Buehl v. Horn

• Decision Date: 03 February 1999
• Citation: 728 A.2d 973
• Parties: Roger BUEHL, Craig Williams, Mumia Abu-Jamal, and Donald Tedford, Petitioners, v. Martin HORN, Commission, Pennsylvania Department of Corrections, and James Price, Superintendent, State Correctional Institution-Greene, and Ken Miller, G-Unit Manager, State Correctional Institution-Greene, Respondents.
• Court: Pennsylvania Commonwealth Court

728 A.2d 973

Roger BUEHL, Craig Williams, Mumia Abu-Jamal, and Donald Tedford, Petitioners, v. Martin HORN, Commission, Pennsylvania Department of Corrections, and James Price, Superintendent, State Correctional Institution-Greene, and Ken Miller, G-Unit Manager, State Correctional Institution-Greene, Respondents.

Commonwealth Court of Pennsylvania.

Decided February 3, 1999.

Publication Ordered April 22, 1999.

Robert A. Preate and Christopher J. Preate, Scranton, for petitioners.

Jill C. Fluck, Camp Hill, for respondents.

DOYLE, Judge.

Before this Court in our original jurisdiction are the preliminary objections of Martin Horn in his capacity as Commissioner of the Department of Corrections, James Price, Superintendent of the State Correctional Institution at Greene (SCI-Greene), and Ken Miller, G-Unit Manager at SCI-Greene, (collectively, DOC) to a petition for review filed by Roger Buehl and three other capital-case inmates¹ (collectively, Petitioners) incarcerated in the G-Unit at SCI-Greene, as well as the preliminary objections of Petitioners to DOC's preliminary objections and a suggestion of mootness filed by DOC. The petition for review challenges several aspects of the conditions of SCI-Greene, specifically, the exercise time allotted to capital case inmates, all of whom are housed in the G-Unit at SCI-Greene.²

The lengthy procedural history of this case is summarized as follows. The case originated on August 28, 1996, when Buehl and the other capital case inmates housed on G-Unit at SCI-Greene filed a petition for review challenging DOC's decision to remove typewriters from the G-Unit law library. The inmates alleged that DOC's removal of the typewriters restricted their access to the courts, violated their right to equal protection under the law and was otherwise carried out in retaliation for a lawsuit which they had filed in federal district court which had also sought review of some of the practices and conditions at SCI-Greene.³ In addition, the inmates also averred that, pursuant to Section 1 of the Act of June 14, 1923, P.L. 775, as amended, 61 P.S. § 101 (Section 101), they were entitled to two hours of exercise each day and that DOC was only permitting them one hour of daily exercise. Section 101 provides as follows:

Every warden, board of prison managers, prison inspectors, or any other person in authority, in charge of any prison or penitentiary, who may or shall have in charge any person confined therein whether such person be a tried or an untried prisoner, shall provide that such person shall have at least two hours daily, physical exercise in the open, weather permitting, and upon such days on which the weather is inclement, such person shall have two hours, daily, of physical exercise indoors of such prison or penitentiary: Provided, however, The same is safe and practical, and the judges of the several courts are to be the judges thereof. Prisoners in segregation or disciplinary status shall receive a minimum of at least one hour of daily exercise five days per week.

61 P.S. § 101 (emphasis added).

In response, DOC filed preliminary objections in the nature of a demurrer as to the typewriter claim and asserted that Petitioners did not allege a constitutional or statutory violation as to the exercise claim. In addition, DOC asserted that the exercise issues presented in the federal litigation in White v. Williams involved the same parties, the same issues and relief and argued that this Court should either stay or completely dismiss the exercise claim in the petition for review filed with this Court based upon the doctrine of lis pendens.

On August 22, 1997, this Court issued an unreported decision and order sustaining DOC's preliminary objection as to the access to courts claim, finding that the restrictions on access to the typewriters did not affect Petitioners' access to the Courts. In addition, we sustained DOC's preliminary objection regarding the pending federal litigation and dismissed that claim based upon the litigation in Western District Federal Court. No petition for allowance of an interlocutory appeal was perfected from that decision.⁴

On November 25, 1997, the Honorable Alan N. Bloch of the United States District Court for the Western District of Pennsylvania granted summary judgment in favor of the Commonwealth defendants on the inmates' exercise claim based on equal protection grounds, thereby dismissing the federal constitutional claim.

Following the resolution of several ancillary disputes between the parties, on September 18, 1998, Petitioners filed an application to lift the lis pendens and reinstate the original exercise claim. In addition, Petitioners sought leave of this Court to amend their original petition for review to include a claim that DOC failed to supply adequate footwear with which Buehl and the other inmates could exercise (hereinafter, the "sneaker issue"). The crux of the sneaker issue was that DOC did not provide adequate sizes of footwear to each inmate such that they could effectively utilize their exercise time.⁵

On September 21, 1998, DOC filed an answer to the application, again asserting that Petitioners failed to state a claim upon which relief could be granted and asserting that Buehl and the other petitioners were "segregated," as that term is used in 61 P.S. § 101. Therefore, DOC argued that the Court should sustain its original demurrer and dismiss the petition for review, rather than permit Petitioners to reinstate the exercise claim. In addition, DOC filed a suggestion of mootness, averring that it had placed four functional typewriters in the G-Unit law library, and, therefore, that issue was moot. Shortly thereafter, Petitioners filed preliminary objections to DOC's original preliminary objections. Specifically, Petitioners sought to strike DOC's objections on the basis that, Petitioners argued, in its answer to the application to lift the lis pendens, DOC had further expanded on its original demurrer and inserted facts not of record into the pleading such that it constituted a "speaking demurrer" in violation of Pa. R.C.P. No. 1028(a)(2). In addition, Petitioners filed an answer to DOC's suggestion of mootness, alleging that, although there were several functional typewriters in the G-Unit law library, several corrections officers were locking Petitioners in the library and not permitting them to leave, even if they had to go to the bathroom.

To summarize, the following motions/applications and cross-motions/applications are currently pending before the Court: (1) Petitioners' application to lift the lis pendens and DOC's response thereto; (2) DOC's preliminary objections; (3) Petitioners' preliminary objections to DOC's preliminary objections; and (4) DOC's suggestion of mootness and Petitioners' response thereto.

We will first address the issue of lis pendens, because, if we decline to lift the lis pendens and resurrect the underlying claims, all the other pending issues, aside from the typewriter issue, would be eliminated.

It is a well-settled principle of law in the Commonwealth that a trial court, which is the capacity in which this Court now is functioning in its original jurisdiction, can issue two types of orders, final and interlocutory. Pursuant to Pennsylvania Rule of Appellate Procedure 341, a "final order" is any order that:

(1) disposes of all claims and of all parties, or

(2) any order that is expressly defined as a final order by statute; or

(3) any order entered as a final order pursuant to subdivision (c) of this rule.

Pa. R.A.P. 341. Conversely, a interlocutory order is an interim order which does not end the litigation, but only disposes of an intermediate aspect of it.⁶ There is a significant difference between a final order and an interlocutory one as it relates to the ability of a trial court to amend an order. Pursuant to Section 5505 of the Judicial Code, 42 Pa.C.S. § 5505, a trial court may amend an order within 30 days of its entry. As the Superior Court noted, however, such a rule applies only to final orders of a trial court, not to interlocutory orders. See Commonwealth v. Nicodemus, 431 Pa.Super. 342, 636 A.2d 1118 (1993),

petition for allowance of appeal denied, 540 Pa. 580, 655 A.2d 512 (1994). Therefore, it follows that a trial court does have the authority, even after the expiration of 30 days, to modify an interlocutory order

At a hearing held on October 27, 1998, to discuss the remaining legal issues of this case, counsel for DOC, Raymond Dorian, Esquire, conceded on the record that the order granting the lis pendens was an interlocutory order and further conceded that the Court does have the power to vacate that portion of the August 22, 1997 order which dismissed the exercise claim, if it chooses to do so. Mr. Dorian argued, however, based on policy grounds, such as the need for finality in the litigation and DOC's reliance on the August 22, 1997 order, that this Court should not vacate the order. We have considered the offered reasons for not vacating the August 22, 1997 order as it relates to the exercise claim, and, although we agree with DOC that this litigation must end at some point in time, we will nonetheless vacate that portion of the order which dismissed Petitioners' statutory exercise claim and resurrect that claim.

We now turn to the preliminary objections of the parties.

Petitioners have filed preliminary objections to the original preliminary objections, making two specific objections. First, Petitioners argue that the original demurrer filed by DOC was insufficiently vague in violation of Pa. R.C.P. No. 1028(b).⁷ Second, Petitioners argue that, in its answer to the application to lift the lis pendens, DOC essentially added new facts to its original demurrer, facts which were not of record, such that DOC improperly amended it's original demurrer and created a "speaking demurrer" in violation of Pa. R.C.P. No. 1028(a)(2) (failure to conform to the...