Donnell v. Com., Pennsylvania Bd. of Probation and Parole

• Decision Date: 08 September 1981
• Citation: 434 A.2d 846,61 Pa.Cmwlth. 517
• Parties: Richard F. DONNELL, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

434 A.2d 846

61 Pa.Cmwlth. 517

Richard F. DONNELL, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF

PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

September 8, 1981

Submitted on Briefs.

William H. Mitman, Jr., West Chester, for petitioner.

Robert A. Greevy, Arthur R. Thomas Pennsylvania Bd. of Probation and Parole, Harrisburg, for respondent.

Before CRUMLISH, President Judge, and MENCER, ROGERS, BLATT WILLIAMS, CRAIG, MacPHAIL and PALLADINO, JJ.

ROGERS Judge.

Richard F Donnell's Petition for Review in the nature of a Complaint in Mandamus, is before us on the preliminary objection of the respondent Pennsylvania Board of Probation and Parole challenging the invocation of our original jurisdiction under 42 Pa. C.S. § 761(a)(1). In his Petition for Review Donnell complains concerning the action of the Board in recommitting him to prison for violating the conditions of his parole as violative of specific Board regulations and Board guidelines, as having been based on misapprehensions of relevant facts, and as a "violation of the Constitutional Prohibition against cruel and unusual punishment." The Board, by its preliminary objection asserts that the action should not have been brought in mandamus to our original jurisdiction but should have been by appeal from the Board's decision.

Mandamus is available to compel the performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and the want of any other adequate and appropriate remedy. Philadelphia Newspaper, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978). Mandamus has been held to be the proper remedy to compel the Board to conduct a required hearing or to correct a mistake in applying the law. Commonwealth ex rel. Davis v. Pennsylvania Board of Parole, 484 Pa. 157, 398 A.2d 992 (1979); Moore v. Roth, 231 Pa.Super. 464, 331 A.2d 509 (1974); Commonwealth ex rel. Johnson v. Bookbinder, 213 Pa.Super. 335, 247 A.2d 644 (1968).

[61 Pa.Cmwlth. 519] A close examination of the petition reveals that Donnell's principal complaint is that the Board misapplied a number of its own regulations, including that at 37 Pa. Code § 71.2(11) requiring the Board to hold a Violation Hearing within 120 days of its Preliminary Hearing. Essentially the petition charges the Board with mistakes of law and failure of the Board to act. The case...