Dial v. Pennsylvania Bd. of Probation and Parole

• Decision Date: 04 February 1998
• Citation: 706 A.2d 901
• Parties: Ertle DIAL, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 901

706 A.2d 901

Ertle DIAL, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Nov. 14, 1997.

Decided Feb. 4, 1998.

Ertle Dial, petitioner, for himself.

Robert A. Greevy, Harrisburg, for respondent.

Before DOYLE and McGINLEY, JJ., and LORD, Senior Judge.

McGINLEY, Judge.

Before this court are preliminary objections in the nature of a demurrer filed by the Pennsylvania Board of Probation and Parole (Board), in response to a petition for writ of mandamus filed by Ertle Dial (Dial).

Dial is currently incarcerated in the State Correctional Institution at Graterford for a sex offense. On March 21, 1996, Dial was interviewed for parole and subsequently refused parole. This was the fourth refusal. On July 31, 1997, Dial sought mandamus with this Court challenging the refusal. Dial contends that he was denied a fair parole review at the expiration of his minimum sentence, and that Section 331.34a(a) and (b) of the Parole Act (Act) ¹ does not apply to him. Dial's Petition for writ of mandamus states in part as follows:

1. Petitioner, Ertle Dial, respectfully request this court to issue a Writ of Mandamus ordering the Penn. Bd. of Probation and Parole, to grant him a fair parole review under the August 6, 1941 Parole Act as it existed when he committed his criminal offense.

2. Petitioner further seeks an order restraining the respondent from retroactively applying to him, the Boards repeal statute 61 P.S. § 331.34 (a) and (b), [sic] relating to crimes of violence; and to compel the respondent to correct their erroneous interpretation of his sentence as being indefinite and to compel respondent to remove classification of him being a dangerous offender from his parole file.

3. Petitioner was unlawfully denied fair parole review in violation of his constitutional rights to due process, equal protection, ex post facto clause, and a misinterpretation of his sentence as being indefinite.

4. This newly repealed statute 61 P.S. § 331.34 (a) and (b), [sic] that is being contested by petitioner denies prisoners who have been convicted of certain offenses the possibility of parole, at the expiration of their minimum sentence.

6. At this point of petitioner's complaint, it must be stressed to this court, that at no time does petitioner state or claim that he has a right to parole; but he does state he has a right to be interviewed for parole under the process and procedures under the August 6, 1941 Parole Act as it existed when he committed his criminal offense.

Dial Petition for Writ of Mandamus, June 21, 1997, at 1, 2.

The Board preliminarily objected on September 2, 1997. The Board contends that parole refusals are not subject to judicial review, that an appeal cannot be taken from a decision of the Board because there are too many variables for determining eligibility for parole, and that Dial does not have a right to parole.

In our original jurisdiction, an action in mandamus must define the issues, and every act or performance essential to that act must be set forth in the complaint. See Pa.R.Civ.P. 1019. In determining preliminary objections, all well-pleaded facts which are material and relevant are deemed to be true. Hawks by Hawks v. Livermore, 157 Pa.Cmwlth. 243, 629 A.2d 270 (1993); Erie County League of Women Voters v. Department of Environmental Resources, Bureau of State Parks, 106 Pa.Cmwlth. 369, 525 A.2d 1290 (1987). In determining whether to sustain a demurrer, the Court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion. Giffin v. Chronister, 151 Pa.Cmwlth. 286, 616 A.2d 1070 (1992). Moreover, a complaint which consists of merely argumentative conclusions, as opposed to properly pleaded statements of fact, cannot withstand a demurrer for failure to set forth a claim for which relief can be granted. See Price v. Zoning Hearing Board of Hanover Township, 72 Pa.Cmwlth. 5, 455 A.2d 1267 (1983).

We have continuously stated that parole is not a right and that the reasons for denying parole are not subject to judicial review. Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967, 970 (1986); Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766 (Pa.Cmwlth.1997). In Weaver, this Court reasoned that an appeal cannot be taken from a decision of the Board because the Board must consider so many variables in determining eligibility for parole. This Court stated that, "[b]ecause of the breadth of the Board's discretion, we believe that we cannot interfere with the discretion of the Board in granting parole." And that "[w]hat the Board has decided, and why, being wholly a matter of the Board's discretion, is simply not subject to judicial review." Weaver, 688 A.2d at 770, quoting Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967, 971-72 (1986).

Dial contends that the Board violated his constitutional rights "by [not] interviewing him for parole under the August 6, 1941 Parole Act as it existed when he...