C. Toland v. PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christopher Toland, :
Petitioner :
:
v. : No. 315 M.D. 2018
: Argued: September 11, 2023
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: February 14, 2024
Sitting in our original jurisdiction, we must decide two questions in the present
civil discovery dispute: First, whether this case is moot (and corollary to that,
whether a mootness exception applies), and second, whether the arguments raised
by a Commonwealth agency to resist discovery—namely an agency regulation, a
criminal history statute, and boilerplate objections—prevent the disclosure of
information and documents sought by a petitioner.
The underlying dispute giving rise to the discovery issues before the Court
involves Petitioner Christopher Toland’s (Toland) pro se Amended Petition for
Review/Mandamus (Amended Petition), seeking a writ of mandamus against the
Pennsylvania Board of Probation and Parole (Board).1 In short, Toland alleges that
1
Subsequent to the filing of the Petition for Review in this matter, 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
(Footnote continued on next page…)
the Board violated his constitutional rights by applying the incorrect parole
guidelines and relying on incorrect information in denying him parole in 2017, 2018,
and 2019. This Court previously overruled the Board’s preliminary objections to the
Amended Petition, and since then, the case has proceeded to discovery. See Toland
v. Pa. Bd. of Prob. & Parole, 263 A.3d 1220 (Pa. Cmwlth. 2021) (Toland I). As part
of discovery, Toland now seeks documents from his parole file, along with answers
to interrogatories, to substantiate the allegations from the Amended Petition. The
Board has objected to many interrogatories and requests for production of
documents, citing the Board’s confidentiality regulation, 37 Pa. Code § 61.2(Regulation), and Pennsylvania’s Criminal History Record Information Act
(CHRIA), 18 Pa.C.S. §§ 9101-9183, as bars to disclosure. The Board also objects
to most of the discovery requests on the basis that they are vague, ambiguous,
overbroad, unduly burdensome, and not reasonably calculated to lead to admissible
evidence; Toland asks this Court to dismiss the Board’s objections. Finally, the
Board now argues that the case is moot and should be dismissed because it has
denied Toland parole again since the filing of the Amended Petition, specifically in
November 2022. Toland opposes dismissal on the basis of mootness and moves to
strike a declaration the Board attached in support of its filing.
Before this Court are: (i) the Board’s Suggestion of Mootness/Application for
Stay filed on March 6, 2023 (Suggestion), and Toland’s response thereto;
(ii) Toland’s Motion to Strike the declaration of the Board Secretary, a document the
Board filed along with its Suggestion (Motion to Strike); (iii) Toland’s Motion to
Dismiss the Board’s Objections to Toland’s Discovery Requests (Toland’s Motion to
Dismiss) filed on May 2, 2022, and the Board’s Response to Toland’s Motion to
Sections 6101 and 6111(a) of the Prisons and Parole Code (Parole Code), 61 Pa.C.S. §§ 6101,
6111(a).
2
Dismiss Board’s Objections to Toland’s Discovery Requests filed on June 20, 2022
(Board’s Response); and (iv) Toland’s Application to Leave to Supplement the
Record filed on August 21, 2023 (Application to Supplement). After careful review,
we deny the Board’s Suggestion, and, accordingly, dismiss Toland’s Motion to Strike
and Application to Supplement as moot. Further, we grant Toland’s Motion to
Dismiss in part except as to five interrogatories discussed below.
I. BACKGROUND
Toland is currently serving an 11- to 40-year sentence in state prison; his
minimum sentence having expired in 2004. Toland I, 263 A.3d at 1225. As of the
time of the filing of the Amended Petition, Toland had been denied parole 15 times.
Id. In this litigation, Toland specifically challenges the parole denials from 2017,
2018, and 2019. Id. In our prior reported decision in this matter overruling the
Board’s preliminary objections to the Amended Petition, we allowed three claims to
move forward, namely Toland’s contentions that
(1) the [Board] violated [Toland’s] due process rights by relying on
false information in denying [Toland] parole;
(2) the Board violated [Toland’s] due process rights by exercising its
discretion in an arbitrary and capricious manner; and
(3) the Board’s application of the standards for parole of [the Parole
Code] violated the ex post facto prohibitions of both the United
States and Pennsylvania Constitutions.
Id. at 1224 (reformatted for readability) (footnotes omitted).
With respect to his first due process claim, Toland alleges the Board not only
erroneously believed he had more than one rape conviction, but also that he had a
history as a domestic violence offender. Id. at 1227. Citing Rogers v. Pennsylvania
3
Board of Probation and Parole, 724 A.2d 319 (Pa. 1999), and Reider v. Pennsylvania
Board of Probation and Parole, 514 A.2d 967 (Pa. Cmwlth. 1986), Toland raises
another due process claim, specifically that the Board failed to exercise its discretion
at all in denying parole simply because he is a sex offender and not looking to the
factors required under the Parole Code.2 Id. at 1228-29. With respect to his ex post
facto claim, Toland specifically avers that he would have been paroled under the pre-
1996 Guidelines.3 Id. at 1227-28.4 We explained in Toland I that “[Toland] is not
challenging the Board’s exercise of discretion in denying parole, but the Board’s
2
We explained in Toland I that the Board must consider the following in making parole
determinations:
(1) The nature and circumstances of the offense committed.
(2) Any recommendations made by the trial judge and prosecuting attorney.
(3) The general character and background of the inmate.
(4) Participation by an inmate sentenced after February 19, 1999, and who is
serving a sentence for a crime of violence as defined in 42 Pa.C.S. § 9714(g)
(relating to sentences for second and subsequent offenses) in a victim impact
education program offered by [the Department of Corrections (DOC)].
(5) The written or personal statement of the testimony of the victim or the
victim’s family submitted under [S]ection 6140 [of the Parole Code, 61 Pa.C.S.
§ 6140] (relating to victim statements, testimony and participation in hearing).
(6) The notes of testimony of the sentencing hearing, if any, together with
such additional information regarding the nature and circumstances of the
offense committed for which sentence was imposed as may be available.
(7) The conduct of the person while in prison and his physical, mental and
behavioral condition and history, his history of family violence[,] and his
complete criminal record.
Toland I, 263 A.3d at 1239 (quoting 61 Pa.C.S. § 6135(a)) (alterations in Toland I).
3
Act of August 6, 1941, P.L. 861, as amended, formerly 61 P.S. §§ 331.1-331.8, repealed
by Section 11(b) of the Act of August 11, 2009, P.L. 147.
4
In Toland I, we explained that in 1996, the General Assembly amended the former Parole
Code to make public safety the primary consideration. Toland I, 263 A.3d at 1225. We further
noted that a change in the Parole Code may give rise to an ex post facto claim where “an inmate is
able to demonstrate that the 1996 amendment, as applied to the inmate, creates a significant risk
of prolonging the inmate’s incarceration. Id. at 1235 (quoting Cimaszewski v. Bd. of Prob. &
Parole, 868 A.2d 416, 427 (Pa. 2005) (alterations in Toland I, brackets omitted)).
4
failure to follow the law in denying [Toland]’s parole by relying on incorrect or false
information and making its decision solely based on the fact that [Toland] is a sex
offender while ignoring other factors relevant to that decision.” Toland I, 263 A.3d
at 1233.5 The Board filed preliminary objections to the Amended Petition, which
were overruled in Toland I. The pleadings have since closed, and the parties are
presently engaged in discovery.
On December 27, 2021, Toland served a first set of interrogatories and a
request for production of documents on the Board. (See Notice of Service
12/27/2021.) The Board answered Toland’s requests on February 6, 2022, and
February 7, 2022, respectively, responding to some of Toland’s discovery requests
and objecting to most. (See Toland’s Motion to Dismiss, appendices (apps.) A, B.)
Subsequently, on March 7, 2022, Toland served a second set of interrogatories on
the Board. (See Notice of Service received 3/9/2022.) On April 2, 2022, the Board
answered Toland’s second set of interrogatories again responding to some requests
and objecting to several others. (See Toland’s Motion to Dismiss, app. C.)6
5
The dissent believes that “Toland seeks what cannot be granted: a review of the [Board’s]
exercise of discretion.” Toland v. Pa. Bd. of Prob. & Parole, __ A.3d __, __ (Pa. Cmwlth. 2024),
slip op. at 13 (Leavitt, S.J., dissenting) (Toland II). But in Toland I, we looked at the pleadings
and the parties’ arguments and explicitly concluded that Toland was not “challenging the Board’s
exercise of discretion in denying parole[.]” Toland I, 263 A.3d at 1233. To the extent the Board
believes Toland’s discovery requests might evince a contrary intent on Toland’s part, it could
certainly have raised specific arguments challenging the requests on the basis of relevance, as more
fully explained below. Further, if the dissent is correct, that Toland really is just seeking “what
cannot be granted[,]” upon application for summary relief, the Board can make that argument.
Toland II, __ A.3d at __, slip op. at 13 (Leavitt, S.J., dissenting). To be clear: the narrow discovery
matter now before the Court requires us only to consider whether the Board’s specific arguments
in opposing the requested discovery hold any water.
6
The Board improperly titled its response as “Respondent Pennsylvania Parole Board’s
Answer to [Toland’s] First Set of Interrogatories.” (Toland’s Motion to Dismiss, app. C at 1.) The
Board’s opening paragraph, however, properly states it is answering [Toland’s] second set of
interrogatories. (Id.)
5
The Board’s objections to Toland’s first set of interrogatories, first request for
production of documents, and second set of interrogatories prompted him to file his
Motion to Dismiss, asking this Court to dismiss the Board’s objections and compel
it to provide the requested information or produce the responsive documents. On
September 15, 2022, this Court ordered Toland and the Board to file memoranda of
law in support of their respective arguments.
The Board filed the Suggestion on March 6, 2023, which this Court denied in
part on April 25, 2023, insofar as the Board requested a stay, setting the mootness
question for argument. In response to the Suggestion, Toland filed his Motion to
Strike. Most recently, the Board requested a stay of discovery on July 13, 2023.
This Court granted the stay of discovery on August 15, 2023, pending resolution of
the matters scheduled for argument and discussed herein.
II. DISCUSSION
A. The Board’s Suggestion of Mootness
1. Parties’ Arguments
Because it is potentially dispositive, we begin with the Board’s mootness
argument. The Board asks the Court to dismiss Toland’s Amended Petition,
reasoning that it is now moot due to the most recent parole interview and resulting
denial rendered in 2022. (Suggestion ¶¶ 19-26.) The Board relies on Article III,
Section 2 of the United States Constitution, U.S. CONST. art. III, § 2, a United States
Supreme Court decision regarding mootness as a matter of federal law, and
unpublished federal district court opinions involving inmates seeking habeas corpus
relief in federal courts due to adverse parole decisions. (Suggestion ¶¶ 19-20.) The
Board reasons that “the only appropriate remedy [for Toland] would arguably be to
6
order a new parole interview,” and thus, “[i]f Toland believes he is aggrieved by this
new [2022] parole refusal decision, he has the right to file another petition . . . or he
can file an amended petition.” (Id. ¶¶ 21, 25.)
To support its mootness argument, the Board attached to its Suggestion a
Declaration of Board Secretary Deborah Carpenter (Board Secretary). (Suggestion
Ex. A (Declaration).) In it, she explains that the Board used the pre-1996 Guidelines
in its 2022 decision, and she enumerates the reasons the interviewers denied parole
in 2022. (Id. ¶¶ 11-12.) She also indicates Toland’s next parole interview is slated
for 2024. (Id. ¶ 13.)
Toland responds that “[w]hile all previous parole decisions may be moot, the
false information . . . claim[ed] in the Amended Petition remains part of his parole
file . . . . The [B]oard can not [sic] just claim that since Toland had a new interview
and decision that this false information is no longer relevant.” (Toland’s
Memorandum of Law in Support of Petitioner’s Motion to Dismiss Respondent’s
Objections to Petitioner’s Discovery Requests (Toland’s Memorandum) ¶¶ 21, 26,
31, 39.)
2. Analysis
As a threshold matter, instead of citing to Pennsylvania mootness caselaw, the
Board begins its argument by referring to Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) (Arizona), for the proposition “that a justiciable case or
controversy must remain extant at all stages of review, not merely at the time the
complaint is filed.” (Suggestion ¶ 19 (internal quotation marks omitted).) However,
that excerpt leaves out the first part of the quotation from Justice Ginsburg’s opinion:
“To qualify as a case fit for federal-court adjudication, an actual controversy must
be extant at all stages of review, not merely at the time the complaint is filed.”
Arizona, 520 U.S. at 67 (internal quotation marks and citation omitted) (emphasis
7
added). The Board’s reliance on federal mootness caselaw is, of course, misplaced.
Article III only restricts federal courts—not state courts—in their exercise of judicial
power. See, e.g., Firearm Owners Against Crime v. Papenfuse, 261 A.3d 467 (Pa.
2021) (contrasting Pennsylvania justiciability principles—which are purely
prudential and judicially created—from federal equivalents, which implicate both
the United States Constitution and prudential principles).
Because the appropriate lens for mootness in this Court is our Pennsylvania
body of mootness cases, it is necessary to examine those cases and principles. This
Court has explained that
cases presenting mootness problems involve litigants who clearly had
standing to sue at the outset of the litigation. The problems arise from
events occurring after the lawsuit has gotten under way—changes in
the facts or in the law—which allegedly deprive the litigant of the
necessary stake in the outcome.
Magnelli v. Pa. State Civ. Serv. Comm’n, 423 A.2d 802, 804 (Pa. Cmwlth. 1980)
(quoting In re Gross, 382 A.2d 116, 119 (Pa. 1978)). In sum, an intervening change
in the factual landscape of a case can render a party’s injury incapable of “redress[]
by a favorable judicial decision.” Mistich v. Pa. Bd. of Prob. & Parole, 863 A.2d
116, 119 (Pa. Cmwlth. 2004). Thus, the critical inquiry in determining whether a
case has become moot is whether the court’s decision could, in substance, accord the
injured party relief.
Although it is “axiomatic” that “courts will not decide moot questions,”
Public Defenders Office of Venango County v. Venango County Court of Common
Pleas, 893 A.2d 1275, 1279 (Pa. 2006), three exceptions to that axiom exist: “[(i)]
where the conduct complained of is capable of repetition yet likely to evade review,
[(ii)] where the case involves issues important to the public interest[,] or [(iii)] where
8
a party will suffer some detriment without the court’s decision,” Sierra Club v. Pa.
Pub. Util. Comm’n, 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997). Moreover, whether
to nonetheless decide a moot case falls within this Court’s discretion. See Harris v.
Rendell, 982 A.2d 1030, 1036 (Pa. Cmwlth. 2009) (“It is within the [C]ourt’s
‘discretion to decide substantial questions, otherwise moot, that are capable of
repetition unless settled.’”), aff’d, 992 A.2d 121 (Pa. 2010) (quoting In re Bishop,
717 A.2d 1114, 1116 (Pa. Cmwlth. 1998)).
In Coady v. Pennsylvania Board of Probation and Parole, 804 A.2d 121 (Pa.
Cmwlth. 2002), this Court decided to hear an otherwise moot case under the “great
public importance” exception. Coady, like the case sub judice, involved the question
whether application of the post-1996 parole guideline amendments to persons
convicted prior to those amendments was unconstitutional and, consequently,
whether, as the Court saw it, “more violent inmates [would] re-enter society without
the benefit of parole.” Id. at 124. In a different case in the parole context involving
the contours of the so-called “prisoner mailbox rule,” the Court declined to hear the
case—considered moot due to the petitioner’s release from incarceration—despite
its “great public importance.” Taylor v. Pa. Bd. of Prob. & Parole, 746 A.2d 671,
675 (Pa. Cmwlth. 2000). The majority reasoned, over a dissenting opinion, that “the
issues raised . . . are capable of repetition . . . [but] are not likely to evade review,”
concluding that similarly situated inmates would be able to raise it before release.
Id. See also Harris, 982 A.2d at 1036-37 (declining to find capable of repetition yet
evading review exception where the governor briefly suspended parole to conduct
review but parole had resumed); Mistich, 863 A.2d at 121 (declining to find capable
of repetition yet evading review exception where inmate had completed sentence).
9
Finally, two factual predicates must exist for courts to invoke the capable of
repetition yet evading review exception. Specifically, (1) the action the complaining
party challenges must be so short in duration that it would have ended by the time
the parties could fully litigate the issue, and (2) a reasonable expectation must exist
that the offending party would subject the complaining party to the same exact action
again. See Phila. Pub. Sch. Notebook v. Sch. Dist. of Phila., 49 A.3d 445, 449 (Pa.
Cmwlth. 2012). See also Brouillette v. Wolf, 213 A.3d 341, 368 (Pa. Cmwlth. 2019)
(setting forth same two prerequisites for capable of repetition yet evading review
exception as Philadelphia Public School Notebook and tracing these requirements
to the United States Supreme Court’s decision in Sosna v. Iowa, 419 U.S. 393(1975)).
With these principles in mind, we turn to the federal district court memoranda
upon which the Board relies. It urges this Court to follow the federal district court’s
approach with habeas petitions relating to parole denials. It cites to, for example,
Goodman v. Kerestes (M.D. Pa., No. 1:14-CV-01319, filed November 3, 2016), 2016
WL 7365208, at *2, in which the United States District Court for the Middle District
of Pennsylvania (Middle District) stated that “[a]n earlier parole decision is rendered
moot by a subsequent parole decision.” Kerestes involved an inmate who had been
denied parole and who challenged that denial through the vehicle of federal habeas
review. The Middle District reasoned that
the only appropriate remedy . . . would be a new hearing before the
Board, and since [the petitioner] has already been afforded two new
parole hearings . . . the instant habeas petition is moot, as are challenges
to any denials of parole prior to . . . the date of the most recent parole
denial.
10
Id. (emphasis in original).7
In another case, Alex v. Gavin (M.D. Pa., No. 1:CV-14-0261, filed December
7, 2015), 2015 WL 8012825, at *3, the Middle District specifically explained that
the petitioner there lacked standing because his subsequent denials of parole mooted
his challenges to the previous denials. The Alex Court reasoned that by obtaining a
new parole hearing—the relief the petitioner had requested to begin with—“he
received the relief he was potentially entitled to in his habeas petition.” Id.Of course, these unpublished federal district court memoranda are only
persuasive authority, and in its Suggestion, the Board has not explained precisely
how or why this Court should adopt their reasoning.8 In particular, there are two
questions these cases raise: (i) whether the mandamus relief this Court can accord
is analogous to the habeas relief available in federal court, and (ii) whether, even if
that is true, this Court should proceed under a mootness exception.
First, it is important to determine whether the only remedy this Court could
accord in mandamus is a new parole hearing, because if so, the logic of the federal
cases is more persuasive. Our Supreme Court has explained that
mandamus is chiefly employed to compel the performance (when
refused) of a ministerial duty, or to compel action (when refused) in
matters involving judgment and discretion. It is not used to direct the
exercise of judgment or discretion in a particular way, nor to direct the
retraction or reversal of an action already taken.
7
Barnes v. Wenerowicz, 280 F.R.D. 206 (E.D. Pa. 2012), discussed infra, calls this
assumption into question. There, the United States District Court for the Eastern District of
Pennsylvania actually granted immediate release as the remedy in that habeas proceeding, noting
that “[a]lthough that is an extreme remedy, it is necessary here.” Id. at 223.
8
While not binding, decisions from the federal district and circuit courts may be cited for
their persuasive value. Edinger v. Borough of Portland, 119 A.3d 1111, 1115 (Pa. Cmwlth. 2015).
11
Pa. Dental Ass’n v. Ins. Dep’t, 516 A.2d 647, 652 (Pa. 1986) (Dental Association).
The language of the Dental Association case suggests that this Court could only
compel the Board to hold a new hearing. However, other cases imply a broader
power where a petitioner seeks mandamus to correct an abuse of discretion. For
example, the Supreme Court has explained that “[a] proceeding in mandamus is
available to compel the Board . . . to [i] conduct a hearing or [ii] correct a mistake
in applying the law.” Bronson v. Bd. of Prob. & Parole, 421 A.2d 1021, 1023 (Pa.
1980) (emphasis added). See also Maxwell v. Bd. of Sch. Dirs. of Sch. Dist. of
Farrell, 112 A.2d 192, 195 (Pa. 1955) (“[U]nless the discretion is arbitrarily or
fraudulently exercised or is based upon a mistaken view of the law[, the court] cannot
interfere with or control the official’s discretion or judgment.”) (internal parentheses
omitted) (emphasis added). Maxwell, then, suggests that where, as here, a party
alleges discretion to have been arbitrarily exercised or based upon a mistaken view
of the law, the court could “interfere” with the Board’s discretion or judgment.
These cases suggest that this Court can compel the Board to “correct a mistake in
applying the law,” implying the power to cause the Board to revisit a previous
discretionary decision despite an intervening parole denial. Bronson, 421 A.2d at
1023.
Moreover, we are not convinced that even in the federal habeas context the
courts uniformly perceive the constraints in the same manner as did the Alex and
Kerestes Courts. See, e.g., Mickens-Thomas v. Vaughn, 321 F.3d 374, 393 (3d Cir.
2003) (Mickens-Thomas II) (directing the Board to conduct a new hearing based on
the court’s legal conclusions and noting that it “expect[s] that, on remand, the Board
will not be defensive, but instead will fairly consider Thomas’s application in the
light of our observations and Ex Post Facto prohibitions”) (emphasis added). See
12
also Mickens-Thomas v. Vaughn, 355 F.3d 294 (3d Cir. 2004) (Mickens-Thomas III)
(remanding to district court with instructions to order the Board to release inmate
after Board declined to comply in good faith with the United States Court of Appeals
for the Third Circuit’s requirements as set forth in Mickens-Thomas II).
Therefore, to the extent they reflect the state of the law in federal courts, those
federal district court cases on which the Board relies are distinguishable from this
matter because those courts reasoned the only relief they could provide was
prospective—ordering a new hearing. Our cases teach that our power in mandamus
is not similarly limited. Indeed, Toland alleges, in part, that the alleged factual
inaccuracies in his file continue to taint any subsequent parole denial. As discussed
above, the key question is: Can this Court still provide Toland relief, despite the
intervening parole denial? Based on Toland’s allegations and this Court’s mandamus
principles, the answer to that question is “yes.” Accordingly, this Court declines to
adopt the distinguishable reasoning of Alex and Kerestes. Therefore, we deny the
Board’s Suggestion.
However, even assuming the Board is correct, and this case is moot, an
alternate, independent basis for our decision to proceed is the capable of repetition
yet evading review exception to the mootness doctrine. Consider what would
happen if this Court found the case moot and dismissed it. The Board suggests the
appropriate action would be for Toland to file a new petition to allege any possible
defects with the 2022 parole denial. Assuming Toland stated a viable claim, the
parties would be back before this Court with a discovery dispute, likely identical to
the one before us. Based on the pace of this litigation, and litigation in general, by
the time Toland achieved any meaningful progress in litigation alleging defects with
his 2022 parole denial, a subsequent parole interview and decision would likely have
13
mooted his case—which is scheduled to take place in 2024. In that way, Toland
would be stuck on a hamster wheel of litigation, reaching discovery on a petition,
likely only to have a subsequent denial of parole moot his case.9 Thus, this scenario
satisfies both requirements for this exception under Philadelphia Public School
Notebook, 49 A.3d at 449, in that (i) Toland would likely be back before this Court
complaining of the same conduct, namely, the Board’s refusal to produce discovery,
and (ii) the pace of the litigation would be too slow for this Court to decide these
issues before becoming moot again.
With respect to mootness, the dissent notes that “Toland appears to have been
granted the relief he seeks[.]” Toland II, __ A.3d at __ (Leavitt, S.J., dissenting),
slip op. at 12.10 However, even if Toland has been granted relief, the Board’s
objections, which are likely to be raised in the future, could well evade our review.
It is true that “[a] decision of the [] Board to deny an inmate’s application for parole
is beyond judicial review except in a very narrow constitutional case.” Id. at __, slip
op. at 1. But the dissent’s approach would—even in cases like this, where a
petitioner has stated a claim in that very narrow constitutional case—always deprive
9
The dissent faults Toland for not having “challenged the 2022 parole decision[.]” Toland
II, __ A.3d at __, slip op. at 11-12 (Leavitt, S.J., dissenting). However, as discussed with respect
to the procedural history of this case, we scheduled argument on the Board’s Suggestion to occur
simultaneously with the merits of this underlying discovery dispute. Given that there was the
possibility of the Court not dismissing the case as moot, Toland could have reasonably concluded
that it was premature for him to seek leave to file a Second Amended Petition to allege issues with
the 2022 denial.
10
In addition, given that Toland filed this Motion to Strike, it is not accurate for the dissent
to say that Toland has not “contested the [] Board’s statement that the pre-1996 Parole Code
standards were used to arrive at its decision to deny him parole in 2022.” Toland II, __ A.3d at __,
slip op. at 12 (Leavitt, S.J., dissenting).
14
a petitioner of the ability to move forward because the Board could simply say it had
applied the correct guidelines and moot the case.11
11
The dissent believes the capable of repetition yet evading review exception to mootness
does not apply here, pointing to, inter alia, language cited in Brouillette from our Supreme Court’s
1952 decision in Wortex Mills v. Textile Workers of America, C.I.O., 85 A.2d 851 (Pa. 1952), in
which the high Court said “[i]t is only in very rare cases where exceptional circumstances exist or
where matters of great public importance are involved, that this court ever decides moot questions
or erects guideposts for future conduct or actions.” (cited by Brouillette, 213 A.3d at 368). Notably
absent from the Wortex Mills Court’s discussion of mootness exceptions is capable of repetition
yet evading review, which seems not to have become part of the Pennsylvania Supreme Court’s
jurisprudence until 1971. See Apple Storage Co. v. Consumers Educ. & Protective Ass’n, 272 A.2d
496, 497-98 (Pa. 1971). Thus, to the extent Wortex Mills is silent as to the mootness exception in
question here, it no longer reflects the state of Pennsylvania law. Notably, our Supreme Court’s
more recent formulation of the requirement has retained the great public importance language as
one exception but has dropped the “exceptional circumstances” and “rare cases” language,
seemingly having replaced it with capable of repetition yet evading review. See, e.g., Linkosky v.
Dep’t of Transp., Bureau of Driver Licensing, 247 A.3d 1019, 1023 n.4 (Pa. 2021) (framing the
issue without reference to “exceptional circumstances”); In re Y.W.-B., 265 A.3d 602, 612 n.8 (Pa.
2021) (same). Because, as discussed above, Toland’s case is likely capable of repetition yet
evading review, satisfying the two factors discussed in Brouillette and Philadelphia Public School
Notebook, it falls within an exception to mootness, assuming arguendo it is moot.
The dissent further explains that
Toland filed his initial petition for review over 12 years after he was denied
parole in March 2004, and nearly 9 months after he was denied parole in August
2017. Toland did not file the instant [A]mended [P]etition until nearly two years
after he was denied parole in December 2018, and nearly [a] year after he was
denied parole in October 2019.
Toland II, __ A.3d at __, slip op. at 12-13 n.9 (Leavitt, S.J., dissenting). First, we do not see how
a nine-month delay between discovering an alleged harm (the 2017 denial) and filing suit in the
first instance is unreasonable or suggests in any way this mootness exception should therefore not
apply. Second, these observations ignore the reality of litigation. Between the filing of the original
petition for review and the Amended Petition, the Board filed preliminary objections, an answer
and new matter, an application for summary relief, and an application to dismiss, all of which
Toland answered. Indeed, it was only a month after this Court’s September 11, 2020, Order
denying the Board’s application to dismiss that Toland filed this instant Amended Petition.
15
B. Toland’s Motion to Strike
Toland filed the Motion to Strike the Declaration of the Board Secretary
appended to the Board’s Suggestion. (Motion to Strike ¶¶ 1-2.) He argues that
because Board Secretary has no direct knowledge of which guidelines the Board
used, (id. ¶¶ 4, 5), the Declaration should be stricken. The Board has not filed a
response to Toland’s Motion.
Having dismissed the Board’s Suggestion, we need not reach the question of
whether to strike the Declaration filed in support thereof. Therefore, we dismiss
Toland’s Motion to Strike as moot.
C. Requests for Production
The Board argues that the production of several documents requested by
Toland would violate the Regulation, CHRIA, and in one instance Pennsylvania
Rule of Criminal Procedure 703, Pa.R.Crim.P. 703 (Rule 703). It also asserts that
certain document requests are overbroad, unreasonable, unduly burdensome, and not
reasonably calculated to lead to admissible evidence. It also suggests, in passing,
that we consider the requests for production and related legal bases for the Board’s
objections in turn.12
1. Parties’ Arguments
In his first request (Request A), Toland asks the Board to produce “all
documents relating to the identity of . . . [the] Board’s] current and past . . .
[m]embers, Hearing examiners, employees, representatives, attorneys, and all
12
Instead of addressing these specific arguments the Board advances to resist production
of the requested discovery, the dissent raises its own arguments. Indeed, the dissent mentions,
without analyzing, the Regulation, CHRIA, and the extent to which the Board relies on boilerplate
objections. Toland II, __ A.3d at __, slip op. at 8 n.8 (Leavitt, S.J., dissenting).
16
persons acting or purporting to act, on his behalf, in any parole interview or
assessment concerning [Toland].” (Toland’s Motion to Dismiss, app. A ¶ A.)
However, in his Memorandum, Toland acknowledges that the request was “wide,”
so he now limits the scope of his request to the above information in relation to his
last three parole denials. (Toland’s Memorandum ¶ 3.)
The Board first points to its mootness argument, suggesting that only
documents related to the most recent parole denial are relevant. (Board’s
Memorandum at 2.)13 It asserts “the only document that would reflect who the
identity of the decision makers . . . would be the PPB 361[,] . . . the Board’s internal
decision-making document,” which it argues is protected under the Regulation.
Thus, the Board argues, that document would need to be wholly redacted. (Board’s
Memorandum at 6.) In its Response to Toland’s Motion to Dismiss, the Board
initially raised an objection on the grounds that the request is vague, ambiguous,
argumentative, overbroad, unduly burdensome, and not reasonably calculated to lead
to the discovery of admissible evidence, citing Pennsylvania Rule of Civil Procedure
4011, Pa.R.Civ.P. 4011.14
Toland maintains he needs these documents to “identify[] those Board
officials . . . to investigate how . . . false information came to be in his parole file.”
(Toland’s Memorandum ¶ 6.) Specifically, he relates this back to “false information
regarding his criminal offenses . . . which resulted in . . . [an] additional false
statement on the decision sheet” related to domestic violence which Toland avers
never occurred. (Id. ¶¶ 4- 5.)
13
The Board in its Memorandum references the most recent parole denial as October 22,
2019, as the Memorandum was filed on November 16, 2022, several months before the Board filed
its Suggestion.
14
The Board does advance this argument with regard to Request A in its brief.
17
Toland also asks the Court to dismiss the Board’s objections to document
requests B, C, E, G, H, I, J, K, and L, which ask the Board to:
B. Produce all documents relating to the assessments made by the
Sexual Offenders Assessment Board (SOAB) conducted on [Toland] in
or around the years 1996-1999 which was requested by the . . . Board
under 42 Pa.C.S.[] § 9799.24 [of the Sex Offender Registration and
Notification Act].
C. Produce each Parole Decisional Instrument (PBPP-361) forms
completed, the identity of person(s) filling it out and date completed for
the fourteen (14) parole interviews conducted on [Toland][.]
....
E. Produce each Level of Service Inventory-Revised (LSIR)
assessment completed, the identity of person(s) evaluating it, and date
completed for the fourteen (14) parole interviews conducted on
[Toland].
....
G. Produce each Static 99 assessment(s) completed, the identity of
person(s) evaluating it and date completed for the fourteen (14) parole
interviews conducted on [Toland].
H. Produce each DC-13A, Integrated Case Summary forms prepared
by the Department of Corrections [(DOC)] for the . . . Board prior to all
fourteen (14) parole interviews conducted on [Toland].
I. Produce each [DOC] vote sheets completed prior to all fourteen (14)
parole interviews conducted on [Toland].
J. Produce each of the eight (8) [DOC] psychological reports
transmitted and/or given to the . . . Board which have been completed
o[n] [Toland] since his minimum date of January 2004.
K. Produce any report(s), evaluation(s), or assessments made by the
[DOC] and provided to the . . . Board which indicate that [Toland] is a
risk to the community.
18
L. Produce any court, police, criminal records, criminal complaint
forms, pre-sentence reports, and psychological reports prepared by
Philadelphia County and transmitted to the . . . Board which have been
reviewed prior to each of the parole interviews conducted on [Toland].
(Toland’s Motion to Dismiss, app. A ¶¶ B-C, E, G-L.)
The Board argues the Regulation prevents disclosure of each of the documents
Toland requests because, in its view, the Regulation requires “information contained
in a parolee’s parole file [to remain] private and confidential and not subject to
release, even when the individual is requesting information from their own file.”
(Board’s Response ¶¶ 2-10.) The Board relies on this Court’s decision in Coulter v.
Pennsylvania Board of Probation and Parole, 48 A.3d 516 (Pa. Cmwlth. 2012), to
support the claim that a parolee (or here, would-be parolee) may not access his own
file. (Board’s Memorandum at 7.) Additionally, the Board offers a policy argument
specifically related to Request C (the parole decisional instrument). It argues that
“[t]he release of this document in the discovery process will cause a chilling effect
for Board Members and Hearing Examiners making paroling decisions[,] as
allowing for discovery of this otherwise privileged document will hinder the Board
in [its] deliberative process of making paroling decisions.” (Id. at 9.)
The Board also argues that CHRIA, and specifically its prohibition on
secondary dissemination found at Section 9106(d) of CHRIA, 18 Pa.C.S. § 9106(d),
bars disclosure of each requested document, except documents C (parole decisional
instrument) and A (identity of members, etc.). (Board’s Memorandum at 8, 10-13.)
For each set of documents listed above, the Board repeats the same refrain: that
pursuant to Section 9106 of CHRIA, “a criminal justice agency which possesses
protected information, but which is not the source of the information, shall not
disseminate or disclose the information.” (See, e.g., Board’s Memorandum at 8.)
19
For each disputed document, the Board argues that Toland must seek the documents
directly from the respective agencies, for example, the SOAB or DOC, if he wishes
to view them. Specifically, as to Request L, the Board argues for the first time in its
Memorandum that Rule 703 bars disclosure of the pre-sentencing reports.
Finally, the Board asserts that document requests C, E, G, I, J, and K are
overbroad, unreasonable, unduly burdensome, and not reasonably calculated to lead
to the discovery of admissible evidence. This is so, it argues, in part because the
only relevant documents stem from the most recent parole denial, consistent with its
mootness argument.
Toland advances several arguments in response. First, he contends that,
because he is not requesting these documents under the Right-to-Know Law15
(RTKL), Coulter and related cases are inapplicable here. (Toland’s Motion to
Dismiss ¶ 7.) Relatedly, he argues that because the “documents . . . requested
concern his individual case and not any other parolee[,] . . . there are no
confidentiality concerns.” (Id. at 9; see also Toland’s Memorandum ¶ 11.) Toland
turns to a federal case to suggest that to overcome a claim of privilege, the party
must “demonstrate not only the evidence sought is relevant and necessary to his case,
but that it is not available from a source less intrusive upon the privilege.” (Toland’s
Memorandum ¶ 9.) He further points to two federal cases to suggest that “the Board
has produced either relevant portions of a [p]etitioner’s parole file or the entire parole
file to be reviewed.” (Toland’s Motion to Dismiss ¶ 8.)
In response to the Board’s CHRIA argument, Toland relies on Pennsylvania
State Police v. Grove, 119 A.3d 1102, 1108 (Pa. Cmwlth. 2015), aff’d in part, rev’d
in part, 161 A.3d 877 (Pa. 2017), for the proposition that “the mere fact that a record
15
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
20
has some connection to a criminal proceeding does not automatically exempt it under
. . . CHRIA.” He implies this logic overcomes the Board’s argument that it is not
permitted to disseminate the requested documents. (Toland’s Memorandum ¶¶ 10,
36, 45, 50, 55.)
In partial response to the Board’s argument that the requests for production
are, inter alia, overbroad and unduly burdensome, Toland argues that even if the
Board’s mootness argument is correct, “the false information . . . remains part of his
parole file . . . . The Board can not [sic] just claim that since Toland had a new
interview and decision that this false information is no longer relevant.” (See, e.g.,
id. ¶ 31 and repeated for each relevant request.)
2. Analysis – The Regulation
We first consider the applicability of the Regulation. The Regulation provides
in relevant part that
[r]ecords, reports and other written things and information, evaluations,
opinions and voice recordings in the Board’s custody or possession
touching on matters concerning a probationer or parolee[16] are private,
confidential and privileged; except that a brief statement of the reasons
for the actions by the Board granting or refusing a parole will at all
reasonable times be open to public inspection in the offices of the
Board.
37 Pa. Code § 61.2. Our research has uncovered no other case involving this
particular Regulation in the discovery context.
16
Although the plain language of the Regulation suggests that the Regulation applies only
to current “probationer[s] and parolee[s,]” this Court has held there is no reason to distinguish
prospective probationers and parolees from current ones for purposes of administering the
Regulation. See Jones v. Off. of Open Recs., 993 A.2d 339, 343 (Pa. Cmwlth. 2010) (“For purposes
of weighing the confidentiality of documents, we discern no basis to differentiate the records of
one who receives parole from one who does not.”).
21
It first bears noting here that the party seeking to invoke a privilege to prevent
the production of discovery—here, a statutory privilege—has the burden of
demonstrating the applicability of that privilege. See Koken v. One Beacon Ins. Co.,
911 A.2d 1021, 1025 (Pa. Cmwlth. 2006) (Cohn Jubelirer, J., single-Judge op.)
(citing 6 Pa. Stand. Prac. § 34:35). 17 As the party seeking to invoke the Regulation
to prevent disclosure, the Board shoulders the burden of showing it applies.
Moreover, we have observed that “Pennsylvania law does not favor evidentiary
privileges[,]” noting that “[e]xceptions to the demand for every man’s evidence are
not lightly created nor expansively construed, for they are in derogation of the
search for truth.” Joe v. Prison Health Servs., Inc., 782 A.2d 24, 31 (Pa. Cmwlth.
2001) (quoting Commonwealth v. Stewart, 690 A.2d 195, 197) (Pa. 1997) (internal
brackets, citations, and quotation marks omitted) (emphasis added).
The Board cites Coulter for the proposition that pursuant to the Regulation,
“information contained in the parole file is private and confidential, and not subject
to release, even when the individual is requesting information from their own file.”
(Board’s Memorandum at 7.) This distillation, however, does not fully capture the
scope of Coulter. There, a parolee who sought a specific record from her parole file
alleged that the Board had already disclosed some of her file to others, and so it
followed, in her view, that the Board must be estopped from raising the Regulation
to prevent disclosure of the records in question. The Court rejected this argument
out of hand. Coulter, 48 A.3d at 519. Second, the Court reasoned that the plain
language of the RTKL exempted the disclosure of the requested records as a “record
17
This Court’s Internal Operating Procedures provide that “[e]xcept as provided in
subsection (d) (relating to single-Judge opinions in election law matters), a single-Judge opinion
of this Court, even if reported, shall be cited only for its persuasive value and not as a binding
precedent.” 210 Pa. Code § 69.414(b).
22
of an agency relating to a noncriminal investigation.” Id. (citing Section 708(b)(17)
of the RTKL, 65 P.S. § 67.708(b)(17)). Thus, in Coulter, the Court never directly
ruled that it was the Regulation that prevented disclosure; rather it was the RTKL
standing alone. The Coulter Court, as a policy matter, was concerned that if parole
files were subject to disclosure under the RTKL—even to the parolee herself—“they
would be open to the entire public at large which could have adverse effects on all
parolees.” Coulter, 48 A.3d at 519 (emphasis added).
This Court has decided other cases involving the Regulation and the RTKL,
relying on slightly different reasoning. For example, in Jones v. Office of Open
Records, 993 A.2d 339, 340 (Pa. Cmwlth. 2010), an inmate who had been denied
parole requested that the Board, via the RTKL, produce “written parole
recommendations by the sentencing judge and prosecuting attorney.” There, the
Court was persuaded that those documents were exempt from disclosure. It reasoned
that because the Regulation predated the RTKL, it operated on its own to prevent
disclosure of the documents. Id. at 342. In Vu v. Pennsylvania Board of Probation
and Parole, 200 A.3d 627 (Pa. Cmwlth. 2018), an inmate who had been denied
parole requested documents, including reports, evaluations, and assessments related
to the reasons for denial of his parole. The Vu Court pointed to the RTKL’s provision
that documents “exempt from disclosure under any . . . State law or regulation”
may not be produced. Id. at 633 (quoting Section 305 of the RTKL, 65 P.S. § 67.305,
emphasis added). It pointed to the Regulation as one such regulation.
Coulter and the other RTKL cases are distinguishable from the instant
discovery matter. Requests under the RTKL, as the Coulter Court pointed out,
implicate unique policy concerns, namely, the potential for public access to sensitive
information in parolees’ files. The Coulter Court noted specific concern that
23
allowing the parolee herself to access records in her file through the mechanism of
the RTKL would mean those records would necessarily, then, become available to
the public at large. Therefore, it makes more sense to limit public access to sensitive
parole files via the RTKL, even if the parolee or would-be parolee cannot access
them, than it does in the discovery context. That is so because discovery, of course,
does not implicate the RTKL’s policy concern of wide potential public disclosure,
especially given the safeguards courts may erect around the discovery process. See,
e.g., Pennsylvania Rule of Civil Procedure 4012, Pa.R.Civ.P. 4012 (detailing
requirements for protective orders in civil discovery).
Here, Toland—his complaint now having survived preliminary objections—
requires discovery to substantiate his claims. If produced, his file would be turned
over only to him, and unlike the parolees in Coulter, Jones, and Vu, Toland’s receipt
of his file in the discovery context would not render it available to the public at large.
Having now found Coulter and the RTKL cases involving the Regulation
distinguishable, the question whether the Regulation’s plain language bars
disclosure of the documents remains. By urging the Court to consider the RTKL
cases interpreting the Regulation, the Board has placed the correct construction of
the Regulation at issue, and as such, this Court may turn to statutory construction
principles in determining whether its meaning is consistent with the Board’s
approach.18
As a threshold matter, Pennsylvania courts recognize that “[s]tatutory
construction rules apply equally to the interpretation of administrative regulations.”
Wheeling-Pittsburgh Steel Corp. v. Dep’t of Env’t Prot., 979 A.2d 931, 937 (Pa.
18
Indeed, this Court has independently consulted the dictionary to define terms where
neither party had included that definition in its briefing. See, e.g., Lower Swatara Township v. Pa.
Lab. Rels. Bd., 208 A.3d 521, 531 (Pa. Cmwlth. 2019).
24
Cmwlth. 2009). In determining the meaning of a regulation, courts must look to, in
addition to the plain language, the specific context in which language is used.19
Roethlein v. Portnoff Law Assocs., Ltd., 81 A.3d 816, 822 (Pa. 2013) (referencing
Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(a)).
Only after having established ambiguity may courts turn to the canons of
construction. Pa. Associated Builders & Contractors, Inc. v. Dep’t of Gen. Servs.,
932 A.2d 1271, 1278 (Pa. 2007). Where “two different ways” to read the language
exist, and “the statutory language is reasonably capable of either construction, the
language is ambiguous.” Commonwealth v. Giulian, 141 A.3d 1262, 1268 (Pa.
2016). Potentially relevant canons provided by the legislature in resolving
ambiguities here are the “occasion and necessity” for the Regulation, 1 Pa.C.S.
§ 1921(c)(1), “circumstances under which it was enacted,” id. at (c)(2), “mischief to
be remedied,” id. at (c)(3), “object to be attained,” id. at (c)(4), and “consequences
of a particular interpretation,” id. at (c)(6).
The first step is to “start, as we must, with the [Regulation’s] language.” Pa.
Associated Builders, 932 A.2d at 1278. The key language in the Regulation is the
phrase “private, confidential and privileged.” The phrase itself is not defined by the
regulations nor are any of the individual words that comprise it. See 37 Pa. Code
§ 61.1 (definitional section). This Court has instructed that, in the absence of a
provided definition, it can be appropriate to consult, inter alia, dictionaries to derive
the meaning of text. Lower Swatara Township v. Pa. Lab. Rels. Bd., 208 A.3d 521,
531 (Pa. Cmwlth. 2019).
19
“Statutory language ‘cannot be construed in a vacuum. It is a fundamental canon of
statutory construction that the words of a statute must be read in their context and with a view to
their place in the overall statutory scheme.’” Commonwealth v. Giulian, 141 A.3d 1262, 1269 (Pa.
2016) (quoting Sturgeon v. Frost, 577 U.S. 424, 438 (2016)).
25
The first definition of “private” is “intended for or restricted to the use of a
particular person, group, or class.” Webster’s Ninth New Collegiate Dictionary 936
(1991). It can also mean “not known or intended to be known publicly.” Id.(emphasis added). Black’s Law Dictionary defines “private” as “[r]elating or
belonging to an individual, as opposed to the public or the government,” or
“[c]onfidential; secret.” Black’s Law Dictionary 1315 (9th ed. 2009) (emphasis
added). The relevant dictionary definition of “confidential,” is “private, secret[,]”
or “containing information whose unauthorized disclosure could be prejudicial to
the national interest.” Webster’s Ninth New Collegiate Dictionary 275 (1991).
Black’s Law Dictionary defines the term as “(Of information) meant to be kept
secret,” giving the example of “confidential settlement terms.” Black’s Law
Dictionary 339 (9th ed. 2009). Finally, the relevant definition of “privileged” is “not
subject to disclosure in a court of law,” Webster’s Ninth New Collegiate Dictionary
936 (1991), or “[n]ot subject to the usual rules or liabilities; esp[ecially], not subject
to disclosure during the course of a lawsuit . . . [e]njoying or subject to a privilege,”
Black’s Law Dictionary 1319 (9th ed. 2009).
Those definitions raise three basic questions: Private and secret from whom?
If not to be known publicly, then to be known to whom? If privileged, who,
holding the privilege, may waive it? We can resolve the answers to these questions
when we read the terms at issue, as we must, with an eye toward the context of the
Regulation as a whole. Notably, immediately after the Regulation’s admonition that
parole files be kept private, confidential, and privileged, the rest of the Regulation
reads: “[E]xcept that a brief statement of the reasons for actions by the Board . . .
will at all reasonable times be open to public inspection . . . .” 37 Pa. Code § 61.2(emphasis added). This exception to the general rule is phrased as disclosure to the
26
public, and so it suggests the general rule stated before the semicolon should be
thought of as non-public. Put another way, the drafters of this Regulation must have
been concerned about disclosure of parole file information to the public in crafting
the general rule that the information be private, confidential, and privileged because
it phrases the only exception to the rule as allowing public access to specified
information. This reading also suggests that we can envision the parolee as the
beneficiary of the Regulation, and thus, we can resolve those questions as follows.
The information is private and secret from the public, not Toland. The information
is not to be known publicly, but rather to Toland. Toland, as the beneficiary of the
privilege, holds it, so he may waive it. See, e.g., Maleski v. Corp. Life Ins. Co., 646
A.2d 1, 4 (Pa. Cmwlth. 1994) (noting that in the attorney-client privilege context,
the holder-beneficiary of the privilege is the client who, accordingly, may waive it).
Although it is also true that the Board members could benefit from the privilege
insofar as they would want to prevent disclosure of their decisional information, we
find that the strict construction of privilege in discovery, see Prison Health Services,
along with the analysis above, militates against the conclusion that the Board
members should be construed as the sole beneficiaries of the privilege.
We also observe the public/parolee contrast we read in the structure of the
Regulation also squares with the logic of the RTKL cases, as there, the concern was
that disclosure through the RTKL to the parolee herself would effectively cause the
file to become public. Therefore, the plain language of the Regulation suggests that
the Regulation prevents disclosure to the public, not to parolees themselves in the
discovery context.
Further supporting this interpretation are the federal cases in which it appears
the Board has produced documents similar to those Toland requests here. For
27
example, Toland cites to Barnes v. Wenerowicz, 280 F.R.D. 206 (E.D. Pa. 2012), a
federal case in which an inmate sued the Board in relation to a parole denial, arguing
that the Board has produced the type of information in previous litigation that he
requests now. There, in a footnote, the district court pointed out the record is
comprised of a two-volume appendix, the first of which “contains copies of
documents from [the petitioner’s] parole file, which are Bates stamped with page
numbers starting with the prefix ‘PBPP.’” Id. at 208 n.2 (emphasis added).
Throughout the Barnes opinion, the district court cited to several documents that
Toland requests in the current litigation. See, e.g., id. at 209 (LSI-R psychological
assessment and DOC’s parole recommendation), 210 (parole interview notes). See
also Mickens-Thomas v. Vaughn, 217 F. Supp. 2d 570, 580 (E.D. Pa. 2002) (Mickens-
Thomas I), (“Stipulation 6 provides that each time the Board refused parole to [the]
petitioner, the decision maker had access to the Board’s entire file and that any
document reviewed or considered by the Board is contained in that file marked
as Exhibit R9.”) (emphasis added), aff’d, Mickens-Thomas II.
At oral argument, the Board explained that federal courts do not recognize the
same claims of privilege as we must. That said, however, we observe that these
cases do, nonetheless, raise questions about the policy concerns the Board purports
to have regarding the “chilling effect” the release of, namely, parole interview notes
would have, (Board’s Memorandum at 9), and it also calls into question the Board’s
urged interpretation of the Regulation.
Given this analysis, we first decline, as the Board urges, to extend the
reasoning of the RTKL cases involving the Regulation, as they are distinguishable
both on their facts and as a matter of policy. Second, we note that our reading of the
plain language of the Regulation does not preclude disclosure to a parolee in
28
discovery. Accordingly, we decline to view the Regulation as a bar to the production
of the documents Toland seeks in this litigation.
3. Analysis – CHRIA
We next consider whether CHRIA might prevent production of the
documents. The overall purpose of CHRIA’s statutory scheme is to “control the
collection, maintenance, dissemination[,] or receipt of criminal history record
information.” Garner v. Bureau of Pro. & Occupational Affs., State Bd. of
Optometry, 97 A.3d 437, 442 (Pa. Cmwlth. 2014). The general rule of Section
9106—the section on which the Board relies—is set forth in subsection (a) and
directs that the following three types of information not be collected in a “central
repository” maintained by the Pennsylvania State Police:20 intelligence information,
investigative information, and treatment information (protected information).21 18
Pa.C.S. § 9106(a). Section 9106 then sets out where and how these three types of
information may be maintained within criminal justice agencies,22 18 Pa.C.S. §
20
Section 9102 of CHRIA defines the central repository as the “central location for the
collection, compilation, maintenance and dissemination of criminal history record information by
the Pennsylvania State Police.” 18 Pa.C.S. § 9102.
21
“Intelligence information” is “[i]nformation concerning the habits, practices,
characteristics, possessions, associations[,] or financial status of any individual compiled in an
effort to anticipate, prevent, monitor, investigate[,] or prosecute criminal activity . . . .” 18 Pa.C.S.
§ 9102. “Investigative information” is “[i]nformation assembled as a result of the performance of
any inquiry, formal or informal, into a criminal incident or an allegation of criminal wrongdoing
and may include modus operandi information.” Id. Finally, “[t]reatment information” is
“[i]nformation concerning the medical, psychiatric, psychological or other rehabilitative treatment
provided, suggested or prescribed for any individual charged with or convicted of a crime.” Id.
22
CHRIA’s definitional provision explains that
[c]riminal justice agencies include, but are not limited to: organized State and
municipal police departments, local detention facilities, county, regional and
State correctional facilities, probation agencies, district or prosecuting attorneys,
parole boards, pardon boards, the facilities and administrative offices of the
Department of [Human Services] that provide care, guidance and control to
(Footnote continued on next page…)
29
9106(b), and how criminal justice agencies which possess protected information
may disseminate it to other agencies or individuals, 18 Pa.C.S. § 9106(c).
Specifically, Section 9106(c)(4) provides that “[i]nvestigative and treatment
information shall not be disseminated to any department, agency, or individual
unless the department, agency, or individual requesting the information is a criminal
justice agency which requests the information in connection with its duties.” 18
Pa.C.S. § 9106(c)(4). Finally, and most relevant to the Board’s argument, the
secondary dissemination provision provides that “[a] criminal justice agency which
possesses [protected] information . . . but which is not the source of the information,
shall not disseminate or disclose the information to another criminal justice agency
but shall refer the requesting agency to the agency which was the source of the
information.” 18 Pa.C.S. § 9106(d) (emphasis added).
We reiterate, as discussed above, that the Board has the burden of showing
that CHRIA applies. See One Beacon, 911 A.2d at 1025. The first step in
determining whether CHRIA bars production of the requested documents in Toland’s
file is to determine whether they amount to protected information under CHRIA. If
they are not protected information under the statutory definition, Section 9106, of
course, does not apply in the first instance. The Board’s Memorandum refers broadly
to the documents requested as “protected information.” However, at no point does
the Board provide any analysis as to why the information Toland seeks amounts to
one of the three types of protected information. (See, e.g., Board’s Memorandum at
8.)
adjudicated delinquents, and such agencies or subunits thereof, as are declared
by the Attorney General to be criminal justice agencies as determined by a
review of applicable statutes and the State and Federal Constitutions or both.
Id.30
Having not explained how the documents Toland seeks amount to protected
information, the Board has not carried its burden of showing any privilege created
by CHRIA applies. Thus, the holding of One Beacon alone teaches that it is proper
to grant Toland’s Motion to Dismiss as to the Board’s CHRIA objections. However,
this Court also has explained that failure to adequately develop an argument in
briefing may result in waiver of that argument.23 Pennsylvania Rule of Appellate
Procedure 2119(a), Pa.R.A.P. 2119(a), directs counsel to include “discussion and
citation of authorities . . . .” See Commonwealth v. Perez, 93 A.3d 829, 838 (Pa.
2014) (emphasis added) (“[T]o the extent [a party’s] claims fail to contain developed
argument or citation to supporting authorities . . . they are waived.”). Thus, the
Board’s lack of elaboration on a key element of the statute—whether the documents
are appropriately classified as protected information—also amounts to waiver of this
argument.
Accordingly, the Board’s argument that CHRIA applies to bar production of
these documents is unavailing for these two reasons.
4. Analysis – Pa.R.Crim.P. Rule 703
In its original objection, the Board did not raise a Rule 703 objection to the
production of Request L, Toland’s pre-sentence reports. (Toland’s Motion to
Dismiss, app. A ¶ L.) Moreover, in one of its longest answers to one of Toland’s
interrogatories, the Board divulged several specific details included in the pre-
23
This Court has indicated that, for purposes of its original jurisdiction, the Rules of
Appellate Procedure operate as its local rules, and as such, issues relating to briefing in original
jurisdiction implicate the relevant Rules of Appellate Procedure. See Chester Cmty. Charter Sch.
v. Dep’t of Educ., 996 A.2d 68, 74-75 (Pa. Cmwlth. 2010) (“[T]he appellate rules are applicable to
matters in an appellate court, including original jurisdiction matters. This applies to the briefing.”)
(citing Pa.R.A.P. 106).
31
sentence report. (Id., app. C ¶ 10.) Without any analysis, the Board spends one
sentence explaining that pursuant to Rule 703, “pre-sentence reports . . . shall be
confidential, and not of public record.” (Board’s Memorandum at 14.) Our analysis
as to the Board’s Rule 703 argument is similar as to its CHRIA argument. The Board,
having not elaborated on this objection (and having not initially objected) has not
carried its burden to show that Rule 703 applies, and further, has waived this
argument for failure to develop.
5. Analysis – Overbroad, unreasonable, unduly burdensome, and
not reasonably calculated to lead to the discovery of admissible
evidence
Generally, courts permit discovery into “any matter, not privileged, which is
relevant to the subject matter involved in the pending action.” Pennsylvania Rule of
Civil Procedure 4003.1, Pa.R.Civ.P. 4003.1. See also One Beacon, 911 A.2d at 1025(noting key inquiry under Rule 4003.1 is whether “information sought is relevant,
reasonable, and not privileged”). The Rules make clear, however, that “[n]o
discovery . . . shall be permitted which . . . would cause unreasonable annoyance,
embarrassment, oppression, burden[,] or expense . . . .” Pennsylvania Rule of Civil
Procedure 4011(b), Pa.R.Civ.P. 4011(b). The burden is on the party challenging the
discovery request to show that a given Rule 4011 limitation applies. Ario v. Deloitte
& Touche LLP, 934 A.2d 1290, 1293 (Pa. Cmwlth. 2007). In addition, “releva[nce]
depends upon the nature and the facts of the case, and any doubts are to be resolved
in favor of relevancy.” Id. We also note that discoverability and admissibility are
distinct concepts, and Rule 4003.1(b) specifically states that “[i]t is not ground for
objection that the information sought [in discovery] will be inadmissible at trial if
the information sought appears reasonably calculated to lead to the discovery of
admissible evidence.” Pa.R.Civ.P. 4003.1(b). Finally, “[d]iscovery matters are
32
within the discretion of the trial court.” Luckett v. Blaine, 850 A.2d 811, 818 (Pa.
Cmwlth. 2004), overruled on other grounds by Feliciano v. Pa. Dep’t of Corr., 250
A.3d 1269 (Pa. Cmwlth. 2021).
This Court has dismissed discovery objections where the party challenging
the discovery failed to adequately expand on an objection. See, e.g., William Penn
Sch. Dist. v. Pa. Dep’t of Educ. (Pa. Cmwlth., No. 587 M.D. 2014, filed Sept. 14,
2020), slip op. at 14 (Cohn Jubelirer, J., single-Judge op.) (involving Bear Creek
Community Charter School) (declining to find unreasonable burden where party
seeking to avoid discovery obligation failed to allege “any detail in support of its
inability to comply”). Further, this Court declined to quash a different discovery
request in the same case where “other than a bald assertion that it is unduly
burdensome to comply, the [party challenging the discovery request] does not
explain how it will be burdened if it is required to produce the documents.” Id., slip
op. at 16-17 (Cohn Jubelirer, J., single-Judge op.) (involving Bear Creek Foundation,
Inc.) (first emphasis added).24
Here, in objecting to the production of six documents on the basis that such
production is overbroad, unreasonable, unduly burdensome, and not calculated to
lead to admissible evidence, the Board has the burden under Rule 4011 to explain
why production of the documents would be so. Deloitte & Touche, 934 A.2d at
1293. The Board does explain that because it believes Toland’s allegations are moot,
the only relevant documents would be related to the most recent denial. However,
having already addressed the mootness argument, we remark that the Board does not
24
As one federal judge explained in response to similar objections, “stating that the requests
are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome?
How is it overly broad? This language tells the Court nothing.” Fischer v. Forrest (S.D.N.Y.,
No. 14 Civ. 1304, filed Feb. 28, 2017), 2017 WL 773694, at *3 (emphasis added).
33
address why nevertheless producing documents Toland argues are relevant to his
case would be unreasonable or unduly burdensome.25
The dissent points out that “if there is nothing in the record from which
relevancy can be ascertained, this Court may place the burden of establishing
relevance upon the requesting party.” Toland II, __ A.3d at __, slip op. at 9 (Leavitt,
S.J., dissenting) (quoting One Beacon, 911 A.2d at 1025) (emphasis added).
However, as discussed above, the general rule is that the “[t]he party seeking
discovery need not justify complete relevance in advance[,]” and even more
important, “the objector to a discovery request must demonstrate non-
discoverability[.]” One Beacon, 911 A.2d at 1025 (emphasis added). The Board
relied on boilerplate discovery objections instead of carefully crafting a relevance
objection26 for this Court to consider, and as discussed, the Board’s only true
25
As discussed above, the Board only challenged the relevance of entire sets of documents
on the basis that the only relevant documents relate to the most recent parole denial—an extension
of its mootness argument. It certainly did not raise the species of relevance objection as to each
individual document in the file the dissent advances, as addressed in detail infra. See Toland II,
__ A.3d at __, slip op. at 9-10 (Leavitt, S.J., dissenting).
26
The important qualifier to the above quotation from One Beacon is the phrase “if there
is nothing in the record from which relevancy can be ascertained[.]” One Beacon, 911 A.2d at
1025 (emphasis added). Here, there is much the Board could have turned to if it wished to fashion
a relevance objection. We would also note that the Pennsylvania Standard Practice section to
which the One Beacon Court referred with respect to possible burden shifting cites as authority
only one court of common pleas decision in support of that proposition. A few notable features of
that case are worthy of our observation here. There, in the context of a deponent’s refusal to answer
certain questions and permit examination of certain documents, the court explained that it was
impossible for the court to determine relevance because “we have no pleadings, nor do we have
any knowledge of the nature of the action pending [in a foreign tribunal.]” Chatinsky v. Dubrow
Elecs. Indus., Inc., 27 Pa. D. & C. 2d 486, 488 (1962). It likened that unique situation to that of
pre-complaint discovery, which of course, poses unique problems because in that scenario, the
opponent simply cannot make out a proper relevance objection where it does not know what the
proponent will plead. Thus, the Chatinsky Court explained that where the opponent does not have
enough information to raise a relevancy objection, the court may shift the burden to the proponent
of discovery. Id. Here, by contrast, the Board certainly had voluminous pleadings and a reported
(Footnote continued on next page…)
34
relevance objection was of a blanket nature based on mootness. Confining ourselves
to the parties’ argument also counsels in favor of rejecting the dissent’s argument
that all Toland needs to make out his ex post facto violation is a copy of the Board’s
written explanation and the statute. Toland II, __ A.3d at __, slip op. at 10 (Leavitt,
S.J., dissenting).27 Accordingly, consistent with the general rule, we decline to shift
the burden to Toland or to raise our own relevance objection sua sponte.28
In sum, because the Board has relied on boilerplate discovery objections
without sufficient elaboration, the Court dismisses each of the Board’s objections
decision of this Court explaining the contours of Toland’s cause of action to raise its own specific
relevance objections. It did not.
27
Further in the context of a discovery dispute, the precise contours of Toland’s ex post
facto and due process claims, as a substantive legal matter, are not before the Court. Should the
Board file an application for summary relief, asserting that its written explanation and comparison
to the statute are all the Court needs to determine that Toland must not prevail, then it can do so.
However, evidence of whether the Board has applied the correct standard, or completely ignored
the factors it must consider because Toland is a sex offender, may exist beyond just the written
explanation provided by the Board, and may surface upon review of the various documents
contained therein.
Further, it is important to remember that just because something is subject to discovery
does not mean that it will ultimately be admissible at a later point for Toland to attempt to prove
his case. See Pa.R.Civ.P. 4003.1(b) and George v. Schirra, 814 A.2d 202, 205 (Pa. Super. 2002)
(“[T]he relevancy standard during discovery is necessarily broader than it is for admission at trial.
If it were not, there would be tremendous potential for relevant information and admissible
evidence to be missed by the parties. The informational dragnet during discovery is meant to be
wider so that all relevant and admissible evidence can be discovered pre-trial.”). See Lerch v.
Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018) (Superior Court opinions
are persuasive authority).
28
This Court should not put itself in the position of making the arguments the Board could
have made. Indeed, “courts are essentially passive instruments of government. They do not, or
should not, sally forth each day looking for wrongs to right. They wait for cases to come to them,
and when cases arise, courts normally decide only questions presented by the parties.” United
States v. Sineneng-Smith, 590 U.S. __, __, 140 S. Ct. 1575, 1579 (2020) (brackets, quotation marks,
and citation omitted). The Board, with its sophisticated lawyers and the resources of the
Commonwealth at its disposal, is well positioned to make the arguments it deems necessary in any
given case.
35
that the production of these documents is overbroad, unreasonable, unduly
burdensome, and not calculated to lead to the discovery of admissible evidence.
D. Interrogatories
1. Parties’ Arguments
Toland asks the Court to dismiss the Board’s objections to the First Set of
Interrogatories (First Set), numbers 9, 17, 18, 28, 35-36, 39-41, 44-50, and 55. They
read as follows:
9. Does the Board agree that the chances of an offender
reoffending decrease with age?
....
17. Does the Board agree that an offender reduces their
risk of reoffending by taking responsibility for their
crimes, having completed prescribed programming,
having found a job and place to live upon release, having
no misconducts, and receiving [DOC] parole support?
18. Does the Board agree that [Toland] has taken
responsibility for his criminal behavior? If not, what leads
the Board to make this determination and has this been
addressed to him in any parole decision?
....
28. The [current] Parole [Code] states that the Board is
required to consider the factors of nature and
circumstances of the offense(s) committed during the
parole decision making process. Does the Board only
consider the facts of the case as stated in the police and/or
court records or is the Board allowed to make [its] own
assumptions and/or opinions as to what further actions, be
it criminal or not, which may of [sic] occurred? If the
Board is only permitted to consider the facts of the case,
explain why during several interviews [Toland] has been
36
asked about what might of [sic] occurred during his
criminal offenses?
....
35. Is it common Board practice to continuously deny
parole to an offender and instruct him to achieve the same
directives year after year as has been done in [Toland’s]
case?
36. If an offender is denied parole and at the next
interview achieves the directives given to him by the
Board, what more does that offender need to do to earn
parole?
....
39. Is there a set standard or policy that the Board has in
determining how long of a setback time is needed before
the next scheduled interview for those offenders denied
parole?
40. Is it normal Board practice to give an offender a longer
setback time than a previous denial decision?
41. What had so fundamentally changed at [Toland’s] last
parole interview that caused the Board to give him a six
(6) year setback time.
....
44. Has [Toland] received any positive votes in any of his
parole interviews? If so, identify when he received those
votes.
45. Does the Board agree that the [DOC] officials are a
good judge of the character and risk of an offender since
they are around the offender 24 hours a day, 7 days a
week?
46. What is a better judgment of [an offender’s] risk, the
reports, evaluations, assessments and observations of the
[DOC] officials who are around an offender every hour of
37
every day or the evaluations, assessments and
observations of Board officials who only see the offender
in a 10-20 minute interview?
47. What is the best indicator of risk, the current behavior
of the offender or their past behavior?
48. Does the Board agree that an offender who has spent
25 or more years in prison to be a significant stability time
to show if he was any type of risk and show if he had any
type of violent behavior or tendencies?
49. Does the Board agree that an offender who has been
incarcerated for a substantial time period (25 or more
years) who has never shown any type of violent behavior
or tendencies is more than likely to continue that behavior
and show himself to be stable?
50. Are parole officials able to really get to know an
offender over the course of a 10-20 minutes interview or
are offenders basically known and seen by their parole
file?
....
55. In all the parole decisions the Board has made, can the
Board identify any other case in which an offender who
has completed all programming, had no misconducts, and
continuously earned [DOC] parole support be denied
parole 14 or more times? If so, identify approximately
how many cases this has occurred in.
(Toland’s Motion to Dismiss, app. B ¶¶ 9, 17, 18, 28, 35-36, 39-41, 44-50, and 55.)
Toland also asks the Court to dismiss the Board’s objections to the Second Set
of Interrogatories (Second Set) numbers 8, 9, 28, 31, 33, 39, 43, and 54. Those read
as follows:
8. Does [the] Board agree an offender’s guilty plea
equates to taking responsibility?[]
38
9. Does [the] Board agree [Toland] was never accused,
investigated, charged with criminal actions he committed
Jan. 29 and 30 of 1993? If not, identify records that bring
to this determination.
....
28. Do any psychological evaluations cause the Board to
feel inmate is not stable or other concerns[?] ID
psychologists, date of eval, and concerns.
....
31. Do any treatment profiles cause concern? If so,
identify dates, person conducting, and concerns.
....
33. Do any of these plans cause concern?
....
39. Does Board agree current version of 361 Sect. IV
include decisional factors used by decision makers as
reasons to grant or deny parole?
....
43. Does the Board agree under pre-1996 parole practices
described by the Senate Judiciary Committee parole
interviews subsequent to the initial parole denial are
limited in scope to behavior of the offender and fulfillment
of directives.
....
54. Does the Board agree with the statement that it is hard
pressed to think of success factors more relevant to
assessing likelihood of success on parole tha[n] one’s
behavior and attitude in prison?
(Toland’s Motion to Dismiss, app. C ¶¶ 8-9, 28, 31, 39, 43, 54.)
39
The Board objected to five interrogatories but still provided a brief answer to
them noting that it responded without waiving its objection. Those interrogatories
are First Set numbers 9, 39, 40, and 41, and Second Set number 9. They are
reproduced below again for convenience.
9. Does the Board agree that the chances of an offender
reoffending decrease with age? Answer: Human behavior
is difficult to predict.
....
39. Is there a set standard or policy that the Board has in
determining how long of a setback time is needed before
the next scheduled interview for those offenders denied
parole? Answer: The Board considers multiple factors in
determining fitness for parole. Parole is a privilege, not a
right. Offenders may file applications for parole on a
regular basis pursuant to the limitations provided for at 61
Pa.C.S. § 6139.
40. Is it normal Board practice to give an offender a longer
setback time than a previous denial decision? Answer:
The Board considers multiple factors in determining
fitness for parole. Parole is a privilege, not a right.
Offenders may file applications for parole on a regular
basis pursuant to the limitations provided for at 61 Pa.C.S.
§ 6139.
41. What had so fundamentally changed at [Toland’s] last
parole interview that caused the Board to give him a six
(6) year setback time. Answer: The Board considers
multiple factors in determining fitness for parole. Parole
is a privilege, not a right. Offenders may file applications
for parole on a regular basis pursuant to the limitations
provided for at 61 Pa.C.S. § 6139.
....
40
9. Does [the] Board agree [Toland] was never accused,
investigated, charged with criminal actions he committed
Jan. 29 and 30 of 1993? If not, identify records that bring
to this determination. Answer: The Board attends to
paroling actions related to judicially imposed sentences.
However, criminal complaints filed in Philadelphia
County accuse [Toland] of multiple criminal acts on
January 29 and January 30[,] 1993.
(Toland’s Motion to Dismiss, app. A ¶¶ 9, 39, 40, 41; app. B, ¶ 9.) The Board
objected to each of Toland’s interrogatories on the basis that they are “vague,
ambiguous, argumentative, overbroad, and unduly burdensome, and not reasonably
calculated to lead to the discovery of admissible evidence.” (Toland’s Motion to
Dismiss, app. B; see also Board’s Memorandum 4, 7, 9-14, 16.)29
In its Memorandum, the Board expanded on its reasoning as to interrogatories
45-50 and 55 of the First Set, arguing that they seek “speculative opinions” and that
they are “rhetorical in nature.” (Board’s Memorandum at 16.) As to First Set,
numbers 17-18, 28, 35-36, and 44, and Second Set, numbers 28, 31, 33, 39, 43, 54,
the Board repeats an objection for each that the interrogatories are “speculative and
conclusory and asks for the Board to provide its opinion regarding its deliberative
process.” (Id. at 16-20 (also reiterating its objection under the Regulation); see also
Toland’s Motion to Dismiss, apps. A and B, for the original objections.)
In response, Toland maintains that despite its assertion to the contrary, the
Board’s responses to several interrogatories were not responsive to the question
posed. (See, e.g., Toland’s Memorandum ¶¶ 60, 74, 76, 78, 88.) He responds to the
objections and explains why each is relevant to his claims. For several, he cites
Federal Rule of Civil Procedure 33(a)(2), Fed.R.Civ.P. 33(a)(2),30 for the proposition
29
The Board also objects to the majority of these as requiring disclosure of confidential
information in violation of the Regulation and CHRIA’s secondary dissemination provision.
30
Toland actually cites to Federal Rule of Civil Procedure 56(b), Fed.R.Civ.P. 56(b), for
this proposition, but the text appears in the above-cited rule.
41
that “[a]n interrogatory which is otherwise proper is not objectionable because the
answer will require an opinion or the application of law to fact.” (Id. ¶ 81.) Finally,
where charged with the allegation that a given interrogatory is vague, etc., Toland
often counters by responding simply that it is not and providing a brief explanation
why for each.
2. Analysis – Vague, argumentative, overbroad, ambiguous, unduly
burdensome, and not reasonably calculated to lead to admissible
evidence
The analysis on this point is almost identical to that above, with one additional
point of law from the Pennsylvania Rules of Civil Procedure. Pursuant to
Pennsylvania Rule of Civil Procedural 4006(2), written interrogatories “shall be
answered fully and completely unless objected to, in which event the reasons for the
objection shall be stated in lieu of an answer.” Pa.R.Civ.P. 4006(2).
Accordingly, we reiterate our above conclusion with respect to these
interrogatories. Here, too, the Board has not expanded on its boilerplate objections.
Without significant explanation, it puts forth bald assertions, unsupported by specific
facts establishing why the Board is unduly burdened, or the interrogatory is
speculative, conclusory, rhetorical, vague, ambiguous, argumentative, overbroad, or
not reasonably calculated to lead to discovery of admissible evidence. Moreover,
our Rule of Civil Procedure on this point mirrors the federal rule Toland cites on this
issue; it is also true under Pennsylvania law that an interrogatory is not “ground for
objection that the information sought involves an opinion or contention that relates
to a fact or the application of law to fact.” Pa.R.Civ.P. 4003.1(c). Thus, to the extent
the Board argues that a given interrogatory calls for a “speculative opinion,” that
argument is inconsistent with Rule 4003.1(c).
Turning to the Board’s argument that it did answer five interrogatories and
that Toland “may not like the answer he received,” (Board’s Memorandum at 14),
42
the Court is satisfied that the Board has answered those five sufficiently. For
example, number 9 of the First Set asks whether the Board agrees “that the chances
of an offender reoffending decrease with age,” to which the Board responded with
an objection, but further said “[w]ithout waiving that objection, the Board responds
. . . Human behavior is difficult to predict.” (Toland’s Motion to Dismiss, app. A ¶
9.) The answers to those five questions comply with Rule 4006(2)’s requirement
that the Board answer fully and completely. Thus, Toland’s Motion to Dismiss First
Set numbers 9 and 39-41, and Second Set number 9 is denied.
3. Analysis – The Regulation
Having already determined the Regulation does not bar the production of the
documents Toland requests, we find no reason to adopt a different position as to the
interrogatories.
III. CONCLUSION
Having determined the November 2022 parole denial has not rendered this
case moot, or, alternatively, that a mootness exception applies, the Court denies the
Board’s Suggestion. Accordingly, we dismiss Toland’s Motion to Strike as moot.
Further, we hold that the Regulation, in the context of civil discovery in a mandamus
action in this Court, is not a per se bar on the production of documents contained in
a parolee’s file, nor do we find here that the Board has met its burden in showing
that Section 9106 of CHRIA applies. Finally, confining ourselves to the arguments
raised by the parties, we respectfully decline to accept the dissent’s invitation to sua
sponte raise issues of relevance and specific theories of the exact discovery Toland
needs because the Board did not make those arguments. With the exception of those
43
five interrogatories discussed above, we grant Toland’s Motion to Dismiss in part,
thereby dismissing each of the Board’s objections.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
44
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christopher Toland, :
Petitioner :
:
v. : No. 315 M.D. 2018
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
NOW, February 14, 2024, the “Suggestion of Mootness/Application for Stay”
filed by the Pennsylvania Board of Probation and Parole (Board) in the above-
captioned matter is DENIED. Christopher Toland’s (Toland) “Motion to Strike”
and “Application to Leave to Supplement the Record” are DISMISSED AS MOOT.
Toland’s “Motion to Dismiss [the Board]’s Objections to [Toland]’s Discovery
Requests” (Motion to Dismiss) is GRANTED IN PART and DENIED IN PART
in accordance with the foregoing opinion, as follows:
(1) The Motion to Dismiss is DENIED as to the First Set of Interrogatories
numbers 9 and 39-41, and Second Set of Interrogatories number 9, and
(2) The Motion to Dismiss is GRANTED as to the remaining interrogatories and
requests for production.
This Court’s Order of August 15, 2023, staying discovery in the above-
captioned matter is hereby VACATED, and the parties are hereby ORDERED to
proceed with discovery.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christopher Toland, :
Petitioner :
:
v. : No. 315 M.D. 2018
: Argued: September 11, 2023
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
DISSENTING OPINION FILED: February 14, 2024
BY SENIOR JUDGE LEAVITT
Respectfully, I dissent to the majority’s order requiring the
Pennsylvania Parole Board1 (Parole Board) to comply with most of the discovery
requests of Petitioner, Christopher Toland, and denying the Parole Board’s
suggestion of mootness.
A decision of the Parole Board to deny an inmate’s application for
parole is beyond judicial review except in a very narrow constitutional case.
However, the raising of a constitutional claim does not trigger a right to examine the
contents of an inmate’s parole application file. Because Toland’s discovery requests
relate to the Parole Board’s exercise of discretion on his application for parole, they
are either irrelevant to his constitutional claim or overbroad in scope. Further,
Toland’s challenge to the Parole Board’s denials of parole in 2017, 2018, and 2019
1
Following the filing of the petition for review, the Pennsylvania Board of Probation and Parole
was renamed the Pennsylvania Parole Board. See Sections 15 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).
has been rendered moot by the denial of his parole application in 2022, which he has
not challenged.
It is Toland’s legal theory that the Parole Board applied the current
version of the Prisons and Parole Code (Parole Code),2 and not the version of the
parole statute3 in effect when he committed his criminal offense. In this regard,
Toland contends that the Parole Board has violated his rights under the ex post facto
clause of the United States Constitution.4
It is important to put Toland’s constitutional claim in context. To begin,
“[p]arole is not a right in Pennsylvania, but a matter of grace.” Myers v. Ridge, 712
A.2d 791, 794 (Pa. Cmwlth. 1998). “An ex post facto law is one which is adopted
after the complaining party committed the criminal acts and conflicts [sic] a greater
punishment than the law annexed to the crime, when committed.” Byrd v.
Pennsylvania Board of Probation/Parole, 826 A.2d 65, 67 (Pa. Cmwlth. 2003)
(internal citations omitted). Where an inmate asserts a violation of the ex post facto
clause, he may not use that litigation to second guess the Parole Board’s exercise of
discretion in a denial of parole. Our Supreme Court has explained as follows:
Where [] discretionary actions and criteria are not being
contested but rather the actions of the [Parole B]oard taken
pursuant to changed statutory requirements are being challenged,
an action for mandamus remains viable as a means for examining
whether statutory requirements have been altered in a manner
2
61 Pa. C.S. §§101-7301 (enacted 2009).
3
Commonly known as the Parole Act (former Parole Law), Act of August 6, 1941, P.L. 861, as
amended, formerly 61 P.S. §§331.1-331.34a, repealed by Section 11(b) of the Act of August 11,
2009, P.L. 147.
4
U.S. CONST. art. I, §10, reads, in pertinent part: “No state shall . . . pass any Bill of Attainder, ex
post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
(Emphasis added.)
MHL-2
that violates the ex post facto clause. Such an action could be
brought in the original jurisdiction of the Commonwealth Court.
Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001) (emphasis added).
The 1996 amendments to the Parole Code provided that “the [B]oard
shall first and foremost seek to protect the safety of the public” and “the [B]oard
shall address input by crime victims and assist in the fair administration of justice
by ensuring the custody, control and treatment of paroled offenders.” Former
Section 1 of the Act of August 6, 1941, P.L. 861, amended by the Act of December
18, 1996, P.L. 1098, formerly 61 P.S. §331.1 (emphasis added). Toland asserts that
because the Parole Board’s denial letter referred to the risk to the community, it
improperly used the 1996 amendments to the former Parole Law, not the pre-1996
version.5
In Byrd, this Court explained that safety has always been a factor in
deciding whether to grant parole. We explained that although the “language
concerning ‘protect[ing] the safety of the public’ and ‘assist[ing] in the fair
administration of justice’ was added to [Section 1] in 1996, these concepts are
nothing new to the parole process and have always been underlying concerns.” Byrd,
826 A.2d at 68. Ultimately, we concluded that the 1996 amendments did nothing to
increase punishment, which was consistent with Supreme Court precedent. See, e.g.,
Hall v. Pennsylvania Board of Probation and Parole, 851 A.2d 859 (Pa. 2004).6
Nevertheless, our Supreme Court has somewhat changed course on
whether the 1996 amendments can implicate the ex post facto clause. It has
explained as follows:
5
Section 1 of the 1996 amendments are similar, but not identical, to the provisions of 61 Pa. C.S.
§6102.
6
See also Winklespecht v. Pennsylvania Board of Probation and Parole, 813 A.2d 688 (Pa. 2002),
and Finnegan v. Pennsylvania Board of Probation and Parole, 838 A.2d 684 (Pa. 2003).
MHL-3
[I]t is now clear that retroactive changes in the laws governing
parole may violate the ex post facto clause. [California
Department of Corrections v.] Morales, 514 U.S. [499,] 509
[(1995)] [] (holding that a change in parole law violates the ex
post facto clause if the change in the law created a “sufficient risk
of increasing the measure of punishment attached to the covered
crimes”); Garner[ v. Jones], 529 U.S. [244,] 256 [(2000)] []
(holding that a change in parole rules violates the ex post facto
clause if the amended rule creates a significant risk of prolonging
an inmate’s incarceration). The controlling inquiry in
determining if an ex post facto violation has occurred is whether
retroactive application of the change in the law “creates a
significant risk of prolonging [the petitioner’s] incarceration.”
Garner, 529 U.S. at 251 [] (citing Morales, 514 U.S. at 509[]).
Therefore, under Garner and Morales, the 1996 amendment may
be shown to violate the ex post facto clause if an inmate is able
to demonstrate that the 1996 amendment, as applied to him,
creates a significant risk of prolonging his incarceration.
Cimaszewski v. Board of Probation and Parole, 868 A.2d 416, 426-27 (Pa. 2005).
In other words, an ex post facto claim can be pursued where the inmate can
demonstrate that, in his particular case, the 1996 version of the former Parole Law
created a “significant risk of prolonging his incarceration.” Id.This demonstration by the inmate should require no more than an
examination of the Parole Board’s written denial of the inmate’s application for
parole and comparison to the statute. Cimaszewski did not announce a departure
from the prime directive that a putative parolee’s constitutional claim may not
involve a “contest” to the Parole Board’s “discretionary actions and criteria.”
Coady, 770 A.2d at 290.
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I would deny Toland’s motion to dismiss7 the Parole Board’s objections
to the requests for production of documents and two sets of interrogatories.
“The Board’s decision to grant or deny parole is not a decision in the
ordinary sense, because, when released, a parolee is continuing to serve his or her
sentence.” Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766,
770 (Pa. Cmwlth. 1997). See also Rogers v. Pennsylvania Board of Probation and
Parole, 724 A.2d 319 (Pa. 1999) (parole decisions are not adjudications subject to
appellate review). “Parole is nothing more than a possibility, and, when granted, it
is nothing more than a favor granted upon a prisoner by the state as a matter of grace
and mercy shown by the Commonwealth to a convict who has demonstrated a
probability of his ability to function as a law-abiding citizen in society.” Weaver,
688 A.2d at 770. Because parole is a matter of grace, a prisoner has no
constitutionally protected liberty interest in being released from prison prior to the
expiration of his maximum sentence. Id. The Parole Board has been granted broad
discretion, and it alone determines whether the prisoner is sufficiently rehabilitated
to serve the remainder of his sentence outside the confines of the prison. Reider v.
Pennsylvania Board of Probation and Parole, 514 A.2d 967, 971 (Pa. Cmwlth.
1986). Decisions to deny parole are generally “not appealable except to the extent
that a constitutional or statutory violation has occurred.” Myers, 712 A.2d at 794.
In Toland v. Pennsylvania Board of Probation and Parole, 263 A.3d
1220, 1233 (Pa. Cmwlth. 2021), we allowed Toland to pursue an ex post facto claim
and subsidiary substantive due process claim. Nevertheless, “the only substantive
due process rights afforded to a prisoner denied parole lie in making sure the [Parole]
7
Generally, where a litigant challenges an objection to a discovery request or a failure to file any
timely response, such as a written objection, the litigant files a motion to compel. See generally
Pa.R.Civ.P. 4019.
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Board followed the minimum duties required by the law.” Homa v. Pennsylvania
Board of Probation and Parole, 192 A.3d 329, 334 (Pa. Cmwlth. 2018).
Importantly, mandamus “cannot be used to say that an agency considered improper
factors, that its findings of fact were wrong, or that the reasons set forth in its
decision are a pretense.” McGinley v. Pennsylvania Board of Probation and Parole,
90 A.3d 83, 93 (Pa. Cmwlth. 2014) (quoting Weaver, 688 A.2d at 777).
In his amended petition for review, Toland asserts that the Parole Board
violated due process because the Parole Board considered false criminal history
information, which was allegedly in his file. His principal claim is that the Parole
Board violated the ex post facto clause of the United States Constitution. Toland
seeks a writ of mandamus to compel the Board as follows:
2. Compel the [Parole Board] to produce to this Court the
information, records, and documents the Board relied upon to
state the false information concerning Toland’s criminal record.
3. Order the [Parole] Board to remove the false information
from Toland’s parole file and records.
4. Order the [Parole] Board to forward verification of this
removal and have the Board apply the appropriate adequate
remedy at law since the Board considered false information in
the parole decision making process.
5. Order the [Parole] Board to prepare revised reports,
evaluations, and assessments on Toland since false information
was used and relied upon to create the current reports,
evaluations, and assessments being used in this case.
6. Order the [Parole] Board to immediately interview Toland
for parole using the statutes, procedures, guidelines and
discretion of the [former Parole Law].
Amended Petition for Review/Mandamus at 20-21.
To that end, Toland has served a request for production of documents
and two sets of interrogatories upon the Parole Board. He seeks documents as
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follows: a list of the Parole Board members, Hearing Examiners, and employees
that acted in any parole interview or assessment concerning Toland in the last 3
parole denials; all documents related to assessments made by the Sexual Offenders
Assessment Board between 1996-1999; the Parole Decisional Instrument forms
completed for his 14 parole interviews; the Level of Service Inventory-Revised
assessments completed for his 14 parole interviews; the Static 99 assessments
completed for his 14 parole interviews; the Integrated Case Summary forms
prepared for his 14 parole interviews; all Department of Corrections vote sheets; the
8 psychological reports the Department of Corrections provided to the Parole Board;
any reports, evaluations, or assessments indicating Toland is a risk to the
community; and any court, police, criminal records, and pre-sentence reports
prepared by Philadelphia County that were provided to the Parole Board. Toland
Motion to Dismiss Board’s Objections to Discovery Requests, Appendix A.
Toland’s first set of interrogatories seeks information about Toland’s
risk of reoffending; whether Toland has taken responsibility for his criminal
behavior; whether the Parole Board routinely denies parole to inmates and instructs
them to meet the same goals each year; the amount of setback time before an inmate
is scheduled for another parole interview; what changed to give Toland a 6-year
setback; whether Toland received any positive votes in favor of parole; whether the
Department of Corrections is a better judge of character than the Parole Board; the
best indicator of risk to reoffend; whether 25 years in prison is sufficient to show an
inmate is stable; and to identify all other inmates that have completed all
programming, had no misconduct, and earned the Department of Corrections’
support for parole but still were denied parole 14 times. See Toland Motion to
Dismiss Board’s Objections to Discovery Requests, Exhibit B.
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Toland’s second set of interrogatories seeks information on the factors
the Parole Board considers when reviewing an inmate for parole; whether a guilty
plea equates to taking responsibility for the offense; the Parole Board’s knowledge
of any criminal activity involving Toland occurring on January 29-30, 1993; what
in the psychological evaluations causes the Parole Board to believe an inmate is
unstable; whether any treatment profiles cause concern; the Parole Board’s
understanding of the pre-1996 and post-1996 parole practices; and what factors are
more determinative of an inmate’s success on parole than behavior and attitude in
prison. See Toland Motion to Dismiss Board’s Objections to Discovery Requests,
Appendix C.
The Parole Board objects to Toland’s discovery requests as neither
reasonable nor reasonably tailored as to lead to the production of relevant
information related to this case.8 Board Brief at 4, 7, 9-12, 16. It explains that
“mandamus may only be used in the context of a parole refusal ‘to require the Board
to follow appropriate procedures and apply the law properly in deciding whether to
grant or refuse parole.’” Id. at 4 (quoting Weaver, 688 A.2d at 766). It further
explains that because prior parole refusal decisions are mooted by a later decision,
“the only decision that this Court can review as to whether or not the Board’s
decision-making was constitutional or in conformity with the Parole [Code]” is the
most recent decision. Board Brief at 5. Accordingly, “only documents related to
8
The Pennsylvania Rules of Civil Procedure expressly authorize a party to object to interrogatories
and requests for production of documents on numerous grounds, including relevance. See
Pa.R.Civ.P. 4006, 4009.12. The Parole Board advances several other objections, including its
confidentiality regulation, 37 Pa. Code §61.2, and Pennsylvania’s Criminal History Record
Information Act, 18 Pa. C.S. §§9101-9183.
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the most recent parole review decision issued on October 22, 2019[,] would be
relevant.” Id. at 6-7.
Discovery disputes “require courts to consider whether the information
sought is relevant, reasonable, and not privileged.” Koken v. One Beacon Insurance
Company, 911 A.2d 1021, 1025 (Pa. Cmwlth. 2006). Our Court has explained:
Relevancy depends upon the nature and the facts of the
individual case, and any doubts are to be resolved in favor of
relevancy. 6 STND. PA. PRAC. §34:23. The party seeking
discovery need not justify complete relevance in advance. 6
STND. PA. PRAC. §34:24. . . . However, if there is nothing in the
record from which relevancy can be ascertained, this Court may
place the burden of establishing relevancy upon the requesting
party. Id.
Koken, 911 A.2d at 1025 (emphasis added). Further, discovery requests must be
reasonable, which is “‘to be adjudged on the facts and circumstances of each case.’”
Id. (quoting 6 STND. PA. PRAC. §34:32). Broad requests in the nature of a “fishing
expedition” can be restrained by the court. Koken, 911 A.2d at 1025 (quoting 6
STND. PA. PRAC. §34:28).
None of Toland’s document requests, with the possible exception of his
criminal records, are relevant to his substantive due process claim that the Parole
Board considered a false criminal history in its parole denials of 2017, 2018, and
2019.9 As for his ex post facto claim, Toland must show that under the former Parole
Law, he would have been paroled. See Cimaszewski, 868 A.2d at 428. None of
Toland’s document requests advance that claim. I would deny Toland’s motion to
dismiss the Parole Board’s objections to the requests for production of documents,
9
This Court has determined that “if [Toland] is able to show that the pre-1996 standards should
apply, then this Court’s analysis as to whether the [Parole] Board is ignoring statutory mandates
such that it is denying [Toland] due process of law is necessarily affected.” Toland, 263 A.3d at
1240.
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and limit document production to the criminal records the Parole Board reviewed
prior to Toland’s parole interviews in 2017, 2018, and 2019.
Likewise, Toland’s interrogatories strike at the heart of the Parole
Board’s exercise of discretion in weighing the factors relevant to the grant of parole.
He seeks to learn how the Parole Board evaluates an inmate’s likelihood of success
on parole; how psychological evaluations play into the grant of parole; and whether
the Department of Corrections is a better judge of character than the Parole Board.
This information is not relevant to Toland’s constitutional claim, which can be
decided solely on review of the statute and the Parole Board’s written explanation
for its decision. I would deny Toland’s motion to dismiss the Parole Board’s
objections to the first and second sets of interrogatories.
The majority posits that the dissent has raised a relevance objection
“sua sponte,” but the record establishes otherwise. Toland v. Pennsylvania Board
of Probation and Parole, __ A.3d __ (Pa. Cmwlth., No. 315 M.D. 2018, filed
February 14, 2024), slip op. at 43. In its response to Toland’s motion to dismiss the
Parole Board’s objections to his discovery requests, the Board stated that the
information Toland sought was not reasonably calculated to lead to the discovery of
admissible evidence, because it did not relate to Toland’s recent parole denial
decision. Rather, Toland sought information about the denials of 2017 and 2018.
See Board Answer ¶¶1, 3-7, 21-28, 30-35. In its brief, the Parole Board also
challenged the relevancy of the discovery requests. Board Brief at 4, 7, 9-12, 16.
The Parole Board was not required to elaborate on its relevance objection in
responding to each objection. It explained its relevance objection at the beginning
of its brief and incorporated that argument into its other responses. Board Brief at 7
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(“As stated previously, only documents to the most recent parole review decision
. . . would be relevant.”).
This leaves the mootness question. Toland’s amended petition for
review challenges his parole denials in 2017, 2018, and 2019. The Parole Board
contends those decisions are now moot because it subsequently reviewed and denied
Toland parole in 2022.10 Toland has not challenged that decision, which is the only
one relevant to his current incarceration.11
To support its suggestion of mootness, the Parole Board provided a
declaration of the Parole Board Secretary, Deborah Carpenter, that the Board used
the former Parole Law guidelines in its most recent (2022) parole decision on
Toland’s application for parole. Toland has neither challenged the 2022 parole
10
This mootness analysis was followed by the United States District Court in Toland v. McVey,
No. 1:CV-08-0487, 2011 WL 1225557 (M.D. Pa. March 31, 2011). There, Toland filed a civil
rights action to challenge the Parole Board’s 2009 decision denying him parole as violating the ex
post facto clause and due process clause. Toland sought injunctive relief in the form of a new
parole consideration. While this action was pending, the Parole Board reviewed Toland for parole
and on December 10, 2010, issued a decision denying parole. The District Court dismissed
Toland’s civil rights action because Toland had received a new parole consideration by the Parole
Board. Accordingly, the District Court concluded that Toland’s “request for injunctive relief as
contained in the . . . complaint is now moot.” Id. at *2 (emphasis added).
11
The majority posits that Toland could have reasonably concluded that it was premature to seek
leave to file a Second Amended Petition to address the 2022 denial of parole because the Court
scheduled argument on the Board’s suggestion of mootness together with the argument on
Toland’s motion. Respectfully, there is no way to know why Toland has not challenged the Parole
Board’s 2022 decision.
The Parole Board denied Toland parole on November 15, 2022, when Toland’s motion to
dismiss the Board’s responses to his discovery request was pending. The Board did not file its
suggestion of mootness until March 6, 2023. On April 25, 2023, this Court denied the Parole
Board’s application for a stay of all proceedings pending a determination on its suggestion of
mootness. Accordingly, Toland was free to challenge the 2022 denial of his parole in a new action
or in an amendment to his pending action. He did neither. Notably, the statute of limitations for
a mandamus action is six months. 42 Pa. C.S. §5522(b).
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decision nor contested the Parole Board’s statement that the pre-1996 Parole Code
standards were used to arrive at its decision to deny him parole in 2022.
Toland appears to have been granted the relief he seeks in his challenge
to the Parole Board’s decisions of 2017, 2018, and 2019, i.e., a new parole interview.
In 2022, Toland’s parole was considered on the basis of the statutory standards he
believes are appropriate, given his conviction prior to 1996. There is nothing to be
accomplished by revisiting the Parole Board’s 2017-2019 parole decisions because,
in 2022, he was given a review “using the statutes, procedures, guidelines and
discretion” of the former Parole Law.12 Amended Petition for Review at 21, ¶6. I
would grant the Parole Board’s suggestion of mootness.13
12
In Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009), a
parolee challenged the revocation of his parole and the recalculation of his maximum parole date
in a January 31, 2008, decision. On April 14, 2008, the Board issued a second decision, but the
parolee did not appeal that decision. Nevertheless, this Court held the new decision did not moot
the inmate’s appeal. In a dissent, Judge McGinley wrote as follows:
[Hughes] never appealed the April 14, 2008, recalculation order. Once the new
calculation of the maximum date was announced by the Board, this new calculation
rendered Hughes’s challenge to the January 31, 2008, recalculation order moot
. . . . I would grant the petition to withdraw and affirm on the merits.
Hughes, 977 A.2d at 27-28 (McGinley, J., dissenting, joined by Leadbetter and Leavitt, JJ.)
(internal citation omitted) (emphasis added).
I stand by the Hughes dissent. A new parole decision by the Parole Board renders any
prior decision moot, whether a decision to deny parole or to revoke parole. Unlike a parole
revocation, the Parole Board’s decision to deny parole is generally not subject to judicial review.
Accordingly, the logic of the Hughes dissent carries greater weight here.
13
The majority concludes that, even assuming this case is moot, it is capable of repetition yet
evading review and, thus, an exception to mootness exists. “‘[I]t is only in very rare cases where
exceptional circumstances exist or where matters or questions of great public importance are
involved, that this [C]ourt ever decides moot questions or erects guideposts for future conduct or
actions.’” Brouillette v. Wolf, 213 A.3d 341, 368 (Pa. Cmwlth. 2019) (quoting Wortex Mills v.
Textile Workers Union of America, C.I.O., 85 A.2d 851, 857 (Pa. 1952)). For constitutional claims
to fall within the exception to the mootness doctrine, a petitioner must demonstrate: “‘(1) the
challenged action was in its duration too short to be fully litigated prior to its cessation or
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The ability to pursue an ex post facto challenge to a decision of the
Parole Board is a narrow exception to Pennsylvania’s long-standing jurisprudential
rule that an inmate may not appeal the Parole Board’s denial of parole. Toland seeks
what cannot be granted: a review of the Parole Board’s exercise of discretion in
denying his requests for parole in 2017, 2018, and 2019. I would deny Toland’s
motion to dismiss and sustain the Parole Board’s suggestion of mootness.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
expiration; and (2) there [i]s a reasonable expectation that the same complaining party w[ill] be
subjected to the same action again.’” Brouillette, 213 A.3d at 368 (quoting Mistich v. Pennsylvania
Board of Probation and Parole, 863 A.2d 116, 121 n.6 (Pa. Cmwlth. 2004)). Toland filed his
initial petition for review over 12 years after he was denied parole in March 2004, and nearly 9
months after he was denied parole in August 2017. Toland did not file the instant amended petition
until nearly two years after he was denied parole in December 2018, and nearly a year after he was
denied parole in October 2019. Toland has never sought to expedite the consideration of this
matter throughout its pendency, while the intervening passage of time and subsequent parole
decisions have mooted his claims. Under these circumstances, the rarely invoked exception to the
mootness doctrine should not be invoked. See generally Brouillette, 213 A.3d at 368-69 (exception
to mootness doctrine did not apply to claim about the general appropriations bill for fiscal years
2016-2017 and 2017-2018, which was moot due the expiration of the relevant fiscal years; the
subsequent enactment of remedial legislation; and the subsequent enactment of the general
appropriations bill for fiscal year 2017-2018).
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