Original jurisdiction in case of Commonwealth ex rel. Lonnie Dawson v. Board of Probation and Parole.
F. Michael Medway, with him Barry H. Denker and Shuman, Denker & Land, for plaintiff.
Robert A. Greevy, Assistant Attorney General, with him Benjamin Lerner, Deputy Attorney General, and Israel Packel, Attorney General, for defendant.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.
[ 17 Pa. Commw. Page 551]
Before us for disposition is defendant's motion for judgment on the pleadings filed pursuant to Pa. R.C.P.
[ 17 Pa. Commw. Page 552]
No. 1034. The pleadings in the instant case consist of plaintiff's complaint in mandamus, alleging an abuse of defendant's discretion in recommitting him as a technical parole violator, defendant's answer thereto and new matter, and plaintiff's answer to new matter.
It is axiomatic that the extraordinary relief of mandamus only lies when the plaintiff's right to relief is clear and convincing. It does not lie when the Board exercises its discretion, unless such exercise is so arbitrary as to be, in fact, no actual exercise of discretion. Banks v. Board of Probation and Parole, 4 Pa. Commonwealth Ct. 197, A.2d (1971).
When considering a motion for judgment on the pleadings filed by a defendant, the Court must accept as true plaintiff's well-pleaded facts and the well-pleaded facts contained in defendant's new matter not put in issue by plaintiff; and judgment will only be entered where the matter is clear and free from doubt. Aughenbaugh v. North American Refractories Co., 426 Pa. 211, 231 A.2d 173 (1967).
The facts underlying this case as gleaned from the pleadings may be stated as follows. On May 18, 1973, plaintiff was arrested by the Philadelphia police on a charge of violation of the Pennsylvania Uniform Firearms Act, 18 Pa. C.S. § 6101 et seq. He was subsequently found to be not guilty in State court. Thereafter, plaintiff was indicted by a Federal grand jury on charges arising out of the same incident for violation of 18 U.S.C. App. 1202(a)(1), and on May 20, 1974, plaintiff was found guilty of the charge of possessing a firearm. However, a motion in arrest of judgment was granted because the government failed to establish a sufficient nexus between interstate commerce and the possession of a weapon necessary to prove a violation of the statute. United States of America v. Dawson, F.Supp. (E.D. Pa. No. 74-132, filed May 20, 1974). In his order granting Dawson's motion in arrest of judgment, Judge Fullam states: ". . .
[ 17 Pa. Commw. Page 553]
[H]aving found the defendant guilty as charged . . . it is Ordered that the Motion is Granted for the reason that the facts proven at trial constitute an offense not cognizable under ...