concurring and dissenting.
I agree with the majority that Robin Au-berzinski’s mandamus petition fails to state a cause of action against the Pennsylvania Board of Probation and Parole (Board); therefore, I concur in that portion of the majority’s decision which sustains the Board’s preliminary objection in the nature of a demurrer. However, I would overrule the demurrer filed by the Pennsylvania Department of Corrections (Department); therefore, I respectfully dissent to the majority’s disposition of that issue.
The majority holds that, under Lawson v. Department of Corrections, 114 Pa.Cmwlth. 573, 539 A.2d 69 (1988), an inmate has no constitutional right to participate in a pre-release program; thus, the Department may arbitrarily revoke an inmate’s pre-release privileges at any time. (Majority op. at 779.) Because I believe that Auberzinski’s right to his seventeenth temporary home furlough arises from the Department’s regulations, which are not in conflict with the state or federal constitutions or any statute, I cannot agree with this holding.1
First, the majority’s reliance upon Lawson is misplaced. In Lawson, the Department revoked Lawson’s pre-release status pursuant to a disciplinary hearing, which was entirely proper under the Department’s regulations.2 However, Lawson alleged that the Department’s procedure at the hearing violated his constitutional right to confront and cross-examine his accusers. To resolve the matter, we relied on Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), where the U.S. Supreme Court stated that, in a disciplinary hearing, inmates do not have the right to confront and cross-examine their accusers. Thus, we held that, because Lawson’s petition did not set forth facts to indicate a constitutional violation at his disciplinary hearing, it failed to state a cause of action.
Unlike Lawson, Auberzinski was never charged with misconduct and was never subjected to disciplinary proceedings. Indeed, Auberzinski does not allege a constitutional violation arising from a disciplinary hearing.3 Rather, Auberzinski alleges that the Department revoked his furlough because of the political climate and community sentiment. *781In Lawson, this court never addressed whether the Department could revoke an inmate’s prerelease status because of politics or any other non-diseiplinary reason. Moreover, Lawson did not address whether the Department could revoke pre-release privileges in violation of its own regulations. Thus, I fail to see how Lawson controls the outcome of this case.
Unlike the majority, I believe that the outcome here should rest, not on any constitutional consideration, but on the Department’s own regulations.4 The Department’s regulations state that an inmate’s privilege to participate in pre-release programs may be revoked for administrative or disciplinary reasons. 37 Pa.Code § 94.3(a)(10). Thus, absent some valid administrative or disciplinary reason, once the Department approves an inmate’s participation in a pre-release program, the inmate has a clear legal right to pre-release status, and the Department has a corresponding duty not to revoke that status.
However, the majority today decides that 37 Pa.Code § 94.3(a)(10) has no meaning or purpose. Indeed, the majority has rewritten the law to state that, because an inmate does not have a constitutional right to pre-release status, the Department may arbitrarily revoke such privileges at any time. Unlike the majority, I accept the validity of the Department’s regulations and apply them here.
First, as the majority notes, Auberzinski alleges here that the Department revoked his seventeenth temporary home furlough because of the political climate and community sentiment. Because we must accept this allegation as true, it is apparent that the Department did not revoke the furlough for disciplinary reasons. (Majority op. at 779.) Nor is it clear that political climate and community sentiment constitute valid administrative reasons for revoking a temporary home furlough. Because a court may not sustain a preliminary objection in the nature of a demurrer unless the law states with certainty that no recovery is possible, I would resolve any doubt in favor of overruling the demurrer.
.The majority’s analysis proceeds as follows:
While the facts in Lawson reveal that the inmate's participation in a pre-release program was revoked as a result of misconduct, this court clearly held that one has no constitutional right to participate in a prerelease program. This holding is not restricted to whether such participation has been revoked due to administrative or disciplinary proceedings. Furthermore, this holding is not restricted to when participation has been merely requested and denied. Therefore, the fact that a temporary home furlough is approved and then revoked does not convert participation in a prer-elease program from a privilege to a right.
(Majority op. at 779.) (Emphasis added.) I agree that an inmate has no constitutional right to participate in a pre-release program; however, rights may also be conferred by statute or regulation. Here, the Department has promulgated regulations to govern the revocation of pre-release status. The fact that applicable constitutional law does not provide protection against the revocation of pre-release status is irrelevant.
. The Department’s regulations provide:
The inmate's privilege to participate in prere-lease programs may be ... revoked for ... disciplinary reasons.
37 Pa.Code § 94.3(a)(10).
. If the Department had revoked Auberzinski's furlough as a disciplinary measure for misconduct, then the revocation would have been in compliance with the law, as in Lawson.
. The Act of July 16, 1968(Act), P.L. 351, as amended, 61 P.S. §§ 1051-54, authorizes the Department to establish pre-release programs for prison inmates. Section 3 of the Act states that the Department shall promulgate rules and regulations for the granting and administering of release plans and shall determine those inmates who may participate in a plan. Moreover, "[iff any inmate violates the rules or regulations prescribed by the [Department], his release privileges may be withdrawn.” 61 P.S. § 1053.