W. Robinson v. Parole Agent Snyder ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Willie Robinson, :
Petitioner :
:
v. :
:
Parole Agent Snyder, Records Officer :
B. Boyce, Hearing Examiner Mr. From, :
Current Parole Board Members, :
A.R. Designee Scott Woolf, S. Kerwin :
Case Technician, : No. 676 M.D. 2020
Respondents : Submitted: June 17, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: October 26, 2022
Before this Court are Parole Agent Snyder’s (Snyder), Records Officer
B. Boyce’s (Boyce), Hearing Examiner Mr. From’s (From), Current Parole Board
Members’, A.R.1 Designee Scott Woolf’s (Woolf), and Case Technician S. Kerwin’s
(Kerwin) (collectively, Respondents) preliminary objections (Preliminary
Objections) to Willie Robinson’s (Robinson) pro se motion to compel (Petition)2
filed in this Court’s original jurisdiction, and Robinson’s Motion for Judgment on
1
A.R. appears to stand for “Administrative Review.” Petition Ex. A.
2
On February 3, 2021, this Court ordered that Robinson’s motion to compel “shall be
treated as a Petition for Review [(Petition)] addressed to this Court’s original jurisdiction.” Feb.
3, 2021 Order at 1.
The Petition does not reflect Snyder’s, Boyce’s, From’s, Current Parole Board Members’,
or Kerwin’s full names.
the Pleadings (Motion). After review, this Court overrules the Preliminary
Objections and denies the Motion.
Background3
In 2009, Robinson pled guilty to drug charges for which he was
sentenced to 1½ to 10 years in prison (Original Sentence), and incarcerated at the
State Correctional Institution at Somerset. See Petition at 3;4 see also Petition ¶ 17.
At that time, his Original Sentence maximum release date was June 24, 2019. See
id. Robinson was released on parole in 2010.
In 2011, Robinson was again convicted of drug charges. Robinson
elected to have a full Parole Board revocation hearing, during which he objected that
the Parole Board violated the 120-day revocation hearing deadline. See Petition ¶
17. By notice mailed January 24, 2013, the Parole Board recommitted Robinson as
a convicted parole violator (CPV) to serve 18 months of backtime on his Original
Sentence based on the new charges.5 See Petition Ex. G. The notice reflected that
Robinson’s new Original Sentence maximum release date was June 27, 2021. See
id. Robinson was subsequently reparoled.
In 2015, Robinson was convicted of driving under the influence of a
controlled substance. By notice recorded June 3, 2016 (mailed June 23, 2016),6 the
3
The facts are those as averred by Robinson in the Petition and represented in the
documents attached thereto.
4
Because the Petition’s pages are not numbered, the page numbers referenced herein are
the electronic pagination assigned by this Court’s docketing system.
5
Robinson asserts that he successfully appealed from the Parole Board’s January 24, 2013
decision, but the Parole Board failed to restore his Original Sentence maximum release date. See
Petition ¶ 17. Robinson did not attach the appeal documents to the Petition, and he does not make
any further argument in the Petition concerning the Board’s January 24, 2013 action.
6
Although the decision recorded June 3, 2016 does not show when the Parole Board mailed
it, in their brief to this Court, Respondents represent that the Parole Board mailed the June 3, 2016
decision on June 23, 2016. See Respondents’ Br. Ex. C at 1.
2
Parole Board recommitted Robinson as a CPV to serve 12 months of backtime on
his Original Sentence based on the new charge. See Petition Ex. F. The notice stated
that Robinson’s new Original Sentence maximum release date was November 12,
2022. See id. On July 11, 2016, Robinson timely filed an administrative remedies
form challenging the Parole Board’s June 3, 2016 decision (mailed June 23, 2016)
recalculating his Original Sentence maximum release date (Appeal). See Petition ¶
18; see also Respondents’ Br. Ex. C at 1. The Parole Board never issued a response
thereto.7 See Petition Ex. E.
In May 2019, the Parole Board recommitted Robinson as a CPV to
serve six months of backtime on his Original Sentence for a tampering with evidence
conviction. See Petition ¶ 12. On September 17, 2019, the Parole Board
recommitted him as a CPV to serve 12 months of backtime on his Original Sentence
for the evidence tampering charge.8 See id.
7
In addition, on February 24, 2020, Robinson filed a petition for writ of mandamus/motion
to compel in this Court’s original jurisdiction seeking to have this Court issue an order for the
Parole Board to, inter alia, respond to his sentence recalculation inquiry. See Robinson v. Pa.
Prob. & Parole (Pa. Cmwlth. No. 189 M.D. 2020); Petition ¶ 8. On March 5, 2020, this Court
dismissed Robinson’s action because sentence recalculation challenges must be brought in this
Court’s appellate jurisdiction. See Mar. 5, 2020 Order. Indeed, “this Court’s appellate jurisdiction
over a decision of the [Parole] Board . . . does not attach until after the [Parole] Board has entered
a final appealable order, usually denying administrative relief, and an appeal has been taken
therefrom.” Fultze v. Pa. Parole Bd., 271 A.3d 539 (Pa. Cmwlth. 2021) (quoting Bowman v. Pa.
Bd. of Prob. & Parole, 709 A.2d 945, 949 (Pa. Cmwlth. 1998)).
“Generally, when considering preliminary objections . . . , a court may not take judicial
notice of the records in another case. This general rule is subject to limited exceptions.” Guarrasi
v. Scott, 25 A.3d 394, 398 n.3 (Pa. Cmwlth. 2011). “It is appropriate for a court to take notice of
a fact which the parties have admitted or which is incorporated into the complaint by reference to
a prior court action.” Id. (quoting Styers v. Bedford Grange Mut. Ins. Co., 900 A.2d 895, 899 (Pa.
Super. 2006)).
8
Both the Parole Board and this Court determined that the Parole Board’s September 17,
2019 decision was a parole denial, rather than a recommitment order. On May 12, 2020, Woolf
acknowledged receiving Robinson’s September 25 and October 16, 2019, and March 10, 2020
correspondence following the Parole Board’s September 17, 2019 decision, and responded that,
since the Parole Board action was a denial of parole which is at the Board’s discretion and not
3
On October 2, 2019, Robinson submitted a Department of Corrections
(DOC) Form DC-135A (Inmate’s Request to Staff Member), inquiring whether the
Parole Board had answered his Appeal. That same day, DOC staff member Snyder
responded: “I do not know. That information would have been sent directly to you.”9
Petition Ex. E.
By January 20, 2020 Inmate’s Request to Staff Member, Robinson
sought an explanation regarding how his Original Sentence maximum date was
changed from June 24, 2019 to November 12, 2022.10 See Petition Ex. C. On
January 22, 2020, DOC staff member Boyce responded: “[The] Parole [Board] does
the calculations. You need to address this issue with [the Parole Board].”11 Petition
Ex. C.
By March 1, 2020 Inmate’s Request to Staff Member, Robinson asked
whether DOC’s records reflect that his 18-month recommitment had been rescinded,
thereby returning his Original Sentence maximum release date to June 24, 2019. See
Petition Ex. B. Boyce responded: “No. I do not. Your last Parole Board [a]ction
appealable, Robinson was not entitled to administrative relief. See Petition Ex. A; see also
Robinson v. Pa. Parole Bd. (Pa. Cmwlth. No. 359 C.D. 2020), May 22, 2020 Order.
Robinson claims that Woolf responded to him regarding the parole denial, but ignored his
recalculation challenge. See Petition at 12-13, 24-26. Robinson also avers that he drafted the
October 16, 2019 and March 10, 2020 letters to DOC staff member Kerwin, who did not respond
thereto. See Petition ¶ 21; see also Petition at 11, 34-35.
9
Form DC-135A is an internal DOC form “used to ask for information, interviews, or other
things from [DOC] staff members.” Section II.C of the Inmate Handbook.
www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/2017%20DOC%20Inmate%20Han
dbook.pdf (last visited Oct. 25, 2022). Inmates cannot seek information from the Parole Board
staff in this manner because the Parole Board is a separate agency.
Robinson contends that Snyder was aware of his recalculation challenge but failed to
investigate his claims or otherwise “help [him] in any way as [his] parole agent. She directed
[him] to write [to] parole when she is [(i.e., represents)] parole.” Petition at 16; see also Petition
at 27-28.
10
Therein, Robinson acknowledged that his maximum sentence release date had since been
recalculated to “2023.” Petition Ex. C.
11
According to Robinson, Boyce failed to investigate his sentence recalculation concerns
and other accusations. See Petition at 29.
4
was dated [June 6, 2019,] and your recomputed max date is [November 24, 2023].”
Petition Ex. B.
On March 13, 2020, Robinson appealed from the Parole Board’s June
3, 2016 decision to this Court. See Robinson v. Pa. Parole Bd. (Pa. Cmwlth. No.
359 C.D. 2020); Petition ¶ 9. On May 12, 2020, Robinson filed an amended petition
for review in this Court. This Court dismissed Robinson’s appeal, declaring, in
relevant part:
[U]pon consideration of the amended petition for review,
and it appearing that [Robinson] is appealing [from the
Parole Board’s] decision recorded on June 3, 2016, which
decision is subject to the [Parole B]oard[’]s administrative
remedies procedure, and it further appearing that
[Robinson] may have sought administrative relief, but that
the [Parole] Board has not issued a determination granting
or denying his administrative appeal, the [amended]
petition for review is dismissed on the basis it was taken
from a nonfinal order. See Pometti v. Pa. Bd. of Prob. &
Parole, 705 A.2d 953 (Pa. Cmwlth. 1998) ([Parole] Board
must issue a final decision on merits of parolee’s claims
after its own appellate review).
May 22, 2020 Order.
By October 7, 2020 Inmate’s Request to Staff Member, Robinson
requested the name of his revocation hearing examiner. See Petition Ex. D. On
October 13, 2020, Snyder responded: “They announced their names to you in your
interview. I am not permitted to give you that information.” Petition Ex. D.
On December 2, 2020, Robinson filed the Petition in the Somerset
County Common Pleas Court (Docket No. 647 Civil 2020), which was transferred
to this Court on December 22, 2020.12 Therein, Robinson asserts that he has sent at
12
Robinson also filed a Motion to Proceed In Forma Pauperis, which this Court denied on
February 3, 2021.
5
least 12 letters and filed at least 6 administrative remedies forms over 4 years
challenging his Original Sentence maximum release date calculation, his backtime
presumptive range violations, and sentence credit requests without a response from
Respondents/the Parole Board. See Petition ¶¶ 6-7, 11, 13-14, 18. He also declares
that his public defender, Marc Valentine, Esquire (Counsel), “has sent numerous
letters to the [Parole] Board[,] [b]ut [the Parole Board] never responded to him.”
Petition ¶ 5. Robinson claims that the Parole Board responded to his parole denial
challenge, but not his Original Sentence calculation challenge Appeal.13 See Petition
¶ 15. Robinson also requests in the Petition for this Court to order the Parole Board
to produce Robinson’s entire parole file, which he contends will support his Appeal.
See Petition at 2. Robinson makes claims against and seeks damages from
Respondents under Section 1983 of the Civil Rights Act of 1871,14 and for due
process violations, emotional distress, false imprisonment, improper prisoner
contracting, and retaliation, based on the Parole Board’s failure to render a decision
regarding his Appeal.
On April 27, 2021, this Court ordered Respondents to file an answer to
the Petition within 30 days. On May 27, 2021, Respondents filed the Preliminary
Objections, acknowledging that Robinson filed administrative appeals with the
Parole Board on April 27, June 1, June 4, and August 13, 2020, and January 20,
2021. See Prelim. Objs. ¶ 8. Therein, Respondents represented that “Robinson’s
On April 21, 2021, Robinson filed a Petition for Preliminary Injunction requesting an order
directing Respondents to recalculate his maximum sentence release date. On July 22, 2021, this
Court denied Robinson’s Petition for Preliminary Injunction without explanation.
13
Robinson claims that From, the hearing examiner for his August 2019 and September
2020 parole hearings, failed to investigate his sentence recalculation challenge and used it against
him when deciding whether Robinson should be paroled. See Petition at 14-15, 32-33. Robinson
further asserts that the current Parole Board members have failed to respond to his sentence
recalculation challenge, but continue to take other actions against him. See Petition at 17-18, 30-
31.
14
42 U.S.C. § 1983.
6
[Appeal] was answered and mailed to him on February 3, 2021 [(February 2021
Letter)],”15 and they attached a copy of the February 2021 Letter thereto.16 Prelim.
Objs. ¶ 9; see also Prelim. Objs. Ex. A. Respondents argue that Robinson’s original
jurisdiction Petition should be dismissed pursuant to Pennsylvania Rule of Civil
Procedure (Rule) 1028(a)(1) (lack of jurisdiction), because Robinson should have
sought review of the Parole Board’s February 2021 Letter in this Court’s appellate
jurisdiction (First Preliminary Objection). See Prelim. Objs. ¶¶ 3-10. Respondents
also object on the basis that Robinson’s Petition is moot because the Parole Board’s
February 2021 Letter granted the relief Robinson requested - a response to his
Appeal (Second Preliminary Objection). See Prelim. Objs. ¶¶ 11-14.
On June 9, 2021, Robinson filed the Motion. Therein, Robinson
requests this Court to enter judgment in his favor because Respondents’ Preliminary
Objections fail to address the material issues related to his Appeal, which allegedly
implicate Respondents’ liability for violating his constitutional right to due process.
See Motion at 1-5.
On July 22, 2021, this Court ordered the parties to file briefs relative to
Respondents’ Preliminary Objections and Robinson’s Motion. On September 22,
15
The Parole Board’s February 2021 Letter acknowledges
correspondence received from [Counsel’s] office and from
[Robinson] on April 27, 2020 (postmarked 4/15/2020), June 1, 2020
(postmarked 5/21/2020), June 4, 2020 (postmarked 5/27/2020),
August 13, 2020 (postmarked 8/7/2020), and January 20, 2021
(postmarked 1/14/2021). Additionally, correspondence received
September 25, 2019 (postmarked 9/23/2019), October 16, 2019
(postmarked 10/10/2019), and March 10, 2020 (postmarked
3/4/2020) following a decision recorded September 17, 2019[,] that
denied [] Robinson parole is also noted. A response to the parole
denial challenge was mailed to [Robinson] in May 2020.
Prelim. Objs. Ex. A at 1.
16
The February 2021 Letter was addressed to Counsel and copied to Robinson. See Prelim.
Objs. Ex. A.
7
2021, Respondents filed a brief in support of their Preliminary Objections,17 to which
they attached the Parole Board Secretary’s decision purportedly mailed on October
5, 2017, wherein the Parole Board denied Robinson’s Appeal, explained its Original
Sentence recalculations, and provided a new maximum sentence release date of
August 13, 2024 (October 2017 Response).18 See Respondents’ Br. Ex. C.
On October 26, 2021, Robinson filed a brief in opposition to the
Preliminary Objections and in support of his Motion. Robinson asserts, in pertinent
part, that Respondents failed to answer the Motion, Respondents did not raise the
October 2017 Response in their Preliminary Objections, and neither he nor Counsel
nor DOC ever received the October 2017 Response or had knowledge of it before
Respondents filed their brief in this Court. See Robinson Br. at 5.
Robinson was reparoled at some point after he filed his brief in this
Court. By December 3, 2021 letter, Robinson notified the Court that his current
17
Respondents did not respond to the Motion. Notably, in their brief in support of the
Preliminary Objections, Respondents state: “On June 15, 2021, this Court dismissed Robinson’s
request for judgment on the pleadings.” Respondents’ Br. at 4. However, this Court’s June 15,
2021 Order granted Robinson’s request to withdraw his previously filed Request for Entry of
Default. That Order did not dismiss the Motion. In fact, this Court’s July 22, 2021 Order directed
Respondents to file their brief in support of the Preliminary Objections “and in opposition to
[Robinson’s] Motion [] on or before August 23, 2021.” July 22, 2021 Order. In a subsequent
response to Respondents’ request for a filing extension, this Court granted Respondents until
September 22, 2021, to file their brief in support of the Preliminary Objections “and in opposition
to [Robinson’s] Motion[.]” Aug. 19, 2021 Order.
18
The October 2017 Response reflects:
This is a response to the administrative remedies form and additional
correspondence received from you date stamped July 11, 2016, July
15, 2016, July 21, 2016, July 26, 2016, August 17, 2016, and
January 6, 2017. Because you object to your recomputed parole
violation maximum date of November 12, 2022[,] and credit applied
to you, your request is considered a petition for administrative
review, from the [Parole B]oard action recorded June 3, 2016
(mailed June 23, 2016).
Respondents’ Br. Ex. C at 1.
8
address is 113 Edgar Street in York, Pennsylvania. On December 9, 2021, this Court
issued a rule to show cause why this matter should not be dismissed as moot because
Robinson is no longer incarcerated (Rule to Show Cause). On January 18, 2022,
Robinson filed an answer to the Rule to Show Cause, therein stating that this matter
is not moot because he should have completed his sentence rather than being on
parole. On January 24, 2022, this Court discharged the Rule to Show Cause.19
Discussion
Respondents’ Preliminary Objections
The law is well settled:
In ruling on preliminary objections, we must accept as true
all well-pleaded material allegations in the petition for
review, as well as all inferences reasonably deduced
therefrom. The Court need not accept as true conclusions
of law, unwarranted inferences from facts, argumentative
allegations, or expressions of opinion. In order to sustain
preliminary objections, it must appear with certainty that
the law will not permit recovery, and any doubt should be
resolved by a refusal to sustain them.
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).
“[C]ourts reviewing preliminary objections may not only consider the facts pled in
the [petition for review], but also any documents or exhibits attached to it.” Allen v.
Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).
In the instant matter, Robinson has presented a myriad of claims
stemming from the Parole Board’s recalculation of his Original Sentence maximum
release date due to his subsequent criminal convictions, but primarily the Parole
Board’s June 3, 2016 action. Robinson argues that, despite his Appeal from that
19
Although this Court did not supply the reason for discharging the Rule to Show Cause,
because Robinson is currently on reparole and he has not reached his current maximum sentence
release date, the challenge he has raised to this Court is not moot.
9
action and the related correspondence he and Counsel have sent the Parole Board,
Respondents failed to investigate and/or respond regarding his sentence
recalculation challenge, and their disregard resulted in him being incarcerated
beyond his Original Sentence maximum release date.
Initially, pursuant to Section 6138(a) of the Prisons and Parole Code,
[w]hen a parolee is convicted of a new criminal offense
committed while on parole and punishable by prison time,
the [Parole] Board has authority, in its discretion, to
recommit the parolee as a CPV. [See] 61 Pa[.]C.S. §
6138(a). Upon recommitment of a parolee, the [Parole]
Board may order him to serve some or all of the remainder
of his original sentence as backtime. Id.
Allen v. Pa. Bd. of Prob. & Parole, 207 A.3d 981, 985 (Pa. Cmwlth. 2019).
By definition, when the [Parole] Board imposes backtime,
it does not alter a judicially-imposed sentence; it simply
requires the prisoner to serve some or all of the time
remaining on the original sentence. [See Yates v. Pa. Bd.
of Prob. & Parole, 48 A.3d 496 (Pa. Cmwlth. 2012)]. The
[Parole] Board is authorized to recalculate the maximum
date of a sentence beyond the original date where it is not
adding to the total length of the sentence. [See] Hughes v.
Pa. Bd. of Prob. & Parole, 179 A.3d 117 (Pa. Cmwlth.
2018) (maximum length of sentence, not maximum date,
is controlling).
Here, at the time of his release on parole, [Robinson] had
. . . [time] remaining on his [O]riginal [S]entence. In
recalculating [Robinson’s] maximum sentence [release]
date, the [Parole] Board did no more than require him to
serve that sentence. [See] Yates.
Marshall v. Pa. Bd. of Prob. & Parole, 200 A.3d 643, 648 (Pa. Cmwlth. 2018).
Robinson had 30 days to file his Appeal, which he did. See Section
73.1 of the Parole Board’s Regulations, 37 Pa. Code § 73.1. Accepting Robinson’s
well-pled allegations in the Petition as true, as we must, see Torres, as of the date
10
Robinson filed the Petition in December 2020, the Parole Board had not responded
to that Appeal.
“The remedy for the [Parole] Board’s failure to timely act on an appeal
is a petition for mandamus in this Court’s original jurisdiction to require the [Parole]
Board to issue its decision[.]” Smoak v. Talaber, 193 A.3d 1160, 1166 (Pa. Cmwlth.
2018) (quoting Cooper v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth. No. 48 C.D. 2018,
filed Aug. 7, 2018)20).
The common law writ of mandamus lies to compel
an official’s performance of a ministerial act or a
mandatory duty. McGill v. P[a.] Dep[’]t of Health,
Off[.] of Drug [&] Alcohol Programs, 758 A.2d
268, 270 (Pa. Cmwlth. 2000). ‘The burden of
proof falls upon the party seeking this
extraordinary remedy to establish his legal right to
such relief.’ Werner v. Zazyczny, . . . 681 A.2d
1331, 1335 ([Pa.] 1996). Mandamus requires ‘[1]
a clear legal right in the [petitioner], [2] a
corresponding duty in the [respondent], and [3] a
lack of any other adequate and appropriate remedy
at law.’ Crozer Chester Med[.] C[tr.] v. . . .
Bureau of Workers’ Comp[.], Health Care Serv[s.]
Rev[.] Div[.], . . . 22 A.3d 189, 193 ([Pa.] 2011)
(citations omitted). Mandamus is not available to
establish legal rights but only to enforce rights that
have been established.
Sinkiewicz v. Susquehanna Cnty. Bd. of Comm’rs, 131
A.3d 541, 546 (Pa. Cmwlth. 2015). “Mandamus is not
used to direct the exercise of judgment or discretion of
an official in a particular way.” Clark v. Beard, 918
A.2d 155, 159 (Pa. Cmwlth. 2007) (emphasis added).
Further, “[i]n the context of a discretionary act, a [C]ourt
can issue such a writ to mandate the exercise of [its]
discretion in some fashion, but not to require that it be
exercised in a particular manner.” Sever v. Dep’t of
20
Unreported decisions of this Court issued after January 15, 2008, may be cited as
persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210
Pa. Code § 69.414(a).
11
Env[’t] Res., . . . 514 A.2d 656, 660 ([Pa. Cmwlth.] 1986)
(quoting U.S. Steel Corp. v. Papadakos, . . . 437 A.2d
1044, 1046 ([Pa. Cmwlth.] 1981)).
Stodghill v. Pa. Dep’t of Corr., 150 A.3d 547, 552 (Pa. Cmwlth. 2016), aff’d, 77
A.3d 182 (Pa. 2018).
This Court has explained:
Although the Parole Code does not provide a deadline for
the Parole Board to respond to a request for administrative
relief, the Parole Board’s time to respond is not indefinite.
A parolee’s right to due process may be compromised
where the delay to enter the appellate process causes
prejudice. In Slotcavage v. Pennsylvania Board of
Probation and Parole, 745 A.2d 89 (Pa. Cmwlth. 2000),
the parolee claimed that the Parole Board violated his
equal protection and due process rights because it took
more than six months to respond to his administrative
appeal. This Court stated:
[a]ssuming that the six-month delay was an
unreasonable amount of time for the [Parole]
Board to issue a decision, a parolee’s due process
rights to access the courts are not violated when a
parole board puts off making a decision of parole
until the parolee serves his time on other crimes.
Moody v. Daggett, 429 U.S. 78 . . . (1976). . . .
[Where an inmate] was not prejudiced by the
[Parole] Board’s delay in responding to his
administrative appeal, [the inmate’s] due process
rights under the United States and Pennsylvania
Constitutions were not violated.
Slotcavage, 745 A.2d at 92-93 (emphasis added). More
recently, in Cooper . . . , this Court addressed the Parole
Board’s 15-month delay in acting on an administrative
appeal, stating:
While the length of the delay on its face is
substantial, it does not constitute a valid ground for
relief from the [Parole] Board’s decision, even if it
were [sic] held to be unreasonable and
inexcusable. . . . [A] delay in issuing a decision on
12
a parole appeal does not violate an inmate’s due
process rights if the delay does not harm the
inmate’s ability to obtain the full relief he seeks[.]
Slip op. at 7-8 (citations omitted).
Smoak, 193 A.3d at 1165-66.
Based on the foregoing, Robinson had a clear legal right to have the
Parole Board respond to his Appeal and, although there is no particular time in which
it must do so, the Parole Board had a corresponding duty to render a decision on that
Appeal. Accepting Robinson’s well-pled allegations in the Petition as true, as we
must, see Torres, the Parole Board failed to respond to his Appeal.
Respondents retort in the Preliminary Objections that the Parole Board
did respond to Robinson’s and Counsel’s inquiries in its February 2021 Letter and,
thus, Robinson’s claim that the Parole Board failed to do so must be dismissed. See
Prelim. Objs. at 3; see also Prelim. Objs. Ex. A. However, the February 2021 Letter
does not refer to Robinson’s Appeal or correspondence related thereto. Rather, it
represents the Parole Board’s response to Robinson’s separate appeal from his
parole denial challenge rather than Robinson’s sentence recalculation challenge that
is the subject of the Appeal. Because the February 2021 Letter does not appear to
bear any relationship to Robinson’s Appeal, it was not a Parole Board response to
the Appeal to which Robinson was entitled.
In the face of the Parole Board’s failure to render a decision on the
Appeal, this mandamus action filed in this Court’s original jurisdiction is the proper
means for Robinson to seek relief. See Smoak. Accordingly, Respondents’ First
Preliminary Objection - that Robinson should have sought review in this Court’s
appellate jurisdiction - is overruled. Moreover, because the February 2021 Letter
was not the Parole Board response to the Appeal to which Robinson was entitled,
13
Respondents’ Second Preliminary Objection - suggestion of mootness based on the
February 2021 Letter - is also overruled.
Respondents asserted for the first time in their brief in support of their
Preliminary Objections that the October 2017 Response rendered Robinson’s action
moot. See Respondents’ Br. at 7; see also Respondents’ Br. Ex C. Robinson objects
to this Court’s consideration of the October 2017 Response, claiming that neither he,
nor Counsel, nor DOC ever received or were aware of it before Respondents
presented it with their brief to this Court, and Respondents did not plead it in, or
attach it to, their Preliminary Objections. See Robinson Br. at 5, 14-15.
This Court observes that the Petition and accompanying documents
support Robinson’s objection to the October 2017 Response. Specifically, in answer
to Robinson’s March 1, 2020 Inmate’s Request to Staff Member, Boyce informed
Robinson that, as of that date, DOC records reflected that his Original Sentence
maximum release date was November 24, 2023. See Petition Ex. B. If DOC had
notice or it appeared in Robinson’s file that, in October 2017, the Parole Board had
recalculated Robinson’s maximum sentence release, Boyce’s response would have
referenced an August 13, 2024 maximum date rather than a November 24, 2023
maximum date. In addition, in dismissing Robinson’s action in May 2020, this Court
had accepted as true Robinson’s allegations that, as of that date, the Parole Board
had not issued a decision regarding Robinson’s Appeal.21 Accordingly, the Petition
and the documents attached thereto call into question whether the Parole Board made
Robinson, Counsel, and/or DOC aware of the October 2017 Response before filing
their brief in this Court.
21
The Parole Board entered counsel’s appearance in that appeal, but this Court had not yet
ordered the Parole Board to respond to Robinson’s petition for review before this Court dismissed
the matter.
14
Moreover, Rule 1028(b) requires that “[a]ll preliminary objections shall
be raised at one time[, and t]hey shall state specifically the grounds relied upon . . . .”
Pa.R.Civ.P. 1028(b). Pursuant to Rule 1028(b), this Court is precluded from
addressing objections raised for the first time in a brief and/or argument in support
of preliminary objections. See Balsbaugh v. Dep’t of Gen. Servs., 815 A.2d 36 (Pa.
Cmwlth.), aff’d, 815 A.2d 628 (Pa. 2003).
Because it is not clear that the necessary parties received the October
2017 Response, and it was not raised in, attached to, or even suggested by
Respondents’ Preliminary Objections, this Court will not sustain Respondents’
Second Preliminary objection - suggestion of mootness - on that basis.
Because it does not “appear with certainty that the law will not permit
recovery,” and resolving “any doubt . . . by [] refus[ing] to sustain them[,]” Torres,
997 A.2d at 1245, this Court overrules Respondents’ Preliminary Objections.
Robinson’s Motion
This Court has explained:
“A motion for judgment on the pleadings is in the nature
of a demurrer”; thus, “all of the opposing party’s
allegations are viewed as true and only those facts which
have been specifically admitted by him may be considered
against him.” Trib Total Media, Inc. v. Highlands Sch[.]
Dist[.], 3 A.3d 695, 698 n.2 (Pa. Cmwlth. 2010).
In reviewing a motion for judgment on the pleadings we
“may only consider the pleadings themselves and any
documents properly attached thereto.”[22] Id. The motion
should only be granted “when the pleadings show there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Id. Further, “the
party moving for judgment on the pleadings must admit
22
Notably, supporting briefs are not expressly listed among the pleadings recognized by
Rule 1017 (relating to pleadings allowed). See Pa.R.Civ.P. 1017.
15
the truth of all the allegations of his adversary and the
untruth of any of his own allegations that have been denied
by the opposing party.” Pfister v. City of Phila[.], 963
A.2d 593, 597 (Pa. Cmwlth. 2009). Where “material
issues of fact are in dispute, judgment on the pleadings
cannot be entered.” Id.POM of Pa., LLC v. Dep’t of Rev., 221 A.3d 717, 722 n.7 (Pa. Cmwlth. 2019).
“[T]he burden is on the moving party to prove the non-existence of any genuine issue
of fact[,] and . . . all doubts as to the existence of a genuine issue of a material fact
must be resolved against the moving party.” Lyman v. Boonin, 635 A.2d 1029, 1032
(Pa. 1993).
Despite this Court’s conclusion relative to Respondents’ Preliminary
Objections that Robinson has pled a viable mandamus action, whether the Parole
Board responded to Robinson’s Appeal from the Parole Board’s June 3, 2016 action
and/or whether he or Counsel or DOC received, or were aware of, the Parole Board’s
purported October 2017 Response represents outstanding questions of material fact.
Accordingly, Robinson’s Motion is denied.
Conclusion
Based on the foregoing, Respondents’ Preliminary Objections are
overruled, and Robinson’s Motion is denied.
_________________________________
ANNE E. COVEY, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Willie Robinson, :
Petitioner :
:
v. :
:
Parole Agent Snyder, Records Officer :
B. Boyce, Hearing Examiner Mr. From, :
Current Parole Board Members, :
A.R. Designee Scott Woolf, S. Kerwin :
Case Technician, : No. 676 M.D. 2020
Respondents :
ORDER
AND NOW, this 26th day of October, 2022, Parole Agent Snyder’s,
Records Officer B. Boyce’s, Hearing Examiner Mr. From’s, Current Parole Board
Members’, A.R. Designee Scott Woolf’s, and Case Technician S. Kerwin’s
(collectively, Respondents) preliminary objections to Willie Robinson’s (Robinson)
pro se motion to compel are OVERRULED. Respondents are directed to file an
answer to the motion to compel within 30 days from the date of this Order.
Robinson’s Motion for Judgment on the Pleadings is DENIED.
_________________________________
ANNE E. COVEY, Judge