        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wesley Urch,                              :
                          Petitioner      :
                                          :
             v.                           :   No. 138 M.D. 2017
                                          :   Submitted: February 22, 2019
Commonwealth of Pennsylvania,             :
Department of Corrections,                :
Secretary John E. Wetzel,                 :
SCI-Forest Superintendent                 :
Michael D. Overmyer, and All              :
Records Department of Corrections         :
Supervisors, and Attorney General,        :
                         Respondents      :

BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                          FILED: August 13, 2019

             Before us in our original jurisdiction is Wesley Urch’s (Urch) motion for
judgment on the pleadings seeking proper calculation of his sentences from various
Department of Corrections’ staff and its Secretary (collectively, DOC) and the
Attorney General. Urch, an inmate at the State Correctional Institution at Forest,
representing himself, claims DOC’s implementation of three orders corresponding to
his original sentence in 1991 results in excessive confinement. This Court previously
overruled DOC’s demurrer to this claim, in part based on the patent discrepancy
between the language of the relevant sentencing orders and DOC’s recitation of those
orders in its submissions. Urch v. Dep’t of Corr. (Pa. Cmwlth., No. 138 M.D. 2017,
filed Feb. 16, 2018), 2018 WL 911024 (unreported) (Urch I).
              Based on the pleadings, we grant Urch’s motion in part, and require
DOC to recalculate his sentences in accordance with his 1991 sentencing orders.
However, we are unable to discern the impact of DOC’s error on the total period of
confinement on the current record. Therefore, we direct DOC to file a statement
explaining the effect of its recalculation on Urch’s current sentence.


                                       I. Background
              Based on our disposition of the preliminary objections, only Urch’s
claim as to DOC’s alleged improper implementation of his 1991 sentence remains.1


                               A. 1991 Sentencing Orders
              The pleadings, including attachments, establish the following. In 1991,
Urch began his confinement under three sentencing orders signed by Judge Stephanie
Domitrovich of the Erie County Court of Common Pleas (sentencing court). The
orders correspond to three separate dockets, No. 1111, No. 1112, and No. 1168 of
1991, containing sentences of varied lengths, both concurrent and consecutive, with
different start dates, with his first sentence starting on April 5, 1991 (Original Sentence).
The first order (Dkt. No. 1111) is comprised of 24 counts, some of which merged,
imposing overlapping concurrent sentences and four consecutive sentences (First
Order). The second order (Dkt. No. 1112) is comprised of one concurrent sentence
of 1½ to 3 years (Second Order). The third order (Dkt. No. 1168) is comprised of 10
counts, most of which merged, containing one concurrent sentence that overlaps
with the sentence in the Second Order, and two consecutive sentences (Third Order).
All six of the consecutive sentences impose 2 to 4 year terms.

       1
         Our prior opinion sustained DOC’s demurrer to Urch’s claim that DOC improperly
aggregated his 1999 sentence, related to driving under the influence, with his original sentence.

                                               2
             The First Order, the Second Order and the Third Order (collectively, 1991
Sentencing Orders), reflect a complex sentence structure whereby sentences of varied
lengths and types have different start and end dates. Each of the consecutive sentences,
(Counts 7, 10, 18 and 22 of the First Order, and Counts 3 and 7 of the Third Order)
began on a different date. Thus, although the Original Sentence began on April 5, 1991,
in the First Order, the start dates of the consecutive sentences were the end dates of the
concurrent sentences. That is, the 2 to 4 year consecutive sentence in Count 7 started
on February 5, 1992, whereas the other consecutive sentences started as follows: Count
10 on August 5, 1992; Count 18 on June 5, 1993; and Count 22 on April 5, 1994.


             By its plain language, the Second Order adds no additional time to Urch’s
sentence and does not affect aggregation because it is a concurrent sentence. Thus, the
first consecutive sentence in the Third Order refers back to both the Second Order and
Count 22 of the First Order, both of which started on April 5, 1994.


             Aside from adding to the complexity, as a result of the different start dates,
the concurrent sentences in the Third Order begin to run on April 5, 1994. As a result,
Count 3 starts on October 5, 1995, and Count 7 starts on October 5, 1997. Under the
1991 Sentencing Orders, the maximum sentence date was October 5, 2001.


             The sentencing court did not modify the 1991 Sentencing Orders, and
the pleadings reflect no interpretation of the 1991 Sentencing Orders by the
sentencing court. Also, Court Commitment Form DC-300B appears consistent with
the 1991 Sentencing Orders. See Am. Pet., Ex. A.




                                            3
                                  B. Procedural History
              As we directed in our order in Urch I, DOC filed an answer. Although
invited to append relevant documents showing its calculation of Urch’s 1991
sentence, and its aggregation of the 1991 Sentencing Orders to its answer, DOC
declined to do so.


              In its answer, DOC generally denied or advised it was unable to answer
the majority of the factual averments. Specifically, DOC responded as follows to
the majority of the allegations: “After reasonable investigation, [DOC] [is] without
information sufficient to form a belief as to the veracity of the averments made in
this paragraph. The remaining averments are therefore denied.” DOC Answer, ¶¶3,
4, 10, 11, 12; Answer to Suppl., ¶¶2, 4. In addition, regarding the documents Urch
appended to his amended petition, DOC stated “the documentary exhibits referenced
in this paragraph are written materials which speak for themselves, and require no
characterization or interpretation by [DOC].” Id., ¶¶10, 11, 12.


              In DOC’s new matter, discrepancies are apparent. DOC alleged Urch
was first committed to DOC in 1992 when sentenced to 20 to 40 years of incarceration
for aggravated assault with serious bodily injury. DOC New Matter, ¶2. However,
DOC also stated that prior to his current term, Urch was incarcerated between January
2, 1992 and July 16, 2017, for the crime of burglary.2 Id., ¶3. The Pennsylvania Board
of Probation and Parole recalculated his maximum sentence date following a parole
violation, id., ¶4; however, DOC did not specify when that occurred.

       2
         The 1991 Sentencing Orders pertain to burglary, simple assault, criminal conspiracy and
criminal attempt, and, consistent with this allegation, his 1991 sentence ended in 2017. However,
the aggravated assault sentence relates to Urch’s current term, so the reference to 1992 in DOC’s
New Matter, ¶2, appears to be in error.

                                               4
               Although DOC endorsed its new matter with a notice to plead, Urch did
not file a reply to the new matter.             Rather, Urch filed a “written response”
complaining about the non-responsive nature of DOC’s answer.3 He also questioned
the relevance of the new matter when his remaining claim challenges the
implementation of his sentences based on the 1991 Sentencing Orders, whereas
DOC focused exclusively on the 2007 sentence. Urch filed his motion for judgment
on the pleadings on August 17, 2018. DOC responded stating there are disputes of
fact. DOC did not file a cross-motion.


                                         II. Discussion
               Here, DOC requests only the denial of Urch’s motion for judgment on
the pleadings, advising that there are a number of disputes of fact. See, e.g.,
Sweeting v. Dep’t of Corr. (Pa. Cmwlth., No. 21 M.D. 2013, filed June 24, 2015),
2015 WL 5446423 (unreported). However, DOC did not identify any disputes.


                                     A. Legal Standards
                       1. Motion for Judgment on the Pleadings
               A motion for judgment on the pleadings filed in this Court’s original
jurisdiction is governed by Pa. R.C.P. No. 1034. Fox v. Pocono Springs Civic Ass’n,
Inc., 695 A.2d 484 (Pa. Cmwlth. 1997). Rule 1034 provides that upon the close of
the pleadings, any party may move for judgment in its favor. Id. When deciding the
motion, we may consider only the pleadings themselves and any documents properly
attached thereto. Newberry Twp. v. Stambaugh, 874 A.2d 734 (Pa. Cmwlth. 2005).

       3
         This Court struck Urch’s two purported responses to DOC’s new matter as unauthorized.
Primarily, Urch expressed frustration that DOC did not explain its calculation of his 1991 sentence,
and instead raised allegations regarding his 2007 sentence without addressing how its improper
implementation of his now-fully served 1991 sentence relates to his total confinement.

                                                 5
             In “[a] motion for judgment on the pleadings addressed to [our] original
jurisdiction … we must consider as true the non-moving party’s allegations of fact.”
Miles v. Dep’t of Corr. (Pa. Cmwlth., No. 157 M.D. 2010, filed Aug.14, 2012), slip
op. at 4 n.4, 2012 WL 8667592, at *2 n.4 (unreported) (citation omitted). “A motion
for judgment on the pleadings should be granted only where the pleadings
demonstrate that no genuine issue of fact exists and the moving party is entitled to
judgment as a matter of law.” Sturgis v. Doe, 26 A.3d 1221, 1223 (Pa. Cmwlth. 2011)
(citation omitted); see Bernardini v. Dep’t of Corr. (Pa. Cmwlth., No. 650 M.D. 2016,
filed Sept. 1, 2017), 2017 WL 3798537 (unreported).


             Pursuant to Pa. R.C.P. No. 1017, the pleadings consist of the complaint
and answer, a reply to new matter, preliminary objections, and the response thereto.
See Pfister v. City of Phila., 963 A.2d 593 (Pa. Cmwlth. 2009). Relevant here,
preliminary objections are included within Rule 1017(a)(4) as “pleadings.” Id. at 597.


             An answer is required to “admit or deny each averment of fact.” Pa.
R.C.P. No. 1029(a). Rule 1029(b) provides in pertinent part: “A general denial or
demand for proof ... shall have the effect of admission.” Pa. R.C.P. No. 1029(b).
General denials have the effect of admissions for purposes of a motion for judgment
on the pleadings. City of Phila. v. Kenny, 369 A.2d 1343 (Pa. Cmwlth. 1977). This
Court may consider documents appended to the petition for review when evaluating
a motion for judgment on the pleadings, including sentencing orders, the official Court
Commitment Form DC-300B, and sentencing status sheets. See, e.g., Everett v.
Varner (Pa. Cmwlth., No. 74 M.D. 2009, filed Sept. 19, 2011), 2011 WL 10819573
(unreported); see also Bergdoll v. Kane, 694 A.2d 1155 (Pa. Cmwlth. 1997).



                                          6
             A motion for judgment on the pleadings may be appropriate to resolve
alleged improper calculation of sentence claims. See, e.g., Havens v. Dep’t of Corr.
(Pa. Cmwlth., No. 84 M.D. 2013, filed Aug. 26, 2016), 2016 WL 4506137
(unreported) (assessing DOC’s calculation of sentence on dispositive motions); see
also Doria v. Dep’t of Corr., 630 A.2d 980 (Pa. Cmwlth. 1993).


             In the instant case, the pleadings are closed. Although not all of the
material facts are clear from the pleadings, DOC has not responded to or specifically
denied the miscalculation that is the essence of Urch’s mandamus claim. As such,
DOC’s general denials are deemed admissions for purposes of this motion.


                                    2. Mandamus
             A writ of mandamus is an extraordinary remedy that compels an
official’s performance of a ministerial act or mandatory duty, as opposed to a
discretionary one. Sturgis (inmate challenged sentence start date, which affected
overall calculation). Mandamus relief is available only where there exists a clear legal
right in the petitioner, a corresponding duty in the respondent, and want of any other
adequate and appropriate remedy. Stodghill v. Pa. Bd. of Prob. & Parole, 123 A.3d
798 (Pa. Cmwlth. 2015); Allen v. Dep’t of Corr., 103 A.3d 365 (Pa. Cmwlth. 2014).


             DOC has a mandatory duty to “faithfully implemen[t] sentences imposed
by the courts,” and to properly compute an inmate’s sentence. Comrie v. Dep’t of
Corr., 142 A.3d 995, 1001 (Pa. Cmwlth. 2016). Where DOC’s computation does not
comply with a sentencing order, mandamus offers an appropriate remedy. Id.
Mandamus also offers relief when there is alleged improper aggregation of sentences.



                                           7
             DOC “is an administrative agency charged with faithfully carrying-out
sentences imposed by the courts, and is without authority ‘to adjudicate the legality
of a sentence or to add or delete sentencing conditions.’” Powell v. Dep’t of Corr.,
14 A.3d 912, 915 (Pa. Cmwlth. 2011) (citation omitted). DOC has a mandatory duty
to implement the sentence imposed by the court in accordance with its terms. Comrie.


                                    B. Analysis
             Applying the legal standards above, we consider whether the pleadings
contain sufficient undisputed facts to afford Urch mandamus relief.


                          1. Judgment on the Pleadings
             Despite this Court’s order directing DOC to answer the allegations, and
our encouragement to append relevant documentation regarding its implementation
and aggregation of the 1991 Sentencing Orders, DOC did not file a substantive
answer explaining its implementation. Instead, DOC’s answer consisted of general
denials that offer no insight into its calculation and aggregation of the 1991
Sentencing Orders and the effect of that on his overall confinement period.


                              a. DOC’s Admissions
             DOC’s general denials of matters that should have been within its
knowledge after reasonable investigation may be deemed admitted for purposes of a
motion for judgment on the pleadings. Kenny, 369 A.2d at 1350 (relying on Rule
1029); see also Piehl v. City of Phila., 930 A.2d 607 (Pa. Cmwlth. 2007). Further,
DOC’s averments in preliminary objections may also qualify as admissions in
pleadings.



                                         8
             DOC’s calculation of Urch’s sentence based on the 1991 Sentencing
Orders is presumptively within DOC’s knowledge. Statements that merely parrot
Rule 1029(c) have the effect of an admission. City of Phila. v. Hertler, 539 A.2d
468 (Pa. Cmwlth. 1988). A denial is inadequate when it merely states, “after
reasonable investigation the party is without knowledge or information sufficient to
form a belief as to the truth” of an averment. Pa. R.C.P. No. 1029(c).


             Here, DOC repeatedly responded that it lacked knowledge or
information sufficient to form a belief as to the truth of the particular paragraph
asserted. Yet, it is beyond peradventure that DOC’s calculation and implementation
of Urch’s 1991 Sentencing Orders are subjects within DOC’s knowledge. As such,
this Court may deem DOC’s purported responses as admissions of the material facts
alleged. Hertler.


             DOC’s preliminary objections contain two crucial admissions that DOC
misconstrued the plain language of the 1991 Sentencing Orders. First, DOC stated
the 3 to 6 year term for Count 1 of the First Order was a consecutive sentence when
it does not so state. DOC Prelim. Obj., ¶25. Second, DOC erred in deeming the
Second Order a consecutive sentence when it is concurrent. Id., ¶27.


             Specifically, as to the First Order, DOC represented that the 3 to 6 year
sentence in Count 1 was consecutive. Id., ¶25. But the word consecutive does not
appear in Count 1, and Court Commitment Form DC-300B provides that unless
otherwise stipulated, “the sentence shall be deemed to run concurrent.” Am. Pet., Ex.
A. Notably, there is no stipulation in that part of the form – it is blank. Id.



                                            9
               As to the Second Order, in paragraph 27, DOC states that “as to docket
1112 of 1991[,] [Urch] was sentenced to one and a half years to three years
consecutively to Count 22 of docket 1111 of 1991 [First Order].” DOC Prelim. Obj.,
¶27 (emphasis added). To the contrary, and of consequence, the Second Order, states
the sentence is concurrent. Had the Second Order contained a consecutive sentence,
then the start date would have changed to a later date. The errors are compounded
in light of DOC’s statements as to what the 1991 Sentencing Orders did, by adding
two consecutive sentences to Urch’s overall confinement, at the very least.


               This Court advised that DOC’s construction of the 1991 Sentencing
Orders in its preliminary objections was inconsistent with the plain language of the
1991 Sentencing Orders. See Urch I, slip op. at 12, 2018 WL 911024, at *5. Yet,
DOC did not attempt to explain or refute the discrepancy this Court identified. Id.,
slip op. at 13, 2018 WL 911024, at *6. Thus, the preliminary objections are the only
pleadings in which DOC construed the 1991 Sentencing Orders, and it did so
erroneously.


                 b. Undisputed Material Facts as to 1991 Sentence
               In its response to Urch’s motion for judgment on the pleadings, DOC
maintains that the excessive confinement allegations were expressly denied in its
answer and new matter. DOC further represents that its new matter contradicts
Urch’s allegations of improper sentence aggregation and implementation, to which
Urch did not respond. As a result, DOC insists that outstanding issues of material
fact exist. For reasons stated below, we disagree as to the implementation of Urch’s
1991 Sentencing Orders.



                                          10
               Significantly, DOC did not dispute its alleged miscalculation of Urch’s
1991 sentence. DOC did not explain the discrepancy between the 1991 Sentencing
Orders and its implementation as described in its preliminary objections. DOC also
did not refer to any documentation that supports its construction of the 1991
Sentencing Orders. Of note, DOC does not allege the 1991 Sentencing Orders were
illegal or incapable of legal implementation.


               That Urch did not reply to or deny DOC’s allegations in new matter is
of no consequence. None of DOC’s averments in new matter pertain to the 1991
Sentencing Orders that comprise the bulk of Urch’s miscalculation claim. DOC’s
new matter pertains only to his “current sentence” related to CP-3333-2007.4 DOC
did not adequately deny facts related to its alleged erroneous implementation or
aggregation of his 1991 Sentencing Orders, except as to the aggregation with his
1999 sentence, which this Court addressed in Urch I (granting demurrer as to
aggregation of 1999 consecutive sentence).


               Also, although DOC states “significant outstanding issues of material
fact exist,” DOC Resp. to Mot., ¶26, it does not identify any disputes of material fact
related to its implementation of the 1991 Sentencing Orders. Therefore, we consider
the motion for judgment on the pleadings based on the deemed admissions from
DOC’s inadequate denials and averments in its preliminary objections.


       4
         According to DOC, Urch’s current sentences at CP-3333-2007 include: a 10 to 20 year
term of incarceration for aggravated assault with serious bodily injury at Count 4; a 10 to 20 year
term of incarceration for aggravated assault with serious bodily injury at Count 5 (consecutive); 3
years, 4 months to 6 years, 8 months for homicide by vehicle at Count 6 (concurrent); 2 years, 6
months to 5 years for accident involving death at Count 7 (consecutive); and a 2 to 4 year term for
accident involving death (concurrent). DOC New Matter, ¶6.

                                               11
                                 2. Mandatory Duty
             Here, Urch has a clear legal right to enforce the 1991 Sentencing Orders
as written. Powell. DOC has a legal duty to implement the 1991 Sentencing Orders
as written, without modification. Comrie. DOC’s sole function is to implement the
terms of the sentence imposed by the sentencing court. Where DOC’s computation
does not comply with a sentencing order, mandamus offers an appropriate remedy.
Id. Urch also lacks another remedy because DOC is the entity able to calculate and
implement his multiple sentences while he is in custody.


             When a court determines that a sentence is to be served consecutively to
one previously imposed, the sentences are subject to aggregation. Gillespie v. Dep’t
of Corr., 527 A.2d 1061 (Pa. Cmwlth. 1987), appeal denied, 540 A.2d 535 (Pa. 1988).
Moreover, “[a] sentence ... is to be construed so as to give effect to the intention of
the sentencing judge. To determine this intention[,] the court will limit itself to the
language of the judgment despite ... statements of the sentencing judge which are
not incorporated in it.” Powell, 14 A.3d at 915-16 (citations omitted).


             Urch offers a plausible interpretation of the 1991 Sentencing Orders. See
Am. Pet., Ex. B. DOC did not directly refute his calculation, and this Court came to
the same construction and computation as Urch. Further, as emphasized above,
DOC’s description of Urch’s 1991 sentence in its preliminary objections contradicted
the plain language of the 1991 Sentencing Orders.




                                          12
              DOC erred in treating concurrent sentences as consecutive sentences
subject to aggregation, which resulted in Urch serving additional time beyond the
concurrent terms imposed by the sentencing court.


              Consecutive sentences are subject to mandatory aggregation, Gillespie;
42 Pa. C.S. §9757; concurrent sentences are not. Therefore, the fact that DOC
effectively changed two of Urch’s concurrent sentences into two consecutive
sentences resulted in an improper calculation, adding more time than imposed by the
sentencing court in the 1991 Sentencing Orders.                DOC thus must correct its
miscalculation and aggregation.


              Urch pled DOC’s improper aggregation of his sentences imposed
confinement beyond the maximum set by the sentencing court. These facts are
consistent with the documents Urch appended to his amended petition, and which
DOC acknowledged “speak for themselves.” See Am. Pet., Ex. A, (Sentence of
1991 and Court Commitment Form DC-300B), Ex. B (Urch’s Computation based
on Court Commitment Form DC-300B). DOC did not adequately deny facts
pertaining to the 1991 sentence.


              Aggregation of all of the consecutive sentences contained in the 1991
Sentencing Orders amounts to 12 to 24 years. However, by construing two sentences
as consecutive when they were concurrent, i.e., in Count 1 of the First Order and the
single sentence in the Second Order, this leads to 4 ½ to 9 more years.5 This has the


       5
          The sentence from Count 1 in the First Order (3 to 6 years), plus the sentence from the
Second Order (1½ to 3 years), when aggregated as consecutive sentences comes to 4½ to 9 years,
i.e., (1½-3) + (3-6)= (4½-9).

                                               13
effect of extending Urch’s confinement beyond the terms of confinement authorized
by the sentencing courts. This is beyond DOC’s authority.


             This Court may partially grant an inmate’s motion for judgment on the
pleadings to recalculate a sentence and provide proper credit. Doria. As in Doria,
this Court “cannot determine from the material before us how [DOC] reached its
conclusion. Therefore, [DOC] should recalculate [Urch’s] … sentence so that this
discrepancy is eliminated.” Doria, 630 A.2d at 982.


             Accordingly, we direct DOC to implement the 1991 Sentencing Orders
as written, and to ensure Urch receives credit to which he may be entitled by serving
additional time on his 1991 sentence, as that term ended in June 2017. Powell.
Although Urch alleges 15 years of additional confinement is attributable to this error,
this Court cannot confirm the effects of DOC’s miscalculation on this record. At a
minimum, our calculations suggest DOC’s aggregation of concurrent sentences in
the 1991 Sentencing Orders led to 4½ to 9 years of additional confinement. Thus,
in addition to recalculating and unwinding any improper aggregation based on its
improper implementation of the 1991 Sentencing Orders, we direct DOC to file a
status report showing its compliance with this Court’s directive.


                                   III. Conclusion
             Therefore, we grant Urch partial judgment on the pleadings and require
DOC to recalculate his confinement as though his 1991 Sentencing Orders were
implemented in accordance with their plain language. However, we are not in a
position to grant relief on Urch’s excessive confinement claim as it relates to the
aggregation of the 1991 sentence with his current sentence from 2007. Accordingly,


                                          14
we direct the parties to file dispositive motions as to the remainder of this claim,
confirming the proper term of Urch’s confinement, and appending all relevant
supporting documentation.




                                      ROBERT SIMPSON, Judge




                                        15
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wesley Urch,                              :
                          Petitioner      :
                                          :
             v.                           :   No. 138 M.D. 2017
                                          :
Commonwealth of Pennsylvania,             :
Department of Corrections,                :
Secretary John E. Wetzel,                 :
SCI-Forest Superintendent                 :
Michael D. Overmyer, and All              :
Records Department of Corrections         :
Supervisors, and Attorney General,        :
                         Respondents      :


                                       ORDER

             AND NOW, this 13th day of August 2019, the motion for judgment
on the pleadings filed by Wesley Urch (Urch) is GRANTED IN PART, as to the
alleged misconstruction and improper aggregation of his 1991 sentencing orders, and
DENIED IN PART as to the alleged 15-year term of excessive confinement. The
Department of Corrections (DOC) is DIRECTED to recalculate Urch’s sentence
based on the proper interpretation and implementation of the 1991 sentencing orders
pursuant to their terms as set forth in the accompanying opinion. DOC is further
DIRECTED to file a status report showing its compliance and the effect of its
recalculation and corrected aggregation within 60 days of the date of this order.


             AND FURTHER, the parties are further DIRECTED to file petitions
for summary relief attaching all relevant sentence documentation, including sentence
status summaries, showing the effect of the proper calculation of the 1991 sentencing
orders on Urch’s total confinement within 90 days of the date the status report is filed.
The parties shall address how the period of confinement corresponds to the
documents submitted, and does not exceed the sentences imposed by the 1991
sentencing orders, so as to lengthen the total period of Urch’s confinement beyond
that ordered by the sentencing courts authorized to impose the sentences.




                                         ROBERT SIMPSON, Judge
