                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Manning Stodghill ,                       :
                        Petitioner              :
                                                :
                       v.                       :
                                                :
Pennsylvania Department                         :
of Corrections,                                 :   No. 363 M.D. 2015
                       Respondent               :   Submitted: January 22, 2016


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge



OPINION BY
JUDGE COVEY1                                        FILED: November 23, 2016

               David Manning Stodghill (Stodghill), pro se, filed a petition for writ of
mandamus (Petition), wherein he asks this Court to order the Pennsylvania
Department of Corrections (Department) to interpret Section 9718.1(b) of the
Sentencing Code, 42 Pa.C.S. § 9718.1(b), to require participation in, rather than
completion of, the Department’s sex offender treatment program to render an inmate
eligible for parole consideration.         In response, the Department filed preliminary
objections to Stodghill’s Petition seeking to dismiss the Petition under Pennsylvania
Rule of Civil Procedure No. 1028(a)(4) for failure to state a cause of action upon
which relief may be granted. The Department’s preliminary objections are currently
before the Court.
               This Court’s review of preliminary objections is limited to the pleadings.
Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Natural Res.,
909 A.2d 413 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007).

      1
          This case was reassigned to the authoring judge on October 19, 2016.
             [This Court is] required to accept as true the well-pled
             averments set forth in the . . . complaint, and all inferences
             reasonably deducible therefrom. Moreover, the [C]ourt
             need not accept as true conclusions of law, unwarranted
             inferences from facts, argumentative allegations, or
             expressions of opinion. In order to sustain preliminary
             objections, it must appear with certainty that the law will
             not permit recovery, and, where any doubt exists as to
             whether the preliminary objections should be sustained, the
             doubt must be resolved in favor of overruling the
             preliminary objections.
Id. at 415-16 (citations omitted).
               According to the Petition, Stodghill is currently incarcerated in the State
Correctional Institution at Somerset (SCI-Somerset), Pennsylvania. Stodghill averred
that the Department is intentionally “misrepresenting” the wording of Section 9718.1
of the Sentencing Code, Petition at ¶ 2, which states in pertinent part:

               (a) General rule.--A person . . . shall attend and
               participate in a [Department] program of counseling or
               therapy designed for incarcerated sex offenders [(sex
               offender treatment program)] if the person is incarcerated
               in a [s]tate institution for any of the following provisions
               under [the Crimes Code] (relating to crimes and offenses):
               (1) Any of the offenses enumerated in Chapter 31 (relating
               to sexual offenses) if the offense involved a minor under 18
               years of age.[2]
               ....


       2
          Although not specifically referenced in the Petition, we can reasonably infer from
Stodghill’s claims that the offense for which he is incarcerated is one of the enumerated offenses.
In his brief, Stodghill confirmed that he is serving a 4 to 8-year sentence for aggravated indecent
assault under Section 3125(a)(7) of the Crimes Code, 18 Pa.C.S. § 3125(a)(7), with a February 1,
2014 minimum sentence release date and a February 1, 2018 maximum sentence release date. See
Stodghill Br. at 4. See also Stodghill v. Pa. Bd. of Prob. & Parole, 123 A.3d 798 (Pa. Cmwlth.
2015) (wherein this Court recited that Stodghill is serving a 4 to 8-year sentence for the aggravated
indecent assault of a 12-year-old girl. “Aggravated indecent assault is one of the offenses
enumerated in Chapter 31 of Title 18.” Id. at 799 n.2). Stodghill also admitted in his brief that he
was required to undergo sex offender treatment, and that he participated in 15 sessions (38 hours).
See Stodghill Br. at 4.
                                                 2
               (b) Eligibility for parole.--For an offender required to
               participate in the program under subsection (a), all of the
               following apply:
               (1) The offender shall not be eligible for parole unless
               the offender has:
                   (i) served the minimum term of imprisonment;
                   (ii) participated in the program under subsection
                   (a); and
                   (iii) agreed to comply with any special conditions of
                   parole imposed for therapy or counseling for sex
                   offenders, including sexually violent predators.

42 Pa.C.S. § 9718.1 (text emphasis added). Stodghill contends in the Petition that
since Section 9718.1(b)(1)(ii) of the Sentencing Code does not require completion of,
but rather participation in the Department’s sex offender treatment program, an
inmate’s attendance at some sessions is sufficient to meet the parole eligibility
requirement.
               The Department objects to Stodghill’s standing to bring this action. See
Preliminary Objections ¶ 15. Specifically, the Department argues that, since the
allegations in the Petition are general to “offenders who have participated in but not
completed the programs [and who] are deemed ineligible for parole consideration and
removed from the parole eligibility docket,” it is not clear that Stodghill’s parole
eligibility has been affected. Petition at ¶ 5; see also Petition at ¶¶ 2, 10, 12, 16 and
the relief clause. We disagree.

               One seeking judicial resolution of a dispute must satisfy a
               threshold requirement of standing to bring the action by
               demonstrating a substantial, direct and immediate interest in
               the outcome of the litigation. Pittsburgh Palisades Park,
               LLC v. Commonwealth, . . . 888 A.2d 655 ([Pa.] 2005). A
               substantial interest is an interest exceeding the interest of all
               citizens in procuring obedience to the law; an interest is
               direct if there is a causal connection between the asserted
               violation and the harm complained of; an interest is

                                              3
             immediate if the causal connection is neither remote nor
             speculative. City of Phila[.] v. Commonwealth, . . . 838
             A.2d 566 ([Pa.] 2003).

Finn v. Rendell, 990 A.2d 100, 103 (Pa. Cmwlth. 2010). Further,

             [m]andamus is an extraordinary writ designed to compel
             performance of a ministerial act or mandatory duty 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. Mandamus is not
             available to establish legal rights, but is appropriate only to
             enforce rights that have been established.

Wilson v. Pa. Bd. of Prob. & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008)
(citations omitted).   “Where the party acquires an interest special to himself as
distinguished from that of the general public, he is able to bring mandamus
proceedings in his own name.” Douros v. Newtown Twp., 530 A.2d 1002, 1003 (Pa.
Cmwlth. 1987).
             Although the majority of the allegations in the Petition refer generally to
ineligible offenders, Stodghill specifically pled in the Petition:

             1. [Stodghill] is an inmate under the care[,] custody and
                control of the [Department,] housed at SCI-Somerset.
             2. [The Department] is intentionally misrepresenting the
                wording of [Section] 9718.1(b)(1)(ii) [of the Sentencing
                Code] to the damage of [Stodghill] and other offenders
                housed by [the Department].

Petition at 1 (emphasis added). Moreover, this Court has held that “[t]he allegations
of a pro se complainant are held to a less stringent standard than that applied to
pleadings filed by attorneys. If a fair reading of the complaint shows that the
complainant has pleaded facts that may entitle him to relief, the preliminary
objections will be overruled.” Danysh v. Dep’t of Corr., 845 A.2d 260, 262-63 (Pa.
Cmwlth. 2004), aff’d, 881 A.2d 1263 (Pa. 2005) (citation omitted; emphasis added).



                                            4
               Because our fair reading of the Petition reflects that Stodghill is an
inmate who may be aggrieved (i.e., denied parole consideration) by the Department’s
interpretation of Section 9718.1(b)(1)(ii) of the Sentencing Code, we hold that the
Petition demonstrates that he has a “substantial, direct and immediate interest in the
outcome of the litigation,” and thus has standing.3                   Finn, 990 A.2d at 103.
Accordingly, the Department’s objection to Stodghill’s standing is overruled.
               The Department also objects to the Petition on grounds that Stodghill
fails in the Petition “to state a claim relative to his allegations that the Department has
intentionally misrepresented and misapplied [Section 9718.1(b)(1)(ii) of the
Sentencing Code], and thus inappropriately caused [Stodghill] to be disqualified for
parole eligibility.” Department Br. at 3, 6; see also Preliminary Objections ¶¶ 16-22.
The Department specifically contends that inmates do not have the right to parole,
and it is the Pennsylvania Board of Probation and Parole (Board), rather than the
Department, that makes parole eligibility and rehabilitative programming
determinations. We agree.
               Section 6132(a)(1)(i) of the Prisons and Parole Code (Parole Code), 61
Pa.C.S. § 6132(a)(1)(i), gives the Board the exclusive power to parole inmates.
Pursuant to Section 6137(a) of the Parole Code, 61 Pa.C.S. § 6137(a), the Board has
the discretion to parole any inmate after the expiration of his minimum sentence
release date. Under Section 6137(g) of the Parole Code, 61 Pa.C.S. § 6137(g), the
Department initiates the parole process by identifying parole-eligible inmates for the

       3
          Our conclusion is further supported by Stodghill’s admission to the Department’s averment
in the preliminary objections that “[i]n plain language, [Stodghill] seems to aver that his
participation in required sex offender programming, rather than completion of such programming,
should be enough to trigger his parole eligibility pursuant to [Section 9718.1(b)(1)(ii) of the
Sentencing Code].” Prelim. Obj. ¶ 7 (emphasis added); see Stodghill’s Ans. to Prelim. Obj. ¶ 6.
        Stodghill also stated in his brief that he was required to participate in the Department’s sex
offender treatment program, and that despite his participation in 15 sessions (38 hours), the
Pennsylvania Board of Probation and Parole has never interviewed him to determine whether he is
eligible for parole. See Stodghill Br. at 4.
                                                  5
Board’s consideration.      However, the Department is constrained by Section
9718.1(b)(1)(ii) of the Sentencing Code from certifying as eligible, offenders who
have not attended and participated in the Department’s sex offender treatment
program.
             Stodghill’s claim that the Department erred by interpreting Section
9718.1(b)(1)(ii) of the Sentencing Code to require completion of the Department’s
sex offender treatment program in order to be eligible for parole consideration by the
Board is contrary to the law.
             First, in Section 9718.1(c) of the Sentencing Code, the General
Assembly mandated that “[t]he [D]epartment shall develop and provide the [sex
offender treatment program]. The [D]epartment shall have the sole discretion
with respect to counseling or therapy program contents and administration,
including the scheduling of an offender’s attendance and participation.”           42
Pa.C.S. § 9718.1(c) (emphasis added).           Thus, although the Board ultimately
determines whether an inmate should be paroled, the Department establishes the
contents of and is responsible for the inmate’s attendance and participation in the
program that renders the inmate parole eligible in the first instance.
             Moreover,

             [t]he common law writ of mandamus lies to compel an
             official’s performance of a ministerial act or a mandatory
             duty. McGill v. P[a.] Dep[’]t of Health, Office of Drug [&]
             Alcohol Programs, 758 A.2d 268, 270 (Pa. Cmwlth. 2000).
             ‘The burden of proof falls upon the party seeking this
             extraordinary remedy to establish his legal right to such
             relief.’ Werner v. Zazyczny, . . . 681 A.2d 1331, 1335 ([Pa.]
             1996). Mandamus requires ‘[1] a clear legal right in the
             plaintiff, [2] a corresponding duty in the defendant, and [3]
             a lack of any other adequate and appropriate remedy at
             law.’ Crozer Chester Med[.] C[tr.] v. . . . Bureau of
             Workers’ Comp[.], Health Care Serv[s.] Review Div[.], . . .
             22 A.3d 189, 193 ([Pa.] 2011) (citations omitted).

                                            6
              Mandamus is not available to establish legal rights but only
              to enforce rights that have been established.

Sinkiewicz v. Susquehanna Cnty. Bd. of Comm’rs, 131 A.3d 541, 546 (Pa. Cmwlth.
2015). “Mandamus is not used to direct the exercise of judgment or discretion of
an official in a particular way.” Clark v. Beard, 918 A.2d 155, 159 (Pa. Cmwlth.
2007) (emphasis added). Further, “[i]n the context of a discretionary act, a court can
issue such a writ to mandate the exercise of [its] discretion in some fashion, but not to
require that it be exercised in a particular manner.” Sever v. Dep’t of Envtl. Res., 514
A.2d 656, 660 (Pa. Cmwlth. 1986) (quoting U.S. Steel Corp. v. Papadakos, 437 A.2d
1044, 1046 (Pa. Cmwlth. 1981)). Under circumstances in which the Department has
the sole discretion to determine what sex offender treatment program requirements
Stodghill must satisfy, this Court cannot order the Department to place Stodghill on
the parole eligibility list.
              Second, Section 9718.1(d) of the Sentencing Code provides:

              No right of action created.--Notwithstanding any other
              provision of law to the contrary, this section shall not be
              construed to confer any legal right upon any individual,
              including an individual required to participate in the
              [D]epartment’s programs of counseling or therapy for
              incarcerated offenders, seeking to:
              (1) participate and attend the [sex offender treatment
              program] at a time of the individual’s own choosing;
              (2) modify the contents of the [sex offender treatment
              program];
              (3) be paroled; or
              (4) file any other cause of action in any court regarding
              the [sex offender treatment program].

42 Pa.C.S. § 9718.1(d) (text emphasis added). Because the General Assembly has
expressly prohibited Stodghill from seeking to modify the Department’s sex offender


                                           7
treatment program or to require his parole under Section 9718.1 of the Sentencing
Code, this Court lacks the authority to issue an order directing otherwise.
              Third, in Stodghill v. Pennsylvania Board of Probation and Parole, 123
A.3d 798 (Pa. Cmwlth. 2015), Stodghill sought an order from this Court to compel
the Board to consider him for parole because he had attended 15 of the 120 sex
offender treatment program sessions and, thus, participated in the program, despite
that his participation was deemed unsatisfactory, he failed to complete required
assignments, and often slept or was disruptive during the sessions.              This Court
expressly held that Stodghill’s mere participation in the Department’s sex offender
treatment program failed to satisfy Section 9718.1(b)(1)(ii) of the Sentencing Code.
Accordingly, this Court denied Stodghill’s motion for judgment on the pleadings
because he “failed to show a clear right to relief as a matter of law.”4 Id. at 801.
              The Stodghill Court explained:

              As we noted in Evans v. Pennsylvania Board of Probation
              [and] Parole, 820 A.2d 904 (Pa. Cmwlth. 2003):
                  [T]he stated, actual purpose of [Section 9718.1]
                  [of the Sentencing Code] is the protection of the
                  public. As set forth in the [Sentencing Code], the
                  General Assembly declared:
                     It is the intent of the General Assembly to
                     protect our most vulnerable and precious
                     citizens, the Commonwealth’s children,
                     from the ravages of sexual abuse. Because
                     sexual crimes committed against children are
                     among the most heinous imaginable, the
                     General Assembly declares it to be in the
                     public interest to enact this act.
                  H.B. 47, 184th Gen. Assem., 1999 Reg. Sess. (Pa.
                  2000).

       4
          The fact that Stodghill involved a motion for judgment on the pleadings in an action
against the Board, does not affect its precedential value in this case.


                                              8
            [Evans, 820 A.2d] at 912. Allowing any level of
            attendance, however minimal or unsatisfactory, to meet
            the requirements of Section 9718.1 [of the Sentencing
            Code] would entirely frustrate this announced legislative
            purpose. Only where the rehabilitative goal of the program
            has been achieved can there be any hope of preventing
            future abuse of children, and absent successful participation
            in the plan of therapy, there can be little prospect of
            rehabilitation.

Stodghill, 123 A.3d at 800-01 (emphasis added). This Court recognized in Stodghill:

            [W]e note that in other contexts this [C]ourt has repeatedly
            validated the denial of parole for failure to complete
            rehabilitative programs. See, e.g., Wilson v. Pa. Bd. of
            Prob. & Parole, 942 A.2d 270, 273-74 (Pa. Cmwlth. 2008)
            (observing that, ‘requiring an inmate to complete
            institutional programming that requires the inmate to admit
            guilt is not conscience shocking. . . .’); Weaver v. Pa. Bd. of
            Prob. & Parole, 688 A.2d 766, 779 (Pa. Cmwlth. 1997)
            (stating that, ‘failure to successfully complete [a treatment]
            program is a valid reason for denying parole. . . .’).

Stodghill, 123 A.3d at 800 n.3.
            Finally, this Court must defer to the Department’s interpretation of
Section 9718.1 of the Sentencing Code. This Court has held: “The touchstone of
interpreting statutory language is to ascertain and effectuate the intent of the
legislature. Section 1921 of the Statutory Construction Act of 1972 (SCA), 1 Pa.C.S.
§ 1921(a) . . . .” Summit Sch., Inc. v. Dep’t of Educ., 108 A.3d 192, 196-97 (Pa.
Cmwlth. 2015).

            It is presumed that the legislature ‘does not intend a result
            that is absurd, impossible of execution or unreasonable.’
            Section 1922(1) of the SCA, 1 Pa.C.S. § 1922(1). Thus,
            ‘[s]tatutes should receive a sensible construction and
            should be construed[,] if possible[,] so that absurdity
            and mischief may be avoided.’ Capital Academy Charter
            Sch[.] v. Harrisburg Sch[.] Dist[.], 934 A.2d 189, 193 (Pa.
            Cmwlth. 2007).



                                          9
Summit Sch., Inc., 108 A.3d at 197 (emphasis added).                     This Court has further
declared:

               As suggested by Section 1921(c)(8) of the [SCA], when a
               statute is ambiguous, courts generally defer to the
               expertise of the agency upon which the General
               Assembly has vested enforcement or interpretive
               responsibilities and, consequently, should accept the
               agency’s interpretation of ambiguous statutory language.
               Velocity Express v. Pa. Human Relations Comm’n, 853
               A.2d 1182, 1185 (Pa. Cmwlth. 2004) (Velocity). When an
               agency’s interpretation is entitled to such deference, courts
               will defer to such proposed interpretation unless an
               agency’s interpretation of a statute is erroneous or
               ‘frustrates legislative intent.’ Id. (quoting Rosen v.
               Bureau of Prof’l [&] Occupational Affairs, 763 A.2d 962,
               968 (Pa. Cmwlth. 2000) . . . . ).

Packer v. Bureau of Prof’l & Occupational Affairs, State Bd. of Nursing, 99 A.3d
965, 969 (Pa. Cmwlth. 2014)5 (emphasis added).
               Here, the General Assembly required Stodghill to “attend and
participate in” the Department-established sex offender treatment program.                         42
Pa.C.S. § 9718.1(a) (emphasis added). The Department has “the sole discretion” to
specify how many sessions Stodghill must attend and what he must do while in
attendance at the sessions. 42 Pa.C.S. § 9718.1(c) (emphasis added). Because the
Department-established program required Stodghill to attend and participate in 120
counseling and therapy sessions, this Court’s order that his attendance at only 15
sessions during which he did not participate, would make a mockery of the statute
and its purpose.6 Accordingly, the Department did not err by interpreting Section


       5
          Packer has been overruled on other grounds by McGrath v. Bureau of Prof’l &
Occupational Affairs, State Bd. of Nursing (Pa. Cmwlth. No. 1001 C.D. 2015, filed August 24,
2016).
        6
          Although it is not clear based solely on Stodghill’s Petition what form of counseling and/or
therapy Stodghill’s sex offender treatment program required, sleeping or being disruptive is not the
sort of participation the General Assembly intended “to protect our most vulnerable and precious
                                                 10
9718.1(b)(1)(ii) of the Sentencing Code to require Stodghill’s attendance and
participation in the Department’s sex offender treatment program to be eligible for
the Board’s parole consideration.
              Since the Department has properly interpreted Section 9718.1(b)(1)(ii)
of the Sentencing Code to require Stodghill’s attendance and participation in the
Department’s sex offender treatment program to be eligible for the Board’s parole
consideration, he has no legal rights to enforce and, thus, “the law will not permit
recovery.” Pa. State Lodge, Fraternal Order of Police, 909 A.2d at 416. Because
Stodghill’s Petition fails to state a claim upon which relief may be granted, the
Department’s demurrer is sustained.
              Based upon the foregoing, although the Department’s preliminary
objection to Stodghill’s standing is overruled, the Department’s preliminary objection
based on Stodghill’s failure to state a viable mandamus claim against the Department
is sustained. Accordingly, Stodghill’s Petition is dismissed.


                                           ___________________________
                                           ANNE E. COVEY, Judge




citizens, the Commonwealth’s children, from the ravages of sexual abuse.” Stodghill, 123 A.3d at
800-01.
                                              11
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Manning Stodghill                 :
                          Petitioner    :
                                        :
                   v.                   :
                                        :
Pennsylvania Department                 :
of Corrections,                         :   No. 363 M.D. 2015
                       Respondent       :


                                       ORDER

             AND NOW, this 23rd day of November, 2016, the Pennsylvania
Department of Corrections’ preliminary objections to David Manning Stodghill’s
petition for writ of mandamus (Petition) are overruled in part and sustained in part,
and the Petition is dismissed.


                                       ___________________________
                                       ANNE E. COVEY, Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Manning Stodghill,                       :
                 Petitioner                    :
                                               :
                 v.                            :   No. 363 M.D. 2015
                                               :   Submitted: January 22, 2016
Pennsylvania Department of                     :
Corrections,                                   :
                 Respondent                    :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

CONCURRING OPINION
BY PRESIDENT JUDGE LEAVITT                                      FILED: November 23, 2016

                 I agree with the majority’s well-reasoned opinion. Section
9718.1(b)(1)(ii) of the Sentencing Code1 does not require completion of the
Department’s sex offender treatment program in order to be placed on the list of
inmates eligible for parole consideration by the Board of Probation and Parole.

1
    The Sentencing Code states, in pertinent part:
         (b) Eligibility for parole.--For an offender required to participate in the program
         under subsection (a), all of the following apply:
                 (1) The offender shall not be eligible for parole unless the offender
                 has:
                         (i) served the minimum term of imprisonment;
                         (ii) participated in the program under subsection
                         (a); and
                      (iii) agreed to comply with any special conditions
                      of parole imposed for therapy or counseling for sex
                      offenders, including sexually violent predators.
42 Pa. C.S. §9718.1(b) (emphasis added). Subsection (a) states that “[a] person … shall attend
and participate in a Department of Corrections program of counseling or therapy designed for
incarcerated sex offenders if the person is incarcerated in a State institution” for an enumerated
offense. 42 Pa. C.S. §9718.1(a) (emphasis added).
However, an inmate must “attend and participate” in a program before the
Department can certify him as parole-eligible. 42 Pa. C.S. §9718.1(a). Stodghill,
who attended only a fraction of his scheduled classes and either slept or was
disruptive while in attendance, did not satisfy Section 9718.1(b)(1)(ii). Thus, he
cannot establish the clear right to relief necessary for a writ of mandamus.
             I write separately to note that the Department’s refusal to certify
Stodghill as eligible for parole will trigger his right to pursue a grievance. The
administrative remedies available in state correctional institutions are set forth in
the Department’s Grievance Policy and regulations. Specifically, Section 93.9 of
the Department’s regulations establishes

             an inmate grievance system which will permit any inmate to
             seek review of problems which the inmate experiences during
             the course of confinement. The system will provide for review
             and resolution of inmate grievances at the most decentralized
             level possible. It will also provide for review of the initial
             decision making and for possible appeal to the Central Office of
             the Department.

37 Pa. Code §93.9. According to the Commonwealth’s Inmate Grievance System
Procedures Manual and the Department’s Inmate Handbook,

             the inmate grievance process begins with the filing of a
             grievance with the Facility Grievance Coordinator…. ‘The
             [process] requires an inmate who has received an initial
             determination on his grievance to appeal to the Superintendent
             and, thereafter, seek final review with [the Department]. If the
             inmate fails to complete each of these steps, he fails to exhaust
             his administrative remedies.’ Kittrell v. Watson, 88 A.3d 1091,
             1095 (Pa. Cmwlth. 2014).

Morgalo v. Gorniak, 134 A.3d 1139, 1150-51 (Pa. Cmwlth. 2016). Although a
final decision on a grievance is not appealable to this Court, a prisoner may bring
an action in this Court’s original jurisdiction if he alleges a violation of a protected
                                        MHL-2
constitutional right. Bronson v. Central Office Review Committee, 721 A.2d 357,
359 (Pa. 1998).2
               The Parole Board decides whether to grant or deny parole to a sex
offender, and his meaningful participation in a program can be a factor in this
decision. With this holding, we shift the review of participation in a sex offender
program from the Parole Board to the Department, which may have consequences
not intended by the Department. Every grievance triggers litigation, with multiple
levels of administrative review that culminates in a decision that may trigger
further litigation in this Court and, ultimately, the Pennsylvania Supreme Court on
direct appeal. It may prove difficult for the Parole Board to ignore a decision by a
Department hearing examiner or a court that has already examined a prisoner’s
conduct for purposes of Section 9718.1.

                                         ______________________________________
                                         MARY HANNAH LEAVITT, President Judge




2
  The Supreme Court explained that “[u]nless ‘an inmate can identify a personal or property
interest ... not limited by Department [of Corrections] regulations and which has been affected by
a final decision of the [D]epartment’ the decision is not an adjudication subject to the court’s
review.” Bronson, 721 A.2d at 359 (quoting Lawson v. Department of Corrections, 539 A.2d 69,
71 (Pa. Cmwlth. 1988)).


                                            MHL-3
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Manning Stodghill,                 :
                                         : No. 363 M.D. 2015
                         Petitioner      : Submitted: January 22, 2016
                                         :
                   v.                    :
                                         :
Pennsylvania Department                  :
of Corrections,                          :
                                         :
                         Respondent      :

BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


DISSENTING OPINION
BY SENIOR JUDGE FRIEDMAN                            FILED: November 23, 2016


            Because I believe that the majority’s interpretation of section 9718.1 of
the Sentencing Code, 42 Pa. C.S. §9718.1, violates the Statutory Construction Act of
1992 (Act), 1 Pa. C.S. §§1501-1991, I respectfully dissent.


            Stodghill filed a petition for writ of mandamus, asking this court to
direct Department to interpret 42 Pa. C.S. §9718.1(b), according to its plain meaning
and consider him parole-eligible because he has participated in a sex offender
treatment program. Department filed preliminary objections, seeking to dismiss the
petition under Pa. R.C.P. No. 1028(a)(4) for failure to state a cause of action upon
which relief can be granted.
              In ruling on preliminary objections in the nature of a demurrer, this court
must accept as true all well-pleaded material facts and all inferences reasonably
deducible therefrom. Barndt v. Pennsylvania Department of Corrections, 902 A.2d
589, 592 (Pa. Cmwlth. 2006). The Department initially argues that Stodghill lacks
standing. The majority correctly decides, based on a fair reading of the petition, that
Stodghill is aggrieved by the Department’s interpretation of section 9718.1(b)(1)(ii)
of the Sentencing Code because it denied him placement on the parole-eligibility
docket.     Stodghill’s petition demonstrates that he has standing based on “a
substantial, direct, and immediate interest in the outcome of the litigation.” Pittsburgh
Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 660 (Pa. 2005).


              I disagree with the majority, however, that Stodghill failed to state a
claim against Department. Section 9718.1(b)(1)(ii) of the Sentencing Code provides
that a sex offender is not eligible for parole unless he has “participated” in a sex
offender program. Stodghill contends that he has attended and participated in 15
sessions of high-intensity sex offender programming.1 (Stodghill Ex. C.) Despite
Stodghill’s participation, the Department did “not include[] [him] on the [parole]
docket.” (Id.) Unlike the majority, I believe Stodghill has pleaded facts that may
entitle him to relief, i.e., placement on the parole-eligibility list.


       1
          The majority states that pursuant to 42 Pa. C.S. §9718.1(c), the Department has the sole
discretion to specify how many sessions Stodghill must attend and what he must do while in the
sessions. (Maj. Op. at 10.) The majority then notes that the Department’s program required
Stodghill to attend and participate in 120 sessions. (Id.) Contrary to the majority’s assertion,
section 9718.1(c) of the Sentencing Code does not give the Department sole discretion to specify
the number of sessions an offender must attend. Rather, it gives the Department “sole discretion”
only as to the contents and administration, “including the scheduling of an offender’s attendance
and participation.” 42 Pa. C.S. §9718.1(c).



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             Section 9718.1(b)(1)(ii) of the Sentencing Code states that an “offender
[of an enumerated offense] shall not be eligible for parole unless the offender has . . .
participated in the program” for sex offenders.         42 Pa. C.S. §9718.1(b)(1)(ii)
(emphasis added). A sex offender is required to “attend and participate in a . . .
program . . . for . . . sex offenders.” 42 Pa. C.S. §9718.1(a) (emphasis added).


             “When the words of a statute are clear and free from all ambiguity, the
letter of it is not to be disregarded under the pretext of pursuing its spirit.” Section
1921(b) of the Act, 1 Pa. C.S. §1921(b). Here, the statute is clear and free from
ambiguity. The statute requires certain offenders to “attend and participate” in a
Department program for sex offenders. 42 Pa. C.S. §9718.1(a). The statute then
states that such offender is not eligible for parole unless he “participated” in the
program. 42 Pa. C.S. §9718.1(b)(1)(ii).


             Section 1921(c)(8) of the Act, 1 Pa. C.S. §1921(c)(8) states that “[w]hen
the words of the statute are not explicit” the intention may be ascertained by
considering “[l]egislative and administrative interpretations.” However, the words of
section 9718.1 of the Sentencing Code are clear and unambiguous; they require only
attendance and participation in, not completion of, a sex offender program. The
majority errs in ignoring the clear and unambiguous words of the statute and relying
on the Department’s interpretation.


             I do not suggest that an inmate who participates in a sex offender
program has an automatic right to parole. As the majority correctly states, the Board
has the exclusive power to parole inmates. See 61 Pa. C.S. §6132(a)(1)(i). However,



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as the majority also correctly points out, it is the Department that “initiates the parole
process by identifying parole-eligible inmates for the Board’s consideration.” (Maj.
Op. at 5-6.) See 61 Pa. C.S. §6137(g)(1) and (2).


                In Stodghill v. Pennsylvania Board of Probation and Parole, 123 A.3d
798, 799 (Pa. Cmwlth. 2015) (Stodghill I),2 Stodghill filed a motion for disposition,
which this court treated as a petition for writ of mandamus, asking this court to order
the Board to consider him for parole or order his release. Stodghill argued that he
satisfied the mandatory condition for parole eligibility because he “participated” in
the sex offender program. Id. This court agreed with the Board’s argument that
Stodghill’s level of participation did not establish a clear right to relief as a matter of
law and denied his motion for judgment on the pleadings. Id. at 800-01.


                Stodghill I involved a mandamus action against the Board, which is
vested with discretion to parole only those inmates identified to it by the Department
as parole eligible.        “[M]andamus will not lie to compel a discretionary act.”
Cimaszewski v. Board of Probation and Parole, 868 A.2d 416, 422 (Pa. 2005). In
contrast, Stodghill’s present petition for writ of mandamus is against the Department,
which, unlike the Board, is not vested with discretion in parole matters. Rather, 61
Pa. C.S. §6137(g)(1) and (2) directs that the Department “shall identify” parole-
eligible inmates for the Board’s consideration. I suggest that Stodghill, who has
attended and participated in a sex offender program as required by the clear and
unambiguous words of section 9718.1 of the Sentencing Code, is parole-eligible.


      2
          Although Stodghill I involved a different defendant, we use the term for ease of reference.



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Accordingly, I dissent.



                            ___________________________________
                            ROCHELLE S. FRIEDMAN, Senior Judge




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