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OTIS J. TATE v. COMMONWEALTH PENNSYLVANIA (01/18/79)

decided: January 18, 1979.

OTIS J. TATE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of Otis J. Tate v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Otis J. Tate, petitioner, for himself.

Robert A. Greevy, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge MacPhail.

Author: Macphail

[ 40 Pa. Commw. Page 6]

Otis J. Tate (Petitioner) has filed a petition for review requesting us to enter an order directing the Pennsylvania Board of Probation and Parole (Board) to restore his parole privileges and to restrain the Board from depriving him of that parole because of the fact that he filed the within action. The Board filed an answer to the petition containing new matter, including a certificate of the Chairman of the Board of Probation and Parole. That pleading was properly endorsed with a notice to plead. Thereupon, the Petitioner filed a "Traverse Sur Respondent's Answer to the Petition for Review" and a Motion for Judgment on the Pleadings "pursuant to Rule 1034(a), Pennsylvania Rules of Civil Procedure." The Board then filed a cross-motion for summary judgment which, in its brief, it asks us to consider a cross-motion for judgment on the pleadings. This we will do, although on a motion for judgment on the pleadings we may enter judgment for either party. Ruska v. Philadelphia Life Insurance Company, 412 Pa. 418, 195 A.2d 93 (1963).

In a motion for judgment on the pleadings, the moving party admits the truth of all the allegations of his adversary and the untruth of any of his own allegations which have been denied. Cary v. Lower Merion School District, 362 Pa. 310, 66 A.2d 762 (1949). Where there are material issues of fact in dispute, judgment on the pleadings cannot be entered. Miami National Bank v. Willens, 410 Pa. 505, 190 A.2d 438 (1963).

With those principles in mind, we now proceed to an examination of the pleadings in the case before us. Initially, we note that Petitioner's "Traverse Sur Respondent's Answer to the Petition for Review" is merely a repetition of the allegations set forth in the petition for review. We observe, however, that the

[ 40 Pa. Commw. Page 7]

Petitioner has filed no reply to the new matter set forth in the Board's answer.

The essence of the Petitioner's claim for relief is set forth in Paragraphs 9, 10, 11, 16, 17 and 18 of the petition for review. Each of these allegations is specifically denied by the Board, thus prohibiting us from entering judgment in favor of the Petitioner. Pennsylvania Gas and Water Co. v. Kassab, 14 Pa. Commonwealth Ct. 564, 322 A.2d 775 (1974).

Since the Board would be bound by the same principles of law set forth above, we cannot enter judgment for it unless the facts set forth in the Board's new matter would be a complete defense to the Petitioner's claim for relief. 2 Goodrich-Amram 2d ยง 1034(b):1. Accordingly, we will now consider the facts set forth in the reply.

Because of Petitioner's extensive history with the Board, it is difficult to summarize those facts in a concise manner. It appears that the Petitioner was sentenced initially on October 23, 1967, in Philadelphia County to a total sentence of 11 to 40 years. Thereafter he earned Community Treatment Center privileges and was accordingly transferred to the Philadelphia Community Treatment Center. While there, he was arrested, convicted and sentenced on new charges with a minimum term of 5 years and a maximum term of 15 years to begin at the expiration of his initial sentence. On February 13, 1974, Petitioner was paroled on his initial sentence and was re-entered at a state correctional institution to begin the 5 to 15 year sentence. He escaped from the State Correctional Institution at Graterford on May 19, 1975. On the same date he was arrested on new charges. At ...


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