               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin Whitaker,                                  :
                       Petitioner                :
                                                 :
               v.                                : No. 347 M.D. 2016
                                                 : Submitted: June 23, 2017
Department of Corrections,                       :
                 Respondent                      :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                          FILED: November 1, 2017
               Before this Court are the preliminary objections in the nature of a
demurrer filed by the Pennsylvania Department of Corrections to an amended
petition for review filed pro se by Kevin Whitaker in this Court’s original
jurisdiction.1 For the reasons that follow, we overrule the Department’s preliminary
objections.
               At the time he filed the amended petition for review, Whitaker was
incarcerated at the State Correctional Institution (SCI) at Coal Township. The

1
  Initially, Whitaker filed a petition for review “for error of time credit while in custody” against
the Court of Common Pleas of Philadelphia County and the Philadelphia Prison System. By order
dated June 16, 2016, this Court directed Whitaker that, to the extent that he is challenging the
Department’s calculation of sentence, he must file an amended petition for review naming the
Department as respondent; to the extent he is seeking mandamus relief against the Court of
Common Pleas of Philadelphia County, jurisdiction lies in the Supreme Court of Pennsylvania;
and to the extent Whitaker seeks mandamus relief against the Philadelphia Prison System,
jurisdiction lies in the Philadelphia County Court of Common Pleas. Order (06/16/2016) at 1-2.
On July 11, 2016, Whitaker filed a “second” petition for review addressed to this Court’s original
jurisdiction, naming the Department as respondent. See 42 Pa. C.S. §761 (establishing this Court’s
jurisdiction). We refer to this “second” petition for review as Whitaker’s amended petition for
review.
petition alleges that Whitaker was arrested on March 29, 2014, and remained in
custody through November 12, 2015. In the meantime, on May 21, 2015, Whitaker
entered into a plea agreement before Philadelphia County Court of Common Pleas
Judge Robert P. Coleman, who “allow[ed] [him] to go on writ [of habeas corpus ad
prosequendum] before sentencing him, over to federal custody to be sentenced first.”
Addendum to Amended Petition for Review at 2. The petition then alleges that
Whitaker “went on writ some time in June of 2015 to be sentence[d] and was held
in federal custody” for about two weeks and then “was returned back to the
Philadelphia Prison System some time in June of 2015 awaiting to be sentence[d].”
Amended Petition ¶4. Thereafter, on November 12, 2015, Judge Coleman sentenced
him to a term of 30 to 60 months of imprisonment followed by 7 years of probation
and “ordered that all Philadelphia Prison System time is to be credit[ed] and that his
sentence is to run consecutive to any sentence that [he] is serving now.” Amended
Petition ¶5.
               The amended petition alleges that on November 17, 2015, Whitaker
was incarcerated at SCI-Camp Hill and received a sentence status summary
indicating, inter alia, that he would not receive credit to his sentence for the period
of incarceration from June 22, 2015, to November 12, 2015. Whitaker maintains
that the Department erred by failing to award him credit for that time because the
Court of Common Pleas of Philadelphia County never relinquished its primary
jurisdiction over him. He now seeks credit against his sentence for “all time spent
in custody prior to sentence.” Amended Petition at 3.
               An addendum filed to the amended petition for review alleges that
Whitaker wrote to the Philadelphia Prison System numerous times requesting review



                                          2
of the computation of his credit time.2 In response, he received two letters denying
his claim. The first letter, issued on June 7, 2016, explained that Whitaker was
eligible for credit only for the period from March 29, 2014, the date he was arrested,
to June 24, 2015, because “on 6/25/15, [he was] given a Federal sentence of 46
months, therefore [his] credit stops 6/24/15.” Addendum, Exhibit A. The second
letter, issued on July 19, 2016, stated that “[Whitaker] was awarded credit time from:
3/29/14 to: 6/29/15…. Time starting from 6/30/15 was awarded to [his] USM
sentence.” Addendum, Exhibit B. Whitaker asserts that he has not been given credit
for all of his time spent in custody, i.e., for his incarceration from June 22, 2015, to
November 12, 2015.
               The Department filed preliminary objections in the nature of a demurrer
seeking dismissal of Whitaker’s amended petition.3 It asserts that the amended
petition should be treated as an action in mandamus, which does not state a clear,
legal right to a writ of mandamus. The Department maintains that because it is not
an “adjudicative body” but rather “an executive branch agency charged with
faithfully implementing the sentences imposed by the courts,” it lacks the power to
“add or delete sentencing conditions.” Preliminary Objection ¶17. The Department
contends that Whitaker failed to plead facts to show that he was entitled to the credit
time at issue; rather, the document attached in the addendum to the amended petition
explains that “his state pre-sentencing credit must end on June 25, 2015 when a
federal sentence was imposed.” Preliminary Objection ¶20. The Department further
argues that, because two prosecutions – one state and one federal – occurred

2
  Whitaker explained in his initial petition for review that the Department advised him to address
all inquiries concerning his credit time to the Philadelphia Prison System. Initial Petition ¶8.
3
  Pennsylvania Rule of Civil Procedure No. 1028(a)(4) provides that “[p]reliminary objections
may be filed by any party to any pleading and are limited to the following grounds: …. legal
insufficiency of a pleading (demurrer).” PA. R.C.P. NO. 1028(a)(4).
                                                3
simultaneously, time spent in pre-sentence detention cannot be credited to either of
those sentences because “such an application of credit would effectively double the
credit to which [Whitaker] was entitled.” Preliminary Objection ¶22.
             In considering a demurrer, we accept as true all well-pled material
allegations in the petition, as well as all inferences reasonably deducible from the
allegations. Lawrence v. Pennsylvania Department of Corrections, 941 A.2d 70, 71
(Pa. Cmwlth. 2007). In addition, courts reviewing preliminary objections may not
only consider the facts pled in the complaint but also documents or exhibits attached
to it. Id. (citing Philmar Mid–Atlantic, Inc. v. York Street Assocs. II, 566 A.2d 1253,
1254 (Pa. Super. 1989) (“[I]n the context of a demurrer … it is not necessary to
accept as true averments in the complaint which are in conflict with exhibits attached
to the complaint.”). “A demurrer must be sustained where it is clear and free from
doubt the law will not permit recovery under the alleged facts; any doubt must be
resolved by a refusal to sustain the demurrer.” Lawrence, 941 A.2d at 71-72.
             Because Whitaker seeks to compel the Department to credit a period of
time to his sentence, the Department is correct that his amended petition seeks
mandamus relief. An action in mandamus is an extraordinary remedy at common
law, which will only be granted to compel the performance of a ministerial act or
mandatory duty. Id. at 72. “The purpose of mandamus is not to establish legal rights,
but to enforce those rights already established beyond peradventure.” Id. (citations
omitted). This Court may only issue a writ of mandamus where the petitioner
possesses a clear legal right to enforce the performance of a ministerial act or
mandatory duty, the defendant possesses a corresponding duty to perform the act,
and the petitioner possesses no other adequate or appropriate remedy. Id. A writ



                                          4
of mandamus will lie to compel the Department to properly compute an inmate’s
prison sentence. Id.
             In support of his amended petition, Whitaker maintains that he is
entitled to credit toward his state sentence for the time he was incarcerated from June
22, 2015, to November 12, 2015. He argues that the Court of Common Pleas of
Philadelphia County had primary jurisdiction over him during that period of time
despite the fact that he was produced for prosecution by a federal writ of habeas
corpus ad prosequendum. According to Whitaker, Judge Coleman ordered that all
of the time Whitaker was held in the Philadelphia Prison System be credited toward
his sentence, which includes the period between June 22, 2015, and November 12,
2015.
             We begin with a review of the primary jurisdiction doctrine. Generally,
the sovereign that has first arrested a defendant has primary jurisdiction over him.
Newsuan v. Department of Corrections, 853 A.2d 409, 411 (Pa. Cmwlth. 2004)
(citing Chambers v. Holland, 920 F.Supp. 618, 622 (M.D. Pa.), aff’d, 100 F.3d 946
(3d Cir. 1996)). Primary jurisdiction remains vested in the sovereign that first
arrested the defendant until its jurisdiction is relinquished by, for example, bail
release, dismissal of the state charges, parole release, or expiration of the sentence.
Newsuan, 853 A.2d at 411. Thus, when a federal court and state court each have
jurisdiction of a defendant, the doctrine of primary jurisdiction allows the tribunal
which first obtained jurisdiction to hold it to the exclusion of the other until the first
tribunal’s jurisdiction is exhausted. Id. at 412.
             A writ of habeas corpus ad prosequendum permits one sovereign, “the
receiving sovereign,” to temporarily borrow a prisoner in the custody of the other
sovereign, the “sending sovereign,” for the purpose of prosecuting him. Morgan v.


                                            5
Pennsylvania Board of Probation and Parole, 814 A.2d 300, 303 (Pa. Cmwlth.
2003). When a federal defendant is produced for prosecution by a federal writ of
habeas corpus ad prosequendum from state custody, the federal sentence does not
begin to run; the state authorities retain primary jurisdiction over the prisoner. The
federal sentence commences only when the defendant is received into custody at the
official detention facility at which the sentence is to be served. Newsuan, 853 A.2d
at 412.
                  In the present case, Whitaker seeks to compel the Department to credit
his state sentence for the period of incarceration between June 22, 2015, and
November 12, 2015. In support, his petition alleges that he was arrested on March
29, 2014, and remained in the custody of the Department through November 12,
2015. He further alleges that he was on writ of habeas corpus ad prosequendum to
answer a federal prosecution in June of 2015, and on June 22, 2015, the date his
federal sentence was imposed, he returned to the Philadelphia Prison System and
remained incarcerated there waiting imposition of his state sentence. The petition
also alleges that Judge Coleman sentenced him on November 12, 2015, and ordered
that all Philadelphia Prison System time be credited to his state sentence. All those
facts, if proven, would be sufficient to establish a clear, legal right to mandamus
relief.
                  In its demurrer, the Department argues that Whitaker is not entitled to
credit toward his state sentence for any time after his federal sentence was imposed.
The Department further argues that, pursuant to Section 9760(1) of the Sentencing
Code,4 any time spent in pre-sentence detention cannot be credited to “an unrelated


4
    It provides in pertinent part:


                                              6
sentence being actively served by an inmate.” Preliminary Objection ¶21. In other
words, the Department did not give Whitaker credit for the time served from June
22, 2015, to November 12, 2015, because it believed that Whitaker was serving his
federal sentence during that period of time.               The attachments to Whitaker’s
addendum to the amended petition for review do not establish that he started serving
his federal sentence on June 22, 2015. A federal sentence does not necessarily begin
to run on the date of its imposition; it commences only when the defendant is
received into custody at the official detention facility at which the sentence is to be
served. Newsuan, 853 A.2d at 412. Nowhere does Whitaker’s petition allege or
imply that the Philadelphia Prison System facility was designated as the facility for
service of the federal sentence.
               It is well settled that a demurrer “cannot be used to supply a fact missing
in the complaint.” Johnston v. Lehman, 609 A.2d 880, 882 (Pa. Cmwlth. 1992). In
ruling upon a preliminary objection in the nature of a demurrer, we must accept as
true all well-pleaded allegations of material fact and all inferences reasonably
deducible from them. Thus, here, we must accept Whitaker’s allegation that he was
incarcerated under the Department’s jurisdiction between June 22, 2015, and
November 12, 2015. This means that Whitaker could be entitled to an order
directing the Department to give him credit on his state sentence for that period of
time. The Department argues that Whitaker did not provide evidence to show that
he was entitled to the credit time at issue; this, however, is not a ground for demurrer.
Here, it is not “clear and free from doubt the law will not permit recovery under the

       Credit against the maximum term and any minimum term shall be given to the
       defendant for all time spent in custody as a result of the criminal charge for which
       a prison sentence is imposed or as a result of the conduct on which such a charge is
       based.
42 Pa. C.S. §9760(1).
                                                7
alleged facts”; therefore, “any doubt must be resolved by a refusal to sustain the
demurrer.” Lawrence, 941 A.2d at 71-72.
            Accordingly, we overrule the Department’s preliminary objections.

                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge




                                        8
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin Whitaker,                          :
                   Petitioner            :
                                         :
             v.                          : No. 347 M.D. 2016
                                         :
Department of Corrections,               :
                 Respondent              :


                                     ORDER

             AND NOW, this 1st day of November, 2017, it is ORDERED that the
preliminary objections of the Department of Corrections in the above-captioned
matter are hereby OVERRULED. The Department of Corrections shall file an
answer to the amended petition for review within thirty (30) days of the date of this
Order.

                                   ______________________________________
                                   MARY HANNAH LEAVITT, President Judge
