Opinion
No. 20 M.D. 2012
08-05-2013
Salahuddin Kane, Petitioner v. Department of Corrections, et al., Mr. John E. Wetzel, Attorney General of Pennsylvania; Hon: Mrs. Linda Kelly, Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Before this Court are the preliminary objections of the Pennsylvania Department of Corrections (Department) to a pro se petition for review in the nature of a request for a writ of mandamus filed by Salahuddin Kane (Kane) claiming that the Department failed to properly credit him for time served. For the reasons that follow, we overrule the Department's preliminary objections.
Kane is currently an inmate incarcerated at the State Correctional Institution at Dallas (SCI Dallas). On April 4, 2002, Kane was found guilty in the Court of Common Pleas of Philadelphia County (trial court) on two counts of aggravated assault and was sentenced to consecutive five- to ten-year terms of imprisonment. Kane was credited for time served from August 5, 1996 to December 10, 1996, and from December 8, 1998 to April 4, 2002.
See Department's October 27, 2005 DC16E Sentence Status Summary (September 17, 2012 Amended Petition for Review at Exhibit B).
On September 17, 2004, while serving the aggravated assault sentence, Kane pled guilty to third-degree murder and was sentenced to serve 17 to 34 years in state prison, which was to run concurrently with his other sentences. Kane was credited for time served from September 23, 1998 to December 7, 1998. Kane's minimum release date was July 3, 2021, and his maximum release date was July 3, 2038.
Alleging that the Department erred in calculating his release dates, Kane filed a petition for review seeking an order in mandamus to give him credit on his murder sentence for the time he served from September 23, 1998 to September 17, 2004. Kane attached a number of exhibits to his petition in support of his claim, including a copy of a February 1, 2005 handwritten memorandum from Robert J. Durison (Durison), Director of Classification, Movement & Registration (CMR) in the Philadelphia Prison System. The version of that memorandum submitted by Kane states: "On Judge Lerner's State sentence of 9-17-04 you are entitled to credit from 9-23-98." (September 17, 2012 Amended Petition for Review at Exhibit D).
Relief in mandamus will be granted to compel the performance of a ministerial act where the plaintiff establishes a clear legal right to relief and a corresponding duty to act by the defendant. Williams v. Pennsylvania Dep't of Corrections, 47 A.3d 162, 165 n.2 (Pa. Cmwlth. 2012).
Kane states throughout his petition for review and response to the Department's preliminary objections that he is entitled to 6 years and 22 days of credit, but offers no explanation as to how he calculated that amount of time.
The Department filed preliminary objections in the nature of a demurrer arguing that Kane is not entitled to mandamus relief and in support of its argument submitted what it alleges is the complete version of the February 1, 2005 handwritten memorandum from Durison to Kane. The version of the memorandum submitted by the Department provides:
On Judge Lerner's State sentence of 9-17-04 you are entitled to credit from 9-23-98 to 12-7-98. Judge Maier's sentence of 8-17-99 (resentence 4-4-02) was credited from 12-8-98, when a B/W was lodged. Note: you received earlier credit on that sentence, as well.(Department's October 24, 2012 Preliminary Objections at Exhibit 2) (emphasis added). The Department also argues in its preliminary objections that the petition for review was filed beyond the applicable statute of limitations and that the petition must be dismissed pursuant to the doctrine of laches.
Pennsylvania Rule of Civil Procedure (Pa. R.C.P.) No. 1030 provides that affirmative defenses, including laches and statute of limitations, shall be pled as New Matter. However, pursuant to Pa. R.C.P. No. 1032(a), a party is required to file objections to the procedural propriety of another party's preliminary objections or else the objections are waived. Commonwealth ex rel. Corbett v. Desiderio, 698 A.2d 134, 137 (Pa. Cmwlth. 1997). Because Kane did not object to the Department's preliminary objections, we will consider them.
"In ruling upon preliminary objections in the nature of a demurrer, the Court must accept as true all well-pled facts and all reasonable inferences deducible therefrom, and it must determine whether the facts pled are legally sufficient to permit the action to continue." Gordon v. Pennsylvania Dep't of Corrections, 16 A.3d 1173, 1176 n. 2 (Pa. Cmwlth. 2010). "In that a demurrer results in the dismissal of a suit, it should be sustained only in cases that are clear and free from doubt and only where it appears with certainty that the law permits no recovery under the allegations pleaded." Id. All doubts must be resolved against sustaining the demurrer. Bundy v. Beard, 924 A.2d 723, 725 n.2 (Pa. Cmwlth. 2007). Given the conflicting versions of the memorandum at issue here and that we must accept all well-pled facts as true and resolve all conflicts against sustaining the demurrer, until there is a determination as to what version is the true and correct one, the Department's demurrer is overruled.
The Department also alleges that Kane's petition for review must be dismissed because it was filed beyond the applicable statute of limitations. The Department relies on Section 5522(b)(1) of the Judicial Code, 42 Pa. C.S. §5522(b)(1), for the proposition that a prisoner must file a mandamus action within six months of the date that the right to institute a suit arises. However, the Department can only imprison someone to the time set forth by the sentencing court(s). If the Department holds the person one more day beyond a release date, it is a violation of its ministerial duty that is ongoing, making each day a separate violation against which to calculate the running of the six-month statute.
That section provides:
(b) Commencement of action required.-- The following actions and proceedings must be commenced within six months:
(1) An action against any officer of any government unit for anything done in the execution of his office, except an action subject to another limitation specified in this subchapter.
Finally, the Department argues that the petition for review should be dismissed pursuant to the doctrine of laches because Kane waited over seven years from the time he discovered the alleged sentence miscalculation before taking action. In Keith v. Pennsylvania Board of Probation and Parole, 464 A.2d 659 (Pa. Cmwlth. 1983), an inmate received two consecutive sentences which were aggregated. Nearly a decade later, the inmate filed a mandamus action in this Court's original jurisdiction arguing that the sentences were improperly aggregated. The Court dismissed the inmate's petition, reasoning that "[m]andamus will not issue where the writ would be ineffectual by reason of the respondent's inability to comply therewith." Id. at 661. Here, despite the length of time that Kane waited to file his petition for review, the Department would still be able to credit him with the time served if it is determined that he is entitled to such relief. Therefore, the Department's laches argument also fails.
Kane admits in his petition for review that he discovered the alleged sentence miscalculation around November 2004. (September 19, 2012 Amended Petition for Review at 2). --------
Accordingly, the Department's preliminary objections are overruled.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 5th day of August, 2013, the preliminary objections of the Pennsylvania Department of Corrections to Salahuddin Kane's petition for review are overruled. The Department of Corrections is hereby ordered to file an answer within 30 days of the date of this order.
/s/_________
DAN PELLEGRINI, President Judge