Savage v. Storm

247 A.3d 1186 (Table)

Stacy R. SAVAGE, Petitioner

v.Jennifer R. STORM, Victim Advocate and Pennsylvania Board of Probation and Parole, Respondents

No. 467 M.D. 2019

Commonwealth Court of Pennsylvania.

Submitted: October 16, 2020

Filed: January 11, 2021

Publication Ordered: March 19, 2021

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON

Stacy R. Savage (Savage) initiated this matter by filing a pro se petition for writ of mandamus (Petition) in this Court's original jurisdiction. Savage seeks an order compelling Jennifer R. Storm (Storm), Victim Advocate of Pennsylvania, and the Pennsylvania Board of Probation and Parole² (Board) (together, Respondents) to allow Savage to give in-person victim impact testimony before the Board relative to her husband, Theodore Savage (Husband), pursuant to Section 6140 of the Prisons and Parole Code, 61 Pa.C.S. § 6140.³ Storm and the Board are separately represented and, thus, have filed separate preliminary objections to the Petition, which are presently before the Court for review. For the reasons set forth below, we sustain both sets of preliminary objections and dismiss the Petition.

The facts, as pleaded in the Petition and the documents attached thereto, are as follows. Savage was the victim of domestic violence at the hands of Husband. Petition (Pet.) ¶ 14(a). She obtained a protection from abuse order (PFA) against Husband that prohibited him, among other things, from returning to their marital home in Hazle Township, Pennsylvania. Pet. ¶ 5. On September 29, 2016, Husband was convicted of indirect criminal contempt for violating the PFA by returning to their home. Id. Husband was on parole under the jurisdiction of the Board at the time of the PFA violation. Pet. ¶¶ 6-7. As a result, his parole was revoked and he was recommitted as a convicted parole violator. Pet. ¶ 7, Exhibit (Ex.) A.

Savage registered as a "victim" with the Office of Victim Advocate and requested to be notified of decisions related to Husband, as well as his release status. Pet. ¶ 8. She was assigned a registration number by the Office of Victim Advocate "and subsequently has been repeatedly informed of all Board [ ] decisions relative to [Husband]." Id. However, when Savage requested permission to give in-person victim impact testimony to the Board regarding Husband's parole, she was advised she was not a victim and therefore could not give such testimony. Pet. ¶ 9. Savage challenged this decision in communications to both the Office of Victim Advocate and the Board. Pet. ¶¶ 10-13, Exs. B-D. By letter dated July 12, 2019, the Board informed Savage that she was

not a "victim" within the meaning of the law for purposes of the upcoming parole hearing in question. [The Board] is conducting a parole interview for [Husband] for sentences related to a 1993 conviction for Robbery and 1994 convictions for Aggravated Assault and Intimidation of Witness/Victim. Because you are not the victim of those crimes, the statutory opportunity to present a statement to or to testify before the Board, and the accompanying statutory confidentiality protections, are not applicable to you in this case.

Please be advised that you may still provide information to [the Board] independent of [the Office of Victim Advocate], if you so choose. [The Board] considers any and all relevant information concerning a person's suitability for parole.

Pet. Ex. E.

After receiving the Board's decision, Savage filed the instant Petition seeking mandamus relief on August 19, 2019. Savage claims she is a "victim" as defined by law with the absolute right to give in-person victim impact testimony before the Board, and Respondents’ refusal to let her do so violates the mandates of Section 6140 of the Prisons and Parole Code. Pet. ¶¶ 14-15. Savage notes that she was issued a PFA, Husband was convicted of violating that PFA, and it was that conviction that returned him to the Board's custody as a convicted parole violator. Pet. ¶ 14. If Husband had not violated the PFA, he would not have been returned to prison and would still be at liberty on parole. Id. In addition, Savage claims that she has exhausted all available administrative remedies. Pet. ¶ 17.

As indicated above, Respondents filed separate preliminary objections, both of which assert challenges to service as well as demurrers. Both the Board and Storm object on grounds that Savage alleges that she was the victim of the PFA violation, not the underlying offenses for which Husband was on parole. Respondents maintain that because of this distinction, Savage cannot meet the standard for mandamus relief because the Board is not obligated under the statute to grant her request to provide in-person testimony regarding Husband's parole hearings.⁴

Savage failed to file a timely brief in response to Respondents’ preliminary objections, as directed by our order dated October 17, 2019. She also failed to comply with this Court's subsequent briefing orders dated January 22 and February 20, 2020. As such, she has been precluded from filing a brief in opposition to Respondents’ preliminary objections, and the matter is now ripe for review. See Cmwlth. Ct. Order dated 8/21/20.

In ruling on preliminary objections in the nature of a demurrer, the Court must accept as true all well-pleaded material facts and all inferences reasonably deducible therefrom. Sanders v. Wetzel , 223 A.3d 735, 738 (Pa. Cmwlth. 2019) (citing Meier v. Maleski , 648 A.2d 595, 600 (Pa. Cmwlth. 1994) ). However, the Court is not bound by legal conclusions, argumentative allegations, unwarranted inferences from facts, or expressions of opinion. Sanders , 223 A.3d at 738 ; see also Dodgson v. Pa. Dep't of Corr. , 922 A.2d 1023, 1028 (Pa. Cmwlth. 2007). We may consider documents or exhibits attached to the petition, but do not need to accept as true averments in the petition that conflict with those exhibits. Lawrence v. Pa. Dep't of Corr. , 941 A.2d 70, 71 (Pa. Cmwlth. 2007). We "may sustain preliminary objections only when the law makes clear that the petitioner cannot succeed on the claim, and we must resolve any doubt in favor of the petitioner." Sanders , 223 A.3d at 738.

The Petition here is in the nature of mandamus, which compels the performance of a ministerial act or mandatory duty. Tindell v. Dep't of Corr. , 87 A.3d 1029, 1034 (Pa. Cmwlth. 2014). To prevail in mandamus, a petitioner must demonstrate (1) a clear legal right to relief, (2) a corresponding duty in the respondent, and (3) there are no other adequate and appropriate remedies at law. Id. ; Sanders , 223 A.3d at 739. "A mandatory duty is ‘one which a public officer is required to perform upon a given state of facts and in a prescribed manner in obedience to the mandate of legal authority.’ " Sanders , 223 A.3d at 739 (quoting Filippi v. Kwitowski , 880 A.2d 711, 713 (Pa. Cmwlth. 2005) ). Mandamus is an extraordinary remedy and may not be used to establish legal rights. Tindell , 87 A.3d at 1034.

With this standard in mind, we turn to the statute at the heart of this matter. Section 6140(a)(1) of the Prisons and Parole Code provides:

The victim of the offense for which an inmate is sentenced shall be notified by the district attorney immediately following sentencing, in cases where the defendant has been sentenced to a term of imprisonment, that the victim or family member shall have the opportunity to present a statement for the parole report to be considered at the parole hearing or to testify to the parole board expressing his opinion concerning the release of the inmate.

61 Pa.C.S. § 6140(a)(1) (emphasis added). Here, Savage alleges in her Petition that she is the victim of the PFA violation, the offense for which Husband was recommitted as a convicted parole violator, not the underlying offenses for which he is eligible for parole. This is an important distinction, as the...