M.C. Romig v. J. Wetzel ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael C. Romig, :
Petitioner :
:
v. : No. 684 M.D. 2019
: Submitted: September 24, 2021
John Wetzel, Kathy Brittian, :
Keri Moore and Department of :
Corrections, :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: May 23, 2022
Michael C. Romig, pro se, has filed a petition for review in the nature
of a mandamus action against John Wetzel, Kathy Brittain,2 Keri Moore, and the
Department of Corrections (collectively, Department). Romig seeks a judgment
against the Department for failing to handle his mail in a manner required by the
United States Constitution. The Department has filed preliminary objections
seeking the dismissal of Romig’s petition for review, which we sustain in part and
overrule in part.
1
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
2
While her name is spelled “Brittian” in the caption, it appears that the correct spelling is Brittain.
See Petition for Review, 12/17/2019, Attachment at 4.
Romig is an inmate incarcerated at the State Correctional Institution
(SCI) at Frackville. Romig has filed a petition for review3 challenging the
Department’s handling of his mail. The petition alleges that mail for inmates at SCI
Frackville is received and processed at SCI Mahanoy. It further alleges that certified
mail sent to Romig by the “Mifflin County Court of Common Pleas and the within
Tax Bureau,” i.e., “[l]egal [m]ail,”4 was rejected by SCI Mahanoy’s mailroom.
Petition for Review, 12/17/2019, at 2. Because SCI Mahanoy did not notify Romig
that it had rejected this certified mail, Romig filed a grievance, in accordance with
the Department’s inmate grievance system.
Romig’s grievance was denied. SCI Mahanoy’s mailroom supervisor,
F. Walter, responded to Romig on September 19, 2019, stating, in pertinent part, as
follows:
Mail coming from a Sheriff’s Office is not considered legal mail
as per the [Department’s] legal department. Any mail coming
from the Sheriff’s Office should be sent through Smart
3
In December 2019, Romig filed a document titled “Appeal From Administrative Review of
Secretary’s Office of Inmate Grievances & Appeals.” This was followed in March 2020 by a
document titled “Petition for Review (In the Nature of a Complaint in Mandamus),” seeking an
order from this Court requiring the Department to respond to his aforementioned December 2019
filing and to enter a judgment against the Department for damages for failing to perform its “duty
required by law.” Petition for Review, 3/18/2020, at 2. The Petition for Review incorporates by
reference his December 2019 grievance appeal. We view the documents, together, as constituting
Romig’s petition for review and distinguish them herein by date, rather than by the title Romig
assigned to each filing. See Madden v. Jeffes, 482 A.2d 1162, 1165 (Pa. Cmwlth. 1984) (“We do
not hold pro se complainants to the stringent standards expected of pleadings drafted by lawyers,
and will examine the substance of their complaint to determine if [the complainants] would be
entitled to relief if they proved the facts averred.”).
4
Specifically, Romig asserts that the mail from the Tax Claim Bureau contained a “Notice of Tax
Sale, and a 10[-d]ay letter on the same” and that it was returned to sender, without notification to
Romig, which, in turn, led to his “real estate property” being “cleared of [its] contents and sold
multiple times.” Romig’s Brief at 3-4. Romig further asserts that “[b]asically [his] whole life was
in the home.” Id.2
Communications.[5] When mail is refused the mail is not opened
and the inmate is not notified[.]
Petition for Review, 12/17/2019, Attachment at 2. Romig asserts that Walter’s
response “seems to attempt to circumvent regular mail procedure for legal mail
procedure.” Petition for Review, 12/17/2019, ¶6.
Romig appealed the denial of his grievance to Kathy Brittain,
Superintendent of SCI Frackville, who upheld the denial. Brittain explained that
Romig’s grievance was inadequate because he did not “provide a date or any
evidence to substantiate that mail was sent by [the] Mifflin County Court of
Common Pleas” or state in his grievance that the rejected mail was sent by certified
mail. Petition for Review, 12/17/2019, Attachment at 4. Romig notes that it was
impossible for him to provide this information because he never received notice that
his mail had been refused.
Romig appealed Brittain’s response to the Department’s Office of
Inmate Grievances and Appeals, asserting that Brittain incorrectly applied the
Department’s mail policy. In his grievance appeal, Romig further contended that
Brittain’s response did not mention that in his original grievance, he “said that the
mail came from ‘Mifflin County Courthouse’, and relies only on the mention of the
‘[S]heriff’s Office’, [] in [an] attempt to circumvent the circumstances.” Petition for
Review, 12/17/19, Attachment at 5.
The Department’s Chief Grievance Officer concluded that “[t]he
possible scenario surrounding this returned mail was explained to you; however,
5
Smart Communications provides communications related services to correctional facilities and
is the Department’s contracted inmate mail processor. Certain types of incoming inmate mail must
be sent to Smart Communications, which scans the mail into an electronic system and assigns it
an identification number.
3
without more specific information such as a date, no further information can be
provided.” Petition for Review, 12/17/2019, Attachment at 7. The Chief Grievance
Officer added: “[f]urther, despite your claims, no notification is required to be
provided to an inmate when mail is refused[;] the sender is advised of the issue and
has the option to fix it and resend the mail.” Id.In his petition for review, Romig, citing Procunier v. Martinez, 416
U.S. 396, 418-19 (1974),6 contends that an inmate must be afforded (1) notice of a
mail rejection, (2) a reasonable opportunity to appeal the rejection, and (3) a review
by a prison official other than the official who made the initial decision. He claims
that the Department’s rejection of his mail without notice to him violated his rights
under the First7 and Fourteenth Amendments to the United States Constitution.8
Petition for Review, 12/17/2019, at 2. He also claims a violation of the Department’s
policy on processing an inmate’s legal mail.9 Romig’s petition asserts that an inmate
6
Thornburgh v. Abbott, 490 U.S. 401 (1989), overruled Procunier but on other grounds.
7
The First Amendment states, in pertinent part: “Congress shall make no law . . . abridging the
freedom of speech . . . or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.” U.S. CONST. amend. I.
8
The Fourteenth Amendment states, in pertinent part: “No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, §1
(emphasis added).
9
The Department policy in effect during the period relevant to the current matter defined
privileged mail, also known as “legal mail,” as:
a. Mail from an inmate’s attorney that is either hand-delivered to the facility by
the attorney or delivered through the mail system and identified with a control
number issued to the sender by the Department’s Office of Chief Counsel.
b. Mail from a court.
c. Mail from an elected or appointed federal, state, or local official who has sought
and obtained a control number issued by the Department’s Office of Chief Counsel.
NOTE: Not all correspondence between an inmate and [an] elected or appointed
federal, state, or local official will require privileged correspondence processing.
4
must be notified whenever the Department rejects any inmate mail. Romig seeks an
order from this Court awarding him $80,000 in “punitive damages” and compelling
the Department “to formulate steps to prevent this from happening again.” Petition
for Review, 12/17/2019, at 3.
In response to Romig’s petition for review, the Department filed
preliminary objections. The Department asserts, initially, that his petition for review
lacks facts to substantiate that Wetzel, Brittain, and Moore were personally involved
in handling inmate mail or returning Romig’s mail to the Tax Claim Bureau. The
Department next asserts a demurrer for the stated reason that Romig’s
characterization of mail from the Tax Claim Bureau as legal mail is incorrect; it is
not mail from an attorney, the court, or an elected or appointed federal, state, or local
official. With respect to Romig’s specific contention that the return of his mail to
the Mifflin County Tax Claim Bureau, without notification to him, violated his First
Amendment right of access to the courts, the Department states:
“[I]n order to state a cognizable claim for violation of the right
to access to the courts, a prisoner must allege and offer proof that
he suffered an ‘actual injury[,]’ [such as the loss or rejection of a
legal claim,] to court access as a result of the denial. Oliver v.
Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997). The Supreme
Court has defined actual injury as the loss or rejection of a
nonfrivolous legal claim regarding the sentencing or the
conditions of confinement. Lewis v. Casey, 518 U.S. 343(1996).”
Control numbers will only be issued when the underlying matter involves matters
related to a confidential investigation process or similar concerns.
Department of Corrections, Inmate Mail and Incoming Publications Procedures Manual, Glossary
of Terms, at 4 (effective October 3, 2018) (emphasis in original). The Department’s policy
contains additional guidelines for the handling of mail based on the type of mail being sent to or
from the inmate. All general incoming correspondence, including letters that are not privileged,
must be sent to its third-party contractor, Smart Communications, in Florida. Other types of mail
must be addressed in a specified manner and sent to a different location.
5
Preliminary Objections, 3/4/2021, at 7-8, ¶33 (quoting Hackett v. Horn, 751 A.2d
272, 275-76 (Pa. Cmwlth. 2000)). Given the standard enunciated in Hackett, the
Department contends that Romig has not met the threshold for an access to courts
claim. The Department contends that the Tax Claim Bureau is not the Court of
Common Pleas of Mifflin County simply because it is located at the courthouse. In
any case, Romig does not provide a date upon which his mail was alleged to have
been returned to the Tax Claim Bureau.
Finally, the Department maintains that Romig has not stated a claim
under the Fourteenth Amendment. The Department contends that its grievance
procedure provides Romig with an adequate post-deprivation remedy that forecloses
his due process claim. Department’s Brief at 18. Further, Romig has a remedy for
a willful deprivation of property claim under the statute commonly known as the
Political Subdivision Tort Claims Act.10 Id.Romig captions his pleading as in the “Nature of a Complaint in
Mandamus.” We begin, then, with a discussion of the form of Romig’s action, which
incorporates by reference his appeal of the Department’s denial of his grievance
appeal.
Mandamus is an extraordinary remedy used to compel the performance
of a ministerial act or mandatory duty where a petitioner establishes (1) a clear legal
right to relief, (2) a corresponding duty in the respondent, and (3) a lack of any other
adequate and appropriate remedy. Tindell v. Department of Corrections, 87 A.3d
1029, 1034 (Pa. Cmwlth. 2014). The purpose of mandamus is not to establish rights
or to compel performance of discretionary acts but, instead, to enforce rights that
10
42 Pa. C.S. §§8541-42.
6
have been clearly established. Id. Ordinarily, “mandamus is not a proper vehicle
for challenging the constitutionality of a statute, regulation or policy.” Clark v.
Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 2007). This is because a writ of mandamus
would compel “a governmental ministerial officer to act in disobedience of the
requirements of a relevant statute, before there has been a pronouncement of [its]
invalidity . . . .” Unger v. Hampton Township, 263 A.2d 385, 388 (Pa. 1970) (quoting
Booz v. Reed, 157 A.2d 170, 172 (Pa. 1960)).
Here, Romig captions his petition for review as a mandamus action, but
he seeks relief that is more appropriate to a Section 1983 prison condition action, 42
U.S.C. §1983. Romig seeks “to compel the [Department] to formulate steps to
prevent this from happening again.” Romig’s Brief at 3. The “this” was the loss of
his house at a tax sale, for which he seeks damages. In sum, his pleading asserts a
constitutional tort. See Owens v. Shannon, 808 A.2d 607 (Pa. Cmwlth. 2002).
“A constitutional deprivation cannot be litigated unless the inmate can
show unlawful interference with a personal or property interest that has not been
limited by Department policy as necessary to operate the prison.” Ex rel. Antonio
Bundy v. Secretary John E. Wetzel, Secretary of Pennsylvania Prisons (Pa. Cmwlth.,
No. 444 M.D. 2020, filed October 29, 2021) (unreported), slip op. at 5.11 We have
explained that an Eighth Amendment12 claim based on the adequacy of the life
necessities provided, rather than whether or not inmates are being deprived of those
baseline necessities, cannot be stated in a mandamus action; a mandamus action can
11
This Court’s unreported panel opinions, issued after January 15, 2008, may be cited “for [their]
persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).
12
The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.
amend. VIII.
7
compel prison officials to clothe inmates within their care, but it cannot be used to
determine the quality of clothing necessary under society’s standards and to order
that only clothing of that quality be used to clothe inmates. Tindell, 87 A.3d at 1042(emphasis added).
Here, the Department does not challenge the form of Romig’s action.
Rather, it challenges its merits, asserting that Romig has not stated a constitutional
claim.
In considering the Department’s preliminary objections, this Court
must consider as true all well-pleaded material facts set forth in the petition and all
reasonable inferences that may be drawn from those facts. Torres v. Beard, 997
A.2d 1242, 1245 (Pa. Cmwlth. 2010). We “need not accept as true conclusions of
law, unwarranted inferences from facts, argumentative allegations, or expressions of
opinion.” Id. 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.” Id.We consider, first, the Department’s contention that Romig’s pleading
does not allege personal involvement by Wetzel, Brittain, and Moore in the handling
of inmate mail or the returning of Romig’s mail to the Tax Claim Bureau. The
Department asserts that Romig was required to plead that each named respondent,
through his or her own action, violated the Constitution, and Romig’s petition did
not do this.
[I]t is clear that a claim of a constitutional deprivation cannot be
premised merely on the fact that the named defendant was a
prison supervisor when the incidents set forth in the complaint
occurred. Quite the contrary, to state a constitutional tort claim
the plaintiff must show that the
8
supervisory [respondents] actively deprived him of a right
secured by the Constitution.
Murray v. Wetzel (Pa. Cmwlth., No. 542 M.D. 2017, filed August 8, 2018)
(unreported), slip op. at 8 (quoting West v. Varano (M.D. Pa., No. 1:10-CV-2637,
filed August 1, 2013, adopted August 29, 2013)). A respondent’s personal
involvement cannot be established based solely on that individual’s actions in
conducting an investigation or responding to a grievance. Department’s Brief at 11
(citing Bush v. Veach, 1 A.3d 981, 986 (Pa. Cmwlth. 2010) (“liability cannot be
predicated solely on the operation of respondeat superior”)).
In the present matter, Romig’s petition does not allege any facts to
substantiate the personal involvement of Wetzel, Brittain, or Moore with respect to
the handling of Romig’s mail. Brittain and Moore are identified as individuals who
responded to Romig’s grievance, and Wetzel is not described in the petition for
review as having any involvement in this matter. These individuals may not be held
liable under a theory of respondeat superior. Accordingly, we sustain the
Department’s first preliminary objection and dismiss Wetzel, Brittain, and Moore
from the instant action.
We next address the Department’s contention that Romig’s petition for
review fails to state a claim for which relief may be granted. Romig seeks a change
in “policy and procedures” to allow all “legal mail” to be delivered to the inmate.
See Romig’s Brief at 7. This Court does not have original jurisdiction to consider
such complaints. In Dantzler v. Wetzel, 218 A.3d 519 (Pa. Cmwlth. 2019),
abrogated on other grounds by Feliciano v. Department of Corrections, 250 A.3d
1269 (Pa. Cmwlth. 2021), this Court held that “[a] prison authority’s adoption of
policies and practices creates neither rights in inmates nor a constitutionally
protected interest triggering the inmates’ due process protection.” Dantzler, 218
9
A.3d at 524 (quoting Orozco v. Pennsylvania Department of Corrections (Pa.
Cmwlth., No. 268 C.D. 2013, filed January 14, 2014) (unreported), slip op. at 4-5);
see also Feliciano, 250 A.3d at 1275 n.9 (explaining the Department’s “regulations
do not, in themselves, confer upon inmates any actionable rights”). Indeed, as our
Supreme Court recognized in Bronson v. Central Office Review Committee, 721
A.2d 357, 358 (Pa. 1998), “internal prison operations are more properly left to the
legislative and executive branches and . . . prison officials must be allowed to
exercise their judgment in the execution of policies necessary to preserve order and
maintain security free from judicial interference.”
However, Romig’s claims are not limited to complaints about the
Department’s mail policy. As we noted in Madden v. Jeffes, 482 A.2d 1162, 1165
(Pa. Cmwlth. 1984), “[p]rison officials are afforded wide latitude in exercising
discretion in the administration of prison affairs, but it is not so wide as to permit
them to ignore prisoners’ First and Fourteenth Amendment rights.” In the present
matter, Romig asserts a violation of his First and Fourteenth Amendment rights.
Recently, this Court had an opportunity to review the constitutionality
of the Department’s mail policy. In Ortiz v. Pennsylvania Department of
Corrections (Pa. Cmwlth., No. 615 M.D. 2018, filed September 14, 2021)
(unreported), we examined the Department’s handling of both privileged and non-
privileged mail. There, an inmate at SCI Pine Grove alleged that the Department’s
mail policy, at the time, imposed an unconstitutional burden on his right to receive
mail and to his right to privacy in his mail because the original versions of his mail
were sent to a third-party vendor where they were copied, and copies, rather than the
original documents, were returned to him. The inmate sought injunctive relief to
prevent further implementation of the Department’s mail policy.
10
In Ortiz, we held that the handling of non-privileged mail does not
implicate a right to privacy. With respect to privileged mail, the analysis is different.
After Ortiz filed his petition, the Department entered into a settlement agreement in
federal court, whereby it agreed to stop copying privileged mail and to continue to
use the attorney control number system. On that basis, we concluded: “[The] mail
policy does not violate [the inmate’s] constitutional rights.” Ortiz, slip op. at 9.
Notably, Ortiz did not consider the issue of mail rejection and whether
an inmate is entitled to notice thereof. We must, therefore, consider whether the
Department’s failure to notify Romig of rejected mail violated his constitutional
rights. In so doing, we take the Department’s objections in reverse order and begin
with Romig’s Fourteenth Amendment due process claim before addressing the First
Amendment arguments.
To maintain a due process challenge, a party must initially establish the
deprivation of a protected liberty or property interest. Shore v. Pennsylvania
Department of Corrections, 168 A.3d 374, 383 (Pa. Cmwlth. 2017). If, and only if,
a party establishes the deprivation of a protected interest, will the Court consider
what type of procedural mechanism is required to fulfill due process. “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.’” Feliciano, 250 A.3d at 1275 (quoting Sandin v. Conner, 515 U.S. 472, 484
(1995)). “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. at 1275-76
(quoting Sandin, 515 U.S. at 484).
11
Here, the Department processed Romig’s mail in accordance with its
mail policy. On its face, Romig’s mail did not appear to be legal mail because it was
not from his attorney, the court, or an elected or appointed federal, state, or local
official, and it did not contain an attorney control number. Based on the petition for
review’s allegations, the mail at issue was a notice from the Tax Claim Bureau
advising him of an impending sheriff’s sale of his home and property that was
returned to the Tax Claim Bureau. The question is whether the Department had a
duty to provide notice to Romig that this mail had been rejected and returned to the
sender.
Following the submission of the parties’ briefs in the present case, the
United States Third Circuit Court of Appeals issued its decision in Vogt v. Wetzel, 8
F.4th 182 (3d Cir. 2021), another case involving the Department and its mail policy.
In Vogt, the Third Circuit determined that, consistent with Procunier,13 prisons must
notify inmates when their mail has been rejected. The Vogt Court recounted the
facts of that case as follows:
Three decades ago, Vogt and Arthur McClearn were part of a
group who took Francis Landry to a quarry. There, the group
forced Landry off a cliff into the water before rolling a “huge
rock” in behind him. Landry suffered blunt force trauma and
drowned. Vogt and McClearn were arrested shortly afterward.
McClearn pleaded guilty to third-degree murder. Vogt went to
trial, where McClearn’s testimony linked him to Landry’s death.
13
In Procunier, the United States Supreme Court invalidated California prison regulations that
provided for the routine censorship of inmates’ outgoing personal correspondence, on the grounds
that the regulations violated the free speech rights of the prisoners’ correspondents. 416 U.S. at
408. “In the years after Procunier [], the [Supreme] Court abandoned the distinction between the
free speech rights of inmates and their correspondents on the outside.” Hill v. Pennsylvania
Department of Corrections, _ A.3d _ (Pa. Cmwlth., No. 684 M.D. 2018, filed February 17, 2022),
slip op. at 6-7 (quoting Bieregu v. Reno, 59 F.3d 1445, 1451-52 (3d Cir. 1995)).
12
The jury convicted Vogt of several crimes, including first-degree
murder. As a result, he was sentenced to life without parole.
Not long before McClearn died, he sent a letter to Vogt dated
October 23, 2016, in which he recanted his trial
testimony. Explaining he was “ready to tell the truth,” McClearn
said his testimony was a lie. McClearn wrote that he had a
different partner in crime that night; Vogt was “passed out in the
car” and “did not go to the quarry.” So according to the letter—
and contrary to McClearn’s testimony at trial—Vogt did not have
“anything to do with” Landry’s murder.
McClearn’s letter never made it to Vogt that fall. The prison’s
policy is to reject mail lacking a return address, so it rejected the
letter. Some six months later, Vogt contacted a United States
Postal Service reclamation center looking for a different mailing.
The Post Office returned several items, one of which was
McClearn’s letter. But by that time, McClearn had been dead for
about five months.
Vogt, 8 F.4th at 184 (internal citations omitted).
In Vogt, the Third Circuit rejected the Department’s contention that
Procunier is applicable only to censorship cases, whereas Vogt concerned a content-
neutral mail rejection policy. The Third Circuit determined that “[t]he trouble with
[the Department’s] argument is Procunier identified a liberty interest in
corresponding by mail[, a]nd just as a censorship policy constrains correspondence
by mail, so too does a rejection policy.” Id. at 186. The Third Circuit noted that
“[b]ecause we hold Vogt has a liberty interest under Procunier, we need not address
whether he has a property interest.” Id. at 187. The Court determined further that it
was unclear whether Vogt had alleged a free speech claim, and, in any case, that
issue was best left for resolution by the District Court on remand. The Court
concluded:
13
A host of compelling interests can justify prison mail regulations.
But prisoners like Vogt have a liberty interest in corresponding
by mail. So, when the prison rejected his letter, notification was
required. Consistent with these principles, Vogt stated a claim
that his right to procedural due process was violated because he
alleged [the] letter [at issue] was rejected without notice.
Id. Accordingly, the Third Circuit vacated the District Court’s order dismissing
Vogt’s Fourteenth Amendment procedural due process claim.
“‘Generally, decisions of federal district courts and courts of appeals
are not binding on this Court, . . . but they may have persuasive value.’ Unreported
federal court decisions may also have persuasive value.” Nagle v. Trueblue, Inc.,
148 A.3d 946, 959 n.15 (Pa. Cmwlth. 2016). Based on the holdings in Vogt and
Procunier, we are unable to say with certainty that the law will not permit Romig to
recover on his claims. Thus, the Department’s preliminary objections relative to
Romig’s alleged Fourteenth Amendment claims are overruled.
Romig also asserts a violation of the First Amendment to the United
States Constitution. At the outset, we note: “[T]he First Amendment to the United
States Constitution has long been interpreted by the courts as including a general
right to communicate by mail.” Bussinger v. Department of Corrections, 29 A.3d
79, 84 (Pa. Cmwlth. 2011). “This right, however, does not come without
qualifications and circumscription, especially in the prison context.” Shore, 168
A.3d at 379. Here, the Tax Claim Bureau is not obviously in the class of individuals
or entities to which the term “legal mail” applies. Even if the mail from the Tax
Claims Bureau to Romig did fall into the category of “legal mail,” it did not include
the attorney control number required by the Department’s mail policy. Thus, the
Department returned the mail to the Tax Claim Bureau. However, citing Procunier,
416 U.S. at 418-19, Romig contends that the Department was required to provide
14
him notice when any mail, legal or otherwise, was rejected and that the Department’s
failure to provide such notice resulted in the loss of his property. See Romig’s Brief
at 4-5.
Although the Department’s mail policy provides inmates, including
Romig, with access to mail, generally, based on the Third Circuit’s decision in Vogt,
we cannot conclude with certainty that Romig will be unable to recover on his First
Amendment claim. Thus, the Department’s preliminary objections as they pertain
to Romig’s First Amendment claim are overruled.
For the foregoing reasons, we sustain, in part, and overrule, in part, the
Department’s preliminary objections. We sustain the Department’s preliminary
objections relative to the lack of personal involvement by Wetzel, Brittain, and
Moore. As such, Romig’s claims against these individuals are dismissed. We
overrule the Department’s preliminary objections to Romig’s constitutional claims,
and we direct the Department to file its answer to the petition for review within 30
days from the date of the attached order.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael C. Romig, :
Petitioner :
:
v. : No. 684 M.D. 2019
:
John Wetzel, Kathy Brittian, :
Keri Moore and Department of :
Corrections, :
Respondents :
ORDER
AND NOW, this 23rd day of May, 2022, upon consideration of the
preliminary objections filed by John Wetzel, Kathy Brittian, Kerri Moore and the
Department of Corrections to the petition for review in the nature of an action in
mandamus filed by Michael C. Romig, it is hereby ORDERED that the preliminary
objection related to the lack of personal involvement by John Wetzel, Kathy Brittian,
and Keri Moore is SUSTAINED, and these individuals are dismissed from this
matter. The preliminary objection in the nature of a demurrer to the First1 and
Fourteenth Amendment2 claims are OVERRULED. The Department of
Corrections is directed to file an answer to the petition for review within 30 days
from the date of this Order.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
1
U.S. Const. amend. I.
2
U.S. Const. amend. XIV.