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JOSEPH JAMIESON v. COMMONWEALTH PENNSYLVANIA (07/10/84)

decided: July 10, 1984.

JOSEPH JAMIESON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original Jurisdiction in the case of Joseph Jamieson v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Joseph Jamieson, petitioner, for himself.

Robert A. Greevy, Chief Counsel, with him, Arthur R. Thomas, Assistant Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

President Judge Crumlish, Jr. and Judges Colins and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 83 Pa. Commw. Page 547]

Joseph Jamieson (petitioner) filed a petition for review in the nature of mandamus addressed to our original jurisdiction, claiming that the aggregation of the minimum and maximum terms of his 1970 criminal convictions pursuant to Section 1 of the Act of June 25, 1937*fn1 denied him equal protection under the fourteenth amendment to the United States Constitution. He asked us to compel the Board of Probation and Parole (Board) to reinstate his original consecutive sentences. The Board answered with preliminary objections to the timeliness*fn2 of the petition for review and to its sufficiency.

We will treat the Board's challenge to the sufficiency of the complaint as a preliminary objection in the nature of a demurrer. Brown v. T.W. Phillips Gas & Oil Co., 365 Pa. 155, 74 A.2d 105 (1950); see also 5 Standard Pennsylvania Practice 2d § 25:59. And, of course, as such, the preliminary objection admits as true all well-pleaded, material and relevant facts and such inferences as are reasonably deducible from those facts. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). In ruling on a preliminary objection in

[ 83 Pa. Commw. Page 548]

    the nature of a demurrer our decision must be, based only upon the facts averred, whether or not the pleading is sufficient to entitle the petitioner to relief. Id.

Here, the petitioner alleges: that on June 2, 1970, he was sentenced to a term of ten (10) to twenty (20) years at No. 468-1970; that on the same day he was further sentenced to a term of five (5) to ten (10) years at No. 466-1970; that these two sentences were to be served consecutively; and that, when he reached the State Correctional Institution at Pittsburgh, his sentences were aggregated to a term of fifteen (15) to thirty (30) years pursuant to Section 1 of the Act of June 25, 1937, formerly 19 P.S. § 897. He asks us, therefore, to conclude that his equal protection rights have been violated.

The Board argues that the petition for review fails to state a cause of action upon which relief may be granted, noting that an Act of Assembly may be declared unconstitutional only where it clearly violates the Constitution. We believe that the Board's argument addresses the merits of petitioner's complaint not its sufficiency. And we, therefore, are unable to address this argument in responding to preliminary objections.

The Board further submits that the petitioner was not adversely affected by the aggregation of his minimum and maximum terms. It appears to be contending that, because the petitioner has already served beyond the minimum of either of his two separate sentences, he is not presently being harmed by the aggregation. Additionally, the Board argues that the petitioner never applied for parole at the completion of either individual minimum sentence and that, even if he did, the Board is not obligated to grant parole.

First, we must note that this Court has already held in Ray v. Howard, 39 Pa. Commonwealth Ct. 559, 395 A.2d 1038 (1979), ...


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