           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph A. Vaccarello,                           :
                  Petitioner                    :
                                                :
               v.                               :
                                                :
Pennsylvania Board of                           :
Probation and Parole,                           :   No. 610 M.D. 2018
                  Respondent                    :   Submitted: April 5, 2019


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: July 22, 2019

               Joseph A. Vaccarello (Vaccarello), pro se, filed a Petition for Review
in the Nature of Mandamus in this Court’s original jurisdiction.                     Vaccarello
challenges the April 3, 2018 decision of the Pennsylvania Board of Probation and
Parole (Board) to deny him parole upon the expiration of his Recidivism Risk
Reduction Incentive (RRRI) minimum sentence.1 The Board filed a preliminary

       1
          An RRRI minimum sentence is a sentence shorter in length than the offender’s true
minimum sentence imposed by a sentencing judge on eligible offenders as part of the RRRI. 37
Pa. Code § 96.1(a). The RRRI “seeks to improve public safety by encouraging eligible offenders
to complete programs that scientific evidence suggests may reduce the risk that the offender will
commit a future crime.” Id. An offender who successfully completes an RRRI program plan (an
individualized plan containing treatment and approved programs developed to reduce the risk of
recidivism based on scientific evidence), maintains a good conduct record, and continues to remain
an eligible offender can be paroled on the RRRI minimum sentence date “unless the Board
determines that parole would present an unreasonable risk to public safety or that other specified
conditions have not been satisfied.” 37 Pa. Code §§ 96.1(b) & 96.2 (emphasis added). To be an
eligible offender, the offender cannot have a history of violent behavior or have any convictions
objection in the nature of a demurrer, which is now before the Court for disposition.2
For the reasons that follow, we sustain the Board’s preliminary objection in the
nature of a demurrer and dismiss Vaccarello’s petition.
               Vaccarello is an inmate incarcerated at the State Correctional
Institution at Mercer serving a sentence of 1 year 6 months to 5 years for a burglary
conviction. See Petition for Review in the Nature of Mandamus (Petition) ¶ 2 &
DC16E-Sentence Status Summary, Department of Corrections Report dated
4/25/17. At the time of sentencing, the judge rendered Vaccarello eligible for
participation in the RRRI program, adjusted his minimum sentence and calculated
his RRRI minimum date to be July 3, 2018. Id. Just before Vaccarello’s RRRI
minimum date, on April 3, 2018, the Board issued a decision to deny him parole.
Petition ¶ 4 & Notice of Board Decision dated 4/3/18. Vaccarello challenged the
Board’s denial by filing a notice of administrative appeal. Petition ¶ 4. After not
obtaining a response from the Board on his challenge, on September 17, 2018,
Vaccarello filed the petition for review with this Court.3
               In his petition, Vaccarello asserts that the Board erred as a matter of law
by denying him parole at the expiration of his RRRI minimum sentence and seeks


involving a personal injury crime, use of a deadly weapon, drugs or any other offenses provided
in 37 Pa. Code § 96.2 (defining eligible offender).
       2
         “In ruling upon a preliminary objection in the nature of a demurrer, we must accept as
true all well-pleaded allegations of material fact and all inferences reasonably deductible
therefrom.” Evans v. Pa. Bd. of Prob. & Parole, 820 A.2d 904, 906, n.3 (Pa. Cmwlth. 2003)
(citing Myers v. Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998)). We do not have to accept as true
conclusions of law, unwarranted inferences, argumentative allegations or expressions of opinion.
Id. “The test is whether it is clear from all of the facts pleaded that the pleader will be unable to
prove facts legally sufficient to establish his or her right to relief.” Id.
       3
         Vaccarello alleges that he filed his administrative appeal on April 18, 2018. Petition ¶ 4.
Vaccarello “presume[d] that following a 120-day period[,]” the Board denied his appeal by
“operation of law.” Id. (emphasis added).
                                                 2
“an [o]rder compelling the [Board] to issue a decision granting [him] parole
immediately, or upon expiration of [his] RRRI . . . minimum sentence . . . [o]r issue
a [w]rit of [m]andamus or for whatever relief this Court deems just and proper.”
Petition ¶ 5 & Conclusion. Subsequently, on October 9, 2018, the Board responded
to Vaccarello’s request challenging its denial, explaining:

             [t]he decision recorded April 3, 2018 is a parole refusal.
             The Board’s administrative review process applies to
             revocation decisions and related matters. See 37 Pa. Code
             § 73.1. Accordingly, any claims related to the parole
             refusal cannot be addressed through that process.
Letter by Board Chief Counsel Alan M. Robinson to Vaccarello dated 10/9/18.

             Vaccarello contends that the Board erred as a matter of law when it
denied him parole upon the expiration of his RRRI minimum sentence because he
met all the criteria required for parole, and therefore, the Board has a “duty” to grant
it. Petition ¶¶ 5 & 7-12. Vaccarello asserts that when the sentencing court concluded
that he was eligible for participation in the RRRI, the court “unequivocally
determined” that he “did not pose a risk to the community or public safety.” Id. ¶ 6.
Because the sentencing court found that he is not a risk to the community or public
safety, Vaccarello contends that the Board erred when it denied him parole as this is
a determination “to be made by the sentencing court only.” Id. Vaccarello asserts
that the Board “unreasonably determined that the judge was wrong,” and, in doing
so, usurped the authority of the sentencing court and violated the separation of
powers doctrine. Id.
             Vaccarello seeks an order compelling the Board to grant him parole at
the expiration of his RRRI minimum sentence or “immediately” because the Board
failed to “adhere to the mandates of the law.” Id. ¶ 4 & Conclusion.

                                           3
               On October 26, 2018, the Board responded with a preliminary objection
in the nature of a demurrer, asserting that “an inmate who is given an RRRI
minimum sentence is not entitled to a right to be paroled” and “does not have an
absolute right to parole” because the “Board is granted broad discretion in parole
matters, and what it decides and why is not subject to judicial review.” Preliminary
Objections ¶¶ 13, 15 & 20.4 The Board requests that this Court dismiss Vaccarello’s
petition. Upon review, we conclude that we cannot, as a matter of law, provide
Vaccarello the relief he seeks.5
               Mandamus is an extraordinary remedy that compels the official
performance of a ministerial act or a mandatory duty. Nickson v. Pa. Bd. of Prob.
& Parole, 880 A.2d 21, 23 (Pa. Cmwlth. 2005). A writ of mandamus may only be
issued where there is a clear legal right in the petitioner, a corresponding duty in

       4
           The Board also filed a preliminary objection because Vaccarello failed to provide a
verification of the averments in the petition as required by Pennsylvania Rule of Civil Procedure
No. 1024. Preliminary Objections ¶¶ 4-6. Though Vaccarello did not provide a verification to his
petition, the purpose of the verification is to “defend a party against spurious allegations; it must
not be transformed into an offensive weapon designed to strike down an otherwise valid petition.”
Monroe Contract Corp. v. Harrison Square, Inc., 405 A.2d 954, 958 (Pa. Super. 1979). The
appropriate remedy for failure to provide a verification is to grant leave to amend for the addition
of the verification. Id. at 959.
        Here, the Board and Vaccarello agree that the Board denied him parole upon serving his
RRRI minimum sentence, which is the event that caused Vaccarello to file the petition. Because
there is no dispute as to the fact giving rise to Vaccarello’s petition, we conclude that Vaccarello’s
failure to provide a verification is inconsequential and has not, in any way, prejudiced the Board.
See id. at 959 (noting that where failure to attach verification is inconsequential and not prejudicial,
the case may proceed to aid in judicial economy). In the interest of judicial economy, we overrule
the Board’s preliminary objection concerning the failure to provide a verification and will focus
our analysis on the Board’s objection in the nature of a demurrer.
       5
            The Board also preliminarily objected to the petition based on the “Suggestion of
Mootness” because the Board mailed its response to Vaccarello on October 9, 2018 effectively
denying his request for administrative relief. Preliminary Objections ¶¶ 23-24. The Board asserted
that “it is now impossible for this Court to grant mandamus directing the Board to take said action.”
Id. ¶ 26. The Board is correct that this Court can no longer direct the Board to issue a decision and
we cannot grant Vaccarello the relief he seeks as discussed in our analysis on the Board’s demurrer
objection.
                                                   4
respondent and a lack of any other appropriate remedy. Id. Mandamus will not be
used to direct the Board to exercise its judgment or discretion in a particular way or
direct the retraction or reversal of an action already taken. Evans v. Pa. Bd. of Prob.
& Parole, 820 A.2d 904, 915 (Pa. Cmwlth. 2003). “[I]n an action in mandamus
involving an administrative agency’s exercise of discretion, we may only direct the
agency to perform the discretionary act; we may not direct the agency to exercise its
judgment or discretion in a particular way, or direct the retraction or reversal of
action already taken.” Id. at 914-15. The purpose of a mandamus action is not to
establish legal rights, but to enforce those rights already established. Id. at 915.
             Vaccarello alleges that the Board erred because it has a statutory duty
to parole him pursuant to Section 4506(a)(10) of the Prisons and Parole Code (Code),
61 Pa.C.S. § 4506(a)(10). However, the plain language of the statute demonstrates
the contrary. Section 4506(a)(10) of the Code provides:


             The [B]oard or its designee shall issue a decision to
             parole, without further review by the [B]oard, an inmate
             who has been sentenced to a [RRRI] minimum sentence at
             the expiration of that [RRRI] minimum sentence upon a
             determination that all of the following apply. . . . There
             is no reasonable indication that the inmate poses a risk to
             public safety.

Id. (emphasis added). As plainly stated, the Board “shall issue a decision to parole”
but only “upon a determination that all of the following apply.” Id. (emphasis
added). The Board’s duty to parole an inmate is subject to the Department of
Corrections’ assessment of compliance with the RRRI program and the Board’s
finding that “[t]here is no reasonable indication that the inmate poses a risk to public
safety.” Id.; see also 37 Pa. Code § 96.1(b) (stating that “[a]n offender who


                                           5
successfully completes the program plan, maintains a good conduct record and
continues to remain an eligible offender can be paroled on the RRRI minimum
sentence date unless the Board determines that parole would present an unreasonable
risk to public safety or that other specified conditions have not been satisfied”)
(emphasis added). The statute further provides that “[n]othing in this section shall
be interpreted as granting a right to be paroled to any person, and any decision by
the [B]oard and its designees or the department, under this section, shall not be
considered an adjudication . . . .” 61 Pa.C.S. § 4506(d) (emphasis added). Our
Supreme Court explained in Commonwealth v. Hansley, 47 A.3d 1180 (Pa. 2012):


              [a]lthough the court imposes an RRRI Act minimum
              sentence, the offender is not guaranteed a right to be
              granted parole upon the expiration of that term . . . Instead,
              the [Board] is tasked with issuing a decision to parole an
              offender upon completion of the RRRI Act minimum
              sentence only if the [Board] independently determines that
              the offender has successfully completed the required
              [RRRI] or other similar program, as well as several other
              requirements (e.g., it does not reasonably appear that
              defendant presents risk to public safety).
Id. at 1188 (citations omitted).6

              Here, just before the expiration of Vaccarello’s RRRI minimum date,
the Board issued a decision to deny him parole. In its denial, the Board provided six
reasons: (1) Vaccarello needs to participate in and complete institutional programs,
(2) Vaccarello’s prior unsatisfactory supervision history, (3) reports, evaluations and
assessments and/or level of risk indicates Vaccarello is a risk to the community, (4)

       6
         For this reason, Vaccarello’s argument that the sentencing judge already determined that
he is not a risk to the community or public safety lacks merit because the Board is to render a
determination at the completion of the program requirements as provided in Section 4506(a) of the
Code, 61 Pa. C.S. § 4506(a).
                                               6
Vaccarello’s minimization and/or denial of the nature and circumstances of the
offense(s) committed, (5) Vaccarello’s refusal to accept responsibility for the
offense(s) committed, and (6) Vaccarello’s lack of remorse for the offense(s)
committed. Notice of Board Decision dated 4/3/18. To the extent Vaccarello argues
that the Board’s findings are incorrect as he completed the program requirements,
mandamus cannot be used to challenge the findings. See Weaver v. Pa. Bd. of Prob.
& Parole, 688 A.2d 766, 777 (Pa. Cmwlth. 1997) (providing that mandamus cannot
be used to say that the Board considered improper factors, that its findings of fact
were wrong or that the reasons for its decision were pretense because, if that was the
nature of a mandamus, “there would be no difference between it and an appeal from
the agency’s decision or other forms of actions to address those concerns”). Because
we cannot direct the Board to issue a decision, and because we cannot order the
Board to retract or reverse its decision, there is no relief that we can provide
Vaccarello with his mandamus action.
             In short, Vaccarello cannot establish a right to relief. The Board has no
duty to grant Vaccarello parole upon completion of his RRRI minimum sentence.
Further, Vaccarello has no right to parole and Vaccarello cannot use mandamus to
challenge the Board’s findings supporting its decision to deny parole. Accordingly,
the Board’s preliminary objection in the nature of a demurrer is sustained, and the
petition is dismissed with prejudice.


                                        __________________________________
                                        CHRISTINE FIZZANO CANNON, Judge




                                          7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph A. Vaccarello,                    :
                  Petitioner             :
                                         :
             v.                          :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 610 M.D. 2018
                  Respondent             :

                                    ORDER


             AND NOW, this 22nd day of July, 2019, the preliminary objection in
the nature of a demurrer filed by the Pennsylvania Board of Probation and Parole is
sustained and the petition for review is dismissed with prejudice.



                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge
