IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jermaine Pryor, :

:

Petitioner :

:

v. : No. 355 M.D. 2015

:

PA Dept. of Corrections, Records : Submitted: January 15, 2016

Supervisor Sandra Gerula, :

:

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COHN JUBELIRER FILED: April 27, 2016

Before this Court in our original jurisdiction is the preliminary objection 

(PO) in the nature of a demurrer filed by the PA Dept. of Corrections

(Department), Records Supervisor Sandra Gerula (Respondents) to the pro se 

Petition for Review in the Nature of Mandamus (Petition) filed by Jermaine Pryor.1

Respondents assert in the PO that the Petition is legally insufficient because Pryor 

has not identified any clear right to relief thereby precluding mandamus relief and, 

therefore, the Petition should be dismissed with prejudice. Because Pryor has not 

 

1

Pryor has not filed a brief in opposition to Respondents PO and, therefore, pursuant to 

this Court’s order dated November 18, 2015, we “will proceed without [Pryor’s] brief.” (Order, 

November 18, 2015.)
2

established a clear legal right to the relief requested, we sustain the PO and dismiss 

the Petition with prejudice.

Pryor avers the following in his Petition. He is “incarcerated at the State 

Correctional Institution at Benner,” which is located in Centre County. (Petition ¶ 

2.) He “was formally arraigned and charged with one count each of Aggravated 

Assault[2]and” violation of the Pennsylvania Uniform Firearms Act of 19953on 

October 18, 2008. (Petition ¶ 4.) Pryor pleaded guilty on June 13, 2011, and 

received a negotiated sentence of five-to-ten years that he would serve 

concurrently with a federal sentence. (Petition ¶ 5.) Thereafter, on April 19, 2012, 

Pryor filed a Post Conviction Relief Act4(PCRA) petition asserting “that he was 

not given credit for time served on his State Sentence from October 14, 2008 to 

June 14, 2011, as stipulated by the Trial Court.” (Petition ¶ 6.) Pryor’s appointed 

PCRA counsel filed a no-merit letter with the PCRA Court, pursuant to 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (Finley Letter),

allegedly based on his belief that the Commonwealth Court was the proper forum 

to address Pryor’s requested relief. (Petition ¶ 7.) Thereafter, “on April 30, 2013,

[the] PCRA Court entered a Notice informing [Pryor] that pursuant to [Rule 907 of 

the Pennsylvania Rules of Criminal Procedure,] Pa. R. Crim. P. 907, his case 

would be denied/dismissed in 20 days.”5 (Petition ¶ 7.) Pryor does not attach this 

order to his Petition.

 

2

Section 2702 of the Crimes Code, 18 Pa. C.S. § 2702.

3

18 Pa. C.S. §§ 6101-6126. The Petition refers to this as a “Vufa.” (Petition ¶ 4.)

4

42 Pa. C.S. §§ 9541-9546.

5 Rule 907 of the Pennsylvania Rules of Criminal Procedure allows a judge to review and 

rule on a petition for post-conviction collateral relief without a hearing under certain 

circumstances. Pa. R. Crim. P. 907. For example, if “there are no genuine issues concerning any 

material fact and that the defendant is not entitled to post-conviction collateral relief” and there 

(Continued...)
3

Under Section 9761(b) of the Sentencing Code, 42 Pa. C.S. § 9761(b), where 

“[a] defendant is at the time of sentencing subject to imprisonment under the 

authority of any other sovereign,” the trial “court may indicate that imprisonment 

under such other authority shall satisfy or be credited against both the minimum 

and maximum time imposed under the court’s sentence.” (Petition ¶ 9 (citing 42 

Pa. C.S. § 9761(b)).) “A State Court is authorized to Order that state sentences run 

concurrent to Federal Sentences, and [Pryor] is entitled to have credit for time 

served on Federal Sentence applied to his State Sentence.” (Petition ¶ 10 (citing 

Griffin v. Department of Corrections, 862 A.2d 152, 156-57 (Pa. Cmwlth. 2004)).)

Here, Pryor “was sentenced to time served concurrent with his Federal Sentence” 

on June 13, 2011. (Petition ¶ 9; Pryor’s Sentencing Order (Sentencing Order), Ex. 

A to Petition.) As an agency of “‘the executive branch, the Department lacks the 

power to adjudicate the legality of a sentence or to add or delete sentencing 

conditions.’” (Petition ¶ 8 (quoting McCray v. Pennsylvania Department of 

Corrections, 872 A.2d 1127, 1133 (Pa. 2005)).) Because the Department “lacks 

the authority to change [Pryor’s] Sentencing Order, revocation of credit for time 

served concurrent with his Federal Sentence [falls] short of the minimum 

procedural protections required by the Fourteenth Amendment of the United States 

Constitution.” (Petition ¶ 8 (citing Evans v. Beard, 639 F. Supp.2d 497 (E.D. Pa. 

 

would be “no purpose . . . served by any further proceedings, the judge shall give notice to the 

parties of the intention to dismiss the petition and shall state in the notice the reasons for the 

dismissal.” Pa. R. Crim. P. 907(1). In that case, “[t]he defendant may respond to the proposed 

dismissal within 20 days of the date of the notice” and then “[t]he judge thereafter shall order the 

petition dismissed, grant leave to file an amended petition, or direct that the proceedings 

continue.” Id. “When the petition is dismissed without a hearing, the judge promptly shall issue 

an order to that effect and shall advise the defendant” of his right to appeal. Pa. R. Crim. P. 

907(4).
4

2009), rev’d, 645 F.3d 650 (3d Cir. 2011)).) The Department could not delete the 

trial court’s “proviso of specific time served contained in the trial court’s sentence”

or “revoke time credit on an inmate’s court commitment papers without a court 

order.” (Petition ¶¶ 10, 11.) Therefore, Pryor asserts that he “is entitled to relief [] 

from this Honorable Court by way of Mandamus.” (Petition ¶ 10.)

Pryor argues that absent relief, “his release from incarceration and/or 

eligibility for parole will be delayed by 32 months” and that “[d]ue to the unjust 

action of [Respondents], [he] stands to miss his parole eligibility date in October of 

2013 under an invalid assessment of the Department . . . of his DC-300B Court 

Commitment Papers.” (Petition ¶ 12.) This violates Pryor’s due process rights and 

“prohibit[s] him from being released from confinement and becoming a productive 

member of society.” (Petition ¶ 12.) Pryor asserts that he has no other remedy at 

law because, when he filed a PCRA petition “to compel the Trial Court to enter an 

Order directing [Respondents] to comply with the DC-300B and credit him with 

time from October 14, 2008 to June 14, 2011,” that Court “determined that there 

[was] no standing to pursue such an Order” and that he “must seek relief from 

[this] Court . . . .” (Petition ¶ 13.) Pryor seeks an Order from this Court granting 

the Petition and 

direct[ing] . . . [Respondents to] apply policies, procedure and law to 

[Pryor], and utilize the proper guidelines as stipulated therein for a 

reassessment of [Pryor’s] sentence structure in order to determine, 

based on the evidence, that [Pryor] is entitled to time served on his 

Federal Sentence concurrent with his State Sentence from October 14, 

2008 to June 13, 2011.

(Petition, Wherefore Clause.)

Respondents demur to the Petition pursuant to Rule 1028(a)(4) of the 

Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1028(a)(4), and assert that 
5

Pryor is not entitled to mandamus relief because Pryor “has not established a clear 

legal right to the relief requested.” (PO ¶¶ 7, 15.) Citing Pryor’s Sentencing 

Order, attached to the Petition as Exhibit A, Respondents aver that the order “does 

not indicate any time credit.” (PO ¶ 17.) According to Respondents, the 

Department does not have the authority to “make independent decisions on 

whether to award credit; it merely assigns credit as directed by the sentencing court 

and the Clerk of Courts” and, therefore, it “cannot award credit when the 

sentencing court did not direct that.” (PO ¶¶ 18-19.) Where, as here, the inmate 

argues that “he [is] not receiv[ing] the benefit of his plea [agreement,]” the inmate 

should “file an application for re-sentencing with the criminal court, not to seek 

mandamus against the Department.” (PO ¶ 20 (citing Fajohn v. Department of 

Corrections, 692 A.2d 1067 (Pa. 1997)).) Therefore, Respondents assert that the 

Petition is legally insufficient, its PO should be sustained, and the Petition 

dismissed. (PO ¶ 7, Wherefore Clause.)

In his answer, Pryor contends that the Sentencing Order already gives him 

“credit for time served concurrent with his Federal Sentence from October 14, 

2008 to June 14, 2011.” (Pryor’s Response to Respondents PO (Response to PO) ¶ 

11.) He maintains that, if there is any doubt in the Sentencing Order, it is the 

Department’s duty “to verify the exact time credit owed to” Pryor. (Response to 

PO ¶ 12.) Further, Pryor contends that, in using the DC-300B Form, the 

sentencing court “MUST list the statutory time credit” and the Department cannot 

remove the credit. (Response to PO ¶ 15 (emphasis in original).) According to 

Pryor, in stating that his state sentence runs concurrently with his federal sentence, 

it is obvious “that both sentences are concurrent with credit from the date of 

[Pryor’s] arrest on October 14, 2008.” (Response to PO ¶ 17.) Pryor went to the 
6

court with his PCRA petition and it confirmed that it “awarded him credit for time 

served” which “is why the PCRA Court recommended [Pryor] seek relief with the 

Commonwealth Court to compel the [Department] to give him credit for time 

served in accordance with its Court Order” in its April 30, 2013 order. (Response 

to PO ¶ 20.)

“Preliminary objections in the nature of a demurrer are deemed to admit all 

well-pleaded material facts and any inferences reasonably deduced therefrom, but 

not the complaint’s legal conclusions and averments.” Danysh v. Department of 

Corrections, 845 A.2d 260, 262 (Pa. Cmwlth. 2004). “In ruling upon a preliminary 

objection in the nature of a demurrer, our role is to determine whether the facts 

pled are legally sufficient to permit the action to continue.” Department of Public 

Welfare v. Joyce, 563 A.2d 590, 591 (Pa. Cmwlth. 1989). To sustain a preliminary 

objection in the nature of a demurrer, “it must appear with certainty upon the facts 

pled that the law will not permit recovery.” Id. If there is any doubt “as to 

whether the preliminary objection should be sustained, that doubt should be 

resolved by a refusal to sustain it.” Id.

“A proceeding in mandamus is an extraordinary remedy at common law, 

designed to compel the performance of a ministerial act or mandatory duty.” 

Lawrence v. Pennsylvania Department of Corrections, 941 A.2d 70, 72 (Pa. 

Cmwlth. 2007). “The purpose of mandamus is not to establish legal rights, but to 

enforce those rights already established beyond peradventure.” Detar v. Beard, 

898 A.2d 26, 29 (Pa. Cmwlth. 2006). “[M]andamus will lie only where the 

petitioning party demonstrates its clear right to relief, a correspondingly clear duty 

on the part of the party against whom mandamus is sought, and the want of any 
7

other adequate remedy.” Doxsey v. Commonwealth, 674 A.2d 1173, 1174 (Pa. 

Cmwlth. 1996). “Mandamus . . . will not be granted in doubtful cases.” Id. 

As asserted by Pryor and acknowledged by Respondents, “[t]he Department 

is an executive branch agency that is charged with faithfully implementing 

sentences imposed by the courts” and, “[a]s part of the executive branch, [it] lacks 

the power to adjudicate the legality of a sentence or to add or delete sentencing 

conditions.” McCray, 872 A.2d at 1133. Pryor asserts that his Sentencing Order 

and the DC-300B Form issued in his criminal case clearly provide that he is to 

receive credit for time served for the period between October 14, 2008 and June 

14, 2011, which is time he served on his federal sentence. (Petition ¶¶ 4-6; 

Sentencing Order, Ex. A to Petition.) Pryor further avers that the trial court 

allegedly directed him, in an order dated April 30, 2013, to seek mandamus relief 

from this Court during his PCRA proceeding. (Petition ¶ 13.)

We have reviewed Pryor’s Sentencing Order, dated June 13, 2011, and agree 

with Respondents that it does not contain any reference to credit for time served

for the period between October 14, 2008 and June 14, 2011. What that order states 

is 

Count 1 – 18 [Pa. C.S.] §2702 . . . – Aggravated Assault - (F1)

To be confined for a Minimum Term of 5 years and a 

Maximum Term of 10 years at State Correctional Institution.

The following conditions are imposed:

Other – Sentence/Conditions: Sentence: 5 to 10 years in 

SCI as to Aggravated Assault F1 and 5 to 10 years as to 

VUFA 6105 F2 to run concurrently with the sentence 

imposed on the [possession with intent to deliver 

(PWID)] in this case and concurrently with the federal 

case the defendant is presently serving.

Count 3 – 18 [Pa. C.S.] §6105 . . . – Possession Of Firearm Prohibited 

– (F2)
8

To be confined for a Minimum Term of 5 years and a 

Maximum Term of 10 years at State Correctional Institution.

The following conditions are imposed:

Other – Sentence/Conditions: Sentence: 5 to 10 years in 

SCI as to Aggravated Assault F1 and 5 to 10 years as to 

VUFA 6105 F2 to run concurrently with the sentence 

imposed on the PWID in this case and concurrently with 

the federal case the defendant is presently serving.

This sentence is to be served concurrent with:

CP-51-CR-0012265-2008 Ct # 1 Confinement.

(Sentencing Order, Ex. A to Petition.) Thus, the Sentencing Order is silent on the 

issue of credit and does not provide Pryor with a clear right to the relief he seeks in 

the Petition.

We now turn to the DC-300B Form that Pryor insists requires the sentencing 

court to “list the statutory time credit,” which “[t]he [Department] cannot remove.” 

(Response to PO ¶ 15; Petition ¶ 13.) Pryor did not attach this form to the Petition 

and, ordinarily, a demurrer is limited only to the facts readily ascertainable on the 

face of the challenged pleading and cannot aver additional facts. Barndt v. 

Department of Corrections, 902 A.2d 589, 591 n.2 (Pa. Cmwlth. 2006). However, 

there is “a limited exception to the rule against speaking demurrers [that] exists for 

documents filed in support of a demurrer where a plaintiff has averred the 

existence of certain written documents and premised his cause of action upon those 

documents.” Id. As observed by Respondents, Pryor “premises his case on his 

contention that the DC-300B [Form] lists an award of credit” and, thus, has 

attached the relevant DC-300B Form to its brief. (Respondents’ Br. at 7-8.) 

We agree with Respondents that this is one of the limited circumstances 

where a “speaking demurrer” is permitted and will review the form Pryor insists 

clearly provides him credit for time served. The DC-300B Form lists Pryor’s 

name, the charges to which he pleaded guilty, and that he was sentenced on June 
9

13, 2011, as described in the Sentencing Order. (DC-300B Form at 1-2.) It also 

indicates, as the Sentencing Order did, that Pryor’s sentences were to be served 

“concurrently with the sentence imposed on the PWID in this case and 

concurrently with the federal case the defendant is presently serving.” (DC-300B 

Form at 2.) However, the DC-300B Form also contains two boxes asking if there 

is “CREDIT FOR TIME SERVED.” (DC-300B Form at 1, 3 (emphasis added).) 

In response to these statements, the following was entered in both boxes, “0 days”. 

(DC-300B Form at 1, 3 (emphasis added).) Accordingly, the DC-300B Form does 

not clearly provide Pryor with credit for time served as he asserts in the Petition.

Finally, we note that our Supreme Court has held that where an inmate 

believes that he has “not receive[d] the benefit of his plea bargain, the proper 

avenue would appear to be to seek relief in the sentencing court” and not a 

mandamus action in the Commonwealth Court’s original jurisdiction. Fajohn, 692 

A.2d at 1068. Although Pryor asserts that he has done this and that, on April 30, 

2013, the PCRA Court allegedly directed him to seek mandamus relief from this 

Court during his PCRA proceeding, (Petition ¶ 13; Response to PO ¶ 17), he did 

not attach that order to his Petition or otherwise provide it to this Court. This 

Court may take judicial notice of “official criminal court records [that] contain [] 

relevant” information to the pleadings in considering preliminary objections in this 

Court’s original jurisdiction. See Doxsey, 674 A.2d at 1174 (holding in an original 

jurisdiction matter that we would take judicial notice “of the official criminal court 

records, which contain the relevant dates for purposes of determining petitioner’s 

sentencing date and ascertaining whether he was incorrectly deprived of pre-
10

sentence credit”). Here, a review of the complete criminal docket in this matter6

reveals that on April 30, 2013, the PCRA Court did not issue an order dismissing 

his PCRA petition, but rescheduled the hearing on that claim. (Criminal Docket 

Number CP-51-CR-0012265-2008 at 12.) On May 1, 2013, the PCRA Court 

issued a “Dismissal Notice Under Rule 907” indicating that a “Finley letter [was] 

filed. 907 Notice issued. Court rules, no merit. Listed for formal dismissal,” and 

the official notice of dismissal was filed on May 6, 2013. (Criminal Docket 

Number CP-51-CR-0012265-2008 at 12.) The PCRA Court dismissed Pryor’s 

PCRA petition on June 21, 2013. (Criminal Docket Number CP-51-CR-0012265-

2008 at 12.) To the extent Pryor argues that this was because the court determined 

that mandamus relief was available in this Court, we have concluded otherwise. 

The relief Pryor seeks is not available pursuant to a mandamus action in this 

Court’s original jurisdiction.

Because neither the Sentencing Order nor the DC-300B Form clearly 

provide Pryor with credit for time served, Pryor has not satisfied his heavy burden 

of establishing that he has a clear right to relief in mandamus. Accordingly, we 

sustain Respondents’ PO and dismiss the Petition with prejudice.

 

________________________________

 RENÉE COHN JUBELIRER, Judge

 

6

Pryor attaches a part of the criminal docket, but not the whole docket, to his Petition as 

Exhibit B.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jermaine Pryor, :

:

Petitioner :

:

v. : No. 355 M.D. 2015

:

PA Dept. of Corrections, Records :

Supervisor Sandra Gerula, :

:

Respondents :

O R D E R

NOW, April 27, 2016, the Preliminary Objection filed by the PA Dept. of 

Corrections, Records Supervisor Sandra Gerula to the Petition for Review in the 

Nature of Mandamus (Petition) filed by Jermaine Pryor is SUSTAINED, and the 

Petition is DISMISSED WITH PREJUDICE.

________________________________

 RENÉE COHN JUBELIRER, Judge