             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph [Anthony] Montgomery,                     :
                      Petitioner                 :
                                                 :
               v.                                :   No. 525 M.D. 2015
                                                 :   Submitted: November 18, 2016
Pennsylvania Department of                       :
Corrections, et al.,                             :
                       Respondents               :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                     FILED: March 17, 2017

               Before this Court in our original jurisdiction are the preliminary
objections of the Pennsylvania Department of Corrections (Department) to a
petition for review in the nature of mandamus (Petition) filed by inmate Joseph
Anthony Montgomery (Montgomery), pro se. Montgomery asks this Court to
direct the Department to recalculate his prison sentence.1                     For the reasons
expressed below, we overrule DOC’s preliminary objections.
               Montgomery is an inmate currently confined at the State Correctional
Institution at Houtzdale (SCI-Houtzdale).              On March 11, 2014, the Court of
Common Pleas of Delaware County (sentencing court) sentenced Montgomery

       1
         “Where a trial court’s sentencing order is legal on its face, . . . a prisoner may petition
this Court in our original jurisdiction seeking a writ of mandamus to compel [the Department] to
properly compute a prisoner’s prison sentence.” Barndt v. Dep’t of Corr., 902 A.2d 589, 598
(Pa. Cmwlth. 2006); Doxsey v. Cmwlth., 674 A.2d 1173, 1175 (Pa. Cmwlth. 1996).
to 11 months, 15 days to 23 months, on indictment CP6885-13 (First Sentence).
On April 29, 2011, the sentencing court sentenced Montgomery on two additional
indictments: 1 to 2 years on indictment CP4510-13 (Second Sentence), and 3 to 23
months on indictment CP3968-13 (Third Sentence). Finally, on May 8, 2014, the
sentencing court sentenced Montgomery to 30 to 72 months on CP6055-13 (Fourth
Sentence).
             Pertinent to our instant review of this matter, the sentencing form for
the Third Sentence contained language that the parties now contest. The form
provided that the Third Sentence should be served concurrent to the First Sentence,
and consecutive to the Second Sentence. Based on the four sentencing forms, the
Department calculated Montgomery’s total sentence to be 4 years, 8 months,
and 15 days to 11 years, 10 months. Montgomery challenged the Department’s
calculation, first with the Department and then with the sentencing judge. When
the sentencing judge informed Montgomery that the correct avenue to challenge
the Department’s calculation was through a petition for review, Montgomery filed
his Petition with this Court. Montgomery contests the aggregation of all his
sentences because the trial court ordered the Third Sentence to be served
concurrent to the First Sentence. Montgomery argues that his sentence, correctly
calculated with the concurrent sentences, should be 4 years, 5 months, and 15 days
to 9 years, 11 months.
             In this case, the Department demurs to Montgomery’s Petition based
upon its assertion that Montgomery has not pleaded facts showing that he has a
clear right to relief. Namely, the Department makes the following assertion for
why Montgomery is not entitled to mandamus:
             Petitioner offers nothing more than his own unsupported
             allegations that his sentence has been improperly

                                         2
            calculated, while also failing to provide a clear,
            unsupported, logical calculation of his own.
(Prel. Obj. at 3, ¶13.) The Department avers that it relied on the sentencing orders
in its calculation, which it must faithfully implement as an executive branch
agency. (Id. at ¶¶14-15.)
            In ruling on preliminary objections, we accept as true all well-pleaded
material allegations in the petition for review and any reasonable inferences that
we may draw from the averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa.
Cmwlth. 1994).      The Court, however, is not bound by legal conclusions,
unwarranted inferences from facts, argumentative allegations, or expressions of
opinion encompassed in the petition for review. Id. We may sustain preliminary
objections only when the law makes clear that the petitioner cannot succeed on his
claim, and we must resolve any doubt in favor of the petitioner. Id. When
considering preliminary objections in the nature of a demurrer, we may sustain a
demurrer only when a petitioner has failed to state a claim for which relief may be
granted. Clark v. Beard, 918 A.2d 155, 158 (Pa. Cmwlth. 2007). Moreover, we
have held that “a demurrer cannot aver the existence of facts not apparent from the
face of the challenged pleading.” Martin v. Dep’t of Transp., 556 A.2d 969, 971
(Pa. Cmwlth. 1989).
            At this stage in the proceedings, we conclude that the Department has
not demonstrated that Montgomery cannot succeed on his claim. He is permitted,
pursuant to Doxsey v. Commonwealth, 674 A.2d 1173 (Pa. Cmwlth. 1996), to seek
mandamus to compel the Department to correctly calculate his sentence. Doxsey,
674 A.2d at 1175. Montgomery has, therefore, stated a claim for which relief may
be granted. We further note that the Department has provided no clarity as to how
the Third Sentence was correctly applied, concurrent to the First Sentence and

                                         3
consecutive to the Second Sentence. While we make no final determination as to
the merits of the Petition, at this point in the proceedings we must overrule the
Department’s preliminary objections.




                              P. KEVIN BROBSON, Judge




                                       4
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph [Anthony] Montgomery,         :
                      Petitioner     :
                                     :
             v.                      :      No. 525 M.D. 2015
                                     :
Pennsylvania Department of           :
Corrections, et al.,                 :
                       Respondent(s) :



                                   ORDER


            AND NOW, this 17th day of March, 2017, the preliminary objections
filed by the Pennsylvania Department of Corrections (Department) are overruled.
The Department is directed to file an answer on or before April 17, 2017.




                               P. KEVIN BROBSON, Judge
