Submitted: June 21, 2013
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
PATRICIA A. McCULLOUGH, Judge
Terrence Richardson (Richardson) appeals, pro se, from the September 28, 2012 order of the Court of Common Pleas of the Thirty-Seventh Judicial District, Forest County Branch (trial court), which sustained the preliminary objections of John E. Wetzel, Secretary of the Department of Corrections (DOC), and Debra K. Sauers, Superintendent at the State Correctional Institution at Forest (collectively "the DOC Defendants"), and dismissed Richardson's complaint with prejudice. We affirm.
On December 19, 2011, Richardson instituted this civil rights action against the DOC Defendants by filing a complaint and motion to proceed in forma pauperis (IFP). After the trial court granted Richardson IFP status, Richardson filed an amended complaint and then a seconded amended complaint.
In his seconded amended complaint, Richardson averred the following. Shortly after Richardson saw a television news story concerning unclaimed money that the federal government has for citizens, he mailed correspondence to the Internal Revenue Service (IRS) on December 20, 2010, seeking information about any unclaimed property or tax credits that the IRS may have that belong to him. By letter dated February 2, 2011, the IRS informed Richardson that it issued him a check for $6, 157.00 on September 3, 2010, and that if he has not received the check, he should complete and sign the enclosed Form 3911. On February 10, 2011, Richardson sent the IRS a completed Form 3911. (Second Amended Complaint, ¶¶ 7-10.) Also entitled "Taxpayer Statement Regarding Refund, " a Form 3911 is used to trace refund checks, and the form requires the taxpayer to fill out information concerning whether he or she received and signed the refund check and whether the refund check was lost, cancelled, or destroyed.
Approximately six months later, in August 2011, Richardson wrote to H&R Block in an attempt to obtain assistance with his interaction with the IRS. On August 24, 2011, the DOC Defendants directed that misconduct charges be instituted against Richardson for possession of contraband and unauthorized use of the mail because Richardson was in the process of filing a fraudulent tax return with the IRS. On August 30, 2011, Richardson was found guilty of the misconduct charges and received a sanction of 45 days in the restrictive housing unit. During the misconduct hearing, Richardson was handcuffed pursuant to DOC policy, and a correctional officer held documentary evidence that Richardson sought to present as evidence, namely the February 2, 2011 letter from the IRS, but was prohibited from doing so. According to Richardson, he "never violated any written PA-DOC policy, or any law, with respect to his communications with the IRS." (Second Amended Complaint, ¶ 22.) Based upon these averments, Richardson asserted that the misconduct charges were fabricated, and he alleged that the DOC Defendants retaliated against him for exercising his rights to free speech under the First Amendment of the United States Constitution, U.S. C . amend. I, and 37 Pa. Code. §93.2. (Second Amended ONST  Complaint, ¶¶ 11-25.)
On August 20, 2012, the DOC Defendants filed preliminary objections to the second amended complaint. In these objections, the DOC Defendants argued that the complaint should be dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted (demurrer). As part of the preliminary objections, the DOC Defendants attached documents concerning the misconduct charges and their disposition. These documents reflect that Richardson was found guilty of misconduct by a hearing examiner on the ground that Richardson had been incarcerated and unable to work since 2005, and, therefore, his attempt to file a tax refund claim with H&R Block for the 2009 year constituted unauthorized use of the mail to file a fraudulent tax claim. Richardson then filed administrative appeals, and ultimately the misconduct charges were affirmed at the level of final review. During the hearing and the appeal process, Richardson maintained his innocence by claiming that he corresponded with H&R Block to obtain an unclaimed tax refund. The hearing examiner and the administrative tribunals rejected this contention "as very unrealistic." (The DOC Defendants' Preliminary Objections, Exhibits A, D, H.)
By order dated October 3, 2012, the trial court sustained the DOC Defendants' preliminary objections and dismissed the second amended complaint with prejudice. In so doing, the trial court concluded that it lacked subject matter jurisdiction on the basis that Richardson's complaint essentially requested the court to review the DOC's prison misconduct proceedings, which, barring exceptional circumstances, are not subject to judicial review. The trial court further concluded that the second amended complaint failed to state a claim as a matter of law on the ground that the DOC found that Richardson attempted to use mail services to file a fraudulent tax return and, therefore, the DOC Defendants did not violate Richardson's First Amendment rights. (Trial court op. at 4-5.)
On appeal, Richardson asserts that the trial court erred in dismissing his complaint because the prison misconduct charges were "fabricated" and were used as a "vehicle … to retaliate against [him] for engaging in his protected communications with the IRS." (Richardson's brief at 13.)
"[T]he question presented in a demurrer is whether, on the facts averred, the law indicates with certainty that no recovery is possible. In reviewing a lower court's decision to grant a demurrer, our Court's standard of review is de novo." Stilp v. General Assembly, 601 Pa. 429, 435, 974 A.2d 491, 494 (2009) (citations omitted).
In reviewing preliminary objections, "[a]ll well-pled facts in the complaint, and reasonable inferences arising from those facts, are accepted as true. However, unwarranted inferences, conclusions of law, argumentative allegations or expressions of opinion need not be accepted." Wilson v. Marrow, 917 A.2d 357, 361 n.3 (Pa. Cmwlth. 2007) (citation omitted). Further, Pennsylvania is a fact-pleading jurisdiction; consequently, a pleading must not only apprise the opposing party of the asserted claim, "it must also formulate the issues by summarizing those facts essential to support the claim." Sevin v. Kelshaw, 611 A.2d 1232, 1235 (Pa. Super. 1992).
"[T]he First Amendment to the United States Constitution has long been interpreted by the courts as including a general right to communicate by mail." Bussinger v. Department of Corrections, 29 A.3d 79, 84 (Pa. Cmwlth. 2011). In Yount v. Department of Corrections, 600 Pa. 418, 426-29, 966 A.2d 1115, 1120-21 (2009), our Supreme Court held that to prevail on a First Amendment retaliation claim, the complainant must state sufficient facts to show that: (1) he engaged in constitutionally protected conduct; (2) the retaliation against that conduct resulted in adverse action; (3) the protected ...