IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nelson Soler, :

Petitioner :

:

v. : No. 323 M.D. 2022

:

Commonwealth of Pennsylvania, :

Department of Corrections, :

Respondent : Submitted: March 10, 2023

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE CEISLER FILED: May 3, 2023

Currently before us are Respondent Commonwealth of Pennsylvania, 

Department of Corrections’ (DOC) preliminary objections to Petitioner Nelson 

Soler’s (Soler) “Amended Petition for Review in Mandamus Challenging the 

Sentencing Calculation of [DOC]” (Amended Petition). Through this Amended 

Petition, which was filed in our original jurisdiction, Soler seeks mandamus relief 

regarding what he contends is DOC’s failure to properly calculate the minimum and 

maximum dates on a state-level carceral sentence that was imposed upon him in 

2017. After thorough review, we overrule DOC’s preliminary objections in part, 

sustain them in part, and dismiss the Amended Petition.
2

I. Background

The relevant facts, as averred by Soler and gleaned from the record, are as 

follows. On March 17, 2016, the Pennsylvania Parole Board (Board)1 paroled Soler

on two state-level sentences that he had received in 2014, at which point the 

maximum date on those sentences was September 23, 2018. DOC’s Br. in Support 

of Prelim. Objs., App. B.2In March 2017, Soler was arrested and charged in two 

separate cases in the Court of Common Pleas of Lehigh County (Common Pleas) 

with a number of drug-and-firearm-related crimes.3 Soler then pled guilty in 

Common Pleas to two counts of possession with intent to deliver and one count of 

unlawful possession of a firearm. On May 26, 2017, Soler received concurrent 

sentences on those charges of four to eight years in state prison. Am. Pet. ¶¶1-2.

Thereafter, on October 5, 2017, the Board issued a decision in which it declared 

Soler to be a convicted parole violator (CPV) due to his conviction in CP-39-CR1 At that point in time, the Board was known as the Pennsylvania Board of Probation and 

Parole.

2 Soler avers in his Amended Petition that he was on parole at the time of his 2017 

convictions, as well as that he had nearly three years remaining at that point on his original 2014 

sentences upon which he had been paroled, and that the Board imposed backtime upon him as a 

result of the 2017 convictions. See Am. Pet. ¶¶2-4, 6. He also attaches documentation thereto that 

either provides details regarding his 2014 sentences or refers to the actions taken by the Board 

towards him. See id., Exs. A, C-H. In light of this, we deem the details of the Board’s handling of 

his parole situation to be incorporated by reference into the Amended Petition, and we may 

accordingly consider the relevant exhibits that are included with DOC’s preliminary objections, 

despite the fact that Soler failed to attach many of them to his Amended Petition. See St. Peter’s 

Roman Cath. Parish v. Urban Redevelopment Auth. of Pittsburgh, 146 A.2d 724, 725 (Pa. 1958); 

Detweiler v. Sch. Dist. of Borough of Hatfield, 104 A.2d 110, 113 (Pa. 1954).

3 We have filled in some of the informational gaps regarding Soler’s numerous convictions 

by taking judicial notice of the particulars of his state-level criminal cases, as permitted by law. 

See, e.g., Pa. R.E. 201(b)(2); Doxsey v. Com., 674 A.2d 1173, 1174 (Pa. Cmwlth. 1996). These 

cases can be found under docket numbers CP-39-CR-0003354-2011, CP-13-CR-0000491-2013, 

CP-39-CR-0000960-2017, CP-39-CR-0000961-2017, and CP-14-CR-0000402-2019.
3

0000961-2017, ordered him to serve 24 months of backtime on his 2014 sentences,

declined to award him credit for time served at liberty on parole, and recalculated 

the maximum date on his 2014 sentences as May 19, 2020. Id. ¶6; DOC’s Br. in 

Support of Prelim. Objs., App. B.4 The Board then issued a second decision on 

December 15, 2017, in which it noted Soler’s conviction in CP-39-CR-0000960-

2017, but declined to take any additional action against him in response to that 

conviction. DOC’s Br. in Support of Prelim. Objs., App. B. Subsequently, Soler was 

charged with and pled guilty in the Court of Common Pleas of Centre County to one 

count of possession of a weapon or implement for escape, for which he received a 

sentence of three to six months on October 7, 2019, to be served consecutively to his 

other sentences. Am. Pet. ¶11, Ex. A.

These convictions, and the sentences imposed as a result, eventually led to the 

current dispute between Soler and DOC. Initially, DOC calculated the minimum and 

maximum dates on Soler’s 2017 sentences as, respectively, April 27, 2021, and July 

17, 2025. Id. ¶7, Ex. A. However, this changed on April 26, 2021, when DOC issued 

a revised sentence status summary that reflected its new determination that the 

minimum and maximum dates on the sentence Soler had received in CP-39-CR0000961-2017 were, respectively, December 5, 2024, and December 5, 2028. Id. ¶9.

Soler believed that DOC’s recalculations were wrong and sought to have DOC 

conform its treatment of his 2017 sentences to what was, in his view, the proper

reading of those sentences, i.e., that they were supposed to run concurrently, both 

with each other and with the aforementioned Board-imposed backtime, and that, as 

4 The Board arrived at Soler’s new maximum date by using May 26, 2017, i.e., the date 

upon which he was sentenced by Common Pleas on the March 2017 charges, as the date he 

returned to the Board’s custody, and then calculated forward using the 1089 unserved days that he 

had remaining on his 2014 sentences. See DOC’s Br. in Support of Prelim. Objs., App. B.
4

a consequence, DOC’s original minimum and maximum date calculations for those 

sentences had been correct. Id. ¶¶14-22. First, Soler filed a “Petition to Correct 

Record and Recalculate Sentence” (Correction Petition) with Common Pleas, which 

Common Pleas granted on June 17, 2021. Id., Ex. B. In doing so, Common Pleas 

ordered DOC to “correct the April 26, 2021 ‘Sentence Status Summary’ [regarding 

CP-39-CR-0000961-2017] to accurately reflect a sentence minimum expiration date 

of April 17, 2021, with a maximum date of July 17, 2025.” Id. In doing so, Common 

Pleas explained that the sentences it had imposed in CP-39-CR-0000960-2017 and 

CP-39-CR-0000961-2017 were supposed to run concurrently, but that DOC had 

improperly treated the sentences as if Soler was required to serve them in 

consecutive fashion. See id. n.1. DOC did not comply with Common Pleas’ order, 

prompting Soler to file an administrative grievance with DOC on October 25, 2021, 

through which he requested that DOC revise its calculations to reflect the concurrent 

nature of his 2017 sentences. See id. ¶¶22-23, Ex. C. DOC denied Soler’s grievance 

on November 3, 2021, on the basis that it had correctly calculated the minimum and 

maximum dates for the sentence imposed in CP-39-CR-0000961-2017. Id. ¶24, Ex. 

D. Soler administratively appealed this denial on November 14, 2021, but this effort 

was ultimately unsuccessful, as DOC affirmed its disposition of his grievance on 

May 12, 2022. Id. ¶¶25-29, Exs. E-H.

Having struck out with those efforts, Soler’s next move was to initiate the 

instant mandamus action by filing a petition for review with our Court on June 13, 

2022. Soler then submitted his Amended Petition on August 22, 2022, in which he 

asserts that DOC has incorrectly calculated the minimum and maximum dates on the 

sentence that was imposed in CP-39-CR-0000961-2017, in contravention of the 

express terms of Common Pleas’ original sentencing order and of its order granting 
5

his Correction Petition. See id. ¶¶9-21, 30-32. Accordingly, Soler seeks relief in the 

form of a writ of mandamus “directing [DOC] to recalculate [this sentence’s] 

minimum date to April 17, 2021[,] and [the] maximum date [to] July 17, 2025[,] in 

accordance with [DOC’s] original February 11, 2021 [s]entence [s]tatus [s]ummary 

and [Common Pleas’ orders].” Id., Wherefore Clause. In response, DOC filed the 

preliminary objections that are the subject of this opinion.

II. Discussion

In its preliminary objections,5 DOC presents three arguments for why we 

should dismiss Soler’s Amended Petition, which we reorder and summarize as 

follows. First, this Court lacks jurisdiction to adjudicate the Amended Petition, 

because the Board is an indispensable party to the matter, but Soler failed to name it 

as a respondent. DOC’s Br. at 12-13. Second, Soler did not challenge the Board’s 

October 5, 2017 decision, through which it declared him to be a CPV, imposed 

5

In ruling on preliminary objections, we must accept as true all wellpleaded material allegations in the petition for review, 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 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.

A preliminary objection in the nature of a demurrer admits every 

well-pleaded fact in the [petition for review] 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 [petition for review].

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted). “[C]ourts reviewing 

preliminary objections may not only consider the facts pled in the [petition for review], but also 

any documents or exhibits attached to it.” Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 

2014).
6

backtime, and revoked credit for time served at liberty on parole, and consequently 

failed to exhaust his administrative remedies. Id. at 7-11. Finally, Soler does not 

have a clear right to relief, and has thus failed to state a viable mandamus claim, 

because DOC properly calculated the minimum and maximum dates on the sentence 

that was imposed in CP-39-CR-0000961-2017. Id. at 13-16.

DOC’s arguments regarding the allegedly indispensable nature of the Board 

and about Soler’s putative failure to exhaust administrative remedies are without 

merit. With regard to the former, “[t]he failure to join an indispensable party to a 

lawsuit deprives the court of subject matter jurisdiction.” HYK Constr. Co. v. 

Smithfield Twp., 8 A.3d 1009, 1015 (Pa. Cmwlth. 2010).

[The Supreme] Court has stated that a party is 

indispensable “when his or her rights are so connected 

with the claims of the litigants that no decree can be made 

without impairing those rights.” Sprague v. Casey, . . . 550 

A.2d 184, 189 ([Pa.] 1988). “[T]he basic inquiry in 

determining whether a party is indispensable concerns 

whether justice can be done in the absence of” him or her. 

CRY, Inc. v. Mill Serv., Inc., . . . 640 A.2d 372, 375 ([Pa.] 

1994). In undertaking this inquiry, the nature of the claim 

and the relief sought must be considered. See id. at . . . 

375-76.

. . . .

While this joinder provision is mandatory, it is subject to 

limiting principles. For example, where the interest 

involved is indirect or incidental, joinder may not be 

required

City of Philadelphia v. Com., 838 A.2d 566, 581 (Pa. 2003). Furthermore, when 

considering whether a party is indispensable, a court must, at minimum, consider the 

following questions:

1. Do absent parties have a right or interest related to the 

claim?

2. If so, what is the nature of that right or interest?
7

3. Is that right or interest essential to the merits of the 

issue?

4. Can justice be afforded without violating the due 

process rights of absent parties?

Mechanicsburg Area Sch. Dist. v. Kline, 431 A.2d 953, 956 (Pa. 1981). As to the 

latter,

a party must first exhaust its administrative remedies 

before invoking this Court’s jurisdiction in challenging a 

final agency adjudication. See Canonsburg [Gen. Hosp. v. 

Dep’t] of Health, . . . 422 A.2d 141, 144 ([Pa.] 1980). The 

courts must refrain from exercising equity jurisdiction 

when there exists an adequate statutory remedy. Arsenal 

Coal Co. v. [Dept. of Env’t Res.], . . . 477 A.2d 1333, 1338 

([Pa.] 1984); Funk v. [Com.], 71 A.3d 1097, 1101 (Pa. 

Cmwlth. 2012). The doctrine of exhaustion of 

administrative remedies is intended to prevent the 

premature interruption of the administrative process, 

which would restrict the agency’s opportunity to develop 

an adequate factual record, limit the agency in the exercise 

of its expertise, and impede the development of a cohesive 

body of law in that area. See Empire Sanitary Landfill, Inc. 

v. [Dept. of Env’t Res.], . . . 684 A.2d 1047, 1054 ([Pa.] 

1996); Shenango Valley Osteopathic [Hosp.] v. [Dept.] of 

Health, . . . 451 A.2d 434, 438 ([Pa.] 1982); Bucks [Cnty.

Servs.], Inc. v. [Phila.] Parking [Auth.], 71 A.3d 379, 388 

(Pa. Cmwlth. 2013). “The doctrine operates as a restraint 

on the exercise of a court’s equitable powers and a

recognition of the legislature’s direction to comply with 

statutorily[]prescribed remedies.” Empire Sanitary, 684 

A.2d at 1054.

Keystone ReLeaf LLC v. Pa. Dep’t of Health, 186 A.3d 505, 513 (Pa. Cmwlth. 2018).

In this instance, Soler challenges DOC’s calculations regarding the sentence he 

received in CP-39-CR-0000961-2017, on the basis that DOC has failed to comply 

with Common Pleas’ aforementioned orders, but he does not take issue with the 

Board’s handling of his parole violations. See Am. Pet. ¶¶9-22, 30-32, Wherefore 

Clause. As a result, the Board’s interests are not implicated in this instance, nor 
8

would the administrative remedies that were available to Soler through the Board 

have offered him the ability to secure the relief he now seeks. Accordingly, the Board 

is not a party that is indispensable to this matter and Soler did not fail to exhaust his 

administrative remedies.

We come to a different conclusion, though, regarding the merits of DOC’s 

remaining argument, through which it demurs to Soler’s mandamus claim.

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. [Pa. Dep’t of 

Corr.], 137 A.3d 575, 576 (Pa. 2016); Allen . . . , 103 A.3d 

[at] 370 . . . . “The purpose of mandamus is not to establish 

legal rights, but to enforce those rights already established 

beyond peradventure.” Allen, 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. “Mandamus 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.

“Notwithstanding, mandamus is an appropriate remedy to 

correct an error in DOC’s computation of maximum and 

minimum dates of confinement where the sentencing order 

clearly gives the inmate credit for the time period in 

question and DOC’s computation does not comply with 

that credit.” Allen, 103 A.3d at 370. However, mandamus 

is not available to compel the performance of an illegal 

sentencing order. Duncan, 137 A.3d at 576; Fajohn v. 

[Dep’t of Corr.], 692 A.2d 1067, 1068 (Pa. 1997); 

Lawrence v. [Pa. Dep’t of Corr.], 941 A.2d 70, 72 (Pa. 

Cmwlth. 2007); [Com.] v. Kelley, 136 A.3d 1007, 1013-14 

(Pa. Super. 2016). When a parolee is convicted of a new 

criminal offense committed while on parole and 

punishable by prison time, the Board has the authority, in 

its discretion, to recommit the parolee as a [CPV]. Section 
9

6138(a) of the [Prisons and] Parole Code [(Parole Code)], 

61 Pa C.S. § 6138(a). Upon recommitment of a parolee, 

the Board may order him to serve some or all of the 

remainder of his original sentence as backtime. Id. Where 

the Board orders a parolee to serve backtime, this time 

must be served before the commencement of the new term.

Id. Specifically, Section 6138(a)(5)(i) of the Parole [Code] 

provides:

(5) If a new sentence is imposed on the parolee, the 

service of the balance of the term originally 

imposed by a Pennsylvania court shall precede the 

commencement of the new term imposed in the 

following cases:

(i) If a person is paroled from a State 

correctional institution and the new sentence 

imposed on the person is to be served in the 

State correctional institution.

61 Pa C.S. § 6138(a)(5)(i). In other words, “the original 

sentence and any new sentences must be served 

consecutively rather than concurrently.” Kerak v. [Pa. Bd. 

of Prob. & Parole], 153 A.3d 1134, 1138 (Pa. Cmwlth. 

2016); accord Allen v. [Pa. Bd. of Prob. & Parole], 207 

A.3d 981, 985-86 (Pa. Cmwlth. 2019). A “sentencing 

judge has no authority to order” otherwise. Kerak, 153 

A.3d at 1138 (quoting [Com.] v. Draper, 293 A.2d 614, 

615 (Pa. Super. 1972)). The imposition of a new state 

sentence to run concurrently with a parolee’s backtime on 

the original sentence is considered an illegal sentence. 

Duncan, 137 A.3d at 576; Kelley, 136 A.3d at 1013-14; 

see Lawrence, 941 A.2d at 72. Although sentencing courts 

are generally authorized to impose sentences to run 

consecutively or concurrently under Section 9721 of the 

Sentencing Code, 42 Pa. C.S. § 9721, they are not 

empowered to direct a new sentence to run concurrently 

with a prisoner’s state parole violation sentence in 

violation of the Parole Code. See Duncan, 137 A.3d at 

576; Kelley, 136 A.3d at 1013-14; see Lawrence, 941 A.2d 

at 72.
10

Bivens v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 192 M.D. 2018, filed Mar. 11, 2020), 

slip op. at 4-6, 2020 WL 1171089, at *2-*3.

6

Returning to the matter at-hand, it is evident that Common Pleas’ sentencing 

order was unlawful, as it effectively directed that Soler was to serve his 2017 

sentences concurrently with the CPV backtime imposed upon him by the Board 

regarding his 2014 sentences. See Am. Pet., Ex. B. Given this, DOC lacked legal 

authority to abide by Common Pleas’ calculations regarding the minimum and 

maximum dates on Soler’s 2017 sentences. Soler thus does not possess a clear right 

to mandamus relief regarding DOC’s handling of the sentence that was imposed 

upon him in CP-39-CR-0000961-2017.

7

6 Pursuant to section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 

69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited 

for its persuasive value.

7 Though the issue is not part of this matter, we must also take issue with the Board’s and 

Soler’s apparent belief that Soler could serve his sentence for CP-39-CR-0000960-2017

concurrently with the aforementioned Board-imposed backtime. Soler avers in his Amended 

Petition that “the . . . Board noted his conviction on CP-3[9]-CR-000960-2017 and ran it 

concurrently with the [backtime] the . . . Board gave [him] for the parole violation.” Am. Pet. ¶5. 

Additionally, DOC stated, in its November 3, 2021 denial of Soler’s administrative grievance, that 

the Board informed Soler on October 13, 2021, that “[his] sentence at [CP-39-CR-000960-2017] 

was running concurrently with [the CPV] back time [sic] [the Board had imposed] because the 

Board [had] noted that conviction.” Am. Pet., Ex. D; cf. DOC’s Br. in Support of Prelim. Objs., 

App. B (Board decision in which it noted Soler’s conviction in CP-39-CR-000960-2017, referred 

to the CPV backtime it had imposed upon him in CP-39-CR-000961-2017, and declined to take 

any additional action against him). As just discussed, though, Section 6138(a)(5)(i) of the Parole 

Code mandates that Board-imposed backtime on an original sentence be served before a parolee 

can begin serving a new, state-level sentence. See 61 Pa C.S. § 6138(a)(5)(i); Palmer v. Pa. Bd. of 

Prob. & Parole, 134 A.3d 160, 165 (Pa. Cmwlth. 2016) (“[T]he Board may not impose backtime 

to run concurrently with a new sentence for an offense committed while on parole.”). Thus, by 

law, Soler could not begin serving his sentences for CP-39-CR-000960-2017 or CP-39-CR000961-2017 until he had completed that backtime.
11

III. Conclusion

In accordance with the foregoing analysis, we overrule DOC’s preliminary 

objections regarding Soler’s putative failure to join all indispensable parties and 

exhaust his administrative remedies, sustain DOC’s demurrer to Soler’s mandamus 

claim, and dismiss the Amended Petition.

____________________________

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nelson Soler, :

Petitioner :

:

v. : No. 323 M.D. 2022

:

Commonwealth of Pennsylvania, :

Department of Corrections, :

Respondent :

O R D E R

AND NOW, this 3

rd day of May, 2023, it is hereby ORDERED:

1. Respondent Commonwealth of Pennsylvania, Department of 

Corrections’ (DOC) preliminary objections regarding Petitioner Nelson 

Soler’s (Soler) putative failure to join all indispensable parties and exhaust his 

administrative remedies are OVERRULED;

2. DOC’s preliminary objection in the nature of a demurrer to 

Soler’s mandamus claim is SUSTAINED;

3. Soler’s “Amended Petition for Review in Mandamus 

Challenging the Sentencing Calculation of [DOC]” is DISMISSED.

____________________________

ELLEN CEISLER, Judge