Mcgill v. Pennsylvania Department of Health , 758 A.2d 268 ( 2000 )

MIRARCHI, Jr., Senior Judge.

Before this Court are the preliminary objections of the Department of Health, Office of Drug and Alcohol Programs (Department of Health), the Department of Corrections and the Pennsylvania Board of Probation and Parole (Board), (collectively, Respondents), to the petition for review in the nature of an action in mandamus filed by Gilbert McGill (McGill). We sustain the preliminary objections and dismiss the petition for review for failure to state a valid cause of action.

McGill is an inmate at the State Correctional Institution at Houtzdale (SCI-Houtzdale) serving an aggregate imprisonment term of two-to-seven years for his 1996 and 1997 convictions of the retail theft and possession of instrument of crime charges. In an order dated May 24, 1999, the Board refused to grant McGill a parole and advised him that in determining whether to grant him a parole in the future, the Board would consider, inter alia, whether he has completed the prescriptive program offered by the Department of Corrections.

On October 20,1999, McGill filed, pro se, a petition for review in the nature of an action in mandamus, invoking this Court’s original jurisdiction. In the petition for review, McGill alleges that he has been designated by his counselor to attend the drug and alcohol treatment program, known as the Therapeutic Community Program (TC Program), operated by the Department of Corrections; the operation of the TC Programs is funded by the Department of Health which receives federal grants to be used for drug and alcohol treatment programs in Pennsylvania; the Department of Corrections operates the TC Programs without obtaining a license from the Department of Health in violation of 28 Pa.Code § 709.2¹ and without hiring clinical supervisors and counselors with the required qualifications listed in 28 Pa. Code §§ 704.6-704.7; and the ratio for the inmates participating in the TC Program at the SCI-Houtzdale and the counselors is currently 40 to 1, exceeding the 8-to-l ratio mandated by 28 Pa.Code § 704.12(3).

Based on these allegations, McGill asks this Court to issue a writ of mandamus, ordering the Department of Health to stop providing funding for the operation of the TC Programs, until the Department of Corrections complies with all the staffing and licensing requirements under the regulations; ordering the Department of Corrections to cease the operation of the TC Programs and remove the program from his designated prescriptive plan; and prohibiting the Board from denying him a parole based on his failure to participate and/or complete the TC Program.² In response, the Department of Health, the Department of Corrections and the Board have filed the preliminary objections in the nature of a demurrer, contending that McGill’s petition for review should be dismissed with prejudice for his failure to state a valid cause of action, upon which requested relief can be granted.

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; conclusions of law, unwarranted inferences, argumentative allegations or expressions of opinion need not be accepted, however. Dial v. Pennsylvania Board of Probation & Parole, 706 A.2d 901 (Pa.Cmwlth.1998); Wurth v. City of Philadelphia, 136 Pa.Cmwlth. 629, 584 A.2d 403 (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.Cmwlth. 266, 616 A.2d 1060 (1992).

A writ of mandamus sought by McGill is an extraordinary remedy which compels official performance of a ministerial act or a mandatory duty. Pennsylvania Dental Ass’n v. Insurance Department, 512 Pa. 217, 516 A.2d 647 (1986). Thus, in an action in mandamus involving an administrative agency’s exercise of discretion, the court may only direct the agency to perform the discretionary act and may not direct the agency to exercise its judgment or discretion in a particular way or direct the retraction or reversal of action already taken. Matesic v. Maleski, 155 Pa. Cmwlth. 154, 624 A.2d 776 (1993). A writ of mandamus may be issued, only where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and lack of any other appropriate and adequate remedy. Delaware River Port Authority v. Thornburgh, 508 Pa. 11, 493 A.2d 1351 (1985). The purpose of mandamus is not to establish legal rights, but to enforce those rights already established beyond peradventure. Africa v. Horn, 701 A.2d 273 (Pa.Cmwlth.1997).

Sections 704.6, 704.7, 704.12(3) and 709.2 of the regulations relied on by McGill are contained in 28 Pa.Code Chapters 704 and 709, which were promulgated under the authority of Articles IX and X of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§ 901-922, 1001-1031 and 1051-1087, setting forth powers and duties of the Department of Health.³ Chapter 704 provides for staffing requirements for licensed or approved “drug and alcohol treatment facilities.” 28 Pa.Code § 704.1 Chapter 709 establishes the procedures and standards “for the li-censure of freestanding drug and alcohol treatment facilities, under the powers and duties contained Articles IX and X of the Public Welfare Code _” 28 Pa.Code § 709.1.

In defining the term “facility,” Section 1001 of the Public Welfare Code, 62 P.S. § 1001, provides that the term “shall not include those operated by the State or Federal governments or those supervised by the department.” Since the Public Welfare Code expressly excludes any drug and alcohol treatment facilities operated by the state and federal governments from the scope of the applicability of Article IX and X, the staffing and licensing requirements set forth in 28 Pa.Code Chapters 704 and 709 promulgated thereunder are inapplicable to the TC Programs operated at the state correctional institutions. We therefore reject McGill’s assertions that the TC Programs operated by the Department of Corrections and funded by the Department of Health must comply with 28 Pa.Code §§ 704.6, 704.7, 704.12(g) and 709.2.

Further, a prisoner has no constitutionally protected liberty interests in being released from confinement prior to expiration of his or her maximum term of sentence. Wilder v. Department of Corrections, 673 A.2d 30 (Pa.Cmwlth.1996), appeal denied, 545 Pa. 673, 681 A.2d 1344 (1996). Parole is nothing more than a possibility, and if granted, it merely constitutes a favor given by the state, as a matter of grace and mercy, to a prisoner who has demonstrated a probability of his or her ability to function as a law-abiding citizen in society. Mickens-Thomas v. Pennsylvania Board of Probation & Parole, 699 A.2d 792 (Pa.Cmwlth.1997).

Under Section 17 of the Act of August 6, 1941, P.L. 861, commonly known as the Parole Act, os amended, 61 P.S. § 331.17, the Board has the exclusive power and the broad administrative discretion in determining if and when a prisoner should be released on parole. Tubbs v. Pennsylvania Board of Probation & Parole, 152 Pa.Cmwlth. 627, 620 A.2d 584 (1993), appeal denied, 536 Pa. 635, 637 A.2d 295 (1993). Consequently, this Court does not have jurisdiction to issue a writ of mandamus preventing the Board from denying a parole based on the prisoner’s failure to complete the rehabilitation program designated by the prison officials. Weaver v. Pennsylvania Board of Probation & Parole, 688 A.2d 766 (Pa.Cmwlth. 1997).

Hence, accepting the facts alleged by McGill in his petition for review as true, he failed to state a valid cause of action in mandamus against Respondents. Accordingly, Respondents’ preliminary objections in the nature of a demurrer are sustained, and McGill’s petition for review is dismissed with prejudice.

ORDER

AND NOW, this 18th day of August, 2000, Respondents’ preliminary objections in the nature of a demurrer to the petition for review are sustained. The petition for review filed by Gilbert McGill in the above-captioned matter is dismissed with prejudice.

1 . The regulations at 28 Pa.Code § 709.2 provides:

(a) Persons, partnerships and corporations, or other legal entities intending to provide drug and alcohol treatment services, shall first be licensed by the Department.

(b) No drug or alcohol freestanding treatment facilities may receive funds from the Department without a license issued under this chapter.

2 . In the petition for review, McGill also alleged that the TC Programs violate the constitutional requirement of the separation of church and state because it is permeated with reference to god and a higher power. That issue has been waived, however, for McGill’s failure to raise or discuss it in his brief filed in support of his petition for review and in opposition to the preliminary objections. See Aveline v. Pennsylvania Board of Probation & Parole, 729 A.2d 1254 (Pa.Cmwlth.1999) (the petitioner waived the issue of the constitutionality of the Board’s action due to his failure to raise or develop the issue in the brief filed in opposition to the preliminary objections to his petition for review).

3 . The departmental functions, powers and duties under Articles IX and X of the Public Welfare Code were transferred to the Department of Health by the Reorganization Plan No. 2 of 1977 and the Reorganization Plan No. 4 of 1981, 71 P.S. §§ 751-25 and 751-31.