        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Craig Moss,                               :
                    Petitioner            :
                                          :
              v.                          :   No. 356 M.D. 2017
                                          :   Submitted: January 5, 2018
Pennsylvania Board of Probation           :
and Parole,                               :
                 Respondent               :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                        FILED: April 25, 2018


              Before this Court is the preliminary objection in the nature of a
demurrer filed by the Pennsylvania Board of Probation and Parole (Board) to the
petition for review filed by Craig Moss (Petitioner). In his petition for review,
Petitioner seeks a writ of mandamus compelling the Board to release a detainer
lodged against him and related injunctive and declaratory relief. For the reasons
stated below, this Court grants the preliminary objection and dismisses the petition
for review.
              Petitioner filed a pro se petition for review in this Court’s original
jurisdiction on August 11, 2017. In the petition, Petitioner alleges that the Board
lodged a detainer against him on January 15, 2017 after he was arrested in York
County and charged with Terroristic Threats, Possession of an Instrument of a Crime
and Simple Assault. (Petition for Review ¶5, Ex. A.) Petitioner alleges that he was
on parole since April 2008, that he did not violate the terms of his parole and that he
had been gainfully employed prior to his arrest and posed no threat to the
Commonwealth. (Id. ¶¶7, 33, 38-39, 43.) Petitioner alleges that the criminal charges
were based solely on the allegations of an Officer Miller in the affidavit of probable
cause and that these allegations were undermined by testimony of others at his March
1, 2017 preliminary hearing. (Id. ¶¶6, 12.) Petitioner alleges that he has not been
afforded a detention hearing since the preliminary hearing by which he could contest
the basis of his detention and the unfounded criminal allegations against him. (Id.
¶¶13, 33.)
              Petitioner alleges that he has been harmed due to the Board’s actions
because he has been unlawfully detained; unable to pay his mortgage on time and to
communicate with his mortgage lender, which may lead to the foreclosure of his
home; unable to participate in the Commonwealth’s Homeowners’ Emergency
Mortgage Assistance Program (HEMAP); unable to provide for his family, including
his five children; and unable to prepare for the criminal trial. (Petition for Review
¶¶12, 14-15, 25-26, 28, 30-33, 37.) Petitioner asserts that the Board’s actions have
violated various rights guaranteed to him by the United States and Pennsylvania
Constitutions, including the rights to due process, to a fair and speedy trial, to be
tried by a jury and to compulsory process to obtain witnesses in his favor and the
prohibitions on cruel and unusual punishment and excessive bail. (Id. ¶¶9-10, 15-
16, 20-24, 27, 29-30, 32 (citing U.S. Const. amends. IV-VI, VIII, XIV; Pa. Const.
art. I, §§ 1, 9, 12, 14-15, 17, 26).)




                                          2
               Petitioner requests that this Court enter an order compelling the Board
to lift his detainer and reinstate his parole so that he may be released on bail.
(Petition for Review ¶¶44-45.) Petitioner requests that this Court order further
injunctive relief requiring the Board to (i) transport him to meet with a HEMAP
representative so that he may attempt to enroll in that program; (ii) pay all of his
past-due mortgage payments; and (iii) pay for a private investigator, medical expert
and audiologist for his upcoming criminal trial. (Id. ¶¶46-48.) In addition, Petitioner
requests that this Court enter an order stating that the Board’s actions violated the
United States and Pennsylvania Constitutions. (Id. ¶¶49-50.)
               In its preliminary objection to the petition for review, the Board argues
that Petitioner is not entitled to a writ of mandamus because he has failed to show
that he has a clear legal right to have the detainer lifted or that the Board has a duty
to do so.1 A writ of mandamus is an extraordinary remedy that is used to compel a
ministerial act or a mandatory duty. McCray v. Department of Corrections, 872
A.2d 1127, 1131 (Pa. 2005); Wilson v. Pennsylvania Board of Probation and Parole,
942 A.2d 270, 272 (Pa. Cmwlth. 2008). Mandamus may only be granted where (i)
there is a clear legal right in the petitioner, (ii) a corresponding duty in the
respondent, and (iii) no other adequate and appropriate remedy. McCray, 872 A.2d
at 1131; Wilson, 942 A.2d at 272. The writ of mandamus is only available to enforce

1
  When reviewing preliminary objections to a petition for review in our original jurisdiction, this
Court must treat as true all well-pleaded, material and relevant facts together with any reasonable
inference that can be drawn from those facts. McGinley v. Pennsylvania Board of Probation and
Parole, 90 A.3d 83, 87 (Pa. Cmwlth. 2014); Wilson v. Pennsylvania Board of Probation and
Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). Preliminary objections will be sustained only
where it is clear and free from doubt that the pleaded facts are legally insufficient to establish a
right to relief. McGinley, 90 A.3d at 87-88; Wilson, 942 A.2d at 272. A preliminary objection in
the nature of a demurrer will be sustained only in cases where it is clear and free from doubt that
the law permits no recovery under the allegations pleaded. Nieves v. Pennsylvania Board of
Probation and Parole, 983 A.2d 236, 239 n.1 (Pa. Cmwlth. 2009).

                                                 3
a recognized legal right and may not be used to establish a legal right. Allen v.
Department of Corrections, 103 A.3d 365, 369 (Pa. Cmwlth. 2014); Wilson, 942
A.2d at 272.
               We agree with the Board that Petitioner’s mandamus claim is legally
insufficient. First, Petitioner’s averments do not support a conclusion that he has a
clear legal right to have his detainer lifted. The Prisons and Parole Code and the
Board’s regulations plainly permit the Board to detain a parolee who commits a
criminal offense while on parole. Pursuant to the Prisons and Parole Code, “[p]arole
shall be subject in every instance to the Commonwealth’s right to immediately retake
and hold in custody without further proceedings any parolee charged after his parole
with an additional offense until a determination can be made whether to continue his
parole status.” 61 Pa. C.S. § 6137(a)(2). Board regulations provide that every
parolee must, as a condition of parole, comply with municipal, county, State and
Federal criminal statutes as a condition of parole and must refrain from “assaultive
behavior.” 37 Pa. Code § 63.4(4), (5)(iii). Board regulations further provide that,
“[i]f the parolee violates the conditions of parole, at a time during his period on
parole, the Board may cause his detention or return to a correctional institution.”2
37 Pa. Code § 63.3; see also 37 Pa. Code § 65.5(2) (providing that the Board may
detain parolees who are arrested when released on special parole). There is no
dispute in this matter that Petitioner was arrested and charged with new criminal
offenses in January 2017 and that he was on parole by the Board at the time of his



2
  If Petitioner is found guilty of the felony or misdemeanor charges against him, the Board may,
at its discretion, recommit him as a convicted parole violator to serve the remainder of his
outstanding sentence with no credit for time spent at liberty on parole. 61 Pa. C.S. § 6138(a)(1)-
(2.1).

                                                4
arrest. The Board accordingly acted within its authority when it detained him
pending the resolution of his new criminal charges.
             Petitioner asserts that the Board violated various provisions of the
United States and Pennsylvania Constitutions by refusing to lift the detainer. When
alleging a constitutional violation as a basis for a mandamus claim, a petitioner is
required to plead sufficient facts showing that the challenged action clearly and
unambiguously violated the constitutionally secured right. Nickson v. Pennsylvania
Board of Probation and Parole, 880 A.2d 21, 24 (Pa. Cmwlth. 2005). Petitioner has
failed to make such a showing, citing no cases holding that the Board’s filing of a
warrant to detain a parolee based on new criminal charges violates his constitutional
rights. To the extent Petitioner argues that the detainer interferes with his ability to
be released on bail on his new criminal charges, our Supreme Court has held that the
Board’s lodging of a detainer against a parolee based on the filing of new criminal
charges does not violate the parolee’s right to bail as it does not preclude the setting
of bail on the new charges. Hines v. Pennsylvania Board of Probation and Parole,
420 A.2d 381, 384 (Pa. 1980); see also Kunkelman v. Pennsylvania Board of
Probation and Parole, 396 A.2d 898, 899 (Pa. Cmwlth. 1979). Furthermore, we
note that courts have rejected the argument that the Board’s lodging of a detainer
against a parolee arrested on new charges violates due process because the detainer
does not deprive the parolee of an absolute right to liberty, but only the conditional
liberty dependent on observance of conditions of parole to which he was subjected.
Lee v. Pennsylvania Board of Probation and Parole, 467 F. Supp. 1043, 1046 (E.D.
Pa. 1979); Burgess v. Roth, 387 F. Supp. 1155, 1162 (E.D. Pa. 1975).
             Furthermore, Petitioner’s allegation that the Board has a duty to lift the
detainer against him is similarly meritless. In cases where the parolee is charged


                                           5
with new charges for violation of the laws of the Commonwealth, the new charges
constitute a 15-day automatic detainer on the parolee. 61 Pa. C.S. § 6138(b)(1)-(2).
Once the 15-day period lapses, however, the automatic detainer dissolves and the
decision of whether to maintain or lift a detainer on the parolee is within the
discretion of the Board. 61 Pa. C.S. § 6138(b)(2); 37 Pa. Code § 63.3 (“If the parolee
violates the conditions of parole, at a time during his period on parole, the Board
may cause his detention or return to a correctional institution.”) (emphasis added);
Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 303 (Pa.
2003) (“where a parolee is arrested while on parole, the Board is permitted, at its
discretion, to place a detainer against the parolee that will ‘prevent the parolee from
making bail pending the disposition of the new charges or other action of the
court.’”). A writ of mandamus is unsuitable to compel an agency “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.”       Nickson, 880 A.2d at 24.
Mandamus is only appropriate “when, under a correct interpretation of [the] law, the
agency has an absolute ministerial duty—no choice—to act in a certain way.”
Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766, 777 (Pa.
Cmwlth. 1997) (en banc). Thus, this Court has repeatedly held that mandamus will
not lie to compel the Board to re-parole a prisoner when that decision is a matter of
discretion. See, e.g., Evans v. Pennsylvania Board of Probation and Parole, 820
A.2d 904, 915 (Pa. Cmwlth. 2013); Nickson, 880 A.2d at 23. Similarly, here, the
decision of whether to lift a detainer on a parolee who is arrested on new criminal
charges in violation of the conditions of his parole is a discretionary act as to which
mandamus will not lie.




                                          6
                Accordingly, Petitioner has not adequately pleaded a claim for a writ of
mandamus and the Board’s preliminary objection is sustained. As Petitioner’s
requests for injunctive and declaratory relief are based on the allegations that the
Board violated Petitioner’s constitutional rights, these claims are also legally
insufficient.
                The petition for review is dismissed.


                                          ____________________________________
                                          JAMES GARDNER COLINS, Senior Judge




                                            7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Craig Moss,                             :
                    Petitioner          :
                                        :
              v.                        :   No. 356 M.D. 2017
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :
                 Respondent             :


                                   ORDER


              AND NOW, this 25th day of April, 2018, the preliminary objection of
the Pennsylvania Board of Probation and Parole is SUSTAINED, and the petition
for review filed by Petitioner Craig Moss is DISMISSED.


                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Craig Moss,                                :
                    Petitioner             :
                                           :   No. 356 M.D. 2017
              v.                           :
                                           :   Submitted: January 5, 2018
Pennsylvania Board of Probation            :
and Parole,                                :
                 Respondent                :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

CONCURRING OPINION
BY JUDGE McCULLOUGH                                         FILED: April 25, 2018


              While I agree with the result reached by the Majority, I write separately
to state my concerns regarding the continued detention of Craig Moss (Petitioner),
which may be in violation of his constitutional rights. More specifically, the record
indicates that Petitioner was arrested and charged with new criminal offenses on
January 15, 2017. That same day, the Pennsylvania Board of Probation and Parole
(Board) lodged its detainer against him. As of September 20, 2017, the record
indicated that Petitioner remained incarcerated without any final disposition of his
new criminal charges. Further, Petitioner alleged that he remained incarcerated
solely on the Board’s warrant and, as a result of this incarceration, may lose his home
to foreclosure, thereby displacing his wife and children.
               Pennsylvania Rule of Criminal Procedure (Pa.R.Crim.P.) 600(B)(1)
provides that “no defendant shall be held in pretrial incarceration in excess of . . .
180 days from the date on which the complaint is filed.” As our Supreme Court has
explained, it adopted Pa.R.Crim.P. 600 “to protect defendants’ constitutional rights
to a speedy trial under the Sixth Amendment of the United States Constitution and
Article I, Section 9 of the Pennsylvania Constitution.” Commonwealth v. Bradford,
46 A.3d 693, 700 (Pa. 2012); see also Commonwealth v. Mills, 162 A.3d 323, 324
(Pa. 2017) (discussing the 365-day rule for commencement of a court case against a
defendant under Pa.R.Crim.P. 600(A)(2)(a) and the manner in which these days are
computed). Although not dispositive of the present preliminary objections raised by
the Board, which the Majority appropriately sustains, I would urge the Board to
consider such facts in this and any future matters wherein a detainer is lodged against
a defendant.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                      PAM - 2
