T. Riddle v. Department of Corrections, et al. (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Timothy Riddle, : Petitioner : : v. : : Department of Corrections; State : Correctional Institution at Graterford - : Graterford, Pa., : Respondent : BEFORE: No. 378 M.D. 2007 Submitted: February 15, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: April 14, 2008 This case concerns a petition for review in the nature of mandamus filed in our original jurisdiction by inmate Timothy Riddle (Riddle), appearing pro se. Riddle asks this Court to direct the Pennsylvania Department of Corrections (DOC) to credit him three years, one month, and one day for time served. DOC challenges the legal sufficiency of the petition, asserting Riddle does not have a clear right to the credit he seeks. On January 14, 2008, Riddle filed an Amended Petition for writ of Mandamus and/or Extraordinary Relief. In his Petition, Riddle alleges that on August 24, 2006 he was sentenced to serve no less than four years, nor more than eight and a half years in a State Correctional Institution. He asserts that the trial court directed that he was entitled to a credit of three years, one month, and one day for time served prior to being on parole that was subsequently revoked. Moreover, he contends that DOC has failed to properly incorporate this credit into his status summary. He seeks an order from this Court directing DOC to comply with the trial court s Order. DOC filed a preliminary objection in the nature of a demurrer alleging Riddle has failed to allege facts that state a claim. It acknowledges that the August 24, 2006 Order provided for a credit as suggested by Riddle. It adds, however, that the trial court indicated that if the credit contained therein was different from the credit ascertained by the DOC, the latter credit shall control. Moreover, it asserts that the August 24, 2006 Order referred to by Riddle instructs that the four year to eight and a half year sentence is to run consecutive to any other sentence Riddle is serving. DOC suggests that it would be granting a duplicative credit by complying with Riddle s request and maintains that the credit cannot run against both of the consecutive sentences. A proceeding at mandamus is an extraordinary action at common law and is available to compel the performance of a ministerial act or mandatory duty where there exists no other adequate and appropriate remedy, there is a clear right in the plaintiff, and a corresponding duty in the defendant. McCray v. Pennsylvania Department of Corrections, 582 Pa. 440, 872 A.2d 1127 (2005). Mandamus is available as a remedy if it can be established that the trial court s sentencing order clearly gives a credit against the violation of parole (VOP) sentence for time served. Oakman v. Department of Corrections, 893 A.2d 834 (Pa. Cmwlth. 2006). See also Black v. Pennsylvania Department of Corrections, 889 A.2d 672 (Pa. Cmwlth. 2005). A demurrer may only be sustained when on the face of the complaint the law will not permit recovery. Doxsey v. Pennsylvania Bureau of Corrections, 674 A.2d 1173 (Pa. Cmwlth. 1996). Any doubt must be 2 resolved by a refusal to sustain a demurrer. Black, 889 A.2d at 674. All well-pled allegations must be considered as true. Doxsey, 674 at 1174. DOC s arguments may ultimately prevail as this case proceeds forward. For now, however, this court must reiterate that what is before us is a preliminary objection in the nature of a demurrer. Riddle seeks mandamus compelling us to direct DOC to comply with the trial court s order and grant him a credit of three years, one month, and one day for time served. Pursuant to both Oakman and Black, mandamus is an appropriate remedy when the trial court s sentencing order clearly gives a credit against the VOP sentence for time served. Riddle s Petition for Review alleges that such a credit is clearly memorialized and, in fact, although it challenges Riddle s ability to apply the credit in the manner he seeks, DOC concedes the credit language exists. Riddle further alleges failure to comply with the trial court s order. As all well-pled facts are to be considered true for the purposes of disposing of a demurrer, Doxsey, we cannot agree that Riddle has failed to state a claim for which relief can be granted. As such, we must overrule DOC s preliminary objection. _____________________________ JIM FLAHERTY, Senior Judge 3 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Timothy Riddle, : Petitioner : : v. : : Department of Corrections; State : Correctional Institution at Graterford - : Graterford, Pa., : Respondent : No. 378 M.D. 2007 ORDER AND NOW, this 14th day of April, 2008, the preliminary objection in the nature of a demurrer filed by respondent is overruled and respondent is directed to file an answer within 30 days of this Order. _____________________________ JIM FLAHERTY, Senior Judge
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