J-S20028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, EX              IN THE SUPERIOR COURT OF
REL. MICHAEL GRILL                                  PENNSYLVANIA


                   v.

GARY ABRAMS, DIRECTOR: ET AL.,
JOHN DOE’S AND JANE DOE’S TO BE
NAMED/ PROGRESS CCC.,
WAYNESBURG, PENNSYLVANIA

APPEAL OF: MICHAEL GRILL
                                                  No. 1422 WDA 2015


               Appeal from the Order Entered August 6, 2015
              In the Court of Common Pleas of Greene County
                    Civil Division at No(s): 75 A.D. 2015


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                                FILED MAY 18, 2016

     Appellant, Michael Grill, appeals pro se from the order entered on

August 6, 2015, dismissing his writ of habeas corpus. Upon careful review

of the record, we transfer this case to the Commonwealth Court.

     We briefly summarize the background of this case as follows.

Appellant is a convicted sex offender who was released on parole from

prison to a secured facility in Greene County known as the Progress

Community Corrections Center (Progress).    Sometime after his release on

parole, Appellant filed a pro se writ of habeas corpus that challenged his

confinement at Progress, arguing that, although paroled, he remained

essentially incarcerated. On behalf of the above-named defendants, general

*Retired Senior Judge assigned to the Superior Court.
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counsel for the Commonwealth (the Commonwealth) filed a motion to

consolidate Appellant’s case with 21 other sex offender petitioners who

raised identical claims in similar filings.

      On May 12, 2015, the trial court granted the Commonwealth’s motion

to consolidate the 22 cases.      Thereafter, on May 18, 2015, the trial court

ordered the Commonwealth to respond to the writs of habeas corpus,

including the one filed by Appellant. The Commonwealth complied on July 6,

2015, arguing that all of the petitioners, including Appellant, “were unable to

secure an appropriate home plan prior to release from their respective state

correctional institutions” as required, but were paroled nevertheless “to

afford [them] an opportunity to maintain sexual offender counseling.” Brief

in Support of Motion to Dismiss, 7/6/2015, at 9. The Commonwealth argued

that there was nothing arbitrary or punitive about housing Appellant at

Progress, he was aware of the conditions of his parole prior to accepting

them, and he could have opted to stay in prison until an alternate home plan

was approved. Id. at 11-12.

      By order filed on August 6, 2015, the trial court denied Appellant relief

without a hearing. Appellant filed a notice of appeal. The trial court filed an

order on October 21, 2015, directing the Prothonotary to transmit the case

file to this Court for appeal.     The trial court did not prepare an opinion

pursuant to Pa.R.A.P. 1925(a).

      The thrust of Appellant’s complaint is that his grant of parole was

illusory, because he was subsequently released from prison to a secured

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facility, Progress, which restricts his freedom in the same way as a state

correctional facility.

       Initially, we confront whether Appellant properly filed his claims before

the Court of Common Pleas or whether his claims fall within the original

jurisdiction of the Commonwealth Court. With exceptions not applicable

here, “[t]he Commonwealth Court shall have original jurisdiction of all civil

actions or proceedings […a]gainst the Commonwealth government, including

any officer thereof, acting in his official capacity.” 42 Pa.C.S.A. § 761(a)(1).

In a challenge to the Board of Probation and Parole action in parole matters,

the nature of the allegations of the error and the relief sought determine

whether     the    case   comes    within      the   Commonwealth   Court’s   original

jurisdiction.     McGriff v. Com., 809 A.2d 455, 458 (Pa. Cmwlth. 2002),

affirmed per curiam, McGriff v. Pennsylvania Bd. of Probation and

Parole, 838 A.2d 564 (Pa. 2003). “Jurisdiction over complaints sounding in

mandamus[1] against State agencies administering the parole system, where
____________________________________________


1
  We recognize that Appellant filed a petition for writ of habeas corpus in this
matter, however, we previously determined that where “a complaint states a
viable mandamus claim, we will treat that portion of the action as such,
regardless of the fact that the complaint is not titled properly as one
involving mandamus.”        See Commonwealth ex. rel. Saltzburg v.
Fulcomer, 555 A.2d 912 (Pa. Super. 1989) (although action was titled as
one involving habeas corpus relief, it was clear that petitioner’s action was
one for mandamus to compel certain officials to act in conformity with the
regulations governing their public body and therefore, was treated as such).
In “stating a cause of action in mandamus to compel performance of a
ministerial act[, …p]etitioners must establish that they have a clear legal
right, that the respondents have a corresponding legal duty, and that there
(Footnote Continued Next Page)


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the complaint is not a direct or collateral attack on the conviction or

sentence, is vested exclusively in the Commonwealth Court.”           Id. (citation

omitted).   After careful review, we conclude that Appellant’s claims, while

framed as a habeas corpus action, state an action sounding in mandamus

against an agency administering the parole system.         As such, jurisdiction

over Appellant’s claims falls within the exclusive original jurisdiction of the

Commonwealth Court.

      The situation presented to the Commonwealth Court in Barge v.

Pennsylvania Board of Probation and Parole, 39 A.3d 530 (Pa. Cmwlth.

2012) provides support to our conclusion.         In Barge, incarcerated sex

offenders filed a mandamus action before the Commonwealth Court

pursuant to the Court’s exclusive original jurisdiction.   Therein:

         Appellants, who [were] represented by counsel, [were]
         convicted sexual offenders sentenced to state prison time[.]
         [They] qualified for and [had] been “granted” parole by the
         Pennsylvania Board of Probation and Parole (“PBPP”), which
         determined that they present[ed] no or low risk of harm to
         society. But, in their cases at least, the grant of parole was
         illusory: their release to halfway houses (whether run by
         the Department of Corrections (“DOC”) or contracted by the
         DOC and run by private operators) ha[d] been delayed
         significantly longer than the release times for non-sexual
         offenders who [were] also [] found to pose no or low risk to
         society and granted parole. Appellants argue[d]: (1) that
         the DOC's inability or refusal to ensure their release and
         placement into halfway houses within a time frame
         comparable to that of non-sexual offenders wrongly
                       _______________________
(Footnote Continued)

is no other adequate or appropriate remedy at law.”         Madden v. Jeffes,
482 A.2d 1162, 1165 (Pa. Cmwlth. 1984).



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        interfere[d] with and usurp[ed] PBPP's core statutory
        authority to grant parole; and (2) that there [was] no
        rational basis for this different treatment of sexual
        offenders, which therefore violate[d] their equal protection
        rights under the U.S. and Pennsylvania Constitutions.

                            *        *           *

        In a published opinion, the Commonwealth Court rejected
        appellants' statutory claim, agreeing with the DOC that
        while the PBPP's governing statutes empower it to grant
        parole, the statutory authority in place at the time relevant
        here did not authorize the PBPP to actually place inmates in
        halfway houses, force the DOC to accept all parolees, or
        operate its own halfway houses where inmates like
        appellants might be more easily admitted. Barge v. Pa. Bd.
        of Prob. & Parole, 39 A.3d 530, 542–543 (Pa. Cmwlth.
        2012).

Barge v. Pennsylvania Bd. of Probation and Parole, 96 A.3d 360, 361

(Pa. 2014) (Castille, concurring).

      The nature of the claims raised in Barge are similar to those advanced

in the present case and lead us to conclude that the instant claims fall within

the scope of the Commonwealth Court’s exclusive original jurisdiction.      In

Barge, imprisoned sex-offenders challenged the DOC’s and/or the PBPP’s

failure or refusal to release them to halfway houses despite their paroled

status. Here, Appellant challenges the decision to parole him to a halfway

house, claiming that the residential restrictions constitute imprisonment. In

both cases, the challenges sought to compel certain officials to act in

conformity with the regulations governing their public body. For this reason,

we transfer this case to Commonwealth Court and relinquish jurisdiction.

      Case transferred to Commonwealth Court. Jurisdiction relinquished.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2016




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