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JOSEPH JAMIESON v. COMMONWEALTH PENNSYLVANIA (07/02/85)

decided: July 2, 1985.

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



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

COUNSEL

Joseph Jamieson, petitioner, for himself.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 90 Pa. Commw. Page 320]

Joseph Jamieson invokes this Court's original jurisdiction*fn1 and asks for relief in the nature of a writ of mandamus to compel the Pennsylvania Board of Probation and Parole (Board) to recompute the maximum term expiration dates of his two 1970 Erie County sentences. The Board had previously filed preliminary objections in the nature of a demurrer which were overruled. Jamieson v. Pennsylvania Board of Probation and Parole (Jamieson I), 83 Pa. Commonwealth Ct. 546, 478 A.2d 152 (1984). The case is presently before us on Jamieson's motion for summary judgment.

The pertinent facts of this case are not in dispute and can be summarized as follows. Jamieson was sentenced on June 2, 1970 in the Court of Common Pleas of Erie County to a term of five to ten years following his conviction for Robbery by Assault by Force.*fn2 At the same time, he received a consecutive ten to twenty year sentence as a result of his conviction for

[ 90 Pa. Commw. Page 321]

Rape.*fn3 These sentences had an effective date of January 28, 1970. Upon his reception at the Western Diagnostic and Classification Center at the State Correctional Institution at Pittsburgh (SCI-Pittsburgh), the minimum and maximum terms of the Robbery and the Rape sentence were aggregated pursuant to the mandate of Section 1 of the Act of June 25, 1937*fn4 to a single term of fifteen to thirty years. That fifteen to thirty year sentence had a minimum term expiration date of January 28, 1985 and a maximum term expiration date of January 28, 2000. Jamieson was granted parole by the Board on this aggregated sentence effective January 28, 1985 at which time he was released from SCI-Pittsburgh to reside in the City of Pittsburgh.

Jamieson contends in this action that the aggregation of his two Erie County sentences into a single fifteen to thirty year sentence denied him equal protection of the laws in violation of the Fourteenth Amendment to the Federal Constitution. His equal protection challenge is based upon the application of former 19

[ 90 Pa. Commw. Page 322]

P.S. § 897 only to sentences imposed at the same time by the same court. Had his two sentences been imposed by two different courts or on two different days, he argues, his maximum term expiration date would be shortened by five years to January 28, 1995 rather than January 28, 2000.

On these facts, Jamieson is clearly not entitled to a writ of mandamus. It is a well-settled proposition that mandamus is an extraordinary writ which is available only to compel the performance of a ministerial act or a mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and the want of any other adequate and appropriate remedy. Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970); Donnell v. Pennsylvania Board of Probation and Parole, 61 Pa. Commonwealth Ct. 517, 434 A.2d 846 (1981). Jamieson concedes that the Board acted properly under former 19 P.S. § 897 when it aggregated his two sentences. Jamieson's challenge, therefore, is not to the Board's computation of his maximum term under former 19 P.S. § 897, his challenge is to the constitutionality of that statute as applied to him. In essence, what he is attempting to do by his mandamus action is to compel the Board to treat his two Erie County sentences as two separate consecutive sentences in violation of the mandate of former 19 P.S. § 897. This is not a proper use of mandamus. The purpose of mandamus is not to establish legal rights, but to enforce those rights which are already established. Hamm v. Board of Education for the ...


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