L. Spann v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Leroy Spann, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole and :
Pennsylvania State Police, : No. 728 M.D. 2012
Respondents : Submitted: January 22, 2016
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: June 9, 2016
Before this Court is the Pennsylvania Board of Probation and Parole’s
(Board) Suggestion of Mootness as to Leroy Spann’s (Spann) pro se “(Complete)
Second Amended Petition for Review” (Petition) seeking mandamus relief,2 the
1
This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
2
In Taylor v. Pennsylvania State Police, 132 A.3d 590 (Pa. Cmwlth. 2016), an en banc
decision, this Court overruled the Pennsylvania State Police’s (PSP) preliminary objections
premised on PSP’s position that the petition for review sought mandamus relief, and that the
allegations therein did not meet the standards for mandamus relief. There, although the petition for
review was titled “Petition for Review in the Nature of a Writ of Mandamus[,]” this Court
explained:
a review of that document reveals no instances where [the petitioner]
actually requests the PSP to undertake a mandatory duty. [The
petitioner] requests this court to:
declare that [the Sexual Offender Registration and
Notification Act, (]SORNA’s[), Sections 9799.10-
9799.41 of the Sentencing Code, 42 Pa.C.S. §§
Pennsylvania State Police’s (PSP) Preliminary Objections to the Petition, and
Spann’s Summary Judgment Motion.3 The issues before the Court are: (1) whether
9799.10-9799.41,] current lifetime registration is
unconstitutional and order that he is hereby exempt
from registering any further, and ... from registering
four (4) times a year under SORNA, or in the
alternative, grant Petitioner's request that, as it
applies to him, application of SORNA is a direct
consequence to Petitioner and an ex post facto
application of the law.
Id. at 598-99 (quoting petition for review, Wherefore Clause). Unlike Taylor, Spann requests this
Court to:
issue an order directing [the Board and PSP] to take appropriate steps
to effectuate the process of removing [Spann] from the [Registry].
Furthermore, [Spann] requests that the court order the [Board and
PSP] to notify other state agencies and the authority that maintains the
Pennsylvania public website to remove [Spann] from the [Registry].
Petition at 5-6. Because Spann’s Petition seeks an order from this Court directing PSP and the
Board to act, we conclude that the Petition is in the nature of mandamus, and thus, Spann must
satisfy the requirements for mandamus relief.
3
This action has a lengthy and complex procedural history. On December 29, 2012, Spann
filed his First Petition with this Court, naming “Brian Donovan, Parole Agent of the [Board]” as
Respondent. On April 4, 2013, the Board filed Preliminary Objections to the First Petition. On
April 30, 2013, this Court sustained the Board’s Preliminary Objections and directed Spann to file
an Amended Petition for Review, naming the Board as Respondent. On May 17, 2013, Spann filed
an Amended Petition for Review (Amended Petition). On May 23, 2013, this Court ordered the
Board to answer or otherwise plead within 30 days. On June 21, 2013, the Board filed Preliminary
Objections which this Court overruled by July 11, 2013 order. On July 30, 2013, the Board filed its
Answer and New Matter to the Amended Petition. On March 19, 2014, Spann filed a “Motion for a
Disposition on [the Amended Petition],” which this Court denied by March 20, 2014 order. On
May 7, 2014, Spann filed a Summary Judgment Motion. On May 20, 2014, the Board filed an
Answer to Spann’s Summary Judgment Motion suggesting, inter alia, that PSP was a proper and
necessary party. On May 28, 2014, this Court issued an order permitting Spann to add PSP as an
additional Respondent. On June 10, 2014, Spann filed a Second Amended Petition for Review. On
July 15, 2014, this Court issued an order striking Spann’s Second Amended Petition for Review as
unauthorized. The order, however, permitted Spann to file a Complete Second Amended Petition
for Review adding PSP as a Respondent and adding any additional factual averments. On August 8,
2014, Spann filed the Petition. On August 11, 2014, this Court ordered the Board and PSP to file an
Answer or otherwise plead within 30 days. On September 8, 2014, the Board filed its Suggestion of
Mootness to the Petition. On September 9, 2014, PSP filed Preliminary Objections to the Petition.
On September 22, 2014, Spann responded to the Board’s Suggestion of Mootness. On October 8,
2
Spann’s claims against the Board are moot; (2) whether the Petition states a claim for
mandamus relief; and, (3) whether Spann’s Summary Judgment Motion should be
granted. After review, we grant the Board’s Suggestion of Mootness, sustain PSP’s
Preliminary Objections, deny Spann’s Summary Judgment Motion and dismiss
Spann’s Petition.
On March 26, 1990, Spann was convicted of rape pursuant to Section
3121 of the Crimes Code, 18 Pa.C.S. § 3121, and was sentenced to prison for 8½ to
20 years. In 1999, Spann was registered on PSP’s statewide registry (Registry) as a
sex offender under the first-enacted version of Megan’s Law (Megan’s Law I) which
required Spann to register for ten years.4 Spann’s maximum sentence was to expire
2014, Spann answered PSP’s Preliminary Objections. On December 17, 2014, PSP filed an
Application for Relief seeking dismissal of Spann’s Summary Judgment Motion since it was filed
before the Petition was filed. By December 18, 2014 order, this Court directed Spann to serve the
Summary Judgment Motion on PSP within 14 days. On January 5, 2015, Spann filed his Motion
for Summary Judgment and Memorandum of Law. On February 4, 2015, PSP filed its
Memorandum in Response to the Spann’s Summary Judgment Motion. By February 20, 2015
letter, the Board notified this Court that it joined in PSP’s Memorandum. On February 23, 2015,
Spann replied to PSP’s Memorandum. Thus, before this Court are the Board’s Suggestion of
Mootness, PSP’s Preliminary Objections and Spann’s Summary Judgment Motion.
4
As this Court noted:
The Supreme Court has described the history of Pennsylvania’s
Megan’s Law as follows:
The Act of October 24, 1995, P.L. 1079 (Spec.[ ]Sess.
No. 1), now known as Megan’s Law I, was to a
significant extent ruled unconstitutional in
Commonwealth v. Donald Williams, . . . 733 A.2d 593([Pa.] 1999). The General Assembly subsequently
enacted Megan’s Law II [Act of May 10, 2000, P.L.
74], whose constitutionality this Court substantially
upheld in Commonwealth v. Gomer Williams, . . . 832
A.2d 962 ([Pa.] 2003). In the Act of November 24,
2004, P.L. 1243 (known as Megan’s Law III), the
General Assembly addressed several matters, including
that portion of Megan’s Law II held to be
unconstitutional in Gomer Williams, concerning the
penalty provisions that attached to sexually violent
3
on July 4, 2009. However, on March 17, 2004, after being convicted of driving under
the influence of alcohol while on parole, Spann was recommitted and his maximum
sentence release date was recalculated to June 6, 2013.
By December 14, 2009 letter, PSP Commander Lieutenant Douglas E.
Grimes (Grimes) notified Spann that he had been removed from the Registry. The
letter advised:
A review of your registration history and criminal
history/confinement record has revealed that you are no
longer required to register as a sex offender with the [PSP]
at this time. Thus, you are not required to verify or report a
change of your address, employment, or school information
to the [PSP]. Additionally, your information has been
removed from the public website effective the date of this
correspondence.
December 14, 2009 PSP letter, Petition, Ex. C.
predators who failed to comply with registration and
other requirements of the act. In the Act of November
29, 2006, P.L. 1567 (effective January 1, 2007), the
General Assembly amended the legislation once again
....
Commonwealth v. Leidig, . . . 956 A.2d 399, 400 n.1 ([Pa.] 2008). In
2011, the General Assembly substantially revised Megan’s Law
setting out the provisions, subject to minor subsequent amendments,
we refer to as [the Sexual Offender Registration and Notification Act
(SORNA)(]Megan’s Law IV[)]. In Commonwealth v. Neiman, . . . 84
A.3d 603, 615-16 ([Pa.] 2013), the Pennsylvania Supreme Court
struck various provisions of Megan’s Law III on the grounds that the
Act of November 24, 2004, P.L. 1243 (Act 152), violated the single
subject rule of Article III, Section 3 of the Pennsylvania Constitution.
The majority of these provisions had already expired, per Section
9799.41 of Megan’s Law IV, 42 Pa.C.S. § 9799.41, as well as other
amendments to Megan’s Law. Neiman, 84 A.3d at 606-07 n[].8-18.
Coppolino v. Noonan, 102 A.3d 1254, 1258 n.2 (Pa. Cmwlth. 2014), aff’d, 125 A.3d 1196 (Pa.
2015).
4
On December 20, 2012, the Sexual Offender Registration and
Notification Act (SORNA)5 (Megan’s Law IV) became effective. Section 9799.13 of
SORNA, 42 Pa.C.S. § 9799.13, required individuals convicted of sexually-violent
offenses to register with PSP. SORNA defined “[s]exually[-]violent offense” as “a
Tier I, Tier II or Tier III sexual offense[,]” and categorized rape as a Tier III sexual
offense. 42 Pa.C.S. § 9799.12; see 42 Pa.C.S. § 9799.14(d). Section 9799.15(a)(3)
of SORNA required Tier III sexual offenders to register for life. 42 Pa.C.S. §
9799.15(a)(3). Section 9799.19(e.2) of SORNA requires that the applicable Board or
county probation office shall register the individual within 48 hours if the individual
is serving a sentence of parole on or after the date of the enactment of that section.
42 Pa.C.S. § 9799.19(e.2).
Because Spann was under the Board’s supervision on December 20,
2012, the Board notified Spann that he was subject to SORNA’s registration
requirements. On December 29, 2012, Spann filed a petition for review (First
Petition) in the nature of mandamus challenging SORNA’s lifetime registration
requirement. Thereafter, on August 8, 2014, Spann filed the Petition, naming PSP as
an additional party. On September 8, 2014, the Board filed a Suggestion of Mootness
to the Petition. On September 9, 2014, PSP filed Preliminary Objections to the
Petition. On January 5, 2015, Spann filed his Summary Judgment Motion and
supporting Memorandum of Law. On June 6, 2013, Spann reached his maximum
sentence date and the Board’s supervision ceased.
I. The Board’s Suggestion of Mootness
The Board asserts that since Spann is no longer under its supervision, his
Petition is moot as it pertains to the Board. We agree. This Court has held that an
5
42 Pa.C.S. §§ 9799.10 - 9799.41.
5
issue is moot where it can no longer be redressed by court action. Mistich v. Pa. Bd.
of Prob. & Parole, 863 A.2d 116 (Pa. Cmwlth. 2004).6 Although Section
9799.19(e.2) of SORNA requires the Board to register an individual within 48 hours
if the individual is serving a sentence of parole, the Board has no such responsibility
once an individual is no longer on parole. Importantly, the Board does not operate
the Registry. Section 9799.16(a) of SORNA provides that “[t]he [PSP] shall create
and maintain the [R]egistry.” 42 Pa.C.S. § 9799.16(a); see also 42 Pa.C.S. § 9799.15.
Spann’s Petition requests this Court to
issue an order directing [the Board and PSP] to take
appropriate steps to effectuate the process of removing
[Spann] from the [Registry]. Furthermore, [Spann] requests
that the court order the [Board and PSP] to notify other state
agencies and the authority that maintains the Pennsylvania
public website to remove [Spann] from the [Registry].
Petition at 5-6.
As explained in the Board’s Suggestion of Mootness and Spann
acknowledged in his Petition, Spann has not been under Board supervision since June
6, 2013. Thus, the Board had no further involvement in the maintenance of Spann’s
name in the Registry. The Board does not maintain the Registry, and has no authority
under SORNA to remove an individual’s name therefrom. Thus, even if Spann were
6
The Mistich Court explained:
Generally, a case will be dismissed as moot if there exists no actual
case or controversy. The existence of a case or controversy requires
(1) a legal controversy that is real and not hypothetical,
(2) a legal controversy that affects an individual in a
concrete manner so as to provide the factual predicate
for a reasoned adjudication, and (3) a legal controversy
with sufficiently adverse parties so as to sharpen the
issues for judicial resolution.
Id. at 119 (citation omitted) (quoting Dow Chem. Co. v. United States Envtl. Prot. Agency, 605 F.2d
673, 678 (3rd Cir. 1979)).
6
successful in obtaining mandamus relief, there is no action that this Court could order
the Board to take that would afford Spann the relief he seeks. Accordingly, Spann’s
mandamus action is moot as to the Board and is, therefore, dismissed.
II. PSP’s Preliminary Objections
PSP’s Preliminary Objections assert that the Petition should be
dismissed because it does not state a valid claim for mandamus relief. We agree.
Initially, we note that
[p]reliminary objections in the nature of a demurrer admit
all well-pleaded material facts and any inferences
reasonably deduced from them, but not legal conclusions.
A demurrer will be sustained only in cases that are clear and
free from doubt and only where it appears with certainty
that the law permits no recovery under the allegations
pleaded.
Nieves v. Pa. Bd. of Prob. & Parole, 983 A.2d 236, 239 n.1 (Pa. Cmwlth. 2009)
(citation omitted). Moreover, our Supreme Court has explained:
A proceeding in mandamus is an extraordinary action at
common law and is available only to compel the
performance of a ministerial act or mandatory duty where
there exists no other adequate and appropriate remedy; there
is a clear legal right in the plaintiff, and a corresponding
duty in the defendant.
McCray v. Pa. Dep’t of Corr., 872 A.2d 1127, 1131 (Pa. 2005). “Mandamus is not
proper to establish a legal right, but is only appropriately used to enforce those rights
that have already been established.” Bright v. Pa. Bd. of Prob. & Parole, 831 A.2d
775, 777 (Pa. Cmwlth. 2003).
To justify mandamus relief, Spann’s Petition must demonstrate that he
has a clear legal right to have his name removed from the Registry, and that PSP has
a corresponding duty to remove it. It is undisputed that Spann was convicted of rape
7
in 1990, and was subject to the Board’s supervision on December 20, 2012. SORNA
became effective on that date, and required the registration of individuals who, on or
after the effective date, were under Board supervision resulting from a conviction for
a sexually-violent offense.
Spann contends that SORNA’s registration7 requirements are
unconstitutional ex post facto laws. Pennsylvania courts have expressly held that
SORNA is not punitive and does not violate the ex post facto provisions of the United
7
Unlike in Taylor, Spann’s Petition does not allege that SORNA’s notification provisions
infringe on his constitutional rights. The Petition alleges in relevant part:
12. At no time during the course of sentencing or subsequently
did either the sentencing judge or any judicial-board of review inform
[Spann] that he would be subjected to lifetime registration under
Pennsylvania’s version of Megan[‘s] Law.
13. Under the circumstances, although [the Board’s parole
agent] overstepped his authority by ignoring [Grimes’] letter (that
removed [Spann] from the [Registry]), the [PSP] had a duty to correct
[the parole agent’s] seemingly personal-interest of having [Spann] put
back on the [Registry].
14. By failing to reaffirm [Grimes’] December 14, 2009
[letter] and taking actions to return [Spann] on the [Registry,] the
[PSP] deprived [Spann] of his right to due process of law and the
equal protection of law simply because, since being removed from the
[R]egistry [Spann] has not been rearrested for committing any new
sexual offense which would have changed [Spann’s] legal status.
15. As a result of the collective unlawful actions of the [Board
and PSP, Spann] noticed increasing difficulty maintaining a non-
hostel [sic] work environment since, his identity was returned to the
[Registry] which have cause[d] heighten[ed] alert — and jeopardizes
his freedom of the pursuit of happiness.
Petition at 5.
8
States and Pennsylvania Constitutions. Most recently in Taylor v. Pennsylvania State
Police, 132 A.3d 590 (Pa. Cmwlth. 2016), this Court explained:
With regard to whether the specific registration
requirements of SORNA pose ex post facto concerns, we
recently conducted an extensive review of those
requirements in Coppolino [v. Noonan, 102 A.3d 1254 (Pa.
Cmwlth. 2014)] and concluded that the registration
requirements, save Section 9799.15(g), 42 Pa.C.S. §
9799.15(g) (requiring those convicted prior to SORNA to
provide in-person updates to registration information), are
not punitive and pose no ex post facto concerns.
Coppolino, 102 A.3d at 1278–79. Based on Coppolino,
which was affirmed by the Pennsylvania Supreme Court,
the only registration requirement of SORNA that is
punitive, as applied to [the petitioner], is Section 9799.15(g)
and that requirement must not be imposed upon him.
Taylor, 132 A.3d at 601. See also Commonwealth v. Williams, 832 A.2d 962 (Pa.
2003) (holding that provisions in a prior version of SORNA were not punitive);
Commonwealth v. Giannantonio, 114 A.3d 429 (Pa. Super. 2015); Commonwealth v.
Perez, 97 A.3d 747 (Pa. Super. 2014).8
Spann also claims that the registration requirements imposed upon him
without a hearing violated his procedural due process rights. In Taylor, this Court
addressed a similar claim. The Court explained:
Article I, Section 1 of the Pennsylvania Constitution states
that ‘[a]ll men are born equally free and independent, and
have certain inherent and indefeasible rights, among which
are those of enjoying and defending life and liberty, of
acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness.’ Pa.
Const. art. I, § 1. Unlike the Due Process Clause of the
Fourteenth Amendment, our Supreme Court has
acknowledged that reputation is protected under Article I,
8
We reject Spann’s assertion that his removal from the Registry in 2009 (based on the
provisions of the then-existing statute) somehow precludes his inclusion on the Registry as SORNA
mandated. Because Spann falls within the class of individuals required to register under SORNA,
he must do so.
9
Section 1 of the Pennsylvania Constitution. See R. v.
Department of Public Welfare, . . . 636 A.2d 142, 149 ([Pa.]
1994) (discerning a fundamental right to reputation under
the Pennsylvania Constitution). Accordingly, reputation is
among the fundamental rights that cannot be abridged
without compliance with state constitutional standards of
due process. Id.[The petitioner’s] procedural due process challenge focuses
on SORNA’s bedrock ‘presumption that all sexual
offenders ‘pose a high risk of committing additional sexual
offenses. . . .’’ (Petition for [r]eview ¶ 20 (quoting 42
Pa.C.S. § 9799.11(a)(4)).) Because, under SORNA, all
individuals previously convicted of a sexual offense are
presumed to pose a high risk of re-offense, SORNA’s
registration scheme does not provide offenders with an
opportunity to challenge their registration requirements by
establishing to a fact finder that the offender has reformed
and no longer poses a threat to the public. See Section
9799.23(b) of SORNA, 42 Pa. C.S. § 9799.23(b) (providing
that courts shall not have the authority, with certain
exceptions, to relieve a sexual offender from the duty to
register.) Thus, under SORNA, individuals convicted of
sexually violent offenses are required to register without a
determination regarding the offender’s level of
dangerousness and likelihood of re-offense ever being
made.
Our Supreme Court recently assessed the constitutionality
of this presumption as applied to juveniles sexual offenders
in [In the interest of J.B., 107 A.3d 1, 14 (Pa. 2014)]. The
Supreme Court began its analysis in J.B. by considering
whether the juvenile petitioners had a right protected by the
due process clause of the Pennsylvania Constitution. As
explained by the Supreme Court:
SORNA explicitly declares that sexual
offenders, including juvenile offenders, ‘pose a
high risk of committing additional sexual
offenses and protection of the public from this
type of offender is a paramount governmental
interest.’ 42 Pa. C.S. § 9799.11(a)(4). Indeed,
a primary purpose of SORNA is to inform and
warn law enforcement and the public of the
potential danger of those registered as sexual
10
offenders. . . . [T]he common view of
registered sexual offenders is that they are
particularly dangerous and more likely to
reoffend than other criminals. Thus, SORNA
registration requirements, premised upon the
presumption that all sexual offenders pose a
high risk of recidivating, impinge upon
juvenile offenders’ fundamental right to
reputation as protected under the Pennsylvania
Constitution.
J.B., 107 A.3d at 16-17.
After determining that the juvenile petitioners had a
protected right to their reputations, the Supreme Court
summarized its case law outlining the ‘irrebuttable
presumption doctrine’ as providing that ‘irrebuttable
presumptions are violative of due process where the
presumption is deemed not universally true and a
reasonable alternative means of ascertaining that presumed
fact are available.’ Id. at 15 (quoting Dep[‘t] of Transp[.],
Bureau of Driver Licensing v. Clayton, . . . 684 A.2d 1060,
1063 ([Pa.] 1996)). The Supreme Court cited studies
credited by the trial court that showed juvenile sexual
offenders exhibit levels of recidivism that ‘are
indistinguishable from the recidivism rates of non-sexual
juvenile offenders.’ Id. at 17. Based on these studies and
other societal knowledge gleaned from statutes and case
law, the Supreme Court concluded that SORNA’s
registration requirements ‘improperly brand all juvenile
offenders’ reputations with an indelible mark of a
dangerous recidivist, even though the irrebuttable
presumption linking adjudication of specified offenses with
a high likelihood of recidivating is not ‘universally true.’’
Id. at 19. The Supreme Court then determined that a
reasonable alternative means to ascertain whether the
juvenile offenders represented a recidivism risk was
available in the form of a hearing similar to the hearing
required before classifying an offender as a sexually violent
predator pursuant to Section 9799.24 of SORNA, 42 Pa.
C.S. § 9799.24. J.B., 107 A.3d at 19. Concluding that the
‘irrebuttable presumption doctrine’ was satisfied, the
Supreme Court held that the lifetime registration
requirement was unconstitutional as applied to juveniles
because it encroached upon the juvenile petitioners’
11
constitutionally protected interest in their reputation without
due process of law. Id. at 19-20.
Taylor, 132 A.3d at 604-06. The Taylor Court further discussed the petitioner’s
allegations, stating:
[The petitioner] avers that he has a right to reputation
encroached upon by SORNA’s irrebuttable presumption.
The PSP offers no argument that [the petitioner’s] right to
reputation is not infringed by SORNA and we, therefore,
presume that [the petitioner] has sufficiently alleged such.
Nor does the PSP dispute [the petitioner’s] allegation with
regard to the final step of the irrebuttable presumption
doctrine: that reasonable alternative means exist to
determine whether [the petitioner] poses a high risk of
recidivism. Accordingly, we shall focus on whether [the
petitioner] alleges facts that, when accepted as true, shows
that it is not universally true that adult offenders pose a
heightened risk of recidivism.
[The petitioner’s] allegations point to studies showing that
sexual offenders have very low rates of recidivism in
general. According to [the petitioner], SORNA’s
irrebuttable presumption is based on speculation and
conjecture despite firm evidence to the contrary[.] In
response to [the petitioner’s] averments, the PSP argues that
[the petitioner] cannot satisfy the universality factor of the
irrebuttable presumption doctrine and points to previous
decisions by the Pennsylvania and United States Supreme
Courts, in which the courts have stated that recidivism rates
of all sexual offenders are high. Although the cases cited
by the PSP are persuasive, we decline to conclusively
resolve factual questions based on statements made in
judicial decisions that are nearly a decade old. Sociological
and psychological facts that serve as predicates to judicial
decisions may be re-tested based on newly developed
research and increases in human understanding. The
[p]etition for [r]eview cites to studies supporting [the
petitioner’s] allegation that it is not universally true that
sexual offenders always pose a high risk of re-offense . . . .
When reviewing preliminary objections, this Court must
treat all well-pleaded facts and any reasonable inference
from those facts as true. Just as the petitioners in J.B. were
entitled to prove their allegations with regard to recidivism
12
rates of juvenile offenders, notwithstanding previous
judicial findings to the contrary, [the petitioner] must be
afforded an opportunity to present his proof.
Id. at 606-07 (citations and quotation marks omitted).
Unlike in Taylor, Spann does not allege that he has a right to reputation
that has been infringed by SORNA’s irrebuttable presumption. Spann does not allege
that reasonable alternatives exist to determine Spann’s recidivism risk. Nor is there
any reference in Spann’s Petition to studies regarding relevant recidivism rates.
Thus, unlike Taylor, where the Court was required to “treat all well-pleaded facts and
any reasonable inference from those facts as true[,]” Spann has pled no facts that
could support his due process challenge to SORNA. Id. at 606. Accordingly, Spann
cannot establish that he has a clear legal right to the removal of his name from the
Registry, and thus, mandamus relief is not warranted. Because “the law permits no
recovery under the allegations pleaded[,]” we sustain PSP’s Preliminary Objections
and dismiss Spann’s Petition. Nieves, 983 A.2d at 239 n.1.
III. Spann’s Summary Judgment Motion
Spann’s Summary Judgment Motion essentially revisits the allegations
raised in his Petition that the December 14, 2009 PSP letter requires that his name be
removed from the Registry, and requests that this Court direct the Board and PSP to
do so. In light of our holding that Spann’s action is moot with respect to the Board,
and having sustained PSP’s Preliminary Objections, we deny Spann’s Summary
Judgment Motion.
13
For all of the above reasons, we grant the Board’s Suggestion of
Mootness, sustain PSP’s Preliminary Objections, deny Spann’s Summary Judgment
Motion and dismiss Spann’s Petition.
___________________________
ANNE E. COVEY, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Leroy Spann, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole and :
Pennsylvania State Police, : No. 728 M.D. 2012
Respondents :
ORDER
AND NOW, this 9th day of June, 2016, the Pennsylvania Board of
Probation and Parole’s Suggestion of Mootness is granted, the Pennsylvania State
Police’s Preliminary Objections are sustained, Leroy Spann’s Summary Judgment
Motion is denied and the “(Complete) Second Amended Petition for Review” is
dismissed.
___________________________
ANNE E. COVEY, Judge