IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Manuel Carrero, Jr., :

Petitioner :

: v. : No. 259 M.D. 2021
: Submitted: October 28, 2022 Pa. State Police Central Repository, :

Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE LEAVITT FILED: January 12, 2023

Before this Court in our original jurisdiction are the preliminary objections filed by Pennsylvania State Police , Central Repository (Respondent) , to
the petition for review filed by Manuel Carrero , Jr. (Petitioner). Petitioner seeks declaratory and injun ctive relief to challenge his criminal history information maintained by Respondent

. For the reasons that follow, we sustain Respondent’s preliminary objections and dismiss Petitioner’ s petition. 1

The petition for review alleges that on October 25, 2019, Petitioner requested access to his criminal history record from Respondent. O n December 23, 2019, Respondent provided Petitioner with a c ertified c opy of his criminal history
record , which the petition alleges to be erroneous in several ways . Petitioner’s name
is Manuel Carrero , Jr., not Manuel A. Carrero , who is his father ; Petitioner’s race is Hispanic, not “unknown” or “White ; ” and Petitioner’s height i s 5 feet 7 inches, not

1 Petitioner did not file a brief in opposition to Respondent’s preliminary objections, and as such, this Court proceeds without Petitioner’s brief.2

5 feet 6 inches

. F inally, the criminal history record improperly lists Petitioner’s social security number. Petition for Review, ¶¶3

- 5. The petition alleges that
L ieutenant Earl H. Rhoades knowingly and willfully placed false information in Petitioner’s certified criminal history record and that Res pondent “has a history of maintaining false criminal record [s]

. ” Petition for Review , ¶ ¶5 , 8 . The petition
asserts that Respondent has violated the requirement in the Criminal History Record
Information Act ( CHRIA ) 2 that Respondent maintain complete and accurate criminal history record information.

Based on these allegations and legal claims, the petition seeks : 1) Declaratory relief: declaring [R]espondent maintained (willfully and knowingly) false record under Petitio ner’s birth name, and Petitioner’s substantive due process right was violated [ , ] 18 Pa. C.S. [ § ] 9151 [,] and Petitioner was aggrieved by [R]espondent’s action; 2) Injunctive Relief: ordering [R]espondent to remove all false info[rmation] from Petitioner’s rap sheet with L.T. Rhoades punished. Sec. 9181 [of CHRIA , 18 Pa. C.S. §9181 ]

. Petition for Review , ¶11.

In response, Respondent filed preliminary objections asserting the inclusion of scandalous or impertinent matter in the pleading ; insufficient specificity to the pleading ; legal insufficien cy (demurrer) ; and failure to exercise or exhaust a statutory remedy. P A .R.C IV .P. 1028 (a)(2), (3), (4), and (7). 3

2 18 Pa. C.S. § §91 01

- 9183.

3 The rule states, in relevant part, as follows: (a ) Preliminary objections may be filed by any party to an y pleading and are limited to the following grounds: * * * * (2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;3 In ruling on preliminary objections, we accept as true all well

- pleaded material allegations in the petit ion for review and any reasonable inferences
therefrom. Thomas v. Corbett , 90 A.3d 789, 794 (Pa. Cmwlth. 2014). “The Court, however, is not bound by legal conclusions, unwarranted inferences from facts, argumentative allegations, or expressions of opinio n encompassed in the petition for
review.” Id . We may sustain preliminary objections where the law makes clear that the petitioner cannot succeed on his claim, and we must resolve any doubt in favor of the petitioner. Id

.

We begin with Respondent’s prel iminary objection that Petitioner
failed to exhaust the statutory remedy available under CHRIA

. Generally, where a remedy is provided by statute, it must be pursued to the exclusion of other remedies.
Where t he statutory remedy is not adequate or complete, equity may provide relief

to prevent irreparable harm

. Pennsylvania State Chamber of Commerce v. Torquato , 125 A.2d 755, 766 (Pa. 1956)

.

CHRIA requires “every criminal justice agency within the
Commonwealth to maintain complete and accurate criminal history record
information [.]” 18 Pa. C.S. §9111

. Section 9151(a) of CHRIA state s that “[a] ny individual or his legal representative has the right to review, challenge, correct and appeal the accuracy and compl eteness of his criminal history record information. ”
18 Pa. C.S

. §9151 (a). In challenging the accuracy of the criminal history record , the individual must specify the errors and offer corrections

. 18 Pa. C.S. §9152(c).

(3) insufficient specificity in a pleading; (4) legal insufficiency of a pleading (demurrer); * * * * (7) failure to exercise or exhaust a statutory remedy [.] P A .R.C IV .P . 1028(a)(2), (3), (4), and (7)

.4

The criminal justice agency has 60 days to conduct a review of any challenge , and
it bears the burden of proving the accuracy of the record

. 18 Pa. C.S. §9152(d). Where it is established that a criminal history record is inaccurate, the criminal justice agency must cor rect the record

. 18 Pa. C.S. §9114. “If the challenge is ruled invalid, an individual has the right to appeal the decision to the Attorney General within 30 days of notification of the decision by the criminal justice agency,” and the Attorney General “shall conduct a hearing de novo in accordance with the Administrative Agency Law[, 2 Pa. C.S. §§501

- 508, 701

- 704 ] .” 18 Pa. C.S. §9152( e). In the instant matter, Respondent is a criminal justice agency within the
meanin g of CHRIA. 18 Pa. C.S. § 9102 (defining “criminal justice agency” as including, but not limited to, “organized State and municipal police departments”). The petition for review d oes not allege that Petitioner presented his challenge to the accuracy of hi s criminal record to Respondent , as required by Section 9152 of
CHRIA. 18 Pa. C.S. §9152

. Nor does the petition allege that the statutory remedies
in CHRIA for the correction of criminal history record information are inadequate.
Because Petitioner has failed to pursue the statutory remedy available to him under
CHRIA , we sustain Respondent’s preliminary objection raised under P A .R.C IV .P. 1028(a ) (7)

. The petition for review also alleges that Respondent knowingly and willfully placed false information in Petitioner’s criminal record
, in violation of substantive due process. “The substantive protections of due process are meant to protect citizens from arbitrary and irrational actions of the government.” Gresock v. City of Pittsburgh Civil Service Commission , 698 A.2d 163, 169 (Pa. Cmwlth. 1997) (citation omitted). “Preliminarily, for substantive due process rights to attach [,]5

there must first be the deprivation of a property right or o ther interest that is constitutionally protected.” Khan v. State Board of Auctioneer Examiners , 842 A.2d
936 , 946 (Pa. 2004). Here, the petition does not specify whether it is based upon the
Due Process Clause of the Fourteenth Amendment of the United St ates Constitution , U.S. C ONST

. amend. XIV, §1 , or Article I, Section 9 of the Pennsylvania
Constitution , P A

. C ONST

. art. I, §9 . However, substantive due process protections afforded under the United States Constitution and the Pennsylvania Constitution are analyzed the same and are , thus , coextensive. Griffin v. Southeastern Pennsylvania Transportation Authority , 757 A.2d 448, 452 (Pa. Cmwlth. 2000).

In the petition for review , Petitioner alleges that he requested access and review of his c riminal history record information, and Respondent provided him with a certified copy thereof

. The petition for review alleges there is erroneous information in that history , but it does not allege that Petitioner requested a correction from Respondent or pursued his remedy under Section 9151 (a) of CHRIA, 18 Pa. C.S

. §9151 (a). Stated otherwise, the petition for review does not
aver that Respondent has in any way restricted Petitioner’s “right to review, challenge, correct and appeal” his criminal history record information. Id

. Accordingly, it does not allege an arbitrary action of the government to deprive him of a right to correct his criminal history. Khan , 842 A.2d at 946. We co nclude that the petition does not state a substantive due process claim and sustain Respondent’s preliminary objection raised under P A .R.C IV .P. 1028 (a)(4) asserting legal insufficiency

.

Based on the foregoing, we sustain the preliminary objections assert ing failure to exhaust a statutory remedy under P A .R. C IV .P. 1028(a)( 7 ) and a demurrer6

under P A .R.C IV .P. 1028(a)(4) . Accordingly, we dismiss Petitioner’s petition for
review. 4

____________________________________________ MARY HANNAH LEAVITT, President Judge Emerita

4 Because we dismiss the petition for review based upon Petitioner’s failure to exhaust a statutory remedy and a demurrer, we n eed not address Respondent’ s other remaining preliminary objections.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Manuel Carrero, Jr., :

Petitioner :

: v. : No. 259 M .D. 2021
: Pa. State Police Central Repository, :

Respondent :

O R D E R AND NOW, this 12 th day of January, 2023 , Pennsylvania State Police Central Repository’s preliminary objections asserting a demurrer and failure to exercise or exhaust a statutory remedy are SUSTAINED. Manuel Carrero, Jr.’s
Petition for Review is DISMISSED.

______________________________ ______________ MARY HANNAH LEAVITT, President Judge Emerita