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DANIEL GIDDINGS v. MR. HERMAN TARTLER (12/14/89)

decided: December 14, 1989.

DANIEL GIDDINGS, PETITIONER,
v.
MR. HERMAN TARTLER, CHAIRMAN OF THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE, MR. THOMAS A. FULCOMER, SUPERINTENDENT OF STATE CORRECTIONAL INSTITUTION AT HUNTINGDON, PENNSYLVANIA ET AL., RESPONDENTS



PETITION FOR REVIEW.

COUNSEL

Daniel Giddings, pro se.

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

Craig and Barry, JJ., and Blatt, Senior Judge.

Author: Craig

[ 130 Pa. Commw. Page 176]

Daniel Giddings moves for judgment on the pleadings in our original jurisdiction*fn1 on his petition for review in the nature of mandamus against Herman Tartler,*fn2 Secretary of the Pennsylvania Board of Probation and Parole, and Thomas Fulcomer,*fn3 Superintendent of the State Correctional Institute at Huntingdon (respondents). Respondents move for summary judgment in this matter.

Giddings' pro se petition for review, filed August 3, 1988, seeks a parole interview from the board. Giddings is presently serving two concurrent four-and-one-half-to-ten-year sentences in the SCI at Huntingdon, the minimum term having expired on October 9, 1985. Giddings' petition

[ 130 Pa. Commw. Page 177]

    averred that he filed an application for a parole interview with the board on or before August 3, 1988.

According to the affidavit of respondent Tartler, the board received Giddings' letter regarding a parole interview on August 4, 1988. The board replied to this letter on August 12, 1988, acknowledging receipt of Giddings' letter. The board's reply letter further stated that Giddings' letter would become part of his file to be reviewed upon his release from the facility's restricted housing unit (RHU). The board's policy provides that an inmate in the RHU cannot be granted a parole interview until released into the facility's general population.

The respondents filed preliminary objections to the petition on September 16, 1988, which Giddings answered on November 9, 1988. This court overruled the respondents' preliminary objections,*fn4 stating that Giddings' petition "produced sufficient facts from which the Court can infer an application has been filed." Memorandum and Order at p. 2.

On January 19, 1989, the respondents answered the petition, denying Giddings' averment that he applied for parole on or before August 3, 1988. In view of respondent Tartler's acknowledgement of a letter received on August 4, 1988, the denial may relate only to the date.

In new matter, the respondents averred that on February 12, 1986, the board sua sponte*fn5 interviewed Giddings for parole, which the board denied because of Giddings' ...


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