Opinion
No. 84 M.D. 2013
09-05-2013
Commonwealth of Pennsylvania, ex rel. George Havens, Petitioner v. Pennsylvania Department of Corrections, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Before this Court are the preliminary objections of the Pennsylvania Department of Corrections (Department) to a pro se petition for review in the nature of a request for a writ of mandamus filed by George Havens (Havens) claiming that the Department failed to properly calculate the sentences he is now serving. We overrule the Department's preliminary objections.
Havens is an inmate at the State Correctional Institution at Cresson (SCI-Cresson). On April 23, 1998, pursuant to a plea agreement, Havens was sentenced in the Court of Common Pleas of York County to an 8- to 20-year term of imprisonment. On May 16, 2005, Havens was released to a Community Corrections Center. On May 30, 2005, Havens was declared an escapee and he was ultimately apprehended on October 10, 2005. Havens was charged by various police departments with a number of new offenses following his apprehension.
On April 3, 2006, pursuant to a plea agreement, Havens was sentenced in the Court of Common Pleas of Dauphin County to a one- to two-year consecutive term of imprisonment. On August 14, 2006, pursuant to a plea agreement, Havens was sentenced in the Court of Common Pleas of York County with a consecutive 17 ½- to 35-year term of imprisonment.
On February 19, 2013, Havens filed the instant petition seeking mandamus relief in which he alleges that in September 2010, the Department erroneously calculated his aggregate sentence to be 38 years, 10 months to 81 years, 10 months, less the time he was declared a fugitive. Havens asserts that his correct aggregate sentence is 26 ½ to 57 years and that he has informally sought to resolve the Department's miscalculation of his sentence through SCI-Cresson's grievance process and through inmate request slips to no avail. The Department filed preliminary objections alleging that Havens' petition for review was filed beyond the applicable statute of limitations and that the petition must be dismissed pursuant to the doctrine of laches.
Relief in mandamus will be granted to compel the performance of a ministerial act where the plaintiff establishes a clear legal right to relief and a corresponding duty to act by the defendant. Williams v. Pennsylvania Department of Corrections, 47 A.3d 162, 165 n.2 (Pa. Cmwlth. 2012).
"In ruling upon preliminary objections in the nature of a demurrer, the Court must accept as true all well-pled facts and all reasonable inferences deducible therefrom, and it must determine whether the facts pled are legally sufficient to permit the action to continue." Gordon v. Pennsylvania Department of Corrections, 16 A.3d 1173, 1176 n. 2 (Pa. Cmwlth. 2010). "In that a demurrer results in the dismissal of a suit, it should be sustained only in cases that are clear and free from doubt and only where it appears with certainty that the law permits no recovery under the allegations pleaded." Id. All doubts must be resolved against sustaining the demurrer. Bundy v. Beard, 924 A.2d 723, 725 n.2 (Pa. Cmwlth.), aff'd, 596 Pa. 103, 941 A.2d 646 (2007), cert. denied, 553 U.S. 1098 (2008).
Pa. R.C.P. No. 1030 provides that affirmative defenses, including laches and statute of limitations, shall be pled as New Matter. However, pursuant to Pa. R.C.P. No. 1032(a), a party is required to file objections to the procedural propriety of another party's preliminary objections or else the objections are waived. Commonwealth ex rel. Corbett v. Desiderio, 698 A.2d 134, 137 (Pa. Cmwlth. 1997). Because Havens did not object to the Department's preliminary objections, we will consider them.
The Department first alleges that Havens' petition must be dismissed because it was filed beyond the applicable statute of limitations. The Department relies on Section 5522(b)(1) of the Judicial Code, 42 Pa. C.S. §5522(b)(1), for the proposition that a prisoner must file a mandamus action within six months of the date that the right to institute a suit arises. The Department asserts that Havens' petition is untimely because it should have been filed within six months of the Department's purported miscalculation of his sentence in September 2010. However, the Department can only imprison someone to the time set forth by the sentencing courts. If the Department holds the person one more day beyond a release date, it is a violation of its ministerial duty that is ongoing, making each day a separate violation against which to calculate the running of the six-month statute.
That Section provides:
(b) Commencement of action required.--The following actions and proceedings must be commenced within six months:
(1) An action against any officer of any government unit for anything done in the execution of his office, except an action subject to another limitation specified in this subchapter.
Finally, the Department argues that Havens' petition for review should be dismissed pursuant to the doctrine of laches because Havens waited over two years from the time that the Department purportedly miscalculated his sentences in September 2010 before filing the petition. In Keith v. Pennsylvania Board of Probation and Parole, 464 A.2d 659 (Pa. Cmwlth. 1983), an inmate received two consecutive sentences that were aggregated. Nearly a decade later, the inmate filed a mandamus action in this Court's original jurisdiction arguing that the sentences were improperly aggregated. The Court dismissed the inmate's petition, reasoning that "[m]andamus will not issue where the writ would be ineffectual by reason of the respondent's inability to comply therewith." Id. at 661. Here, despite the length of time that Havens waited to file his petition for review, the Department would still be able to properly calculate the service of his consecutive sentences. Therefore, the Department's laches argument also fails.
Accordingly, the Department's preliminary objections are overruled.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 5th day of September, 2013, the preliminary objections of the Pennsylvania Department of Corrections are overruled. The Department of Corrections is hereby ordered to file an answer within thirty (30) days of the date of this order.
/s/_________
DAN PELLEGRINI, President Judge