C. Turner v. Com. of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles Turner, :
:
Petitioner :
:
v. : No. 183 M.D. 2019
: Submitted: June 5, 2020
:
Commonwealth of Pennsylvania, :
Board of Probation and Parole, :
Byron Rice, and Francis Smolinsky, :
:
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: October 13, 2020
Before the Court are the preliminary objections (POs) of the
Commonwealth of Pennsylvania, Board of Probation and Parole (Board),1 Byron
1
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. 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).
Section 6111(a) of the Parole Code states that the Board “is an independent administrative board
for the administration of the parole laws of this Commonwealth.” Id. Additionally, Section
6111(e) provides, in relevant part:
[T]he [B]oard shall have all the powers and shall perform the duties
generally vested in and imposed upon independent administrative
boards and commissions by the [A]ct of April 9, 1929[, P.L. 177, as
amended, 71 P.S. §§51-732], known as The Administrative Code of
(Footnote continued on next page…)
Rice (Rice), and Francis Smolinsky (Smolinsky and, collectively, Respondents) to
the pro se petition for review (Petition) filed in our original jurisdiction by Charles
Turner (Parolee) seeking declaratory and injunctive relief,2 and monetary damages,
1929 [(Administrative Code)], and shall be subject to all the
provisions of that act applicable generally to independent
administrative boards and commissions.
61 Pa. C.S. §6111(e). See also Section 201(a) of the Administrative Code, 71 P.S. §61(a) (“The
executive and administrative work of this Commonwealth shall be performed by the Executive
Department, consisting of . . . independent administrative boards and commissions[.]”).
Additionally, Section 6141 of the Parole Code states: “The [B]oard may make general
rules for the conduct and supervision of persons placed on parole and may, in particular cases, as
it deems necessary to effectuate the purpose of parole, prescribe special regulations for particular
persons.” 61 Pa. C.S. §6141. Moreover, Section 506 of the Administrative Code provides, in
pertinent part:
The heads of . . . the several independent administrative boards and
commissions . . . are hereby empowered to prescribe rules and
regulations, not inconsistent with law, for the government of their
respective . . . boards, or commissions, the conduct of their
employes and clerks, [and] the distribution and performance of their
business[.]
71 P.S. §186. See also Johnson v. Pennsylvania Board of Probation and Parole, 566 A.2d 918,
922 (Pa. Cmwlth. 1989) (“The Board is an administrative agency not governed by the
Pennsylvania Rules of Criminal Procedure and has the authority to make and implement its own
procedural rules. Until the Board amends its regulations, it cannot disregard them on an individual
case basis.”) (citation omitted); In re Bentleyville Plaza, Inc., 392 A.2d 899, 901 (Pa. Cmwlth.
1978) (“[A]dministrative agencies are bound equally with others by their own regulations which
have the force and effect of law.”).
2
Although Parolee styled his filing as a Complaint for Declaratory Judgment (Complaint),
he should have filed a petition for review because that is the pleading that is used to commence an
action against the Commonwealth and its officers under Chapter 15 of the Pennsylvania Rules of
Appellate Procedure. See, e.g., MFW Wine Co., LLC v. Pennsylvania Liquor Control Board, 231
A.3d 50, 52 n.1 (Pa. Cmwlth. 2020) (single-judge opinion by Brobson, J.) (“Consistent with the
applicable rules of appellate procedure, the Court treats the Amended Complaint as a petition for
review directed to this Court’s original jurisdiction. See Pa. R.A.P. 1501(a)(3), 1502, 1503.”).
(Footnote continued on next page…)
2
pursuant to the provisions of the Declaratory Judgments Act (DJA), 42 Pa. C.S.
§§7531-7541. We sustain a PO and dismiss the Petition with prejudice.
In a memorandum opinion denying Parolee’s Motion for Temporary
Injunction (Motion) that Parolee had also filed in this matter, we summarized the
facts as alleged in the Petition and the documents attached thereto as follows:
[Parolee] was convicted of criminal solicitation to commit
murder and related offenses, and on August 12, 1997, he
was sentenced to 15 to 30 years’ imprisonment. On
February 5, 2019, [Parolee] was released from prison to
parole supervision, at which time he agreed to abide by
various conditions of parole, including the following: “you
shall maintain employment/vocational training/schooling
as approved by parole supervision staff.” (Petition,
Exhibit A at 2) (emphasis added).
[Parolee] is a master mason who previously owned
his own masonry company. After being paroled, [Parolee]
applied for work and was hired as a bricklayer by
McCarthy Masonry at the rate of $27/hour. [Parolee]
completed orientation and was instructed to report for
work beginning on March 18, 2019. On March 11, 2019,
[Parolee] reported to his parole agent, Smolinsky, and his
parole supervisor, Rice, that he had obtained gainful
employment at McCarthy Masonry. Smolinsky and Rice
refused to approve his employment, telling [Parolee] that
McCarthy Masonry was “under investigation.” (Petition
¶15.)
[Parolee] asserts that McCarthy Masonry has been
in business for 30 years, employing approximately 50
people. [Parolee] claims that neither McCarthy Masonry
nor its president, James McCarthy, have ever been cited
for any civil or criminal infractions, and that the company
Consistent with the foregoing, by April 11, 2019 order, we directed that the Complaint be docketed
as a petition for review invoking this Court’s original jurisdiction, and we refer to Parolee’s filing
in this memorandum opinion as the Petition, and to the named defendants in the Complaint as
Respondents.
3
is not involved in any litigation or the subject of any
investigation. [Parolee] asserts that the real reason
Smolinsky and Rice denied him the opportunity to work at
McCarthy Masonry is because James McCarthy’s son,
Sheamus McCarthy, filed a federal civil rights complaint
against Smolinsky for illegally seizing money from his
residence while he was under Smolinsky’s supervision. In
his lawsuit, Sheamus McCarthy alleged, inter alia, that
Smolinsky wrongfully confiscated $4,941 from his home
when he was not charged with any crime and there was not
probable cause to believe the money was connected to
unlawful drug activity. The lawsuit further alleged that
after filing a motion for return of property, Smolinsky
retaliated by arresting Sheamus McCarthy and initiating
revocation proceedings based on minor technical
probation violations and a new criminal charge which was
later dismissed for lack of evidence. [(Petition ¶¶18-20,
Exhibits E, F.)]
Given the above, on March 28, 2019, [Parolee] filed
his Petition and Motion, naming the [Board], Rice and
Smolinsky as Respondents. [Parolee] claims []
Respondents violated the Prisons and Parole Code [(Parole
Code), 61 Pa. C.S. §§101-6309,] and the Fourteenth
Amendment to the United States Constitution[3] by
imposing parole restrictions on him that are arbitrary and
unreasonable. [Parolee] alleges [] Respondents’ conduct
in depriving him of the opportunity to work for McCarthy
Masonry is not rationally related to protecting the public
and contrary to the express purpose of parole supervision
“to assist the offenders in their rehabilitation and
reassimilation into the community. . . .” 61 Pa. C.S.
§6153(a). He claims the decision to deny his employment
is nothing more than a vindictive response to the unrelated
lawsuit filed by his would-be employer’s son, Sheamus
McCarthy. [Parolee] claims he suffered actual damages in
the amount of $216/day in lost wages and benefits, and
that he is unable to pay his parole supervision fees, or pay
for housing, food, clothing and other necessities. [Parolee]
3
The Due Process Clause of the Fourteenth Amendment provides, “nor shall any State
deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend.
XIV, §1.
4
requests that the Court enjoin Respondents from denying
him employment at McCarthy Masonry, enjoin Smolinsky
and Rice from having any supervisory contact with him,
and declare that the reasons Respondents proffered for
denying his work are unlawful. [(Petition ¶¶16-17, 23-
27.)]
Turner v. Board of Probation and Parole (Pa. Cmwlth., No. 183 M.D. 2019, filed
May 15, 2019), slip op. at 1-3.
Respondents filed POs4 alleging, inter alia, that Parolee has failed to
exercise or exhaust an administrative remedy so that this Court should not entertain
the instant Petition seeking declaratory and injunctive relief as well as monetary
damages.5 Specifically, Respondents contend that an administrative remedy exists
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, 351 n.9 (Pa. Cmwlth. 2019) (citations omitted).
5
“The terms ‘exhaustion of statutory remedies’ and ‘exhaustion of administrative
remedies’ are at times used interchangeably in our decisional law.” Office of Governor v.
Donahue, 98 A.3d 1223, 1231 n.6 (Pa. 2014). The Board cites Pa. R.C.P. No. 1028(a)(7), relating
to “failure to exercise or exhaust a statutory remedy,” as the basis for its PO due to Parolee’s failure
to exhaust his available administrative remedies in this matter. See, e.g., Keystone Releaf LLC v.
Pennsylvania Department of Health, 186 A.3d 505, 511 (Pa. Cmwlth. 2018) (“[The r]espondents
demur to all counts on the primary grounds that Petitioner failed to exhaust administrative
remedies and lacks standing.”); Petsinger v. Department of Labor and Industry, Office of
Vocational Rehabilitation, 988 A.2d 748, 753 (Pa. Cmwlth. 2010) (“[Office of Vocational
Rehabilitation (OVR)] raises the existence of adequate statutory and administrative remedies both
as a demurrer under Pa. R.C.P. No. 1028(a)(4) and as a separate objection under Pa. R.C.P. No.
1028(a)(7)[.] OVR asserts [the petitioner] cannot succeed on his mandamus action because he
(Footnote continued on next page…)
5
whereby Parolee may contest the actions of Rice and Smolinsky with further review
by the director of the district parole office and, ultimately, the Board, and that
Parolee has not availed himself of this administrative remedy prior to filing the
Petition and Motion. See Preliminary Objections to Petition for Review ¶¶51-53.
Initially, we note that “[p]etitions for declaratory judgments are
governed by the provisions of the [DJA].” Brouillette v. Wolf, 213 A.3d 341, 357
(Pa. Cmwlth. 2019) (citation omitted). As this Court has explained:
Declaratory judgments are not obtainable as a matter of
right. Rather, whether a court should exercise jurisdiction
over a declaratory judgment proceeding is a matter of
sound judicial discretion. Thus, the granting of a petition
for a declaratory judgment is a matter lying within the
sound discretion of a court of original jurisdiction.
Id. (citations omitted). “[A]n action seeking declaratory judgment is not an optional
substitute for established or available remedies and should not be granted where a
more appropriate remedy is available.” Pittsburgh Palisades Park, LLC v.
clearly had adequate statutory and administrative remedies to address both his employment and
OVR client complaints[.]”).
Nevertheless, the Board’s citation to the proper subsection of Pa. R.C.P. No. 1028(a) is
immaterial because it has sufficiently pleaded the basis for its PO so that Parolee is on notice
regarding the gravamen of its objection and this Court may properly dispose of the PO. See, e.g.,
Pa. R.C.P. No. 126 (“The rules shall be liberally construed to secure the just, speedy and
inexpensive determination of every action or proceeding to which they are applicable. The court
at every stage of any such action or proceeding may disregard any error or defect of procedure
which does not affect the substantial rights of the parties.”); Beglin v. Stratton, 816 A.2d 370, 372-
73 (Pa. Super. 2003) (“Although the Appellees failed to spell out that improper service was made
by violating Pa. R.C.P. No. 400(c) [in the PO asserting a lack of service generally], improper
service was sufficiently pled to raise the issue in the court below to put the Plaintiff on notice and
for the Court to properly decide.”); Dominski v. Garrett, 419 A.2d 73, 75 (Pa. Super. 1980) (“Since
the course of litigation would not be served by dismissing these [POs], and in accord with
Pa. R.C.P. No. 126 which seeks to secure just and speedy determinations of proceedings, we will
treat appellees’ [POs] as a demurrer since we assume that is their intended effect and because that
is the manner in which the trial court treated them.”).
6
Pennsylvania State Horse Racing Commission, 844 A.2d 62, 67 (Pa. Cmwlth. 2004)
(citation omitted).
Additionally:
A party challenging administrative decision-
making that has not exhausted its administrative remedies
is precluded from obtaining judicial review by mandamus
or otherwise. 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. It further provides the agency with the opportunity
to correct its own mistakes and to moot judicial
controversies.
Matesic v. Maleski, 624 A.2d 776, 778 (Pa. Cmwlth. 1993) (citations omitted).
As indicated above, Section 6141 of the Parole Code states: “The
[B]oard may make general rules for the conduct and supervision of persons placed
on parole and may, in particular cases, as it deems necessary to effectuate the
purpose of parole, prescribe special regulations for particular persons.” 61 Pa. C.S.
§6141. Likewise, Section 67.2 of the Board’s regulations6 provides, in pertinent
part, that “the Board may release [a] parolee . . . from the conditions of parole . . .
which it has imposed.” 37 Pa. Code §67.2. In this regard, Section 67.2 further
provides that “[t]he release form shall contain the parole number, name of parolee[,]
date, signature of parole agent, and the conditions from which the parolee . . . is
released.” Id.6
See Section 506 of the statute commonly referred to as the Commonwealth Documents
Law, 45 Pa. C.S. §506 (“The contents of the code, of the permanent supplements thereto, and of
the bulletin, shall be judicially noticed.”); Roskwitalski v. Reiss, 402 A.2d 1061, 1064 (Pa. Super.
1979) (“The [Real Estate] Commission’s rules are promulgated in the Pennsylvania Code, and
courts must take judicial notice thereof. 45 Pa. C.S. §506.”) (footnote omitted).
7
With respect to the imposition of special conditions of parole, Section
67.1 of the Board’s regulations states, in relevant part:
(a) In addition to the general conditions of parole
imposed by Chapter[] 63 [(relating to conditions
governing parole)], parolees shall be subject to the
additional conditions imposed under [§]63.5 (relating to
special conditions of parole)[.]
(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 a parolee is unable to contact his parole agent,
he should contact the agent in charge of the district office.
37 Pa. Code §67.1(a), (b).7
7
Regarding a parolee’s release on parole subject to special conditions, Section 67.3 of the
Board’s regulations states:
Every parolee shall acknowledge the following:
(a) That he has read, or has had read to him, the conditions of his
parole.
(b) That he fully understands the conditions of his parole and
agrees to follow such conditions.
(c) That he fully understands the penalties involved if he violates
the conditions of parole in any manner.
37 Pa. Code §67.3. See also Section 67.4, 37 Pa. Code §67.4 (“The parole agreement shall contain
the parole number, date and signature of the parolee.”); Johnson v. Pennsylvania Board of
Probation and Parole, 532 A.2d 50, 52 (Pa. Cmwlth. 1987) (“In Green [v. Pennsylvania Board of
Probation and Parole, 515 A.2d 1006, 1008 (Pa. Cmwlth. 1986)], we held that a grant of parole
is not executed until the prisoner signs the acknowledgement of parole conditions, Board form
PBPP-11, and the Board issues its parole release order, Board form PBPP-10.”).
The cited Board form PBPP-10 states the following, in relevant part:
(Footnote continued on next page…)
8
In turn, 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 a 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.
Also, should a parolee be dissatisfied with the action or inaction of a
parole agent or agent in charge of the district parole office, Section 35.5 of the
General Rules of Administrative Practice and Procedure (GRAPP)8 provides for the
filing of an informal complaint with the Board stating, in pertinent part:
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 Pennsylvania Board of Probation and Parole, Director of
Supervision, P.O. Box 1661, Harrisburg, Pennsylvania 17105-1861.
Wile, Pennsylvania Law of Probation and Parole Appendix B, Form B-4 (3d Ed. 2019) (providing
a copy of the PBPP-11 (Rev. 7/91) form). Parolee admits that he received the foregoing
information regarding an administrative remedy. See Petitioner’s Answer and New Matter in
Response to Respondents’ Preliminary Objections (Petitioner’s Answer) ¶52 (“It is admitted that
the parole agreement purportedly identifies the existence of a process for submitting a complaint,
as stated by [R]espondents.”).
8
The GRAPP apply to proceedings before the Board. Indeed, with respect to the Board’s
reconsideration of the denial of backtime in a parole revocation decision, this Court has stated:
The [GRAPP] govern practice and procedure before
Commonwealth agencies, except to the extent that the agency has
promulgated an inconsistent regulation on the same subject.
(Footnote continued on next page…)
9
Informal complaint may be by letter or other writing, and shall
be . . . filed as of the date of its receipt. No form of informal
complaint is suggested, but in substance the letter or other
writing shall contain the essential elements of a formal complaint
as specified in §35.9[.] Only one copy of an informal complaint
need be filed. It may embrace supporting papers.
1 Pa. Code §35.5.
In turn, Section 35.9 of the GRAPP provides for the filing of a formal
complaint stating, in relevant part:
A person complaining of anything done or omitted to be
done by a person subject to the jurisdiction of an agency,
in violation of a statute or regulation administered or
issued by the agency may file a complaint with the
agency. . . . A copy of the complaint will be forwarded by
the agency to the respondent who will be called upon to
satisfy the complaint or to answer the same in writing
within the time specified in [Section 35.35 of the GRAPP,
1 Pa. Code] §35.35 (relating to answers to complaints and
petitions), . . . after the date of service of the complaint,
unless the agency with or without motion shall prescribe a
different time. If, in the judgment of the agency, a
violation of a statute or regulation administered or issued
by the agency has been alleged and has not been satisfied
[Section 31.1 of the GRAPP,] 1 Pa. Code §31.1. . . . Because a
subsequent appeal [prohibited by Section 73.1(a)(4) of the Board’s
regulations, 37 Pa. Code §73.1(a)(4),] is not the same as a request
for reconsideration based on changed circumstances, we conclude
that [Section 35.241 of the GRAPP,] 1 Pa. Code §35.241[(governing applications for reconsideration of agency orders based
on a change in circumstance),] applies to these proceedings before
the Board.
Shaw v. Pennsylvania Board of Probation and Parole, 812 A.2d 769, 771 (Pa. Cmwlth. 2002)
(footnotes omitted). See also St. Clair Area School District v. Department of Education, 584 A.2d
384, 386 (Pa. Cmwlth. 1990) (“The [GRAPP] apply to agency proceedings unless a statute sets
forth different rules on the same subject, or unless the agency itself has promulgated inconsistent
rules. 1 Pa. Code §31.1. With respect to the department’s action in this case, there are not statutory
or procedural provisions that preempt the application of the [GRAPP].”).
10
adequately the agency will either invite the parties to an
informal conference, set the matter for a formal hearing,
or take another action which in the judgment of the agency
is appropriate.
1 Pa. Code §35.9.
Finally, Section 31.19 of the GRAPP states:
Petitions for the issuance, in the discretion of an agency,
of a declaratory order to terminate a controversy or remove
uncertainty, shall state clearly and concisely the
controversy or uncertainty which is the subject of the
petition, shall cite the statutory provision or other authority
involved, shall include a complete statement of the facts
and grounds prompting the petition, together with a full
disclosure of the interest of the petitioner.
1 Pa. Code §31.19.
Based on the foregoing, on March 11, 2019, following Smolinsky’s and
Rice’s disapproval of his employment with McCarthy Masonry, Parolee should have
contacted the agent in charge of the district office pursuant to Sections 63.5(b) and
67.1(b) of the Board’s regulations. 37 Pa. Code §§63.5(b), 67.1(b). If he was
dissatisfied with that agent’s resolution of the situation, Parolee could have sought
further redress with the Board via the submission of an informal complaint; a formal
complaint; a petition for a declaratory order; or a request for release from this special
condition of parole. 1 Pa. Code §§31.19, 35.5, 35.9; 37 Pa. Code §§63.5(b), 67.1(b),
67.2.9 See, e.g., Wheeler v. Pennsylvania Board of Probation and Parole, 862 A.2d
9Parolee’s assertion that he was relieved of his duty to pursue these administrative
remedies because Rice and Smolinsky did not provide him with a written order is unavailing. See,
e.g., Petitioner’s Answer ¶52(c) (“The complaint process described in the parole agreement is not
adequate and complete because respondents Smolinsky and Rice deliberately frustrated [Parolee’s]
attempt to utilize the complaint process by refusing to provide a written order prohibiting
[Parolee’s] employment at McCarthy Masonry.”). As outlined above, no written order is necessary
to pursue any of these remedies under the Board’s regulations or the GRAPP. See also Section
31.3 of the GRAPP, 1 Pa. Code §31.3 (defining “Complainants” as “[p]ersons who complain to
(Footnote continued on next page…)
11
127, 130-31 (Pa. Cmwlth. 2004) (holding that the letter of a district director denying
a parolee’s request to remove a special condition of parole is not a Board
adjudication that is appealable to this Court). Instead, Parolee bypassed all of the
the agency of an agency regulation or general order or anything done or omitted to be done in
violation of . . . delegated authority administered by the agency, or any orders . . . issued
thereunder, or another alleged wrong over which the agency may have jurisdiction.”) (emphasis
added). His mistaken belief that such was necessary, and that Smolinsky’s and Rice’s refusal to
cooperate in this regard, does not relieve him of his duty to seek administrative relief. See, e.g.,
White v. Conestoga Title Insurance Company, 53 A.3d 720, 734-35 (Pa. 2012) (“[The insured’s]
contention that the [statutory] remedy is inadequate and need not be exhausted because [the
insurer] is unable or unwilling to comply with the administrative review process in a meaningful
way is unavailing. . . . [S]uch a complaint may be raised and addressed during the administrative
process and does not render the administrative remedy inadequate.”) (citation omitted).
Finally, Parolee contends that he was relieved of his duty to pursue the foregoing remedies
for relief from this special condition of his parole “because [the parole agreement] is an
unenforceable adhesion contract.” Petitioner’s Answer ¶52(b). This assertion is likewise
unavailing. As this Court has explained, “there is no prerequisite to a valid parole condition that
the parolee must agree to its terms. After a convict has met certain eligibility parole requirements,
he is then paroled subject to certain general and possibly some special conditions.” Benefiel v.
Pennsylvania Board of Probation and Parole, 426 A.2d 242, 244 (Pa. Cmwlth. 1981). Further,
[a]lthough a parolee is entitled to a brief statement of the reasons for
the grant or denial of parole, . . . we find no support nor . . . any
authority for the proposition that a putative parolee is entitled to
counsel to negotiate the terms and conditions of parole. The
rationale seems quite obvious. Parole is granted at the discretion of
the Board, . . . and the parolee remains in constructive custody of the
Commonwealth. As with an incarcerated individual, the
Commonwealth, via the Board, may place restrictions on a parolee’s
liberty intended to effectuate the parolee’s rehabilitation and
integration into society. Thus, where a putative parolee indicates an
unwillingness to abide by the terms and conditions of parole, the
Board may determine that parole is not within the individual's best
interest and deny parole.
Lee v. Pennsylvania Board of Probation and Parole, 885 A.2d 634, 639 (Pa. Cmwlth. 2005).
Accordingly, Parolee was not relieved of his duty to seek administrative relief due to the purported
invalidity of this special condition of his parole.
12
foregoing available administrative remedies and filed the instant Petition in this
Court’s original jurisdiction. See Petitioner’s Answer ¶53 (“It is admitted that the
Complaint does not mention [Parolee’s] efforts to exhaust administrative
remedies.”).
Because Parolee failed to avail himself of the above administrative
remedies prior to filing the Petition, and has failed to properly assert that these
remedies are unavailable, facially unconstitutional, or are inadequate, it is
appropriate to deny him the requested relief under the DJA and to dismiss the
Petition. As this Court concluded in Keystone Releaf LLC v. Pennsylvania
Department of Health, 186 A.3d 505, 519 (Pa. Cmwlth. 2018):
Petitioner has not made a clear showing that an exception
to the doctrine of administrative remedies applies.
Petitioner has not presented a facial constitutional
challenge to the [applicable statute or regulations] nor
shown how the administrative remedy before the
Department is inadequate. Our review of the
Department’s administrative review process satisfies us
that it offers unsuccessful applicants an adequate remedy
to challenge their permit denials and the permitting
process.
Additionally, as this Court explained in Lisa H. v. State Board of
Education, 447 A.2d 669, 674-75 (Pa. Cmwlth. 1982):
The [Board of Education’s] Regulations also make
specific provision for parent-initiated due process
opportunities for all exceptional and thought-to-be
exceptional students. . . . [I]f the plaintiffs wish to
continue to seek admission to the program, they have due
process procedures available to them, of which they have
failed to avail themselves, and a suit in equity will not lie
where an adequate and complete remedy at law may be
had. Setlock v. Sutila, [282 A.2d 380, 381 (Pa. 1971)].
13
Likewise, because Parolee failed to avail himself of the available administrative
remedy herein, the instant proceeding will be dismissed.10
Accordingly, Respondents’ PO is sustained, and the Petition is
dismissed with prejudice.11
MICHAEL H. WOJCIK, Judge
10
See also Wheeler, 862 A.2d at 130-31 (“[W]e conclude that [the parolee] has no
cognizable ‘personal right’ that would entitle him to an adjudication or to appellate review of the
paroling condition at issue. Accordingly, because we agree with the Board that this matter is not
an adjudication subject to appeal, we will grant the Motion to Dismiss the petition for review.”)
(footnote omitted); Cherry v. City of Philadelphia, 634 A.2d 754, 755-56 (Pa. Cmwlth. 1993)
(holding that an attorney failed to raise a substantial constitutional challenge to a city’s power to
assess taxes necessary to invoke equity jurisdiction under the DJA so that the attorney was required
to exhaust administrative remedies before filing suit challenging the constitutionality of the taxes
imposed).
11
“In light of this determination, we need not address the remaining POs.” Keystone Releaf
LLC, 186 A.3d at 519 n.16.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles Turner, :
:
Petitioner :
:
v. : No. 183 M.D. 2019
:
Commonwealth of Pennsylvania, :
Board of Probation and Parole, :
Byron Rice, and Francis Smolinsky, :
:
Respondents :
ORDER
AND NOW, this 13th day of October, 2020, the preliminary objection
of Commonwealth of Pennsylvania, Board of Probation and Parole, Byron Rice, and
Francis Smolinsky is SUSTAINED. Charles Turner’s Complaint for Declaratory
Judgment is DISMISSED with prejudice.
__________________________________
MICHAEL H. WOJCIK, Judge