Appeal from the Order of the Commonwatlh Court entered on 07/19/2006 at No. 305 M.D. 2005.
The opinion of the court was delivered by: Mr. Justice Eakin
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
RE-SUBMITTED: August 14, 2008
Appellant was convicted of first degree murder and sentenced to life imprisonment. Appellant escaped from a prison work detail with cooperation from a prison volunteer; recaptured, he was incarcerated at SCI-Huntingdon. While there, appellant and other prisoners sued the Pennsylvania Public Utility Commission, alleging the prison's telephone service provider overcharged inmates.
While the telecommunications suit was pending, a different prison volunteer broke down in tears and revealed personal information to appellant. Appellant also held private conversations with the volunteer, criticizing the prison. Upon learning of these events, the Department of Corrections (DOC) recommended appellant's transfer, noting his previous escape was consummated with the assistance of a prison volunteer, and reasoning the developing close relationship with another volunteer created an escape risk. Appellant was transferred to SCI-Greene, and DOC denied his transfer challenge.
Appellant subsequently filed a petition for review in the Commonwealth Court's original jurisdiction. He alleged his transfer was in retaliation for his role in the telecommunications litigation, and by transferring him, DOC interfered with and denied his right of access to the courts. He also averred the transfer caused him to lose touch with friends, family, and fellow members of a prison association, and that DOC violated his due process rights. Appellant sought re-transfer to SCI-Huntingdon and other relief.*fn1
DOC filed preliminary objections in the nature of a demurrer to all claims. In a published opinion, the Commonwealth Court sustained the objections in part and overruled them in part. Yount v. Department of Corrections, 886 A.2d 1163 (Pa. Cmwlth. 2005). Writing for a unanimous panel, Senior Judge McCloskey held appellant adequately pled a retaliatory transfer claim, which DOC did not adequately rebut. The court dismissed the remaining claims.
DOC then moved for summary judgment on the remaining retaliation claim, asserting appellant's desired remedy of transfer to SCI-Huntingdon was legally unavailable. The Commonwealth Court rendered a per curiam order granting summary judgment on alternate grounds, reasoning that to prevail on a retaliation claim, a prisoner must demonstrate by a preponderance of the evidence he was retaliated against for exercising his constitutional rights and the retaliatory action does not advance legitimate penological goals. Commonwealth Court Order, 7/20/06, at 2 (citing Abdul-Akbar v. Department of Corrections, 910 F.Supp. 986 (D. Del. 1995)). The court found appellant failed to meet these burdens of proof.
We initially note this Court's scope of review of an order granting summary judgment is plenary. O'Donoghue v. Laurel Savings Association, 728 A.2d 914, 916 (Pa. 1999). Our standard of review is clear: the trial court's order will be reversed only where it is established the court committed an error of law or clearly abused its discretion. Cochran v. GAF Corporation, 666 A.2d 245, 248 (Pa. 1995). Summary judgment is appropriate only in those cases where the record clearly demonstrates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. P.J.S. v. Pa. State Ethics Commission, 723 A.2d 174, 176 (Pa 1999). The reviewing court must view the record in a light most favorable to the non-moving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Id. Where the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Cochran, at 248.
Appellant argues that discovery was incomplete and material issues of fact existed, that the Commonwealth Court granted summary judgment on alternate grounds not raised by DOC, and that the Commonwealth Court improperly placed the burden on him to prove his transfer was not for a legitimate penological reason, in violation of Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001) (shifting burden of proof to correctional facility to prove action furthered legitimate penological objective).
First, appellant asserts summary judgment was inappropriate because it deprived him of the opportunity for additional discovery. However, appellant points to his prison visitor list as the only additional evidence he could have introduced; this list would have verified the volunteer who allegedly helped him escape was permitted to visit him at SCI-Huntingdon. We permitted appellant to supplement the record to include the visitor list, see Supreme Court Order, 2/29/08, and find appellant was not prejudiced by the preclusion of its admission; it does not suffice to raise an issue of material fact, as was determined below, and appellant is not entitled to relief on this issue.
Next, appellant avers summary judgment was unjustified because the Commonwealth Court sua sponte addressed the question of whether he raised a genuine issue of material fact. Appellant asserts granting summary judgment on an issue raised sua sponte is inappropriate.
This principle is well established in the Superior and Commonwealth Courts. See, e.g., MacGregor v. Mediq, Inc., 576 A.2d 1123 (Pa. Super. 1990); Wojciechowski v. Murray, 497 A.2d 1342 (Pa. Super. 1985); O'Hare v. County of Northampton, 782 A.2d 7 (Pa. Cmwlth. 2001); Travers v. Cameron County School District, 544 A.2d 547 (Pa. Cmwlth. 1988). These cases are grounded in a concern that trial courts should not "act as the defendant's advocate." O'Hare, at 15. For a trial court to raise an argument in favor of summary judgment sua sponte and grant summary judgment thereon risks depriving the court the benefit of advocacy on the issue, and depriving the parties the opportunity to be heard. See Luitweiler v. Northchester Corp., 319 A.2d 899, 901 n.5 (Pa. 1974) (holding it inappropriate for trial court to raise failure to state claim upon which relief may be granted sua sponte). By contrast, where a party has moved for summary judgment, the motion has been briefed, argued, and denied, and the trial court reverses itself and grants summary judgment on the same issue, the Superior Court has held the trial court's decision "unobjectionable." See McIntyre Square Associates v. Evans, 827 A.2d 446 (Pa. Super. 2003).
Here, DOC asserted appellant failed to state a legally cognizable claim. The parties filed briefs, and the Commonwealth Court issued a published opinion, in denying DOC's preliminary objections as to the retaliatory transfer claim. The Commonwealth Court found DOC failed to directly address the retaliation claim in its demurrer motion, Yount, at 1167-68, and a careful reading of DOC's brief in support of its preliminary objections confirms the Commonwealth Court's conclusion. Accordingly, the concern we expressed in Luitweiler is implicated because the merits of the dispositive issue were not fully litigated below. Cf. McIntyre Square, at 451 (noting relevant issue "was fully briefed and discussed").
That said, in the narrow circumstances of this case, no party will be prejudiced; we granted appeal and afforded both parties argument on the merits of the dispositive issue. It would unduly place form over function to remand the matter for a futile reconsideration below, since we considered the merits with the benefit of advocacy from both parties and a lower court opinion. To remand would require additional time and expense from the parties and the Commonwealth Court when, in the end, our interpretation of prevailing law would be based on the same record and advocacy. We reiterate, it is inappropriate for a trial court to grant summary judgment for reasons addressed sua sponte. However, the relevant issue was fully briefed and discussed before this Court, and the parties were afforded the appropriate judicial attention to which they are entitled. No relief is due on this claim.
As his final issue, appellant maintains the Commonwealth Court improperly placed the burden on him to demonstrate the transfer did not further a legitimate penological objective, in violation of Rauser. We disagree.
Retaliation claims are guided by the United States Supreme Court's decision in Turner v. Safley, 482 U.S. 78 (1987), which held "courts are ill equipped to deal with the increasingly urgent problems of prison administration .," and great deference must be accorded to the administrative determinations of prison officials. Id., at 84-85 (citation omitted). The United States Supreme Court further recognized prison rules and regulations are presumptively valid unless a prisoner proves otherwise. Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
Although the elements of a prison retaliation claim differ slightly among federal courts, generally courts require proof the inmate engaged in constitutionally protected conduct, prison officials took adverse action, and the protected conduct was a substantial or motivating factor for the action.*fn2 While courts generally agree on what elements must be proven ...