B.C. Moore v. PA Parole Board

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian C. Moore, :

Petitioner :

:

v. : No. 223 M.D. 2023

:

Pennsylvania Parole Board, :

Pennsylvania Attorney General, :

Gloria Burda SCI-Mahanoy, :

Michelle L. McGee SCI-Mahanoy, :

Michael D. Schmid SCI-Coal :

Township, :

Respondents : Submitted: July 5, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE CEISLER FILED: August 16, 2024

Petitioner Brian C. Moore (Moore), an inmate currently incarcerated within

our Commonwealth’s state prison system, has filed a pro se original jurisdiction

“Amended Petition for Review in the Nature of Writ of Mandamus” (Second

Amended Petition). Therein, Moore seeks relief regarding Respondents

Pennsylvania Parole Board’s (Board); Pennsylvania Attorney General (AG); Gloria

Burda, SCI-Mahanoy (Burda); Michelle L. McGee, SCI-Mahanoy (McGee); and

Michael D. Schmid, SCI-Coal Township’s (Schmid) allegedly unlawful disposition

of his applications for parole; retroactive imposition of a statutory requirement that

he successfully complete a sex offender rehabilitation program; and failure to

acknowledge that he had already completed such a program.1 Moore now seeks

summary relief in his favor, while the Board, Burda, McGee, and Schmid have

collectively filed preliminary objections regarding the Second Amended Petition.

After thorough review, we sustain these preliminary objections in part, dismiss them

as moot in part, dismiss the Second Amended Petition with prejudice, and deny

Moore’s application for summary relief.

I. Background

In 1987 and 1988, Moore was convicted through two separate trials of

corruption of minors, involuntary deviate sexual intercourse, kidnapping, rape, and

simple assault. Second Am. Pet., ¶¶3-4. As a result, he was sentenced to an aggregate

carceral term of 27 years, 11 months, and 29 days, to 66 years in state prison. Id.,

¶5. While incarcerated, Moore subsequently completed a Department-offered “52-

week sex offender group treatment program” in March 1992. Id., Ex. 14.

Decades passed as Moore continued to serve his sentence, before he finally

became eligible to seek parole. Moore filed his first parole application in 2014,

which was subsequently denied by the Board. Id., ¶¶7-8, Ex. 1. Moore applied again

in 2018, 2019, and 2020, but the Board denied each of these applications as well.

Id., ¶¶7-8, Exs. 2-4. Moore subsequently filed a fifth parole application in 2021, to

which the Board never responded. Id., ¶¶9-10, Ex. 6.

Moore waited until January 2023 to once again apply for parole. Id., ¶12, Ex.

8. On January 19, 2023, the Board sent a letter to Moore, in which it explained that

it had declined to consider this application because, per Section 6139 of the Prisons

1

Though Moore had named the AG, Burda, McGee, and Schmid as respondents in this

matter, he does not actually press any claims against those parties. See generally Second Am. Pet.

2

and Parole Code (Parole Code),2 it was “not required to consider an application for

parole by an inmate or his/her attorney submitted within three years from the date a

Board Action was recorded after a parole interview or hearing” in the event the

inmate had been convicted of certain crimes. Id., ¶13, Ex. 9.3 Though the Board did

not expressly state which of Moore’s crimes rendered him ineligible for parole

review at that point, the Board did provide a general list of a number of crimes

regarding which an inmate may seek parole review every three years, including

involuntary deviate sexual intercourse and rape (both of which are crimes for which

Moore had been convicted.) Id., Ex. 9. Moore then administratively appealed this

dismissal of his parole application, but the Board denied this appeal on February 23,

2023, on the basis that “designation of parole applications is not subject to appeal[,]”

while also noting that Moore would be able to apply for parole again on December

21, 2023, i.e., three years from the date of the Board’s most recent parole denial

decision. Id., ¶¶24-25, Exs. 10-11.

Thereafter, Moore filed a “Petition for Review in the Nature of Mandamus”

with our Court on April 27, 2023, in which he named the Board, Burda, McGee, and

Schmid as respondents. Moore then followed by submitting an amended “Petition

for Review in the Nature of Mandamus” on May 26, 2023, through which he added

the AG and Pennsylvania Department of Corrections (Department) as respondents,

while also electing not to name Burda, McGee, and Schmid (collectively Individual

Respondents) as respondents. Then, on June 16, he filed his Second Amended

2

61 Pa. C.S. § 6139.

3

This three-year review limitation was added to Section 6139 by the Act of November 25,

2020, P.L. 1219.

3

Petition, in which he dropped the Department as a respondent, while once again

adding Individual Respondents to the caption.

In his Second Amended Petition, Moore alleges that the Board acted

unlawfully by retroactively applying two statutes to his situation: the aforementioned

Section 6139 of the Parole Code, and Section 9718.1 of the Sentencing Code4 (which

mandates that those convicted of certain crimes of a sexual nature are not eligible

for parole unless they successfully complete a Department-provided sex offender

counseling or therapy program). Id., ¶¶13-15, 18. In addition, Moore argues that the

Board ignored the fact that he completed a counseling program in 1992, allegedly in

violation of Department policy that, in Moore’s reading, would relieve him of the

need to complete another program of that nature. Id., ¶¶17, 20-21.5 Furthermore,

Moore asserts that Schmid made a false statement about him in 2012, which was

placed in Moore’s institutional file. Id., ¶22. Schmid’s statement reads as follows:

Per vote sheet dated 03/2/12, [SCI-Coal Township’s]

Facility Manager has assigned . . . Moore to the

Institutional Sexual Predator List due to his sexual

harassment and sexual misconduct towards a female staff

member. . . . Moore entered his counselor’s office and

began masturbating inside his trousers in front of the

female counselor. Any attempt by her to leave or summon

help was met by aggressive movements on his part. The

female staff member avoided a physical attack by

withdrawing to the back of her office and remaining still.

. . . Moore presumably ejaculated and threatened her not

to tell anyone before leaving the office. . . . Moore was

subsequently placed in [SCI-Coal Township’s restricted

4

42 Pa. C.S. § 9718.1. Section 9718.1 was added to the Sentencing Code by the Act of

December 20, 2000, P.L. 721.

5

Moore also notes that McGee, who he claims is a psychologist, reviewed his situation in

2016 and concluded that he need not complete another sex offender counseling program, due to

the fact that he had completed the program in 1992. Second Am. Pet., ¶19, Ex. 24 at 3.

4

housing unit,] where he remains pending this separation

transfer.

A review of . . . Moore’s record reveals that his committing

offenses were extremely violent/sexual in nature, targeting

weaker females. [Moore’s] pre-sentence investigation

reveals that he has been overtly sexual since the age of 5,

“having a need [to] expose himself to others.” There are

also indications that he harbors serious resentment[]

towards women and acts out sexually when able.

On February 19, 2012, three months after his assault . . .

Moore filed a grievance alleging wrong doing by his

counselor, and noted that other staff were complicit in this

alleged behavior. The grievance was thoroughly

investigated by Lt. Long, Security Lieutenant, and denied.

Despite his apparent vigor to impugn his counselor and re-

victimize her, . . . Moore’s grievance was glaringly sparse

on details.

[Moore] remains on a waiting list for sex offender and

violence prevention programming. However, given the

eerily similar and stagnant nature of his sexual acts/arousal

patterns between 1986 and 2011, he appears to be fixated

on this type of interaction with females. Any prognosis for

improvement/change would seem to be poor.

Based on the aforementioned information, [SCI-Coal

Township] is requesting separation transfer from this staff

member. It is also this facility’s recommendation that

[Moore] be transferred to a higher level facility. Rather

than just moving [Moore,] it is also recommended that [he]

be designated as an institutional sexual predator towards

female staff. An “H” code would also be appropriate.

Absent any other means or further designation, it is [SCI-

Coal Township’s] desire to prevent . . . Moore from any

further assaults on female staff. It would also seem prudent

to eliminate any unsupervised contact between . . . Moore

and female staff.

Id., Ex. 24 at 11. Moore alleges that the Board relied upon this “false” statement

when electing to deny his 2020 parole request. Id., ¶22 (citing id., Ex. 23). As support

for this assertion, Moore includes a Board-issued “Integrated Case Summary - 13A

5

Parole Summary Application for Parole Review,” dated November 5, 2020, which

contains the following relevant information:

Regarding his misconduct dated 11/14/2011 for Sexual

Harassment, Using Abusive, Obscene, or Inappropriate

Language, Refusing to Obey an Order, and Presence in an

Unauthorized Area, he told a female corrections counselor

at SCI-Coal Township that her “ass looked amazing in

those jeans.” When advised to stop he leaned forward and

asked if she felt uncomfortable and said that he wouldn’t

tell anyone and repeated that he, “just wanted five

minutes.” He refused to leave and was observed

masturbating through his shorts, she again ordered him to

leave and he responded that he would be done soon. He

ejaculated and then threatened her not to tell anyone before

leaving the office. He then filed a grievance alleging

wrongdoing by his counselor,

There is a separation on file.

Id., Ex. 23 (cleaned up).

Finally, Moore requests the following relief through his Second Amended

Petition:

A writ of mandamus, directing the . . . Board to withdraw

the mandate that Moore complete a sex offender program

and a sex offender program booster to be eligible for

parole[,] to review Moore’s application for parole and

grant him a parole hearing forthwith[, and] lastly, to

reevaluate Moore for parole according to the parole

statutes which were in place at the time of his arrest.

Id., Wherefore Clause (cleaned up).

Moore also filed an application for summary relief on June 16, 2023, against

the AG and the Board, as well as Individual Respondents. In his brief supporting

that application, he asserts that he is entitled to judgment in his favor against the

Board for two reasons. First, the Board’s application of Section 6139 of the Parole

Code and Section 9718.1 of the Sentencing Code to his situation violated the

6

Pennsylvania Constitution’s and United States Constitution’s ex post facto clauses.6

Moore’s Br. in Support of Appl. at 4-7. Second, the Board violated his due process

rights by disregarding the fact that he had already completed a sex offender

counseling program in 1992; by denying his parole applications in 2014, 2018, 2019,

and 2020 for reasons that were not supported by record evidence; and by relying

upon Schmid’s aforementioned, allegedly false statement about the sexual

misconduct Moore had perpetrated against the SCI-Coal Township counselor in

2011. Id. at 8-10.

The Board and Individual Respondents responded collectively on August 28,

2023, by filing preliminary objections to the Second Amended Petition and an

answer in opposition to Moore’s request for summary relief. Moore then replied in

opposition to the preliminary objections on September 28, 2023, after which the

Board and the Individual Respondents submitted a brief in support of their

preliminary objections and against Moore’s application for summary relief on

November 2, 2023. As such, this matter is ready for our consideration.

II. Discussion

A. The Board’s and Individual Respondents’ Preliminary Objections

We first address the Board’s and Individual Respondents’ collective

preliminary objections which we summarize as follows. They demur to Moore’s

mandamus claim on three bases. First, they assert that Moore effectively challenges

the discretionary authority the Board employed when disposing of his parole

applications, which cannot be done via mandamus. Board’s and Individual

Respondents’ Br. at 8-10. Second, they state that Moore has failed to viably assert

that they violated either the Pennsylvania Constitution’s or the United States

6

PA. CONST. art. I, § 17; U.S. CONST. art. I, § 9.

7

Constitution’s ex post facto clause. This is for two reasons: (a) none of the Board’s

parole decisions reference Section 9718.1 of the Sentencing Code as a basis for

denying Moore’s applications and, furthermore, the Board has longstanding,

preexisting authority to deny parole on the basis that an inmate has failed to complete

a sex offender counseling program; and (b) the changes to Section 6139 of the Parole

Code did nothing to alter the minimum date upon which Moore was eligible for

parole and did not modify the standards used to determine whether he should be

paroled. Id. at 10-17. Finally, they argue that Moore has failed to viably assert that

they violated his constitutional right to due process. In the Board’s and Individual

Respondents’ collective view, this is because Moore does not plead that the Board

failed to fulfill its minimum statutory duties when handling his parole applications;

rather, he simply disagrees with how the Board weighed the evidence that was

presented to it, as well as the factors the Board considered while rendering its

decisions regarding those applications. Id. at 17-18.

In ruling on preliminary objections, we must accept as true

all well-pleaded material allegations in the petition for

review, as well as all inferences reasonably deduced

therefrom. The Court need not accept as true conclusions

of law, unwarranted inferences from facts, argumentative

allegations, or expressions of opinion. In order to sustain

preliminary objections, it must appear with certainty that

the law will not permit recovery, and any doubt should be

resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits

every well-pleaded fact in the [petition for review] and all

inferences reasonably deducible therefrom. It tests the

legal sufficiency of the challenged pleadings and will be

sustained only in cases where the pleader has clearly failed

to state a claim for which relief can be granted. When

ruling on a demurrer, a court must confine its analysis to

the complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (cleaned up).

8

As for mandamus, it

is an extraordinary remedy, “designed to compel

performance of a ministerial act or mandatory duty where

there exists a clear legal right in the [petitioner], a

corresponding duty in the [respondent], and want of any

other adequate and appropriate remedy.” Coady v.

Vaughn, 770 A.2d 287, 289 (Pa. 2001) (citing Bronson v.

Pa. Bd. of Prob. & Parole, 421 A.2d 1021, 1023 (Pa.

1980)).

Toland v. Pa. Bd. of Prob. & Parole, 263 A.3d 1220, 1232 (Pa. Cmwlth. 2021)

(cleaned up).

While . . . mandamus will not lie to compel discretionary

acts, this has usually been interpreted to mean that while a

court may direct that discretion be exercised, it may not

specify how that discretion is to be exercised nor require

the performance of a particular discretionary act. The writ

cannot be used to control the exercise of discretion or

judgment by a public official or administrative or judicial

tribunal; to review or compel the undoing of an action

taken by such an official or tribunal in good faith and in

the exercise of legitimate jurisdiction, even though the

decision was wrong; to influence or coerce a particular

determination of the issue involved; or to perform the

function of an appeal or writ of error.

In short, mandamus is chiefly employed to compel the

performance (when refused) of a ministerial duty, or to

compel action (when refused) in matters involving

judgment and discretion. It is not used to direct the

exercise of judgment or discretion in a particular way, nor

to direct the retraction or reversal of an action already

taken.

Pa. Dental Ass’n v. Ins. Dep’t, 516 A.2d 647, 652 (Pa. 1986) (cleaned up).

Accordingly, an inmate may only seek mandamus relief with regard to the

Board’s denial of their parole application in rare circumstances. As our Supreme

Court has made abundantly clear, “mandamus will not lie where the substance of the

9

[B]oard’s discretionary action is the subject of the challenge.” Coady, 770 A.2d at

290.

Where, however, discretionary actions and criteria are not

being contested but rather the actions of the [B]oard taken

pursuant to changed statutory requirements are being

challenged, an action for mandamus remains viable as a

means for examining whether statutory requirements have

been altered in a manner that violates the ex post facto

clause.

Id.

The ex post facto prohibition bars enactments by the States

“which, by retroactive operation, increase the punishment

for a crime after its commission.” Garner v. Jones, 529

U.S. 244, 249 (2000) (citing Collins v. Youngblood, 497

U.S. 37, 42 (1990)). “Retroactive changes in laws

governing parole of prisoners, in some instances may be

violative of this precept.” Id. (citing Weaver v. Graham,

450 U.S. 24, 32 (1981); Cal. Dep’t of Corr. v. Morales,

514 U.S. 499, 508-09 (1995)). Our Supreme Court has

recognized the potential of an ex post facto violation by a

change in a parole law under the Pennsylvania and United

States Constitutions. Coady, 770 A.2d at 290. “Two

critical elements must be present for a criminal or penal

law to be violative of the ex post facto clause: ‘It must be

retrospective, that is, it must apply to events occurring

before its enactment, and it must disadvantage the offender

affected by it.’” Cimaszewski v. Pa. Bd. of Prob. & Parole,

868 A.2d 416, 423 (Pa. 2005) (quoting Weaver, 450 U.S.

at 29).

Toland, 263 A.3d at 1235 (cleaned up). Similarly, an inmate may seek mandamus

relief regarding a parole application by asserting that the Board violated their due

process rights. Id. at 1239-40. The Board commits a violation of this nature if it fails

to properly apply the Parole Code’s “minimal statutory requirements” when

disposing of such an application. Id.

10

Before applying these legal precepts to the instant matter, we must again note

that Moore does not actually pose specific claims in the Second Amended Petition

against Individual Respondents or seek relief that implicates them. Rather, he simply

makes passing reference to Schmid’s 2012 statement that Moore was, in essence, an

unreformed sexual predator at that point in time, and McGee’s 2016 assessment that

Moore did not need additional sex offender counseling, while saying nothing

whatsoever about Burda. See generally Second Am. Pet. We therefore conclude that

Moore has abandoned or has elected not to pursue any claims against Individual

Respondents. Accordingly, we dismiss the preliminary objections as moot in part,

with regard to Individual Respondents.

Next, we turn to Moore’s claims against the Board, and the Board’s

preliminary objections thereto.

We disagree with the Board’s first argument. Moore appears to focus

primarily on what he claims is the Board’s improper retroactive application of

Section 6139 of the Parole Code and Section 9718.1 of the Sentencing Code. In

doing so, he does not clearly challenge the Board’s exercise of discretion in denying

his parole applications. Therefore, the Board’s assertion that Moore’s claim strays

beyond the permissible boundaries for mandamus relief is misplaced.

By contrast, we conclude that the Board’s second argument is correct because

Moore has failed to successfully assert that the Board committed an ex post facto

clause violation. With regard to Section 6139 of the Parole Code, the three-year

parole application review limitation that was added to that statute in 2020 does not

extend inmates’ sentences or alter the Board’s standards for considering whether to

parole a given inmate. Leonardo v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 156

11

M.D. 2021, filed Mar. 17, 2023), slip op. at 10-13, 2023 WL 2544272, at *5-*7.7

Given this, the Board’s dismissal of Moore’s 2023 parole application due to this

review limitation does not violate the ex post facto clauses of either the Pennsylvania

Constitution or the United States Constitution. Id. As for Section 9718.1 of the

Sentencing Code, there is nothing in the Second Amended Petition that suggests that

the Board applied this statute’s requirements to Moore. At no point did the Board

determine that Moore was statutorily ineligible for parole because he had failed to

complete a sex offender counseling program; rather, the Board reviewed Moore’s

applications, denied them for various reasons that it listed in its decisions, and then

stated on several occasions that it would factor in successful completion of such a

program when reviewing future applications. See Second Am. Pet., Ex. 1 (2014

decision, in which the Board stated: “At your next interview, the Board will review

your file and consider: Whether you have successfully participated in/successfully

completed a treatment program for sex offenders and violence prevention.”); id., Ex.

2 (2018 decision, in which the Board stated: “Board recommends sex offender

program booster.”); id., Ex. 3 (2019 decision, with no references to sex offender

treatment program); id., Ex. 4 (2020 decision, in which the Board stated: “At your

next interview, the Board will review your file and consider: Whether you have

successfully participated in/successfully completed a treatment program for sex

offenders and sex offender programming booster.”); id., Ex. 9 (2023 decision, with

no references to sex offender treatment program). Accordingly, Moore has not

viably asserted an ex post facto clause violation on the basis of Section 9718.1 either.

7

See Section 414(a) of the Internal Operating Procedures of the Commonwealth Court of

Pennsylvania, 210 Pa. Code § 69.414(a) (unreported Commonwealth Court opinions issued after

January 15, 2008, may be cited for their persuasive value).

12

Finally, we agree with the Board that Moore has failed to adequately assert

that the Board violated his due process rights via the manner in which it handled his

parole applications. Moore fails to identify what, if any, minimal statutory

requirements the Board neglected to properly apply when considering his parole

applications and does not identify any factors that the Board incorrectly considered

when doing so. As such, Moore’s mandamus claim fails to the extent he predicated

it upon the Board’s alleged violation of his due process rights. Therefore, we also

conclude that the Board’s third argument is correct.

Accordingly, we sustain the Board’s demurrer and dismiss Moore’s claims

against the Board, with prejudice.

B. Moore’s Application for Summary Relief

Next, we turn to Moore’s application for summary relief.

Applications for summary relief addressed to this Court’s

original or appellate jurisdiction are authorized under Rule

1532(b) of the Pennsylvania Rules of Appellate

Procedure, which provides: “At any time after the filing of

a petition for review in an appellate or original jurisdiction

matter the court may on application enter judgment if the

right of the applicant thereto is clear.” [Pa. R.A.P.

1532(b)] (Emphasis added.) Summary relief is similar to

summary judgment under the Pennsylvania Rules of Civil

Procedure, in that the requested relief is only appropriate

where there are no disputed issues of material fact and it is

clear that the applicant is entitled to the requested relief

under the law. See Scarnati v. Wolf, 173 A.3d 1110, 1118

(Pa. 2017). Moreover, we review the record in the light

most favorable to the nonmoving party, resolving all

doubts as to the existence of disputed material facts against

the moving party. Id.

Marcellus Shale Coal. v. Dep’t of Env’t Prot., 216 A.3d 448, 458 (Pa. Cmwlth.

2019).

13

Though Moore seeks summary relief against the Board and Individual

Respondents, he is not entitled to do so at this juncture. This is because none of

Moore’s claims against the Board survived the Board’s preliminary objections, and

because Moore elected not to lodge any claims against Individual Respondents in

his Second Amended Petition. Consequently, we dismiss Moore’s application for

summary relief as to the Board and Individual Respondents on the basis of mootness.

This leaves one remaining respondent: the AG. Moore makes no reference to

the AG in either the Second Amended Petition or his application for summary relief,

other than by naming the AG as a respondent in the caption. In other words, there is

no claim against the AG in this matter regarding which we could even theoretically

grant summary relief, and it is entirely unclear why Moore saw fit to name the AG

as a respondent in the first place. As a result, Moore has waived any claims that he

may have desired to pursue against the AG. See M.R. Mikkilineni v. Amwest Sur. Ins.

Co., 919 A.2d 306, 316 n.5 (Pa. Cmwlth. 2007) (“[W]here a [petitioner] fails to

properly plead a cause of action, it is waived[.]”).

III. Conclusion

In accordance with the foregoing analysis, we sustain the Board’s demurrer to

Moore’s Second Amended Petition and dismiss Moore’s claims against the Board

with prejudice. We also dismiss Individual Respondents’ preliminary objections as

moot. Finally, we deny Moore’s application for summary relief in part, as to the AG,

and dismiss it as moot in part, with regard to the Board and Individual Respondents.

ELLEN CEISLER, Judge

14

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian C. Moore, :

Petitioner :

:

v. : No. 223 M.D. 2023

:

Pennsylvania Parole Board, :

Pennsylvania Attorney General, :

Gloria Burda SCI-Mahanoy, :

Michelle L. McGee SCI-Mahanoy, :

Michael D. Schmid SCI-Coal :

Township, :

Respondents :

ORDER

AND NOW, this 16th day of August, 2024, it is hereby ORDERED:

1. Respondent Pennsylvania Parole Board’s (Board) preliminary

objections Petitioner Brian C. Moore’s (Moore) “Amended Petition for

Review in the Nature of Writ of Mandamus” are SUSTAINED;

2. Moore’s claims against the Board are DISMISSED WITH

PREJUDICE;

3. Gloria Burda SCI-Mahanoy, Michelle L. McGee SCI-Mahanoy, and

Michael D. Schmid SCI-Coal Township’s (collectively Individual

Respondents) preliminary objections are DISMISSED AS MOOT;

4. Moore’s application for summary relief is DENIED IN PART, as to

Respondent Pennsylvania Attorney General, and is DISMISSED AS

MOOT IN PART, with regard to the Board and Individual

Respondents.

ELLEN CEISLER, Judge