C. Moss v. PBPP, Gov. T. Wolf

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Craig Moss, :
:
Petitioner :
:
v. : No. 66 M.D. 2021
: Submitted: May 6, 2022
Pennsylvania Board of Probation :
and Parole, Governor Tom Wolf, :
:
Respondents :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: March 9, 2023
Before the Court are the preliminary objections (POs) filed by the
Pennsylvania Parole Board (Board)1 and Governor Tom Wolf (together,
Respondents), to the pro se petition for review (Petition) filed in our original
jurisdiction by Craig Moss (Parolee) seeking a writ of mandamus. After careful
review, we sustain a PO and dismiss the Petition with prejudice.
1
The Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole
Board before this action commenced on March 10, 2021. 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 (Parole Code), as amended, 61 Pa. C.S. §§6101,
6111(a).
In Moss v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth.,
No. 1084 C.D. 2019, filed April 29, 2020) (Moss),2 this Court affirmed the Board’s
denial of credit for time spent at liberty on parole, reversed the Board’s denial of
credit for additional time served that we concluded should have been applied to
Parolee’s original sentence, and remanded the matter for further proceedings
consistent with our opinion. We summarized the relevant background in Moss as
follows. Parolee was convicted of arson and sentenced in 1997 to a term of 3 years,
6 months to 20 years, and he was convicted of aggravated assault and sentenced in
2000 to a term of 1 year, 3 months to 10 years, which resulted in an aggregated
sentence of 4 years, 9 months to 30 years. Moss, slip op. at 2. Parolee was first
paroled to a community corrections center in 2008. Id. However, between 2012 and
2016, Parolee was involved in several domestic disturbances, including an incident
that led to him being arrested for assaulting his wife while intoxicated in May 2016.
Id. The Board issued a warrant and detained Parolee pending disposition of those
criminal charges. Id. Those charges were dismissed in July 2016, Parolee was
released, and the Board credited Parolee for the time he spent in custody on those
charges. Id. Parolee later sought and was granted expungement of the 2016 assault
charges. See Petition, Exhibits A and B.
While still on parole, in January 2017, Parolee was involved in another
incident while intoxicated, where he threatened patrons with a knife and was ejected
2
See Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”). It is appropriate for this
Court to take judicial notice of documents that are filed and entered in our docket. See, e.g.,
Pa.R.E. 201(b)(2) (permitting courts to take judicial notice of facts that may be “determined from
sources whose accuracy cannot reasonably be questioned”); Moss v. Pennsylvania Board of
Probation and Parole, 194 A.3d 1130, 1137 n.11 (Pa. Cmwlth. 2018) (taking judicial notice of
docket entries that were not part of the original record).
2
from a bar. Moss, slip op. at 2. As a result of this incident, Parolee was arrested and
charged with terroristic threats, simple assault, and other crimes, and he was
convicted of possessing an instrument of crime and simple assault. Id. at 3. In 2018,
Parolee was sentenced for those crimes to a term of one year less one day to two
years less two days. Id. Based on these convictions, Parolee was recommitted as a
convicted parole violator (CPV) to serve nine months’ backtime, he did not receive
credit for time spent at liberty on parole, and he received credit for time served which
was applied to his original sentence. Id. In Moss, the Court affirmed the Board’s
denial of credit for time spent at liberty on parole, and reversed and remanded the
Board’s denial of credit for additional time served that we concluded should have
been applied to Parolee’s original sentence. Id. at 12. Parolee sought and was denied
reargument, and he did not file an appeal in Moss.3
Parolee was paroled again by the Board on November 13, 2019, with a
new maximum date of May 7, 2036. Respondents’ POs, Exhibit A. One of the
conditions of Parolee’s release required him to “comply with supervision under the
domestic violence protocol[,]” which required him to reside in a community setting
in Lancaster, Pennsylvania, and not in his family home in Mount Wolf,
Pennsylvania. Id. Parolee signed and dated his release form. Id. In his Petition,
Parolee avers that his rights were violated when the Board refused to adhere to the
expungement order, by refusing to allow him to live in his own home, to raise and
educate his children, and to procreate with his wife. Petition ¶14. Through his
3
Parolee also apparently filed a petition for a writ of habeas corpus with the United States
(U.S) District Court for the Middle District of Pennsylvania, in an action entitled Moss v. Woolf,
Docket No. 1:19-cv-2129 (M.D. Pa., 2020), which was dismissed as moot in an order dated March
2, 2020. Relevant here, the U.S. District Court noted that the dismissal did not affect Parolee’s
right to pursue a claim that the Board failed to comply with the expungement order through a
mandamus action. See Petition, Exhibit F.
3
mandamus action, Parolee asks this Court to order Respondents to delete and destroy
all information in their files pursuant to the expungement order, to pay $15,000 in
damages, to grant him a new administrative hearing, and to allow him to move back
to his family home. Petition ¶¶20-25.
Respondents filed POs alleging that Parolee’s Petition should be
dismissed for lack of verification pursuant to Pa. R.Civ.P. 1024, that the Court lacks
original jurisdiction over Parolee’s claim for money damages arising out of a tort
action, that Parolee failed to join the Pennsylvania Department of Corrections
(Department) as a necessary party pursuant to Pa. R.Civ.P. 1028(a)(5), and that
Parolee failed to exhaust his administrative remedies pursuant to Pa. R.Civ.P.
1028(a)(7).4 Parolee filed a brief opposing Respondents’ POs, arguing, in relevant
part, that he attached a verification to his brief, and that Respondents’ legal
arguments are without merit.5
Initially, we note that mandamus is not a common mode of review, and
a party seeking mandamus relief must satisfy the applicable requirements.
4
As this Court has explained:
In ruling on preliminary objections, the courts must accept as true
all well-pled facts that are material and all inferences reasonably
deducible from the facts. However, we “are not required to accept
as true any unwarranted factual inferences, conclusions of law or
expressions of opinion.” To sustain preliminary objections, “it must
appear with certainty that the law will permit no recovery” and
“[a]ny doubt must be resolved in favor of the non-moving party.”
Brouillette v. Wolf, 213 A.3d 341, 350 n.9 (Pa. Cmwlth. 2019) (citations omitted).
5
On January 11, 2022, the Court issued a Rule to Show Cause as to why Parolee’s Petition
should not be dismissed as moot because he was no longer incarcerated, to which Parolee
responded. On February 18, 2022, the Court discharged the Rule to Show Cause and directed
Parolee to respond to Respondents’ POs, which he did.
4
“Mandamus is an extraordinary writ which lies to compel the performance of a
ministerial act or mandatory duty where there is a clear legal right in [] [Petitioner],
a corresponding duty in [] [Respondent(s)], and a want of any other appropriate and
adequate remedy.” Valley Forge Racing Association, Inc. v. State Horse Racing
Commission, 297 A.2d 823, 824-25 (Pa. 1972). “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).
We turn first to Respondents’ PO that Parolee failed to exhaust his
administrative remedies as required by Pa. R.Civ.P. 1028(a)(7) to challenge the
conditions of his parole. It is well settled that
[a] party challenging administrative decision-making that
has not exhausted its administrative remedies is precluded
from obtaining judicial review by mandamus or otherwise.
Canonsburg General Hospital v. Department of Health, []
422 A.2d 141 ([Pa.] 1980). The primary purpose of the
exhaustion doctrine is to ensure that claims will be heard,
as a preliminary matter, by the body having expertise in
the area. St. Clair v. [Pennsylvania] Board of Probation
and Parole, [] 493 A.2d 146 ([Pa.] 1985). It further
provides the agency with the opportunity to correct its own
mistakes and to moot judicial controversies. Id.Matesic v. Maleski, 624 A.2d 776, 778 (Pa. Cmwlth. 1993).
Respondents argue that although Parolee’s Petition avers that the Board
erroneously maintained records of charges that were expunged, the crux of Parolee’s
Petition is a challenge to the parole conditions that require him to reside outside his
family home. Respondents argue that because Parolee failed to utilize the
administrative review process available to him to challenge his parole conditions,
his Petition seeking mandamus relief should be dismissed, citing in support Jackson
v. Pennsylvania Board of Probation and Parole, 169 A.3d 1226 (Pa. Cmwlth. 2017)
5
(parolee must exhaust administrative remedies with the Board before he can
challenge the Board’s imposition of a special parole condition). Respondents argue
that the governing case law, the Board’s regulations, and the release form signed by
Parolee, all require Parolee to exhaust administrative remedies before seeking
mandamus relief with this Court. Parolee responds that exhaustion of administrative
remedies is not required before he can file an action to enforce an expungement
order. Parolee further responds that the Board was aware he was seeking to enforce
an expungement order when he filed his federal complaint in Moss v. Woolf. Parolee
further responds that he filed an administrative remedies form with the Department,
and not with the Board, regarding the denial of his home plan, which he attached to
his Brief. See Petitioner’s Brief, Exhibit E.6
Generally, Section 6141 of the Prisons and Parole Code (Parole Code),
61 Pa. C.S. §6141, authorizes the Board to make “general rules for the conduct and
supervision” of offenders, and may “as it deems necessary to effectuate the purpose
of parole, prescribe special regulations for particular persons.” The purpose of
parole is to supervise offenders while protecting the public, where the Board “shall
first and foremost seek to protect the safety of the public.” Section 6102(2) of the
Parole Code, 61 Pa. C.S. §6102(2). Further, Section 6135(a)(3) and (7) of the Parole
Code requires to the Board to consider many factors when making parole
determinations, including the general character and background of the inmate, his
physical, mental, and behavioral condition and history, his history of family
violence, and his complete criminal record. See 61 Pa. C.S. §6135(a)(3) and (7).
6
Parolee did not aver what, if any, action the Department took in response to his grievance.
We reiterate that, here, Parolee did not file a petition for review of any Department or Board order
in our appellate jurisdiction.
6
Regarding both general and special parole conditions, Section 63.5 of
the Board’s regulations states:
(a) Parolees shall comply with special conditions which
are imposed by the Board or which are subsequently
imposed by the parole agent.
(b) If problems arise or questions occur concerning the
conditions of parole, the parolee shall consult with the
parole agent, as it is the responsibility of the latter to help
the parolee in the interpretation of the conditions of parole.
If parolee is unable to contact his parole agent, he should
contact the agent in charge of the district parole office.
37 Pa. Code §63.5.7 Should a parolee be dissatisfied with the response of a parole
agent or the agent in charge of the district parole office, he may file an informal or a
formal complaint with the Board, which clearly sets forth the facts and grounds for
filing the complaint. See Sections 31.19, 35.5, and 35.9 of the General Rules of
Administrative Practice and Procedure (GRAPP), 1 Pa. Code §§31.19, 35.5, and
35.9.
Here, Parolee’s release form included both general and special parole
conditions, including the general condition that he reside in the approved residence
in Lancaster County, and the special condition that he comply with supervision
under the domestic violence protocol. Respondents’ POs, Exhibit A. Also included
in the release form is the following:
7
See also Section 67.1(b) of the Board’s regulations, 37 Pa. Code §67.1(b) (“If problems
arise or questions occur concerning the conditions of parole or probation the parolee shall consult
with the parole agent, as it is the responsibility of the latter to help the parolee in the interpretation
of the conditions of probation or parole. If a parolee is unable to contact his parole agent, he should
contact the agent in charge of the district parole office.”); Section 67.1(c) of the Board’s
regulations, 37 Pa. Code §67.1(c) (“If a parolee violates the special conditions of this chapter, he
shall be subject to arrest and revocation of his parole or probation as if he had violated the original
conditions as outlined in Chapters 63 and 65.”).
7
7. You shall comply with the special conditions listed on
page 2 imposed by the Board and with special conditions
imposed by the parole supervision staff.
Additionally, should problems arise, or questions occur
concerning the conditions of your parole/reparole, consult
with parole supervision staff, and they will help you in the
interpretation of the Conditions of Parole/Reparole.
***
If you think that any of your rights have been violated as a
result of your parole supervision, you may submit a timely
complaint in writing, first to the district director of the
district office through which you are being supervised. If
your complaint is not resolved to your satisfaction, you
may then submit your complaint in writing to the [Parole
Board], Office of Probation and Parole Services, 1101
South Front St. Suite 5400, Harrisburg, PA 17104-2520.
Id. Parolee’s release form contains no reference to Parolee’s expunged criminal
history. Id. Again, we note that Parolee signed and dated this release form. Id.Based on the foregoing, we conclude that Parolee failed to establish a
clear legal right to direct the Board to alter the conditions of his parole. Jackson,
169 A.3d 1226; Matesic, 624 A.2d 776. Under the circumstances presented here,
following his release on parole in 2020, Parolee should have contacted his parole
agent, the director of his district parole office, and, ultimately, the Board to complain
about the general and special conditions regarding his residence requirements on
parole, but he did not. See 1 Pa. Code §§31.19, 35.5, and 35.9; 37 Pa. Code §§63.5and 67.1. See also Jackson, 169 A.3d at 1230-31. Parolee did not assert that these
administrative remedies were unavailable, facially unconstitutional, or inadequate,
such that seeking such administrative relief would be futile. See Keystone ReLeaf
LLC v. Pennsylvania Department of Health, 186 A.3d 505, 519 (Pa. Cmwlth. 2018);
Turner v. Board of Probation and Parole (Pa. Cmwlth., No. 183 M.D. 2019, filed
October 13, 2020). Because Parolee failed to exhaust this adequate and available
8
administrative remedy, he is not entitled to the grant of the requested mandamus
relief.
Accordingly, we sustain Respondents’ PO regarding the exhaustion of
administrative remedies, and we dismiss the Petition with prejudice.8
“In light of this determination, we need not address the remaining POs.” Keystone ReLeaf
8
LLC, 186 A.3d at 519 n.16.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Craig Moss, :
:
Petitioner :
:
v. : No. 66 M.D. 2021
:
Pennsylvania Board of Probation :
and Parole, Governor Tom Wolf, :
:
Respondents :
PER CURIAM
ORDER
AND NOW, this 9th day of March, 2023, the Respondents’ preliminary
objection is SUSTAINED, and Petitioner’s Petition for Review seeking a Writ of
Mandamus is DISMISSED with prejudice.