              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harvey Patrick Short,                   :
                          Petitioner    :
                                        :
                   v.                   :
                                        :
Kimberly Barkley, Chairperson           :
Victor W. Wills, IV, Director           :
Jane Doe, Hearing Officer               :
John Doe, Hearing Officer               :
Pennsylvania Board of                   :
Probation and Parole,                   :   No. 438 M.D. 2016
                         Respondents    :   Submitted: January 20, 2017


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                 FILED: April 12, 2017

            The Pennsylvania Board of Probation and Parole (PBPP), PBPP
Secretary Kimberly Barkley and PBPP Policy and Legislative Affairs Director Victor
W. Wills, IV (collectively, Board) filed preliminary objections in the nature of a
demurrer to Harvey Patrick Short’s (Short) pro se Petition for a Writ of Mandamus
(Mandamus Action) filed in this Court’s original jurisdiction seeking a new parole
hearing by different hearing officers. The sole issue before the Court is whether
Short’s Mandamus Action states a claim upon which relief may be granted. After
review, the Board’s preliminary objections are sustained and Short’s Mandamus
Action is dismissed.
            Short is serving a one to four-year prison term at the State Correctional
Institution at Mahanoy.    Short filed his Mandamus Action on August 8, 2016,
alleging that “he was discriminated against by the parole hearing officers based upon
his mental disability [Schizophrenia] and race (Afro-American) and denied parole[.]”
Mandamus Action at 2 ¶ 15. On August 11, 2016, the Court sent Short a Defect
Correction Notice due to his failure to pay a filing fee. On September 2, 2016, Short
filed an Application to Proceed in Forma Pauperis (Application). By September 7,
2016 Order, this Court granted Short’s Application and directed the Board to file an
answer or otherwise plead to the Mandamus Action within 30 days. On October 7,
2016, the Board filed its preliminary objections.
               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).
               The Board first argues that Short failed to state a claim upon which relief
can be granted because decisions to grant or deny parole are not adjudications under
the Administrative Agency Law.1            Short rejoins that he “is not appealing the
[PBPP’s] written decision dated July 7, 2016 that denied him parole. He is seeking to
prevent the [PBPP] from using his mental health disabilities and race in the parole
determination process.” Short Br. at 9.

      1
          2 Pa.C.S. §§ 501-508, 701-704.
                                              2
              Notwithstanding, our Supreme Court has expressly held:

              [T]he definition of adjudication clearly and unambiguously
              provides that parole decisions are not ones which are
              subject to appellate review by the courts. Therefore,
              because the General Assembly, in its wisdom, has conferred
              upon the [PBPP] sole discretion to determine whether a
              prisoner is sufficiently rehabilitated to serve the remainder
              of his sentence outside of the confines of prison, we hold
              that the courts of the Commonwealth do not have statutory
              jurisdiction to conduct appellate review of a decision of the
              [PBPP], since such a decision does not constitute an
              adjudication.

Rogers v. Pa. Bd. of Prob. & Parole, 724 A.2d 319, 322 (Pa. 1999). Thus, the
Board’s preliminary objection on that basis is sustained.
              The Board next argues that Short has no clear right to relief and,
therefore, the Mandamus Action fails to state a claim upon which relief can be
granted. It is well-established:

              Mandamus is an extraordinary writ ‘which will only lie to
              compel official performance of a ministerial act or
              mandatory duty where there is a clear legal right in the
              [petitioner], a corresponding duty in the [respondent], and
              want of any other adequate and appropriate remedy.’[2]
              Bronson v. Pa. Bd. of Prob. & Parole, . . . 421 A.2d 1021,
              1023 ([Pa.] 1980). Further, mandamus will not lie to
              compel a discretionary act, nor will it restrain official
              activities. Id.[; s]ee also Commonwealth v. Vladyka, . . .
              229 A.2d 920 ([Pa.] 1967). ‘While [potential parolees]
              are not entitled to appellate review of a [PBPP] decision,
              they may be entitled to pursue allegations of
              constitutional violations against the [PBPP] through a
              writ of mandamus.’ Rogers . . . ; see also Coady [v.
              Vaughn], 770 A.2d [287,] 289 [(Pa. 2001)].




       2
        Importantly, Short is seeking a writ to compel the PBPP to give him another parole hearing.
However, according to the July 7, 2016 PBPP decision attached to Short’s Mandamus Action, Short
was already scheduled to be reviewed in or after January 2017.
                                                3
Cimaszewski v. Pa. Bd. of Prob. & Parole, 868 A.2d 416, 422 (Pa. 2005) (emphasis
added).
            Here, Short avers “the [Board] violated his 14th Amendment United
States Constitutional Right to Equal Protection [o]f [t]he Law, his right under the
Americans with Disabilities Act [(ADA)], 42 U.S.C. [§] 12132, and the Pennsylvania
laws against discrimination when [it] denied him parole based upon [his] mental
disabilities and race[.]” Mandamus Action at 2 ¶ 16. “However, in order to properly
state an equal protection claim, [Short] must allege that he [received] different
treatment from that received by other similarly-situated individuals due to his
membership in a particular class and his assertions of intentional disparate treatment
must be supported by specific factual allegations.” Mobley v. Coleman, 110 A.3d
216, 222 (Pa. Cmwlth. 2015).
            The only specific factual allegation Short averred to support his claim of
intentional disparate treatment in his Mandamus Action was: “[O]n June 23, 2016,
two (2) other inmates who were of a different race received parole hearings that
lasted more than 15 minutes, and they received favorable outcomes by being granted
parole[.]” Mandamus Action at 1 ¶ 14. This Court cannot discern from this averment
whether the other two inmates were in fact similarly-situated to Short in any manner.
Thus, that one allegation is not sufficient to support Short’s equal protection claims.
Consequently, Short’s alleged constitutional violations on this basis cannot
substantiate his Mandamus Action.
            Moreover, pursuant to Section 6135 of the Prisons and Parole Code:
            (a) . . . The [PBPP], on the commitment to a correctional
            facility of any person whom the [PBPP] is given the power
            to parole under this chapter, shall consider [inter alia]:
            (1) The nature and circumstances of the offense committed.
            ....


                                          4
              (7) The conduct of the person while in prison and his
              physical, mental and behavioral condition and history, his
              history of family violence and his complete criminal record.

61 Pa.C.S. § 6135 (text emphasis added). Accordingly, if the PBPP in fact denied
Short parole based upon a mental condition, it was completely within its statutory
authority to do so.3 Thus, Short’s alleged ADA violation cannot substantiate his
Mandamus Action.          Because Short has no clear right to relief, the Board’s
preliminary objection on this basis is sustained.
              For all of the above reasons, the Board’s preliminary objections are
sustained, and Short’s Mandamus Action is dismissed.

                                          ___________________________
                                          ANNE E. COVEY, Judge




       3
          Although “[t]he nature and circumstances of the offense committed,” 61 Pa.C.S. §
6135(a)(1), is also a factor to be considered, while Short provides the reason he was originally
imprisoned, he does not state anywhere in his Mandamus Action or his brief, the nature of the
parole violation for which he is currently serving a one to four-year sentence.


                                               5
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harvey Patrick Short,                    :
                         Petitioner      :
                                         :
                  v.                     :
                                         :
Kimberly Barkley, Chairperson            :
Victor W. Wills, IV, Director            :
Jane Doe, Hearing Officer                :
John Doe, Hearing Officer                :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 438 M.D. 2016
                         Respondents     :


                                      ORDER


             AND NOW, this 12th day of April, 2017, the Pennsylvania Board of
Probation and Parole (PBPP), PBPP Secretary Kimberly Barkley and PBPP Policy
and Legislative Affairs Director Victor W. Wills, IV’s preliminary objections in the
nature of a demurrer to Harvey Patrick Short’s (Short) pro se Petition for a Writ of
Mandamus (Mandamus Action) are sustained and Short’s Mandamus Action is
dismissed.


                                       ___________________________
                                       ANNE E. COVEY, Judge
