IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Endrikat, :

:

Petitioner :

:

 v. : No. 486 M.D. 2022

: Submitted: October 10, 2023

Pennsylvania Department of :

Corrections and Superintendent :

Mark Wahl, :

:

Respondents :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: December 20, 2023

Before this Court, in our original jurisdiction, are the Pennsylvania 

Department of Corrections’ and Superintendent Mark Wahl’s (collectively, the 

Department) Preliminary Objections in the nature of a demurrer (POs) to Robert 

Endrikat’s (Inmate) pro se Petition for Writ of Mandamus (Petition). For the 

foregoing reasons, we sustain the Department’s POs and dismiss the Petition. 

Inmate is currently incarcerated at State Correctional Institution (SCI) 

at Albion, but he was incarcerated at the SCI-Waymart during the events giving rise 
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to the present matter.1 Petition ¶1; Petitioner’s Response to Preliminary Objections 

¶1. Inmate is serving an aggregate term of 6 to 12 years’ imprisonment arising out 

of a conviction for sex offenses. Petition ¶6. Inmate avers that he reached his 

minimum sentencing date on June 6, 2019, and subsequently filed a parole 

application. Petition ¶14.

Consequently, Inmate alleges “[o]n or about November 15[,] 2018[,]

[the Pennsylvania Parole Board (Board)] issued a Parole Number and [s]cheduled a 

Parole Hearing date for March 6[,] 2019.” Petition ¶15. However, one SCIWaymart employee withdrew Inmate’s hearing date and cancelled the hearing, and 

another SCI-Waymart employee “refused to correct an error on [Inmate’s] yearly 

review. As a result, [Inmate] was not placed in the mandatory classes/programs in 

order to be eligible for parole. The Department . . . continue[s] to refuse [Inmate] 

access to the [Board] as [mandated] by statute[.]” Id. ¶¶16-17. Similarly, Inmate 

claims that SCI-Waymart employees have placed him on a two-year waiting list for 

mandatory prescribed programs and that Department employees “informed [him] 

that he will never be able to take the required courses and surely will ‘[m]ax out his 

sentence no matter what he does.’” Id. ¶¶20-21. Inmate contends he has exhausted 

all remedies available to him at law, and on September 22, 2022, he filed the instant

Petition seeking his release from confinement. Id. ¶19. Ultimately, Inmate seeks to 

compel the Department to release him from confinement. Id. Conclusion.

On February 22, 2023 the Department filed POs pursuant to 

Pa.R.Civ.P. 1028(a)(4), claiming that the Petition is legally insufficient. POs ¶16. 

In part, the Department argues that Inmate has no clear right to relief, because the 

decision to release him from confinement on parole is the sole province of the Board. 

1 On November 28, 2022, Inmate was transferred from SCI-Waymart to SCI-Albion. 

Petitioner’s Answer to Preliminary Objections ¶1. 
3

Id. ¶¶25-27. However, the Department also argues that Inmate’s allegations 

concerning its employees’ conduct are unsupported by factual averments, and thus 

fail to meet the pleading standard under Pa.R.Civ.P. 1019. Id. ¶¶42-48.

Specifically, the Department argues that Pa.R.Civ.P. 1028(a)(4) 

“provides that a [PO] may be filed for legal insufficiency of a pleading, i.e., a 

demurrer.” Respondents’ Brief in Support of their Preliminary Objections 

(Respondents’ Brief) at 11. As such, the Department contends that Inmate has failed 

to cite any authority which would give him a right to the relief he seeks. Id. at 12. 

Because Section 6132(a)(1)(i) of the Prisons and Parole Code, 61 Pa. C.S. 

§6132(a)(1)(i), grants the Board the exclusive power “[t]o parole and reparole, 

commit and recommit for violations of parole and to discharge from parole all 

persons sentenced by any court at any time to imprisonment in [an SCI,]” the 

Department is powerless to grant Inmate’s request. Respondents’ Brief at 13. 

Additionally, the Department claims that parole is a favor, such that inmate “has 

neither an absolute right to parole nor a liberty interest in receiving parole.” Id. at 

13 (citing Ughbanks v. Armstrong, 208 U.S. 481, 488 (1908); Keastead v. 

Pennsylvania Board of Probation and Parole, 514 A.2d 265, 267 (Pa. Cmwlth. 

1986); and Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 

1047 (Pa. Cmwlth. 1984)). “In other words, in Pennsylvania, a prisoner has no 

constitutionally protected liberty interest in being released from confinement prior 

to the expiration of his or her maximum term.” Respondents’ Brief at 13 (citing

Tubbs v. Board of Probation and Parole, 620 A.2d 584, 586 (Pa. Cmwlth. 1993)).

Moreover, the Department rejects Inmate’s attempts to direct the 

exercise of its discretion over sex offender treatment and counseling. Respondents’

Brief at 14. The Department contends that under Section 9718.1(d) of the 
4

Sentencing Code, 42 Pa. C.S. §9718.1(d), there is no legal right to participate in the 

Department’s counseling and therapy programs or to be paroled, and, likewise, in 

Clark v. Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 2007), our Court held that 

“[m]andamus is not used to direct the exercise of judgment or discretion of an 

official in a particular way.” Respondents’ Brief at 14. Nevertheless, the 

Department notes that Inmate is not without recourse, because Inmate “does have 

the benefit of the [Department’s] inmate grievance process to seek review of the 

official decision surrounding his institutional counseling and programming 

requirements.” Respondents’ Brief at 14. 

Finally, the Department argues that Inmate does not sufficiently plead 

the facts under Pa.R.Civ.P. 1019, because Inmate failed to provide the Department 

with documentation establishing: (1) whether an SCI-Waymart employee withdrew 

or cancelled Inmate’s Parole hearing date, which is determined by the Board; (2) that 

an SCI-Waymart employee refused to correct an error preventing Inmate’s yearly 

review and eligibility for mandatory classes and programs; and (3) that Department 

employees are preventing Inmate from communicating with the Board. 

Respondents’ Brief at 16.

Conversely, Inmate first recognizes that Pa.R.Civ.P. 1028(a)(4) permits 

a preliminary objection to be sustained where the pleading is legally insufficient. 

Petitioner’s Brief in Opposition of Respondents’ Preliminary Objections 

(Petitioner’s Brief) at 14. However, he argues that “there is no doubt . . . that the 

law will permit recovery[,]” because he has a right to: (1) be enrolled in courses and 

to complete them prior to his minimum sentencing date,2 which he was denied; and 

2 As the Department aptly noted, Section 9718.1(d) of the Sentencing Code, 42 Pa. C.S. 

§9718.1(d), states:

(Footnote continued on next page...)
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(2) apply for parole and have his parole be fairly considered. Id. Further, Inmate 

argues that “[i]t is the duty of Department and [the Board] to ensure [p]arole and 

[p]arole [r]elease are [carried] out in an EFFICIENT and TIMELY MANNER.” 

Id. at 15 (emphasis in original). Taken together, he contends he possesses a clear 

legal right to enforce his release from confinement in SCI-Albion. Id. 

Initially, we note:

In ruling on preliminary objections, we must accept 

as true all well-pleaded material allegations in the 

[Petition], as well as all inferences reasonably deduced 

therefrom. [Meier v. Maleski, 648 A.2d 595, 600 (Pa. 

Cmwlth. 1994)]. The Court need not accept as true 

conclusions of law, unwarranted inferences from facts, 

argumentative allegations, or expressions of opinion. Id. 

No right of action created. --Notwithstanding any other provision of 

law to the contrary, this section shall not be construed to confer any 

legal right upon any individual, including an individual required to 

participate in the [D]epartment’s programs of counseling or therapy 

for incarcerated offenders, seeking to:

(1) participate and attend the program provided in subsection (a) 

at a time of the individual’s own choosing;

(2) modify the contents of the program provided in subsection 

(a);

(3) be paroled; or

(4) file any other cause of action in any court regarding the 

program provided in subsection (a). 

Respondents’ Brief at 14. Therefore, under the Sentencing Code, we must reject Inmate’s 

argument that he has a right to be enrolled in any of the Department’s counseling programs. See 

Stodghill v. Pennsylvania Department of Corrections, 150 A.3d 547, 553 (Pa. Cmwlth. 2016) 

(“Because the General Assembly has expressly prohibited [inmate] from seeking to modify the 

Department’s sex offender treatment program or to require his parole under Section 9718.1 of the 

Sentencing Code, this Court lacks the authority to issue an order directing otherwise.”).
6

In order to sustain preliminary objections, it must appear 

with certainty that the law will not permit recovery, and 

any doubt should be resolved by a refusal to sustain them. 

Id.

A preliminary objection in the nature of a demurrer 

admits every well-pleaded fact in the [Petition] and all 

inferences reasonably deducible therefrom. [Clark, 918 

A.2d at 158 n.4]. 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. Id. When ruling on a 

demurrer, a court must confine its analysis to the 

[Petition]. Id.

Torres v. Beard, 997 A.2d, 1242, 1245 (Pa. Cmwlth. 2010). Further, “[m]andamus 

is an extraordinary writ designed to compel performance of a ministerial act or 

mandatory duty where there exists a clear legal right in the [petitioner], a 

corresponding duty in the [respondent], and want of any other adequate and 

appropriate remedy.” Sheffield v. Department of Corrections, 894 A.2d 836, 840 

(Pa. Cmwlth. 2006), aff’d, 934 A.2d 1161 (Pa. 2007).

In light of the above, we agree with the Department, because it is the 

Board, rather than the Department, that has exclusive jurisdiction over parole 

matters. Section 6132(a)(1)(i) of the Parole Code, 61 Pa. C.S. §6132(a)(1)(i), 

provides: “[t]he [B]oard shall have exclusive power [t]o parole and reparole, commit 

and recommit for violations of parole and to discharge from parole all persons 

sentenced by any court at any time to imprisonment in [an SCI] pursuant to 42 

Pa. C.S. §9762.” To that end, the Board’s decision to grant or deny parole is purely 

discretionary, and we may, at most, direct that discretion be exercised, not the 

particular result of how discretion is exercised. Coady v. Vaughn, 770 A.2d 287, 

290 (Pa. 2001). Furthermore, it is well settled that parole is not a right, but a gift. 

“[P]arole is a matter of grace and mercy shown to a prisoner who has demonstrated 
7

to the [Board’s] satisfaction his future ability to function as a law-abiding member 

of society upon release before the expiration of the prisoner’s maximum sentence.” 

Rogers v. Pennsylvania Board of Probation and Parole, 724 A.2d 319, 322-23 (Pa. 

1999) (citing Commonwealth ex rel. Sparks v. Russell, 169 A.2d 884, 885 (Pa. 

1961)).

3

 

Here, at bottom, Inmate is asking us to order the Department to place 

him on parole and release him from confinement. Petitioner’s Brief at 13, 17. 

However, we cannot grant this relief. As discussed above, the Department is 

powerless to grant parole because that exclusive authority rests with the Board, and, 

regardless, Inmate possesses no clear legal right to parole. Thus, whatever the 

veracity of Inmate’s claims may be, his Petition is legally insufficient because he 

fails to state a claim upon which relief can be granted.

Accordingly, we sustain the Department’s POs and dismiss Inmate’s 

Petition.4

MICHAEL H. WOJCIK, Judge

3 To be clear, while no prisoner has a right to parole, all prisoners have the “right to apply 

for parole at the expiration of his or her minimum term and to have that application considered by 

the Board.” Rogers, 724 A.2d at 287 n. 2 (citing Banks v. Board of Probation and Parole, 4 Pa. 

Cmwlth. 197, 200 (1971)). 

4 On August 29, 2023, Petitioner filed a Motion to Rule in this Court reiterating his wish 

for this Court to grant his Petition and order his release from confinement. Based on our 

disposition, the Motion is dismissed as moot.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Endrikat, :

:

Petitioner :

:

 v. : No. 486 M.D. 2022

: 

Pennsylvania Department of :

Corrections and Superintendent :

Mark Wahl, :

:

Respondents :

O R D E R

AND NOW, this 20th day of December, 2023, the Respondents’ 

preliminary objections are SUSTAINED, the petition for review filed in the abovecaptioned matter is DISMISSED, and the Petitioner’s August 29, 2023 Motion to 

Rule is DISMISSED as moot. 

MICHAEL H. WOJCIK, Judge