R. Benchoff v. OAG

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Benchoff, :
Petitioner :
:
v. : No. 185 M.D. 2019
: SUBMITTED: October 18, 2019
Office of the Attorney General, :
Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: September 15, 2020

Before the Court are the preliminary objections of the Office of the
Attorney General (OAG) to the Petition for Review in the Court’s original
jurisdiction of Robert Benchoff, an inmate at the State Correctional Institution in
Camp Hill proceeding pro se, seeking declaratory relief to compel OAG to conduct
a hearing under the Administrative Agency Law (AAL)1 on his challenge brought
under the Criminal History Records Information Act (CHRIA).2 Benchoff wishes
to challenge allegedly erroneous information maintained by the Pennsylvania
Department of Corrections (DOC) and the Pennsylvania Board of Probation and
Parole3 (Parole Board), i.e., his classification by the Parole Board and DOC as a
“violent offender.” Also before the Court is Benchoff’s motion for judgment on the

1
2 Pa.C.S. §§ 501 - 508, 701 - 704.

2
18 Pa.C.S. §§ 9101 - 9183.

3
The agency’s name has since been changed to the Pennsylvania Parole Board.
pleadings. We deny both OAG’s preliminary objections and Benchoff’s motion for
judgment on the pleadings.
By way of pertinent background, we note that Benchoff’s status in the
records of the Parole Board and DOC as a violent offender has been the subject of
previous litigation. See Benchoff v. Yale, (M.D. Pa., Civil No. 3:11-CV-1106, filed
Sept. 30, 2013), aff’d, 620 F. App’x 114 (3d Cir. 2015). Benchoff filed a previous
action in federal court against various persons associated with DOC and the Parole
Board under Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. That
case challenged, inter alia, his status as a violent offender which he alleged increased
the stringency of requirements he must meet for parole. In 1995, Benchoff had pled
guilty to two counts of interference with child custody and was found guilty of one
count of burglary. The aggregated sentence for these convictions was six to thirty-
two years. Benchoff claimed that burglary was not considered a violent offense at
the time he committed it in 1994. The District Court ultimately granted summary
judgment against Benchoff and closed the case and the United States Court of
Appeals for the Third Circuit affirmed. In affirming, the Third Circuit stated: “We
agree with the District Court’s conclusion that the Parole Board may have changed
its policy as to whether it considered burglary a violent offense after Benchoff
committed his crime, but the record does not reflect that such a change
disadvantaged him.” 620 F. App’x at 117.
In December 2017, Benchoff seized upon the statement by the Third
Circuit that the Parole Board “may have changed its policy . . . .” and requested
under Section 9152(c) of CHRIA, 18 Pa.C.S. § 9152(c),4 that DOC and the Parole

4
Section 9152(c) of CHRIA provides, in relevant part, as follows:

2
Board change information in their possession which designated him as a “violent
offender.” (Benchoff Pet. ¶ 5 and Ex. 1.) The agencies took no substantive action
on his request within sixty days as required under 18 Pa.C.S. § 9152(d). (Benchoff
Pet. ¶ 6 and Ex. 2.) An attorney for DOC sent a letter in December 2017 stating that
if Benchoff wished to review DOC records pertaining to sentencing information, he
might send a request to staff, but that a request for review of other criminal history
information must be sent to the Pennsylvania State Police. (Benchoff Pet. Ex. 2.)
The Parole Board denied the request on the basis that records in the possession of
the Parole Board are private, confidential, and privileged under 37 Pa. Code § 61.2.
(Id.)
In February 2018, Benchoff appealed to OAG from the denial of his
requests to DOC and the Parole Board and requested a hearing under the AAL. In
August 2018, an attorney designated as the Administrative Law Judge (ALJ) for the
matter sent a letter to Benchoff stating that he would receive notice in the “near
future” regarding the conduct of a hearing in connection with his appeal. (Benchoff
Pet. ¶ 7 and Ex. 3) In January 2019, Benchoff filed a motion with the assigned ALJ
to set a calendar date for a hearing. (Benchoff Pet. ¶ 8 and Ex. 4.) In March 2019,
Benchoff sent a letter to Attorney General Josh Shapiro setting forth the history of
the appeal and delay in holding a hearing, renewing his request for a hearing.
(Benchoff Pet. ¶ 8 and Ex. 5.) On March 29, 2019, Benchoff filed the instant matter

(c) Challenge to accuracy.—The individual may challenge the
accuracy of his or her criminal history record information by
specifying which portion of the record is incorrect and what the
correct version should be. . . .

18 Pa.C.S. § 9152(c).

3
with this Court, seeking declaratory judgment directing OAG to promptly schedule
a hearing and to reimburse him fees and costs.
On April 2, 2019, shortly after Benchoff’s filing of his Petition, the ALJ
issued an order which stated that a prehearing conference would be conducted on
May 10, 2019 and an evidentiary hearing would be conducted on June 14, 2019.
Benchoff, taking the scheduling of a hearing as mooting his Petition, filed a motion
for judgment on the pleadings under Rule No. 1034 of the Pennsylvania Rules of
Civil Procedure, in which he asserted that since he had succeeded in obtaining the
relief requested in his petition, he was entitled to costs and counsel fees.5 Thereafter,
OAG filed preliminary objections to Benchoff’s Petition, asserting lack of subject
matter jurisdiction by this Court (based on the mootness doctrine, citing Benchoff’s
motion for judgment on the pleadings) and legal insufficiency of the petition
(demurrer).6
In order to ascertain whether the matter was indeed moot, this Court
issued a rule to show cause by per curiam order on April 9, 2020. The order directed
Benchoff to explain why OAG’s preliminary objections should not be granted and
Benchoff’s Petition dismissed as moot and directed OAG to file a response.
Benchoff filed a reply which stated his motion for judgment on the pleadings might
have been premature because the hearing was ultimately not held as scheduled and
had not been rescheduled. OAG did not file a response to Benchoff’s reply to the
rule to show cause.

5
OAG, in opposing the motion, stated that based on its content, the motion was actually a
motion for default judgment under Rule No. 1037 of the Pennsylvania Rules of Civil Procedure.
(OAG’s Br. Opp. Mot. Judgment on the Pleadings ¶ 1.) As Benchoff now states that the motion
was prematurely filed, we do not reach the merits.

6
OAG characterizes the petition as being one of mandamus rather than for declaratory relief.
(OAG’s Prelim. Objs. ¶ 5.)

4
 We first address Benchoff’s argument that OAG has waived the issues
raised in its preliminary objections because he alleges OAG received service of his
Petition for Review on April 1, 2019, but did not file its Preliminary Objections until
more than thirty days later, in excess of the time permitted by Rule 1516 of the
Pennsylvania Rules of Appellate Procedure (“[e]very pleading filed after an original
jurisdiction petition for review shall be filed within 30 days after service of the
preceding pleading . . . .”). This argument is unavailing, because OAG filed a motion
for extension of time, which was granted by the Court. Rule 105(b) of the
Pennsylvania Rules of Appellate Procedure provides that with a few exceptions not
relevant to this matter, “[a]n appellate court for good cause shown may upon
application enlarge the time prescribed by these rules or by its order for doing any
act, or may permit an act to be done after the expiration of such time.” Thus, the
Court was within its authority in granting the extension of time to file a response.
OAG filed preliminary objections within the enlarged period of time granted and has
not waived them.
OAG’s first preliminary objection7 is that the Court lacks subject matter
jurisdiction because Benchoff has already obtained the relief sought, i.e., the
scheduling of a hearing on the CHRIA challenges. While Benchoff’s motion for
judgment on the pleadings suggested that this was the case, it is now undisputed that
no hearing has taken place or been scheduled. Thus, we find that the matter is not
moot.

7
In reviewing preliminary objections, all material facts averred in the complaint, and all
reasonable inferences that can be drawn from them, are admitted as true. Stedman v. Lancaster
Cty. Bd. of Comm’rs, 221 A.3d 747, 755 (Pa. Cmwlth. 2019). However, a court need not accept
as true conclusions of law, unwarranted inferences, argumentative allegations, or expressions of
opinion. Id. Preliminary objections should be sustained only in cases that are clear and free from
doubt. Id.

5
 OAG’s second preliminary objection is that Benchoff’s Petition is
legally insufficient. OAG notes that CHRIA requires only that OAG conduct a
hearing de novo in accordance with the AAL, and does not require OAG to schedule
a hearing within a particular time. Thus, OAG argues that Benchoff does not have
a clear legal right to compel OAG to schedule a hearing promptly.
We disagree, because even though not explicitly raised as such,
Benchoff’s Petition implicates issues of due process.8 While Section 9152(e) of
CHRIA, 18 Pa.C.S. § 9152(e), and the AAL, and applicable regulations,9 do not
establish a time limit or frame for the holding of a hearing, the AAL “provide[s] a
default mechanism for the provision of hearings and for appeals from administrative

8
The allegations of a pro se complainant are held to a less stringent standard than that applied
to pleadings filed by attorneys. Stodghill v. Pa. Dep’t of Corr., 150 A.3d 547, 551 (Pa. Cmwlth.
2016), aff’d, 177 A.3d 182 (Pa. 2018). If a fair reading of the complaint shows that the complainant
has pleaded facts that may entitle him to relief, the preliminary objections will be overruled. Id.

9
A regulation promulgated under the AAL provides for a hearing calendar:

(a) The agency will maintain a hearing calendar of all proceedings
set for hearing.

(b) In the absence of cause requiring otherwise, and as time, the
nature of the proceedings, and the proper execution of the functions
of the agency permit, matters required to be determined upon the
record after hearing or opportunity for hearing will be placed upon
the hearing calendar. Proceedings pending upon this calendar will
in their order of assignment, so far as practicable, be heard at the
times and places fixed by the agency head or presiding officer,
giving due regard to the convenience and necessity of the parties or
their attorneys. The agency, in its discretion with or without motion,
for cause may at any time with due notice to the participants advance
or postpone any proceeding on the hearing calendar.

1 Pa. Code § 35.102 (relating to hearing calendar). OAG has promulgated regulations under
CHRIA governing challenges under same. See 37 Pa. Code §§ 195.1 - 195.6.

6
adjudications, which comport with due process requirements.” Turner v. Pa. Pub.
Util. Comm’n, 683 A.2d 942, 946 (Pa. Cmwlth. 1996) (emphasis added). A
fundamental requirement of due process is the opportunity to be heard, “which must
be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo,
380 U.S. 545, 552 (1965). At some point, a delay in holding a hearing may become
a constitutional violation. See Barry v. Barchi, 443 U.S. 55, 66 (1979).
This case may be contrasted with this Court’s decision in Feigley v.
Department of Corrections, 731 A.2d 220 (Pa. Cmwlth. 1999), in which a prisoner
maintained an action in mandamus asserting, inter alia, that OAG failed to
“promptly entertain” his appeal from DOC’s alleged failure to review and correct
his prison records under Section 9152 of CHRIA. In that case:

[I]n January of 1999, OAG scheduled a hearing on
Petitioner's appeal. By subsequent letter, Petitioner
waived such a hearing and asked that his appeal be
considered on the record, including the written documents
submitted by him to OAG. The evidence of record
indicates that OAG is presently assembling all written
documents and records and is considering Petitioner's
appeal. Thus, OAG is “entertaining” Petitioner's appeal
and is not in violation of Section [9152 of CHRIA, 18
Pa.C.S. § 9152].

Id. at 223. In the case at bar, OAG is alleged to have engaged in extensive delay
over the repeated protests of Benchoff. Indeed, it is averred that two years have
passed since an ALJ was appointed and notified Benchoff that “in the near future” a
hearing would be scheduled, and that over a year has passed since a hearing was
finally scheduled for June of 2019 and, for unexplained reasons, has never been held
or rescheduled. Thus, we cannot agree that Benchoff’s petition fails to state a claim.

7
 Finally, we deny Benchoff’s motion for judgment on the pleadings. As
Benchoff himself has admitted, it is premature both substantively and procedurally.
This action clearly has not been resolved in his favor at this time, which would have
to occur before any consideration of fees and costs would be ripe. Moreover, the
pleadings have not yet closed as is required by Pa. R.C.P. No. 1034(a) before
judgment on the pleadings may be requested.10
In light of the foregoing, both OAG’s preliminary objections and
Benchoff’s motion for judgment on the pleadings are denied. OAG shall file an
answer within thirty days in compliance with Rule 1516(b) of the Pennsylvania
Rules of Appellate Procedure.

_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge

10
In this regard, Benchoff has styled his application as a motion for judgment on the pleadings,
and we have treated it as such. We note that if it was treated as a motion for summary relief it
would not present the same procedural defect. See Pa. R.A.P. 1532 (relating to special and
summary relief). Neither characterization really fits squarely with this application, however, and
indeed, OAG characterized it as a motion for default judgment under Rule 1037 of the
Pennsylvania Rules of Civil Procedure (relating to judgment upon default or admission and
assessment of damages). In any case, Benchoff’s demand for fees and costs, which would become
ripe only if and after he prevails in this case, is clearly premature at this juncture and he now
concedes as much.

8
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Benchoff, :
Petitioner :
:
v. : No. 185 M.D. 2019
:
Office of the Attorney General, :
Respondent :

ORDER

AND NOW, this 15th day of September, 2020, the preliminary
objections of the Office of the Attorney General and the motion for judgment on the
pleadings of Robert Benchoff are DENIED.
The Office of the Attorney General is DIRECTED to file an answer to
Benchoff’s Petition for Review within thirty days of the filing of this Order.

_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge