IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Manning Stodghill, :

Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 363 M.D. 2015

Respondent : Submitted: January 22, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY 

JUDGE COVEY1FILED: November 23, 2016

David Manning Stodghill (Stodghill), pro se, filed a petition for writ of 

mandamus (Petition), wherein he asks this Court to order the Pennsylvania 

Department of Corrections (Department) to interpret Section 9718.1(b) of the 

Sentencing Code, 42 Pa.C.S. § 9718.1(b), to require participation in, rather than 

completion of, the Department’s sex offender treatment program to render an inmate 

eligible for parole consideration. In response, the Department filed preliminary 

objections to Stodghill’s Petition seeking to dismiss the Petition under Pennsylvania 

Rule of Civil Procedure No. 1028(a)(4) for failure to state a cause of action upon 

which relief may be granted. The Department’s preliminary objections are currently 

before the Court.

This Court’s review of preliminary objections is limited to the pleadings. 

Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Natural Res., 

909 A.2d 413 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007). 

 

1

This case was reassigned to the authoring judge on October 19, 2016.
2

[This Court is] required to accept as true the well-pled 

averments set forth in the . . . complaint, and all inferences 

reasonably deducible therefrom. Moreover, the [C]ourt 

need not accept as true conclusions of law, unwarranted 

inferences from facts, argumentative allegations, or 

expressions of opinion. In order to sustain preliminary 

objections, it must appear with certainty that the law will 

not permit recovery, and, where any doubt exists as to 

whether the preliminary objections should be sustained, the 

doubt must be resolved in favor of overruling the 

preliminary objections.

Id. at 415-16 (citations omitted). 

According to the Petition, Stodghill is currently incarcerated in the State 

Correctional Institution at Somerset (SCI-Somerset), Pennsylvania. Stodghill averred 

that the Department is intentionally “misrepresenting” the wording of Section 9718.1 

of the Sentencing Code, Petition at ¶ 2, which states in pertinent part:

(a) General rule.--A person . . . shall attend and 

participate in a [Department] program of counseling or 

therapy designed for incarcerated sex offenders [(sex 

offender treatment program)] if the person is incarcerated 

in a [s]tate institution for any of the following provisions 

under [the Crimes Code] (relating to crimes and offenses):

(1) Any of the offenses enumerated in Chapter 31 (relating 

to sexual offenses) if the offense involved a minor under 18 

years of age.[2]

. . . .

 

2 Although not specifically referenced in the Petition, we can reasonably infer from 

Stodghill’s claims that the offense for which he is incarcerated is one of the enumerated offenses. 

In his brief, Stodghill confirmed that he is serving a 4 to 8-year sentence for aggravated indecent 

assault under Section 3125(a)(7) of the Crimes Code, 18 Pa.C.S. § 3125(a)(7), with a February 1, 

2014 minimum sentence release date and a February 1, 2018 maximum sentence release date. See

Stodghill Br. at 4. See also Stodghill v. Pa. Bd. of Prob. & Parole, 123 A.3d 798 (Pa. Cmwlth. 

2015) (wherein this Court recited that Stodghill is serving a 4 to 8-year sentence for the aggravated 

indecent assault of a 12-year-old girl. “Aggravated indecent assault is one of the offenses 

enumerated in Chapter 31 of Title 18.” Id. at 799 n.2). Stodghill also admitted in his brief that he 

was required to undergo sex offender treatment, and that he participated in 15 sessions (38 hours). 

See Stodghill Br. at 4. 
3

(b) Eligibility for parole.--For an offender required to 

participate in the program under subsection (a), all of the 

following apply:

(1) The offender shall not be eligible for parole unless 

the offender has:

(i) served the minimum term of imprisonment;

(ii) participated in the program under subsection 

(a); and

(iii) agreed to comply with any special conditions of 

parole imposed for therapy or counseling for sex 

offenders, including sexually violent predators.

42 Pa.C.S. § 9718.1 (text emphasis added). Stodghill contends in the Petition that 

since Section 9718.1(b)(1)(ii) of the Sentencing Code does not require completion of, 

but rather participation in the Department’s sex offender treatment program, an 

inmate’s attendance at some sessions is sufficient to meet the parole eligibility 

requirement.

The Department objects to Stodghill’s standing to bring this action. See

Preliminary Objections ¶ 15. Specifically, the Department argues that, since the 

allegations in the Petition are general to “offenders who have participated in but not 

completed the programs [and who] are deemed ineligible for parole consideration and 

removed from the parole eligibility docket,” it is not clear that Stodghill’s parole 

eligibility has been affected. Petition at ¶ 5; see also Petition at ¶¶ 2, 10, 12, 16 and 

the relief clause. We disagree. 

One seeking judicial resolution of a dispute must satisfy a 

threshold requirement of standing to bring the action by 

demonstrating a substantial, direct and immediate interest in 

the outcome of the litigation. Pittsburgh Palisades Park, 

LLC v. Commonwealth, . . . 888 A.2d 655 ([Pa.] 2005). A 

substantial interest is an interest exceeding the interest of all 

citizens in procuring obedience to the law; an interest is 

direct if there is a causal connection between the asserted 

violation and the harm complained of; an interest is 
4

immediate if the causal connection is neither remote nor 

speculative. City of Phila[.] v. Commonwealth, . . . 838 

A.2d 566 ([Pa.] 2003).

Finn v. Rendell, 990 A.2d 100, 103 (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. Mandamus is not 

available to establish legal rights, but is appropriate only to 

enforce rights that have been established. 

Wilson v. Pa. Bd. of Prob. & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008)

(citations omitted). “Where the party acquires an interest special to himself as 

distinguished from that of the general public, he is able to bring mandamus 

proceedings in his own name.” Douros v. Newtown Twp., 530 A.2d 1002, 1003 (Pa. 

Cmwlth. 1987).

Although the majority of the allegations in the Petition refer generally to 

ineligible offenders, Stodghill specifically pled in the Petition:

1. [Stodghill] is an inmate under the care[,] custody and 

control of the [Department,] housed at SCI-Somerset.

2. [The Department] is intentionally misrepresenting the 

wording of [Section] 9718.1(b)(1)(ii) [of the Sentencing 

Code] to the damage of [Stodghill] and other offenders 

housed by [the Department].

Petition at 1 (emphasis added). Moreover, this Court has held that “[t]he allegations 

of a pro se complainant are held to a less stringent standard than that applied to 

pleadings filed by attorneys. If a fair reading of the complaint shows that the 

complainant has pleaded facts that may entitle him to relief, the preliminary 

objections will be overruled.” Danysh v. Dep’t of Corr., 845 A.2d 260, 262-63 (Pa. 

Cmwlth. 2004), aff’d, 881 A.2d 1263 (Pa. 2005) (citation omitted; emphasis added). 
5

Because our fair reading of the Petition reflects that Stodghill is an

inmate who may be aggrieved (i.e., denied parole consideration) by the Department’s

interpretation of Section 9718.1(b)(1)(ii) of the Sentencing Code, we hold that the 

Petition demonstrates that he has a “substantial, direct and immediate interest in the 

outcome of the litigation,” and thus has standing.3 Finn, 990 A.2d at 103. 

Accordingly, the Department’s objection to Stodghill’s standing is overruled. 

The Department also objects to the Petition on grounds that Stodghill 

fails in the Petition “to state a claim relative to his allegations that the Department has 

intentionally misrepresented and misapplied [Section 9718.1(b)(1)(ii) of the 

Sentencing Code], and thus inappropriately caused [Stodghill] to be disqualified for 

parole eligibility.” Department Br. at 3, 6; see also Preliminary Objections ¶¶ 16-22. 

The Department specifically contends that inmates do not have the right to parole, 

and it is the Pennsylvania Board of Probation and Parole (Board), rather than the 

Department, that makes parole eligibility and rehabilitative programming 

determinations. We agree.

Section 6132(a)(1)(i) of the Prisons and Parole Code (Parole Code), 61 

Pa.C.S. § 6132(a)(1)(i), gives the Board the exclusive power to parole inmates. 

Pursuant to Section 6137(a) of the Parole Code, 61 Pa.C.S. § 6137(a), the Board has 

the discretion to parole any inmate after the expiration of his minimum sentence 

release date. Under Section 6137(g) of the Parole Code, 61 Pa.C.S. § 6137(g), the 

Department initiates the parole process by identifying parole-eligible inmates for the 

 

3 Our conclusion is further supported by Stodghill’s admission to the Department’s averment 

in the preliminary objections that “[i]n plain language, [Stodghill] seems to aver that his

participation in required sex offender programming, rather than completion of such programming, 

should be enough to trigger his parole eligibility pursuant to [Section 9718.1(b)(1)(ii) of the 

Sentencing Code].” Prelim. Obj. ¶ 7 (emphasis added); see Stodghill’s Ans. to Prelim. Obj. ¶ 6.

Stodghill also stated in his brief that he was required to participate in the Department’s sex 

offender treatment program, and that despite his participation in 15 sessions (38 hours), the 

Pennsylvania Board of Probation and Parole has never interviewed him to determine whether he is 

eligible for parole. See Stodghill Br. at 4.
6

Board’s consideration. However, the Department is constrained by Section 

9718.1(b)(1)(ii) of the Sentencing Code from certifying as eligible, offenders who 

have not attended and participated in the Department’s sex offender treatment 

program. 

 Stodghill’s claim that the Department erred by interpreting Section 

9718.1(b)(1)(ii) of the Sentencing Code to require completion of the Department’s 

sex offender treatment program in order to be eligible for parole consideration by the 

Board is contrary to the law. 

First, in Section 9718.1(c) of the Sentencing Code, the General 

Assembly mandated that “[t]he [D]epartment shall develop and provide the [sex 

offender treatment program]. The [D]epartment shall have the sole discretion

with respect to counseling or therapy program contents and administration, 

including the scheduling of an offender’s attendance and participation.” 42 

Pa.C.S. § 9718.1(c) (emphasis added). Thus, although the Board ultimately 

determines whether an inmate should be paroled, the Department establishes the 

contents of and is responsible for the inmate’s attendance and participation in the 

program that renders the inmate parole eligible in the first instance.

Moreover, 

[t]he common law writ of mandamus lies to compel an 

official’s performance of a ministerial act or a mandatory 

duty. McGill v. P[a.] Dep[’]t of Health, Office of Drug [&]

Alcohol Programs, 758 A.2d 268, 270 (Pa. Cmwlth. 2000). 

‘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). Mandamus requires ‘[1] a clear legal right in the 

plaintiff, [2] a corresponding duty in the defendant, and [3] 

a lack of any other adequate and appropriate remedy at 

law.’ Crozer Chester Med[.] C[tr.] v. . . . Bureau of 

Workers’ Comp[.], Health Care Serv[s.] Review Div[.], . . .

22 A.3d 189, 193 ([Pa.] 2011) (citations omitted). 
7

Mandamus is not available to establish legal rights but only

to enforce rights that have been established. 

Sinkiewicz v. Susquehanna Cnty. Bd. of Comm’rs, 131 A.3d 541, 546 (Pa. Cmwlth. 

2015). “Mandamus is not used to direct the exercise of judgment or discretion of 

an official in a particular way.” Clark v. Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 

2007) (emphasis added). Further, “[i]n the context of a discretionary act, a court can 

issue such a writ to mandate the exercise of [its] discretion in some fashion, but not to 

require that it be exercised in a particular manner.” Sever v. Dep’t of Envtl. Res., 514 

A.2d 656, 660 (Pa. Cmwlth. 1986) (quoting U.S. Steel Corp. v. Papadakos, 437 A.2d 

1044, 1046 (Pa. Cmwlth. 1981)). Under circumstances in which the Department has 

the sole discretion to determine what sex offender treatment program requirements 

Stodghill must satisfy, this Court cannot order the Department to place Stodghill on 

the parole eligibility list.

Second, Section 9718.1(d) of the Sentencing Code provides: 

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 [sex offender treatment 

program] at a time of the individual’s own choosing;

(2) modify the contents of the [sex offender treatment 

program];

(3) be paroled; or

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

the [sex offender treatment program].

42 Pa.C.S. § 9718.1(d) (text emphasis added). Because the General Assembly has 

expressly prohibited Stodghill from seeking to modify the Department’s sex offender 
8

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.

Third, in Stodghill v. Pennsylvania Board of Probation and Parole, 123 

A.3d 798 (Pa. Cmwlth. 2015), Stodghill sought an order from this Court to compel 

the Board to consider him for parole because he had attended 15 of the 120 sex 

offender treatment program sessions and, thus, participated in the program, despite 

that his participation was deemed unsatisfactory, he failed to complete required 

assignments, and often slept or was disruptive during the sessions. This Court 

expressly held that Stodghill’s mere participation in the Department’s sex offender 

treatment program failed to satisfy Section 9718.1(b)(1)(ii) of the Sentencing Code. 

Accordingly, this Court denied Stodghill’s motion for judgment on the pleadings 

because he “failed to show a clear right to relief as a matter of law.”4 Id. at 801. 

The Stodghill Court explained:

As we noted in Evans v. Pennsylvania Board of Probation

[and] Parole, 820 A.2d 904 (Pa. Cmwlth. 2003):

[T]he stated, actual purpose of [Section 9718.1]

[of the Sentencing Code] is the protection of the 

public. As set forth in the [Sentencing Code], the 

General Assembly declared:

It is the intent of the General Assembly to 

protect our most vulnerable and precious 

citizens, the Commonwealth’s children, 

from the ravages of sexual abuse. Because 

sexual crimes committed against children are 

among the most heinous imaginable, the 

General Assembly declares it to be in the 

public interest to enact this act.

H.B. 47, 184th Gen. Assem., 1999 Reg. Sess. (Pa.

2000).

 

4

The fact that Stodghill involved a motion for judgment on the pleadings in an action 

against the Board, does not affect its precedential value in this case. 
9

[Evans, 820 A.2d] at 912. Allowing any level of 

attendance, however minimal or unsatisfactory, to meet 

the requirements of Section 9718.1 [of the Sentencing 

Code] would entirely frustrate this announced legislative 

purpose. Only where the rehabilitative goal of the program 

has been achieved can there be any hope of preventing 

future abuse of children, and absent successful participation 

in the plan of therapy, there can be little prospect of 

rehabilitation.

Stodghill, 123 A.3d at 800-01 (emphasis added). This Court recognized in Stodghill:

[W]e note that in other contexts this [C]ourt has repeatedly 

validated the denial of parole for failure to complete

rehabilitative programs. See, e.g., Wilson v. Pa. Bd. of 

Prob. & Parole, 942 A.2d 270, 273-74 (Pa. Cmwlth. 2008) 

(observing that, ‘requiring an inmate to complete 

institutional programming that requires the inmate to admit 

guilt is not conscience shocking. . . .’); Weaver v. Pa. Bd. of 

Prob. & Parole, 688 A.2d 766, 779 (Pa. Cmwlth. 1997) 

(stating that, ‘failure to successfully complete [a treatment] 

program is a valid reason for denying parole. . . .’).

Stodghill, 123 A.3d at 800 n.3.

Finally, this Court must defer to the Department’s interpretation of 

Section 9718.1 of the Sentencing Code. This Court has held: “The touchstone of 

interpreting statutory language is to ascertain and effectuate the intent of the 

legislature. Section 1921 of the Statutory Construction Act of 1972 (SCA), 1 Pa.C.S. 

§ 1921(a) . . . .” Summit Sch., Inc. v. Dep’t of Educ., 108 A.3d 192, 196-97 (Pa. 

Cmwlth. 2015).

It is presumed that the legislature ‘does not intend a result 

that is absurd, impossible of execution or unreasonable.’ 

Section 1922(1) of the SCA, 1 Pa.C.S. § 1922(1). Thus, 

‘[s]tatutes should receive a sensible construction and 

should be construed[,] if possible[,] so that absurdity 

and mischief may be avoided.’ Capital Academy Charter 

Sch[.] v. Harrisburg Sch[.] Dist[.], 934 A.2d 189, 193 (Pa. 

Cmwlth. 2007).
10

Summit Sch., Inc., 108 A.3d at 197 (emphasis added). This Court has further 

declared:

As suggested by Section 1921(c)(8) of the [SCA], when a 

statute is ambiguous, courts generally defer to the 

expertise of the agency upon which the General 

Assembly has vested enforcement or interpretive

responsibilities and, consequently, should accept the 

agency’s interpretation of ambiguous statutory language. 

Velocity Express v. Pa. Human Relations Comm’n, 853 

A.2d 1182, 1185 (Pa. Cmwlth. 2004) (Velocity). When an 

agency’s interpretation is entitled to such deference, courts 

will defer to such proposed interpretation unless an 

agency’s interpretation of a statute is erroneous or 

‘frustrates legislative intent.’ Id. (quoting Rosen v. 

Bureau of Prof’l [&] Occupational Affairs, 763 A.2d 962, 

968 (Pa. Cmwlth. 2000) . . . . ). 

Packer v. Bureau of Prof’l & Occupational Affairs, State Bd. of Nursing, 99 A.3d 

965, 969 (Pa. Cmwlth. 2014)5(emphasis added). 

Here, the General Assembly required Stodghill to “attend and 

participate in” the Department-established sex offender treatment program. 42 

Pa.C.S. § 9718.1(a) (emphasis added). The Department has “the sole discretion” to 

specify how many sessions Stodghill must attend and what he must do while in 

attendance at the sessions. 42 Pa.C.S. § 9718.1(c) (emphasis added). Because the 

Department-established program required Stodghill to attend and participate in 120 

counseling and therapy sessions, this Court’s order that his attendance at only 15 

sessions during which he did not participate, would make a mockery of the statute 

and its purpose.6 Accordingly, the Department did not err by interpreting Section 

 

5

Packer has been overruled on other grounds by McGrath v. Bureau of Prof’l & 

Occupational Affairs, State Bd. of Nursing (Pa. Cmwlth. No. 1001 C.D. 2015, filed August 24, 

2016).

6 Although it is not clear based solely on Stodghill’s Petition what form of counseling and/or 

therapy Stodghill’s sex offender treatment program required, sleeping or being disruptive is not the 

sort of participation the General Assembly intended “to protect our most vulnerable and precious 
11

9718.1(b)(1)(ii) of the Sentencing Code to require Stodghill’s attendance and 

participation in the Department’s sex offender treatment program to be eligible for 

the Board’s parole consideration. 

Since the Department has properly interpreted Section 9718.1(b)(1)(ii) 

of the Sentencing Code to require Stodghill’s attendance and participation in the 

Department’s sex offender treatment program to be eligible for the Board’s parole 

consideration, he has no legal rights to enforce and, thus, “the law will not permit 

recovery.” Pa. State Lodge, Fraternal Order of Police, 909 A.2d at 416. Because 

Stodghill’s Petition fails to state a claim upon which relief may be granted, the 

Department’s demurrer is sustained.

Based upon the foregoing, although the Department’s preliminary 

objection to Stodghill’s standing is overruled, the Department’s preliminary objection 

based on Stodghill’s failure to state a viable mandamus claim against the Department

is sustained. Accordingly, Stodghill’s Petition is dismissed.

___________________________

ANNE E. COVEY, Judge

 

citizens, the Commonwealth’s children, from the ravages of sexual abuse.” Stodghill, 123 A.3d at 

800-01. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Manning Stodghill :

Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 363 M.D. 2015

Respondent :

O R D E R

AND NOW, this 23rd day of November, 2016, the Pennsylvania 

Department of Corrections’ preliminary objections to David Manning Stodghill’s 

petition for writ of mandamus (Petition) are overruled in part and sustained in part, 

and the Petition is dismissed.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Manning Stodghill, :

Petitioner :

:

v. : No. 363 M.D. 2015

: Submitted: January 22, 2016

Pennsylvania Department of :

Corrections, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

CONCURRING OPINION

BY PRESIDENT JUDGE LEAVITT FILED: November 23, 2016

I agree with the majority’s well-reasoned opinion. Section 

9718.1(b)(1)(ii) of the Sentencing Code1does not require completion of the 

Department’s sex offender treatment program in order to be placed on the list of 

inmates eligible for parole consideration by the Board of Probation and Parole. 

 

1

The Sentencing Code states, in pertinent part:

(b) Eligibility for parole.--For an offender required to participate in the program 

under subsection (a), all of the following apply:

(1) The offender shall not be eligible for parole unless the offender 

has:

(i) served the minimum term of imprisonment;

(ii) participated in the program under subsection 

(a); and

(iii) agreed to comply with any special conditions 

of parole imposed for therapy or counseling for sex 

offenders, including sexually violent predators.

42 Pa. C.S. §9718.1(b) (emphasis added). Subsection (a) states that “[a] person ... shall attend 

and participate in a Department of Corrections program of counseling or therapy designed for 

incarcerated sex offenders if the person is incarcerated in a State institution” for an enumerated 

offense. 42 Pa. C.S. §9718.1(a) (emphasis added).
MHL-2

However, an inmate must “attend and participate” in a program before the 

Department can certify him as parole-eligible. 42 Pa. C.S. §9718.1(a). Stodghill, 

who attended only a fraction of his scheduled classes and either slept or was

disruptive while in attendance, did not satisfy Section 9718.1(b)(1)(ii). Thus, he 

cannot establish the clear right to relief necessary for a writ of mandamus.

I write separately to note that the Department’s refusal to certify 

Stodghill as eligible for parole will trigger his right to pursue a grievance. The

administrative remedies available in state correctional institutions are set forth in 

the Department’s Grievance Policy and regulations. Specifically, Section 93.9 of 

the Department’s regulations establishes 

an inmate grievance system which will permit any inmate to 

seek review of problems which the inmate experiences during 

the course of confinement. The system will provide for review 

and resolution of inmate grievances at the most decentralized 

level possible. It will also provide for review of the initial 

decision making and for possible appeal to the Central Office of 

the Department.

37 Pa. Code §93.9. According to the Commonwealth’s Inmate Grievance System 

Procedures Manual and the Department’s Inmate Handbook,

the inmate grievance process begins with the filing of a 

grievance with the Facility Grievance Coordinator.... ‘The 

[process] requires an inmate who has received an initial 

determination on his grievance to appeal to the Superintendent 

and, thereafter, seek final review with [the Department]. If the 

inmate fails to complete each of these steps, he fails to exhaust 

his administrative remedies.’ Kittrell v. Watson, 88 A.3d 1091, 

1095 (Pa. Cmwlth. 2014).

Morgalo v. Gorniak, 134 A.3d 1139, 1150-51 (Pa. Cmwlth. 2016). Although a

final decision on a grievance is not appealable to this Court, a prisoner may bring 

an action in this Court’s original jurisdiction if he alleges a violation of a protected 
MHL-3

constitutional right. Bronson v. Central Office Review Committee, 721 A.2d 357, 

359 (Pa. 1998).

2

The Parole Board decides whether to grant or deny parole to a sex 

offender, and his meaningful participation in a program can be a factor in this 

decision. With this holding, we shift the review of participation in a sex offender

program from the Parole Board to the Department, which may have consequences

not intended by the Department. Every grievance triggers litigation, with multiple 

levels of administrative review that culminates in a decision that may trigger 

further litigation in this Court and, ultimately, the Pennsylvania Supreme Court on 

direct appeal. It may prove difficult for the Parole Board to ignore a decision by a 

Department hearing examiner or a court that has already examined a prisoner’s 

conduct for purposes of Section 9718.1.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge

 

2

The Supreme Court explained that “[u]nless ‘an inmate can identify a personal or property 

interest ... not limited by Department [of Corrections] regulations and which has been affected by 

a final decision of the [D]epartment’ the decision is not an adjudication subject to the court’s 

review.” Bronson, 721 A.2d at 359 (quoting Lawson v. Department of Corrections, 539 A.2d 69, 

71 (Pa. Cmwlth. 1988)).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Manning Stodghill, :

: No. 363 M.D. 2015

Petitioner : Submitted: January 22, 2016

:

v. :

:

Pennsylvania Department :

of Corrections, :

:

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

DISSENTING OPINION

BY SENIOR JUDGE FRIEDMAN FILED: November 23, 2016

Because I believe that the majority’s interpretation of section 9718.1 of 

the Sentencing Code, 42 Pa. C.S. §9718.1, violates the Statutory Construction Act of 

1992 (Act), 1 Pa. C.S. §§1501-1991, I respectfully dissent.

Stodghill filed a petition for writ of mandamus, asking this court to 

direct Department to interpret 42 Pa. C.S. §9718.1(b), according to its plain meaning 

and consider him parole-eligible because he has participated in a sex offender 

treatment program. Department filed preliminary objections, seeking to dismiss the 

petition under Pa. R.C.P. No. 1028(a)(4) for failure to state a cause of action upon 

which relief can be granted.

 
RSF - 2 -

In ruling on preliminary objections in the nature of a demurrer, this court 

must accept as true all well-pleaded material facts and all inferences reasonably 

deducible therefrom. Barndt v. Pennsylvania Department of Corrections, 902 A.2d 

589, 592 (Pa. Cmwlth. 2006). The Department initially argues that Stodghill lacks 

standing. The majority correctly decides, based on a fair reading of the petition, that 

Stodghill is aggrieved by the Department’s interpretation of section 9718.1(b)(1)(ii)

of the Sentencing Code because it denied him placement on the parole-eligibility 

docket. Stodghill’s petition demonstrates that he has standing based on “a 

substantial, direct, and immediate interest in the outcome of the litigation.” Pittsburgh 

Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 660 (Pa. 2005). 

I disagree with the majority, however, that Stodghill failed to state a 

claim against Department. Section 9718.1(b)(1)(ii) of the Sentencing Code provides 

that a sex offender is not eligible for parole unless he has “participated” in a sex 

offender program. Stodghill contends that he has attended and participated in 15 

sessions of high-intensity sex offender programming.1 (Stodghill Ex. C.) Despite 

Stodghill’s participation, the Department did “not include[] [him] on the [parole] 

docket.” (Id.) Unlike the majority, I believe Stodghill has pleaded facts that may 

entitle him to relief, i.e., placement on the parole-eligibility list. 

 

1

The majority states that pursuant to 42 Pa. C.S. §9718.1(c), the Department has the sole 

discretion to specify how many sessions Stodghill must attend and what he must do while in the 

sessions. (Maj. Op. at 10.) The majority then notes that the Department’s program required 

Stodghill to attend and participate in 120 sessions. (Id.) Contrary to the majority’s assertion, 

section 9718.1(c) of the Sentencing Code does not give the Department sole discretion to specify 

the number of sessions an offender must attend. Rather, it gives the Department “sole discretion” 

only as to the contents and administration, “including the scheduling of an offender’s attendance 

and participation.” 42 Pa. C.S. §9718.1(c). 
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Section 9718.1(b)(1)(ii) of the Sentencing Code states that an “offender 

[of an enumerated offense] shall not be eligible for parole unless the offender has . . . 

participated in the program” for sex offenders. 42 Pa. C.S. §9718.1(b)(1)(ii) 

(emphasis added). A sex offender is required to “attend and participate in a . . . 

program . . . for . . . sex offenders.” 42 Pa. C.S. §9718.1(a) (emphasis added). 

“When the words of a statute are clear and free from all ambiguity, the 

letter of it is not to be disregarded under the pretext of pursuing its spirit.” Section 

1921(b) of the Act, 1 Pa. C.S. §1921(b). Here, the statute is clear and free from 

ambiguity. The statute requires certain offenders to “attend and participate” in a 

Department program for sex offenders. 42 Pa. C.S. §9718.1(a). The statute then 

states that such offender is not eligible for parole unless he “participated” in the 

program. 42 Pa. C.S. §9718.1(b)(1)(ii).

Section 1921(c)(8) of the Act, 1 Pa. C.S. §1921(c)(8) states that “[w]hen 

the words of the statute are not explicit” the intention may be ascertained by 

considering “[l]egislative and administrative interpretations.” However, the words of 

section 9718.1 of the Sentencing Code are clear and unambiguous; they require only

attendance and participation in, not completion of, a sex offender program. The 

majority errs in ignoring the clear and unambiguous words of the statute and relying 

on the Department’s interpretation.

I do not suggest that an inmate who participates in a sex offender 

program has an automatic right to parole. As the majority correctly states, the Board 

has the exclusive power to parole inmates. See 61 Pa. C.S. §6132(a)(1)(i). However, 
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as the majority also correctly points out, it is the Department that “initiates the parole 

process by identifying parole-eligible inmates for the Board’s consideration.” (Maj. 

Op. at 5-6.) See 61 Pa. C.S. §6137(g)(1) and (2).

In Stodghill v. Pennsylvania Board of Probation and Parole, 123 A.3d 

798, 799 (Pa. Cmwlth. 2015) (Stodghill I),

2 Stodghill filed a motion for disposition, 

which this court treated as a petition for writ of mandamus, asking this court to order 

the Board to consider him for parole or order his release. Stodghill argued that he 

satisfied the mandatory condition for parole eligibility because he “participated” in 

the sex offender program. Id. This court agreed with the Board’s argument that 

Stodghill’s level of participation did not establish a clear right to relief as a matter of 

law and denied his motion for judgment on the pleadings. Id. at 800-01. 

Stodghill I involved a mandamus action against the Board, which is 

vested with discretion to parole only those inmates identified to it by the Department 

as parole eligible. “[M]andamus will not lie to compel a discretionary act.” 

Cimaszewski v. Board of Probation and Parole, 868 A.2d 416, 422 (Pa. 2005). In 

contrast, Stodghill’s present petition for writ of mandamus is against the Department, 

which, unlike the Board, is not vested with discretion in parole matters. Rather, 61 

Pa. C.S. §6137(g)(1) and (2) directs that the Department “shall identify” paroleeligible inmates for the Board’s consideration. I suggest that Stodghill, who has 

attended and participated in a sex offender program as required by the clear and 

unambiguous words of section 9718.1 of the Sentencing Code, is parole-eligible.

 

 

2 Although Stodghill I involved a different defendant, we use the term for ease of reference. 
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Accordingly, I dissent.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge