IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph [Anthony] Montgomery, :

Petitioner :

:

v. : No. 525 M.D. 2015

: Submitted: November 18, 2016

Pennsylvania Department of :

Corrections, et al., :

Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: March 17, 2017 

Before this Court in our original jurisdiction are the preliminary 

objections of the Pennsylvania Department of Corrections (Department) to a 

petition for review in the nature of mandamus (Petition) filed by inmate Joseph 

Anthony Montgomery (Montgomery), pro se. Montgomery asks this Court to 

direct the Department to recalculate his prison sentence.1 For the reasons 

expressed below, we overrule DOC’s preliminary objections.

Montgomery is an inmate currently confined at the State Correctional 

Institution at Houtzdale (SCI-Houtzdale). On March 11, 2014, the Court of 

Common Pleas of Delaware County (sentencing court) sentenced Montgomery 

 

1

“Where a trial court’s sentencing order is legal on its face, . . . a prisoner may petition 

this Court in our original jurisdiction seeking a writ of mandamus to compel [the Department] to 

properly compute a prisoner’s prison sentence.” Barndt v. Dep’t of Corr., 902 A.2d 589, 598 

(Pa. Cmwlth. 2006); Doxsey v. Cmwlth., 674 A.2d 1173, 1175 (Pa. Cmwlth. 1996). 
2

to 11 months, 15 days to 23 months, on indictment CP6885-13 (First Sentence). 

On April 29, 2011, the sentencing court sentenced Montgomery on two additional 

indictments: 1 to 2 years on indictment CP4510-13 (Second Sentence), and 3 to 23

months on indictment CP3968-13 (Third Sentence). Finally, on May 8, 2014, the 

sentencing court sentenced Montgomery to 30 to 72 months on CP6055-13 (Fourth 

Sentence).

Pertinent to our instant review of this matter, the sentencing form for 

the Third Sentence contained language that the parties now contest. The form 

provided that the Third Sentence should be served concurrent to the First Sentence, 

and consecutive to the Second Sentence. Based on the four sentencing forms, the 

Department calculated Montgomery’s total sentence to be 4 years, 8 months, 

and 15 days to 11 years, 10 months. Montgomery challenged the Department’s 

calculation, first with the Department and then with the sentencing judge. When 

the sentencing judge informed Montgomery that the correct avenue to challenge 

the Department’s calculation was through a petition for review, Montgomery filed 

his Petition with this Court. Montgomery contests the aggregation of all his 

sentences because the trial court ordered the Third Sentence to be served

concurrent to the First Sentence. Montgomery argues that his sentence, correctly 

calculated with the concurrent sentences, should be 4 years, 5 months, and 15 days 

to 9 years, 11 months.

In this case, the Department demurs to Montgomery’s Petition based 

upon its assertion that Montgomery has not pleaded facts showing that he has a 

clear right to relief. Namely, the Department makes the following assertion for 

why Montgomery is not entitled to mandamus:

Petitioner offers nothing more than his own unsupported 

allegations that his sentence has been improperly 
3

calculated, while also failing to provide a clear, 

unsupported, logical calculation of his own. 

(Prel. Obj. at 3, ¶13.) The Department avers that it relied on the sentencing orders 

in its calculation, which it must faithfully implement as an executive branch 

agency. (Id. at ¶¶14-15.)

In ruling on preliminary objections, we accept as true all well-pleaded 

material allegations in the petition for review and any reasonable inferences that 

we may draw from the averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa. 

Cmwlth. 1994). The Court, however, is not bound by legal conclusions, 

unwarranted inferences from facts, argumentative allegations, or expressions of 

opinion encompassed in the petition for review. Id. We may sustain preliminary 

objections only when the law makes clear that the petitioner cannot succeed on his 

claim, and we must resolve any doubt in favor of the petitioner. Id. When 

considering preliminary objections in the nature of a demurrer, we may sustain a 

demurrer only when a petitioner has failed to state a claim for which relief may be 

granted. Clark v. Beard, 918 A.2d 155, 158 (Pa. Cmwlth. 2007). Moreover, we 

have held that “a demurrer cannot aver the existence of facts not apparent from the 

face of the challenged pleading.” Martin v. Dep’t of Transp., 556 A.2d 969, 971 

(Pa. Cmwlth. 1989).

At this stage in the proceedings, we conclude that the Department has 

not demonstrated that Montgomery cannot succeed on his claim. He is permitted, 

pursuant to Doxsey v. Commonwealth, 674 A.2d 1173 (Pa. Cmwlth. 1996), to seek 

mandamus to compel the Department to correctly calculate his sentence. Doxsey, 

674 A.2d at 1175. Montgomery has, therefore, stated a claim for which relief may 

be granted. We further note that the Department has provided no clarity as to how 

the Third Sentence was correctly applied, concurrent to the First Sentence and 
4

consecutive to the Second Sentence. While we make no final determination as to 

the merits of the Petition, at this point in the proceedings we must overrule the 

Department’s preliminary objections. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph [Anthony] Montgomery, :

Petitioner :

:

v. : No. 525 M.D. 2015

:

Pennsylvania Department of :

Corrections, et al., :

Respondent(s) :

O R D E R

AND NOW, this 17th day of March, 2017, the preliminary objections 

filed by the Pennsylvania Department of Corrections (Department) are overruled. 

The Department is directed to file an answer on or before April 17, 2017.

 

 P. KEVIN BROBSON, Judge