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GERALD WASHINGTON v. JULIUS T. CUYLER (01/10/80)

decided: January 10, 1980.

GERALD WASHINGTON, PETITIONER
v.
JULIUS T. CUYLER, SUPERINTENDENT STATE CORRECTIONAL INSTITUTION AT GRATERFORD, PENNSYLVANIA AND WILLIAM B. ROBINSON, COMMISSIONER PENNSYLVANIA BUREAU OF CORRECTIONS, RESPONDENTS



Original jurisdiction in case of Gerald A. Washington v. Julius T. Cuyler, et al.

COUNSEL

Submitted on briefs:

Gerald A. Washington, for himself, petitioner.

Jerry I. Drew, Assistant Attorney General, with him, Michael von Moschzisker, Deputy Attorney General, and Edward G. Biester, Jr., for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge MacPhail. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Macphail

[ 48 Pa. Commw. Page 410]

This matter is before us on a motion for summary judgment filed by Julius T. Cuyler, Superintendent of the State Correctional Institution at Graterford, Pennsylvania and William B. Robinson, Commissioner of the Pennsylvania Bureau of Corrections (collectively, Respondents).

Gerald A. Washington (Petitioner) has filed a Petition for Review addressed to this Court's original

[ 48 Pa. Commw. Page 411]

    jurisdiction under Section 761 of the Judicial Code, 42 Pa. C.S. ยง 761 alleging that his constitutional rights have been and are being violated during his confinement at the State Correctional Institution at Graterford. Petitioner requests an order from this Court directing that the injustices claimed cease, and that he be compensated for damages incurred as a result of those injustices. Respondents filed an answer which in six instances denies Petitioner's factual allegations and demands strict proof thereof at trial. Under New Matter, Respondents state inter alia that "the complaint fails to state a cause of action upon which relief can be granted." Respondents ask for summary judgment "based upon Plaintiff's failure to state a cause of action." Respondents' motion for summary judgment is physically bound with a memorandum of law in support of the motion. On the last page thereof is an Affidavit of Service by counsel for Respondents stating that a true and accurate copy of the attached "Defendant's Motion for Summary Judgment" was sent to Petitioner on August 8, 1979 by certified mail return receipt requested.

Upon the filing of Respondent's motion for summary judgment, our Court directed Respondents to file briefs on or before August 13, 1979 and "simultaneously serve a copy thereof on Petitioner."

Respondents' brief is directed solely at the issue of whether a cause of action has been stated in Petitioner's Petition for Review. Petitioner's brief simply states that he has never received a copy of Respondents' brief and asks that the motion for summary judgment be dismissed for that reason. Pa. R.A.P. 2188 provides sanctions for failure to file briefs, but there is no provision in the rules for a ...


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