IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Demetrius J. Grant, :

:

Petitioner :

:

v. : No. 341 M.D. 2021

: Submitted: July 1, 2022

Department of Corrections, :

:

Respondent :

OPINION NOT REPORTED

MEMORANDUM OPINION 

PER CURIAM FILED: August 16, 2023

Before the Court is the Preliminary Objection (PO) in the nature of a 

demurrer1filed by the Department of Corrections (DOC) to the pro se Petition for 

1 As we have explained:

In ruling on [POs], we must accept as true all well-pleaded 

material allegations in the [PFR], as well as all inferences 

reasonably deduced therefrom. The Court need not accept as true 

conclusions of law, unwarranted inferences from facts, 

argumentative allegations, or expressions of opinion. In order to 

sustain [POs], it must appear with certainty that the law will not 

permit recovery, and any doubt should be resolved by a refusal to 

sustain them.

A [PO] in the nature of a demurrer admits every wellpleaded fact in the complaint and all inferences reasonably 

deducible therefrom. It tests the legal sufficiency of the challenged 

pleadings and will be sustained only in cases where the pleader has 

clearly failed to state a claim for which relief can be granted. When 

ruling on a demurrer, a court must confine its analysis to the 

complaint.

(Footnote continued on next page...)
2

Review (in the Nature of a Complaint in Mandamus) (PFR) filed in our original 

jurisdiction by Demetrius J. Grant (Inmate), an inmate at the State Correctional 

Institution (SCI) at Albion. We sustain DOC’s PO, and dismiss Inmate’s PFR.

In a prior action filed by Inmate, this Court explained:

[Inmate] avers that on May 1, 1995, Judge Durkin 

of [the Allegheny County Court of Common Pleas (trial 

court)] sentenced him to serve a term of 22[-]1⁄2 to 45 years

[at Docket No. CP-02-CR-0008669-1993] (Sentence 1)[2]; 

on May 30, 1995, Judge Durkin sentenced him to serve a 

term of 10 to 20 years [at Docket No. CP-02-CR-0009450-

1993] (Sentence 2) to run consecutive to any sentence he 

was then serving. At the time Judge Durkin imposed the 

sentences, [Inmate] was serving a 10-year sentence in 

Georgia.

On May 21, 1996, Judge Bigley sentenced [Inmate] 

to a term of 20 to 40 years [at Docket No. CP-02-CR0005774-1995] (Sentence 3) to run consecutive to any 

sentence he was then serving. [The] Superior Court 

vacated the sentence, and on July 14, 1997, Judge Bigley 

re-imposed the consecutive 20- to 40-year term. [Inmate] 

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).

2

In considering DOC’s PO, it is appropriate for this Court to take judicial notice of our 

prior orders relating to the service of Inmate’s various judgments of sentence, and the dockets of 

the underlying criminal matters. See, e.g., Pa.R.E. 201(b)(2) (permitting courts to take judicial 

notice of facts that may be “determined from sources whose accuracy cannot reasonably be 

questioned”); Moss v. Pennsylvania Board of Probation and Parole, 194 A.3d 1130, 1137 n.11 

(Pa. Cmwlth. 2018) (“[T]his Court may take judicial notice of information contained in the 

publicly-available docket of [the underlying proceedings],” and “‘[i]t is well settled that this Court 

may take judicial notice of pleadings and judgments in other proceedings . . . where, as here, the 

other proceedings involve the same parties.’”) (citations omitted); Baney v. Fisher (Pa. Cmwlth., 

No. 752 M.D. 2018, filed August 26, 2020), slip op. at 15 n.20 (“This Court may take judicial 

notice of official court records and public documents at the preliminary objection stage.”) 

(citations omitted); see also Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ 

refers to . . . an unreported memorandum opinion of the Commonwealth Court filed after January 

15, 2008. Non-precedential decisions . . . may be cited for their persuasive value.”).
3

avers that at the time of re-sentencing on Sentence 3, he 

was serving a parole violation sentence that commenced 

on June 9, 1997. [Inmate] seeks an order directing [DOC] 

to “unaggregate” Sentence 3 and run it concurrent with 

Sentences 1 and 2.

The aggregation of consecutive sentences is 

mandatory. Commonwealth ex rel. Smith v. Dep[artmen]t 

of Corr[ections], 829 A.2d 788[, 793] (Pa. Cmwlth. 2003)

[(Smith)]; Gillespie v. Dep[artmen]t of Corr[ections], 527 

A.2d 1061[, 1065] (Pa. Cmwlth. 1987) [(Gillespie)]. A 

new sentence cannot be served concurrently with a parole 

violation backtime sentence. [Section 6138(a) of the 

Prisons and Parole Code (Parole Code),] 61 Pa. C.S. 

§6138(a). On the facts averred, [Inmate] fails to establish 

a right to have Sentence 3 run concurrent with Sentences 

1 and 2.

Grant v. Department of Corrections (Pa. Cmwlth., No. 527 M.D. 2011, filed May 

16, 2012), aff’d, 58 A.3d 747 (Pa. 2012) (Grant I).

Similarly, in another prior action filed by Inmate, this Court explained:

[Inmate] avers that on May 1, 1995, Judge Durkin 

of [the trial court] sentenced him to serve a term of 22[-]1⁄2 

to 45 years (Sentence 1); on May 30, 1995, Judge Durkin 

sentenced him to serve a term of 10 to 20 years (Sentence 

2) to run consecutive to any sentence he was then serving. 

At the time Judge Durkin imposed the sentences, [Inmate] 

was serving a 10-year sentence in Georgia.

[Inmate] avers that Sentence 1 was to run 

consecutive to the Georgia sentence, but that on May 30, 

1995, Judge Durkin knew he was serving a Georgia 

sentence and therefore, he avers, Sentence 2 was to run 

consecutive to the Georgia sentence and concurrent to 

Sentence 1. He seeks an order directing [DOC] to 

recalculate his sentences to reflect that Sentences 1 and 2 

are concurrent and to correct the start date of these 

sentences to coincide with the start date of a third 

sentence[, Sentence 3,] that commenced following 

[Inmate’s] service of a parole violation backtime sentence.
4

The aggregation of consecutive sentences is 

mandatory. [Smith]; [Gillespie]. On the facts averred, 

[Inmate] fails to establish a right to have Sentences 1 and 

2 recalculated to run concurrently or have the effective 

date modified.

Grant v. Department of Corrections (Pa. Cmwlth., No. 318 M.D. 2014, filed October 

23, 2014), aff’d, 121 A.3d 434 (Pa. 2015) (Grant II).

Subsequently, on September 30, 2021, Inmate filed the instant PFR 

again asking this Court to compel DOC to “unaggregate” the service of Sentences 1 

and 2, and to run these sentences concurrently, but consecutive to the service of his 

prior backtime, in accordance with a prior DOC calculation.3 In response, DOC filed 

these POs in the nature of a demurrer generally asserting that Inmate has failed to 

state a claim for which relief may be granted based on our prior final dispositions of 

Inmate’s claims that were raised in Grant I and Grant II, and alleging, in relevant 

part, that “[t]he present [PFR] should be barred by the doctrine of res judicata[4]” 

based on our prior orders. DOC’s POs ¶41.

3

See, e.g., PFR ¶12 (“[Inmate] filed a challenge of [DOC’s] [] decision aggregating 

[S]entence[]s 1 & 2 consecutive[ly]. [He] claimed that it contravened [DOC’s prior] determination 

that when [S]entence 2 was ordered to run consecutive to any sentence [that he was] serving, which 

at the time of sentencing would have been the backtime sentence thus making this sentence 

effective July 15, 2004.”); see also Grant II PFR at 5 (asking this Court to “[i]ssue a writ of 

mandamus and direct [DOC] to recalculate [S]entence[]s 1 and 2 to conform to the trial court’s 

sentencing orders, and to correct the start date of [S]entence[]s 1 and 2 to coincide with the start 

date of [S]entence 3”); Grant I PFR at 4 (asking this Court to “[e]nter judgment against [DOC] 

commanding it to unaggregate [S]entence 3, and run it concurrent with [S]entence[s] 1 and 2”).

4 As this Court has observed:

Strict res judicata, also known as claim preclusion, provides 

that where there is a final judgment on the merits, future litigation 

between the parties on the same cause of action is prohibited. Four 

factors must exist in order for claim preclusion to apply: (i) identity 

in the thing being sued upon or for; (ii) identity of the cause of 

(Footnote continued on next page...)
5

We initially note that a proceeding in mandamus is an extraordinary 

remedy at common law, designed to compel the performance of a ministerial act or 

mandatory duty. Duncan v. Pennsylvania Department of Corrections, 137 A.3d 575, 

576 (Pa. 2016); Allen v. Department of Corrections, 103 A.3d 365, 370 (Pa. Cmwlth. 

2014). “The purpose of mandamus is not to establish legal rights, but to enforce 

those rights already established beyond peradventure.” Id., 103 A.3d at 369 (quoting 

Detar v. Beard, 898 A.2d 26, 29 (Pa. Cmwlth. 2006)). “This Court may only issue 

a writ of mandamus where: (1) the petitioner possesses a clear legal right to enforce 

the performance of a ministerial act or mandatory duty; (2) the [respondent] 

possesses a corresponding duty to perform the act; and (3) the petitioner possesses 

no other adequate or appropriate remedy.” Id. at 370; accord Duncan, 137 A.3d at 

576. However, “[m]andamus can only be used to compel performance of a 

ministerial duty and will not be granted in doubtful cases.” Allen, 103 A.3d at 370. 

“The burden of proof falls upon the party seeking this extraordinary remedy to 

establish his legal right to such relief.” Werner v. Zazyczny, 681 A.2d 1331, 1335 

(Pa. 1996). 

Contrary to Inmate’s legal assertions in the PFR, and as explained in 

our final orders in Grant I and Grant II that were affirmed by the Pennsylvania 

action; (iii) identity of the persons and parties to the action; and (iv) 

identity of the quality or capacity of the parties being sued.

McGill v. Southwark Realty Company, 828 A.2d 430, 435 (Pa. Cmwlth. 2003) (citation omitted). 

Inmate disputes DOC’s interposition of this PO at this stage of the proceedings because it is an 

affirmative defense that is properly raised as new matter in an answer to the PFR under 

Pa. R.Civ.P. Nos. 1028(a)(4) and 1030(a). However, Inmate did not properly raise such an 

objection in a PO to DOC’s PO. See, e.g., Chasan v. Platt, 244 A.3d 73, 81 (Pa. Cmwlth. 2020), 

appeal denied, 253 A.3d 679 (Pa. 2021) (“When a party responds to the [POs], instead of 

challenging the procedure by filing its own [POs], the party has waived any challenge to the form 

of pleading the defense. See Feldman v. Hoffman, 107 A.3d 821 (Pa. Cmwlth. 2014).”) (emphasis 

in original).
6

Supreme Court, he is not entitled to have Sentences 1 and 2 “unaggregated” or to 

have the effective date of these sentences modified. Accordingly, based on our prior 

final judgments in Grant I and Grant II, we sustain DOC’s PO and dismiss Inmate’s 

PFR.5

5

Inmate’s Application for Extension of Time to Answer Respondent’s Preliminary 

Objections is dismissed as moot.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Demetrius J. Grant, :

:

Petitioner :

:

v. : No. 341 M.D. 2021

: 

Department of Corrections, :

:

Respondent :

PER CURIAM

O R D E R

AND NOW, this 16th day of August, 2023, Respondent’s preliminary 

objection in the nature of a demurrer is SUSTAINED, and Petitioner’s petition for 

review is DISMISSED. Grant v. Department of Corrections (Pa. Cmwlth., No. 318 

M.D. 2014, filed October 23, 2014), aff’d, 121 A.3d 434 (Pa. 2015); Grant v. 

Department of Corrections (Pa. Cmwlth., No. 527 M.D. 2011, filed May 16, 2012), 

aff’d, 58 A.3d 747 (Pa. 2012). Petitioner’s Application for Extension of Time to 

Answer Respondent’s Preliminary Objections is DISMISSED as moot.