*1 1042 pre-trial
we need scour the for evidence Clerk is directed schedule not record matter. their conference this involvement because this Court already pleading held that no with necessary in to es- particularity is order officials, includ- high-ranking
tablish that
ing the Commissioner of the the Superintendent
of Corrections and institution, ultimately
a correctional
responsible Law under Whistleblower Depart- discriminatory treatment of a HUGIE, Petitioner, Malcolm Rodgers employee.
ment Corrections Corrections, A.2d HORN, Martin F. Commissioner (Pa.Cmwlth.1995). Corrections; Donald T. Finally, Respondents argue that Vaughn, Superintendent the State they partial are at least entitled to sum Graterford, Institute at Correctional mary judgment alleged as to acts of Respondents. 25, July retaliation prior that occurred Pennsylvania. Commonwealth Court we Re point, agree 1996.2 On this with spondents. Section 4 of the Whis Under 7, Aug. Submitted on Briefs 1998. Law, 1424, tleblower 43 P.S. action 26, May Decided al days must be filed within 180 leged Furthermore, violation of Law. 180-day mandatory,
this time limit is
courts have no discretion to extend it.
Perry v. Tioga County, 168 Pa.Cmwlth. denied, (1994), appeal A.2d 186
540 Pa. Because complaint January
Petitioner filed the
21, 1997, any alleged acts of retaliation 25, 1996, July prior occurred exactly days January
date is prior
21,1997, are time-barred. Respondents’ motion for
Accordingly,
summary judgment part denied
granted in accordance with the
foregoing is di- opinion. Chief Clerk pre-trial
rected to conference in schedule
this matter.
ORDER th NOW, May,
AND this 19 day summary judg
Respondents’ motion following excep-’
ment is denied with alleged
tion: acts of retaliation Any
against prior that occurred
July 25, are time-barred. The Chief Respondents actually requested partial appears been a sum- date to have miscalculation mary oc- judgment Respondents. acts of retaliation However, curring prior *2 Code, 42 is the
Judicial in the nature of a preliminary objection by the of the demurrer filed Commissioner Super- Department of Corrections Insti- intendent State Correctional (Department), re- tute at Graterford by a writ of mandamus filed sponse to (Petitioner). Hugie Malcolm sentenced, convicted and Petitioner was 19, 1993, January to a term of three and on years rape, involuntary one-half to nine intercourse, burglary, deviate sexual as July sault and other offenses. On a term of Petitioner was sentenced to years aggravated five to ten assault minimum and other offenses. Petitioner’s 26, 1998, July and expired sentence on his maximum sentence expires regarding 2003. The facts the Petitioner’s and his minimum and maximum sentences 6, 1997, dispute. not in terms are On June Petitioner was refused admission to the Dep by pre-release program offered This denial was based artment.1 offenses, prior history the nature of his his of assaults and the need for continued by program involvement the Petitioner. 15, 1997, an August On Petitioner filed grievance objecting to inmate his classifi dangerous cation as a offender and a sexu appearance No for petitioner. entered predator objecting al and further to the Dorian, Hill, Raymond Camp W. for re- request denial of his for admission to the spondents. pre-release program.2 The Director of the subsequently Inmate DOYLE, J., KELLEY, J., Bureau of Services Before RODGERS, grievance by denied the a letter dated Judge. Senior filed August 1997. Petitioner then
DOYLE, Judge. for a of mandamus with this writ Court, original juris- challenging the denial of his Before Court our diction, pursuant participation pre-release pro- Section 761 my punishment 1. The record is devoid of information ed and has caused me not concerning pre-release pro- the nature of the eligible to be in the institu- gram. programs. I was denied tional outside clearance based on this classifi- stated, grievance per- 2. Petitioner’s inmate My conviction will never cation. criminal tinent as follows: being change I am discrimi- and I believe requesting dangerous of- I am to have the against simply my criminal natefd] predator re- fender and sexual classification conviction is sex offense. my from records. I moved institutional Grievance,” (Petitioner’s Ex- “Official Inmate sentencing was not classified court Preliminary B to hibit the Commonwealth's dangerous offender nor as a sexual as Objections.) aggravat- predator. This classification has appeal agen- Department’s between it and from gram actions dangerous cy’s offender and decision or other forms of predator. The then address those concerns. objections preliminary filed in the nature added). (footnote omitted) (emphasis *3 a petition. of demurrer to Petitioner’s First, Petitioner that contends to request the denial for admission a of his objec ruling preliminary In on a was a result of demurrer, pre-release program his of a tion nature this Department a dan by classification the as well-pleaded must as true accept Court all gerous predator. offender sexual We reasonably facts and all inferences deduc has disagree. Department The been In ible therefrom. Stone and Edwards promulgate to granted responsibility the Department Inc. v. Agency, surance Insurance, necessary the rules for the administration 151 Pa.Cmwlth. 616 A.2d (1992). pre-release programs.3 Pursuant to question by The a presented 1060 authority, grant this the whether, averred, is on demurrer the facts necessary regulations. established the See says certainty the law with that no recov regulations §§ Garland, 37 Pa.Code 94.1-.7. These ery possible. 424 is Jackson v. po govern the evaluates how Pa.Super. pre for to a tential candidates admission Department argues The that Petitioner’s Here, program. release the to a cause of mandamus fails state request assignment denied Petitioner’s action not have a because does based, pre-release part, in a in program right clear to in a prior history of violent upon Petitioner’s Court, program. agree. We This par It is well that criminal acts. settled Pennsylvania Proba Weaver Board of ticipation pre-release program in a a (Pa.Cmwlth. Parole, A.2d tion and 688 766 granted satisfactory special privilege 1997), recognized that “mandamus is an prison. behavior in Auberzinski Board govern to a appropriate compel avenue Parole, A.2d Probation body discretionary a perform mental to act (Pa.Cmwlth.1997). The Department exer perform its that act is man duty where to cised its denied Peti lawful discretion and law, body dated has refused pre a tioner’s for admission to an errone perform upon to the act based program upon release based the belief that interpretation of the Id. at 776. ous law.” history Petitioner’s violent criminal ren body not lie to compel Mandamus does time, him ineligible, dered at that for ad to dis vested with discretion exercise that Thus, program. to mission such a Peti manner or to particular cretion allegations tioner’s that his denial was at arrive at a result. particular his as solely upon based This Court further reasoned: dangerous predator offender duty by Mandamus is based fail. to a law available agency follow and is when, only interpreta- Additionally, under a correct record is devoid of law, agency dangerous an abso- to Petitioner as a tion of that reference and, duty predator, lute choice—to act offender and sexual ministerial —no all way. required accept in a cannot this Court is well certain Mandamus true, say agency compelled pled allegations that an consid- as we are be used to factors, improper its find- to address Petitioner’s assertion ered ings wrong, Assembly has or that issue. The General codified fact were citizen requirements necessary in its for a reasons set forth decision pretense. designated “dangerous was nature of be as a If that criteria mandamus, predator.” “sexual there would be no difference and/or amended, § P.L. 61 P.S. 3. Act of 9793(b) one to be classified as a (relating registration offend- of cer- 9714(b), § er” are found at 42 Pa.C.S. years) tain offenders for ten and who is provides as follows: sexually pre- determined to be a violent 9794(e) (relating dator under section (b) Presumption high dangerous risk designation sexually preda- purposes offender.—For the of subsec- tors) abnormality due to a mental or (a), an presumed tion offender shall be personality per- disorder that makes the high dangerous be a risk offender and likely engage predatory son sexual- shall be deemed to prior have convic- ly violent offenses. tions for crimes violence if both of the. following conditions hold: provides 9792. Section 9793 *4 (1) previously The offender was con- category of criminal offenses
victed of a crime of violence. The require would an offender to register, spe- previous conviction need not be cifically: same crime as the instant offense for (b) required register.— Persons to applicable. this section to be (2) previous conviction occurred years
within seven of the date of the (2) any Persons convicted of offense, commission of the instant ex- following regardless offenses that cept during time which the age of the victim: offender was incarcerated in any peni- § (Relating 18 Pa.C.S. 3121. to tentiary, prison or place other of deten- rape). probation tion or on parole or shall not be considered in computing the relevant § in- (Relating Pa.C.S. to seven-year period. intercourse). Convictions for oth- voluntary deviate sexual arising er offenses from the same crimi- § Pa.C.S. nal transaction as the instant offense 3128(a) (b) (relat- § 18 Pa.C.S. previous shall not be considered convic- assault). ing spousal sexual tions for the purpose of this section. purposes For previous this section 9793(b). Again, because Peti- conviction, conviction shall include tioner was convicted of rape and involun- judgment whether or not of sentence tary deviate sexual intercourse he imposed litigation been or pending qualifies person initially as a who would be concerning conviction. classified statutory within the definition of added). (emphasis predator. sexual Furthermore, 9714(g) Section defines the Accordingly, Department’s prelimi- term “crime of rape, violence” include nary objections granted, are and Petition- involuntary deviate sexual intercourse and petition. er’s for writ of mandamus is aggravated Here, assault. Petitioner was prejudice. dismissed with rape involuntary convicted of deviate intercourse 1993 and was convict- ORDER aggravated ed of assault in Clearly, parameters Petitioner falls within the NOW, day May, this 26th a dangerous offender. Respondents’ preliminary consideration of objections petition, pre to Petitioner’s said Similarly, “sexually the definition of a objections liminary granted, predator” violent is contained within Sec- prejudice. is dismissed with tion which states: “Sexually violent A predator.” person sexually Concurring dissenting opinion by
who has been convicted of a Judge offense as set forth section KELLEY. result, KELLEY, I Judge, concurring and these errors. As a would over- dissenting. Respondents’ preliminary objec- rule to this claim. tion majority’s
I with the conclusion agree relating claim to the deni- that Petitioner’s pre-
al of his program to state a claim in
release fails However, I believe
mandamus. compel
that mandamus could issue
to remove its classification
or
as a
predator”,
I must dis-
“sexually violent
PYLE, Petitioner,
M. Lorene
agree
majority’s
with the
conclusion
contrary.
peti
lie only
Mandamus will
where the
DEPARTMENT OF PUBLIC
right
his clear
tioning party demonstrates
WELFARE, Respondent.
relief,
duty on
correspondingly
clear
*5
the
whom
party against
the
manda
Pennsylvania.
Commonwealth Court
sought,
other
mus is
the want
remedy.
Depart
v.
adequate
Campbell
Argued March
(Pa.
Corrections,
tion and A.2d 766
1997) (The only relief an unsuccessful through parole could obtain
candidate the against
an action mandamus Board proper to be fol procedures
was for the proper applied by the to be
lowed and law ruling parole applica Board in the
tion.) case, alleges, inter
In this
alia, Department improperly that the him a
designated How- “sexually predator”.1
and a
ever, only court has the sentencing after
authority designations to make such statutory
due consideration a number sections and 9794 of the
factors. See Code, §§
Sentencing authority
Thus, patently beyond it is designa- such make If, as it is alleged,
tions. designations considered these
made ruling application on Petitioner’s
them pro- participation issue to correct mandamus could
gram, notes, Insurance, 151 Pa. majority correctly this Court 1. As the Inc. v. See, accept allegations as true. must these Cmwlth. Agency, e.g., and Edwards Insurance Stone