R.J. Smolsky v. T.C. Blocker, Commissioner of the PSP of the Com. of PA ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond J. Smolsky, :
Petitioner :
:
v. : No. 531 M.D. 2019
: Submitted: October 16, 2020
Tyree C. Blocker, Commissioner of the :
Pennsylvania State Police of the :
Commonwealth of Pennsylvania, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: March 9, 2021
Raymond J. Smolsky has filed a pro se petition for review with this
Court in its original jurisdiction seeking a writ of mandamus to compel Tyree C.
Blocker, Commissioner of the Pennsylvania State Police, to expunge any records
relating to his sex offender registration and notify all other government and criminal
justice agencies having such records to expunge them. Commissioner Blocker has
filed preliminary objections in the nature of a demurrer2 seeking dismissal of
Smolsky’s petition, with prejudice. Commissioner Blocker asserts that Smolsky
cannot establish a clear legal right to relief or a corresponding duty in the
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
2
Pennsylvania Rule of Civil Procedure 1028(a)(4) provides that “[p]reliminary objections may be
filed by any party to any pleading and are limited to the following grounds … legal insufficiency
of a pleading (demurrer)[.]” PA. R.C.P. No.1028(a)(4).
Commissioner. We agree and will sustain Commissioner Blocker’s preliminary
objections.
In October 1989, Smolsky was convicted of rape, involuntary deviate
sexual intercourse, and corruption of a minor for offenses he committed in 1987. In
April 1991, he was sentenced to a term of 22½ to 45 years in prison. On April 12,
2018, Smolsky filed a pro se petition for review in this Court’s original jurisdiction
seeking relief from the registration requirements of the Sexual Offender Registration
and Notification Act (SORNA), 42 Pa. C.S. §§9799.10-9799.75. Smolsky filed an
application for summary relief on August 13, 2018.3 After review, this Court granted
Smolsky’s request for summary relief, concluding that the SORNA registration
requirements did not apply to him based on the dates of his offenses, conviction, and
release on parole. Smolsky v. Blocker (Pa. Cmwlth., No. 254 M.D. 2018, filed May
20, 2019), slip op. at 5-6 (Smolsky I).4
On September 20, 2019, Smolsky filed the instant petition for review
with this Court seeking a writ of mandamus directing Commissioner Blocker, as
“custodian of registration [] records,” to expunge “all the sex[]offender registration
records of Mr. Smolsky including fingerprints, photographs plates and photographs,
information and DNA samples and all records pertaining to sex offender registration
3
Smolsky sought relief from SORNA’s registration requirements as amended by the Act of
February 21, 2018, P.L. 27, 42 Pa. C.S. §§9799.10-9799.41 (commonly referred to as Act 10).
This Court ordered the parties to address whether Smolsky was required to register under a more
recent amendment to SORNA in the Act of June 12, 2018, P.L. 140 (commonly referred to as Act
29).
4
In light of our conclusion that the SORNA registration requirements did not apply to Smolsky,
this Court declined to address his claim that Act 29 was an unconstitutional ex post facto law as
applied to him under Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
2
of Mr. Smolsky[.]” Petition for Review ¶6. Smolsky asks this Court to direct
Commissioner Blocker to expunge
all government and criminal justice agencies[’] records relating
to [Smolsky’s] sex offender registration and information,
including the [Pennsylvania Parole Board5] and Department of
Corrections[’] records[.]
Id. (underlining in original). Smolsky requests this Court to order Commissioner
Blocker to serve a copy of any expungement order on the criminal justice agencies
that maintain his sex offender registration records and “notify” them to expunge
those records. Petition for Review, Relief Demanded.
On October 24, 2019, Commissioner Blocker filed preliminary
objections in the nature of a demurrer, and on November 13, 2019, Smolsky
answered the objections. On December 19, 2019, Commissioner Blocker filed a
brief in support of his preliminary objections.6 We now consider Commissioner
Blocker’s demurrer.7
5
Smolsky refers to the Pennsylvania Board of Probation and Parole in his petition. Subsequent to
the filing of his petition for review, the Pennsylvania Board of Probation and Parole was renamed
the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act of December 18, 2019,
P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and 6111(a) of the Prisons
and Parole Code, as amended, 61 Pa. C.S. §§6101, 6111(a).
6
Smolsky did not comply with the Court’s briefing schedule, and, consequently, we decided the
preliminary objections on the basis of Commissioner Blocker’s brief. See Pa. Cmwlth. Ct. Order,
8/21/2020.
7
This Court’s review determines whether on the facts alleged the law states with certainty that no
recovery is possible. Hawks by Hawks v. Livermore, 629 A.2d 270, 271 n.3 (Pa. Cmwlth.
1993). This Court must accept as true “every well-pleaded, material, relevant fact, and all
reasonable inferences to be drawn therefrom, but not conclusions of law[.]” Mueller v.
Pennsylvania State Police Headquarters, 532 A.2d 900, 902 (Pa. Cmwlth. 1987) (citation
omitted). Although we construe pleadings filed by pro se litigants liberally, “a pro se litigant is
not to be given any particular advantage because of his lack of knowledge of the law[.]” Id. “It is
only where the petition is clear on its face that the petitioner’s claim cannot be sustained, and that
the law will not permit the relief that the petitioner seeks, will the demurrer be sustained.” Id.3
As noted, Smolsky seeks to compel Commissioner Blocker to expunge
his sex offender registration records maintained by the State Police and notify other
criminal justice agencies to do the same. In considering Smolsky’s request for
mandamus relief, we are mindful that
[t]he writ of mandamus exists to compel official performance of
a ministerial act[8] or mandatory duty…. Mandamus cannot issue
to compel performance of a discretionary act or to govern the
manner of performing [the] required act…. This Court may issue
a writ of mandamus where the petitioner[] ha[s] a clear legal
right, the responding public official has a corresponding duty,
and no other adequate and appropriate remedy at law exists.
Coppolino v. Noonan, 102 A.3d 1254, 1263 (Pa. Cmwlth. 2014), affirmed, 125 A.3d
1196 (Pa. 2015) (emphasis added) (citations and quotations omitted). Smolsky bears
the burden, as the moving party, to identify his “clear legal right” and the
corresponding duty owed by Commissioner Blocker. Id. “Mandamus is not
available to establish legal rights, but is appropriate only to enforce rights that have
been established.” O’Toole v. Pennsylvania Department of Corrections, 196 A.3d
260, 270 (Pa. Cmwlth. 2018) (emphasis omitted) (quoting Stodghill v. Pennsylvania
Department of Corrections, 150 A.3d 547, 551 (Pa. Cmwlth. 2016)). “The petitioner
must show a specific, well-defined, and complete legal right to the thing demanded.
Mandamus is not proper to enforce a right that is doubtful.” 18 STANDARD
PENNSYLVANIA PRACTICE 2d, §99:10 (2020). See Mueller v. Pennsylvania State
8
“A ministerial act is one which a public officer is required to perform upon a given set of facts
in a prescribed manner in obedience to the mandate of legal authority.” Philadelphia Firefighters’
Union Local 22, International Association of Firefighters, AFL-CIO ex rel. Gault v. City of
Philadelphia, 78 A.3d 16, 21 n.10 (Pa. Cmwlth. 2013) (quoting County of Allegheny Deputy
Sheriff’s Association v. County of Allegheny, 730 A.2d 1065, 1067-68 (Pa. Cmwlth.), appeal
denied, 743 A.2d 923 (Pa. 1999)).
4
Police Headquarters, 532 A.2d 900, 904 (Pa. Cmwlth. 1987) (rejecting the
petitioner’s request for writ of mandamus because the directive on which he relied
neither conferred a legal right on the petitioner nor created a duty in the agency).
Commissioner Blocker argues that Smolsky can establish neither a
clear legal right nor a corresponding duty. In support, he cites J.J.M. v. Pennsylvania
State Police, 183 A.3d 1109 (Pa. Cmwlth. 2018). In that case, which is similar to
the present case, this Court held that the petitioner did not have to register as a sexual
offender under SORNA but declined to issue an order requiring the State Police to
remove all references to the petitioner from its records or to order the destruction of
any records already created. Because this Court in J.J.M. declined to order the
destruction of records under similar circumstances, Commissioner Blocker asserts
that Smolsky has no clear legal right to the relief he seeks, which is the expungement
of records relating to his status as a sexual offender. Commissioner Blocker also
contends that he has no corresponding duty to provide Smolsky with the requested
relief, i.e., to expunge any applicable State Police records and ensure that other
agencies, such as the Pennsylvania Parole Board and Department of Corrections, do
the same. Commissioner Blocker observes that he has no authority over agencies
other than the State Police.
Smolsky responds that in J.J.M., this Court did not explain why the
petitioner was not entitled to expungement of his records. Smolsky also asserts that
J.J.M. is distinguishable from his case because the petitioner in J.J.M. “was
convicted and as part of his sentence” was required to register as a sex offender.
Answer to Preliminary Objections ¶8. Subsequently, this Court held that the
petitioner was relieved from registration because the applicable amendment to
5
SORNA was an ex post facto law. By contrast, in Smolsky I, this Court held that
Smolsky was not required to “register” as a sex offender in the “first place”;
therefore, it follows that the records relating to his registration should be expunged.
Answer to Preliminary Objections ¶8. Regarding the duty of the public official
necessary for mandamus relief, Smolsky acknowledges that Commissioner Blocker
lacks authority to order another agency to expunge its records. Nevertheless,
Smolsky posits that Commissioner Blocker can, and must, comply with an order of
this Court to “notify such agencies” of an expungement order. Id. ¶14.
We hold that Smolsky has failed to identify a clear legal right to the
expungement of his sex offender registration records or a corresponding duty owed
by Commissioner Blocker. Smolsky’s reliance on Smolsky I as support for his
request is misplaced. Although we held in that case that Smolsky did not have to
comply with the SORNA registration requirements, our ruling did not relate to the
records held by the State Police or any other government agencies. Smolsky I did
not confer a legal right on Smolsky to have his records expunged, and it did not
impose a duty on Commissioner Blocker or the State Police to expunge any records.
Indeed, Smolsky acknowledges that J.J.M. is “inconclusive” and does not address
the particular facts of his case. Answer to Preliminary Objections ¶8. Thus, our
decision in that case did not confer a legal right on Smolsky or impose a mandatory
duty on Commissioner Blocker or the State Police with respect to Smolsky’s records.
In short, Smolsky has failed to satisfy the requirements for mandamus relief.9
9
Because Smolsky is not required to register as a sex offender with the State Police per Smolsky
I, it is unclear what records he wants Commissioner Blocker to expunge. The records Smolsky
identifies, i.e., fingerprints, photographs plates, and photographs, information and DNA samples,
are presumably records from his criminal case. It is possible that the State Police does not maintain
sex offender registration records for Smolsky since he is not subject to a registration requirement.
6
For all the above reasons, we sustain Commissioner Blocker’s
preliminary objections and dismiss Smolsky’s petition for review, with prejudice.
_____________________________________
MARY HANNAH LEAVITT, President Judge
Thus, even if Smolsky had met the requirements for a writ of mandamus, any order issued by this
Court may not have any practical effect. See Kupershmidt v. Wild Acres Lakes Property Owners’
Association, 143 A.3d 1057, 1061 (Pa. Cmwlth. 2016) (explaining that if a court lacks the ability
to issue an order with any practical effect then the claim is moot and must be dismissed).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond J. Smolsky, :
Petitioner :
:
v. : No. 531 M.D. 2019
:
:
Tyree C. Blocker, Commissioner of the :
Pennsylvania State Police of the :
Commonwealth of Pennsylvania, :
Respondent :
ORDER
AND NOW, this day 9th of March, 2021, the preliminary objections
filed by Tyree C. Blocker, Commissioner of the Pennsylvania State Police of the
Commonwealth of Pennsylvania, to Raymond J. Smolsky’s petition for review are
SUSTAINED and the petition for review is DISMISSED, with prejudice.
_____________________________________
MARY HANNAH LEAVITT, President Judge