Opinion
No. 76 M.D. 2014
02-02-2015
James Michael Dunyan, Petitioner v. Pennsylvania State Police Captain, Scott C. Price, Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
The Pennsylvania State Police (PSP) and its Captain, Scott C. Price (Captain Price) (collectively, Respondents) filed preliminary objections to James Michael Dunyan's (Petitioner) pro se petition for review in the nature of a complaint in mandamus (complaint) seeking an order compelling Respondents to expunge certain entries on Petitioner's criminal history and to inform other agencies of the expungements pursuant to 18 Pa. C.S. §9122, claiming that Petitioner's complaint is insufficiently specific, fails to conform to law, and does not state a claim for mandamus relief. For the reasons that follow, we sustain Respondents' preliminary objections and dismiss Petitioner's complaint without prejudice.
I.
Petitioner's complaint alleges that Respondents failed to expunge certain entries on Petitioner's criminal record in violation of Section 9122(a)(2) of the Criminal History Record Information Act (CHRIA) and that PSP's central repository failed to notify the proper agencies of Petitioner's expungements in violation of Section 9122(d) of CHRIA. Specifically, Petitioner states that expungement was ordered by the Pennsylvania Superior Court and the Court of Common Pleas of Philadelphia County (trial court), and he attached as an exhibit the Superior Court's opinion in Commonwealth v. Dunyan (Pa. Super. No. 3176 EDA 2003, filed Dec. 5, 2005), in which Petitioner challenged the trial court's initial refusal to expunge portions of his criminal history records.
Section 9122(a)(2) of CHRIA provides, in pertinent part, "Criminal history record information shall be expunged in a specific criminal proceeding when: ... (2) a court order requires that such nonconviction data be expunged[.]" 18 Pa. C.S. §9122(a)(2).
Section 9122(d) of CHRIA states, "Notice of expungement.--Notice of expungement shall promptly be submitted to the central repository which shall notify all criminal justice agencies which have received the criminal history record information to be expunged." 18 Pa. C.S. §9122(d).
Eighteen criminal docket numbers were at issue in that case, including but not limited to: CP-69-05-1622, CP-73-10-1411, CP-74-09-0444, and CP-75-03-1448.
Upon review, the Superior Court held that to the extent Petitioner obtained acquittals on all of the charges at a given docket number, the trial court was required to order the records expunged, but that to the extent he obtained partial acquittals or dismissals pursuant to nolle prosequi, a different approach controlled. Therefore, the Superior Court remanded the matter to the trial court for an evidentiary hearing to determine which criminal docket entries should be expunged because acquittals were obtained and which entries should be subject to the Wexler balancing test.
With regard to cases in which Petitioner was neither found guilty nor acquitted, the Superior Court held that the balancing test set forth in Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981) governed.
The complaint further asserts that following remand, Petitioner's attorney filed a motion for expungement regarding all cases in which Petitioner was found not guilty, that the trial court granted the motion, and that his attorney forwarded the expungement order(s) to the PSP in or around May 2012.
Although represented by a public defender in the prior proceedings, Petitioner has instituted the instant matter pro se.
In subsequent correspondence dated May 19, 2014, Petitioner's attorney advised him, "As you recall, expungement of the majority of your cases referenced in [the Superior Court] decision w[as] granted. There were, however, 4 cases that were ordered expunged and were not. We filed expungement petitions in those matters on March 13, 2012. They were granted on April 18, 2012." (Pet.'s Br., Ex. P-14, at 1.)
Beginning in April 2013, Petitioner repeatedly followed up with the PSP, requesting updated copies of his criminal history. Eventually, he was provided nine undated certifications executed by Captain Price, setting forth numerous charges and attesting that they were expunged as per order of court between July 2012 and January 2013. However, in response to a letter Petitioner directed to the Department of Corrections (DOC) in April 2013, DOC advised Petitioner that it "has not been contacted by the [PSP] regarding any issues related to [his] criminal records." (Compl. Ex. D-7) (emphasis added).
In January 2014, Petitioner received an updated copy of his criminal history, containing the following four entries, which Petitioner contends Respondents improperly failed to expunge:
• CP-69-05-1622: two charges for which Petitioner was found not guilty in 1970;
• CP-73-10-1411: one charge for which Petitioner was found not guilty and one charge which was dismissed in 1974;
• CP-74-09-0444: five charges for which Petitioner was found not guilty in 1975; and
• CP-75-03-1448: six charges for which Petitioner was found not guilty in 1975.
Although the last two docket numbers were contained in the updated certified criminal history and their content is readable, it appears that the PSP attempted to redact this information in part by crossing it out with a black marker.
II.
Respondents filed preliminary objections, contending that Petitioner's complaint should be dismissed because: (1) it does not specify the cases in which Respondents failed to notify criminal justice agencies of Petitioner's expungement; (2) Petitioner failed to attach copies of the trial court's expungement order(s) to his complaint; and (3) the elements of mandamus do not exist.
"This Court will sustain a preliminary objection if, after accepting all well-pleaded facts as true and accepting all reasonable inferences that follow from those facts, the law will not allow recovery on the face of the complaint." Humphrey v. Department of Corrections, 939 A.2d 987, 990 n.4 (Pa. Cmwlth. 2007), affirmed in part, appeal denied in part, 955 A.2d 348 (Pa. 2008). Preliminary objections may be granted only in cases "free from doubt." Id. We have reordered the preliminary objections to facilitate our analysis.
A.
Regarding Respondents' claim that the complaint should be dismissed for insufficient specificity pursuant to Pennsylvania Rule of Civil Procedure No. 1028(a)(3), we disagree. While Petitioner's pro se complaint is not a model of clarity, its contents are sufficiently specific to put Respondents on notice of the claim that the PSP failed to notify the necessary criminal justice agencies with regard to all of Petitioner's expungements. Indeed, Petitioner averred that by letter dated July 18, 2013, the DOC informed him that it "has not been contacted by the [PSP] regarding any issues related to [his] criminal records." (Compl. Ex. D-7) (emphasis added). The fact that after Petitioner initiated this action, Respondents claim that they contacted some or all of the agencies required does not retroactively render the complaint insufficiently specific and, regardless, Respondents are certainly not precluded from meaningfully investigating or responding to the claim that they did not carry out their statutorily mandated duties. See Feigley v. Department of Corrections, 872 A.2d 189, 196 (Pa. Cmwlth. 2005) ("A pleading must be sufficiently specific to enable a responding party to prepare a defense.").
It is well-settled that:
Under Pennsylvania law, pro se defendants are subject to the same rules of procedure as are represented defendants. Although the courts may liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon a litigant, and a court cannot be expected to become a litigant's counsel or find more in a written pro se submission than is fairly conveyed in the pleading.
B.
With respect to Respondents' claim that Petitioner failed to attach copies of the trial court's expungement orders pertaining to the entries he challenges, Pennsylvania Rule of Civil Procedure No. 1019(i) states:
When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.Pa. R.C.P. No. 1019(i).
Clearly, Petitioner's claims are centered upon the trial court's alleged order(s) expunging the entries at the four subject criminal docket numbers, and Petitioner should have attached a copy of the purported order(s) to his complaint. Because he failed to do so, we are constrained to dismiss his complaint without prejudice, allowing him to file an amended complaint attaching the expungement order(s) pertaining to the following cases: CP-69-05-1622; CP-73-10-1411; CP-74-09-0444; and CP-75-03-1448.
Recognizing that the opportunity to amend would be futile if amendment would not permit Petitioner to state a claim in mandamus, we will briefly address Respondents' argument that the elements of mandamus do not exist. To prevail in mandamus, Petitioner must establish a clear right to the requested relief, a corresponding duty in Respondents to act, and that no other adequate legal remedy is available. Sammons v. Pennsylvania State Police, 931 A.2d 784, 787 (Pa. Cmwlth. 2007). Contrary to Respondents' contention, Petitioner is not limited to filing an accuracy and review challenge regarding his criminal history record. Where, as he alleges is the case here, Respondents have been ordered by a trial court to expunge a criminal record and failed to do so, relief in mandamus is proper. See id. at 789 (granting mandamus relief when the PSP refused to expunge a criminal record pursuant to a trial court's order). Further, whether Respondents have, in fact, notified all necessary agencies of the expungements is a question of fact not proper for disposition upon preliminary objections. As such, whether Petitioner can establish a clear right to relief and a corresponding duty in Respondents largely turns upon the content of the purported orders. Because Petitioner's amendment will assist the Court in assessing whether he can establish the elements of mandamus, amendment is appropriate. --------
Accordingly, we dismiss Petitioner's complaint without prejudice but provide him the opportunity to amend his pleading within 60 days.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 2nd day of February, 2015, Petitioner's petition for review is dismissed without prejudice. Petitioner is provided sixty (60) days from the date of this order to file an amended petition for review, attaching to it the orders upon which it is based.
/s/_________
DAN PELLEGRINI, President Judge
Commonwealth v. Blakeney, ___ A.3d ___ (Pa. 2014) (internal citation omitted).