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THOMAS MARTIN v. GLEN R. JEFFES (11/20/85)

decided: November 20, 1985.

THOMAS MARTIN, A/K/A EUGENE COLLINS, PETITIONER
v.
GLEN R. JEFFES, COMMISSIONER, BUREAU OF CORRECTIONS, RESPONDENT



Original Jurisdiction in the case of Thomas Martin, F-8255, a/k/a Eugene Collins v. Glen R. Jeffes, Commissioner of Corrections.

COUNSEL

Thomas Martin, petitioner, for himself.

Carl Vaccaro, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 93 Pa. Commw. Page 84]

Petitioner Thomas Martin, a/k/a Eugene Collins, is an inmate at the State Correctional Institution in Graterford, Pennsylvania (Graterford). He has filed a petition for review seeking to restrain enforcement of a policy of that institution which restricts the possession of typewriters by inmates to particular models.

In October of 1982, Petitioner purchased a battery-operated typewriter with a volatile memory,*fn1 allegedly in reliance on a representation made to him by Graterford's Inmate Grievance Coordinator to the effect that the current policy prohibiting such typewriters was soon to be changed. Petitioner was not permitted to keep the typewriter in his possession, and he wrote a letter to the Superintendent protesting this restriction. The Superintendent wrote back to Petitioner, informing him that the typewriter policy was being changed to permit possession of some battery-operated typewriters, that a directive would soon be issued further defining the new policy, and that Petitioner would be permitted to keep his typewriter in the prison if it was found to comply with the directive. Unfortunately, however, the typewriter was found not to comply, and Petitioner was never permitted to take possession.

From this sequence of events, Petitioner appealed directly to this Court, naming the Bureau of Corrections and Glen R. Jeffes, Commissioner, as Respondents. Petitioner alleges that the Graterford typewriter policy is in violation of his due process and equal protection rights under the fifth and fourteenth amendments to the United States Constitution; that enforcement of the policy by prison officials was under color of state law and, consequently, constituted a

[ 93 Pa. Commw. Page 85]

    violation of the Civil Rights Act, 42 U.S.C. § 1983; that the policy is not "reasonable" and is therefore beyond the scope of authority conferred on prison administrators under Section 102(a) of the Administrative Agency Law, 2 Pa. C.S. § 102(a); that the directive defining the policy is void because it was not advertised prior to publication pursuant to the Commonwealth Documents Law, Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 11021-1602; and, finally, that enforcement of the policy constitutes a breach of contract with the "convict class" under the provisions of the Uniform Commercial Code (U.C.C.). Respondents have filed preliminary objections*fn2 to the petition for review challenging this Court's jurisdiction, and further arguing that Petitioner's claims are meritless as a matter of law.

We agree with Respondent that this Court lacks appellate jurisdiction over this case. Petitioner has filed his petition pursuant to Section 763(a) of the Judicial Code, as amended, 42 Pa. C.S. § 763(a), which grants this court exclusive jurisdiction over appeals from "final orders" of government agencies. There has been no such order here. In Robson v. Biester, 53 Pa. Commonwealth Ct. 587, 420 A.2d 9 (1980), we stated that a decision by an intra-prison disciplinary tribunal is not a final adjudication by an administrative agency within this Court's appellate jurisdiction. Id. at 591, 420 A.2d at 12. The instant case falls short of even that procedural finality, as Petitioner appealed to this Court following only an informal appeal to the Superintendent. Nevertheless, the matter

[ 93 Pa. Commw. Page 86]

    may be construed as a petition for review addressed to this Court's original jurisdiction pursuant to Section 761 of the Judicial Code, as amended, 42 Pa. C.S. § 761, and we will ...


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