M. Olmo v. Com. of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Olmo, :

Petitioner :

:

v. : No. 86 M.D. 2021

: Submitted: April 1, 2022

Commonwealth of Pennsylvania, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: August 22, 2022

Before the Court is the preliminary objection in the nature of a demurrer (PO)

filed by the Commonwealth of Pennsylvania (Respondent) asserting that the pro se

Petition for Review (Petition) filed by Michael Olmo (Olmo) in this Court’s original

jurisdiction fails to state a claim upon which relief can be granted and the Petition

should be dismissed. In the Petition, Olmo contends the Department of Corrections

(DOC) has miscalculated his minimum sentence date and seeks to have this Court

direct DOC’s “Record Room to correct [Olmo’s] minimum date for parole.”

(Petition for Review (Petition) ¶¶ 4, 9.) Upon review, we overrule the PO and order

DOC to file an answer.

I. BACKGROUND

On March 19, 2021, Olmo, who is currently incarcerated at a State

Correctional Institution (SCI) at inmate number HA-2449, filed the Petition alleging

the following facts. Olmo was arrested on May 3, 2002, while he was on parole

from a 1995 Sentence served under inmate number DB-3238, of which he had 4

years and 10 months remaining. (Petition ¶¶ 1, 5; Preliminary Objection (PO) ¶ 30;

Answer to PO ¶ 30.) Olmo pleaded guilty on January 14, 2003, to the 2002 charges,1

and was sentenced on April 29, 2003, to a mandatory term of 20 to 40 years of

imprisonment (2003 Sentence), which he had “been serving since [his] date of

[a]rrest.” (Petition ¶¶ 2-3.) Olmo contends his minimum sentence on the 2003

Sentence should be May 3, 2022, because he “has been incarcerated since May 3[,]

2002, but DOC [r]ecords continue to miscalculate and say [his] minimum is January

3, 2027.” (Id. ¶ 4.) Olmo asks this Court to direct DOC to correct this

miscalculation, which he argues is caused by DOC “[i]gnoring” or miscrediting 4

years and 10 months of his incarceration. (Id. ¶¶ 4, 9.) According to Olmo, this

relief is supported by Martin v. Pennsylvania Board of Probation and Parole, 840

A.2d 299 (Pa. 2003), Urch v. Department of Corrections (Pa. Cmwlth., No. 138

M.D. 2017, filed August 13, 2019), and Sturgis v. Doe, 26 A.3d 1221 (Pa. Cmwlth.

2011).

Following the Petition’s filing, Olmo contacted the Court via letter received

on September 13, 2021, asserting that although he had served a copy on Respondent

by certified mail, he received no return receipt from Respondent. Asserting that the

30-day period in which Respondent was required to file an answer or preliminary

objections had passed, Olmo asked the Court to enter judgment against Respondent

and grant the relief requested in the Petition. The Court issued an order on

September 21, 2021, directing Respondent to respond to Olmo’s September 13, 2021

letter, within 14 days. Respondent did so, filing an answer explaining its lack of

1

Those charges were “Robbery, Firearms Criminal Conspiracy[,] and Aggravated

Assault.” (Petition ¶ 2.)

2

response, an application requesting to file preliminary objections nunc pro tunc, and

the PO. By a per curiam, single-judge order dated October 4, 2021, the Court

accepted Respondent’s PO nunc pro tunc and dismissed Olmo’s request that

judgment be entered against Respondent.

In the PO, Respondent challenges the legal sufficiency of the Petition.

Respondent argues that although Olmo avers that DOC has miscalculated his 2003

Sentence by not crediting 4 years and 10 months of Olmo’s incarceration toward that

sentence, Olmo has no clear right to that relief because he had to complete his 1995

Sentence, of which there was 4 years and 10 months remaining, before he began to

serve the 2003 Sentence. (PO ¶¶ 29, 34.) According to Respondent, after Olmo’s

arrest in 2002 and conviction in 2003, Olmo became a convicted parole violator

(CPV) and had to serve the time remaining on his 1995 Sentence before starting the

2003 Sentence. (Id. ¶ 33.) Respondent maintains that Olmo’s contention that he

began serving the 2003 Sentence immediately, rather than having to first serve the

backtime on the 1995 Sentence, is unlawful, as the two sentences cannot be served

concurrently under Section 6138(a)(5) of the Prisons and Parole Code (Code), 61

Pa.C.S. § 6138(a)(5).2 (Id. ¶¶ 36-40 (citing Wilson v. Pa. Bd. of Prob. & Parole, 124

2

We note that, at the time of the 2003 Sentence, Olmo’s order of sentences would have

been governed by Section 21.1(a) of the former act commonly referred to as the Parole Act, Act

of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L.

1401, formerly 61 P.S. § 331.21a(a), repealed by Section 11(b) of the Act of August 11, 2009, P.L.

147. The Parole Act was repealed and recodified, without substantive change, at Section 6138 of

the Code. Former Section 21.1(a)(1) of the Parole Act stated:

If a new sentence is imposed upon such parolee, the service of the balance of said

term originally imposed shall precede the commencement of the new term imposed

in the following cases:

(Footnote continued on next page…)

3

A.3d 767 (Pa. Cmwlth. 2015); Commonwealth v. Draper, 293 A.2d 614 (Pa. Super.

1972)).)

Olmo submitted a letter, dated October 20, 2020, asking the Court to overrule

the PO due to Respondent’s failure to timely respond to the Petition and stating that,

if he had failed to respond in the required time period, his Petition would have been

dismissed. After receiving several extensions, Olmo also filed an answer to the PO,

which admits many of the PO’s averments. However, Olmo denies that he was

awarded backtime credit and asserts that Respondents did not provide

documentation to show he is not entitled to time credit against his 2003 Sentence.

(Answer to PO ¶¶ 33-34, 38.)

II. DISCUSSION

A. Legal Standards

Because Olmo asks this Court to direct DOC to perform an action that he

argues it has a legal obligation to perform, the Petition is in the nature of mandamus.

See Garber v. Pa. Dep’t of Corr. Sec’y, 851 A.2d 222, 225 (Pa. Cmwlth. 2004)

(1) If a person is paroled from any State penal or correctional institution under the

control and supervision of the Department of Justice and the new sentence

imposed upon him is to be served in any such State penal or correctional

institution.

Formerly 61 P.S. § 331.21a(a)(1). Section 6138(a)(5)(i) similarly provides:

If a new sentence is imposed on the offender, the service of the balance of the term

originally imposed by a Pennsylvania court shall precede the commencement of the

new term imposed in the following cases:

(i) If a person is paroled from a State correctional institution and the new

sentence imposed on the person is to be served in the State correctional

institution.

61 Pa.C.S. § 6138(a)(5)(i).

4

(holding that where a petition does not specifically denote the legal theory under

which it is brought, the court examines the relief requested to establish the nature of

the cause of action); Finn v. Rendell, 990 A.2d 100, 105 (Pa. Cmwlth. 2010) (holding

that sovereign immunity bars all actions other than mandamus where the petitioner

seeks to compel a Commonwealth agency to act). “Mandamus is an extraordinary

writ that will only lie to compel official performance of a ministerial act or

mandatory duty where there is a clear legal right in the [petitioner], a corresponding

duty in the [respondent], and want of any other appropriate or adequate remedy.”

Chanceford Aviation Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors, 923

A.2d 1099, 1107-08 (Pa. 2007) (quotation omitted). Mandamus is not used to

establish legal rights, but to enforce rights that are “already established beyond

peradventure.” Lawrence v. Pa. Dep’t of Corr., 941 A.2d 70, 72 (Pa. Cmwlth. 2007).

Mandamus will not lie to “direct the exercise of judgment or discretion in a particular

way, or to direct the retraction or reversal of an action already taken.” Chanceford

Aviation Props., 923 A.2d at 1108. Mandamus may be used “to compel a tribunal

or administrative agency to act when that tribunal or agency has been sitting on its

hands.” Id. (internal quotation marks omitted).

When ruling on preliminary objections in the nature of a demurrer, this Court

must accept all well-pleaded factual allegations in the petition for review as true,

along with any reasonable inferences deducible therefrom. Williams v. Wetzel, 178

A.3d 920, 923 (Pa. Cmwlth. 2018). The Court is not bound, however, “by legal

conclusions, unwarranted inferences from facts, argumentative allegations, or

expressions of opinion encompassed in the petition for review.” Id. Preliminary

objections should be sustained only where it “appear[s] with certainty that the law

5

will not permit recovery and any doubt should be resolved by a refusal to sustain

them.” Neely v. Dep’t of Corr., 838 A.2d 16, 19 n.4 (Pa. Cmwlth. 2003).

B. Parties’ Arguments

Respondent argues the Petition does not establish Olmo’s clear legal right to

relief because Olmo has not produced, or averred the existence of, a court order or

other documentation that supports his request for the recalculation of the minimum

sentence related to his 2003 Sentence. The averments in the Petition, Respondent

maintains, support the conclusion that Olmo is not entitled to relief because he is

now serving the 2003 Sentence, which he could not begin to serve until after he had

completed the 4 years, 10 months of backtime remaining on the 1995 Sentence.

Because Section 6138(a)(5) mandates the order of service of sentences for CPVs and

there is no authority to deviate from that prescribed order, Respondent argues

Olmo’s 2003 Sentence cannot lawfully be calculated as he asserts. Therefore,

Respondent argues the Petition should be dismissed for failure to state a claim.

Olmo responds that the PO should be overruled, and his requested relief

granted, because Respondent failed to timely respond to the Petition and this Court

should not have allowed Respondent to file the PO nunc pro tunc, as its reason for

not timely responding was insufficient. Olmo contends that he was prejudiced by

Respondent’s tactics because they reflect Respondent’s attempts to delay this matter

long enough for Olmo to make an error, such as his missing a deadline, that would

justify dismissing the Petition. Olmo offers no argument in opposition to the merits

of the PO.

6

C. Analysis

1. The Untimeliness of the PO

We begin first with Olmo’s argument that the PO should be overruled, and his

relief granted, because of the untimeliness of Respondent’s PO, which he alleges the

Court erroneously accepted. This appears to be a request that the Court reconsider

its October 4, 2021 order. However, Olmo did not file an application for reargument

or petition for reconsideration of that order. See Section 331 of the Court’s Internal

Operating Procedures, 210 Pa. Code § 69.331 (indicating the process for filing such

applications). Under the law of the case doctrine, “[i]t is the general rule that it is

improper for a . . . judge, absent new evidence, to overrule an interlocutory order by

another judge of the same court in the same case.” Larocca v. Workmen’s Comp.

Appeal Bd. (Pittsburgh Press), 592 A.2d 757, 760 (Pa. Cmwlth. 1991) (quoting

Vitale v. Zoning Hearing Bd. of Upper Darby Twp., 438 A.2d 1016, 1018 (Pa.

Cmwlth. 1982)). “In the interests of judicial economy and efficiency, there must be

a degree of finality to interlocutory orders by another judge in the same case.”

Domagalski v. Szilli, 812 A.2d 747, 750 n.2 (Pa. Cmwlth. 2002). “When no petition

for reconsideration from an order of a single judge is filed, that order is binding

unless palpably erroneous.” Id.

We do not discern any palpable error in the October 4, 2021 order, as one of

the bases for Respondent’s explanation for not responding was due to this Court’s

non-issuance of its customary order directing that a response to the Petition be filed.

(Respondent’s Application for Relief ¶ 8.) A single judge of this Court accepted

Respondent’s explanation as sufficient, and, as a breakdown in a court’s operation

may be a basis for granting nunc pro tunc relief, Department of Transportation,

Bureau of Driver Licensing v. Emery, 580 A.2d 909, 912 (Pa. Cmwlth. 1990), we

will not say this was palpable error. Further, the rules of procedure are to “be

7

liberally construed to secure the just, speedy and inexpensive determination of every

action or proceeding,” and “[t]he 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.” Pennsylvania Rule of Civil Procedure 126,

Pa.R.Civ.P. 126;3 see also Pennsylvania Rule of Appellate Procedure 105, Pa.R.A.P.

105 (setting forth that the appellate rules are to be liberally construed); Dunbar v.

Wetzel (Pa. Cmwlth., No. 337 M.D. 2019, filed Aug. 30, 2021) (stating “procedural

missteps,” including those “related to timing (except for filing an appeal) may be

excused, where there has been substantial compliance and no prejudice has resulted

to the opposing party”).4 While Olmo asserts he was prejudiced by the late filing,

he does not explain how his substantial rights were affected, particularly where the

Court has granted Olmo multiple extensions to allow him the opportunity to respond

to the PO and to file his brief. Accordingly, we will not overrule the PO and grant

Olmo’s Petition on this basis.

2. The Legal Sufficiency of the Petition

Turning to the question of whether the Petition asserts a legally sufficient

claim, at this early stage, we overrule Respondent’s PO. The PO is based on

numerous factual assumptions that are not found in the Petition’s averments. The

PO assumes that, pursuant to the Code, Olmo must have had to complete the entire

3

The Pennsylvania Rules of Civil Procedure apply to original jurisdiction actions in this

Court pursuant to Pennsylvania Rule of Appellate Procedure 106, Pa.R.A.P. 106, unless otherwise

prescribed.

4

Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and

Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), an

unreported opinion, while not binding, may be cited as persuasive.

8

1995 Sentence before beginning the 2003 Sentence.5 (PO ¶¶ 29, 33, 36-38.) Further,

and critically, the PO assumes that DOC actually did credit the entire 4 years and 10

months to Olmo’s backtime, such that giving credit for any of that time against the

2003 Sentence would be illegal. (Id. ¶¶ 36-38; Respondent’s Brief at 10, 13.)

However, Olmo avers that DOC is miscalculating and ignoring this 4 years and 10

months of credit, (Petition for Review ¶¶ 4, 9), an averment this Court must accept

as true at this stage of the proceedings. Williams, 178 A.3d at 923. Olmo also

specifically denies, as alleged in the PO, that he “was [] awarded time credit towards

his back[]time for the time he spent in confinement” and that “[t]ime credit for time

spent in confinement was [] awarded towards [his] backtime owed.”6 (Answer to

PO ¶¶ 33, 36-39.) Thus, Olmo asserts, factually, that he did not receive credit for

this time against his 1995 Sentence and, as such, it should be credited against the

2003 Sentence.

An inmate is entitled to credit for all time spent in custody, whether it be in

presentence confinement or serving a statutorily mandated period of incarceration.

Martin, 840 A.2d at 308-09; McCray v. Pa. Dep’t of Corr., 872 A.2d 1127, 1133

(Pa. 2005). Because Olmo’s factual averment that the 4-year, 10-month period was

either miscalculated or ignored by DOC in calculating his 2003 Sentence must be

accepted as true at this stage, there is an outstanding material factual dispute

regarding whether credit for this time was given. Because any doubt must be

5

We observe that Respondent’s argument that Olmo necessarily had to complete the

entire 4 years and 10 months remaining on the 1995 Sentence before he could begin serving the

2003 Sentence ignores the existence of constructive parole, which involves an inmate being

paroled from an original sentence and immediately beginning to serve a new sentence. Spruill v.

Pa. Bd. of Prob. & Parole, 158 A.3d 727, 731 (Pa. Cmwlth. 2017).

6

Although Olmo does not object to the PO as being an impermissible speaking demurrer,

see Stilp v. Commonwealth, 910 A.2d 775, 792 (Pa. Cmwlth. 2006), he clearly denies the factual

averments upon which Respondent relies to support its PO.

9

resolved in favor of denying the PO, Neely, 838 A.2d at 19 n.4, we cannot say with

certainty that the law will not permit recovery. Therefore, we overrule Respondent’s

PO.

III. CONCLUSION

For the above reasons, we must overrule Respondent’s PO and direct

Respondent to file an answer to the Petition.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Olmo, :

Petitioner :

:

v. : No. 86 M.D. 2021

:

Commonwealth of Pennsylvania, :

Respondent :

ORDER

NOW, August 22, 2022, the Commonwealth of Pennsylvania’s (Respondent)

Preliminary Objection in the Nature of a Demurrer to the pro se Petition for Review

(Petition) filed by Michael Olmo is OVERRULED, and Respondent is directed to

file an answer to the Petition within 30 days of this Order.

__________________________________________

RENÉE COHN JUBELIRER, President Judge