Jamal v. Commonwealth , 121 Pa. Commw. 42 ( 1988 )

Opinion by

President Judge Crumlish, Jr.,

The Department of Corrections (Department) preliminarily objects to Mumia Abu Jamals (Jamal) petition for review.

We discern the following from Jamals pro se petition. The Departments Publications Review Committee disapproved his receipt of a weekly newspaper, The Revolutionary Worker, during his incarceration at the State Correctional Institution at Huntingdon. Jamal further avers that he exhausted his administrative remedy before the Departments Central Office Review Committee, which upheld the decision.

Jamals petition does not challenge the substantive bases for the Departments decision. Rather, Jamal avers only that the Department failed to render its decision within the time prescribed in a Bureau of Corrections Administrative Directive, BC-ADM 814, 37 Pa. Code §93.5(c), which provides that the Department “will rule on publications within 10 days after the material is received.” The petition further sets forth a general averment that the Departments actions violated the First and Fourteenth Amendments to the United States Constitution and the Pennsylvania Constitutions guarantees of “free communication of thoughts and opinions,” Pa. Const, art. I, §7, and protection from discrimination, Pa. Const, art. I, §26. Finally, the petition avers that the Departments administrative appeal bodies routinely ignore their procedural rules.

Jamal requests, inter alia, the following relief: (a) reversal of the Departments decision and release of the newspapers; (b) mandamus directing the Department to obey its rules and directives; (c) a declaration that the Department violated its directives, statutes and constitutional provisions; (d) an injunction prohibiting future violations; and (e) restoration of the fair market value of the prohibited materials.

The Departments preliminary objections contend that this Court erred in construing the petition as addressed to our original jurisdiction¹ because it is actually an appeal of the Departments decision. The Department alternatively contends that the petition fails to state a cognizable cause of action.²

As to the jurisdictional question, we believe that the substance of the allegations and the nature of the relief requested should dictate whether the petition seeks to invoke appellate or original jurisdiction. See Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980). Jamal maintains in his pro se brief that his petition does not seek to “appeal” any Department decision. As we understand his petition, Jamal requests an injunction and mandamus directing the Department to obey its rules and directives in the future and to release the publications because the Department failed to render its decision within the prescribed time period. Therefore, we conclude that Jamals petition was properly identified as one addressed to our original jurisdiction.

We further conclude that Jamal has failed to state a claim in our original jurisdiction. The Department has already performed the ministerial duty of acting on Jamals request for the publications, albeit not within ten days. Once an agency has performed the duty to make a discretionary decision, a dissatisfied party may not seek to compel a different result through mandamus. Sever v. Department of Environmental Resources, 100 Pa. Commonwealth Ct. 217, 225, 514 A.2d 656, 660 (1986).

We likewise find no basis for the requested injunctive relief to forestall potential future violations of directives by the Department. Injunctive relief is not available to eliminate a possible remote future injury or invasion of rights. Raitport v. Provident National Bank, 451 F. Supp. 522 (E.D. Pa. 1978); Curll v. Dairymens Cooperative Sales Association, 389 Pa. 216, 132 A.2d 271 (1957).

We also discern no basis for Jamals claim for a declaratory judgment that the Department violated “its Directives, State Statute, and Federal/State Constitutional Provisions.” Petition for Review, Page 4. The petition reveals no indication of how declaratory relief will terminate a controversy or resolve any uncertainty. See Mueller v. Pennsylvania State Police Headquarters, 110 Pa. Commonwealth Ct. 265, 532 A.2d 900 (1987).

Finally, because Jamal has failed to state a claim, there is no jurisdictional basis to order restoration of the publications' monetary value.

Accordingly, we sustain the Departments preliminary objection and dismiss the petition for review.

Order

The respondent’s preliminary objection regarding jurisdiction is overruled and its preliminary objection in the nature of a demurrer is sustained. The petition for review is dismissed.

Judge MacPhail did not participate in the decision in this case.

1 On December 30, 1987, this Court ordered that Jamal’s petition be treated as addressed to our original jurisdiction. 42 Pa. C. S. §761.

2 Initially, we must reject Jamal’s contention that the Department’s preliminary objections should be overruled because they were untimely filed.

Although the Department did not comply with this Court’s orders directing it to file a responsive pleading until March 21 and 22, when it filed with this Court a notice and copy of a removal petition previously filed in federal court on January 20, 1988, this provides no basis in itself to overrule the Department’s preliminary objections. Ordinarily, a removal becomes effective, and state court proceedings are automatically stayed, when the removing party files a copy of said petition with the state court’s clerk. 28 U.S.C. § 1446(e). This perfects the removal and provides notice to the state court that it may not excercise jurisdiction unless and until the matter is remanded from federal court. Although our copy of the removal petition indicates that this Court was provided with notice as of January 20, 1988, our docket indicates that such notice was not received until March 22, 1988. The federal court acted on the removal petition and remanded to this Court following its determination that it lacked jurisdiction. The appropriate procedure for Jamal would have been to object to the removal petition based on the procedural defect, Dukes v. South Carolina Insurance Co., 770 F.2d 545 (5th Cir. 1985), and then oppose the requested extensions and petition this Court for a default judgment. Instead, Jamal filed a motion on April 9, 1988 requesting only an order directing the Department to respond within an additional thirty days. We granted the request, and the Department complied with our Order.