IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

Demetrius J. Grant, : 

 : 

 Petitioner : 

 : 

 v. : No. 794 M.D. 2018 

 : Submitted: July 29, 2022 

Pennsylvania Board of Probation : 

and Parole, : 

 : 

 Respondent : 

OPINION NOT REPORTED 

MEMORANDUM OPINION 

PER CURIAM FILED: August 11, 2023 

 Before the Court is the Application for Summary Relief (ASR)1 filed 

by the Pennsylvania Parole Board (Board)2 to the pro se Petition for Review (in the 

Nature of a Complaint in Mandamus) (PFR) filed in our original jurisdiction by 

1

 Pa.R.A.P. 1532(b) states, in relevant part: “At any time after the filing of a petition for 

review in an . . . original jurisdiction matter, the court may on application enter judgment if the 

right of the applicant thereto is clear.” Judgment may be entered “‘if a party’s right to judgment 

is clear and no material issues of fact are in dispute.’ ‘In ruling on [ASRs], we must view the 

evidence of record in the light most favorable to the non-moving party and enter judgment only if 

there is no genuine issue as to any material facts and the right to judgment is clear as a matter of 

law.’” Eleven Eleven Pennsylvania, LLC v. Commonwealth, 169 A.3d 141, 145 (Pa. Cmwlth. 

2017) (citations omitted). 

2 Following the filing of the petition for review, the Pennsylvania Board of Probation and 

Parole was renamed the Pennsylvania Parole Board. See Sections 15 and 16.1 of the Act of 

December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and 

6111(a) of the Prisons and Parole Code, 61 Pa. C.S. §§6101, 6111(a).
2 

Demetrius J. Grant (Inmate), an inmate at the State Correctional Institution (SCI) at 

Albion. We grant the Board’s ASR, and dismiss Inmate’s PFR. 

 In Grant v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., 

No. 2043 C.D. 1997, filed May 1, 1998), Inmate sought nunc pro tunc appellate 

review of the 1995 Board revocation decision recommitting him to serve the 

unexpired term on his original sentence, which is at issue in the instant proceeding.3 

Specifically, we summarized the facts of the case as follows: 

The Board conducted a parole revocation hearing on July 

6, 1995, and on August 17, 1995, the Board mailed its 

revocation decision to [Inmate]. On September 15, 1995, 

[Inmate] filed a request for administrative relief. He 

sought a reversal of the recommitment order for failure to 

provide him with hearing counsel and errors on the green 

sheet regarding the number of counts of aggravated assault 

and firearms violations. On December 15, 1995, the 

Board issued a corrected green sheet that properly listed 

three counts of aggravated assault rather than four and two 

counts of firearms violations rather than three. The 

correction having been made, on December 22, the Board 

mailed its denial of any further relief. In its decision 

mailed on December 22, the Board notified [Inmate] that 

3

In considering the Board’s ASR, it is appropriate for this Court to take judicial notice of 

our prior memorandum opinion and order in Grant. 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); Elkington v. Department of 

Corrections (Pa. Cmwlth., No. 478 M.D. 2018, filed May 27, 2021), slip op. at 9 n.4 (“Although 

not introduced by the parties, the underlying criminal proceedings are directly related to the claims 

made here and are referenced throughout the pleadings, and this Court may take judicial notice of 

the dockets of other courts of the Commonwealth.”) (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 

any appeal must be taken within thirty days. However, 

[Inmate] did not petition for our review. Rather, on 

January 10, 1996, [Inmate] filed a request for 

administrative relief from the order mailed December 22, 

1995. The Board considered this request to be a second 

petition for relief from the recommitment ordered on 

August 17, 1995, and therefore, dismissed the petition. 

 Meanwhile, concerning a separate and unrelated 

conviction[,] the Board scheduled a revocation hearing for 

April 2, 1996, which was continued when [Inmate’s] 

attorney became unavailable due to illness, and continued 

again on May 7, 1996, when [Inmate’s] attorney failed to 

appear. On May 9, 1996, [Inmate] filed a request for 

administrative relief from the continuance. The hearing 

was not rescheduled. Rather, on June 27, 1997, the Board 

mailed to [Inmate] a decision, as follows: “Refer to Board 

action of 7-6-95 to recommit to a [SCI] as a convicted 

parole violator to serve [the] unexpired term – 6 years, 2 

months, 20 days. Note the [new conviction], and take no 

further actions on this conviction.” 

 On July 25, 1997, Grant filed with the Board a 

request for administrative relief from the decision of June 

27, 1997. Since the June 27 decision was merely to close 

the file without action on the latest conviction, [Inmate] 

was plainly not aggrieved by this order. It would appear, 

however, that this request was, in fact a third request for 

relief from the December 22, 1995 recommitment order. 

On August 6, 1997, the Board responded by dismissing his 

requests of both May 9, 1996, and July 25, 1997, as being 

second requests not permitted under [Section 73.1(b)(3) of 

the Board’s regulations,] 37 Pa. Code §73.1(b)(3).[4] Also 

on July 25, 1997, [Inmate] filed the instant “Petition for 

Review Nunc Pro Tunc.” [Inmate] seeks review of the 

Board’s decision mailed on December 22, 1995. 

Grant, slip op. at 2-4 (emphasis added). 

4

 Section 73.1(b)(3) of the Board’s regulations states: “Second or subsequent petitions for 

administrative review and petitions for administrative review which are out of time under this part 

will not be received.” 37 Pa. Code §73.1(b)(3). 
4 

 Ultimately, we quashed Inmate’s petition for review as untimely, 

stating, in relevant part: 

 The Board, in its decision of December 22, 1995, 

informed [Inmate] that he had thirty days in which to 

appeal its recommitment order. He failed to do so and 

instead, on subsequent occasions beyond the thirty day 

period, he filed with the Board additional requests for 

administrative relief. The Board, pursuant to [Section 

73.1(b)(3) of its regulations,] 37 Pa. Code §73.1(b)(3), 

properly dismissed these petitions. The time in which 

[Inmate] could have sought review by this [C]ourt is long 

past. The Board’s decision of June 27, 1997, to take no 

further action on a separate conviction, did not enlarge the 

time in which [Inmate] could seek our review of the 

Board’s recommitment order issued nearly two years 

before. 

Grant, slip op. at 5.5

5

 In Grant, as in this case, Inmate sought review, inter alia, based on the purported invalid 

waiver of his right to counsel at the July 6, 1995 revocation hearing. In his counseled appellate 

brief in Grant, Inmate argued, in relevant part, that he “was obviously not represented by counsel 

at his initial revocation hearing of July 6, 1995 and the validity of the waiver of counsel is at issue 

before this Court. ([Reproduced Record at] 75).” Inmate’s Reply Brief at 7. However, with 

respect to the merits of Inmate’s claim in Grant, the Board stated in its appellate brief: 

[Inmate] argues that he did not knowingly and intelligently waive 

representation of counsel for the Revocation Hearing. On July 6, 

1995, the date of the hearing, [Inmate] signed the following “Waiver 

of Representation by Counsel”: 

Having been fully advised of my right to counsel of 

my choice to represent me at a hearing before the 

Board, and of my right to appointed counsel if I 

cannot afford counsel of my choice, I hereby waive 

this right and request that my hearing be held without 

counsel. 

(Certified Record, p.75). 

(Footnote continued on next page...) 
5 

 On January 2, 2019, Inmate then filed the instant PFR again seeking 

review of the Board’s 1995 recommitment order. In relevant part, the PFR alleges 

that because his claim regarding the lack of counsel at his July 6, 1995 revocation 

hearing was not expressly addressed in the Board’s December 22, 1995 corrected 

revocation decision, that decision is not a final appealable order under Section 763(a) 

of the Judicial Code, 42 Pa. C.S. §763(a),6 nor an appealable interlocutory order 

under Pa.R.A.P. 311, 312, or 313.7 PFR ¶9. Inmate further asserts that the Board 

has refused to issue a final decision on the merits of all of the claims that he raised 

in his administrative appeal of the Board’s 1995 revocation decision, despite his 

repeated requests for the Board to do so. Id. ¶¶9-11. Inmate states that he filed the 

PFR due to the Board’s failure to perform its mandatory duty by issuing a final 

decision on the merits of all of his claims, and that no other adequate remedies at 

law exist to compel such Board action. Id. ¶¶13-17. Based on the foregoing, Inmate 

seeks the following relief: (1) judgment against the Board directing it to act upon 

Inmate’s administrative appeal; and (2) judgment against the Board for damages for 

The waiver of counsel representation was acknowledged at the 

hearing. (Certified Record, p.33). 

Brief for Respondent at 8. 

6

 Section 763(a)(1) of the Judicial Code states, in pertinent part: “[T]he Commonwealth 

Court shall have exclusive jurisdiction of appeals from final orders of government agencies in . . . 

[a]ll appeals from Commonwealth agencies under [Sections 701 to 704 of the Administrative 

Agency Law, 2 Pa. C.S. §§701-704,] or otherwise and including appeals . . . from any other 

Commonwealth agency having Statewide jurisdiction.” 42 Pa. C.S. §763(a)(1). 

7

 Pa.R.A.P. 311 outlines the types of orders from which an interlocutory appeal may be 

taken as of right. In turn, Pa.R.A.P. 312 provides the types of orders from which an interlocutory 

appeal may be taken with court permission. Finally, Pa.R.A.P 313 relates to orders that are 

appealable as “collateral order[s].” 
6 

failure to perform a duty required by law pursuant to Section 8303 of the Judicial 

Code, 42 Pa. C.S. §8303.8 See id. at 3. 

 In response, on February 13, 2021, the Board filed the instant ASR 

asserting, inter alia, that our prior memorandum opinion in Grant “makes it clear 

that [Inmate] failed to avail himself of the opportunity to address his concerns in a 

timely manner,” and that “[i]f [Inmate] disagreed with th[is] Court’s opinion, he 

should have sought relief in the Supreme Court of Pennsylvania.” ASR ¶5. As a 

result, the Board claims that “[s]ummary relief should be granted because there is 

no basis for [Inmate] to revive his lapsed appeal rights in this matter.” Id. ¶8. 

 As this Court has recognized, the Board’s 1995 revocation decision is 

a final order that could have been appealed to this Court. Bronson v. Board of 

Probation and Parole, 421 A.2d 1021, 1024-25 (Pa. 1980); see also Grant, slip op. 

at 5 (“The Board, in its decision of December 22, 1995, informed [Inmate] that he 

had thirty days in which to appeal its recommitment order. . . . The time in which 

[Inmate] could have sought review by this [C]ourt is long past.”). Moreover, and 

more importantly, the Supreme Court has also specifically noted that “[o]ne who 

allows his statutory appeal rights to expire cannot at a later date successfully claim 

those appeal rights under the guise of a petition for writ of mandamus.” Lizzi v. 

Unemployment Compensation Board of Review, 353 A.2d 440, 441 (Pa. 1976). 

 In short, as outlined in our prior opinion, Inmate should have appealed 

the Board’s 1995 revocation decision to this Court, raising any and all allegations of 

Board error with respect to the revocation of his parole. Inmate may simply not use 

8

 Section 8303 of the Judicial Code states: “A person who is adjudged in an action in the 

nature of mandamus to have failed or refused without lawful justification to perform a duty 

required by law shall be liable in damages to the person aggrieved by such failure or refusal.” 42 

Pa. C.S. §8303. 
7 

a proceeding in mandamus to revive any appellate claims that he might have asserted 

in any such appeal to this Court. 

 In fact, Inmate has previously sought to collaterally attack the Board’s 

1995 revocation decision in a prior petition for review that he filed in this Court on 

June 22, 2011. In that petition, Inmate alleged, inter alia, that the Board’s 1995 

revocation decision was void because the Board was without jurisdiction to conduct 

the July 6, 1995 revocation hearing in the first instance as he was serving a Georgia 

judgment of sentence at that time, and that such a jurisdictional issue may be raised 

at any time. However, in relevant part, our order dismissing his prior petition states: 

[U]pon consideration of the petition for review, in which 

[Inmate] is challenging the recalculation of his parole 

violation maximum date, such an action is properly 

brought in this [C]ourt’s appellate jurisdiction, McMahon 

v. [Pennsylvania Board of Probation and] Parole, 470 

A.2d 1337 (Pa. 1983); [Bronson], and this [C]ourt’s 

original jurisdiction cannot be used to revive lapsed appeal 

rights, [Lizzi]. Accordingly, the petition for review is 

dismissed for lack of original jurisdiction. 

Grant v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 282 M.D. 

2011, filed June 23, 2011).9 Likewise, the instant PFR will also be dismissed as an 

9 See also Capinski v. Upper Pottsgrove Township, 164 A.3d 601, 609 n.12 (Pa. Cmwlth. 

2017), in which we stated: 

[The opinion in Avis Rent A Car System, Inc. v. Department of State, 

State Board of Vehicle Manufacturers’ Dealers and Salespersons, 

507 A.2d 893, 896-97 (Pa. Cmwlth. 1986),] stands for the 

proposition that a mandamus action is barred, as it always is, where 

there is an administrative remedy prescribed by statute and the 

outcome can be appealed to this Court. See also Highway Paving 

Company v. State Board of Arbitration of Claims, [180 A.2d 896, 

897 (Pa. 1962)] (“[The a]ppellant’s attempt to resort to mandamus 

is merely a veiled substitute for an appeal and is, therefore, 

improper.”). 
8 

improper attempt to revive Inmate’s waived appellate claim regarding the purported 

violation of his right to counsel at the July 6, 1995 revocation hearing. 

 Accordingly, the Board’s ASR is granted, and Inmate’s PFR is 

dismissed. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

Demetrius J. Grant, : 

 : 

 Petitioner : 

 : 

 v. : No. 794 M.D. 2018 

 : 

Pennsylvania Board of Probation : 

And Parole, : 

 : 

 Respondent : 

PER CURIAM 

O R D E R 

 AND NOW, this 11th day of August, 2023, the Application for 

Summary Relief filed by the Pennsylvania Board of Probation and Parole is 

GRANTED, and the Petition for Review (in the Nature of a Complaint in 

Mandamus) filed by Demetrius J. Grant is DIMISSED.