B. Moody v. M. Wenerowicz, former Deputy of the DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brandon Moody, :

Appellant :

:

v. : No. 376 C.D. 2021

:

Michael Wenerowicz, former Deputy : Submitted: June 17, 2022

of the Department of Corrections :

("D.O.C."); Keri Moore, Assistant :

Chief Grievance Officer of the :

D.O.C.; Lawrence Mahally, former :

Superintendent of State :

Correctional Institution Dallas :

("SCI Dallas"); Giselle Malet, :

Mailroom Supervisor of :

S.C.I. Dallas :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: May 31, 2023

This case involves claims brought by an incarcerated inmate against

several current or former employees of the Pennsylvania Department of Corrections

(DOC). Appellant Brandon Moody (Moody) alleges that DOC employees wrongfully

confiscated certain items of legal mail that he needed to prepare a petition pursuant to

the Post Conviction Relief Act (PCRA).1 He appeals, pro se, from the December 10,

2020 order of the Court of Common Pleas of Luzerne County, Pennsylvania (trial

court), which 1) sustained the preliminary objections of Appellees Michael

1

42 Pa. C.S. §§ 9541-9546.

Wenerowicz, former Deputy of DOC; Keri Moore, Assistant Chief Grievance Officer

of DOC; and Giselle Malet, Mailroom Supervisor of State Correctional Institution

(SCI) Dallas (SCI-Dallas) (collectively, Appellees),2 and 2) dismissed Moody’s

complaint (Complaint). After careful review, we affirm.

I. FACTS AND PROCEDURAL HISTORY3

Sometime in April 2018, while housed at SCI-Dallas, Moody became

aware of two appellate court cases that discussed “new developments in neuroscience”

related to the cognitive development of adolescents in their late teens and twenties.

The cases and the scientific principles they discussed indicated that these adolescents

have similar brain development as juveniles and, accordingly, have diminished

culpability. (Complaint, O.R. Document (Doc.) 1 ¶¶ 8-13.) Moody intended to use

these cases in the preparation of a PCRA petition challenging the legality of his life

sentence.4 (Id. ¶ 13.) He contacted his “associate,” Sue Wooley, and asked that she

retrieve the two cases and send them to him. She attempted to do on or about April 26,

2018. (Id. ¶ 15.)

On May 7, 2018, Moody received an “Unacceptable Correspondence

Form” from the mailroom at SCI-Dallas informing him that certain pieces of legal mail

from Wooley had been confiscated. (Id. ¶ ¶ 18-20.) Moody nevertheless continued to

receive other legal mail during this period regarding a pending federal lawsuit he had

filed against other DOC employees (federal suit). (Id. ¶ 16.) Moody filed a formal

2

Appellee Lawrence Mahally, former Superintendent of SCI-Dallas, did not join in the

preliminary objections because he was not properly served with the Complaint.

3

We glean the relevant facts and procedural history from the original record (O.R.)

transmitted from the trial court and from the documents attached to the parties’ filings in this Court.

4

As will be discussed below, Moody is serving a mandatory life sentence imposed after he

was convicted of first-degree murder.

2

grievance, which was denied. (Id. ¶ 28.) While the grievance was pending, on June

13, 2018, Moody’s PCRA petition was denied.5 (Id. ¶ 27.) Moody continued to appeal

the confiscation through the internal administrative process at the DOC, but to no avail.

(Id. ¶¶ 28-34.)

Moody filed his Complaint in the trial court on July 21, 2020. Therein he

alleged that DOC employees 1) retaliated against him because he filed the federal suit,

2) established unlawful confiscation policies, 3) denied him due process, and 4) abused

the administrative process. (Id. ¶¶ 35-42.) He asserted First Amendment6 (Count I),

procedural due process (Count II), substantive due process (Count III), and “malicious

abuse of process” (Count IV) claims. (O.R. Doc. 1.)7

Appellees filed preliminary objections to the Complaint and a brief in

support on October 6, 2020. (O.R. Docs. 9, 10.) In response, on October 27, 2020,

Moody filed a Motion for Extension of Time to File Amended Complaint (First

Extension Motion).8 The trial court granted the motion on November 9, 2020, and gave

5

The PCRA court denied Moody’s first PCRA petition without a hearing. See Commonwealth

v. Moody (Pa. Super., No. 2184 EDA 2018, filed August 19, 2019), 2019 WL 3913232, at *2. Moody

appealed the PCRA court’s decision, and the Superior Court affirmed. Id. at slip op. 17, 2019 WL

3913232, at *7 (“We have thoroughly reviewed the trial record, this Court’s opinion on direct appeal,

and the PCRA court’s opinion; the record supports PCRA counsel’s analysis that either Moody had

waived his claims or they lacked merit.”)

6

U.S. Const. amend. I.

7

The Complaint was not endorsed with a Notice to Defend as required by Pennsylvania Rule

of Civil Procedure (Pa.R.Civ.P.) 1018.1(a).

8

Pursuant to the “prisoner mailbox rule,” filings from incarcerated individuals in civil

proceedings are deemed to be filed as of the date they are deposited in the prison mailbox or are given

to prison officials for mailing. Kittrel v. Watson, 88 A.3d 1091, 1097 (Pa. Cmwlth. 2012). Cf.

Pa.R.A.P. 121(f) (pro se filings by incarcerated individuals are deemed filed “as of the date of the

prison postmark or the date the filing was delivered to the prison authorities for purposes of mailing

(Footnote continued on next page…)

3

Moody 20 days, or until November 30, 2020,9 to file an amended complaint. (O.R.

Doc. 17.) Appellees thereafter filed a second set of preliminary objections substantially

identical to the first set (Preliminary Objections). (O.R. Doc. 19.)10 In the Preliminary

Objections, Appellees demurred to Moody’s Complaint on multiple grounds.

On December 3, 2020, after the trial court’s November 30, 2020 deadline,

Moody filed a second Motion for Extension of Time to File An Amended Complaint

(Second Extension Motion), which was received by the trial court on December 9,

2020. (O.R. Doc. 20.) The trial court denied the motion the same day and sustained

Appellees’ Preliminary Objections the following day. (O.R. Docs. 22, 24.) The

prothonotary mailed a copy of the trial court’s December 10, 2020 order to Moody on

December 12, 2020.11 On December 15, 2020, the prothonotary received and filed an

amended complaint dated December 9, 2020 (Amended Complaint). (O.R. Doc. 28.)

as documented by a properly executed prisoner cash slip or other reasonably verifiable evidence.”)

Moody’s filings are not accompanied by either cash slips or other evidence indicating the date on

which they were deposited in the mail or with prison authorities for mailing. Nevertheless, neither

the trial court nor Appellees have challenged the application of the prisoner mailbox rule to Moody’s

filings. We accordingly will utilize the date on the filings, and not the date they were received by the

trial court prothonotary, for purposes of considering the issues in this appeal.

9

The 20-day deadline for filing an amended complaint expired on November 29, 2020, a

Sunday. The deadline therefore extended to the next business day, or Monday, November 30, 2020.

See Pa.R.Civ.P. 106(b).

10

Only Appellees Wenerowicz and Moore filed preliminary objections on October 6, 2020,

as only they had properly been served with the Complaint. After Appellee Malet was served,

Appellees Wenerowicz, Moore, and Malet filed the second set of preliminary objections on

November 9, 2020 (O.R. Doc. 19).

11

The prothonotary’s envelope is postmarked December 12, 2020, and was mailed to Moody

at SCI-Camp Hill, P.O. Box 8837, 2500 Lisburn Rd., Camp Hill, PA 17001-8837. The envelope also

contains an “Unable to Forward” label that appears to be dated January 21, 2021. (O.R. Doc. 32.)

4

On February 10, 2021, the prothonotary received a “Notice of Nunc Pro

Tunc Appeal” dated January 27, 2021 (Notice of Appeal).12 (O.R. Doc. 32.) Moody

did not file a separate petition requesting permission to appeal nunc pro tunc, and the

trial court did not conduct an evidentiary hearing to determine if nunc pro tunc relief

was appropriate. The trial court nevertheless addressed the timeliness of Moody’s

appeal and the availability of nunc pro tunc relief in its opinion pursuant to

Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1925(a) (Trial Court Opinion)

(O.R. Doc. 42.). The trial court concluded that, “because [Moody] has failed to

demonstrate fraud or breakdown in the [trial] court’s operation, and because [Moody]

otherwise failed to file timely a notice of appeal, [Moody’s] appeal from the trial

court’s [o]rder of December 10, 2020, should be quashed as untimely.” (Trial Court

Opinion (Op.), O.R. Doc. 42 at 8.)

II. TIMELINESS AND NUNC PRO TUNC RELIEF13

Appeal periods are jurisdictional and cannot be extended by grace or mere

indulgence. H.D. v. Department of Public Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth.

12

The Notice of Appeal initially was received by this Court on February 3, 2021. Pursuant to

Pa. R.A.P. 905(a)(4), we forwarded it to the trial court prothonotary for filing and processing. Pa.

R.A.P. 905(a)(4) (“If a notice of appeal is mistakenly filed in an appellate court, . . . the clerk shall

immediately stamp it with the date of receipt and transmit it to the clerk of the court which entered

the order appealed from, and upon payment of an additional filing fee the notice of appeal shall be

deemed filed in the trial court on the date originally filed.”). The trial court prothonotary received

the Notice of Appeal from this Court on February 10, 2021.

13

On May 5, 2021, we exited a per curiam order directing the parties to address the timeliness

of Moody’s appeal either in their principal briefs or in an appropriate motion. Appellees did not file

a motion to quash on timeliness grounds. On August 16, 2021, this Court received from Moody a

“Motion to Direct [DOC] Officials to Release Their Privileged Mail Log and to Remand This Matter

to the Lower Court” (Remand Motion). In the Remand Motion, which Moody mailed on August 10,

2021, he requests that we direct the DOC to produce certain documents and remand the case to the

trial court for an evidentiary hearing to determine whether he is entitled to nunc pro tunc relief. As

discussed below, because we ultimately conclude that nunc pro tunc relief is appropriate and that the

appeal is without merit, we will dismiss Moody’s motion as moot.

5

2000) (citations omitted). However, in very limited circumstances, an appeal period

may be extended to allow for an appeal nunc pro tunc. The law regarding nunc pro

tunc appeals is well established. A nunc pro tunc appeal may be allowed where

“extraordinary circumstances” involving fraud or a breakdown in the judicial process

caused the delay in filing, or where non-negligent circumstances related to the

appellant, his or her counsel, or a third party caused the delay. Cook v. Unemployment

Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996). A party seeking

permission to file a nunc pro tunc appeal also must establish the following: (1) he filed

the appeal shortly after learning of, and having an opportunity to address, the

untimeliness; (2) the elapsed time is one of very short duration; and (3) the appellee

will not suffer prejudice due to the delay. H.D., 751 A.2d at 1219. Additionally,

[n]othing jurisdictional prohibits either [this C]ourt [or the

trial court] from entertaining an appeal nunc pro tunc. When,

however, a nunc pro tunc appeal involves a factual

determination, the better forum to entertain the appeal is the

trial court so that an evidentiary hearing may be conducted.

In contrast, if the parties can agree on the facts, there is no

reason why we would not entertain the appeal.

Weiman by Trahey v. City of Philadelphia, 564 A.2d 557, 559 (Pa. Cmwlth. 1989)

(italics provided) (citations omitted).

Appellees concede that Moody did not receive the trial court’s December

10, 2020 order until after the appeal period had expired. In their brief, Appellees

acknowledge that, “[a]ccording to [DOC] records, Moody was transferred from [SCI-

Dallas] to [SCI-Camp Hill] five days after the trial court issued its final order. And it

appears the order from the trial court was received by [SCI-Dallas] on the day of

Moody’s transfer, was forwarded to his new location at [SCI-Camp Hill], and was

delivered to Moody in late January.” (Appellees’ Br. at 14-15.) Although these facts

are not substantiated by record evidence, they match the version of events that Moody

6

posits throughout his papers. And, although parties cannot by stipulation extend an

appeal deadline and thereby confer subject matter jurisdiction on this Court by

agreement, see Greenberger v. Pennsylvania Insurance Department, 39 A.3d 625, 629

n. 5 (Pa. Cmwlth. 2012), the parties may nevertheless agree on the material facts

necessary to determine whether nunc pro tunc relief is appropriate. Because no facts

material to that issue remain disputed here, we will consider it.

Although a mere allegation of a failure to receive notice will not itself

justify nunc pro tunc relief, see J.A. v. Department of Public Welfare, 873 A.2d 782,

786 (Pa. Cmwlth. 2005), where the failure to receive notice is due to an intervening

breakdown in operations or the negligence of a third party, nunc pro tunc relief may be

appropriate. See Brown v. Hill (Pa. Cmwlth., No. 388 C.D. 2018, filed August 1, 2019),

2019 WL 3477139, at *4 (failure to send notice of an order constitutes a breakdown in

court operations warranting nunc pro tunc relief, and failure to receive a notice also

can warrant nunc pro tunc relief);14 Bradley v. Pennsylvania Board of Probation &

Parole, 529 A.2d 66, 68 (Pa. Cmwlth. 1987) (where an inmate’s transfer is within the

exclusive control of prison officials, if the untimeliness of the inmate’s appeal was the

result of negligence by the prison officials in failing to forward the notice of

administrative relief denial, the inmate should be granted permission to appeal nunc

pro tunc; prison officials are expected to know the whereabouts of prisoners in their

custody.); Moore v. Pennsylvania Board of Probation & Parole, 503 A.2d 1099 (Pa.

Cmwlth. 1986) (parolee’s failure to receive a copy of the Parole Board’s administrative

appeal or review decision because Parole Board sent decision to the wrong address

warranted nunc pro tunc relief).

14

Unreported decisions of this Court may be cited for their persuasive value pursuant to

section 414(a) of our Internal Operating Procedures, 210 Pa. Code § 69.414(a).

7

Here, the parties agree that Moody did not receive notice of the trial

court’s December 10, 2020 order until sometime in late January 2021, after the 30-day

appeal period had expired. It also is not disputed that Moody’s failure to receive the

notice was not due to his own negligence, but, rather, was caused by a delay in the

forwarding of Moody’s mail to SCI-Camp Hill.15 In this scenario, where the failure to

receive notice is not due to any negligence of the appellant and an intervening third

party fails to timely deliver or forward the notice, we conclude that extraordinary

circumstances exist to warrant nunc pro tunc relief.16 We accordingly accept as timely

filed Moody’s Notice of Appeal and will consider the appeal on the merits.

III. ISSUES ON APPEAL

Moody presents three questions for our review, the first of which,

regarding the availability of nunc pro tunc relief, we have addressed above. Moody’s

second and third issues challenge the trial court’s (1) denial of Moody’s Second

Extension Motion, and (2) dismissal of Moody’s Complaint.

15

Moody filed a Notice of Address Change on January 4, 2021, which indicated that his

service address had changed to SCI-Camp Hill. The Notice is dated December 20, 2020. (O.R. Doc.

30.)

16

This case is distinguishable from the case relied upon by the trial court, Puckett v.

Department of Transportation, Bureau of Driver Licensing, 804 A.2d 140 (Pa. Cmwlth. 2002).

There, we concluded that “extraordinary circumstances” did not exist to warrant nunc pro tunc relief

where the licensee’s incarceration and subsequent failure to notify the Department of Transportation

(PennDOT) of his change of address caused his untimely appeal. Id. at 143-44. Although we

acknowledged that actions of third parties can render a timely appeal impossible and justify nunc pro

tunc relief, we further cautioned that nunc pro tunc relief will be granted only when the litigant

himself did not act in a negligent manner. Id. at 143. Because the licensee in Puckett failed to provide

PennDOT with an updated address and “was not in any other way incapacitated from filing an appeal

of his license suspension while serving out his sentence on the criminal charges,” nunc pro tunc relief

was not warranted. Id. at 144. Here, Moody’s transfer from SCI-Dallas to SCI-Camp Hill was

facilitated by the DOC, and there is no evidence that Moody was negligent in failing to notify the trial

court of the change. He filed a change of address form on December 20, 2021, which was received

by the prothonotary on January 4, 2021. (O.R. Doc. 30.)

8

IV. DISCUSSION

A. SECOND EXTENSION MOTION

In his second issue, Moody argues that the trial court abused its discretion

in denying his Second Extension Motion. We disagree.

Pennsylvania Rule of Civil Procedure 1026(a) requires that every pleading

subsequent to the complaint be filed within 20 days after service of the preceding

pleading. Pa. R.Civ.P. 1026(a). Regarding preliminary objections specifically, Pa.

R.Civ.P. 1028(c)(1) provides that a party may file an amended pleading as a matter of

course within 20 days of receipt of preliminary objections. See also Pa. R.Civ.P.

1028(e) (“If the filing of an . . . amended pleading . . . is allowed . . . , it shall be filed

within [20] days after notice of the order or within such other time as the court shall

fix.”). Pa. R.Civ.P. 1033(a) provides that a party, either by filed consent of the adverse

party or by leave of court, may at any time amend a pleading. Rule 1003 also provides

that the time for filing or serving pleadings may be waived by agreement of the parties,

and the trial court may, on cause shown, extend or shorten the time for filing pleadings.

Pa. R.Civ.P. 1003. See also Pa. R.Civ.P. 248 (“The time prescribed by any rule of civil

procedure for the doing of any act may be extended or shortened by written agreement

of the parties or by order of Court.”). These rules together provide very clear

procedural options to litigants who must respond to preliminary objections: file an

amended pleading within 20 days, obtain an extension of time by agreement of the

adverse party, or obtain an extension of time by leave of court.

Moody filed his Complaint on July 21, 2020. Two of the Appellees

(Wenerowicz and Moore) filed preliminary objections, endorsed with a Notice to

Plead, on October 6, 2020. Rather than file an amended complaint as a matter of course

within 20 days pursuant to Pa. R.Civ.P. 1028(c)(1), Moody instead filed his First

9

Extension Motion on October 27, 2020. The trial court granted the motion on

November 9, 2020, giving Moody an additional 20 days, or until November 30, 2020,

to file an amended complaint. Appellees Wenerowicz, Moore, and Malet filed new

preliminary objections the same day, establishing a deadline for filing an amended

complaint as a matter of course on November 30, 2020. Moody neither complied with

the trial court’s order nor with Rule 1028(c)(1). Instead, he filed his Second Extension

Motion on December 3, 2020. The trial court denied the motion the day it was received

by the prothonotary (December 9, 2020) and, the following day, sustained Appellees’

preliminary objections and dismissed the Complaint.

A court will not be reversed for its refusal to waive noncompliance with

its rules absent an “abuse of discretion” causing “manifest and palpable injury.”

Gordon v. Board of Directors of West Side Area Vocational Technical School, 347

A.2d 347, 351 (Pa. Cmwlth. 1975). “An abuse of discretion is more than just an error

in judgment and, on appeal, the trial court will not be found to have abused its discretion

unless the record discloses that the judgment exercised was manifestly unreasonable,

or the result of partiality, prejudice, bias or ill-will.” Belleville v. David Cutler Group,

118 A.3d 1184, 1195 (Pa. Cmwlth. 2015) (quoting Commonwealth v. Smith, 673 A.2d

893, 895 (Pa. 1996)).

We discern no abuse of discretion in the trial court’s decision to deny

Moody’s Second Extension Motion. Moody obtained, and then disregarded, one

extension of time to file an amended complaint. He at no point otherwise responded

to Appellees’ Preliminary Objections. In his Second Extension Motion, Moody

acknowledged the trial court’s original deadline, but nevertheless indicated that

“enhanced quarantine” protocols precluded him from timely filing an amended

complaint. We do not see why Moody was able to file his Second Extension Motion

10

but could not timely file an amended complaint within the time periods established by

the Rules of Civil Procedure and the trial court’s order. We simply cannot conclude

that the trial court’s ruling was manifestly unreasonable or the result of partiality,

prejudice, bias or ill-will. On that basis, we affirm the trial court’s denial of Moody’s

Second Extension Motion.17

B. PRELIMINARY OBJECTIONS18

1. Moody’s Underlying Criminal Case

Because Moody’s entire case rests upon the impact that Appellees’ alleged

confiscation of legal mail had on Moody’s ability to challenge his criminal sentence in

PCRA petitions, we first review at some length the procedural history of Moody’s

underlying criminal case. The Pennsylvania Superior Court summarized it as follows

in disposing of Moody’s second PCRA petition:

In 2006, when Moody was eighteen years and nine months

old, he shot and killed Israel Rivera. A jury found Moody

guilty of first-degree murder and related offenses, and the trial

court sentenced him to a mandatory prison sentence of life

without parole for murder and concurrent sentences for the

other crimes. [The Superior C]ourt affirmed Moody’s

convictions, and our Supreme Court denied allowance of

appeal on November 14, 2011. Moody timely filed a first

17

Moody’s filing his Amended Complaint does not change our conclusion. As of December

3, 2020, the 20-day periods in both Rule 1028(c)(1) and the trial court’s order had expired. Moody

had not obtained an extension by agreement from Appellees, and the trial court denied his extension

motion on December 9, 2020. Accordingly, the Amended Complaint was untimely filed and has no

impact on the disposition of Appellees’ Preliminary Objections.

18

This Court’s review of an order sustaining preliminary objections is limited to determining

whether the trial court abused its discretion or committed an error of law. Factor v. Goode, 612 A.2d

591, 592-93 (Pa. Cmwlth. 1992). In ruling on preliminary objections in the nature of a demurrer, the

trial court must accept as true all well-pled facts and inferences that may be reasonably deduced

therefrom. Id. at 593. The trial court should sustain a demurrer only in cases that are clear and free

from doubt. Id.

11

PCRA petition in 2012, and the [PCRA] court appointed

counsel (“PCRA counsel”), who filed a no-merit letter and a

petition to withdraw from representation. Lengthy

proceedings ensued, during which Moody filed pro se

responses to counsel’s no-merit letter and sought leave to file

amended petitions, and asserted PCRA counsel’s

ineffectiveness for filing a no-merit letter. The PCRA court

issued a [Pa.R.Crim.P. 907] notice, and Moody filed a pro se

response again seeking leave to amend his petition and, in

relevant part, asserting a new claim that the mandatory

imposition of a life without parole sentence was

unconstitutional because Miller v. Alabama, 567 U.S. 460

(2012), should be extended to offenders over the age of

eighteen. The PCRA court ordered PCRA counsel to respond

to Moody’s pro se filings, and PCRA counsel filed a

supplemental no-merit letter. In June 2018, the PCRA court

denied relief without a hearing and permitted PCRA counsel

to withdraw. Moody took a pro se appeal, and this Court

affirmed the PCRA court's denial of Moody’s first PCRA

petition. Our Supreme Court denied allowance of appeal on

March 16, 2020.

Moody filed the instant pro se PCRA petition, his second, in

March 2021, wherein he asserted that the mandatory

imposition of his life without parole sentence was

unconstitutional. Moody acknowledged that Miller did not

apply to offenders over eighteen years of age and maintained

that he was not attempting to “extend” Miller. Rather, Moody

claimed that he obtained new information that individuals

over eighteen years old have similar behaviors, cognitive

levels, and brain functions as those under eighteen years old.

Those facts, he noted, had been discussed by or presented to

other courts in Cruz v. United States, [D. Conn., No. 11-CV-

787 (JCH), filed Mar. 29, 2018, vacated and remanded, 826

Fed. App’x 49 (2d Cir. 2020), 2018 WL 1541898 (Cruz)], and

People v. Antolin Garcia-Torres, [Ca. Super. Ct., No.

213515, filed ___ , 2017 (Garcia-Torres)]. He also alleged

that prison officials had interfered with the timely

presentation of his constitutional claim by confiscating his

mail containing documents related to Cruz and Garcia-Torres

12

and refusing him access to his mail before the PCRA court

denied relief on his first PCRA petition.

In sum, Moody asserted that he discovered more recent

scientific studies to challenge the categorical distinction

between individuals, like himself, who were just over

eighteen years old at the time of their offense and those who

were under eighteen years of age. Moody concluded that he

properly alleged newly discovered facts and governmental

interference so that the PCRA court had jurisdiction to

consider his claims that his sentence constituted a cruel and

unusual punishment and denied him equal protection.

The PCRA court . . . dismissed the petition on October 21,

2021. Moody timely appealed.

Commonwealth v. Moody (Pa. Super., 2485 EDA 2021, filed February 27, 2023), slip

op. at 1-5, 2023 WL 2232644 at *1-*3 (internal citations and footnotes omitted).

Although Moody acknowledged that his second PCRA petition was untimely, he

nevertheless contended that he alleged sufficient “newly discovered facts” about brain

functioning and “governmental interference” by the DOC to bring his petition within

two of the timeliness exceptions found at 42 Pa. C.S. § 9545(b)(1). Id., slip op. at 10,

2023 WL 2232644 at *4.

The Superior Court rejected Moody’s arguments and concluded that the

petition was untimely. In doing so, it noted as follows:

Our review shows that Moody attempted to litigate a similar

unconstitutional sentencing claim in relation to his first

PCRA petition, although PCRA counsel at the time asserted

that his attempt to extend Miller to offenders over eighteen

years old was meritless. Although Moody references Dr.

Bigler’s and Dr. Steinberg's discussions of more recent

studies, those studies constitute new sources of existing facts

or scientific principles for the purpose of the PCRA time bar,

not new facts or scientific principles.

13

Furthermore, Moody’s arguments based on the governmental

interference and the new facts exceptions in section

9545(b)(1)(i) and (ii) rely on his actual discovery of the

materials in Garcia-Torres and Cruz, which prison officials

delayed when refusing to forward him filings from other

cases. However, Moody has not established that the prison’s

mail regulations were illegal or unconstitutional interferences

by government officials. Critically, the record also lacks any

indication that Moody alerted either the first PCRA court or

this Court to these cases or his difficulties obtaining the

materials despite being aware of the information and mailing

issues as early as May 2018. Thus, we conclude that Moody

failed to establish due diligence in obtaining the allegedly

new information discussed in Garcia-Torres and Cruz or in

overcoming the obstacles presented by the prison mailing

system.

Id., slip op. at 10-12, 2023 WL 2232644 at *5 (internal citations and footnotes omitted).

The Superior Court accordingly affirmed the PCRA court’s dismissal of Moody’s

second PCRA petition as untimely.

2. Analysis19

In his Complaint, Moody requested that the trial court (1) declare

Appellees’ conduct to be unlawful, (2) enjoin Appellees from further confiscating

otherwise legally permissible inmate mail, (3) award nominal, compensatory, and/or

punitive damages, and (4) award litigation costs. (Complaint, O.R. Doc. 1 at 9.)

Appellees argued before the trial court and again argue in this Court that all of Moody’s

claims fail as a matter of law. We agree.

19

Although Appellees filed two sets of preliminary objections, they are substantially identical

and lodge the same challenges to Moody’s Complaint. The trial court considered and ruled on them

together in its December 10, 2020 order and subsequent opinion. See Trial Court Op. at 12-13. For

purposes of Moody’s appeal, we consider only the preliminary objections filed by Wenerowicz,

Malet, and Moore on November 9, 2020. See O.R. Doc. 19.

14

All of Moody’s claims relate in some fashion to the alleged confiscation

of his legal mail and the grievance review process that followed. In Count I of his

Complaint, Moody alleged that Appellees “individually, jointly, and collectively”

violated his First and Fourteenth Amendment20 rights by 1) confiscating his legal mail

in retaliation against him, 2) establishing and continuing a general practice of

confiscating prisoner mail, and 3) depriving him of access to the documents he needed

to pursue his PCRA claims, which deprivation ultimately caused the dismissal of his

PCRA petition. (Complaint, O.R. Doc. 1 ¶¶ 35-36.) In Count II, Moody alleged that

Appellees “individually, jointly, and collectively” violated his Fourteenth Amendment

due process rights by 1) not adhering to DOC policies applicable to the confiscation of

mail, 2) not adhering to DOC policies applicable to the review of appeals regarding the

confiscation of mail, and 3) establishing and acquiescing to a practice of confiscating

permissible legal mail for no legitimate penological purpose. (Id. ¶ 38.) In Count III,

Moody alleged that Appellees violated his Fourteenth Amendment substantive due

process rights by confiscating his legal mail and conducting “perfunctory and sham

reviews” of such confiscations. (Id. ¶ 40.) Finally, in Count IV, Moody contended that

Appellees “maliciously abused the administrative process by misusing [DOC] policy

to confiscate legally permissible information.” (Id. ¶ 42.)

We first note that, to the extent that Moody contends that the alleged

confiscation of his mail in any way precipitated the dismissal of his serial PCRA

petitions, the above-quoted language from the Superior Court’s decisions on those

petitions belies any such notion. Both of Moody’s PCRA petitions were dismissed

because they were either without merit or untimely. Although the Superior Court

acknowledged Moody’s argument that he allegedly could not access certain documents

20

U.S. Const. amend. XIV.

15

germane to his PCRA claims, in the end, the claims failed because they were not

cognizable under then-existing Pennsylvania law. Thus, to the extent that Moody’s

Complaint is based on alleged harm to the success of his PCRA petitions, see, e.g.,

Complaint, O.R. Doc. 1 ¶ 27, it fails as a matter of law.

Second, we find persuasive Appellees’ preliminary argument that Moody

failed to allege any specific conduct by them individually that could support any of the

claims asserted in the Complaint, which accordingly must be dismissed in its entirety.

The Pennsylvania Supreme Court has held that a public employee is not vicariously

liable for the actions of subordinates simply because the subordinate is in the

employee’s chain of command. DuBree v. Commonwealth, 393 A.2d 293, 295-96 (Pa.

1978). In civil rights actions, a person’s “liability cannot be predicated on the operation

of [respondeat superior],” but instead must be based on personal involvement that “can

be shown through allegations of personal direction or actual knowledge and

acquiescence” in the alleged wrong. Bush v. Veach, 1 A.3d 981, 986 (Pa. Cmwlth.

2010). Such “allegations must be made with appropriate particularity.” Id. A public

employee’s participation in reviewing grievances and grievance appeals does not

constitute personal involvement. Id. If no personal involvement is averred, the public

employee is immune from suit. DuBree, 393 A.2d at 296.

Moody nowhere in his Complaint alleges the personal involvement of any

Appellee in confiscating his legal mail or developing an unconstitutional confiscation

process. Rather, all of their individual involvement is alleged to have occurred after

Moody filed a grievance. (Complaint, O.R. Doc. 1 ¶¶ 22, 24-28.) Moody clearly

attempted to rely on respondeat superior to establish his claims, alleging, for example,

that “each [Appellee] had the authority to either relinquish and/or direct [his or her]

subordinates to relinquish the confiscated materials over to [Moody] once it was

16

brought to [his or her] attention that [he or she was] required to assist him” in the PCRA

process. (Id. ¶ 34.) Without more, these allegations of Appellees’ involvement in the

grievance process, non-compliance with the DOC’s grievance review policies, and

general acquiescence are insufficient to support individual liability claims related to

the alleged confiscation of Moody’s legal mail. Thus, all claims asserted in the

Complaint fail as a matter of law.21

V. CONCLUSION

Because we conclude that Moody has failed to allege sufficient facts in

his Complaint establishing Appellees’ individual involvement in the acts of which he

complains, the trial court appropriately dismissed the Complaint in its entirety. We

accordingly affirm the trial court’s order sustaining Appellees’ Preliminary Objections.

Given this disposition of the merits of Moody’s appeal, we dismiss as moot his Remand

Motion.22

________________________________

PATRICIA A. McCULLOUGH, Judge

21

We note that the trial court did not expressly rely on these deficiencies to sustain the

Preliminary Objections. See Trial Court Op. at 13-16. Nevertheless, Appellees objected to the

Complaint on these grounds in their Preliminary Objections and supporting brief, see O.R. Docs. 9,

10, 19, and they again raise these issues on appeal. We may affirm the decision of a trial court if the

result is correct on any ground, and it need not be the same ground upon which the trial court itself

relied. Kraiser v. Horsham Township, 455 A.2d 782, 784 (Pa. Cmwlth. 1983).

22

Given our disposition of Moody’s appeal, we do not, because we need not, address

Appellees’ other Preliminary Objections to Moody’s Complaint.

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brandon Moody, :

Appellant :

:

v. : No. 376 C.D. 2021

:

Michael Wenerowicz, former Deputy :

of the Department of Corrections :

("D.O.C."); Keri Moore, Assistant :

Chief Grievance Officer of the :

D.O.C.; Lawrence Mahally, former :

Superintendent of State :

Correctional Institution Dallas :

("SCI Dallas"); Giselle Malet, :

Mailroom Supervisor of :

S.C.I. Dallas :

ORDER

AND NOW, this 31st day of May, 2023, the December 10, 2020 order

of the Court of Common Pleas of Luzerne County is hereby AFFIRMED. It further

is Ordered that Appellant Brandon Moody’s “Motion to Direct [Department of

Corrections] Officials to Release Their Privileged Mail Log and to Remand This

Matter to the Lower Court” is hereby DISMISSED as moot.

________________________________

PATRICIA A. McCULLOUGH, Judge