction directing the Secretary to suspend implementation and

enforcement of the SCF sanction procedure as currently structured and declaratory

relief concerning his various constitutional and state law theories.

Secretary Wetzel filed six preliminary objections to the amended petition.10

First, Secretary Wetzel objects to this Court’s original jurisdiction over Graziano’s

claims concerning internal prison disciplinary matters. Second, Secretary Wetzel

contends that Graziano failed to state a due process claim pursuant to the Fourteenth

Amendment to the United States Constitution. Third, Secretary Wetzel contends

that Graziano lacks standing to challenge the SCF sanction procedure because he

fails to assert how it adversely affected him. Fourth, Secretary Wetzel contends that

any claim against him pursuant to the Pennsylvania Constitution and the remedy of

mandatory injunctive relief is barred by sovereign immunity. Fifth, Secretary

Wetzel argues that Graziano fails to state a claim that the SCF sanction procedure

violates the RRA, the CDL, and the CAA. Sixth, Secretary Wetzel argues that

Graziano fails to state a claim that the SCF sanction procedure violates the Mental

Health Act.

II. STANDARD OF REVIEW

A petition for review “is a fact[-]pleading document and detailed factual

allegations will generally be required to describe adequately the challenged action.”

Off. of Att’y Gen. ex rel. Corbett v. Locust Twp., 49 A.3d 502, 507 (Pa.

Cmwlth. 2012) (en banc) (citations omitted). In ruling on Secretary Wetzel’s

preliminary objections in the nature of a demurrer, we must accept as true all

9

Act of October 20, 1966, Special Sess. No. 3, P.L. 96, as amended, 50 P.S. §§ 4101-4704.

10

For ease of discussion, we have reordered Secretary Wetzel’s preliminary objections.

5

well-pleaded material allegations in the amended petition for review and any

reasonable inferences that we may draw from the averments. Meier v. Maleski,

648 A.2d 595, 600 (Pa. Cmwlth. 1994). We are not bound by legal conclusions,

unwarranted inferences from facts, argumentative allegations, or expressions of

opinion. Id. We may also consider documents or exhibits attached to the petition.

Diess v. Pa. Dep’t of Transp., 935 A.2d 895, 903 (Pa. Cmwlth. 2007). It is not

necessary for us, however, to accept as true any averments in the petition that conflict

with the exhibits attached to it. Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa.

Cmwlth. 2014). We may sustain preliminary objections only when the law makes

clear that the petitioner cannot succeed on his claim, and we must resolve any doubt

in favor of overruling the demurrer. Id.

III. DISCUSSION

A. Original Jurisdiction

Secretary Wetzel argues that unless Graziano can identify a constitutional

right limited by the Department, the Court does not have original jurisdiction over

claims involving internal prison disciplinary matters.11 (Secretary Wetzel’s

Preliminary Objections ¶ 11.) The Pennsylvania Supreme Court, in Bronson v.

Central Office Review Committee, 721 A.2d 357 (Pa. 1998), closely examined the

scope of our original jurisdiction relating to a prison decision that denied the

inmate’s grievance concerning the confiscation and destruction of his personal

property (i.e., civilian clothing). Bronson, 721 A.2d at 358. Simply stated, “[u]nless

‘an inmate can identify a personal or property interest . . . not limited by the

11

Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. § 761(a)(1), provides, in pertinent

part, that “[t]he Commonwealth Court shall have original jurisdiction of all civil actions or

proceedings . . . [a]gainst the Commonwealth government, including any officer thereof, acting in

his official capacity.”

6

Department [of Corrections’] regulations and which has been affected by a final

decision of the [D]epartment[,]’ the decision is not an adjudication subject to the

court’s review.” Id. at 359 (quoting Lawson v. Dep’t of Corr., 539 A.2d 69, 71 (Pa.

Cmwlth. 1988)).

Graziano contends we have original jurisdiction in this matter because the

SCF sanction procedure “fails to afford inmates procedural due process or comport

with the rudimentary requirements of fair play guaranteed by Article I,

[Sections 9 and 11] of the Pennsylvania Constitution.” (Am. Pet. ¶ 15(a).)

Secretary Wetzel did not file a demurrer to the Pennsylvania Constitutional claims.

At this stage of the proceedings, Graziano has alleged a constitutional right limited

by the Department through a final decision providing us with original jurisdiction in

this matter. Thus, the Secretary’s preliminary objection for lack of original

jurisdiction is overruled.

B. Demurrer to Federal Due Process Claim

1. Demurrer—Federal Procedural Due Process Claim

Secretary Wetzel argues that Graziano fails to state a procedural due process

claim because, in order to trigger federal due process protections, a legally

cognizable liberty interest must be identified. (Secretary’s Preliminary Objection

¶ 15; Secretary’s Brief at 8-9.) “In analyzing a due process claim, the first step is to

determine ‘whether the nature of the interest is one within the contemplation of the

‘liberty or property’ language of the Fourteenth Amendment.’” Lopez v. Pa. Dep’t

of Corr., 119 A.3d 1081, 1085 (Pa. Cmwlth. 2015), aff’d, 144 A.3d 92 (Pa. 2016)

(quoting Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000)). Once it is determined

7

that the interest is protected by the Due Process Clause, the question is then “what

process is due to protect it.” Shoats, 213 F.3d at 143.12

The United States Supreme Court has explained that procedural due process

rights are triggered by a deprivation of a legally cognizable liberty interest. See

Sandin v. Conner, 515 U.S. 472 (1995). Additionally, “[s]tates may under certain

circumstances create liberty interests which are protected by the Due Process Clause

. . . [b]ut these interests will be generally limited to freedom from restraint which,

while not exceeding the sentence in such an unexpected manner as to give rise to

protection by the Due Process Clause of its own force . . . nonetheless imposes

atypical and significant hardship on the inmate in relation to the ordinary incidents

of prison life.” Id. at 483-84 (citing Vitek v. Jones, 445 U.S. 480, 493 (1980)

(addressing transfer to mental hospital); Washington v. Harper, 494 U.S. 210,

221-22 (1990) (addressing involuntary administration of psychotropic drugs)).13

Recently, in Feliciano, we examined whether an inmate who tested positive

for an illicit substance and was sanctioned to thirty days in the Restricted Housing

Unit (RHU) was denied procedural due process because the Department failed to

12

“While decisions of federal district courts and courts of appeals, including those of the

Third Circuit, are not binding on Pennsylvania courts, even where a federal question is involved,

they have persuasive value.” Garber v. Pa. Dep’t of Corr. Sec’y, 851 A.2d 222, 226 n.9 (Pa.

Cmwlth. 2004). “It is appropriate to follow them where the United States Supreme Court has not

spoken.” Id. (citing Weaver v. Pa. Bd. of Prob. & Parole, 688 A.2d 766, 772 n.11

(Pa. Cmwlth. 1997)).

13

To the extent that Graziano’s procedural due process claim is based on alleged violations

of the Department’s internal policies or procedures, we note that the Department’s policies and

procedures do not, in themselves, confer upon inmates any actionable rights. See Williams v.

Wetzel, 232 A.3d 652, 654 (Pa. 2020); Dantzler v. Wetzel, 218 A.3d 519, 523 (Pa. Cmwlth. 2019)

(en banc), abrogated on other grounds by Feliciano v. Pa. Dep’t of Corr., 250 A.3d 1269 (Pa.

Cmwlth. 2021) (en banc).

8

provide him with the misconduct report and urinalysis test results prior to his

misconduct hearing. Feliciano, 250 A.3d at 1274. We explained:

Procedural due process rights are triggered by deprivation of a legally

cognizable liberty interest. For a prisoner, such a deprivation occurs

when the prison “imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.”

[Sandin, 515 U.S. at 484.] Lesser restraints on a prisoner’s freedom

are deemed to fall “within the expected perimeters of the sentence

imposed by a court of law.” Id. If a prisoner ha[s] no protected liberty

interest in remaining free of disciplinary custody, then the state owes

him no process before placing him in disciplinary confinement.

Id. at 1275-76 (quoting Brown v. Blaine, 833 A.2d 1166, 1172 (Pa. Cmwlth. 2003)).

We then reexamined Sandin and its progeny and concluded that, rather than creating

a per se bar against an inmate’s right to procedural due process in each situation

where internal discipline was imposed, Sandin requires a “fact[ ]specific inquiry.”

Id. at 1279. The proper method for determining under Sandin whether an inmate is

entitled to procedural due process in the context of an administrative determination

that affects his housing situation

is to consider (i) the conditions of confinement relative to

administrative segregation, (ii) the duration of that confinement

generally, and (iii) the duration relative to length of administrative

segregation routinely imposed on prisoners serving similar sentences.

We also emphasize that a liberty interest can potentially arise under

less[ ]severe conditions when the deprivation is prolonged or indefinite.

Id. (quoting Aref v. Lynch, 833 F.3d 242, 255 (D.C. Cir. 2016)).

Based on our review of the SCF sanction procedure, we note that the sanctions

range from a written reprimand and warning up to ultimately thirty days of cell

restriction. We have previously held that thirty days of discipline in the form of a

cell restriction did not implicate a liberty interest that requires due process. Dunbar

v. Wetzel (Pa. Cmwlth., No. 75 M.D. 2019, filed January 21, 2020) (per curiam), slip

9

op. at 9;14 Horan v. Newingham (Pa. Cmwlth., No. 2622 C.D. 2015, filed

October 24, 2016), slip op. at 12. Moreover, situations during incarceration, albeit

through discipline or not, that result in a short-term loss of specific privileges such

as the use of the telephone, yard time, visitation, or commissary, are in conformity

with the expected perimeters of the sentence imposed by a court of law. See, e.g.,

Mays v. Kosinski, 86 A.3d 945, 949, 950 n.10 (Pa. Cmwlth. 2014) (holding that

changed custody level and subsequent transfer that results in restricted freedom of

movement and resulted in loss of numerous privileges, including telephone access,

job advancement, and visiting rights were not liberty interests warranting due

process protection); Williams, 232 A.3d at 654 (holding that “the cases are legion

confirming that inmates have no constitutionally[ ]protected interest in maintaining

prison employment”).

Graziano has not sufficiently pled that he was subjected to an atypical and

significant hardship in relation to the ordinary incidents of prison life. There is

nothing in the amended petition, as currently constituted, that would allow us to

conclude that his procedural due process rights were violated. We will, therefore,

sustain Secretary Wetzel’s preliminary objection in the nature of a demurrer, but we

do so without prejudice.

Graziano has sought leave of this Court to file a second amended petition for

review. We are mindful that, “[w]here there is some reasonable possibility that

amendment can be accomplished successfully, the right to amend should not be

withheld.” Lutz v. Springettsbury Twp., 667 A.2d 251, 254 (Pa. Cmwlth. 1995)

(citing Otto v. Am. Mut. Ins. Co., 393 A.2d 450, 451 (Pa. 1978)). Two factors

14

According to Section 414(a) of this Court’s internal operating procedures, 210 Pa. Code

§ 69.414(a), “an unreported panel decision of this Court issued after January 15, 2008,” may be

cited for its persuasive value.

10

support granting Graziano the opportunity to file a second amended petition. First,

while a decision was pending on the preliminary objections, Graziano filed two

applications for preliminary injunctions averring facts clearly related to his federal

procedural due process claims. While we cannot consider the facts averred outside

the pleadings (i.e., Graziano’s applications for preliminary injunctions) for purposes

of the Secretary’s preliminary objections, if Graziano chooses to file a second

amended petition he could include similar averments that could potentially provide

an additional basis for this Court’s exercise of original jurisdiction. Second, and of

greater import, is that we recently provided clear guidance in Feliciano regarding

the necessary components of a legally viable federal procedural due process claim.

The Court decided Feliciano after Graziano submitted his amended petition, the

Secretary filed his preliminary objections, and the parties briefed the issues. We,

therefore, grant Graziano’s application for leave to file a second amended petition

for review and provide him with the opportunity to plead a viable federal procedural

due process claim in line with Feliciano.

2. Demurrer—Federal Substantive Due Process Claim

Liberally construing Graziano’s amended petition, we believe he is also

asserting a substantive due process claim. We will thereby consider Secretary

Wetzel’s preliminary objection in the nature of a demurrer to the federal due process

claim to include Graziano’s substantive due process claim. (Secretary’s Preliminary

Objection ¶ 15; Secretary’s Brief at 8-9.)

“‘The substantive component of the Due Process Clause limits what

government may do regardless of the fairness of procedures that it employs[]’ . . . in

order to ‘guarantee protect[ion] against government power arbitrarily and

oppressively exercised.’” Steele v. Cicchi, 855 F.3d 494, 501 (3d Cir. 2017) (quoting

11

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998); Boyanowski v. Cap. Area

Intermediate Unit, 215 F.3d 396, 399 (3d Cir.), cert. denied, 531 U.S. 1011 (2000)).

To maintain a substantive due process claim the individual must have been deprived

of a particular interest that is protected by the substantive component of the Due

Process Clause itself (and not a state-created liberty interest). Steele, 855 F.3d at

501. “The substantive component of the Due Process Clause provides protection

against government interference with certain fundamental rights and liberty

interests.” Taylor v. Pa. State Police, 132 A.3d 590, 608-09 (Pa. Cmwlth. 2016)

(citing Khan v. State Bd. of Auctioneer Exam’rs, 842 A.2d 936, 946 (Pa. 2004)).

“The protections of substantive due process have for the most part been accorded to

matters relating to marriage, family, procreation, and the right to bodily integrity.”

Albright v. Oliver, 510 U.S. 266, 271-72 (1994) (explaining “[a]s a general matter,

the Court has always been reluctant to expand the concept of substantive due process

because the guideposts for responsible decision[]making in this unchartered area are

scarce and open-ended”).

Where an individual has asserted a liberty interest protected by substantive

due process, he must also show that “the government’s deprivation of that protected

interest shocks the conscience.” Steele, 855 F.3d at 502. “The [United States]

Supreme Court has instructed that we must apply the ‘shocks the conscience’

standard where . . . the challenged government action is executive in nature rather

than legislative.” Id. (citing County of Sacramento, 523 U.S. at 845-47). Yet, we

are also cognizant that the United States “Supreme Court repeatedly has emphasized

that maintaining internal security and order in jails and prisons are ‘legitimate

governmental objectives’ and that courts must give prison officials considerable

12

discretion to manage internal security in their institutions.” Id. at 505 (citing

Sandin, 515 U.S. at 482-83).

Section 506 of The Administrative Code of 192915 empowers Secretary

Wetzel to prescribe rules and regulations concerning the Department’s operations.

The SCF sanction procedure clearly was issued to aid in maintaining internal

security within the SCIs throughout the Commonwealth. Graziano’s claim does not

involve a fundamental right provided for and protected by the substantive

component of the Due Process Clause. Moreover, based on the facts as averred,

Secretary Wetzel’s implementation of the SCF sanction procedure was neither an

arbitrary act that “shocks the conscience” nor is it an example of government power

oppressively exercised. Accordingly, we sustain the Secretary’s preliminary

objection in the nature of a demurrer and dismiss Graziano’s substantive due process

claim with prejudice.

C. Standing

We next review Secretary Wetzel’s preliminary objection that asserts

Graziano lacks standing to challenge the SCF sanction procedure because he does

not aver any facts as to how it adversely affected him in the amended petition.

(Secretary Wetzel’s Preliminary Objections ¶ 13; Secretary’s Brief at 8.) Graziano

seeks a declaratory judgment that the SCF sanction procedure violates his

Pennsylvania and United States constitutional rights.

Petitions seeking declaratory relief are governed by the provisions of the

Declaratory Judgments Act (DJA), 42 Pa. C.S. §§ 7531-7541. As this Court has

previously explained:

The purpose of the [DJA] . . . is to settle and to afford relief from

uncertainty and insecurity with respect to rights, status, and other legal

15

Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 186.

13

relations, and the [DJA] is to be liberally construed and administered.

42 Pa.[ ]C.S. § 7541(a). . . . Declaratory judgment must not be

employed to determine rights in anticipation of events that may never

occur or for consideration of moot cases or as a medium for the

rendition of an advisory opinion which may prove to be purely

academic.

Off. of Governor v. Donahue, 59 A.3d 1165, 1167 n.5 (Pa. Cmwlth. 2013),

aff’d, 98 A.3d 1223 (Pa. 2014) (citations omitted). “[W]hether a court should

exercise jurisdiction over a declaratory judgment proceeding is a matter of sound

judicial discretion . . . of a court of original jurisdiction.” Brouillette v. Wolf,

213 A.3d 341, 357 (Pa. Cmwlth. 2019).

In exercising our discretion, we are cognizant that “[o]ne seeking judicial

resolution of a dispute must satisfy a threshold requirement of standing to bring the

action by demonstrating a substantial, direct and immediate interest in the outcome

of the litigation.” Finn v. Rendell, 990 A.2d 100, 103 (Pa. Cmwlth. 2010).

Specifically:

A substantial interest in the outcome of litigation is one that surpasses

the common interest of all citizens in procuring obedience to the law.

A direct interest requires a causal connection between the asserted

violation and the harm complained of. An interest is immediate when

the causal connection is not remote or speculative.

Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1215 (Pa.

Cmwlth. 2018) (en banc) (citations omitted). An improper petitioner is one “who is

not adversely affected in any way by the matter he seeks to challenge . . . .” Wm.

Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280 (Pa. 1975).

When reviewing Secretary Wetzel’s preliminary objection for lack of

standing, we are limited to the facts pled in the amended petition for review and any

documents or exhibits attached to it. Diess, 935 A.2d at 903. Procedurally, Graziano

cannot incorporate into his amended petition facts pertaining to the SCF infraction

he incurred in March 2019 through his answer to the Secretary’s preliminary

14

objections. Consequently, we will not consider the facts surrounding Graziano’s

March 2019 sanction in our standing analysis.

Graziano is incarcerated under the Department’s jurisdiction and the SCF

sanction procedure applies to him while confined in a SCI. Given the range of

violations enumerated in the procedure and the sanctioning structure, he has a direct

interest in determining whether the SCF sanction procedure violates his rights, and

that interest is not remote or speculative. Moreover, taking into consideration that

the SCF sanction procedure is being applied on a Commonwealth-wide basis, we

believe that it is prudent to review his claims and resolve any uncertainty and

insecurity with respect to rights, status, and other legal relations. Therefore,

Secretary Wetzel’s preliminary objection for lack of standing is overruled.16

D. Sovereign Immunity

Secretary Wetzel next argues that “[a]ny claim pursuant to the Pennsylvania

Constitution is barred by sovereign immunity.”17 (Secretary’s Brief at 8.) The law

is clear, however, that sovereign immunity does not apply to a declaratory judgment

action. Bullock v. Horn, 720 A.2d 1079, 1081-82 (Pa. Cmwlth. 1998) (holding that

“immunity was not intended as a shield for Commonwealth officials against alleged

violations of constitutional and/or statutory rights”); Legal Cap., LLC v. Med. Pro.

Liab. Catastrophe Loss Fund, 750 A.2d 299, 302 (Pa. 2000) (holding sovereign

16

Had we concluded that Graziano failed to aver sufficient facts to establish standing, we

would have allowed him to amend his amended petition to incorporate the facts set forth in his

amended motion for a preliminary injunction.

17

“Sovereign immunity is an affirmative defense which ordinarily should be raised as new

matter, but may be raised in preliminary objections when to delay a ruling thereon would serve no

purpose.” Stackhouse v. Pa. State Police, 892 A.2d 54, 60 n.7 (Pa. Cmwlth.), appeal

denied, 903 A.2d 539 (Pa. 2006) (citing Faust v. Dep’t of Revenue, 592 A.2d 835, 838 n.3 (Pa.

Cmwlth. 1991), appeal denied, 607 A.2d 257 (Pa. 1992)). We note that Graziano did not object

to Secretary Wetzel raising sovereign immunity in his preliminary objections.

15

immunity is not applicable to declaratory judgment actions.); Finn, 990 A.2d at 105.

Accordingly, Secretary Wetzel’s preliminary objection that any claim pursuant to

the Pennsylvania Constitution is barred by sovereign immunity is overruled.

The Secretary also argues that Graziano’s claim seeking injunctive relief is

also barred by sovereign immunity. (Secretary’s Brief at 8.) Graziano filed a

declaratory judgment action that seeks injunctive relief to “suspend the

implementation and enforcement of [the] SCF [sanction procedure] as it is currently

structured.” (Am. Pet., Relief Requested, ¶ B.1.) Graziano, to secure a permanent

injunction, must establish his clear right to relief and the necessity of the relief to

prevent a legal wrong for which there is no adequate redress at law. Singleton v.

Lavan, 834 A.2d 672, 674 (Pa. Cmwlth. 2003).

This Court reviewed what is commonly referred to as the Pennsylvania

Sovereign Immunity Act (Sovereign Immunity Act), 42 Pa. C.S. §§ 8521-8528,

when a party sought injunctive relief from a Commonwealth agency in Bonsavage

v. Borough of Warrior Run, 676 A.2d 1330 (Pa. Cmwlth. 1996). We determined

that the “General Assembly has not waived immunity for equitable claims seeking

affirmative action by way of injunctive relief” and concluded that the plaintiffs’

“claim for injunctive relief against [the Commonwealth agency] is also barred by

sovereign immunity.” Id. at 1331-32 (emphasis omitted).

Ten years later, we held that sovereign immunity bars claims seeking

mandatory injunctive relief to compel affirmative action by Commonwealth

officials.18 Stackhouse, 892 A.2d at 61. A mandatory injunction commands the

18

We later clarified that “[t]he only exception to the rule barring mandatory injunctions

against Commonwealth parties is that an action in mandamus will lie to compel a state officer or

agency to perform a ministerial or mandatory statutory duty.” Finn, 990 A.2d at 105 (citing

Stackhouse, 892 A.2d at 59 n.6).

16

performance of some positive or affirmative act to preserve the status quo and is

granted only in exceptional circumstances. Mazzie v. Cmwlth., 432 A.2d

985, 988 (Pa. 1981); Bd. of Dirs. of Sch. Dist. of City of Scranton v. Roberts,

320 A.2d 141, 144 (Pa. Cmwlth. 1974), aff’d, 341 A.2d 475 (Pa. 1975). Conversely,

sovereign immunity did not bar claims seeking prohibitory injunctions to restrain

state action. Stackhouse, 892 A.2d at 61. A prohibitory injunction enjoins the doing

of an act that will change the status quo. Mazzie, 432 A.2d at 988. We explained

that it is the substance of the relief requested and not the form or phrasing of the

requests that guides our inquiry of the type of injunctive relief sought. Stackhouse,

892 A.2d at 61 (citing Legal Cap., LLC., 750 A.2d at 302-03).

This Court is not convinced at this stage of the litigation that the relief sought

by Graziano may only be granted through the issuance of an affirmative injunction

against the Department. At its core, regardless of verbiage employed, this matter

seeks a declaratory judgment that the Department’s SCF sanction procedure violates

Graziano’s constitutional rights and various state laws and seeks to prohibit the

Department from enforcing the SCF sanction procedure. If Graziano ultimately

prevails in this action, this Court, in fashioning the appropriate relief will be mindful

of the protections afforded the Department through the doctrine of sovereign

immunity. For this reason, we overrule Secretary Wetzel’s preliminary objection

based on sovereign immunity.

E. Demurrer—The RRA, CDL, and CAA

Secretary Wetzel contends that Graziano fails to state a claim that the SCF

sanction procedure violated the RRA and CDL. (Secretary’s Preliminary Objection

¶ 18; Secretary’s Brief at 9.) The Secretary argues that: (1) the SCF sanction

procedure is a bulletin that does not require the formal rulemaking procedures;

17

and (2) the RRA does not create a private cause of action allowing Graziano to

challenge this issue. Graziano argues that the SCF sanction procedure is an “invalid

regulation for failing to comply with the general rule for promulgating regulation[s]

through the formal notice-and-comment rule-making and regulatory-review

procedures prescribed in the [CDL], the [RRA] and the [CAA].” (Am. Pet., Relief

Requested, ¶ A.3.)

1. Formal Rulemaking Procedures Not Required

We will first address whether the SCF sanction procedure was required to be

promulgated in compliance with the CDL, RRA, and CAA. “[T]he first step in

analyzing whether a cause of action has been stated with respect to the [CDL] or

[RRA] is to determine if the [procedures] are in fact ‘regulations’ for purposes of

those acts or if they are . . . mere ‘policy amendments’ or ‘internal prison

management decisions.’” Small v. Horn, 722 A.2d 664, 669 (Pa. 1998). We have

previously explained that the CDL, RRA, and CAA

establish a mandatory, formal rulemaking procedure that is, with rare

exceptions, required for the promulgation of all regulations. Under the

[CDL], an agency must give notice to the public of its proposed

rulemaking and an opportunity for the public to comment. Under the

[RRA], an agency must also submit its proposed regulation to the

[Independent Regulatory Review Commission (IRRC)] for public

comment, recommendation from IRRC, and, ultimately, IRRC’s

approval or denial of a final-form regulation. The [CAA] requires the

agency to submit all proposed regulations to the Attorney General and

Governor’s Office of General Counsel for review of the form and

legality.

Naylor v. Dep’t of Pub. Welfare, 54 A.3d 429, 434 (Pa. Cmwlth. 2012),

aff’d, 76 A.3d 536 (Pa. 2013) (footnotes omitted) (citations omitted). The CDL,

RRA, and CAA provide a procedure that must be followed whenever an

administrative agency issues binding regulations. Martin v. Wetzel (Pa. Cmwlth.,

No. 136 M.D. 2015, filed December 15, 2015), slip op. at 6. An agency, however,

18

does not have to promulgate regulations for every matter under its authority. “Only

those directives that ‘concern the interaction of [Department] inmates and employees

with the community at large’ must be published.” Martin, slip op. at 6 (quoting

Bundy v. Beard, 924 A.2d 723, 727 (Pa. Cmwlth.), aff’d, 941 A.2d 646 (Pa. 2007),

cert. denied, 553 U.S. 1098 (2008)).

Here, the Secretary determined that implementation of the SCF sanction

procedure did not necessitate use of the legislative rule process because the

procedure concerned internal prison management to ensure public safety—

specifically, maintaining order and discipline within the SCIs by sanctioning inmate

misbehavior. As we have previously noted, Secretary Wetzel is empowered to

manage the Commonwealth’s SCIs by prescribing rules and regulations concerning

the Department’s operations. Moreover, the effect of the SCF sanction procedure

on the general public is minimal and not the type of procedure the General Assembly

intended to be subjected to the public participation process of the CDL or RRA.

Accordingly, we sustain Secretary Wetzel’s preliminary objection in the nature of a

demurrer and dismiss this claim with prejudice.

2. No RRA Private Cause of Action

Secretary Wetzel argues that the RRA does not create a private cause of action

allowing Graziano to challenge this issue. Our Supreme Court in Small clearly held

that the RRA does not create a private cause of action. Small, 722 A.2d at 670.

Accordingly, we sustain the Secretary’s preliminary objection in the nature of a

demurrer and dismiss Graziano’s claim with prejudice.

3. Void for Vagueness Claim

Finally, Graziano contends that the SCF sanction procedure “is void for

vagueness to the extent that it [does not] interpret or references [sic] its enabling

19

regulation 37 Pa. Code §[ ]93.10 and DC-ADM 801.” (Am. Pet., Relief

Requested, ¶ A.11.) Secretary Wetzel did not file a preliminary objection in the

nature of a demurrer to this claim. Consequently, this claim remains part of the civil

action at this procedural juncture.

F. Demurrer—Mental Health Act

Secretary Wetzel argues that Graziano fails to state a claim based on the

Mental Health Act, because Graziano does not have a private cause of action to

enforce the Mental Health Act. (Secretary’s Preliminary Objection ¶ 20; Secretary’s

Brief at 9.) Secretary Wetzel directs our attention to Cohen v. Chester County

Department of Mental Health/Intellectual Disabilities Services (E.D. Pa.,

No. 15-5285, filed May 25, 2016), slip op. at 27, to support his position that Graziano

does not have a private cause of action to enforce the Mental Health Act. In Cohen,

the United States District Court for the Eastern District of Pennsylvania held that the

Mental Health Act does not create “an explicit private right of action for

beneficiaries of state-provided services to enforce its provisions against the state or

counties.” Id. at 27. The United States District Court for the Eastern District of

Pennsylvania noted that it has “not identified any such authority.” Id. at 28.

Graziano counters that Naughton v. Bevilacqua, 458 F. Supp. 610

(D.R.I. 1978), supports his claim that he has a private right of action under the

Mental Health Act. We disagree. First, it is important to recognize that the United

States District Court for the District of Rhode Island reviewed the (now-repealed)

Developmental Disabilities Assistance and Bill of Rights Act of 1994 (Disabled

Assistance Act), 42 U.S.C. §§ 6001-6081,19 and not the Commonwealth’s Mental

19

Act of April 6, 1994, Title I, § 102, 108 Stat. 285, repealed by Act of October 30, 2000,

Title IV, § 401(a), 114 Stat. 1737.

20

Health Act. Second, the United States District Court for the District of Rhode Island

reasoned that there was an “implied right” to a cause of action under the Disabled

Assistance Act based on its “legislative scheme, purpose and history.” Graziano,

other than citing to Naughton, fails to persuade us that we should read into the

Commonwealth’s Mental Health Act an “implied right” to a private cause of action

when the General Assembly chose not to provide such a remedy in drafting the

statute.

Graziano similarly relies on Halderman v. Pennhurst State School & Hospital,

612 F.2d 84 (3d Cir. 1979) (Halderman I), to support his argument that he has a

private right of action under the Commonwealth’s Mental Health Act. In

Halderman I, the United States Court of Appeals for the Third Circuit reviewed a

federal district court’s consent decree that granted class action injunctive relief to

persons confined at a state-run school and hospital for the developmentally disabled.

See Halderman I, 612 F.2d at 88-89. The Third Circuit affirmed the district court’s

consent decree and, in relevant part, held that the (now-repealed) Disabled

Assistance Act created substantive rights in favor of the mentally disabled who have

an implied cause of action to enforce those rights. Id. at 97-98.

What Graziano fails to acknowledge is that the United States Supreme Court

reversed the Third Circuit’s decision, holding that the (now-repealed) Disabled

Assistance Act did not create in favor of the mentally disabled any substantive rights

to appropriate treatment in the least restrictive environment. Pennhurst State Sch.

& Hosp. v. Halderman, 451 U.S. 1, 10-11 (1981) (Halderman II). The United States

Supreme Court determined that it “need not reach the question [of] whether there is

a private cause of action,” because the Disabled Assistance Act did not create

substantive rights. Id. at 28 n.21.

21

Finally, our own legal review of the Commonwealth’s Mental Health Act

failed to reveal any support for Graziano’s claim. Instead, we agree with the United

States District Court for the Eastern District of Pennsylvania’s conclusion in Cohen

that the Commonwealth’s Mental Health Act does not create an explicit private right

of action for beneficiaries of state-provided services to enforce its provisions against

the counties—at least not as alleged by Graziano. Accordingly, we sustain Secretary

Wetzel’s preliminary objection in the nature of a demurrer and dismiss this claim

with prejudice.

IV. CONCLUSION

For the reasons discussed above, we sustain the Secretary’s preliminary

objections, in part, overrule them, in part, and grant Graziano’s application for leave

to file a second amended petition for review.

P. KEVIN BROBSON, Judge

22

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Graziano, :

Petitioner :

:

v. : No. 468 M.D. 2019

:

John Wetzel, Secretary of the :

Pennsylvania Department of :

Corrections, :

Respondent :

ORDER

AND NOW, this 9th day of November, 2021, Secretary Wetzel’s preliminary

objections to the amended petition for review in the above-captioned matter are

SUSTAINED, in part, and OVERRULED, in part, as follows:

(1) Secretary Wetzel’s preliminary objection for lack of subject matter

jurisdiction is OVERRULED.

(2) Secretary Wetzel’s preliminary objection in the nature of a demurrer to

Graziano’s federal procedural due process claim is SUSTAINED, but without

prejudice for Graziano to amend his petition for review.

(3) Secretary Wetzel’s preliminary objection in the nature of a demurrer to

Graziano’s federal substantive due process claim is SUSTAINED, with

prejudice.

(4) Secretary Wetzel’s preliminary objection for lack of standing is

OVERRULED.

(5) Secretary Wetzel’s preliminary objections based on sovereign immunity

are OVERRULED.

(6) Secretary Wetzel’s preliminary objection in the nature of a demurrer to

Graziano’s claims concerning (a) the Regulatory Review Act, Act of June 25,

1982, P.L. 633, as amended, 71 P.S. §§ 745.1-.14; (b) the Act of July 31, 1968,

P.L. 769, as amended, 45 P.S. §§ 1102-1602, and 45 Pa. C.S. §§ 501-907,

which, collectively, are known as the “Commonwealth Documents Law”; and

(c) the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, as

amended, 71 P.S. §§ 732-101 to -506, is SUSTAINED, with prejudice.

(7) Secretary Wetzel’s preliminary objection in the nature of a demurrer to

Graziano’s claims based on the Mental Health and Intellectual Disability Act

of 1966, Act of October 20, 1966, Special Sess. No. 3, P.L. 96, as amended,

50 P.S. §§ 4101-4704, is SUSTAINED, with prejudice.

Graziano’s application for leave to file a second amended petition for review

is GRANTED, and he may file a second amended petition within 30 days of service

of this opinion.

P. KEVIN BROBSON, Judge