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FRANKLIN L. CASTLE v. COMMONWEALTH PENNSYLVANIA (02/23/89)

decided: February 23, 1989.

FRANKLIN L. CASTLE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original Jurisdiction, Appeal in the case of Franklin L. Castle v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Franklin L. Castle, petitioner, for himself.

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

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

Author: Palladino

[ 123 Pa. Commw. Page 571]

Franklin L. Castle (Petitioner) has filed a petition for review and an application for summary relief in this court's original jurisdiction against the Pennsylvania Board of Probation and Parole (Board) seeking declaratory and injunctive relief. The Board has filed a preliminary objection in the nature of a demurrer. For the reasons set forth below, we sustain the Board's preliminary objection, deny Petitioner's application for summary relief, and dismiss Petitioner's petition for review.

Petitioner is currently serving a life sentence for second degree murder*fn1 at a state correctional institution, and has served approximately thirteen (13) years of this sentence. Petitioner has also served approximately eleven (11) years on a concurrent life sentence for assault, which he committed while incarcerated on the original conviction. On March 23, 1988, Petitioner submitted an inmate request slip to the correctional institution parole officer, requesting to be staffed for parole. On March 24, 1988, the parole officer informed Petitioner that he could not be listed for parole staffing because of his life sentence. Petitioner then sent a letter to the Board requesting

[ 123 Pa. Commw. Page 572]

    to be staffed for parole, which request the Board refused by letter dated April 6, 1988. This proceeding was thereafter filed in this court on April 14, 1988.

In this case of first impression, Petitioner contends that he is entitled to apply for parole and have his application considered by the Board by virtue of 42 Pa. C.S. ยง 9756(c)(1-3). Petitioner asserts that this section creates a statutory right of parole eligibility for life prisoners convicted of any offense other than first degree murder and certain summary offenses. Further, Petitioner argues that in the absence of a statute establishing a minimum sentence for prisoners serving life sentences for offenses other than first degree murder, a minimum sentence of one (1) day should be implied. Finally, Petitioner contends that, assuming this court determines that he is eligible to apply for parole, the Board has violated his due process rights by refusing to consider him for parole.

The Board, in its preliminary objection in the nature of a demurrer, asserts that Petitioner has failed to state a claim upon which relief can be granted, alleging that because Petitioner is serving a life sentence, the Board cannot consider him for parole because it can only parole an individual after the expiration of a minimum term of imprisonment and Petitioner's minimum term is life. The Board also argues that Petitioner is essentially challenging the legality of his sentence and that he is not entitled to declaratory relief with respect to this challenge in an action against the Board.

[ 123 Pa. Commw. Page 573]

Initially, we note that a preliminary objection in the nature of a demurrer will be sustained only where a complaint is clearly insufficient to establish any right to relief; any doubt must be resolved in favor of the pleader. County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 490 A.2d 402 (1985). A demurrer admits as true all well-pleaded facts. Department of ...


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