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Portalatin v. Dep't of Corrections

August 10, 2009

WILFREDO PORTALATIN, PETITIONER
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT



The opinion of the court was delivered by: Judge Simpson

Submitted: May 8, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Before this Court in our original jurisdiction are the preliminary objections of the Department of Corrections (DOC) to a petition for review in the nature of a complaint seeking declaratory judgment filed by Wilfredo Portalatin (Portalatin), an inmate serving a life sentence at a state correctional institution. Portalatin seeks a declaration that DOC's assessment of co-pay fees for treatment of his chronic skin condition violates the Prison Medical Services Act*fn1 (Act) and DOC regulations prohibiting charges for medical treatment of chronic conditions and prescription refills for those conditions.*fn2 Portalatin also seeks to appeal DOC's denial of his grievance challenging the co-pay assessments deducted from his prison account. DOC contends this Court lacks both original and appellate jurisdiction over this matter. DOC further contends Portalatin's petition fails to state a colorable claim under the Act or 37 Pa. Code §93.12. We sustain DOC's preliminary objections and dismiss Portalatin's petition.

I. Petition

A. Declaratory Judgment

In "Count One Original Jurisdiction," Portalatin alleges as follows. He began to suffer from tinea versicolor (TV)*fn3 prior to his incarceration. In June 1996, DOC's Diagnostic and Classification Center diagnosed Portalatin with this skin condition. Following his 1996 diagnosis, Portalatin was treated for TV without being assessed a co-pay fee. Sometime thereafter, DOC began assessing Portalatin's prison account co-pay fees for his TV treatment.*fn4

Portalatin further alleges, pursuant to 37 Pa. Code §93.12(d)(7), DOC is prohibited from charging a fee to an inmate for a chronic or intermittent disease or illness. Pursuant to 37 Pa. Code §93.12(d)(16), DOC is prohibited from charging a fee for prescription refills provided to an inmate for the same illness or condition. Dorland's Illustrated Medical Dictionary (29th ed. 2000) defines TV as a common chronic disorder. Id. at 1843. A National Institute of Health website, medlineplus.gov, defines TV as a chronic fungal infection of the skin. TV can also be classified as an intermittent disease or illness.

Portalatin also alleges as follows. Despite the Act and 37 Pa. Code §§93.12(d)(7) and (16), DOC repeatedly assessed him co-pay fees for his TV treatment and medication. DOC continues to interpret and enforce the Act and the regulations in a manner contrary to their language. DOC denied Portalatin's grievance and subsequent appeals protesting the co-pay fees. See Pet. for Review, Ex. A. DOC refuses to refund the co-pay fees assessed.

Based on these allegations, Portalatin seeks a declaration that he is entitled to compensation for all co-pay fees assessed against him for the treatment of his chronic and intermittent skin disorder, as well as litigation costs. Portalatin also seeks to enjoin DOC from assessing any further fees for treatment.

B. Appeal

In "Count Two Appellate Jurisdiction," Portalatin contends this Court has appellate jurisdiction over DOC's denial of his grievance. He attaches DOC's grievance and grievance appeal determinations in this matter to his petition for review as Exhibit A. Portalatin asserts DOC's determinations upholding the co-pay charges as appropriate are contrary to Section 3 of the Act*fn5 and 37 Pa. Code §§93.12(d)(7) and (16).

II. Preliminary Objections

In response to Portalatin's petition, DOC raises the following preliminary objections. First, the matter does not fall within our original jurisdiction because it does not involve any constitutional rights not limited by DOC. See Bronson v. Cent. Office Review Comm., 554 Pa. 317, 721 A.2d 357 (1998) (unless an inmate can identify a personal or property interest not limited by DOC regulations and affected by a final DOC decision, the challenged decision is not an adjudication subject to Commonwealth Court review); Weaver v. Pa. Dep't of Corr., 829 A.2d 750 (Pa. Cmwlth. 2003) (same). Second, this Court lacks appellate jurisdiction because fee assessments for medical care and inmate grievance decisions are not government agency adjudications appealable to this Court. Bronson; Silo v. Ridge, 728 A.2d 394 (Pa. Cmwlth. 1999). Third, Portalatin's petition fails to state a colorable claim because the imposition of a medical co-payment for treatment of TV does not ...


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