IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Manuel Carrero, Jr., :
Petitioner :
:
v. : No. 259 M.D. 2021
: Submitted: October 28, 2022
Pa. State Police Central Repository, :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: January 12, 2023
Before this Court in our original jurisdiction are the preliminary
objections filed by Pennsylvania State Police, Central Repository (Respondent), to
the petition for review filed by Manuel Carrero, Jr. (Petitioner). Petitioner seeks
declaratory and injunctive relief to challenge his criminal history information
maintained by Respondent. For the reasons that follow, we sustain Respondent’s
preliminary objections and dismiss Petitioner’s petition.1
The petition for review alleges that on October 25, 2019, Petitioner
requested access to his criminal history record from Respondent. On December 23,
2019, Respondent provided Petitioner with a certified copy of his criminal history
record, which the petition alleges to be erroneous in several ways. Petitioner’s name
is Manuel Carrero, Jr., not Manuel A. Carrero, who is his father; Petitioner’s race is
Hispanic, not “unknown” or “White;” and Petitioner’s height is 5 feet 7 inches, not
1
Petitioner did not file a brief in opposition to Respondent’s preliminary objections, and as such,
this Court proceeds without Petitioner’s brief.
5 feet 6 inches. Finally, the criminal history record improperly lists Petitioner’s
social security number. Petition for Review, ¶¶3-5. The petition alleges that
Lieutenant Earl H. Rhoades knowingly and willfully placed false information in
Petitioner’s certified criminal history record and that Respondent “has a history of
maintaining false criminal record[s].” Petition for Review, ¶¶5, 8. The petition
asserts that Respondent has violated the requirement in the Criminal History Record
Information Act (CHRIA)2 that Respondent maintain complete and accurate
criminal history record information.
Based on these allegations and legal claims, the petition seeks:
1) Declaratory relief: declaring [R]espondent maintained
(willfully and knowingly) false record under Petitioner’s birth
name, and Petitioner’s substantive due process right was
violated[,] 18 Pa. C.S. [§]9151[,] and Petitioner was
aggrieved by [R]espondent’s action;
2) Injunctive Relief: ordering [R]espondent to remove all false
info[rmation] from Petitioner’s rap sheet with L.T. Rhoades
punished. Sec. 9181 [of CHRIA, 18 Pa. C.S. §9181].
Petition for Review, ¶11.
In response, Respondent filed preliminary objections asserting the
inclusion of scandalous or impertinent matter in the pleading; insufficient specificity
to the pleading; legal insufficiency (demurrer); and failure to exercise or exhaust a
statutory remedy. PA.R.CIV.P. 1028(a)(2), (3), (4), and (7).3
2
18 Pa. C.S. §§9101-9183.
3
The rule states, in relevant part, as follows:
(a) Preliminary objections may be filed by any party to any pleading and are limited
to the following grounds:
****
(2) failure of a pleading to conform to law or rule of court or
inclusion of scandalous or impertinent matter;
2
In ruling on preliminary objections, we accept as true all well-pleaded
material allegations in the petition for review and any reasonable inferences
therefrom. Thomas v. Corbett, 90 A.3d 789, 794 (Pa. Cmwlth. 2014). “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 where the law makes clear that
the petitioner cannot succeed on his claim, and we must resolve any doubt in favor
of the petitioner. Id.
We begin with Respondent’s preliminary objection that Petitioner
failed to exhaust the statutory remedy available under CHRIA. Generally, where a
remedy is provided by statute, it must be pursued to the exclusion of other remedies.
Where the statutory remedy is not adequate or complete, equity may provide relief
to prevent irreparable harm. Pennsylvania State Chamber of Commerce v. Torquato,
125 A.2d 755, 766 (Pa. 1956).
CHRIA requires “every criminal justice agency within the
Commonwealth to maintain complete and accurate criminal history record
information[.]” 18 Pa. C.S. §9111. Section 9151(a) of CHRIA states that “[a]ny
individual or his legal representative has the right to review, challenge, correct and
appeal the accuracy and completeness of his criminal history record information.”
18 Pa. C.S. §9151(a). In challenging the accuracy of the criminal history record,
the individual must specify the errors and offer corrections. 18 Pa. C.S. §9152(c).
(3) insufficient specificity in a pleading;
(4) legal insufficiency of a pleading (demurrer);
****
(7) failure to exercise or exhaust a statutory remedy[.]
PA.R.CIV.P. 1028(a)(2), (3), (4), and (7).
3
The criminal justice agency has 60 days to conduct a review of any challenge, and
it bears the burden of proving the accuracy of the record. 18 Pa. C.S. §9152(d).
Where it is established that a criminal history record is inaccurate, the criminal
justice agency must correct the record. 18 Pa. C.S. §9114. “If the challenge is ruled
invalid, an individual has the right to appeal the decision to the Attorney General
within 30 days of notification of the decision by the criminal justice agency,” and
the Attorney General “shall conduct a hearing de novo in accordance with the
Administrative Agency Law[, 2 Pa. C.S. §§501-508, 701-704].” 18 Pa. C.S.
§9152(e).
In the instant matter, Respondent is a criminal justice agency within the
meaning of CHRIA. 18 Pa. C.S. §9102 (defining “criminal justice agency” as
including, but not limited to, “organized State and municipal police departments”).
The petition for review does not allege that Petitioner presented his challenge to the
accuracy of his criminal record to Respondent, as required by Section 9152 of
CHRIA. 18 Pa. C.S. §9152. Nor does the petition allege that the statutory remedies
in CHRIA for the correction of criminal history record information are inadequate.
Because Petitioner has failed to pursue the statutory remedy available to him under
CHRIA, we sustain Respondent’s preliminary objection raised under PA.R.CIV.P.
1028(a)(7).
The petition for review also alleges that Respondent knowingly and
willfully placed false information in Petitioner’s criminal record, in violation of
substantive due process. “The substantive protections of due process are meant to
protect citizens from arbitrary and irrational actions of the government.” Gresock v.
City of Pittsburgh Civil Service Commission, 698 A.2d 163, 169 (Pa. Cmwlth. 1997)
(citation omitted). “Preliminarily, for substantive due process rights to attach[,]
4
there must first be the deprivation of a property right or other interest that is
constitutionally protected.” Khan v. State Board of Auctioneer Examiners, 842 A.2d
936, 946 (Pa. 2004). Here, the petition does not specify whether it is based upon the
Due Process Clause of the Fourteenth Amendment of the United States Constitution,
U.S. CONST. amend. XIV, §1, or Article I, Section 9 of the Pennsylvania
Constitution, PA. CONST. art. I, §9. However, substantive due process protections
afforded under the United States Constitution and the Pennsylvania Constitution are
analyzed the same and are, thus, coextensive. Griffin v. Southeastern Pennsylvania
Transportation Authority, 757 A.2d 448, 452 (Pa. Cmwlth. 2000).
In the petition for review, Petitioner alleges that he requested access
and review of his criminal history record information, and Respondent provided him
with a certified copy thereof. The petition for review alleges there is erroneous
information in that history, but it does not allege that Petitioner requested a
correction from Respondent or pursued his remedy under Section 9151(a) of
CHRIA, 18 Pa. C.S. §9151(a). Stated otherwise, the petition for review does not
aver that Respondent has in any way restricted Petitioner’s “right to review,
challenge, correct and appeal” his criminal history record information. Id.
Accordingly, it does not allege an arbitrary action of the government to deprive him
of a right to correct his criminal history. Khan, 842 A.2d at 946. We conclude that
the petition does not state a substantive due process claim and sustain Respondent’s
preliminary objection raised under PA.R.CIV.P. 1028(a)(4) asserting legal
insufficiency.
Based on the foregoing, we sustain the preliminary objections asserting
failure to exhaust a statutory remedy under PA.R.CIV.P. 1028(a)(7) and a demurrer
5
under PA.R.CIV.P. 1028(a)(4). Accordingly, we dismiss Petitioner’s petition for
review.4
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
4
Because we dismiss the petition for review based upon Petitioner’s failure to exhaust a statutory
remedy and a demurrer, we need not address Respondent’s other remaining preliminary objections.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Manuel Carrero, Jr., :
Petitioner :
:
v. : No. 259 M.D. 2021
:
Pa. State Police Central Repository, :
Respondent :
ORDER
AND NOW, this 12th day of January, 2023, Pennsylvania State Police
Central Repository’s preliminary objections asserting a demurrer and failure to
exercise or exhaust a statutory remedy are SUSTAINED. Manuel Carrero, Jr.’s
Petition for Review is DISMISSED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita