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MICHAEL THOMAS HARPER v. COMMONWEALTH PENNSYLVANIA (11/09/89)

decided: November 9, 1989.

MICHAEL THOMAS HARPER, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



PETITION FOR WRIT OF MANDAMUS.

COUNSEL

Michael Thomas Harper, pro se.

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

Crumlish, Jr., President Judge, Palladino (p.) and Smith, JJ.

Author: Palladino

[ 129 Pa. Commw. Page 415]

Presently before this court are the preliminary objections of the Pennsylvania Board of Probation and Parole (Board) to the petition of Michael Thomas Harper (Petitioner) for writ of mandamus.

Petitioner alleges the following facts. On October 19, 1988, Petitioner, while on parole, surrendered to his parole officer upon learning of the positive result of his urinalysis

[ 129 Pa. Commw. Page 416]

    test for controlled substances. Following a Board hearing, Petitioner was recommitted for six months as a technical parole violator. Petitioner alleges that the Board's order to recommit does not state when the six month period ends.

Petitioner filed a pro se petition for writ of mandamus, seeking to have this court order the Board to set April 19, 1989 as the last date of the six month period. This court, on May 2, 1989, ordered this petition to be treated as a petition for review addressed to our original jurisdiction under 42 Pa.C.S. ยง 761 and Pa.R.A.P. 1502.

The Board filed two preliminary objections. One objection, in the nature of a demurrer, raises two issues: (1) whether Petitioner has failed to state a cause of action in mandamus because a direct appeal to the Board was available from the Board's recommitment order; and (2) whether the Board has a duty to set a parole date in its recommitment order. Another objection raises the defense of sovereign immunity.*fn1

Initially, we note that "mandamus is an extraordinary writ of common law, designed to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other adequate and appropriate remedy." Bronson v. Board of Probation and Parole, 491 Pa. 549, 554, 421 A.2d 1021, 1023 (1980), cert. denied, 450 U.S. 1050, 101 S.Ct. 1771, 68 L.Ed.2d 247 (1981).

The Board argues that an action in mandamus cannot lie because "an administrative appeal was available from the Board's revocation decision."*fn2 Petitioner contends that the availability of an administrative appeal from the Board's order is ...


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