IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Dieffenbach, :

Petitioner :

:

v. : No. 233 M

. D

. 2023

: Pennsylvania Board of Probation : and Parole, :

Respondent : Submitted : March 8, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE MATTHEW S. WOLF, Judg e

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOLF FILED: July 18, 2024

On May 12, 2023, Daniel Dieffenbach (Petitioner) filed a dual jurisdiction

P eti tion for R eview

, 1 seeking to challenge a condition of his parole imposed by the
Pennsylvania Parole Board (Board)

. 2 T he Board responded by filing a single

document that contains “Preliminary Objections in the Nature of a Demurrer”
(Preliminary Objections) and a “Motion to Quash and Stay Briefing Schedule” 3

1 The Commonwealth Court has o riginal jurisdiction over all civil actions against the Commonwealth. 42 Pa.C.S. § 761(a)(1). The Court also has jurisdiction over appeals from final orders of government agencies. 42 Pa.C.S. § 76 3

. In this case, Petitioner seeks relief in both this Court’s original and appellate jurisdictions.

2 Effective February 18, 2020, the Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act of December 18, 2019, P.L. 776, No. 115; see also Sections 6101 and 6111(a) of the Prisons and Parole Code, 61 Pa.C.S. §§ 6101, 6111(a).

3 Despite its title, the Board’s “Motion to Quash and Stay Briefing Schedule ” sought

, inter alia

, to stay the Board’s obligation to transmit the certified record . On June 27, 2023, the Board (Footnote continued on next page...)2

(Motion to Quash). The Preliminary Objections and Motion to Quash are now
before this Court for disposition.

BACKGROUND

The P etition for R eview avers the following. Petitioner is an adult individual
who resides in Factoryville, Pennsylvania. Petition for Review (PFR), ¶ 1. On
October 17, 2018, following a jury trial, Petitioner was found guilty in the Court of
Common Pleas of Luzerne County (trial court) of the following: (1) one count of
burglary; (2) one count of simple assault; (3) one count of recklessly endangering
another person; and (4) one count of resisting arrest. PFR, ¶ 5. Petitioner’s total

sent ence was 2 to 10 ye ars’ incarceration plus 5 years’ probation

. PFR, ¶ 6.

Petitioner was committed to a state correctional institution and was paroled on June
24, 2022. PFR, ¶ 8.

The Board’s May 9, 2022, Notice of Board Decision contained several

conditions of Petitioner ’ s parole including, inter alia

, “YOU SHALL NOT

TRAVEL OR RESIDE IN LUZERNE COUNTY FOR ANY REASON

—
MANDATORY” (Parole Condition)

. PFR, ¶ 9; PFR Exhibit B at 2. Petitioner
alleges that he attempted to remove the P arole C ondition and that the Board denied
his request on April 14, 2023

. 4 PFR, ¶ 10 ; PFR Exhibit A at 1.

filed a second motion titled “Application for Extension of Time to File Certified Record

, ” which reiterated its reques t to stay transmission of the c e rtified record pending disposition of the Preliminary Objections and Motion to Quash. By order dated June 29, 2023, this Court granted the Board’s request to stay certification of the record. Because we quash the appellate portion of Petitioner’s dual jurisdiction Petition for Review, the Board has no obligation to transmit a certified record

.

4 Paragraph 10 of the P etition for R eview appears to contain a typographical error as Petitioner states that the Board denied his request to remove the P arole C ondition on April 13, 2022.3

Petitioner a sserts that the Parole Condition is unduly burdensome to him.
PFR, ¶ 21. He notes that he has owned a restaurant in Luzerne County since 1994

and also owns rental properties in the C ounty. These constitute his only source of

income. PFR

, ¶¶ 12

- 15. Petitioner further avers that his health insurance limits
where he can seek medical treatment and his primary care physician, dentist

, and
chiropractor are all located in Luzerne County. PFR, ¶¶ 16

- 18. Finally, P etitioner’s
adult children live in the County. PFR, ¶ 20. Petitioner maintains that the Parole
Condition is not rationally related to the offenses for which he was convicted, his
rehabilitation, or the protection of society. PFR, ¶ 22. Petitioner asserts the Parole

Condition is “unconstituti onal under both the Federal and Pennsylvania
Constitutions as it unduly infringe[s] upon Petitioner’s rights to travel, property, and
due process without just cause.” PFR, ¶ 23. Petitioner asks this Court to overturn

the Board’s decision and strike the Parole Condition “and/or issue a writ of
mandamus requiring the Board to do the same.” PFR, Wherefore Clause.

PRELIMINARY OBJECTIONS /MOTION TO QUASH
Although the Board indicates that its Preliminary Objections are in the nature
of a demurrer, that is not the case. A demurrer ch allenges the legal s ufficiency of a
pleading. See Pa.R.C iv .P. 1028 (a)(4). Here, the Board’s Preliminary Objections are
both brought pursuant to Pa.R.C iv .P. 1028 (a)(1) which provides:

( a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:

(1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint [.]4

The Board’s first Preliminary Objection challenges the form of service used

for the Petition for Review. T he Board avers that service was improper because

neither the Board

, nor the Attorney General

, were served in person or by certified
mail as required by Pa.R.A.P. 1514(c). 5 Rather, the Petition for Review appears to

have been served via first class mail and eService.

In his “Response to Preliminary Objections in the Nature of a Demurrer”
(Response to Preliminary Objections)

, Petitioner argues that service of the Petition

for Review has now been accomplished via certified mail. Exhibit A to the Response
to Preliminary Objections shows two United States Postal Service (U.S. Postal
Service) Form 3811 Domestic Return Receipt s (informally known as a “green cards”
or “green slip s ” ) addressed to the Attorney General and the Board respectively

. Based on the green cards’ tracking numbers , the U.S. Postal Service website reflects

that Petitioner’s Petition for Review was delivered to the Attorney General’s Post
Office Box on July 5, 2023

, 6 and to the Board’s Post Office Box on July 7, 2023. 7

To the extent the Board’s Reply Brief asserts that service of the Petition for Review

was not yet perfected, it is apparent that the Petition for Review was delivered to the

5 Pa.R.A.P. 1514(c) states in pertinent part:

(c) Service.

-- A copy of the petition for review shall be served by the petitioner in person or by certified mail on both the government unit that made the determination sought to be reviewed and the Attorney General of Pennsylvania. Where there is more than one responde nt, the petitioner shall separately serve each one.

6 See U.S. Postal Service Tracking, No. 70223330000134832690, https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=4&text28777=&tLabels=70 223330000134832690%2C%2C%2C&tABt=false (last visited July 17 , 2024).

7 See U.S. Postal Service Tracking, No. 70223330000134832706, https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=5&text28777=&tLabels=70 223330000134832706%2C%2C%2C%2C&tABt=false# (last visited July 17 , 2024).5

Board two days after its Reply Brief was filed. Under the circumstances presented,
we believe service of the Petition for Review has been perfected. A ccordingly, the

Board’s first P reliminary O bjection is overruled.

The Board’s second P reliminary O bjection purports to challenge this Court’s
jurisdiction to hear the appellate portion of Petitioner’s case

. Importantly,

p reliminary objections may not be used to challenge this Court’s jurisdiction in an
appellate context. See Pa.R.A.P. 1516(b) ( “[ w ] here an action is commenced by
filing a petition for review addressed to the appellate court’s original jurisdiction

, the pleadings are limited to a petition for review, . . . preliminary objections, and
answers thereto.”) (emphasis supplied)

. Under the circumstances, we will treat the

Board’s second P reliminary O bjection as part of the Board’s Motion to Quash. 8
Regardless of how the issue was raised , the essence of the Board’s argument

is that this Court lacks appellate jurisdiction over Petitioner’s case because the

Board’s April 14, 2023, correspondence denying Petitioner’s request to remove the

Parole C ondition was not an appealable adjudication. In support, t he Board cites the

case of Rogers v. Pennsylvania Board of Probation and Parole , 724 A.2d 319 (Pa.
1999) ( Rogers )

. Article V, s ection 9 of the Pennsylvania Constitution of 1968 provides for a
right of appeal from an administrative agency to a court of record. P A

. C ONST

. art.
V, § 9. “However, this provision does not apply to agency actions that are not
‘adjudications ’ or decisions that are not judicial in nature. ” Wheeler v. Pa. Bd. of

Prob. and Parole

, 862 A.2d 127, 129 (Pa. Cmwlth. 2004) (citing McVickar v. Dep’t

8 Indeed, the Board incorporated its second P reliminary O bjection challenging this Court’s appellate jurisdiction into the Motion to Quash portion of the filing.6

of Transp. , 388 A.2d 775, 776 (Pa. Cmwlth. 1978 )). Section 101 of the
Administrative Agency Law 9 defines an adjudication as follow s:

Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made. The term does not include any order based upon a proceeding before a court or which involves the seizure or forfeiture of property, paroles , pardons or releases from mental institutions.

2 Pa.C.S. § 101 (emphasis supplied).

In Rogers , our Supreme Court held that when the Board exercises its parole
powers, it is not a n adjudicatory action. The Rogers Court stated:

[T]he definition of adjudication clearly and unambiguously provides that parole decisions are not ones which are subject to appellate review by the courts. Therefore, because the General Assembly, in its wisdom, has conferred upon the [] Board sole discretion to determine whether a prisoner is sufficiently rehabilitated to serve the remainder of his sentence outside of the confines of prison, we hold that the courts of the Commonwealth do not have statutory jurisdiction to conduct appella te review of a decision of the Board, since such a decision does not constitute an adjudic ation.

Rogers , 724 A.2d at 322.

In Wheeler , this Court faced a situation very similar to the one presently before
us. In that case, Stanley Wheeler (Wheeler) petitioned for review of a letter written
by the District Director of the Williamsport District Office of the Board, denying his
request to revoke a special parole condition that he “ not contact or associate with
[Wheeler’s wife] except as permitted, in writing, by parole agent

- Mandatory.”

9 2 Pa.C.S. §§ 501

- 508, 701

- 704

.7

Wheeler , 862 A.2d at 129. In response, the Board filed a “Motion to Dismiss for
Want of Jurisdiction in the Unified Judicial System.” Id. Therein, the Board asserted
that the letter was not an adjudication and therefore could not be appealed. Citing
Rogers , the Court granted the motion to dismiss. The Court reasoned, “when the
Board imposes a condition of parole, which is really a ‘lesser included power’ within
the general power to grant parole, its action cannot be deem ed an ‘adjudication’ for
purposes of appellate review.” Id. at 130.
Our Supreme Court’s decision in Rogers and t his Court’s holding in Wheeler

dictate the same result here. The Board , in granting Petitioner parole, imposed the

Parole Condition that he not travel or reside in Luzerne County. Per Wheeler , the

Board ’s imposition of the condition was an action taken within its general powers to
grant parole. Because pa role decisions/conditions are not adjudications or subject
to review by this Court, we grant the Board’s Motion to Quash the appellate portion
of this dual jurisdiction matter.

CONCLUSION

Because Petitioner has cured the defective service of his dual
jurisdiction Petition for Review, the Board’s Preliminary Objection alleging
improper service is overruled. With regard to the appellate portion of Petitioner’s
action, it is apparent that the Board’s April 14, 2023 correspondence denying
Petitioner’s request to remove the Parole Condition is not an appealable
adjudication. Accordingly, the Board’s Motion to Quash the appellate portion of
this action is granted.

__________________________________ MATTHEW S. WOLF , J udgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Dieffenbach

, :

Petitioner :

:

v. : No. 233 M

. D

. 2023

: Pennsylvania Board of Probation : and Parole

, :

Respondent :

O R D E R

AND NOW, this 18th day of July

, 20 24 , the P ennsylvania Parole
Board’s (Board) Preliminary Objection to Daniel Dieffenbach’s (Petitioner) dual
jurisdiction Petition for Review asserting improper service is OVERRULED. The
Board shall respond to the original jurisdiction portion of the Petition for R eview
within 30 days of the exit date of this Order.

The Board’s Motion to Quash the appellate portion of Petitioner’s dual
jurisdiction P etition for R eview is GRANTED.

__________________________________ MATTHEW S. WOLF , J udge