Appealed From No. similar ORIGINAL JURISDICTION similar.
Before: Honorable Dan Pellegrini, Judge, Honorable Jim Flaherty, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Senior Judge Mirarchi.
The opinion of the court was delivered by: Mirarchi
OPINION BY SENIOR JUDGE MIRARCHI
FILED: September 30, 1997
The Commissioner of the Pennsylvania Department of Corrections, the Graterfords' Tuberculosis Clinic, and members of the Program Review Committee at the State Correctional Institution at Graterford (collectively, Department) have filed preliminary objections in the nature of a demurrer to the amended petition for review filed by Charles Sims Africa (Africa).
On December 6, 1996, Africa, an inmate at the State Correctional Institution at Graterford, filed pro se a "Petition for Writ of Mandamus," seeking this Court's order directing the Department to release him from the Restricted Housing Unit to the general population of the prison. This Court treated Africa's petition as a petition for review addressed to this Court's original jurisdiction and granted Africa leave to file an amended petition for review.
In the amended petition for review, Africa sets forth following allegations. Since August 30, 1996, Africa has been confined in the Restricted Housing Unit for his refusal to take a tuberculosis screening test (T.B. test). Africa is an adherent of MOVE, allegedly a religious organization. He refused to submit to the T.B. test because the test procedures, involving puncturing his skin with a needle and injecting artificial chemicals into his bloodstream, are against the tenets of MOVE which embraces natural law and the teachings of John Africa. While confined in the Restricted Housing Unit, he has been denied contact visits, full exercise periods except one hour per day, access to library books, commissary privileges, adequate heat, showers and proper ventilation. Africa subsequently agreed to submit to a chest x-ray and a sputum test on September 16, 1996, which showed that he had not been infected with tuberculosis. However, the Department continues to confine him in the Restricted Housing Unit for his refusal to submit to a T.B. test.
Africa asserts that the Department's actions violate his right to practice his religion under the Religious Freedom Restoration Act of 1993 (Religious Freedom Restoration Act), 42 U.S.C. §§ 2000bb - 2000bb-4, and his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The Department has filed the preliminary objections, contending that Africa's amended petition for review should be dismissed for his failure to state a valid cause of action in mandamus.
In ruling on the preliminary objections in the nature of a demurrer, this Court must accept as true all well-pleaded facts and all inferences reasonably deducible therefrom. Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 584 A.2d 403 (Pa. Commw. 1990). A demurrer must be sustained where it is clear and free from doubt that the law will not permit recovery under the alleged facts. Stone & Edwards Insurance Agency, Inc. v. Department of Insurance, 151 Pa. Commw. 266, 616 A.2d 1060 (Pa. Commw. 1992).
The Department contends that MOVE is not a "religion" under the Free Exercise Clause of the First Amendment to the United States Constitution and the Religious Freedom Restoration Act, and that Africa's alleged religious beliefs are, therefore, not constitutionally protected. The Department urges this Court to "adopt" the decision of the United States Court of Appeals for the Third Circuit in Africa v. Commonwealth, 662 F.2d 1025 (3rd Cir. 1981), cert. denied, 456 U.S. 908, 72 L. Ed. 2d 165, 102 S. Ct. 1756 (1982), which considered the issue of whether MOVE is a "religion" within the purview of the First Amendment. *fn1
In Africa, Frank Africa, an adherent of MOVE, filed the action under 42 U.S.C. § 1983, seeking an injunction requiring the officials of the state correctional institution to provide him a special diet consisting entirely of raw foods, as required by the alleged tenets of MOVE. After examining the evidence presented at the hearing, the Court held that MOVE is not a religion within the purview of the First Amendment. The Court stated:
We conclude first, that to the extent MOVE deals with 'ultimate' ideas, a proposition in itself subject to serious doubt, it is concerned with secular matters and not with religious principles; second, that MOVE cannot lay claim to be a comprehensive, multi-faceted theology; and third, that MOVE lacks the defining structural characteristics of a traditional religion. The 'new set of ideas or beliefs' presented by Africa does not appear to us to 'confront the same concerns, or serve the same purposes, as unquestioned and accepted 'religions," .... We hold, therefore, that MOVE, at least as described by Africa, is not a religion for purposes of religion clauses. We do not conclude that Africa's sincerely-held beliefs are false, misguided, or unacceptable, but only that those beliefs as described in the record before us, are not 'religious,' as the law has defined that term.
Id. at 1036 (citation omitted.)
In this matter, Africa bases the claim of the right to practice his religion on the same allegation that MOVE is a religion which embraces natural law and the teachings of John Africa. However, it is not necessary to address the issue of whether MOVE is a religion because even assuming that Africa's beliefs are "religious" for the purpose of deciding ...