D. Dieffenbach v. PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Daniel Dieffenbach, :
Petitioner :
:
v. : No. 233 M.D. 2023
:
Pennsylvania Board of Probation :
and Parole, :
Respondent : Submitted: March 8, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MATTHEW S. WOLF, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOLF FILED: July 18, 2024
On May 12, 2023, Daniel Dieffenbach (Petitioner) filed a dual jurisdiction
Petition for Review,1 seeking to challenge a condition of his parole imposed by the
Pennsylvania Parole Board (Board).2 The Board responded by filing a single
document that contains “Preliminary Objections in the Nature of a Demurrer”
(Preliminary Objections) and a “Motion to Quash and Stay Briefing Schedule”3
1
The Commonwealth Court has original jurisdiction over all civil actions against the
Commonwealth. 42 Pa.C.S. § 761(a)(1). The Court also has jurisdiction over appeals from final
orders of government agencies. 42 Pa.C.S. § 763. In this case, Petitioner seeks relief in both this
Court’s original and appellate jurisdictions.
2
Effective February 18, 2020, 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; see also Sections 6101 and 6111(a) of the Prisons and Parole Code,
61 Pa.C.S. §§ 6101, 6111(a).
3
Despite its title, the Board’s “Motion to Quash and Stay Briefing Schedule” sought, inter
alia, to stay the Board’s obligation to transmit the certified record. On June 27, 2023, the Board
(Footnote continued on next page…)
(Motion to Quash). The Preliminary Objections and Motion to Quash are now
before this Court for disposition.
BACKGROUND
The Petition for Review avers the following. Petitioner is an adult individual
who resides in Factoryville, Pennsylvania. Petition for Review (PFR), ¶ 1. On
October 17, 2018, following a jury trial, Petitioner was found guilty in the Court of
Common Pleas of Luzerne County (trial court) of the following: (1) one count of
burglary; (2) one count of simple assault; (3) one count of recklessly endangering
another person; and (4) one count of resisting arrest. PFR, ¶ 5. Petitioner’s total
sentence was 2 to 10 years’ incarceration plus 5 years’ probation. PFR, ¶ 6.
Petitioner was committed to a state correctional institution and was paroled on June
24, 2022. PFR, ¶ 8.
The Board’s May 9, 2022, Notice of Board Decision contained several
conditions of Petitioner’s parole including, inter alia, “YOU SHALL NOT
TRAVEL OR RESIDE IN LUZERNE COUNTY FOR ANY REASON—
MANDATORY” (Parole Condition). PFR, ¶ 9; PFR Exhibit B at 2. Petitioner
alleges that he attempted to remove the Parole Condition and that the Board denied
his request on April 14, 2023.4 PFR, ¶ 10; PFR Exhibit A at 1.
filed a second motion titled “Application for Extension of Time to File Certified Record,” which
reiterated its request to stay transmission of the certified record pending disposition of the
Preliminary Objections and Motion to Quash. By order dated June 29, 2023, this Court granted
the Board’s request to stay certification of the record. Because we quash the appellate portion of
Petitioner’s dual jurisdiction Petition for Review, the Board has no obligation to transmit a certified
record.
4
Paragraph 10 of the Petition for Review appears to contain a typographical error as
Petitioner states that the Board denied his request to remove the Parole Condition on April 13,
2022.
2
Petitioner asserts that the Parole Condition is unduly burdensome to him.
PFR, ¶21. He notes that he has owned a restaurant in Luzerne County since 1994
and also owns rental properties in the County. These constitute his only source of
income. PFR, ¶¶ 12-15. Petitioner further avers that his health insurance limits
where he can seek medical treatment and his primary care physician, dentist, and
chiropractor are all located in Luzerne County. PFR, ¶¶ 16-18. Finally, Petitioner’s
adult children live in the County. PFR, ¶ 20. Petitioner maintains that the Parole
Condition is not rationally related to the offenses for which he was convicted, his
rehabilitation, or the protection of society. PFR, ¶ 22. Petitioner asserts the Parole
Condition is “unconstitutional under both the Federal and Pennsylvania
Constitutions as it unduly infringe[s] upon Petitioner’s rights to travel, property, and
due process without just cause.” PFR, ¶ 23. Petitioner asks this Court to overturn
the Board’s decision and strike the Parole Condition “and/or issue a writ of
mandamus requiring the Board to do the same.” PFR, Wherefore Clause.
PRELIMINARY OBJECTIONS/MOTION TO QUASH
Although the Board indicates that its Preliminary Objections are in the nature
of a demurrer, that is not the case. A demurrer challenges the legal sufficiency of a
pleading. See Pa.R.Civ.P. 1028(a)(4). Here, the Board’s Preliminary Objections are
both brought pursuant to Pa.R.Civ.P. 1028(a)(1) which provides:
(a) Preliminary objections may be filed by any party to any
pleading and are limited to the following grounds:
(1) lack of jurisdiction over the subject matter of the action
or the person of the defendant, improper venue or
improper form or service of a writ of summons or a
complaint[.]
3
The Board’s first Preliminary Objection challenges the form of service used
for the Petition for Review. The Board avers that service was improper because
neither the Board, nor the Attorney General, were served in person or by certified
mail as required by Pa.R.A.P. 1514(c).5 Rather, the Petition for Review appears to
have been served via first class mail and eService.
In his “Response to Preliminary Objections in the Nature of a Demurrer”
(Response to Preliminary Objections), Petitioner argues that service of the Petition
for Review has now been accomplished via certified mail. Exhibit A to the Response
to Preliminary Objections shows two United States Postal Service (U.S. Postal
Service) Form 3811 Domestic Return Receipts (informally known as a “green cards”
or “green slips”) addressed to the Attorney General and the Board respectively.
Based on the green cards’ tracking numbers, the U.S. Postal Service website reflects
that Petitioner’s Petition for Review was delivered to the Attorney General’s Post
Office Box on July 5, 2023,6 and to the Board’s Post Office Box on July 7, 2023.7
To the extent the Board’s Reply Brief asserts that service of the Petition for Review
was not yet perfected, it is apparent that the Petition for Review was delivered to the
5
Pa.R.A.P. 1514(c) states in pertinent part:
(c) Service.--A copy of the petition for review shall be
served by the petitioner in person or by certified mail on both the
government unit that made the determination sought to be reviewed
and the Attorney General of Pennsylvania. Where there is more than
one respondent, the petitioner shall separately serve each one.
6
See U.S. Postal Service Tracking, No. 70223330000134832690,
https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=4&text28777=&tLabels=70
223330000134832690%2C%2C%2C&tABt=false (last visited July 17, 2024).
7
See U.S. Postal Service Tracking, No. 70223330000134832706,
https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=5&text28777=&tLabels=70
223330000134832706%2C%2C%2C%2C&tABt=false# (last visited July 17, 2024).
4
Board two days after its Reply Brief was filed. Under the circumstances presented,
we believe service of the Petition for Review has been perfected. Accordingly, the
Board’s first Preliminary Objection is overruled.
The Board’s second Preliminary Objection purports to challenge this Court’s
jurisdiction to hear the appellate portion of Petitioner’s case. Importantly,
preliminary objections may not be used to challenge this Court’s jurisdiction in an
appellate context. See Pa.R.A.P. 1516(b) (“[w]here an action is commenced by
filing a petition for review addressed to the appellate court’s original jurisdiction,
the pleadings are limited to a petition for review, . . . preliminary objections, and
answers thereto.”) (emphasis supplied). Under the circumstances, we will treat the
Board’s second Preliminary Objection as part of the Board’s Motion to Quash.8
Regardless of how the issue was raised, the essence of the Board’s argument
is that this Court lacks appellate jurisdiction over Petitioner’s case because the
Board’s April 14, 2023, correspondence denying Petitioner’s request to remove the
Parole Condition was not an appealable adjudication. In support, the Board cites the
case of Rogers v. Pennsylvania Board of Probation and Parole, 724 A.2d 319 (Pa.
1999) (Rogers).
Article V, section 9 of the Pennsylvania Constitution of 1968 provides for a
right of appeal from an administrative agency to a court of record. PA. CONST. art.
V, § 9. “However, this provision does not apply to agency actions that are not
‘adjudications’ or decisions that are not judicial in nature.” Wheeler v. Pa. Bd. of
Prob. and Parole, 862 A.2d 127, 129 (Pa. Cmwlth. 2004) (citing McVickar v. Dep’t
8
Indeed, the Board incorporated its second Preliminary Objection challenging this Court’s
appellate jurisdiction into the Motion to Quash portion of the filing.
5
of Transp., 388 A.2d 775, 776 (Pa. Cmwlth. 1978)). Section 101 of the
Administrative Agency Law9 defines an adjudication as follows:
Any final order, decree, decision, determination or ruling
by an agency affecting personal or property rights,
privileges, immunities, duties, liabilities or obligations of
any or all of the parties to the proceeding in which the
adjudication is made. The term does not include any order
based upon a proceeding before a court or which involves
the seizure or forfeiture of property, paroles, pardons or
releases from mental institutions.
2 Pa.C.S.§ 101 (emphasis supplied).
In Rogers, our Supreme Court held that when the Board exercises its parole
powers, it is not an adjudicatory action. The Rogers Court stated:
[T]he definition of adjudication clearly and
unambiguously provides that parole decisions are not ones
which are subject to appellate review by the courts.
Therefore, because the General Assembly, in its wisdom,
has conferred upon the [] Board sole discretion to
determine whether a prisoner is sufficiently rehabilitated
to serve the remainder of his sentence outside of the
confines of prison, we hold that the courts of the
Commonwealth do not have statutory jurisdiction to
conduct appellate review of a decision of the Board, since
such a decision does not constitute an adjudication.
Rogers, 724 A.2d at 322.
In Wheeler, this Court faced a situation very similar to the one presently before
us. In that case, Stanley Wheeler (Wheeler) petitioned for review of a letter written
by the District Director of the Williamsport District Office of the Board, denying his
request to revoke a special parole condition that he “not contact or associate with
[Wheeler’s wife] except as permitted, in writing, by parole agent-Mandatory.”
9
2 Pa.C.S. §§ 501-508, 701-704.
6
Wheeler, 862 A.2d at 129. In response, the Board filed a “Motion to Dismiss for
Want of Jurisdiction in the Unified Judicial System.” Id. Therein, the Board asserted
that the letter was not an adjudication and therefore could not be appealed. Citing
Rogers, the Court granted the motion to dismiss. The Court reasoned, “when the
Board imposes a condition of parole, which is really a ‘lesser included power’ within
the general power to grant parole, its action cannot be deemed an ‘adjudication’ for
purposes of appellate review.” Id. at 130.
Our Supreme Court’s decision in Rogers and this Court’s holding in Wheeler
dictate the same result here. The Board, in granting Petitioner parole, imposed the
Parole Condition that he not travel or reside in Luzerne County. Per Wheeler, the
Board’s imposition of the condition was an action taken within its general powers to
grant parole. Because parole decisions/conditions are not adjudications or subject
to review by this Court, we grant the Board’s Motion to Quash the appellate portion
of this dual jurisdiction matter.
CONCLUSION
Because Petitioner has cured the defective service of his dual
jurisdiction Petition for Review, the Board’s Preliminary Objection alleging
improper service is overruled. With regard to the appellate portion of Petitioner’s
action, it is apparent that the Board’s April 14, 2023 correspondence denying
Petitioner’s request to remove the Parole Condition is not an appealable
adjudication. Accordingly, the Board’s Motion to Quash the appellate portion of
this action is granted.
__________________________________
MATTHEW S. WOLF, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Daniel Dieffenbach, :
Petitioner :
:
v. : No. 233 M.D. 2023
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 18th day of July, 2024, the Pennsylvania Parole
Board’s (Board) Preliminary Objection to Daniel Dieffenbach’s (Petitioner) dual
jurisdiction Petition for Review asserting improper service is OVERRULED. The
Board shall respond to the original jurisdiction portion of the Petition for Review
within 30 days of the exit date of this Order.
The Board’s Motion to Quash the appellate portion of Petitioner’s dual
jurisdiction Petition for Review is GRANTED.
__________________________________
MATTHEW S. WOLF, Judge