IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Khalil Evans, :

Petitioner :

:

v. :

:

Pennsylvania Department of :

Corrections, : No. 229 M.D. 2021

Respondent : Submitted: July 1, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: October 7, 2022

Before this Court is the Pennsylvania Department of Corrections’

(Department) Preliminary Objection (Preliminary Objection) to Khalil Evans’

(Evans) pro se Petition for Writ of Mandamus (Petition) filed in this Court’s original 

jurisdiction. After review, this Court sustains the Department’s Preliminary 

Objection and dismisses the Petition.

Background1

Following a March 10, 2008 incident (March 2008 Incident), Evans

was charged with multiple offenses, including Attempted Murder, Aggravated 

Assault, Possession of a Firearm, and Criminal Conspiracy (March 2008 Charges). 

See Petition ¶¶ 1-2. Evans was incarcerated from March 10, 2008 to August 1, 2008, 

when the March 2008 Charges were dismissed and Evans was released from 

1 The facts are as alleged in Evans’ Petition.
2

custody. See id. ¶ 3. In February 2009, Evans was again charged with the March 

2008 Charges arising from the March 2008 Incident at Philadelphia County Docket 

No. CP-51-CR-0004836-2009, but was not taken into custody. 

In March 2009, Evans was arrested due to an unrelated incident 

(Unrelated Incident) for which he was unable to post bail, and he “became 

incarcerated for both incidents concurrently.” Petition ¶ 5. Although the charges 

arising from the Unrelated Incident were dismissed, he was not released from 

custody, and he remained incarcerated for the March 2008 Charges. See id. ¶ 6. On 

November 19, 2009, Evans was convicted of the March 2008 Charges and, on April 

1, 2010, he was sentenced to his current 15- to 30-year prison term. See id. ¶¶ 7-8. 

The time credit section of the sentencing court’s order specified “zero (0) days” to 

be awarded. Id. ¶ 8. 

Facts

Evans is an inmate at the State Correctional Institution at Albion, 

presently serving a 15- to 30-year term of incarceration. On July 27, 2021, Evans 

filed the Petition wherein he alleges:

[Evans] is entitled to time credit from March 1, 2009 

through November 18, 2009. This is because [Evans] was 

incarcerated for two different cases at the same time 

awaiting trial on each. One case had been dismissed and 

[Evans] remained incarcerated on the [March 2008 

Charges] thereafter[,] still awaiting trial in that matter.

Petition ¶ 11. Evans requests that this Court direct the Department to issue him 

credit for time served between March 1, 2009 and November 18, 2009. On 

September 20, 2021, the Department filed the Preliminary Objection in the nature of 

a demurrer, averring that Evans failed to demonstrate a clear entitlement to credit 

for the period March 1, 2009 through November 18, 2009. 
3

The Department states:

25. According to the public docketing information 

available for [the March 2008 Charges,] bail was not set 

after the charges were re-filed on December 17, 2008.

26. Therefore, Evans’[] assertion that he “became 

incarcerated for both incidents concurrently,” referring to 

[the March 2008 Charges] . . . and the [U]nrelated 

[Incident] for which he was arrested in March of 2009, 

fails to establish that he was incarcerated for the [March 

2008 Charges].

27. Further, absent a [sentencing] court order directing the 

application of time credit, the [Department] is not in a 

position [to] apply the requested credit. Evans has failed 

to present any documentation to substantiate his request 

for additional time credit. As evidence to contrary, Evans

notes that the sentencing court dismissed his motion for 

additional time credit. 

Preliminary Objection at 5. Further, the Department claims that Evans did not 

establish a corresponding Department duty to substantiate his request for the Court 

to issue a writ of mandamus.

Discussion

In ruling on preliminary objections, we must accept as true 

all well-pleaded 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 
4

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) (emphasis added; 

citations omitted). Nonetheless, “[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.” Foxe v. Pa. Dep’t of Corr., 214 A.3d 308, 310 n.1 (Pa. 

Cmwlth. 2019) (quoting Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 

2014)). 

[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, Off[.] 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 [petitioner], [2] 

a corresponding duty in the [respondent], 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.] Rev[.]

Div[.], . . . 22 A.3d 189, 193 ([Pa.] 2011) 

(citations omitted). 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 Env[’t] Res., . . . 514 

A.2d 656, 660 ([Pa. Cmwlth.] 1986) (quoting U.S. Steel
5

Corp. v. Papadakos, . . . 437 A.2d 1044, 1046 ([Pa. 

Cmwlth.] 1981)).

Stodghill v. Pa. Dep’t of Corr., 150 A.3d 547, 552 (Pa. Cmwlth. 2016), aff’d, 77 

A.3d 182 (Pa. 2018).

[M]andamus is an appropriate remedy to correct an error 

in [the Department’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 [the Department’s] computation does not

comply with that credit. However, mandamus is not 

available to challenge [the Department’s] failure to 

give credit where the sentencing order is either 

ambiguous or does not specify the credit at issue.

Allen, 103 A.3d at 370 (emphasis added; citation omitted); see also Oakman v. Dep’t 

of Corr., 893 A.2d 834, 837 (Pa. Cmwlth. 2006) (“mandamus [is] unavailable where 

the order in question [does] not clearly provide that credit [i]s to be given”). 

With respect to the Department’s duty to credit inmates for time served, 

the Pennsylvania Supreme Court has explained:

It is beyond cavil that the Department has a duty to credit 

. . . all inmates, for all statutorily mandated periods of 

incarceration. However, this does not end the matter. The 

Department is an executive branch agency that is charged 

with faithfully implementing sentences imposed by the 

courts. As part of the executive branch, the Department 

lacks the power to adjudicate the legality of a sentence or 

to add or delete sentencing conditions. 

McCray v. Pa. Dep’t of Corr., 872 A.2d 1127, 1133 (Pa. 2005) (citation omitted).

Further, this Court has expounded that “[i]f a trial court does not give an inmate 

full credit for time served, the Department . . . has no duty to give an inmate 

full credit for time served. The inmate’s remedy is in the trial court and 

through the direct appeal process.” Armbruster v. Pa. Bd. of Prob. & Parole, 919 

A.2d 348, 355 (Pa. Cmwlth. 2007) (citation omitted; emphasis added).
6

Here, Evans did not attach the sentencing order to the Petition, but 

alleges therein that “[t]ime credit was suppose[d] to be awarded pursuant to the 

language of the sentencing order. However, the time credit section stated zero 

(0) days.” Petition ¶ 8 (emphasis added). This Court “must accept as true all wellpleaded material allegations in the [Petition], as well as all inferences reasonably 

deduced therefrom.” Torres, 997 A.2d at 1245. Because it can be inferred from the 

above-quoted allegation that the sentencing order does “not clearly provide that 

credit [i]s to be given,” Oakman, 893 A.2d at 837, Evans does not have a clear right 

to relief and the Department does not have a corresponding duty to credit Evans the 

requested time.2 Armbruster. In the absence of a clear right to relief and 

corresponding duty, this Court may not grant mandamus relief. Stodghill.

Conclusion

“[A]ccept[ing] as true all well-pleaded material allegations in the

[Petition], as well as all inferences reasonably deduced therefrom[,]” and resolving 

any doubt in favor of overruling the preliminary objection, as we must, and because 

it does “appear with certainty that the law will not permit recovery,” Torres, 997 

A.2d at 1245, the Department’s Preliminary Objection is sustained.

For all of the above reasons, the Department’s Preliminary Objection is 

sustained, and the Petition is dismissed.

_________________________________

ANNE E. COVEY, Judge

2 Evans’ Petition does not reflect that he lacked another adequate remedy. If Evans

believed the sentencing order did not properly credit him with time served, Evans’ remedy was to 

appeal therefrom. Armbruster.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Khalil Evans, :

Petitioner :

:

v. :

:

Pennsylvania Department of :

Corrections, : No. 229 M.D. 2021

Respondent :

O R D E R

AND NOW, this 7

th day of October, 2022, the Pennsylvania 

Department of Corrections’ preliminary objection to Khalil Evans’ Petition for Writ 

of Mandamus (Petition) is SUSTAINED, and the Petition is DISMISSED. 

_________________________________

ANNE E. COVEY, Judge