Weaver v. Pennsylvania Board of Probation & Parole

FRIEDMAN, Judge,

dissenting.

I respectfully dissent. Because I believe that Ronald D. Weaver’s (Weaver) mandamus petition states a cause of action which is properly before this court, I would overrule the Pennsylvania Board of Probation and Parole’s (Board) preliminary objection in the nature of a demurrer.1

In reaching a contrary result, the majority: (1) violates the rule of law governing preliminary objections, which requires this court to accept all well pled allegations as true and which prohibits this court from considering factual matters not disclosed in the record, Hawks by Hawks v. Livermore, 157 Pa.Cmwlth. 243, 629 A.2d 270 (1993); 2 Goodrich-Amram 2d § 1017(b):29; (2) ignores the rule of law permitting a mandamus petition to compel a discretionary act where the prior exercise of discretion was arbitrary, County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985); Commonwealth ex rel. Lindsley v. Robinson, 30 Pa.Cmwlth. 96, 372 A.2d 1258 (1977); see also Standard Pennsylvania Practice 2d, § 99:6 (1983) (“[I]f discretion is arbitrarily exercised, mandamus will lie.”); (3) fails to recognize fully the Board’s mandatory duty “not to interfere with the exercise of [the constitutional] rights” of prisoners, Lindsley, 372 A.2d at 1261; and (4) ignores the rule of law providing that, unless there is an error of law or resulting prejudice to an adverse party, the right to amend a pleading should be liberally granted at any stage of the proceedings. Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996).2

I. Preliminary Objections

In addressing a preliminary objection in the nature of a demurrer, this court must determine whether, on the facts alleged, the law states with certainty that no recovery is possible. We must accept as true all well pled allegations and material facts averred in the complaint, as well as inferences reasonably deducible therefrom, and any doubt should be resolved in favor of overruling the *780demurrer.3 Hawks by Hawks. Moreover, “[i]n ruling on a demurrer, a court may not consider factual matters not disclosed in the record.... Only such matters as arise out of a pleading itself may be considered, and the decision must be on the pleading alone.” 2 Goodrich-Amram 2d § 1017(b):29.

Weaver’s petition contains the following allegations. Weaver was sentenced to a minimum term of ten years and, at sentencing, the court stated that he would be eligible for parole at the expiration of the minimum sentence. (Weaver’s petition, paras. 2-3.) However, when Weaver became eligible for parole, Department of Corrections (Department) staff told Weaver that, although he had an excellent prison record and was low risk, Weaver would never be recommended for parole because he would not admit guilt in order to be eligible to participate in the Institutional Sex Offender Program. (Weaver’s petition, paras. 4-6.) Weaver informed the Department’s staff that his criminal conviction was on appeal, and that the Department could not force him to commit perjury by stating that he committed a crime that he did not commit. (Weaver’s petition, para. 7.)

Subsequently, at a parole hearing, a Board member told Weaver that parole was denied solely because Weaver would not admit guilt in order to be eligible for the sex offender program.4 Weaver informed the Board member that his criminal conviction was on appeal, and that the Board could not force him to commit perjury by stating that he committed a crime that he did not commit. (Weaver’s petition, paras. 10-11.)

Weaver avers that the Department and the Board have conspired to force him to be a witness against himself in violation of his constitutional right against self-incrimination and, because of politics and the fear of losing their jobs, have invidiously discriminated against him as a convicted sex offender and have rendered their decisions in an arbitrary and capricious manner. (Weaver’s petition, paras. 14 — 16.) Weaver further alleges that the Board rendered its decision in retaliation for the exercise of his constitutional right and because of political pressure, ignoring the criteria for parole set forth in the Parole Act.5 (Weaver’s petition, paras. 18-22, 24.) Finally, Weaver challenges the Board’s other grounds for denial of parole. (Weaver’s petition, paras. 26-27, 37, 39.)

Accepting as true all of Weaver’s well pled allegations and assuming no facts outside the pleading, I believe that Weaver has stated a cause of action in his petition. Indeed, at this preliminary objection stage, I cannot say as a matter of law that he is not entitled to relief. Unfortunately, in reaching its result, the majority fails to accept Weaver’s well pled allegations as true and assumes factual matters which are not in the record before us.

*781The majority states that admitting guilt is a precondition to the successful treatment of sex offenders and, therefore, failure to admit guilt is a valid reason for denying parole. (Majority op. at 773, 774, 775, 778.) However, in this statement, the majority addresses, as relevant, an argument which Weaver has not made. To the contrary, Weaver’s petition alleges that the Board’s denial of parole for that reason was arbitrary and capricious,6 that it was based on politics, retaliation and a conspiracy to force him to admit guilt and thereby perjure himself while his criminal conviction was on appeal. (Weaver’s petition, paras. 13, 19, 25.) By law, we must accept this as true; we cannot, as the majority has done here, create an extraneous fact to discredit the allegations in Weaver’s petition.

II. Mandamus

Mandamus is an extraordinary writ of common law, designed to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant and want of any other adequate and appropriate remedy.7 Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050, 101 S.Ct. 1771, 68 L.Ed.2d 247 (1981). Where the action sought to be compelled is discretionary, mandamus will not lie to compel that discretionary act except where such exercise is arbitrary, fraudulent or based upon .a mistaken view of the law. County of Allegheny; Lindsley.

Thus, because mandamus is a proper cause of action in cases where the exercise of discretion was arbitrary, and because Weaver alleges here that the Board acted in an arbitrary manner, Weaver’s mandamus action is quite proper here. Because the majority nowhere addresses this averment or the applicable rule of law, I believe that the majority’s analysis is deficient and, therefore, cannot support the dismissal of Weaver’s action against the Board.

*782III. Mandatory Duty

A. Constitutional Mandates

The U.S. Supreme Court has stated that judicial discretion is a legal discretion, not a personal discretion, and it must be exercised in conformity to the constitution and the laws of the land. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). In other words, the Board here does not have discretion to violate the U.S. Constitution or the Pennsylvania Constitution; quite the contrary, the Board has a mandatory duty to exercise its discretion in compliance with them.

The majority, citing Lindsley, acknowledges that government officials may not interfere with the constitutional rights which prisoners possess. (Majority op. at 776, n. 18.) In fact, I find Lindsley to be directly on point. In Lindsley, as in this case, we considered preliminary objections in the nature of a demurrer to a prisoner’s mandamus petition which alleged that the Board denied parole based on the unconstitutional acts of the Department.8 Because Lindsley involved a mandamus petition, this court specifically addressed the prisoner’s clearly defined rights and the officials’ corresponding duties.9 We held that public officials have a mandatory duty not to interfere with the exercise of a prisoner’s constitutional rights.10

1. Equal Protection

The Board has a mandatory duty to comply with the Equal Protection Clause of the U.S. Constitution and Article I, Section 26 of the Pennsylvania Constitution. Weaver alleges that the Board has invidiously discriminated against him because other criminals do not have to admit guilt to be considered for parole.

Equal protection analysis requires strict scrutiny of a classification when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Because the Board in this ease subjects to disparate treatment convicted sex offenders who exercise their Fifth Amendment privilege, the classification here interferes with the exercise of an individual’s fundamental right against self-incrimination. Thus, the matter deserves strict scrutiny. Absent any evidence that the Board’s requirement is necessary to protect a compelling state interest, this court must overrule the demurrer.

The majority refuses to recognize Weaver’s discrimination claim because the Department, not the Board, operates the sex offender program which requires Weaver to admit guilt. (Majority op. at 777.) However, the Board, not the Department, denied Weaver parole because Weaver would not admit guilt and participate in the Department’s sex offender program. Moreover, in denying parole, the Board relied on the Department’s negative recommendation. Thus, to the extent that the Board based its parole decision on the Department’s unconstitutional actions, the Board has interfered with Weaver’s constitutional rights.

2. Fifth Amendment

The Board also has a mandatory duty to comply with the Fifth Amendment to the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution. Weaver al*783leges that the Board deprived him of his constitutional right not to incriminate himself.11 The majority states that Weaver exercised his right against self-incrimination here and must suffer the adverse consequences. (Majority op. at 777.) In other words, the majority suggests that there was no actual deprivation of a fundamental right here. However, in ruling on a demurrer, where there must be certainty that the law will not allow recovery, I cannot say that the requirement to admit guilt does not, in some way, deprive Weaver of his right against self-incrimination.

Indeed, one of the purposes of the Fifth Amendment privilege is to prevent the state from overcoming the mind and will of the individual. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Here, Weaver alleges that the state is “conspiring to force [him] to be a witness against himself.” (Weaver’s petition, para. 14.) (Emphasis added.) Moreover, in Miranda v. Arizona, 384 U.S. 436, 459-60, 86 S.Ct. 1602, 1619-20, 16 L.Ed.2d 694 (1966) (citations omitted) (emphasis added), the U.S. Supreme Court stated:

Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that “illegitimate and unconstitutional practices get their first footing ... by silent approaches and slight deviations from legal modes of procedure.” ... The privilege [against self-incrimination] was elevated to constitutional status and has always been “as broad as the mischief against which it seeks to guard.” ... We cannot depart from this noble heritage.

I believe that requiring Weaver to incriminate himself in order to be considered for parole is a subtle encroachment on his fundamental right, and we must guard against such mischief.

3. Excessive Penalty

The Board has a mandatory duty to comply with the requirements of the Eighth Amendment of the U.S. Constitution and Article I, Section 13 of the Pennsylvania Constitution. Weaver’s petition indicates that the sentencing judge intended him to be eligible for parole after the expiration of his minimum sentence. Weaver thereby suggests that requiring convicted sex offenders to admit guilt in order to be eligible for parole modifies the original sentence imposed by the sentencing judge and, in fact, creates an illegal sentence and an excessive penalty.

Section 9756(c) of the Sentencing Code, 42 Pa.C.S. § 9756(c)(emphasis added), provides as follows:

(c) Prohibition of parole.-Except in the case of murder of the first degree, the court may impose a sentence of imprisonment without the right to parole only when:
(1) a summary offense is charged;
(2) sentence is imposed for nonpayment of fines or costs, or both, in which ease the sentence shall specify the number of days to be served; and
(3) the maximum term or terms of imprisonment imposed on one or more indictments to run consecutively or concurrently total less than 30 days.

Quite clearly, in this case, the trial court could not impose a sentence of imprisonment which denied Weaver the right to parole. Likewise, the Board cannot impose a requirement on Weaver which, in effect, alters the sentencing judge’s sentence such that Weaver must serve a term of imprisonment without the right to parole.12 I believe that such *784constitutes an excessive penalty for the particular crime.

Years ago, the legislature of this Commonwealth enacted the Barr-Walker Act, Act of January 8, 1952, P.L. (1951) 1851, formerly 19 P.S. §§ 1166-1174. Under the Barr-Walker Act, certain convicted sex offenders could receive an indeterminate prison term of one day to life, subject to the discretion of the parole board.13 In Commonwealth v. Dooley, 209 Pa. Superior Ct. 519, 282 A.2d 45 (1967), our superior court declared the Barr-Walker Act unconstitutional because; under Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), the act imposed a magnified sentence without providing a full panoply of constitutional due process protections.14

. As the legislature did with the Barr-Walker Act, the Board has imposed upon Weaver a magnified sentence, imprisonment for the maximum term without the right to parole. As with the Barr-Walker Act, I do not believe that the Board can magnify Weaver’s criminal sentence simply because he is a convicted sex offender who has asserted his Fifth Amendment privilege against self-in-erimination.

4. Due Process

The Board has a mandatory duty to comply with the Fourteenth Amendment of the U.S. Constitution and Article I, Section 11 of the Pennsylvania Constitution. Weaver alleges that the decision of the Board was arbitrary and capricious, a violation of Weaver’s constitutional right to substantive due process.

Weaver has a liberty interest flowing from the due process clause in having the Board consider his application for parole without violating his constitutional rights. Block. Because Weaver alleges that the Board faded to perform its mandatory duty to protect his constitutional right to substantive due process, Weaver has stated a cause of action in mandamus.

Indeed, in Block, 631 F.2d at 235-36 (emphasis added) (citations omitted), the Third Circuit Court of Appeals stated:

In Greenholtz [v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979),] the [U.S. Supreme Court] held that there is no liberty interest in parole release ... to which procedural due process protections attach. This holding, however, does not stand for the proposition that once a state decides to provide that which it is not constitutionally compelled to offer, there are no constitutional limitations whatsoever on the basis for making decisions under the program. To interpret Green-holtz as so holding would be to ascribe to that opinion the intent to initiate a major upheaval in due process jurisprudence. The case, however, does not contravene the time-honored principle that “the touchstone of due process is protection of the *785individual against arbitrary action of government". ...
[Although “nothing in the Constitution requires a State to provide for probation or parole ... when a State adopts a parole system that applies general standards of eligibility, prisoners justifiably expect that parole will be granted fairly and according to law whenever those standards are met.
The presence of a large measure of discretion in a parole system ... does not alter the fundamental due process limitation against capricious decisionmaking. A legislative grant of discretion does not amount to a license for arbitrary behavior. .... [A] state statute may not sanction totally arbitrary parole decisions founded on impermissible criteria. Under the Supremacy Clause, a state statute may not vitiate the fundamental due process right to be free from arbitrary governmental action._ Thus, ... courts can review the substance of parole decisions, as distinguished from the adequacy of the procedures, to determine whether a parole board exercised its authority arbitrarily.

Quite clearly, then, Weaver has stated a substantive due process claim which would be recognized by the Third Circuit Court of Appeals.

The majority, however, fails to address whether Weaver’s allegation of arbitrary and capricious decisionmaking states a federal substantive due process claim cognizable in this court.15 Indeed, this court has never addressed whether it will recognize such a federal claim in a mandamus action, and, until we do, the law does not state with certainty that no recovery is possible on the matter.

B. Statutory Mandates

The majority concedes that mandamus lies to compel the performance of a mandatory duty under statutory law. (Majority op. at 776.) However, the majority either ignores or rejects the following mandatory duties, imposed upon the Board by Pennsylvania statutes, which are particularly relevant to Weaver’s mandamus petition.

First, as noted above, a court may not impose a sentence of “imprisonment without the right to parole” except for eases of first degree murder or for cases involving minor offenses. 42 Pa.C.S. § 9756(c). Thus, in Pennsylvania, sex offenders must receive a minimum term to establish a parole eligibility date. Krantz v. Pennsylvania Board of Probation and Parole, 86 Pa.Cmwlth. 38, 483 A.2d 1044 (1984). The Board, in the exercise of its power to parole, may not consider improper factors which, in effect, eliminate this statutorily required minimum sentence and require the prisoner to serve the maximum term without the right to parole.

Second, by statute, the Board may parole a prisoner after the expiration of the minimum term when “the best interests of the convict justify or require his being paroled and it does not appear that the interests of the Commonwealth will be injured thereby.” Section 21 of the Parole Act, 61 P.S. § 331.21. Without any evidence that admitting guilt is in the best interests of the convict and without any evidence that failure to admit guilt will injure the interests of the Commonwealth, I fail to see how the Board could properly perform this mandatory duty.

Third, the factors which the Board may consider in making a parole decision are prescribed by statute.16 See Section 19 of the Parole Act. If the Board considers im*786proper factors, then the Board has failed to perform its mandatory duty under the law. Thus, I fad to see how the majority can conclude that mandamus does not lie where a prisoner alleges that the Board considered improper factors. (Majority op. at 777.)

IY. Leave to Amend

The majority acknowledges that mandamus is proper where an agency’s action is based on a mistaken view that the law gives the agency discretion to act when, in fact, the law mandates a particular action or procedure. (Majority op. at 776.) Thus, here, mandamus is proper because, as Weaver alleges, the Board’s action is based on its mistaken view that, in the exercise of its discretion, the Board may violate Weaver’s constitutional right against self-incrimination.

The majority then notes that, under this rule of law, the only relief that Weaver can obtain through mandamus is an order directing the Board to foEow appropriate procedures and to properly apply the law in ruling on his appKcation for parole. (Majority op. at 777.) I agree. If Weaver prevails on his mandamus petition, this court may issue an order to compel the Board to exercise its discretion without violating Weaver’s constitutional rights.17

However, unlike the majority, I would not dismiss Weaver’s mandamus petition simply because Weaver improperly asks this court to order his release on parole. Unless there is an error of law or resulting prejudice to an adverse party, the right to amend a pleading should be Hberally granted at any stage of the proceedings. Werner. Because I find no error of law or prejudice to the adverse parties here, I would grant Weaver leave of court to amend his petition pursuant to Rules 1028(e) and 1033 of the Pennsylvania Rules of Civil Procedure.

V. Conclusion

Because we are dealing with a demurrer here and because I believe that Weaver’s mandamus petition is properly before this court, I would overrule the Board’s preliminary objection and grant Weaver leave to amend his petition for review to request appropriate reHef.18

SMITH, J., concurs with this dissenting opinion insofar as it would grant leave to amend.

. I agree with the majority that this court is not bound by Burkett v. Love, 89 F.3d 135 (3d Cir.1996). Thus, the majority’s failure to follow Burkett is not the basis for my dissent.

Nevertheless, I point out that Burkett is relevant here only with respect to its assertion that, under Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986), mandamus is available to compel the Board to correct a mistake in applying the law. While the majority eventually addresses the propriety of an original jurisdiction mandamus action in this case, the majority’s discussion of a prisoner’s right to appeal the denial of parole, which encompasses Parts I — III of the decision and which is presumably a response to Burkett, is unnecessary and constitutes mere dicta.

. In Werner, the petitioner argued that this court should have granted leave to amend a mandamus petition to correct the defects. Our supreme court held that, because the petitioner failed to request leave to amend and because case law does not require this court to grant leave to amend sua sponte, his argument must fail. Although this court is not required to grant leave to amend sua sponte, I believe that we should do so here, where constitutional rights are at issue.

. If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. County of Allegheny.

. The majority states that, under Kuzel v. Krause, 658 A.2d 856 (Pa.Cmwlth.1995), a statement of one member of the Board cannot be attributed to the entire Board. (Majority op. at 777, n. 19.) However, unlike this case, Kuzel involved post-trial motions, not preliminary objections, and, thus, is not applicable here.

Indeed, in Kuzel, after a jury determined that only one township commissioner was guilty of wrongful conduct, we held that one commission-. er cannot be held liable for the termination of an employee by the entire board. Unlike Weaver, the employee in Kuzel had an opportunity to prove to a jury that the entire board was guilty of wrongful conduct. Although the employee in Kuzel failed to do so, Weaver should have the same opportunity here to prove his allegation that the Board denied his application for parole solely because he asserted his right against self-incrimination.

.Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §§ 331.1-331.34. Section 19 of the Parole Act states that the Board must consider the following in deciding whether to grant parole:

[I]n granting paroles the board shall consider the nature and character of the offense committed, any recommendation made by the judge, the general character and history of the prisoner and the written or personal statement or testimony of the victim or the victim’s family....
The board shall, in all cases, consider the recommendations of the trial judge and the district attorney and of each warden or superintendent ... who has had charge of an applicant.

61 P.S. §331.19.

. The majority states that Weaver does not allege that requiring his participation in a treatment program is not a bona fide basis for denying parole, or that requiring him to admit guilt is not reasonably or rationally related to ensuring effective treatment. (Majority op. at 778, n. 23.)

However, Weaver alleges more than once that the decision of the Board based on his refusal to admit guilt was arbitrary and capricious. (Weaver’s petition, paras. 13, 19, 25.) If the decision was arbitrary and capricious, then it was not, by definition, reasonable or rationally related to ensuring effective treatment. Indeed, an arbitrary decision is one without reason; a capricious decision is one based on whim. Webster's New Collegiate Dictionary 57, 163 (1981). Thus, the majority fails to recognize the plain meaning of the words contained in Weaver's allegations.

. I point out that Weaver has filed a mandamus petition here, not an appeal. Nevertheless, the majority has expended much energy to defend our holding in Reider, where this court held that a prisoner has no right to appeal the denial of parole. In light of the majority’s extensive discussion of Reider, I offer the following view in opposition. Indeed, for the reasons which follow, I believe that Reider is flawed and should be overruled.

We based our holding in Reider on an analysis of the statutory right to appeal from an "adjudication” of a Commonwealth agency. We noted that the statutory definition of "adjudication” excludes any order which involves parole. 2 Pa. C.S. § 101. Then, we immediately recognized the difficulty with this definition of "adjudication.” Indeed, we rejected it in acknowledging the right of a prisoner to appeal a parole revocation, an order which obviously "involves parole." We noted that, unlike the denial of parole, the revocation of parole involves a constitutionally protected liberty interest. In effect, then, we held that, notwithstanding the statutory definition of "adjudication,” a prisoner may appeal a decision which denies the prisoner a constitutionally protected liberty interest.

The Third Circuit Court of Appeals has stated that "all prisoners have a liberty interest flowing directly from the due process clause in not being denied parole for arbitrary or constitutionally impermissible reasons.” Block v. Potter, 631 F.2d 233, 236 (3d Cir.1980). On this federal constitutional question, it is appropriate for us to defer to the circuit court. Jay R. Reynolds, Inc. v. Department of Labor & Industry, Prevailing Wage Appeals Board, 661 A.2d 494 (Pa.Cmwlth.1995). Thus, I believe that the statutory definition of "adjudication” also does not apply where the denial of parole was arbitrary or based on constitutionally impermissible reasons.

Finally, I believe that the statutory definition violates Article V, Section 9 of the Pennsylvania Constitution, which provides that "there shall ... be a right of appeal ... from an administrative agency to a court of record or to an appellate court_" See Reider (Barry, J., dissenting); see also Commonwealth v. Vartan, 674 A.2d 1156 (Pa.Cmwlth.1996).

. The mandamus petition in Lindsley alleged: (1) deliberate and systematic harassment for petitioner's activities as a "jailhouse lawyer;” (2) imposition of disciplinary misconducts without due process; (3) denial of parole based on those misconducts; and (4) harassment because of petitioner’s adherence to the dictates of his religion.

. The majority appears to distinguish Lindsley from this case because, "[ajlthough the cause of action in Lindsley was a mandamus, the nature of the relief sought by the petitioners was an injuxiction prohibiting prison officials from infringing on constitutional rights.” (Majority op. at 776.) I find no merit in this attempt to distinguish Lindsley.

.Our superior court has also recognized that the Board has a mandatory duty to comply with the constitution. In Moore v. Roth, 231 Pa. Superior Ct. 464, 331 A.2d 509 (1974), a prisoner alleged that the Board violated his constitutional right to confront his accusers. Our superior court held that mandamus lies to compel the Board to take appropriate corrective action.

. "The language of the Fifth Amendment is unequivocal and without exception. And the scope of the privilege is comprehensive_ The privilege can be claimed in any proceeding. ... [I]t protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution.” Application of Gault, 387 U.S. 1, 47-48, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527 (1967).

Weaver asserted his innocence during the trial and continues to do so now. (Weaver's petition, paras. 7-8.) Moreover, Weaver alleges that his criminal conviction is on appeal, and that, were he to admit guilt in order to meet eligibility criteria for acceptance into the sex offender program, he would be forced to commit perjury. Thus, Weaver has properly asserted his Fifth Amendment privilege here.

. Under Pennsylvania law, the sentence imposed for a criminal offense is the maximum term; the minimum term sets the date prior to *784which a prisoner may not be paroled. Thus, the significance of the minimum term is that it establishes a parole eligibility date. Krantz v. Pennsylvania Board of Probation and Parole, 86 Pa.Cmwlth. 38, 483 A.2d 1044 (1984). Requiring convicted sex offenders to admit guilt, in effect, eliminates the minimum term of sentence and requires the prisoner to serve the maximum term without the right to parole.

. The Barr-Walker Act provided that if a court is of the opinion that a person who has been convicted before it of indecent assault, incest, assault with intent to commit sodomy, solicitation to commit sodomy, sodomy, assault with intent to ravish or rape, would, if at large, constitute a threat of bodily harm to members of the public, or is an habitual offender and mentally ill, it may, in lieu of the sentence provided by law, sentence such person to a state institution for an indeterminate term, from one day to life. After a person was sentenced under the Barr-Walker Act, exclusive control over that person rested with the parole board. U.S. ex rel. Gerchman v. Maroney, 355 F.2d 302 (3d Cir.1966).

. Prior to Dooley, the Third Circuit Court of Appeals held that the Barr-Walker Act was unconstitutional, stating:

The effort of enlightened penology to alleviate the condition of a convicted defendant by providing some elements of advanced, modem methods of cure and rehabilitation and possible ultimate release on parole cannot be turned about so as to deprive a defendant of the procedures which the due process clause guarantees in a criminal proceeding.

Gerchman, 355 F.2d at 310. Thus, here, the sex offender program is an "effort of enlightened penology” and a "modem [method] of cure and rehabilitation” which deprives convicted sex offenders of their constitutional rights.

. Of course, this court is not bound by the Third Circuit’s decision in Block. However, I am persuaded by the reasoning in Block that the Board cannot render a decision denying parole for arbitrary, capricious and constitutionally impermissible reasons.

. Weaver alleges that the Board ignored the provisions of the Parole Act in rendering its decision, and that the Board based its decision on politics. With respect to the latter, Justice Brennan wrote in Furman v. Georgia, 408 U.S. 238, 268, 92 S.Ct. 2726, 2741, 33 L.Ed.2d 346 (1972) (J. Brennan concurring) (brackets in original), quoting West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185-86, 87 L.Ed. 1628 (1943), that:

the Bill of Rights ... “may not be submitted to vote; [it] dependfs] on the outcome of no elections.” “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials. ...”

. Thus, I agree with the majority that mandamus does not lie to compel a body vested with discretion to exercise that discretion in a certain manner or to arrive at a particular result. (Majority op. at 777.)

. Like the majority, I do not believe that Weaver has an appropriate remedy under section 1983 because Weaver has sued only the Board and the Department. (Majority op. at 776-777, n. 18.) However, I point out that, under section 1983, Weaver may sue the Department’s staff and the Board’s members in their personal capacities. Hafer v. Meto, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

In that suit, Weaver could request that the court declare the admission of guilt requirement unconstitutional and that the court permanently enjoin the state officials from continuing to consider the failure to admit guilt, or the failure to complete a program requiring the admission of guilt, in determining whether to recommend a prisoner for parole or whether to deny parole to a prisoner. Ex Parte Young; Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985).

Because the statute of limitations for a section 1983 action in Pennsylvania is two years. Weaver has until August 30, 1997 to file such an action in this court or in federal court. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Knoll v. Springfield Township School District, 763 F.2d 584 (3d Cir.1985); 42 Pa.C.S. § 5524(2).