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HomeMy WebLinkAbout02-4598SEP 214N2~E COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND COUNTY ORVILLE ALLEN, : PLAINTIFF VS. ' DEPARTMENT OF CORRECCTIONS, ET AL.: DEFENDANTS CIVIL ACTION IN WRIT MANDAMUS (To remove, correct, and amend the prison records) NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE· IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. OFFICE OF THE ATTORNEY GENERAL (NAME) 16TH. FLOOR~ STRAWBERRY SQUARE HARRISBURG~ PA. 17120 (ADDRESS) _(SEE TELEPHONE DIRECTORY) (TELEPHONE NUMBER) DATE: Orville Allen, Plaintiff AP-8428 301 Morea Road Frackville, Pa. 17932 IN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND COUNTY ORVILLE ALLEN, : CIVIL ACTION IN WRIT PLAINTIFF : MANDAMUS : (To remove, correct, and : amend the prison records) VS. . DEPARTMENT OF CORRECCTIONS, ET AL.: CASE NO.# DEFENDANTS : CIVIL ACTION WRIT IN MANDAMUS NOW COMES Orville Allen, who is the pro se petition and litigant before this court, and who further applies for the extraordinary Writ of Mandamus, in seeking relief to remove, correct, and amend the Pennsylvania Department of Corrections (DOC) prison kept records and files, as these records and files relates to misinformation being contained within them, which has been serving to harm petitioner in all avenues and aspects of him availing himself of various programs and activities offered to incidence free (no misconducts) and record compliance inmates within the prison setting. (And which will ultimately hinder petitioner in his future attempts to qualify for external programs, pre-release, halfway house, parole etc). To this extent petitioner evokes the jurisdiction of the Commonwealth Court (Constitution Article v. § 4) (Code § 561) asking this court to review his claims in complaint raised within his petition and further request that he be granted a trial by jury to settle the disputed facts of his claims. Or in the alternative, and in the interest of justice, petitioner request this court to issue a Peremptory Judgment granted relief. Petitioner sets forth the following averment in reason for his requested relief: PROCEDURAL HISTORY OF EVENTS 1. on or about October 25, 1989 there was a riot which endured at the State Correctional Institution at Camp Hill (SCI-Camp Hill) 2500 Lisburn Road, P.O. Box 8837, Camp Hill, Pa. 17001-8837. 2. On this date and time petitioner was a inmate housed within the SCI-Camp hill facility. 3. On or about July 13,1990 the officials of the SCI-Camp Hill issued a misconduct No.# 369958 to petitioner charging him with having had participated in the riot. 4. On July 20, Hearing Examiner Mr. of all charges. 1990 petitioner went before the Lamar L. Libhart where he was SCI-Camp Hill adjudge guilty 5. Petitioner was sanctioned a total of 540 days D.C. time to be served in the institutional Restricted Housing Unit (RHU), and assessed in his account to pay a $186.00 share of a medical cost attributed to the injuries of Correctional Officer Mr. Nargrove. 6. Prior to the issuance of the above cited misconduct, petitioner had been arrested by the officials of the Cumberland County District Attorney's office. 7. And on or about June 1, 1990 the court of Common Pleas, District Magistrate Judge Clement of Cumberland County Pa. disposed of the case Nolle Prosequi. 8. Petitioner was represented in this matter by then attorney Mr. Summer Parker, 1520 Penn Ave., Pittsburgh, Pa. 15222. 9. Based upon both prosecutions (internal with the institutional misconduct and externally of being originally charged with a felony by the Commonwealth). Petitioner had plead innocence through-out both proceedings and have vigorously continue to maintain his innocence and not having any type involvement of this incident todate. 10. Since the recorded time period of both the above mentioned actions taken against petitioner. Petitioner has been plagued with uncou~ed circumstances and events in which he has been questioned concerning this misconduct and Nolle Prosequi status of that ch~r§e and there after denied access to what-ever institutional programs petitioner might was seeking. 11. That after approximately 10 years the DOC through a series of scheduled hearings and under the Docket No.# H-96, attempted to secure an written order from the Secretary of the Department of Corrections Mr. Jeffery A. Beard, to mandate the completion of the issued sanction of payment for the medical treatment of C.O. Hargrove. 12. That the petitioner being uninformed as to what had transpired within said hearings, was silently given a reimbursement of $186.00 on June 11, 2001 and informed that this was done by order of Secretary Beard (no explanation). 13. Based upon the turn of events, petitioner sought clarity as well as expungement of certain relied upon facts that would now be a total contradiction to the truthfulness of the documentation which has created changes of facts to the record. 14. Petitioner avers, that in the course of under-giong his original sentence and rehabilitation, that he deserve to be gauged in his activities from a precise truthful and fairly kept prison record. ' STATEMENT OF FACTS FOR CONSIDERATION 15. My complaint to this court revolves around the fact that over the last 13 years of bearing and carrying the yoke of a wrongful institutional and state supported prosecution, that changes in documentation and information has come about, which (if and when) applied to the overall record, would change substantially the accounted facts presently held within the prison record. 16. That because of these charges in documentation and information being documented within the DOC and SCI-Mahanoy's records. Petitioner is asking for expungement and/or modification of his DOC and institutional prison file, to reflect said mitigating changes. 17. Petitioner sought requested expungemeut and resolvement of whether he had an entitlement to have erroneous information removed from his institutional and state file by contacting the following persons: (A). Mr. Edward R. Martin, Corrections Records Supervisor at the SCI-Mahanoy, on June 23, 2001 (B). MR. Kris D. Calkins, Acting Record Supervisor, at SCI-Mahanoy, on July 5, 2001 (C). Ms. Carrol Dotter, Grievance Coordinator at SCI-Mahanoy, on July 23, 2001 (D). Mr. Robert Shannon, Superintendent, at SCI-Mahanoy, on July 31, 2001 (E). Mr. Jeffrey A. Beard, Secretary of the Dept. of Corrections, at 2520 Lisburn Road/P.O. Box. 598, Camp Hill, Pa. 17001-0598, on August 27, 2001 18. That as of the present date, all inquiries and responses has been replies in the negative. 19. In conjunction with petitioners efforts to have the DOC and institutional prison records corrected, petitioner would further ask this court to order correction of the records of the Commonwealth of Cumberland County as they relates to petitioner now status of being subject to the "Nolle Proseqi" process. - 3 - 20. Further petitioner states that "Nolle Prosequi" is a legal procedure status which allows the prosecutor to delay (If he/she choose) the prosecution of an accused. Although this process is legal it is not one that would run an indefinite period of time. 21. That after 13 years of this process running freely. Petitioner can now conclude at this point and time, as an absolute, that no such prosecution will be forthcoming. 22. The information of "Nolle Prosequi" in petitioner's file, now only serve to act as a permanent botch. Which is also against his constitutional rights (under the standard of accusement and having the right to face his accuser, as well as maintaining a presumption of innocence). Forwhich petitioner, defendants to correct on many occasions. have asked the 23. Petitioners secondary point of concern involves whether the Hearing Examiner sanction imposed was made void/invalidated (partially or in full) when secretary Beard canceled payment of restitution. RELIEF SOUGHT Based upon the above cited factor of change which petitioner has pointed-out. Petitioner would request the following: (A). That the Commonwealth Court of Cumberland County make a ruling in this matter favoring petitioner thereby entering an order directing that the defendants remove, correct, and amend their prospective records as the record relates to the Commonwealth of Cumberland County's Court records, the DOC records, and the SCI-Mahanony records (B). That the specific information that petitioner seeks to be adjusted into the record is as follows: 1. Removal of misconduct No.# 369958 from his DOC and institutional record. A statement placed within the record clarifying the DOC order issued on or around May 22, 2001 which instructed the reimbursement of petitioners confiscated funds, and document that this factor further serves as lessening and/or withdrawing misconduct sanctions imposed by the Hearing examiner Mr. Libhart on cited misconduct of No.# 369958. o Expungement by the Commonwealth Court of Cumberland County as this request relates to the Nolle Prosequi brought by the District Attorney's office. Expungement of DOC and SCI-Mahanoy records as it relates to the present status of the Nolle Prosequi charges. - 4 In conclusion, petitioner would pray that for all the above aver reasons that this court will review and grant to him the above request relief. FOR THIS HE SHALL EVER PRAY .... Respectfully Submitted Mr. Orville Allen, Pro se Petitioner SCI-Mahanoy 301 Morea Road Frackville, Pa. 17932 Date~~ f/~ o~P- IN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND COUNTY ORVILLE ALLEN, PLAINTIFF VS. DEPARTMENT OF CORRECCTIONS, DEFENDANTS ET AL. CIVIL ACTION IN WRIT MANDAMUS and : (To remove, correct, amend the prison records) CASE NO.# PROOF OF SERVICE ~ I ~rville Allen, hereby certify that I am this Day complaint motion ~~ /~ ~too~ ~ serving the forgoing in of ~a Civil Action in Mandamus, upon the Clerk of Courts and the Agencies listed below. This being done in the manner accorded with the Rules of Civil Procedures, Rule 403 Service By Mail. SERVICE BY FIRST CLASS MAIL: The Clerk of Courts Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 C/O Inmates Records Department of Corrections P.O. Box 598 Camp Hill, Pa. 17001-0598 C/O Inmate Records SCI-Mahanoy 301 Morea Road Frackville, Pa. 17932 Office of the Attorney General 16th. Floor, Strawberry Square Harrisburg, Pa. 17120 Date: Mr. Respectfully Submitted r~v i 1/11~ l~s~ Petitioner AP-8428 301 Morea Road Frackville, Pa. 17932 TN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND COUNTY ORVILLE ALLEN, PLAINTIFF VS. DEPARTMENT OF CORRECCTIONS, DEFENDANTS ET AL.: CIVIL ACTION IN WRIT MANDAMUS (To remove, correct, and amend the prison records) APPLICATION TO PROCEED IN FORM OF PAUPERIS 1. I Orville Allen, am the plaintiff in the above captioned matter, and because of my circumstance of confinement and my financial condition, I am unable to pay the fees and cost associated with the prosecution of this civil action or proceedings. 2. I am unable to obtain funds from anyone, including my family and associates to pay the cost of litigation. 3. I represent that the information below relating to my ability to pay the fees and cost is true and correct. (A). Name. Mr. Orville Allen Address. 301 Morea Road, Frackville, Social Security No.# 205-46-9520 Pa. 17932 (B). My employment consist of working in the institutional kitchen, my salary is .20 cents an hour, wherein I am estimated to make approximately $23.00 per month. (C). I have had no other type of income within the past twelve months. (D). I am not the owner of any type property, cash, checking account, certificates of deposit, real estate, motor vehicle, stocks or bonds. (E). Because of my circumstance of incarceration, I do not have persons of dependence. PAGE 2. 4. I understand that I have a continuing obligation to inform the court of improvements in my financial circumstances which would permit me to pay the costs incurred herein. 5. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications. Respectfully Submitted DATE: Mr. Orville Allen, Pro se Petitioner AP-8428 301 Morea Road Frackville, Pa. 17932 IN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND COUNTY ORVILLE ALLEN, PLAINTIFF VS. DEPARTMENT OF CORRECCTIONS, ET AL. DEFENDANTS CIVIL ACTION IN WRIT MANDAMUS (To remove, correct, and amend the prison records) CASE NO.# PROOF OF SERVICE I Orville Allen, hereby certify that I am this Day _9t~/~ f~_~ j~ ~ ~o¢~2~ serving the forgoing Application to / proceed Informa Pauperis, upon the Clerk of Courts as listed below. This being done in the manner accorded with the Rules of Civil Procedures, Rule 403 Service By Mail. SERVICE BY FIRST CLASS MAIL: The Clerk of Courts Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 Date: Mr. Respectfully Submitted Orville Allen, Pro se Petitioner AP-8428 301 Morea Road Frackv±lle, Pa. 17932 IN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND COUNTY ORVILLE ALLEN, : Plaintiff : : DEPARTMENT OF CORRECTIONS, ET AL. : Defendants : : : : CIVIL ACTION IN WRIT MANDAMUS (To remove, correct, and amend the prison records) CASE No.# 02-4598 ORDER AND NOW, this day of , , upon consideration of the forgoing petition, it is hereby ordered that: (1). A rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2). The respondent shall file an answer to the petition within twenty days of service upon the respondent; (3). The petition shall be decided under Pa.R.C.P. No. 206.7; (4). Notice of the entry of this order shall be provided to all parties by petitioner. BY THE COURT: IN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND COUNTY ORVILLE ALLEN, : Plaintiff : : DEPARTMENT OF CORRECTIONS, ET AL. : Defendants : : : : CIVIL ACTION IN WRIT MANDAMUS (To remove, correct, and amend the prison records) CASE No.# 02-4598 ISSUANCE OF RULE TO SHOW CAUSE, IN MOTION TO COMPEL TO ANSWER COMPLAINT FILED I Orville Allen, am the petitioner and plaintiff in the above captioned matter. As such, this plaintiff has filed an Civil Action in Mandamus against the above cited defendants on or about September 16, 2002 and this action was commenced by this Honorable Court on or about October 17, 2002. Wherein, this Honorable Court is now b,ming asked to issue its standard Order (P.R.Civ.P. 206.6) of a "Rule to show cause" to the defendants of this complaint, and to further direct the parties to answer said complaint by filing the requested in response answers within twenty (20) days. In support of this motion plaintiff would state the following factors: 1. That accordingly plaintiff awaits formal response to his complaint filed and has yet to receive such response, as it is required by Pa.R.Civ. P. Rule 1017 (a)(b). And. Rule 1028. - 1 - 2. To this extent, that plaintiff wish prompt resolution to his proceedings and to proceed with full prosecution. 3. Plaintiff would require (and request:) the standard action in review and disclosure of the defendants intent and responses to the complaint filed against them. WHEREFORE, for all the above stated reasons plaintiff seeks "A Rule To Show Case" to be issued by this Honorable Court. And the defendants Ordered to respond. FOR THIS PLAINTIFF SHALL EVER PRAY .... ResPectfully Submitted Mr. Orville Allen, Pro se Petitioner AP-8428 301 Morea Road Frackville, Pa. 17932 Date /~z - 2 - IN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND COUNTY ORVILLE ALLEN, : Plaintiff : : DEPARTMENT OF CORRECTIONS, ET AL. : Defendants : : : : CIVIL ACTION IN WRIT MANDAMUS (To remove, correct, and amend the prison records) CASE No.# 02-4598 PROOF OF SERVICE I Orville Allen, hereby certify that I am this day January 6, 2002, serving the foregoing motion of Rule to Show Cause, upon the Clerk of Courts and the agencies listed below. This being done in the manner accorded with the Rules of Civil Procedures, Rule 440 Service by mail. SERVICE FIRST CLASS MAIL: The Clerk of Courts Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 Office of the Attorney General 16th. Floor, Srawberry Square Harrisburg, Pa. 17120 Date Respectfully Submitted Mr. Orv±lle Allen, Pro se Pet±t±oner AP-8428 301 Morea Road Frackv±lle, Pa. 17932 - 3 - IN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND COUNTY ORVILLE ALLEN, : Plaintiff : : DEPARTMENT OF CORRECTIONS, ET AL. : : Defendants : : : CIVIL ACTION IN WRIT MANDAMUS (To remove, correct, and amend the prison records) CASE ~Io.# 02-4598 MOTION IN REQUEST TO PROCEED IN THE DISCOVERY PROCESS OF THIS CASE NOW COMES Orville Allen, who is the pe~titioner and plaintiff in the above captioned matter. And who makes formal motion to this Honorable Court, to begin the Discovery process in this Civil Action in Mandamus case. As such, plaintiff commencement of action under P.R.Civ.P. Rule 1007, was commenced on or about October 17, 2002. In order to properly pursue and develop his allegation/claims, plaintiff is requesting the court to avail to him under P.R.Civ. P. 212., 212.3, to the discovery process wherein he may apply for (but not limited to) Production of Documents, Tc. serve Admissions and interogatories on the defendants, and make use of other manners of acquiring necessary and relevant information within the discovery process. - 1 - WHEREFORE, for all of the above mentioned reasons plaintiff would ask this Honorable Court to permit him excess to the discovery process. FOR THIS PLAINTIFF SHALL EVER PRAY .... Respectfully Submitted Mr. Orv±lle Allen, Pro se Pet±t±oner AP-8428 301 Morea Road Frackville, Pa. 17932 Date - 2 - IN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND COUNTY ORVILLE ALLEN, : Plaintiff : : DEPARTMENT OF CORRECTIONS, ET AL. : Defendants : : : : CIVIL ACTION IN WRIT MANDAMUS (To remove, correct, and amend the prison records) CASE No.# 02-4598 PROOF OF SERVICE I Orville Allen, hereby certify that I am this day January 6, 2002, serving the foregoing motion to Proceed in Discovery Process, upon the Clerk of Courts and the agencies listed below. This being done in the manner accorded with the Rules of Civil Procedures, Rule 440 Service by mail. SERVICE FIRST CLASS MAIL: The Clerk of Courts Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 Office of the Attorney General 16th. Floor, Srawberry Square Harrisburg, Pa. 17120 Date Respectfully Submitted Mr. Orville .Allen, Pro se Petitioner AP-8428 301 Morea Road Frackv~lle, Pa. 17932 - 3 - ORVILLE ~LLEN, ~ Plaintiff V. DEPARTM~ ;NT OF CORRECTI¢)NS, ET AL., Defendants IN IN AND "Issuance of i and "Motion appearing tha~ the motions a~ ille Allen AP-8428 301 Morea Ro~ Frackville, PA Plaintiff, Pro S ~ See also Pa. R.C.F process or at any tk may be served with, with or after servic~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-4598 CIVIL TERM .;LE: PLAINTIFF'S ISSUANCE OF RULE TO SHOW CAUSE, OTION TO COMPEL TO ANSWER COMPLAINT FILED and MOTION IN REQUEST TO PROCEED IN THE DISCOVERY PROCESS OF THIS CASE ORDER OF COURT NOW, this 21st day of January, 2003, upon consideration of Plaintiff's ~ule To Show Cause, in Motion To Compel To Answer Complaint Filed," in Request To Proceed in the Discovery Process of this Case," and it service of the original process has not been made, see Pa. R.C.P. 400, 422, denied, l td 17932 BY THE COURT, //Wesley Olefv-Jr., J.~' ~,.o · 005(a) ( Interrogatories may be served upon any party at the time of service of th ' ' m thereafter."); Pa. R.C.P 4009 1 l(a~ ("The re,,uest rfo--,-^-~ .... : ...... e ~r.~gm.al · ' -, '~ t ,-,- ~--uuu~uon or uocumems or mmgsj mt leave of court upon the plaintiff after commencement of the action and upon any other party of the original process upon th " at party. ). IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Plaintiff, DEPARTMENT OF CORRECTIONS, et al., Defendants. Civil Action No. 02-4598 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant in the above-captioned action. Dated: February 11, 2003 By: Respectfully submitted, Office of General Counsel 'co L. Ad~t~s Assistant Com.~sel Attorney Id. No: 86293 Pennsylvania ]Department of Corrections 55 Utley Driw.· Camp Hill, PA 17011 (717) 731-0444 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Plaintiff, Vo DEPARTMENT OF CORRECTIONS, et al., Defendants. Civil Action No. 02-4598 CERTIFICATE OF SERVICE I hereby certify that I am depositing in the U.S. mail a tree and correct copy of the foregoing Praecipe for Entry of Appearance upon the person(s) in the manner indicated below: Dated: February 11, 2003 Service by first-class mail addressed as follows: Allen Orville, AP-8428 SCI-Mahanoy 301 Morea Road Frackville, PA 17932 'Stacy M. J~'~v' ' Clerk Typist II Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-13,444 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Plaintiff, DEPARTMENT OF CORRECTIONS, et al., Defendants. Civil Action No. 02-4598 PRELIMINARY OBJECTIONS TO COMPLAINT IN MANDAMUS AND NOW, comes the Defendant, by and through their counsel, Nicole L. Adams, Assistant Counsel, Office of Chief Counsel, Pennsylvania Department of Corrections ("Department"), who files these Preliminary Objections to the Complaint in Mandamus based upon the following: 1. Plaintiff, Orville Allen ("Allen"), a pro se inmate serving 20 to 80 years for robbery and currently incarcerated at the State Correctional Institution at Mahanoy ("SCI-Mahanoy") under Department Inmate Number AP-8428 initiated this civil action by filing a Complaint in Mandamus, a copy of which is appended hereto and marked Exhibit "A." 2. The Complaint in Mandamus against the Department,~ claims that in 1989 he was issued Misconduct Number 369958 for his conduct during the riots at the State Correctional Institution at Camp Hill, ("SC, I-Camp Hill").2 Allen does not raise a due process claim in his Complaint. In fact, Allen admits that he received a hearing and was sanctioned to a total of 540 days as a result of his guilt. Allen also mentions a separate criminal action before Judge Clement in 1990.3 Allen seeks an Order directing the Department to remove Misconduct No. 369958 .from the institutional records as well as other changes in the Department's documentation.4 He is also seeking expungement of a criminal charge; however, the Department cannot legally provide that relief.5 A][len only requests injunctive relief.6 I Allen captions his Complaint Department of Corrections et. al., but the Department is the one and only Defendant named. _See_Complaint Generally. 2 Allen questions events that occurred over 13 years ago. Any cause of action upon arising from events that transpired in 1989 should have been litigated within the allowable Statute of Limitations. However, Allen :first complains in this 2002 action. Accordingly, Allen's complaints are barred by the Statute of Limitations. See Complaint at ¶¶ 1-4. ~ .See Complaint at ¶¶ 6-8. 4 See Complaint at p.4, ¶¶ 1-2. See 18 Pa.C.S.A. § 9121, See Complaint at p.4, ¶¶ 3-4. 6 See Complaint at p.4, ¶¶ 1-4. 2 PRELIMINARY OBJECTION PURSUANT TO PA. R.C.P.1028 (a)(1] QUESTIONING SUBJECT MATTER JURISDICTION 3. The averments of paragraphs 1 and 2 above are incorporated by reference as if set out in full. 4. The Department is designated as an Administrative Department of the Commonwealth under the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 61. See also, 2 Pa.C.S. § 101. Further, pursuant to the administrative regulation at 4 Pa. Code § 9.1, the State Correctional Institutions, including SCI-Mahanoy and SCI-Camp Hill, are identified as components of the Department. 5. Allen's mandamus request falls within the exclusive, original jurisdiction of the Commonwealth Court because the requested order would be properly directed to Secretary Beard, a state official with state-wide policymaking authority..See Fawber v Cohen, 516 Pa. 352, 361,532 A.2d 429, 434 (1987)(suit seeking injunctive and declaratory relief to direct official acts of Secretary of Welfare, an official with state-wide policymaking authority, is within exclusive, original jurisdiction of Commonwealth Court under Section 761(a)(1) of the Judicial Code, 42 Pa.C.S. § 761(a)(1)). 6. Allen's Complaint in Mandamus is also. an action for which the Commonwealth Court has original and exclusive jurisdiction against a state agency like the Department. See Wilson v Com., Bureau of Corrections, 492 A.2d 70 (Pa. 3 Cmwlth. 1985)(Court accepted petition for a preliminary and/or permanent injunction and/or writ of mandamus under its original jurisdiction which challenged legality of the aggregation of two consecutive sentences by the Corrections Bureau, a state agency). 7. The Complaint in Mandamus is in effect a Petition for Review in the Nature of Mandamus, a matter that falls within the exclusive original jurisdiction of Commonwealth Court under 42 Pa.C.S § 761..See_ Doxsey v. Commonwealth, 674 A.2d 1173, 1175 (Pa. Cmwlth. 1996)(A writ of mandamus can be used to compel the Department to compute properly a prisoner's prison sentence if there exists a right on behalf of the party seeking relief in mandamus). The Complaint in Mandamus has been improvidently filed in this Court and should be dismissed for lack of subject matter jurisdiction. 8. Allen's Complaint in Mandamus does not seek any monetary relief from any Defendant and does not assert a cognizable basis for relief as a habeas corpus petition questioning conditions of confinement. See Commonwealth ex tel. Fortune v. Dragovich, 792 A.2d 1257, 1259(Pa. Super. 2002)(claim that decision of prison officials to hold inmate in administrative custody was inconsistent with Department policy does not provide cognizable basis for issuance of habeas corpus writ). 4 9. Further, as a civil rights action under 42 U.S.C. § 1983, without any demand for monetary damages, the action would be in essence a complaint for either declaratory or injunctive relief, which would be directed against the fall within the exclusive, original jurisdiction of Department-matters that Commonwealth Court. WHEREFORE, for all the above reasons, the Department respectfully requests that this Court enter an Order dismissing Allen's Complaint in Mandamus for lack of subject matter jurisdiction pursuant to Pa.R.C.P. 1028(a)(1) and the Court is further requested to grant such other relief as may be necessary, just and appropriate under the circumstances. PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURER PURSUANT TO RULE 1028 (a)(4) 10. The averments of paragraph 1 through 9 of the Preliminary Objections to Plaintiff's Complaint are incorporated by reference as if fully set out in full. 11. Rule 1028(a)(4), Pennsylvania Rules of Civil Procedure, authorizes the filing of Preliminary Objections asserting the legal insufficiency of a pleading. 12. Rule 1019(a), Pennsylvania Rules of Civil Procedure, requires that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form." 13. Allen's Complaint fails to state claims or causes of action against the Defendants in Mandamus upon which relief can be granted. 5 14. Unlike the criminal trial and appeals process where a defendant is accorded the full spectrum of fights and protections guaranteed by the state and federal constitutions, and which is necessarily within the ambit of the judiciary, the procedures for pursuing inmate grievances and misconduct appeals are a matter of intemal prison administration and the "full panoply of rights due a defendant in a criminal prosecution is not necessary in a prison disciplinary proceeding .... "See Robson v. Biester, 420 A.2d 9, 12 (Pa. Cmwlth. 1980)(citing Wolffv. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 9359 (1974)). 15. Allen does not allege that he failed to receive notice and an opportunity to be present before each misconduct hearing. Rather, he admits that he was afforded a hearing and found guilty of the misconduct charges.7 Further, Allen explains that he was sanctioned to 540 days in the Restricted Housing Unit.8 Allen does not present an created a liberty interest." "atypical, significant deprivation in which the state See Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 2301 (1995). A protected liberty interest must exist before determining what process is due. See Hagan v. Tirado, 896 F.Supp. 9910, 995 (C.D.CA. 1995)(if an inmate placed in disciplinary segregation has no due process right to procedures established in state regulations, afortiori an inmate placed in administrative custody has no such due process right). Accordingly, Allen has failed to establish 7 .See Complaint at ¶ 4. 8 See Complaint at ¶ 5. 6 a liberty interest with due process protection, and because he has no clear legal right to relief, mandamus is unavailable. WHEREFORE, the Department respectfully requests that the Court grant their Preliminary Objection in the Nature of a Demurrer and dismiss the Plaintiff's Complaint with prejudice. Respectfully submitted, Office of Chief Counsel Dated: February 11, 2002 By: Nic~le ~daf~s Assistant Counsel Attorney ID 86293 Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 7 IN THE 6~AMONWEALTH COURT OF PENNSY~,ANIA CUMBERLAND COUNTY ORVILLE ALLEN, PLAINTIFF VS. ~ : DEPARTMENT OF CORRECCTIONS, ET AL.~ DEFENDANTS .' : : CIVIL ACTION IN WRIT MANDAMUS (To remove, correct, and amend the prison records) CASE NO. # CIVIL ACTION WRIT IN MANDAMUS NOW COMES Orville Allen, who is the pro se petition and litigant before this court, and who further applies for the extraordinary Writ of Mandamus, in seeking relief to remove, co~rect, and amend the Pennsylvania Department of Corrections (DOC) prison kept records and files, as these records and files relates to misinformation beins contained within them, which has been serving to harm petitioner in all avenues and aspects of him availing himself of various programs and activities offered to incidence free (no misconducts) and record compliance inmates within the prison setting. (And which will ultimately hinder petitioner in his future attempts to qualify for external programs, pre-release, halfway house, parole etc). To this extent petitioner evokes the jurisdiction of the Commonwealth Court (Constitution Article v. {i 4) (Code § 561) asking this court to review his claims in complaint raised within his petition and further request that he be granted a trial by Jury to settle the disputed facts of his claims. Or in the alternative, and in the interest of justice, petitioner request this court to issue a Peremptory Judgment granted relief. Petitioner sets forth tha followin~ averment in reason for his requested relief~ PROCEDURAL HISTORY OF EVENTS 1. on or about October 25, 1989 there was a riot which endured at the State Correctional Institution at Camp Hill (SCI-Camp ~ill) 2500 Lisburn Road, P.O. Box 8837, Camp Hill, Pa. 17001-8837. - I - 2. On this date and time petitioner was a inmate housed within the SCI-Camp hill facility. 3. On or about July 13,1990 the officials o£ the SCI-Camp Hill issued a misconduct No.# 369958 to petitioner charging him with having had participated in the riot. 4. On July 20, 1990 petitioner ~ent before the SCI-Camp Hill Hearing Examiner Mr. Lamar L. Libhart where he was adjudge guilty of all charges. 5. Petitioner was sanctioned a total of 540 days D.C. time to be served in the institutional Restricted Housing Unit (RHU), and assessed in his account to pay a $186.00 share of a medical cost attributed to the injuries of Correctional Officer fir. Hargrove. 6. Prior to the issuance of the above cited misconduct, petitioner had been arrested by the officials of the Cumberland County District Attorney's office. 7. And on or about June 1, 1990 the court of Common Pleas, District Magistrate Judge Clement of Cumberland County Pa. disposed of the case Nolle Prosequi. 8. Petitioner was represented in this matter by then attorney Mr. Summer Parker, 1520 Penn Ave., Pittsburgh, Pa. 15222. 9. Based upon both prosecutions (internal with the institutional misconduct and externally of being originally charged with a felony by the Commonwealth). Petitioner had plead innocence through-out both proceedings and have vigorously continue to maintain his innocence and not having any type involvement of this incident todate. 10. Since the recorded time period of both the above mentioned actions taken against petitioner. Petitioner has been plagued with uncounted circumstances and events ia which he has been queetioned and there after denied access to what-ever institutional programs petitioner might was seeking. 11. That after approximately 10 years the DOC through a series of scheduled hearings and under the DQcket No.# H-96, attempted to secure an written order from the Secretary of the Department of Corrections Mr. Jeffery A. Beard, to mandate the completion of the issued sanction of payment for the medical treatment of C.O. Hargrove. 12. That the petitioner being uninformed as to what had transpired within said hearings, was silently given a reimbursement of $186.00 on June 11, 2001 and informed that this was done by order of Secretary Beard (no explanation). - 2 - 13. Based upon the turn of events, petitioner sought clarity as well as expungement of certain relied upon facts that would now be a total contradiction-to the truthfulness of the documentation which has created changes of facts to the record. 14. Petitioner avers, that in the course of under-giong . his original sentence and rehabilitation, that he deserve to be gauged in his activities from a precise, truthful and fairly kept prison record. STATEMENT OF FACTS FOR CONSIDERATION 15. My complaint to this court revolves around the fact that over the last 13 years of bearing and carrying the yoke of a wrongful institutional and state supported prosecution, that changes in documentation and information has come about:, which (if and when) applied to the overall record, would change substantially the accounted facts presently held within the prison record. 16. That because of these charges in documentation and information being documented within the DOC and SCI-Mahanoy's records. Petitioner is asking for expungement and/or modification of his DOC and institutional prison file, to reflect said mitigating changes. 17~ Petitioner sought requested expungement and resolvement' of whether he had an entitlement to have erroneous information removed from his institutional and state file by contacting the following persons: (A). Mr. Edward R. Martin, Corrections Records Supervisor at the SCi-Mahanoy, on June 23, 2001 (B) ~:R. Kris D. Calkins, Acting Record Supervisor, at SCI-Mahanoy, on July 5, 2001 (C). }!s. Carrol Dotter, Grievance Coordinator at SCI-Mahanoy, on July 23, 2001 (D). Mr. Robert Shannon, Superintendent, at SCI-Mahanoy, on July 31, 2001 (E). Mr. Jeffrey A. Beard, Secretary of the Dept. Corrections, at 2520 Lisburn Road/P.O. Box. 598, Camp Hill, Pa. 17001-0598, on August 27, 2001 of 18. That as of the present date, all inquiries and responses has been replies in the negative. 19. In conjunction with petitioners efforts to have the DOC and institutional prison records corrected, petitioner would further ask this court to order correction of the records of the Commonwealth of Cumberland County as they relates to petitioner now status of being subject to the "Nolle Proseqi" process. - 3 - 20. Further petitioner states that "Nolle Prosequi" is a legal procedure status which allows the prosecutor to delay (If he/she choose) the prosecution bf an accused. Although this process is legal it is not one that would run an indefinite period of time. 21. That after 13 years of this process running freely, Petitioner can now conclude at chis point amd time, as an absolute, that no such prosecution will be £orthcoming. 22. The information of "Nolle Prosequi" in petitioner's file, now only serve to act as a permanent botch. Which is also against his constitutions! rights (under the standard of accusement and having the righ~ to face his accuser, as well as maintaining a presumption of innocence). Forwhich petitioner, have asked the defendants to correct on many occasions. 23. Petitioners secondary point of concern involves whether the Hearing fxaminer sanction imposed was made void/invalidated (partially or in full) when secretary Beard canceled payment of restitution· RELIEF SOUGHT Based upon the above cited factor of chamge which petitioner has pointed-out. Petitioner would request the following: (A). That the Commonwealth Court of Cumberland County make a ruling in this matter favorin$ petitioner thereby entering an order directing that the defendants remove, correct, and amend their p~ospective records as the record relates to the Commonwealth of Cumberlaad County's Court records, the DOC records, and the SCI-Mahanony records (B). That the specific information that petitioner seeks to be adjusted into the ~eaord is as follows: Removal of misconduct No.~ 369958 from his institutional re:ord. DOC and A statement placed within the record clarifying the DOC order issued on or around May 22, 2001 which instructed the reimbursement of .petitioners confiscated funds, and document that this factor further serves as lessening and/or withdrawing misconduct sanctions imposed by the Hearing examine~ Mr. Libhart on cited misconduct of No.# 369958. Expungement by the Commonwealth Court of Cumberland County as this request relates to the Nolle Prosequi brought by the District Attorney's office. £xpungement of DOC and SCI-Mahanoy records as it relates to the present status of the Nolle Prosequi charges. - 4 - Ia ¢oa¢lusioa, petitioner would pray ~hat for al! the above aver reasons that this court will review and grant to him the above request relief. FOR THIS HE SHALL EVER PRAY .... Respectfully Submitted ~r. Or~ille ',~l!en, Pro se Petitioner SCI-Mahanoy 301 Morea Road Frackville, Pa. 17932 -5- IN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND COUNTY ORVILLE ALLEN, PLAINTIFF VS. ~ DEPARTMENT OF CORRECCTIONS, ET AL.~ DEFENDANTS z : CIVIL ACTION IN WRIT MANDAMUS (To remove, correct, and amend the prison records) CASE NO.# PROOF OF SERVICE .- I Orville Allen, hereby certify that I am this Day ~..~~.,~ /~-2~ ~om_ , serving the forgoing complaint in motion of ~ Civil Action in Mandamus, upon the Clerk of Courts and the Agencies listed below. This being done in the manner accorded with the Rules of Civil Procedures, Rule 403 Service By Mail. SERVICE BY FIRST CLASS MAIL: The Clerk of Courts Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 C/O Inmates Records Department of Corrections P.O. Box 598 Camp Hill, Pa. 17001-0598 C/O Inmate Records SCI-Mahanoy 301 Morea Road Frackville, Pa. 17932 Office of the Attorney General 16th. Floor, Strawberry Square Harrisburg, Pa. 17120 Date~ Respectfully Submitted Mr. Orville ,Allen, Pro se Petitioner AP-8428 301 Morea Road Frackville, Pa. 17932 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Plaintiff, Vo DEPARTMENT OF CORRECTIONS, et al., Defendants. Civil Action No. 02-4598 CERTIFICATE OF SERVICE I hereby certify that I am depositing in the U.S. mail a tree and correct copy of the foregoing Defendant's Preliminary Objections to Complaint in Mandamus upon the person(s) in the manner indicated below: Dated: Febmaryll, 2003 Service by first-class mail addressed as follows: Allen Orville, AP-8428 SCI-Mahanoy 301 Morea Road Frackville, PA 17932 Clerk Typist II Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Plaintiff DEPARTMENT OF CORRECTIONS, ET AL. : Defendant : : : CIVIl. ACTION IN WRIT OF MANDAMUS (To remove, correct, and amend, the prison records) DOCKET No.#02-4598 ORDER AND NOW, this day of , , upon consideration of the forgoing petition, it is hereby ordered that: BY THE COURT: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Plaintiff DEPARTMENT OF CORRECTIONS, ET AL. : Defendant : : : CIVIL ACTION IN WRIT OF MANDAMUS (To remove, correct, and amend the prison records) DOCKET No.#02-4598 REQUEST FOR ORDER FOR EXPUNGEMF. NT Preliminary Statement NOW COMES Orville Allen who is the petitioner in the above captioned matter, and based upon his circumstance of incarceration and the factor of erroneous information being kept within his prison file. Now wish to make application in request to thi.s Court to have the Nolle Prosequi arrest of or abouts June 1, 1990 expunged from his criminal record. Jurisdiction Petitioner seeks the above requested relief under the Pennsylvania Rules of Criminal Procedure, Rule 9017, adopted February 24, 1993, effective July 1, 1993. In application/support of his request, the petitioner submits the following information: Name; Orville Allen~ Date of birth; 12/24/60, Social Security Number; # 20546-9520 me The Offense Tracking Number; #C422678-4 3. The district justice docket number and the magisterial district No.#, or Municipal docket number; C-295-90 -1 - 4. The Court of Common Pleas Docket No.# (if any) N/A The specific charges, as they appear on the charging document, are; Riot- 5501 (1-3), And which are the charges petitioner wish to have expunged. Date of arrest and criminal justice agency which made the arrest; The arrest occurred in/or abouts May/June 1990. By the Pennsylvania State Police, Harrisburg, Pa. The disposition; The case was Nolle Prosequi. ~iy District Magistrate Judge Clement. On or about June 1, 1991. 8. The reason for expungement; Because the information on petitioner's prison file is serving itself as a permmnent botch and the state Correctional Department is relying upon this information to deny certain institutional programs, and will ultimately effect his application for parole. 9. And the criminal justice agencies upon which certified copies of this order shall be served; The Clerk of Courts Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 Nicole Adams, Esquire Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, Pa. 17011 C/O Inmates Records Department of Corrections P.O. Box 598 Camp Hill, Pa. 17001-0598 C/O Inmate Records SCI-Mahanoy 301 Morea Road Frackville, Pa. 17932 Office of the Attorney General 16th. Floor, Strawberry Square Harrisburg, Pa. 17120 WHEREFORE, The petitioner request that this Honorable Court issue an ORDER mandating that he herein requested expungement of the Nolle Prosequi incident of June 1, 1991 be forthwith removed from petitioners criminal record, and all above mentioned parties be served in the same with notice thereof. -2- FOR THIS PETITIONER SHALL EVER PRAY .... Petitioner hereby verifies that the facts set forth above are true and correct to the best of his information, knowledge and belief. This statement is made subject to the penalties of 18Pa. C.S.A.§4904, relating to unsworn falsification to authorities. Respectfully Submitted Mr. Orville Allen, AP-8428 Pro se Petitioner SCI-Mahanoy 301 Morea Road Frackville, Pa. 17932 ~'ebruary 21~ -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Plaintiff DEPARTMENT OF CORRECTIONS, ET AL. : Defendant : : : CIVIl, ACTION IN WRIT OF MANDAMUS (To remove, correct, and amend the prison records) DOCKET No.~02-4598 PROOF OF SERVICE i Orville Allen, hereby certif! that I am this day February 21, 2003 am serving the foregoing Petition for Request For Order For Expungement, upon the Persons indicated below in the manner of service which satisfies the requirements of Pa.R.Civ. P. 403: SERVICE FIRST CLASS MAIL: C/O: The Clerk of Courts In The Court of Con~on Pleaa Cumberland County Courthouse i Courthouse Square Carlisle, Pa. 17013 Respect:fully Sub~it£ed Mr. Orville Allen, AP-8428 Pro se Petitioner SCI-Mahanoy 301 Morea Road Frackvil!e, Pa. 17932 Feb£uary 21, 2003 Date IN THE COURT OF COMMON PLEAS OF CUMBERLA~4D COUNTY, PEN~.]SYLYA~IIA ORVILLE ALLEN, Plaintiff DEPARTMENT OF CORRECTIONS, ET AL. Defendant CIVIL ACTION IN WRIT OF MANDAMUS amend, the prison DOCKET No.#02-4595 AND NO~;, this day of .~ ___, , upon consideration of the forgoing petition, it is hereby ordered that: BY THE COURT: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Plaintiff DEPARTMENT OF CORRECTIONS, ET AL. : Defendant : : : CIVIL ACTION IN WRIT OF MANDAMUS (To remove, correct, and amend the prison records) DOCKET No.#02-4598 PLAINTIFF RESPONSE IN OPPOSITION TO DEFENDANT'S PRELIMINARY OBJECTION TO COMPLAINT IN MANDAMUS NOW COMES, plaintiff Orville Allen, who in response and opposition to the Preliminary Objection filed by the defendant's in request to have the above captioned Complaint in Mandamus dismissed. As such, plaintiff sets forth the following argument, where he may be permitted by the court continuation in prosecution of his Civil Complaint Action; Plaintiff would ask this Honorable Court to reserve any decision in the above matter, in the form of granting a sixty (60) day leave, where plaintiff may reconcile his pleadings with an expungement motion filed within the Court, and plaintiff would act further to add clarity in an amendment to the Civil Action Complaint directed to this Court. In support of plaintiff's request, he would aver the following factors; 1. According to the defendants Preliminary Objections raised under P.R.C.P. Rule 1028. Defendants states that the Department of Correction lacks jurisdiction to address the criminal arrest of plaintiff. -1 - Itt T~I~ COU~t? OF CO~tOE PLEAS $ CZYIL ACt~O# IN ~I? OF (Te ~esove, c~rr~cc, and romance the prLaon records) J~risit~,io~ 3. TWo di4Krtct J~M~i~ d~ ~umber and time mtjlje. Jril~ district Ho.l, ~lead Ce~ty ~ Carltsla, P~. I P.O. ~e~ 595 -2- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Plaintiff V. ~ DEPARTMENT OF CORRECTIONS, ET AL. : Defendant z CIVIL ACTION IN WRIT OF MANDAMUS (To remove, correct, and amend the prison records) DOCKET No.~02-4598 PROOF OF SERVICE I Orville Allen, hereby certify that I am this day February 21, 2003 am serving the foregoing Petition for Request For Order For Expungement, upon the Persons indicated below in the manner of service which satisfies the requirements of Ps.~.Civ. P. 403: SERVICE FIRST CLASS MAIL: C/O: The Clerk of Courts In The Court of Common Pleas Cumberland County Courthouse i Courthouse Square Carlisle, Pa. 17013 Respectfully Submitted Mr. Orville Allen, AP-8428 Pro se Petitioner SCI-Mmhamoy 301 Morea Road Frackville, Pa. 17932 February 21, 2003 Date Mr. Orville Allen, AP-8428 SCI-Mahanoy 301 Morea Road Frackville, Pa. 17932 The Clerk of Courts In the Court of Common Pleas Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 February 21, 2003 RE: Application for expungement Dear Clerk of Courts, Please find enclosed my petition addressed ~o the court seeking an expungement of an arrest that was eventually nolle prosequi by the District Judge. ] I have also enclosed an self addressed envelop with an extra petition, asking that you certify said copy and return such to me for verification of the process. Meanwhile, ~ thank you in advance for your time and attentions given to the processing of my petition. Sincerely C.C. File Enclosure Self addressed envelop Mr. Orville Allen ORVILLE ALLEN, Plaintiff DEPARTMENT OF CORRECTIONS, ET AL., Defendants .' : : .. : : .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION _ LAW NO. 02-4598 CIVIL TERM ORDER OF COURT AND NOW, this 25th day of February, 2003, it appearing that this court lacks jurisdiction over the subject matter of this action against t~he Department of Corrections and that this action is within the jurisdiction of the Commonwealth Court of Pennsylvania,t see Act of July 9, 1976, P.L. 586, as amended, 42 Pa. C.S. §§ 761, 931 (2002), it is hereby ordered that the record in this case,, which includes preliminary objections to the complaint and a motion to proceed .in forma pauperis, shall be transferred to the Commonwealth Court. See July 9, 1976, P.L. 586, as amended, 42 Pa. C.S. § 5103(a) (2002) ("If an appeal or other matter is taken to or brought in a court... of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court.., shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth .... "). The prothonotary is requested to facilitate this transfer. BY THE COURT, ~ See Stover v. W. CA.B., 671 A.2d 1217, 1220 n.6 (Pa. Commw. Ct. 1996) ("It is well established that an objection to subject matter jurisdiction can never be waived; it may be raised at any stage of the proceedings or by a court sua sponte."). Orville Allen AP-8428 301 Morea Road Frackville, PA 17932 Plaintiff, Pro Se Nicole L. Adams, Esq. Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 Attorney for Defendant ORVILLE ALLEN, Plaintiff Vo DEPARTMENT OF AND "Request for IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CORRECTIONS, ET AL., · Defendants · NO. 02-4598 CIVIL TERM ORDER OF COURT NOW, this l0th day of March, 2003, upon consideration of Plaintiff's Order for Expungement," and the above-captioned case no longer being pending in this court by virtue of its transfer to the Commonwealth Court by order dated February 23, 2003, the Prothonotary's Office is directed to return the document to Plaintiff. Orville Allen, AP-8428 SCI-Mahanoy 301 Morea Road Frackville, PA 17932 Plaintiff, Pro Se Nicole Adams, Esq. Assistant Counsel Department of Corrections P.O. Box 598 Camp Hill, PA 17001-0598 Attorney for Defendant BY THE COURT, :rc ORVILLE ALLEN, Plaintiff Vo DEPARTMENT OF CORRECTIONS, ET AL., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-4598 CIVIL TERM ORDER OF COURT' AND NOW, this l0th day of March, 2003, upon consideration of "Plaintiff's Response in Opposition to Defendant's Preliminary Objection to Complaint in Mandamus," and this case having been transferred to the Commonwealth Court by order dated February 23, 2003, the Prothonotary's Office is directed to return the document to Plaintiff. Orville Allen, AP-8428 SCI-Mahanoy 301 Morea Road Frackville, PA 17932 Plaintiff, Pro Se Nicole Adams, Esq. Assistant Counsel Department of Corrections P.O. Box 598 Camp Hill, PA 17001-0598 Attorney for Defendant BY THE COURT, J/~Vesley 0~r,~.7/t :rc IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Petitioner COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION CP No.#C422678-4 RE: ORVILLE ALLEN V. DEPT. OF CORRECTIONS, ET AL. CIVIL ACTION IN MANDAMUS (To remove, correct, and amend the prison records) DOCKET No.#02-4598 ORDER , upon AND NOW, this day of , consideration of the forgoing petition, it is hereby ordered : BY THE COURT: Oe IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Petitioner COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION CP No.#C422678-4 RE: ORVILLE ALLEN V. DEPT. OF CORRECTIONS, ET AL. CIVIL ACTION IN MANDAMUS (To remove, correct, and amend the prison records) DOCKET No.#02-4598 MOTION TO COMPEL AN ANSWER IN REQUEST FOR AN ORDER FOR EXPUNGEMENT NOW COMES petitioner, Orville Allen who is the movant in the above captioned matter, and whom, based upon his circumstance of incarceration and factor of having erroneous information being kept within his prison file. Has filed application in request to this court to have Nolle Prosequi arrest of or abouts June 1, 1990 expunged from his criminal record. RATIONALE IN SUPPORT OF COMPELLING MOTION 1. The present petition is being filed in reference to the above captioned matter. 2. Wherein plaintiff is requesting that immediate action be applied in response to his motion filed before the Court of Common Pleas in Cumberland County on February 21, 2003. 3. Whereby plaintiff had filed a Request For An Order For Expungement. - 1- 4. The response to this order is important to plaintiff's sought relief as well as relevant to his above on-going Civil prosecution. 5. And will ultimately determine the extent of relief he is entitled to in the full context of the legal remedies of his Civil Action in Mandamus filed. 6. In said petition plaintiff has followed the standards required though the Pennsylvania Rules of Criminal Procedures, Rule 9017 adopted February 24, 1993 effective July 1, 1993 and so raise this cited act as giving this court jurisdiction to act with a decision. RELIEF SOUGHT 7. In as much, and in conclusion plaintiff would ask that this filed compelling motion be met with a definitive response by this court. 8. (If there should be any disputed facts in questions.) Plaintiff would ask this court to set a status hearing for said purpose/interest of resolvement of the facts which are in dispute. WHEREFORE, and for the above cited reasons, plaintiff request that this Honorable Court issue an Order mandating that the requested expungement of Nolle · o r! Prosequi incident of June 1, 1991 be forthwith removed from pet~tmone s criminal record, and all parities/agencies listed be served with a copy of said notice; Nicole Adams, Esquire The Clerk of Courts Assistant Counsel Cumberland County Courthouse 1 Courthouse Square Pennsylvania Department of Corrections 55 Utley Drive Carlisle, Pa. 17013 Camp Hill, Pa. 17011 C/O Inmates Records Department of Corrections P.O. Box 598 Camp Hill, Pa. 17001-0598 C/O Inmate Records SCI-Mahanoy 301 Morea Road Frackville, Pa. 17932 -2- Office of the Attorney General 16th. Floor, Strawberry Square Harrisburg, Pa. 17120 FOR THIS PETITIONER SHALL EVER PRAY .... Petitioner hereby verifies that the facts set forth above are true and correct to the best of his information, knowledge and belief. This statement is made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Respectfully, Submitted Mr. Orville Allen, AP-8428 Pro se Petitione£ SCI-Mahanoy 301 Morea Road Frackville, Pa. 17932 April 23~ 2003 -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORVILLE ALLEN, Petitioner COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION CP No.#C422678-4 RE: ORVILLE ALLEN V. DEPT. OF CORRECTIONS, ET AL. CIVIL ACTION IN MANDAMUS (To remove, correct, and amend the prison records) DOCKET No.#02-4598 PROOF OF SERVICE I Orville Allen, hereby certity that I am this day April 23, 2003 serving the foregoing Motion To Compel An Answer In Request For Expungement, upon the person(s)/Agency indicated below in the manner of service which satisfies the requirement of Pa.R.Civ.P. 403: SERVICE FIRST CLASS MAIL: The Clerk of Courts Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 Nicole Adams, Esquire Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, Pa. 17011 April 23, 200~ Respectfully Submitted Mr Orville Allen, AP-8428 Pro se Petitioner · SCI-Mahanoy 301 Morea Road Frackville, Pa. 17932 IN THE COMMONWEALTH COURT OF PENNSYLVANIA No. 175 M.D. 2003 ORVILLE ALLEN, Plaintiff PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL. Defendants PLAINTIFF'S RESPONSE TO BRIEF IN SUPPORT OF RESPONDENT'S DEMURRER Mr. Orville Allen, Pro se Petitioner AP-8428 301 Morea Road Frackville, Pa. 17932 May 21, 2003 TABLE OF CASES United S~ates Constitution Amendment 14. Pennsylvania Constitution Article 1, 26. STA~'OTE 42 Pa.C,S. § 761. Pa.R.&.P. 1502. Pa.R.A,P. 1532 Pa.R.C.P. No. 1098. 18 Pa.C.S.A. §§ 9102, 9122. Paine v. Baker, 595 F,2d 197 (4th. Cir. 1979). Pruet~ v. Levi, 622 F.2d 256, 258 (6th. Cir. 1980). Bukhari v. Hutto 487 F. Supp. 1162, 1167 (1980). McCrery v. Mark, 823 F. Supp. 288, 294 (E.D.Pa. 1993). S~lvermanv. Pennsylvania, 527 F. Supp. 742, 745 (W.D.Pa. 195I). iff'd, 707 F.2d 1395 (3rd. Cir. 1983). Commom~ealth v. Bailey, 419 A.2d 1351 (1980). Commonwealth v. Butler, 672 A.2d 806 (Pa. Super. 1996). Commonwealth v. Dobson, 684 A.2d 1073 (Pa. Super. 1996). Pennsylvania Dental Ass'n V. Insurance Department, 512 Pa. 217, 516 A.2d 647 (1986). -i- TABLE OF CONTENTS TABLE OF CASES .............................................................. i STATEMENT OF JURISDICTION STATEMENT OF SCOPE AND STANDARD OF REVIEW .................................. 2 RESPONSE TO STATEMENT OF QUESTIONS INVOLVED ................................ 3 STATEMENT OF THE CASE SUMMARY ARGUMENT ........................................................... 6 ARGUMENT ................................................................... 8 CONCLUSION ................................................................. 10 EXHIBIT/APPENDIX - ii - s'rA~ OF JIIRISDICI'IOIq This Cour~ Juriidiction is Codified in 42 Pa.C.S. § Pa.R.&.P. 1502. -1- SCOPE AND STANDARD OF REVIEW On question of law plaintiff addresses two categories of legal litigation and relief sought. Accordingly, plaintiff has exhausted all remedies in inquiries and request to prison officials. Asking that certain erroneous information presently being kept in his prison file, be expunge, remove or made right through correction, as these corrections would reflect recent changes and judgments. Under Paine v. Baker, 595 F.2d 197 (4th. Cir. 1979); and McCrery v. Mark, 823 F. Supp. 288, 294 (E.D.Pa. 1993). Wherein expungement is appropriate when prisoner can show; (1) Information is in the file; (2) The information is false; And (3) it is relied upon to a constitutionally significant degree. And further that a prisoner has a limited constitutional right to have incorrect information expunged. Silverman v. Pennsylvania, 527 F. Supp. 742, 745 (W.D.Pa. 1981), Aff'd, 707 F.2d 1395 (3rd. Cir. 1983); Pruett v. Levi, 622 F.2d 256, 258 (6th. Cir. 1980); Bukhari v. Hutto, 487 F.Supp. 1162, 1167 (1980). Plaintiff further sought relief through the Court of Common Pleas, in filing motion seeking to have a 14 year old Nolle Prosequi charge removed from his criminal record in accord with 18 Pa.C.S.A. §§ 9102, 9122 and in relation to the cited cases of Commonwealth v. Bailey, 419 A.2d 1351 (1980). Commonwealth v. Butler, 672 A.2d 806 (Pa. Super. 1996). Commonwealth v. Dobson, 684 A.2d 1073 (Pa. Super. 1996). Plaintiff right to seek expungement of criminal record is adjunct to due process, and therefore, plaintiff must be afforded hearing to present his claim. USCA Constitution Amendment 14. And Pennsylvania Constitution Article 1, 26. -2- RESPONSE TO RESPONDENT STATEMENT OF QUESTION INVOLVED ALLEN FAILED TO STATE A CLAI~ AGAINST THE DEPARTMENT FOR REMOVAL OF HISCONDUCT NUHBER 369958 BECAUSE INSTIT~3TIONAL MIS~ ARE NOT FINAL ADJDTICATIONS REVIEWABLE BY THIS COURT? Sugsest~d Answer~ Yes. By R~spondent. Suggested Response~ In negative by Plaintiff. II. HAS .,t!.Lm~q F~ TO STATE A CLAIM AC, AI'NST THE DEPARTMENT FOR EXPUNGRMI9~ OF CRIMINAL Suggested kuswer: Yes. By Respondent. Suggested Response: In ~Se negative by Plaintiff. -3- STA~L~ OF THE CA~ Pr~v~dural ~rr~ti~l I~it~ion s~ ~i~ ~tlI (~anl, ~ill) 2~ ~barn Road, P.O. Correcti~al Officer ~. aari~v~. Cletsac of Cmborla~d C~y Pa. dispos~ of ~, cm,~ ~___!~ -4- kept within ~he DOC, and ~e external coart recoris plaintiff gong c~i~n~ deprt~attofl of in~t~i~l prog~, ~d depr~vacl, m~ ~ov~rd h~ appllcaci~ ~or CAvil AcCio~ ia prayer to ~his ~oaorabl~ Gourd. the Super~Jonr., ~ well u ~e (!MM{ elf iGc) add{ co Ctmp Hill. Thio bei~ done vith plaintiff re~et~ no/oF a~um~rf ia the ~ttve, Plaintiff herein appeals to this court to De pernitted the undertaking of having his applicatio~ for Exun~ement heard through proper review of t. his court, and evaluated with consideration of his legal right to seek exp'~ngement. -?- ARGUMM~ Respondent states that Allen Complaiat fails to state claims or causes of action against the Department in Mandamus upon which relief cam be granted. Plaintiff avers, that t~ a Mandamus ~ction, a motion for pe:emptory Judgment or summary relief mny be granted at any time after the filin8 o~ a Com~lain~ in Givil Action, if the right of ~he movant thereto is clear. Pa, R.A.~. 1532(b); ~.R.C.P. No. 1098. Mandamus is an extraordinary r~ue. dy which compels officia! performm_,ce of a minis~erial act or mandatory duty. Pennsylvania Dental Ass'n V. Insurance Depart.ment~ 512 Pa. 217, 516 A.2d 647 (1986). A writ of mandamus may be issued, only where ~here is clear legal right in the plain~iff, a corresponding duty in the defendant, and lack of any other appropriate and adequate remedy. Id. In an action in mandamus involving aa administrative aaency'a exercise of discretion, a court may only direct the agency to perform such discretioaazy act; it ~nay not co;lpel t~e agency =o exercise the discretion in certain manner or reach a particular resul;s. Id. In ~he instant case, plaintiff cites that the Department of Correction (DOC) does has a corresponding duty to plai~tiff, forwhich it has not been met. Whereby based upon plaintiff exhaustion of remedies and the DOC obligation to rmader due process. That plaintiff rightfully exercised als righ~ ~o file Civil Action in Mandamus seeking relief. See; Civil Action Complaint filed, page 3 at ~ 17. M~erein all releva~ personnel was contacted and response's '~he£e in ~he negative towards any considerations of plaintiff's grievm~ce. Whereby on July 20, 1990 plaintiff pled nos guilty to instigu~ional Hearimg Examiner concerning misconduct 35995~. But was inturn adj~dicated guilty of all charges and sanctions was imposed of 540 days disciplinary custody, and assessed im his financial account to pay the amount of $18~.00 for m~dical cost attributed to the injuries of Correctional Officer Mr. Hargrove. See; Complaint at page 2 ¶5. Plaintiff avers that after 10 years of the decision and sanction imposed upon him by the Hearing Examiner. That a series of scheduled hearing took place under Docket No.# H-96. Wherein the initial sanction imposed was changed/altered/disturb by order of Secretary Beard and no explanation was given to the turn of events. That based upon these turn of events plaintiff sought clarity as well as expungement of certain relied upon information that would now be a total contradiction to the truthfullness of the documentation which has created the change of facts to the record. Under Paine v. Baker, 595 F.2d 197 (4th. Cir. 1979); and McCrery v. Mark, 823 F. Supp. 288, 294 (E.D.Pa. 1993). Wherein expungement is appropriate when prisoner can show; (1) Information is in the file; (2) The information is false; And (3) it is relied upon to a constitutionally significant degree. And further that a prisoner has a limited constitutional right to have incorrect information expunged. Silverman v. Pennsylvania, 527 F. Supp. 742, 745 (W.D.Pa. 1981), Aff'd, 707 F.2d 1395 (3rd. Cir. 1983); Pruett v. Levi, 622 F.2d 256, 258 (6th. Cir. 1980); Bukhari v. Hutto, 487 F.Supp. 1162, 1167 (1980). Plaintiff further sought relief through the Court of Common Pleas, in filing motion seeking to have a 14 year old Nolle Prosequi charge removed from his criminal record in accord with 18 Pa.C.S.A. §§ 9102, 9122 and in relation to the cited cases of Commonwealth v. Bailey, 419 A.2d 1351 (1980). Commonwealth v. Butler, 672 A.2d 806 (Pa. Super. 1996). Commonwealth v. Dobson, 684 A.2d 1073 (Pa. Super. 1996). Plaintiff right to seek expungement of criminal record is adjunct to due process, and therefore, plaintiff must be afforded hearing to present his claim. USCA Constitution Amendment 14. And Pennsylvania Constitution Article 1, 26. -9- CONCLUSION WHEREFORE, for all of ~e above cited reasons. And plaintiff would add for the record that his challenges are coasttt,lttoaally permitted in both i~ues raise for this Honorable Courts review. And plaintiff would further ask this Honorable Court to rule in his favor, whereby an appropriate order can be issued to the DOC that will permit review and correction to there institutional records. And in the same a order be issued to the Coamon Pleas Court sanctionin8 approval of expu~ement of plaintiff's 1990 Nolle Prosequi charge. Or on the alternative schedule the appropriate hearinS, ~ere plaintiff may be heard on his filed co~plaint, FOR THIS PLAINTIFF SHALL gVER PRAY.... May 21, 2003 Respectfully Submitted Mr. Orville Allen, AP-8428 Pro se Petitioner SCI-Mahanoy 301 Morea Road Frackville, Pa. 17932 - 10 - IN THE COHMONWEALTH COURT OF PENNSYLVANIA CUHBERLAND COUNTY Plaintiff, PENNS'fLVANIA OF O0~ONS, Defendants. No. 175 }i.D. 2003 I Orville All,n, hereby certity that I am this day Nay 21, 2003 serving the foresoins Brief in oppoaitton to the Respondant's Brief in support of Respoadent's Demurrer upon the person(s)/Agency indicated below in the manner of service ~hich satisfiu the r~quir~nt of Pa.R.A,P. 121~ SERVICE FIRST CLASS MAILs Office Of The Clerk Of Courts Ctuaberlaud County Courthouse 1 Courthoue Square Carlisle, Pa. 17013 Na.Nicole L. Adams, ~squire Pennsylvania Depar",.laent of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill. Ps. 17011 Respectfully Submitted Mr. Orville Allen,' etiti°ner SCI-Hahenoy 301 ~or~a Road Frackville, Pa. 17932 Hal