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Wareham v. State Board of Probation and Parole12/5/2003
Wareham contends that his Petition for Review has raised such a constitutional challenge, which challenge also supports his second contention that he should simply be discharged from his sentence. He argues, without any case or statutory authority establishing such, that the Board "lost jurisdiction" over him by failing to impose supervision from the time the Florida authorities closed his case in 1991 until 1998 when his Pennsylvania arrests triggered Board action. There are several problems with this argument, however. First, Wareham does not set forth any authority establishing his right to release on parole or release from his sentence. Mandamus is not a proper avenue to establish legal rights, but is only appropriate to enforce already established legal rights. Feigley v. Department of Corrections, 731 A.2d 220 (Pa. Cmwlth. 1999). Thus, Wareham's mandamus action is an improper vehicle to establish a constitutional claim. Second, a prisoner cannot be discharged from parole prior to the expiration of the maximum term of his or her sentence, even if a parole officer negligently informs the prisoner that he or she is no longer on parole. Hughes v. Pennsylvania Board of Probation & Parole, 512 A.2d 783 (Pa. Cmwlth. 1986). Wareham contends, however, that such discharge is possible if the Board fails to assert its supervision for a period of years because such dilatoriness strips the Board of its jurisdiction. There is absolutely no authority for this proposition, however, and thus mandamus relief is inappropriate. We further agree with the Board that Wareham could have raised his arguments before this Court by an appeal from the 2000 denial of administrative relief relating to the recommitment decision and recalculation order. A mandamus action is not available when an agency's determination can be reviewed on direct appeal. Pennsylvania Department of Aging v. Lundberg, 503 Pa. 423, 469 A.2d 1012 (1983).
Wareham also argues that his due process rights were violated because the Board allegedly failed to set forth adequate reasons for denial of his parole. Wareham, however, is simply attempting to impermissibly challenge the Board's discretionary act of denying parole by adorning the argument with constitutional language. Not surprisingly, Wareham fails to set forth any authority supporting his contention.
The question presented by a demurrer is whether, on the facts alleged, the law states with certainty that no recovery is possible. Feigley. Here, Wareham has utterly failed to set forth allegations upon which he would be entitled to mandamus relief. The Board's preliminary objections in the nature of a demurrer are therefore granted, and Wareham's Petition for Review in the Nature of a Complaint in Mandamus is hereby dismissed.
ORDER
AND NOW, this 5th day of December, 2003, the preliminary objections filed by the Pennsylvania Board of Probation and Parole to the Petition for Review in the Nature of a Complaint in Mandamus filed by Joseph Wareham are granted, and said Petition for Review in the Nature of a Complaint in Mandamus is hereby dismissed.
CHARLES P. MIRARCHI, JR., Senior Judge
Page 1 2 3 Pennsylvania DUI Attorneys
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