*1 This recently applied analysis Court the cation of law and statistical regarding data in Cimaszewski to a case similar the one parole denial rates to prove are insufficient at bar in Department v. Cor- our In failing same under case law. Sheffield rections, (Pa.Cmwlth.2006). Cimaszewski, meet requirements In Sheffield, petitioner we held that Petitioner’s Petition for Review fails to failed plead sufficient evidence in sup- ex post substantiate an facto claim. port argument of his that he faced a signif- Furthermоre, claim, Petitioner’s icant of an punishment risk increase in repeated re-parole denials were application Parole amended Act to for that had do nothing reasons to with his his parole petitioner decision. The violations, parole technical is irrelevant. included pleadings extensive Sheffield It is within the Board’s discretion whether claim, support post of his ex facto includ- or him grant parole, not to privilege ing parole data about rates before and and their reasons for granting denying after petition- Amendment. The it need not relate to the for reasons er in provided also data in sup- Sheffield parole. revocation of his Mickens-Thom port argument of his increase in Parole, as v. Pa. Bd. and of Prob. the number of board members under the (Pa.Cmwlth.1997). Petitioner can re 1996 Amendment resulted lesser main through incarcerated his maximum parole. Despite chance for his pleadings sentence at the discretion of the Board sixty-four of at least pаragraphs numbered original based on his conviction. Id. exhibits, we numerous determined petitioner failed substantiate Accordingly, we sustain Board’s pre- post ex facto claim proving liminary objections. 1996Amendment to Act the Parole created ORDER “significant risk punish- of an increased
ment.” Cimaszewski. NOW, August Respondent’s objections preliminary above-cap- in the case, In the present Petitioner has SUSTAINED, are tioned matter and Peti- pled no facts and no which evidence would tioner’s Petition Review DIS- significant establish that he faced “a risk MISSED WITH PREJUDICE. of an in punishment by applica increase amendment,” tion of that “un Act,
der pre-1996 Parole the Board likely paroled”
would have him. Cimasz
ewski,
45-46,
Pa. at
Mere assertions of an ex facto *2 Roger R. Maloney and Reyes
Laura C. Jr., appellant. for Harrisburg, Laguna, Butler, Harrisburg, appel- for D. Ronald lee. FRIEDMAN, Judge,
BEFORE: JUBELIRER, Judge, and COHN LEAVITT, Judge. Judge LEAVITT.1 BY
OPINION from an order appeals Denise Chadwick of Common Dauphin court) (trial dismissing her action Pleas County Office against Dauphin an action in Chadwick filed Coroner. forcing purpose fоr the mandamus his conclusion her Coroner revise Chadwick, Jr., brother, died Randolph hand, contrary to the his own which was expert medical of Chadwick’s conclusion was accidental. that her brother’s death cannot a writ of mandamus Because official to exercise issued to order way, particular we affirm. (Decedent) Chadwick, died Randolph Jr. days two on June and was found apartment. Be- later in his blood-stained circumstances, the death these cause of request of investigated. At the wаs M.D., Coroner, Ross, a forensic Wayne K. autopsy. conducted pathologist, Decedent’s medical Ross also reviewed investigating records, with the conferred photographs and studied the police officers records of death. Medical scene day signs depression; the be- indicated died, his doctor consulted fore he Decedent Judge reassigned Leavitt on June 1. This was case Decedent,” sleeping problems.2 A window in Coroner declined issue a apartment where Decedent found new R.R. death certificate. 112a. smashed, had leaving glass been strewn then Chadwick initiated mandamus ac- *3 throughout apartment as as on well tion, seeking to Coroner ordered ground stories below. The broken change the cause of death and manner numerous, glass was source albeit from complaint suicide to accident. The superficial, cuts to Decedent’s arms. The alleged fulfill that Coroner failed to his found, cuts, autopsy in addition to the bite statutory investigate duties to and that he tongue; marks on pulmonary Decedent’s arbitrarily refusing acted in change edema; congestion the lungs; and a death certificate to show that the death nanograms per blood cocaine level of 630 was prelimi- and a accidental. The Coroner filed Benzolecgonine milliliter blood level nanograms nary of 1600 per objections, asserting milliliter. Dr. that Ross Chadwick that concluded Decedent died from a standing loss that complaint lacked her caused by blood self-inflicted cuts to his upon failed to state claim which relief arms and that death was suicide. granted. could be The trial court sus- agreed The Coroner and so issued his preliminary objec- tained the Coroner’s report and death certificate. tions. Upon receipt of the report, Coroner’s The trial court held that Chadwick Chadwick, who is the administrator her standing lacked because she did not have estate, engaged brother’s Edberg, Sanford an reputation interest Decedent’s either M.D., pathologist, autoрsy review the in her capacity, surviving individual as a report, report, police the Coroner’s re- member, family or in her as capacity rep- ports, the decedent’s medical records and resentative estate. The trial court
photographs Edberg the scene. Dr. also held that the complaint allege failed opined that the death not a suicide but facts to support the claim that the Coroner by complications accident caused arbitrarily acted refusing to revise his smoking crack cocaine.3 Chadwick for- report. The fact that Chadwick’s medical report warded Dr. Edberg’s to the Coro- expert disagreed expert with the Coroner’s ner requested for his review and the Coro- not, court, did in the view of the trial ner to reconsider his determination that arbitrary. render decision Coroner’s Decedent Although committed suicide. Consequently, the trial court dismissed agreed the Coroner with Edberg’s Dr. opinion “ingestion that Chadwick’s mandamus action. of cocaine Chadwiсk played judgment a role in appeals and death of now from this decision.4 (as suffering by tongue 2. Decedent was a result stress as convulsions evidenced bite (as job marks) dispute cardiorespiratory his new and a over visitation with arrest evi- edema). rights congestion by pulmonary with his child. denced categorize I would therefore the manner of Edberg autopsy noted found death as accidental and suicidal.” Re- (R.R.__). produced on cuts Decedent's arms were inflict- at Record 98a ed knife glass. but shards of More significantly, superficial cuts were 4.Our review of a court’s trial order sustain- veins, ing preliminary objections wounds involved not arteries. the nature of Thus, he concluded the cuts did not demurrer is determine whether on the facts alleged cause Decedent's certainty death. He concluded that law with states no Bitler, recovery possible. cocaine caused Decedent's use violent hallu- Hanscom (Pa.Cmwlth.2005). glass that caused him to cinations break The court must Death, believed, accept allegations, cut pled himself. he was "from true all mate- well an exercise discre- Court, two which do not involve Before this Chadwick raises First, judgment.” the trial issues. she contends that tion or concluding that she lacked court erred a writ of mandamus It true that report the official on standing challenge used to her ac- distinguishing her brother’s to do discretion where he refuses holding precedent Court’s tion from this maxim, our first recited this so. itWhen standing. lacks Chad- survivor as follows: Supreme explained asserts, standing, she is derived wick’s law by a mistaken view of the But where from of her brother’s estate. the interest authority arbitrary exercise of byor Second, she contends that because *4 has no actual exercise there been in fact a complaint pled support sufficient to facts discretion, lie. the writ will arbitrarily, it claim that the Coroner acted 260, D’Ascenzo, v. 356 Pa. error for the trial court to her Tanenbaum dismiss (1947) 757, 263, (citing is- 758 Mar mandamus action. We consider these 51 A.2d 591, 89 P.2d in reverse order. 184 Okla. Hoffman, sues land v. added). (1939)) In this (emphasis 287 begin of the We with a review above-quoted passage, Supreme of mandamus. The common law principles re explained that a official’s public Court compel public of mandamus lies to a writ i.e., intentional, arbi fusal to act could be performance official’s of a ministerial act i.e., unintentional, trary, failure to or a mandatory duty. or a It is available estab the law. Tanenbaum understand public revise a official’s decision that re discretion that a refusal exercise lishеd sults from the exercise of discretion. in a may addressed mandamus action. 2d STANDARD PENNSYLVANIA PRACTICE not establish that where Tanenbaum did (2005). high 99:18 As a prerogative plain has exercised and discretion been writ, rarely mandamus writs are issued ar tiff the exercise to have been believes plaintiff and never where the seeks to act re discretionary can be bitrary, public interfere with a official’s exercise a action. vised in mandamus long discretion. These fundamentals have Bradley In v. In of Tanen- subsequent been honored this Court. a restatement Casey, baum, this Court stated that Court stated Supreme requirements to sustain an action
[t]he It that in a mandamus is well settled in mandamus are clear. It is an ex compel public a court can proceeding traordinary remedy designed compel is a discretion- official who vested with public perform officials to ministerial discretion; that ary power exercise mandatory duty.... act or (unless arbitrarily discretion is but fraudulently or is based or exercised 547 A.2d Pa.Cmwlth. law) it (1988). Similarly, Hughes, upon mistaken view in Nader offi- or control the 747, 753 n. 13 cannot interfere with Pa.Cmwlth. 643 A.2d Ex- (1994) added), judgment. that cial’s discretion (emphasis we observed way, it is the discretion “compel pressed another mandamus appropriate is (who the official is vest- judgment are public perform official to acts which power) which obliged ed with required performed to be opinion. Penn Title expressions of deducible tions or rial averred and inferences facts Deshler, therefrom; however, Company v. 661 A.2d ac- Insurance the court need not denied, law, (Pa.Cmwlth.1995), appeal 543 Pa. cept unwarranted as true conclusions of facts, allega- argumentative inferences from prevails jury and not of a arbitrary court or exercise of discretion can be cor- person aggrieved; or a and a Court rected writ of mandamus. One will cannot to exercise in vain holding search for such a in this or official his discretion in a manner will which jurisdiction.5 in any produce result may which sum, In Maxwell and Tanenbaum deem wise or desirable. stаnd for the principle Maxwell v. Farell School District Board of may refuse to exercise discretion Directors, 381 Pa. 112 A.2d position taking exercising discre added). (emphasis out of Taken is, itself, discretionary. tion way In do no context, parenthetical phrase in the Maxwell and Tanenbaum retreat from the first sentence of above-quoted passage principle fundamental mandamus arbitrary be read to mean that an not used to official to force an exercise his open in- tо court plaintiff discretion toward a result that a terference. this is not correct. Indeed, believe wise or desirable. Tanenbaum, First, upon Maxwell relies Supreme enjoined our Court has long which holds that the exercise of discretion *5 “[wjhere [public the official] is clothed with can compelled refused; be if arbitrarily it discretionary powers, and has exercised says nothing correcting about arbi- the powers, those mandamus will lie to not Second, trary of discretion. the a revision the resulting of decision of quote remainder the clarifies dis- discretion, though from such exercise of belongs officials, cretion to public not to fact, best, wrong.” the plaintiffs. courts and not to At decision be the parenthetical phrase aside; 583, an Philadelphia, is does Anderson v. Pa. it 348 (1944).6 not support principle 587, 442, that an official’s A.2d 36 444 concurring opinion attempts 5. The any authority challenging truly do so. to a discre for therein, particularly cases cited tionary through act public a a involving prisonеrs, those do not stand for legislature, mandamus action. It is for the proposition that a official's exercise of courts, a to fashion mechanism for discretion, arbitrary, even if is reviewable in lodging challenge. such a nothing discretionary mandamus. There is computation prison the mathematical of a Mandamus is so rare even where the computation prison sentence. Accurate aof plaintiff grounds manda establish for mandatory is duty sentence itself a of the mus, its issuance not autоmatic. It is has Therefore, Department of a Corrections. fail plaintiff a been held that to com where seeks (or refusal) compute ure sentence pel mandatory, a ministerial act and the act is properly accordance with statute addressed right "its issuance is not a matter of but in Department in mandamus. Brown v. Cor of for certain is a matter circumstances rections, 919, (Pa.Cmwlth.1996). 686 A.2d 921 sound court.” v. Tet discretion of the Travis Likewise, county ap board of assessment er, 326, 330, 177, Pa. 87 A.2d peals duty stаtutory occupa has to value Accordingly, a of has been writ mandamus purposes tions for tax in accordance with The inequita where its would refused issuance Eighth County Fourth to Class- Assessment ble or would "disorder and confusion cause Law, May Act of P.L. as municipal governmental departments.” amended, §§ 72 P.S. 5453.101-5453.706. It Samuel, 618, 622, Waters v. Pa. has no discretion to do otherwise. Manda (1951) (refusing request therefore, for writ is, appropriate mus an mechanism police revised to records correct compelling discharge duty for the board patrolman date birth of a who had lied about Eagle mandated statute. Bald Area School Centre, age gain County employment his because of the District Board Assess of of (Pa.Cmwlth. Appeals, ment caused confusion disorder would be 1999). changes). Absent concurring opinion by undertaking from the record extensive 16 P.S. than the deceased.” complaint, asserts other
In her Chadwick added). Code, 1237(b) County Act Decedent’s (emphasis § that Section 1237 of The amended, August unlawful; P.L. of if еven use of crack cocaine was “investigate mandated Coroner death, it is of no it caused Decedent’s concerning deaths facts and circumstances 1237(b) under Section because moment determining for wheth purpose ... the criminal is the one who did Decedent autopsy an should be conducted er or not however, Assuming, that Section act. 1237.7 inquest or an P.S. [held].” 1237(b) Coroner duty created a manda complains that the Coroner’s She death, even Decedent’s cause of determine investigation adequate be tory a criminal prose- it not lead to where will disregarded it Edberg’s report cause cution, it does not advance Chadwick’s explain did not reasons the Coroner’s has cause. The Coroner determined for Re so. Amended Petition doing has cause and he exercised Change of Coroner’s Determina view report Ross accept of Dr. Chadwick, Randolph Jr. tion Death short, Edberg. of Dr. In over that ¶ 35-36, do allegations R.R. 89a. These complaint shows that the Coroner itself not state cause action. statutory duty to investi- has fulfilled his 1237(a) re- County Code Section gate the cause of Decedent’s death. investigation purpose an for the quires coro- [the The Code has “clothed determining autopsy order an whether to to decide powers” with ner] inquest. the Coroner or- Because investigation and to decide the extent re- autopsy, investigation dered an *6 Anderson, 348 Pa. at of death. the cause 1237(a) has under been quired Section County A.2d at 444. The Code purpose The other of the Coroner’s done. require a coroner to convince does not of investigation is to determine the cause family public, including members of the may and whether “such death have death members, accuracy findings.8 persons of his resulted from criminal acts ... of contributory, aggravating precipitating or 7. It states: death; of cause (a) body having The coroner a view of investigate the shall circumstances facts (b) investigation to purpose shall be The of concerning appear to deaths which have any to cause such death and determine the of regardless happened county, within the not is sufficient whether or there determine may oc- the cause thereof have where any to for the coroner believe that reason curred, determining purpose of may death have resulted criminal from autopsy an be con- whether or not should neglect persons of other acts or criminal had, inquest be ducted or an thereof should dеceased. than the following added). in the cases: (emphasis Section 16 P.S. “[i]f, upon part, provides, relevant be investigation, the coroner shall unable (3) occurring of violence deaths result of he cause and manner determine the homicidal, trauma, apparently or whether autopsy on perform or order shall (including, but not suicidal or accidental body.” § 1238. 16 P.S. to, mechanical, ther- limited those due to County private The Code does create mal, chemical, inju- or radiational electrical persons right who believe of action subsidences); ry, drowning, cave-ins and investiga- adequate done an coroner has not trauma, chemical any death in which Likewise, establishes no recourse tion. it drugs drug injury, or reaction overdose of a death that the content those who believe treatment was or or medical medication incorrect, by a issued whether certificate indirect, secondary, primary or direct of by Bureau Vital Statistics. coroner They regard are Edberg’s free con- Judge CONCURRING BY OPINION clusion be the one and con- accurate FRIEDMAN. sider the official death certificate to be majority, Like the I would affirm the flawed. because the Coroner Dauphin County order Court of has exercised his powers, (trial court) sustaining Common Pleas “mandamus compel will lie to a revi- Dauphin County Office the Coroner’s sion resulting decision from such (the Coroner) preliminary objections and discretion, fact, exercise of though in (Chadwick) dismissing Denise Chadwick’s may decision wrоng.” [Coroner’s] mandamus; therefore, action in I concur in
Anderson,
that Decedent states that “[a]s committed but that judgment prerogative cannot be revisited a court mandamus writs are writ] sitting rarely in mandamus.9 never plaintiff issued and where the seeks to with a interfere official’s affirm the trial
We court. (Majority op. discretion.” at 603) added). Thus, majority (emphasis ORDER concludes that will not he here mandamus NOW, AND day this August, 17th because has ‘clothed “The Code1 2006, the decision of the Court of Common with discretionary powers’ [the Coroner] Pleas of Dauphin County, February dated to decide investigation the extent matter, above-captioned to decide (Majority the cause of death.” hereby 605) AFFIRMED. at op. City (quoting Anderson *7 County Section provides 1244 of The Code evidentiary cial death certificate would have that dispute. value in a Chad- claim standing upon wick bases claim of the her coroner shall [t]he issue certificate of Decedent, opposed assertion as to his by death in all cases to referred him statistics, family, against law believed suicide was “the registrar of local vital ... and in God, shameful, sinful, cowardly of and ...” is jurisdiction, all other оf cases which he has preventing “stig- has person duly by no and an interest in if the [Vital authorized by ruling ma” caused his was a Statistics of death 1953] Law certifies the cause of suicide. Review and death. Amended Petition for. Change by 16 P.S. We of of Death are bound the stat- Coroner's Determination ¶ Chadwick, 34, by Randolph ute as written and will not create remedies of Jr. R.R. 89a. misusing the common law writ of mandamus. case, any standing sepa- In the issue of is 9. We need not reach the issue of Chadwick’s any person, rate issue of from the whether aside, standing. decedent, pos- As an situations challenge can be survivor or the con- might where ited the estate of a decedent tent of a death certificate. For the reasons standing challenge to a death certificate explained opinion, we in this hold that there incorrectly recited cause of death to is no cause action in mandamus to force opposed suicide as to an For accident. change Coroner to the content of a dеath example, coverage may life insurance turn on certificate. policyholder’s whether the death was caused 323, amended, by accident or self August destruction. 1. Act of as 9A P.L. Couch 3d, §§ §§ 138:50-138:71. An offi- 16 P.S. 101-3000. on Insurance 604), The agree. I 587, at cannot (majority op. Pa. 36 A.2d Philadelphia, 348 (1944)). examples. many such conclu- law contains support In its case Davis v. sion, standing See, ex rel. majority e.g., cases cites Commonwealth Parole, 484 Pa. challenge a Pennsylvania cannot Board proposition оne through (holding act public official’s to that once the is available an action mandamus and in mandamus proceeding exercised, no has a mis individual to correct discretion official compel public authority, no ability, interpreting court has the law when applying take to compel public official exercise Depart to Brown v. papers); commitment way.2 (Pa. Corrections, While particular that discretion 686 A.2d ment of that, may court agree generally, Cmwlth.1996) I (holding that a writ man discretion is control the manner which an official compel can be used damus may not interfere with exercised prison prop sentence compute prisoner’s judgment, agree cannot with the official’s I may not be used erly, but majority’s per that this is a se suggestion act); Eagle Area Dis School illegal Bald fact, In exceptions. rule that for no allows Centre, Board Assess trict v. majority, in one of the cases cited (Pa.Cmwlth. A.2d 689 Appeals, ment review a acknowledged we that “we will 1999) arbitrary (holding thаt the Board’s its exer- public official’s discretion where in its failure of discretion resulted arbitrary or fraudulent or is based cise statutorily duty), its mandated perform mistaken law.” Nader upon a view the denied, Pa. 792 A.2d appeal 643 A.2d Hughes, Pa.Cmwlth. (2000). Admittedly, manda Chadwick’s 747, 753 cases, but from these mus action differs majority’s failure that does excuse where, There are certain situations acknowledge their existence. here, public required official is to exer- cise a statu- perform discretion order Therefore, I that Chadwick agree while situations, torily duty.3 In these mandated here, accept I prevail cannot cannot arbitrary of an improper exercise per majority’s se rule. adopt may prevent official’s from properly performing mandatory with her duties accordance law, and an individual utilize a challenge of mandamus such action.
writ majority that one
Although the asserts *8 holding,”
would “search vain of death and manner determine the cause Directors 2. Maxwell v. Board School Farrell, investigation, perform 381 Pa. or оrder District based on D’Ascenzo, (1955); Tanenbaum v. Pa. performed to determine autopsy to be (1947); Hughes, A.2d 757 Nader v. death; (3) on based manner of cause and (1994); 164 Pa.Cmwlth. investigation autopsy, determine Casey, Bradley v. Pa.Cmwlth. P.S. of the death. cause and manner A.2d 455 mandatory performing the §§ 1238. In determining the cause and manner duty of 1237 and 1238 of The to sections Pursuant his discretion exercises a coroner Code, mandatory a coroner has the as to what conclusion come (1) duty investigate the and circum- to: facts factual deaths; is. and manner of death if actual cause unable to stances certain