                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hubert Jackson,                            :
                              Petitioner   :
                                           :
                       v.                  :
                                           :
Kathleen G. Kane,                          :
PA Attorney General,                       :   No. 487 M.D. 2014
                              Respondent   :   Submitted: September 18, 2015



BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE MARY HANNAH LEAVITT, Judge
               HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: December 23, 2015

               Pennsylvania Attorney General Kathleen G. Kane (AG) preliminarily
objects to the Second Amended Petition for a Writ of Mandamus (Second Amended
Petition) filed by Hubert Jackson (Jackson), in this Court’s original jurisdiction,
seeking a writ of mandamus against the AG. There are two issues before the Court:
(1) whether Jackson failed to pursue an adequate alternative remedy; and (2) whether
Jackson’s Second Amended Petition is legally sufficient because he is seeking to
compel the AG to revise an order she did not issue regarding a hearing over which
she did not preside. After review, we sustain the AG’s preliminary objections.
               Jackson is an inmate at the State Correctional Institution - Somerset. On
April 7, 2014, Jackson received his Criminal History Record Information (Criminal
History) pursuant to the Criminal History Record Information Act (CHRIA).1 On
May 5, 2014, Jackson challenged his Criminal History. On May 14, 2014, the

      1
          18 Pa.C.S. §§ 9101 - 9183.
Pennsylvania State Police (PSP) ruled Jackson’s challenge invalid.2                  Jackson
appealed from that ruling and a hearing was held on November 17, 2014 before
Administrative Law Judge Lawrence M. Cherba (ALJ).3                  On January 7, 2015,
Jackson filed a Petition for Writ of Mandamus (Petition) against the AG because he
did not receive a decision from the November 17, 2014 hearing. By January 12, 2015
order, this Court directed the AG to file an answer or otherwise plead within 30 days
of the order. On February 12, 2015, the AG filed preliminary objections to Jackson’s
Petition.4   On March 9, 2015, Jackson filed an Amended Petition for Writ of
Mandamus (Amended Petition). By March 11, 2015 order, this Court dismissed the
AG’s preliminary objections, and directed the AG to file an answer or otherwise
plead within 30 days of the order.
              By February 10, 2015 order, the ALJ denied Jackson’s appeal from his
Criminal History challenge. By April 1, 2015 order, this Court preserved March 2,
2015 as the filing date for Jackson’s appellate jurisdiction challenge to that order and
directed Jackson to file an appellate jurisdiction petition for review within 30 days of
the order.
              On April 10, 2015, the AG filed preliminary objections to Jackson’s
Amended Petition. On April 20, 2015, Jackson filed his Second Amended Petition
still seeking a decision from the November 17, 2014 hearing on the basis that the

       2

                [T]he State Police is the proper party to defend challenges to the
               accuracy of criminal history records pursuant to CHRIA. See Clark v.
               P[a]. State Police, 760 A.2d 1202 (Pa. Cmwlth. 2000) (noting that the
               State Police has the burden of proving the accuracy of criminal
               history record information under Section 9152 of [CHRIA]).
Dunbar v. Pa. State Police, 902 A.2d 1002, 1005 (Pa. Cmwlth. 2006).
        3
          ALJ Cherba is the AG’s Criminal Law Division Executive Deputy appointed by the AG to
hear PSP appeals pursuant to CHRIA. See AG’s Preliminary Objections to Jackson’s Amended
Petition Ex. C; Notes of Testimony, November 17, 2014 at 5.
        4
          By February 12, 2015 order, this Court granted the AG an extension of time to file a
responsive pleading.
                                              2
February 10, 2015 order was void for failure to include findings and reasons for the
adjudication. By April 22, 2015 order, this Court directed the AG to file an answer or
other pleading within 30 days of the date of the order. On May 20, 2015, the AG
filed preliminary objections to Jackson’s Second Amended Petition.5
               Initially, Pennsylvania Rule of Civil Procedure Number 1028(a)
provides:

               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;
               (2) failure of a pleading to conform to law or rule of court
               or inclusion of scandalous or impertinent matter;
               (3) insufficient specificity in a pleading;
               (4) legal insufficiency of a pleading (demurrer);
               (5) lack of capacity to sue, nonjoinder of a necessary party
               or misjoinder of a cause of action;



       5
         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).

               [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).


                                                 3
             (6) pendency of a prior action or agreement for alternative
             dispute resolution;
             (7) failure to exercise or exhaust a statutory remedy, and
            (8) full, complete and adequate non-statutory remedy at
            law.
Pa.R.C.P. No. 1028(a) (emphasis added; notes omitted). Further,

             [a] writ of mandamus is an extraordinary remedy used to
             compel official performance of a ministerial act when a
             petitioner establishes a clear legal right, the respondent has
             a corresponding duty, and the petitioner has no other
             adequate remedy at law. The purpose of mandamus is to
             enforce rights that have been clearly established.
Tindell v. Dep’t of Corr., 87 A.3d 1029, 1034 (Pa. Cmwlth. 2014) (citation omitted).
“An objection which alleges the failure to pursue an adequate alternative remedy,
therefore, raises a question of jurisdiction and is properly pleaded as a preliminary
objection.” Merritt v. Mifflin Area Sch. Dist., 424 A.2d 572, 573 (Pa. Cmwlth. 1981).
             The AG first argues that this Court lacks jurisdiction over Jackson’s
Second Amended Petition because Jackson failed to pursue an adequate alternative
remedy. Specifically, the AG contends Jackson has a statutory right to appeal under
Section 9152 of CHRIA, 18 Pa.C.S. § 9152. We agree.
             Pursuant to Section 9152 of CHRIA, any individual is permitted to
request to review his own criminal history. If a requester believes his criminal
history is incorrect, he is permitted to challenge the accuracy of his criminal history.
If the challenge is ruled invalid, the individual has the right to appeal from that
decision to the Commonwealth Court.            Specifically Section 9152(e) of CHRIA
provides:

             Appeals.—
             (1) If the challenge is ruled invalid, an individual has the
             right to appeal the decision to the Attorney General within
             30 days of notification of the decision by the criminal
             justice agency.
                                           4
               (2) The Attorney General shall conduct a hearing de novo in
               accordance with the Administrative Agency Law.[6] The
               burden of proof shall be upon the party bearing the burden
               of proof on the challenge.
               (3) The decision of the Attorney General may be
               appealed to the Commonwealth Court by an aggrieved
               individual.

18 Pa.C.S. § 9152(e) (heading emphasis omitted; text emphasis added).
               Here, the PSP ruled Jackson’s challenge invalid on May 14, 2014.
Jackson appealed from that ruling to the AG’s office and an ALJ hearing was held on
November 17, 2014. On February 10, 2015, the ALJ denied Jackson’s appeal. By
April 1, 2015 order, this Court preserved March 2, 2015 as the filing date for
Jackson’s appellate jurisdiction challenge to that order and directed Jackson to file
an appellate jurisdiction petition for review within 30 days of the order. Jackson
did not file a petition for review in this Court’s appellate jurisdiction, but rather
filed his Second Amended Petition in this Court’s original jurisdiction.

               The Commonwealth Court is a hybrid court, hearing some
               matters as a court of original jurisdiction and others in its
               appellate jurisdiction. The Judicial Code thus confines the
               jurisdiction of the Commonwealth Court to certain appeals
               from governmental agencies and courts of common pleas,
               and to certain matters commenced in the Commonwealth
               Court itself. See 42 Pa.C.S. §§ 761–764. . . . An appeal
               includes a proceeding on petition for review, and is
               defined generally as any application to a court for review of
               a subordinate governmental determination. See 42 Pa.C.S.
               § 102 . . . . In parallel, the Commonwealth Court has
               original jurisdiction over all civil actions against the
               Commonwealth government and over any civil actions,
               ‘[o]riginal jurisdiction of which is vested in the
               Commonwealth Court by any statute hereafter enacted.’ 42
               Pa.C.S. § 761(a)(1), (4). A civil action includes any action
               at law. See 42 Pa.C.S. § 102 . . . .

      6
          2 Pa.C.S. §§ 101, 501–508, 701–704.


                                                5
Mercury Trucking v. Pa. Pub. Utility Comm’n., 55 A.3d 1056, 1068 (Pa. 2012)
(emphasis added). Here, this Court expressly directed Jackson to file a petition for
review in this Court’s appellate jurisdiction and he did not. His failure to do so
constituted a failure to exhaust his statutory right of appeal. Because Jackson had
another “adequate remedy at law[,]” his Second Amended Petition is improper.
Tindell, 87 A.3d at 1034. Consequently, since Jackson failed “to exercise or exhaust
a statutory remedy[,]” this Court lacks jurisdiction over his claims. Pa.R.C.P. No.
1028(a)(7).
              Accordingly, the AG’s first preliminary objection is sustained, and
Jackson’s Second Amended Petition is dismissed.7

                                          ___________________________
                                          ANNE E. COVEY, Judge




       7
        Because the AG’s first preliminary objection is sustained, we need not address the AG’s
second preliminary objection.
                                              6
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hubert Jackson,                        :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Kathleen G. Kane,                      :
PA Attorney General,                   :   No. 487 M.D. 2014
                        Respondent     :



                                     ORDER

             AND NOW, this 23rd day of December, 2015, Pennsylvania Attorney
General Kathleen G. Kane’s (AG) first Preliminary Objection to Hubert Jackson’s
(Jackson) Second Amended Petition for Writ of Mandamus Against the AG (Second
Amended Petition) is sustained, and Jackson’s Second Amended Petition is
dismissed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
