C. Turner v. Com. of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Turner, :

:

Petitioner :

:

v. : No. 183 M.D. 2019

: Submitted: June 5, 2020

:

Commonwealth of Pennsylvania, :

Board of Probation and Parole, :

Byron Rice, and Francis Smolinsky, :

:

Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: October 13, 2020

Before the Court are the preliminary objections (POs) of the

Commonwealth of Pennsylvania, Board of Probation and Parole (Board),1 Byron

1

Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation

and Parole was renamed the Pennsylvania Parole Board. Sections 15, 16, and 16.1 of the Act of

December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and

6111(a) of the Prisons and Parole Code (Parole Code), as amended, 61 Pa. C.S. §§6101, 6111(a).

Section 6111(a) of the Parole Code states that the Board “is an independent administrative board

for the administration of the parole laws of this Commonwealth.” Id. Additionally, Section

6111(e) provides, in relevant part:

[T]he [B]oard shall have all the powers and shall perform the duties

generally vested in and imposed upon independent administrative

boards and commissions by the [A]ct of April 9, 1929[, P.L. 177, as

amended, 71 P.S. §§51-732], known as The Administrative Code of

(Footnote continued on next page…)

Rice (Rice), and Francis Smolinsky (Smolinsky and, collectively, Respondents) to

the pro se petition for review (Petition) filed in our original jurisdiction by Charles

Turner (Parolee) seeking declaratory and injunctive relief,2 and monetary damages,

1929 [(Administrative Code)], and shall be subject to all the

provisions of that act applicable generally to independent

administrative boards and commissions.

61 Pa. C.S. §6111(e). See also Section 201(a) of the Administrative Code, 71 P.S. §61(a) (“The

executive and administrative work of this Commonwealth shall be performed by the Executive

Department, consisting of . . . independent administrative boards and commissions[.]”).

Additionally, Section 6141 of the Parole Code states: “The [B]oard may make general

rules for the conduct and supervision of persons placed on parole and may, in particular cases, as

it deems necessary to effectuate the purpose of parole, prescribe special regulations for particular

persons.” 61 Pa. C.S. §6141. Moreover, Section 506 of the Administrative Code provides, in

pertinent part:

The heads of . . . the several independent administrative boards and

commissions . . . are hereby empowered to prescribe rules and

regulations, not inconsistent with law, for the government of their

respective . . . boards, or commissions, the conduct of their

employes and clerks, [and] the distribution and performance of their

business[.]

71 P.S. §186. See also Johnson v. Pennsylvania Board of Probation and Parole, 566 A.2d 918,

922 (Pa. Cmwlth. 1989) (“The Board is an administrative agency not governed by the

Pennsylvania Rules of Criminal Procedure and has the authority to make and implement its own

procedural rules. Until the Board amends its regulations, it cannot disregard them on an individual

case basis.”) (citation omitted); In re Bentleyville Plaza, Inc., 392 A.2d 899, 901 (Pa. Cmwlth.

1978) (“[A]dministrative agencies are bound equally with others by their own regulations which

have the force and effect of law.”).

2

Although Parolee styled his filing as a Complaint for Declaratory Judgment (Complaint),

he should have filed a petition for review because that is the pleading that is used to commence an

action against the Commonwealth and its officers under Chapter 15 of the Pennsylvania Rules of

Appellate Procedure. See, e.g., MFW Wine Co., LLC v. Pennsylvania Liquor Control Board, 231

A.3d 50, 52 n.1 (Pa. Cmwlth. 2020) (single-judge opinion by Brobson, J.) (“Consistent with the

applicable rules of appellate procedure, the Court treats the Amended Complaint as a petition for

review directed to this Court’s original jurisdiction. See Pa. R.A.P. 1501(a)(3), 1502, 1503.”).

(Footnote continued on next page…)

2

pursuant to the provisions of the Declaratory Judgments Act (DJA), 42 Pa. C.S.

§§7531-7541. We sustain a PO and dismiss the Petition with prejudice.

In a memorandum opinion denying Parolee’s Motion for Temporary

Injunction (Motion) that Parolee had also filed in this matter, we summarized the

facts as alleged in the Petition and the documents attached thereto as follows:

[Parolee] was convicted of criminal solicitation to commit

murder and related offenses, and on August 12, 1997, he

was sentenced to 15 to 30 years’ imprisonment. On

February 5, 2019, [Parolee] was released from prison to

parole supervision, at which time he agreed to abide by

various conditions of parole, including the following: “you

shall maintain employment/vocational training/schooling

as approved by parole supervision staff.” (Petition,

Exhibit A at 2) (emphasis added).

[Parolee] is a master mason who previously owned

his own masonry company. After being paroled, [Parolee]

applied for work and was hired as a bricklayer by

McCarthy Masonry at the rate of $27/hour. [Parolee]

completed orientation and was instructed to report for

work beginning on March 18, 2019. On March 11, 2019,

[Parolee] reported to his parole agent, Smolinsky, and his

parole supervisor, Rice, that he had obtained gainful

employment at McCarthy Masonry. Smolinsky and Rice

refused to approve his employment, telling [Parolee] that

McCarthy Masonry was “under investigation.” (Petition

¶15.)

[Parolee] asserts that McCarthy Masonry has been

in business for 30 years, employing approximately 50

people. [Parolee] claims that neither McCarthy Masonry

nor its president, James McCarthy, have ever been cited

for any civil or criminal infractions, and that the company

Consistent with the foregoing, by April 11, 2019 order, we directed that the Complaint be docketed

as a petition for review invoking this Court’s original jurisdiction, and we refer to Parolee’s filing

in this memorandum opinion as the Petition, and to the named defendants in the Complaint as

Respondents.

3

is not involved in any litigation or the subject of any

investigation. [Parolee] asserts that the real reason

Smolinsky and Rice denied him the opportunity to work at

McCarthy Masonry is because James McCarthy’s son,

Sheamus McCarthy, filed a federal civil rights complaint

against Smolinsky for illegally seizing money from his

residence while he was under Smolinsky’s supervision. In

his lawsuit, Sheamus McCarthy alleged, inter alia, that

Smolinsky wrongfully confiscated $4,941 from his home

when he was not charged with any crime and there was not

probable cause to believe the money was connected to

unlawful drug activity. The lawsuit further alleged that

after filing a motion for return of property, Smolinsky

retaliated by arresting Sheamus McCarthy and initiating

revocation proceedings based on minor technical

probation violations and a new criminal charge which was

later dismissed for lack of evidence. [(Petition ¶¶18-20,

Exhibits E, F.)]

Given the above, on March 28, 2019, [Parolee] filed

his Petition and Motion, naming the [Board], Rice and

Smolinsky as Respondents. [Parolee] claims []

Respondents violated the Prisons and Parole Code [(Parole

Code), 61 Pa. C.S. §§101-6309,] and the Fourteenth

Amendment to the United States Constitution[3] by

imposing parole restrictions on him that are arbitrary and

unreasonable. [Parolee] alleges [] Respondents’ conduct

in depriving him of the opportunity to work for McCarthy

Masonry is not rationally related to protecting the public

and contrary to the express purpose of parole supervision

“to assist the offenders in their rehabilitation and

reassimilation into the community. . . .” 61 Pa. C.S.

§6153(a). He claims the decision to deny his employment

is nothing more than a vindictive response to the unrelated

lawsuit filed by his would-be employer’s son, Sheamus

McCarthy. [Parolee] claims he suffered actual damages in

the amount of $216/day in lost wages and benefits, and

that he is unable to pay his parole supervision fees, or pay

for housing, food, clothing and other necessities. [Parolee]

3

The Due Process Clause of the Fourteenth Amendment provides, “nor shall any State

deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend.

XIV, §1.

4

requests that the Court enjoin Respondents from denying

him employment at McCarthy Masonry, enjoin Smolinsky

and Rice from having any supervisory contact with him,

and declare that the reasons Respondents proffered for

denying his work are unlawful. [(Petition ¶¶16-17, 23-

27.)]

Turner v. Board of Probation and Parole (Pa. Cmwlth., No. 183 M.D. 2019, filed

May 15, 2019), slip op. at 1-3.

Respondents filed POs4 alleging, inter alia, that Parolee has failed to

exercise or exhaust an administrative remedy so that this Court should not entertain

the instant Petition seeking declaratory and injunctive relief as well as monetary

damages.5 Specifically, Respondents contend that an administrative remedy exists

4

As this Court has explained:

“In ruling on preliminary objections, the courts must accept as true

all well-pled facts that are material and all inferences reasonably

deducible from the facts.” “However, we ‘are not required to accept

as true any unwarranted factual inferences, conclusions of law or

expressions of opinion.’” “To sustain preliminary objections, ‘it

must appear with certainty that the law will permit no recovery’ and

‘[a]ny doubt must be resolved in favor of the non-moving party.’”

Brouillette v. Wolf, 213 A.3d 341, 351 n.9 (Pa. Cmwlth. 2019) (citations omitted).

5

“The terms ‘exhaustion of statutory remedies’ and ‘exhaustion of administrative

remedies’ are at times used interchangeably in our decisional law.” Office of Governor v.

Donahue, 98 A.3d 1223, 1231 n.6 (Pa. 2014). The Board cites Pa. R.C.P. No. 1028(a)(7), relating

to “failure to exercise or exhaust a statutory remedy,” as the basis for its PO due to Parolee’s failure

to exhaust his available administrative remedies in this matter. See, e.g., Keystone Releaf LLC v.

Pennsylvania Department of Health, 186 A.3d 505, 511 (Pa. Cmwlth. 2018) (“[The r]espondents

demur to all counts on the primary grounds that Petitioner failed to exhaust administrative

remedies and lacks standing.”); Petsinger v. Department of Labor and Industry, Office of

Vocational Rehabilitation, 988 A.2d 748, 753 (Pa. Cmwlth. 2010) (“[Office of Vocational

Rehabilitation (OVR)] raises the existence of adequate statutory and administrative remedies both

as a demurrer under Pa. R.C.P. No. 1028(a)(4) and as a separate objection under Pa. R.C.P. No.

1028(a)(7)[.] OVR asserts [the petitioner] cannot succeed on his mandamus action because he

(Footnote continued on next page…)

5

whereby Parolee may contest the actions of Rice and Smolinsky with further review

by the director of the district parole office and, ultimately, the Board, and that

Parolee has not availed himself of this administrative remedy prior to filing the

Petition and Motion. See Preliminary Objections to Petition for Review ¶¶51-53.

Initially, we note that “[p]etitions for declaratory judgments are

governed by the provisions of the [DJA].” Brouillette v. Wolf, 213 A.3d 341, 357

(Pa. Cmwlth. 2019) (citation omitted). As this Court has explained:

Declaratory judgments are not obtainable as a matter of

right. Rather, whether a court should exercise jurisdiction

over a declaratory judgment proceeding is a matter of

sound judicial discretion. Thus, the granting of a petition

for a declaratory judgment is a matter lying within the

sound discretion of a court of original jurisdiction.

Id. (citations omitted). “[A]n action seeking declaratory judgment is not an optional

substitute for established or available remedies and should not be granted where a

more appropriate remedy is available.” Pittsburgh Palisades Park, LLC v.

clearly had adequate statutory and administrative remedies to address both his employment and

OVR client complaints[.]”).

Nevertheless, the Board’s citation to the proper subsection of Pa. R.C.P. No. 1028(a) is

immaterial because it has sufficiently pleaded the basis for its PO so that Parolee is on notice

regarding the gravamen of its objection and this Court may properly dispose of the PO. See, e.g.,

Pa. R.C.P. No. 126 (“The rules shall be liberally construed to secure the just, speedy and

inexpensive determination of every action or proceeding to which they are applicable. The court

at every stage of any such action or proceeding may disregard any error or defect of procedure

which does not affect the substantial rights of the parties.”); Beglin v. Stratton, 816 A.2d 370, 372-

73 (Pa. Super. 2003) (“Although the Appellees failed to spell out that improper service was made

by violating Pa. R.C.P. No. 400(c) [in the PO asserting a lack of service generally], improper

service was sufficiently pled to raise the issue in the court below to put the Plaintiff on notice and

for the Court to properly decide.”); Dominski v. Garrett, 419 A.2d 73, 75 (Pa. Super. 1980) (“Since

the course of litigation would not be served by dismissing these [POs], and in accord with

Pa. R.C.P. No. 126 which seeks to secure just and speedy determinations of proceedings, we will

treat appellees’ [POs] as a demurrer since we assume that is their intended effect and because that

is the manner in which the trial court treated them.”).

6

Pennsylvania State Horse Racing Commission, 844 A.2d 62, 67 (Pa. Cmwlth. 2004)

(citation omitted).

Additionally:

A party challenging administrative decision-

making that has not exhausted its administrative remedies

is precluded from obtaining judicial review by mandamus

or otherwise. The primary purpose of the exhaustion

doctrine is to ensure that claims will be heard, as a

preliminary matter, by the body having expertise in the

area. It further provides the agency with the opportunity

to correct its own mistakes and to moot judicial

controversies.

Matesic v. Maleski, 624 A.2d 776, 778 (Pa. Cmwlth. 1993) (citations omitted).

As indicated above, Section 6141 of the Parole Code states: “The

[B]oard may make general rules for the conduct and supervision of persons placed

on parole and may, in particular cases, as it deems necessary to effectuate the

purpose of parole, prescribe special regulations for particular persons.” 61 Pa. C.S.

§6141. Likewise, Section 67.2 of the Board’s regulations6 provides, in pertinent

part, that “the Board may release [a] parolee . . . from the conditions of parole . . .

which it has imposed.” 37 Pa. Code §67.2. In this regard, Section 67.2 further

provides that “[t]he release form shall contain the parole number, name of parolee[,]

date, signature of parole agent, and the conditions from which the parolee . . . is

released.” Id.

6

See Section 506 of the statute commonly referred to as the Commonwealth Documents

Law, 45 Pa. C.S. §506 (“The contents of the code, of the permanent supplements thereto, and of

the bulletin, shall be judicially noticed.”); Roskwitalski v. Reiss, 402 A.2d 1061, 1064 (Pa. Super.

1979) (“The [Real Estate] Commission’s rules are promulgated in the Pennsylvania Code, and

courts must take judicial notice thereof. 45 Pa. C.S. §506.”) (footnote omitted).

7

With respect to the imposition of special conditions of parole, Section

67.1 of the Board’s regulations states, in relevant part:

(a) In addition to the general conditions of parole

imposed by Chapter[] 63 [(relating to conditions

governing parole)], parolees shall be subject to the

additional conditions imposed under [§]63.5 (relating to

special conditions of parole)[.]

(b) If problems arise or questions occur concerning the

conditions of parole . . . the parolee shall consult with the

parole agent, as it is the responsibility of the latter to help

the parolee in the interpretation of the conditions of . . .

parole. If a parolee is unable to contact his parole agent,

he should contact the agent in charge of the district office.

37 Pa. Code §67.1(a), (b).7

7

Regarding a parolee’s release on parole subject to special conditions, Section 67.3 of the

Board’s regulations states:

Every parolee shall acknowledge the following:

(a) That he has read, or has had read to him, the conditions of his

parole.

(b) That he fully understands the conditions of his parole and

agrees to follow such conditions.

(c) That he fully understands the penalties involved if he violates

the conditions of parole in any manner.

37 Pa. Code §67.3. See also Section 67.4, 37 Pa. Code §67.4 (“The parole agreement shall contain

the parole number, date and signature of the parolee.”); Johnson v. Pennsylvania Board of

Probation and Parole, 532 A.2d 50, 52 (Pa. Cmwlth. 1987) (“In Green [v. Pennsylvania Board of

Probation and Parole, 515 A.2d 1006, 1008 (Pa. Cmwlth. 1986)], we held that a grant of parole

is not executed until the prisoner signs the acknowledgement of parole conditions, Board form

PBPP-11, and the Board issues its parole release order, Board form PBPP-10.”).

The cited Board form PBPP-10 states the following, in relevant part:

(Footnote continued on next page…)

8

In turn, Section 63.5 of the Board’s regulations states:

(a) Parolees shall comply with special conditions which

are imposed by the Board or which are subsequently

imposed by the parole agent.

(b) If problems arise or questions occur concerning the

conditions of parole, the parolee shall consult with the

parole agent, as it is the responsibility of the latter to help

the parolee in the interpretation of the conditions of parole.

If a parolee is unable to contact his parole agent, he should

contact the agent in charge of the district parole office.

37 Pa. Code §63.5.

Also, should a parolee be dissatisfied with the action or inaction of a

parole agent or agent in charge of the district parole office, Section 35.5 of the

General Rules of Administrative Practice and Procedure (GRAPP)8 provides for the

filing of an informal complaint with the Board stating, in pertinent part:

If you think that any of your rights have been violated as a result of

your parole supervision, you may submit a timely complaint in

writing, first to the district director of the district office through

which you are being supervised. If your complaint is not resolved

to your satisfaction, you may then submit your complaint in writing

to the Pennsylvania Board of Probation and Parole, Director of

Supervision, P.O. Box 1661, Harrisburg, Pennsylvania 17105-1861.

Wile, Pennsylvania Law of Probation and Parole Appendix B, Form B-4 (3d Ed. 2019) (providing

a copy of the PBPP-11 (Rev. 7/91) form). Parolee admits that he received the foregoing

information regarding an administrative remedy. See Petitioner’s Answer and New Matter in

Response to Respondents’ Preliminary Objections (Petitioner’s Answer) ¶52 (“It is admitted that

the parole agreement purportedly identifies the existence of a process for submitting a complaint,

as stated by [R]espondents.”).

8

The GRAPP apply to proceedings before the Board. Indeed, with respect to the Board’s

reconsideration of the denial of backtime in a parole revocation decision, this Court has stated:

The [GRAPP] govern practice and procedure before

Commonwealth agencies, except to the extent that the agency has

promulgated an inconsistent regulation on the same subject.

(Footnote continued on next page…)

9

Informal complaint may be by letter or other writing, and shall

be . . . filed as of the date of its receipt. No form of informal

complaint is suggested, but in substance the letter or other

writing shall contain the essential elements of a formal complaint

as specified in §35.9[.] Only one copy of an informal complaint

need be filed. It may embrace supporting papers.

1 Pa. Code §35.5.

In turn, Section 35.9 of the GRAPP provides for the filing of a formal

complaint stating, in relevant part:

A person complaining of anything done or omitted to be

done by a person subject to the jurisdiction of an agency,

in violation of a statute or regulation administered or

issued by the agency may file a complaint with the

agency. . . . A copy of the complaint will be forwarded by

the agency to the respondent who will be called upon to

satisfy the complaint or to answer the same in writing

within the time specified in [Section 35.35 of the GRAPP,

1 Pa. Code] §35.35 (relating to answers to complaints and

petitions), . . . after the date of service of the complaint,

unless the agency with or without motion shall prescribe a

different time. If, in the judgment of the agency, a

violation of a statute or regulation administered or issued

by the agency has been alleged and has not been satisfied

[Section 31.1 of the GRAPP,] 1 Pa. Code §31.1. . . . Because a

subsequent appeal [prohibited by Section 73.1(a)(4) of the Board’s

regulations, 37 Pa. Code §73.1(a)(4),] is not the same as a request

for reconsideration based on changed circumstances, we conclude

that [Section 35.241 of the GRAPP,] 1 Pa. Code §35.241

[(governing applications for reconsideration of agency orders based

on a change in circumstance),] applies to these proceedings before

the Board.

Shaw v. Pennsylvania Board of Probation and Parole, 812 A.2d 769, 771 (Pa. Cmwlth. 2002)

(footnotes omitted). See also St. Clair Area School District v. Department of Education, 584 A.2d

384, 386 (Pa. Cmwlth. 1990) (“The [GRAPP] apply to agency proceedings unless a statute sets

forth different rules on the same subject, or unless the agency itself has promulgated inconsistent

rules. 1 Pa. Code §31.1. With respect to the department’s action in this case, there are not statutory

or procedural provisions that preempt the application of the [GRAPP].”).

10

adequately the agency will either invite the parties to an

informal conference, set the matter for a formal hearing,

or take another action which in the judgment of the agency

is appropriate.

1 Pa. Code §35.9.

Finally, Section 31.19 of the GRAPP states:

Petitions for the issuance, in the discretion of an agency,

of a declaratory order to terminate a controversy or remove

uncertainty, shall state clearly and concisely the

controversy or uncertainty which is the subject of the

petition, shall cite the statutory provision or other authority

involved, shall include a complete statement of the facts

and grounds prompting the petition, together with a full

disclosure of the interest of the petitioner.

1 Pa. Code §31.19.

Based on the foregoing, on March 11, 2019, following Smolinsky’s and

Rice’s disapproval of his employment with McCarthy Masonry, Parolee should have

contacted the agent in charge of the district office pursuant to Sections 63.5(b) and

67.1(b) of the Board’s regulations. 37 Pa. Code §§63.5(b), 67.1(b). If he was

dissatisfied with that agent’s resolution of the situation, Parolee could have sought

further redress with the Board via the submission of an informal complaint; a formal

complaint; a petition for a declaratory order; or a request for release from this special

condition of parole. 1 Pa. Code §§31.19, 35.5, 35.9; 37 Pa. Code §§63.5(b), 67.1(b),

67.2.9 See, e.g., Wheeler v. Pennsylvania Board of Probation and Parole, 862 A.2d

9

Parolee’s assertion that he was relieved of his duty to pursue these administrative

remedies because Rice and Smolinsky did not provide him with a written order is unavailing. See,

e.g., Petitioner’s Answer ¶52(c) (“The complaint process described in the parole agreement is not

adequate and complete because respondents Smolinsky and Rice deliberately frustrated [Parolee’s]

attempt to utilize the complaint process by refusing to provide a written order prohibiting

[Parolee’s] employment at McCarthy Masonry.”). As outlined above, no written order is necessary

to pursue any of these remedies under the Board’s regulations or the GRAPP. See also Section

31.3 of the GRAPP, 1 Pa. Code §31.3 (defining “Complainants” as “[p]ersons who complain to

(Footnote continued on next page…)

11

127, 130-31 (Pa. Cmwlth. 2004) (holding that the letter of a district director denying

a parolee’s request to remove a special condition of parole is not a Board

adjudication that is appealable to this Court). Instead, Parolee bypassed all of the

the agency of an agency regulation or general order or anything done or omitted to be done in

violation of . . . delegated authority administered by the agency, or any orders . . . issued

thereunder, or another alleged wrong over which the agency may have jurisdiction.”) (emphasis

added). His mistaken belief that such was necessary, and that Smolinsky’s and Rice’s refusal to

cooperate in this regard, does not relieve him of his duty to seek administrative relief. See, e.g.,

White v. Conestoga Title Insurance Company, 53 A.3d 720, 734-35 (Pa. 2012) (“[The insured’s]

contention that the [statutory] remedy is inadequate and need not be exhausted because [the

insurer] is unable or unwilling to comply with the administrative review process in a meaningful

way is unavailing. . . . [S]uch a complaint may be raised and addressed during the administrative

process and does not render the administrative remedy inadequate.”) (citation omitted).

Finally, Parolee contends that he was relieved of his duty to pursue the foregoing remedies

for relief from this special condition of his parole “because [the parole agreement] is an

unenforceable adhesion contract.” Petitioner’s Answer ¶52(b). This assertion is likewise

unavailing. As this Court has explained, “there is no prerequisite to a valid parole condition that

the parolee must agree to its terms. After a convict has met certain eligibility parole requirements,

he is then paroled subject to certain general and possibly some special conditions.” Benefiel v.

Pennsylvania Board of Probation and Parole, 426 A.2d 242, 244 (Pa. Cmwlth. 1981). Further,

[a]lthough a parolee is entitled to a brief statement of the reasons for

the grant or denial of parole, . . . we find no support nor . . . any

authority for the proposition that a putative parolee is entitled to

counsel to negotiate the terms and conditions of parole. The

rationale seems quite obvious. Parole is granted at the discretion of

the Board, . . . and the parolee remains in constructive custody of the

Commonwealth. As with an incarcerated individual, the

Commonwealth, via the Board, may place restrictions on a parolee’s

liberty intended to effectuate the parolee’s rehabilitation and

integration into society. Thus, where a putative parolee indicates an

unwillingness to abide by the terms and conditions of parole, the

Board may determine that parole is not within the individual's best

interest and deny parole.

Lee v. Pennsylvania Board of Probation and Parole, 885 A.2d 634, 639 (Pa. Cmwlth. 2005).

Accordingly, Parolee was not relieved of his duty to seek administrative relief due to the purported

invalidity of this special condition of his parole.

12

foregoing available administrative remedies and filed the instant Petition in this

Court’s original jurisdiction. See Petitioner’s Answer ¶53 (“It is admitted that the

Complaint does not mention [Parolee’s] efforts to exhaust administrative

remedies.”).

Because Parolee failed to avail himself of the above administrative

remedies prior to filing the Petition, and has failed to properly assert that these

remedies are unavailable, facially unconstitutional, or are inadequate, it is

appropriate to deny him the requested relief under the DJA and to dismiss the

Petition. As this Court concluded in Keystone Releaf LLC v. Pennsylvania

Department of Health, 186 A.3d 505, 519 (Pa. Cmwlth. 2018):

Petitioner has not made a clear showing that an exception

to the doctrine of administrative remedies applies.

Petitioner has not presented a facial constitutional

challenge to the [applicable statute or regulations] nor

shown how the administrative remedy before the

Department is inadequate. Our review of the

Department’s administrative review process satisfies us

that it offers unsuccessful applicants an adequate remedy

to challenge their permit denials and the permitting

process.

Additionally, as this Court explained in Lisa H. v. State Board of

Education, 447 A.2d 669, 674-75 (Pa. Cmwlth. 1982):

The [Board of Education’s] Regulations also make

specific provision for parent-initiated due process

opportunities for all exceptional and thought-to-be

exceptional students. . . . [I]f the plaintiffs wish to

continue to seek admission to the program, they have due

process procedures available to them, of which they have

failed to avail themselves, and a suit in equity will not lie

where an adequate and complete remedy at law may be

had. Setlock v. Sutila, [282 A.2d 380, 381 (Pa. 1971)].

13

Likewise, because Parolee failed to avail himself of the available administrative

remedy herein, the instant proceeding will be dismissed.10

Accordingly, Respondents’ PO is sustained, and the Petition is

dismissed with prejudice.11

MICHAEL H. WOJCIK, Judge

10

See also Wheeler, 862 A.2d at 130-31 (“[W]e conclude that [the parolee] has no

cognizable ‘personal right’ that would entitle him to an adjudication or to appellate review of the

paroling condition at issue. Accordingly, because we agree with the Board that this matter is not

an adjudication subject to appeal, we will grant the Motion to Dismiss the petition for review.”)

(footnote omitted); Cherry v. City of Philadelphia, 634 A.2d 754, 755-56 (Pa. Cmwlth. 1993)

(holding that an attorney failed to raise a substantial constitutional challenge to a city’s power to

assess taxes necessary to invoke equity jurisdiction under the DJA so that the attorney was required

to exhaust administrative remedies before filing suit challenging the constitutionality of the taxes

imposed).

11

“In light of this determination, we need not address the remaining POs.” Keystone Releaf

LLC, 186 A.3d at 519 n.16.

14

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Turner, :

:

Petitioner :

:

v. : No. 183 M.D. 2019

:

Commonwealth of Pennsylvania, :

Board of Probation and Parole, :

Byron Rice, and Francis Smolinsky, :

:

Respondents :

ORDER

AND NOW, this 13th day of October, 2020, the preliminary objection

of Commonwealth of Pennsylvania, Board of Probation and Parole, Byron Rice, and

Francis Smolinsky is SUSTAINED. Charles Turner’s Complaint for Declaratory

Judgment is DISMISSED with prejudice.

__________________________________

MICHAEL H. WOJCIK, Judge