DISSENTING OPINION BY
Judge FRIEDMAN.I respectfully dissent. Unlike the majority, I would overrule the preliminary objection in the nature of a demurrer filed by the Pennsylvania Board of Probation and Parole (PBPP) in response to the Petition for Writ of Mandamus (Petition) filed by Warren M. Evans (Evans).1
In ruling upon a preliminary objection in the nature of a demurrer, we must accept as true all well-pleaded allegations of material fact and all inferences reasonably deducible therefrom. Myers v. Ridge, 712 A.2d 791 (Pa.Cmwlth.1998), appeal denied, 560 Pa. 677, 742 A.2d 173 (1999). A demurrer should be sustained only in a case that clearly and without a doubt fails to state a claim upon which relief may be granted. Sunbeam Corporation v. Liberty Mutual Insurance Company, 566 Pa. 494, 781 A.2d 1189 (2001). The likelihood of proving the factual allegations is irrelevant; a demurrer must be rejected if the facts as pleaded state a claim for which relief may be granted under any theory of law. Id.
I. Mandamus and Discretion
The PBPP first argues that mandamus does not lie to challenge the PBPP’s denial of parole because the denial of parole is a matter solely within the PBPP’s discretion. Although the majority accepts this argument, (majority op. at 914-15), I submit *916that this position is contrary to the case law of this court and the Pennsylvania Supreme Court.
Mandamus will not lie to compel performance of a discretionary act, except where the prior exercise of discretion was arbitrary, fraudulent or based upon a mistaken view of the law. 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). With respect to parole decisions in particular, our supreme court has stated that a prisoner may be entitled to pursue allegations of constitutional violations against the PBPP through a writ of mandamus. Rogers v. Pennsylvania Board of Probation and Parole, 555 Pa. 285, 724 A.2d 319 (1999). Moreover, this court has stated that mandamus is available to compel the PBPP to correct a mistake in applying the law. Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986). The majority completely ignores these rules of law governing mandamus.
Here, Evans alleges that the PBPP’s denial of parole was arbitrary and based upon the PBPP’s mistaken view of the law governing the due process and ex post facto clauses. Therefore, mandamus lies here to compel the PBPP to exercise its discretion in a manner that is not arbitrary and not based on a mistaken view of the law. Indeed, Evans seeks an order compelling the PBPP to schedule a new parole interview and issue a parole decision without considering those factors that violate his due process and ex post facto rights.2 Accordingly, I would overrule the PBPP’s preliminary objection.
II. Due Process
The PBPP also argues that the Petition does not state a due process violation because Evans does not have a liberty interest in the expectation of release on parole prior to the expiration of his maximum term. I disagree that the Petition fails to state a due process violation.
A. Reasons for Denial of Parole
The Petition indicates that, in 2001, the PBPP denied Evans parole because the fair administration of justice cannot be achieved through his release on parole. In Voss v. Pennsylvania Board of Probation and Parole, 788 A.2d 1107, 1111 (Pa.Cmwlth.2001) (emphasis added, footnote omitted), this court stated:
The Court agrees that the law is well settled that the [PBPP] has broad discretion in making parole decisions. *917However, it does not follow that the [PBPP] has no corresponding duty to consider and to act upon parole applications according to specifically articulated statutory standards. Essentially, the Court is not persuaded that the [PBPP’s] denial of ... parole ... based upon an “achieving the fair administration of justice” concept meets the requirements of due process. [An inmate] has a clear right to receive a statement of the reasons for the denial of his parole application, particularly if the record demonstrates as he asserts that he met all previous requirements for parole imposed upon him by the [PBPP],
Indeed, absent a clear statement of the reasons for the denial of parole, it would be impossible to determine whether the PBPP denied parole for an arbitrary or constitutionally impermissible reason.3 Here, because the Petition shows that the PBPP faded to provide a clear statement of the reasons for denying Evans parole, the Petition states a substantive due process violation. Id.
B. Notice of Considerations
Although the PBPP did not give a clear statement of the reasons for denying Evans parole, the PBPP gave Evans notice in its decisions that, in determining a future grant of parole, the PBPP would consider whether Evans (1) completed a sex offender treatment program, (2) maintained a favorable recommendation for parole by the Department of Corrections, and (3) maintained a clear conduct record. However, in 2001, the PBPP stated that it denied Evans parole because the fair administration of justice could not be achieved by Evans’ release on parole. There is no indication that the PBPP based the denial of parole on the specific considerations stated in the PBPP’s decision. I am not persuaded that the PBPP’s practice of giving Evans notice of specific parole considerations, which the PBPP then apparently does not consider, and certainly does not address, in denying Evans parole, meets the requirements of substantive due process.
C. Arbitrary Decision
If the PBPP actually had considered whether Evans (1) completed a sex offender treatment program, (2) maintained a favorable recommendation for parole by the Department of Corrections, and (3) maintained a clear conduct record, I see no reason why the PBPP would not have released Evans on parole.
By 2001, Evans had completed three different sex offender treatment programs. Moreover, Evans had a favorable recommendation for parole by the Department of Corrections and a clear conduct record.4 In addition, although the PBPP denied Evans parole in 2000 because of its concern for the safety of the public, the PBPP did not mention public safety as a reason for the denial of parole in 2001. Thus, in 2001, the PBPP effectively conceded that Evans no longer represents a threat to *918public safety. Where Evans satisfied every consideration for parole in 2001 and was not a threat to public safety, the PBPP’s denial of parole in 2001 was an arbitrary decision and, therefore, a violation of Evans’ substantive due process rights.5 Accordingly, I would overrule the PBPP’s preliminary objection.
D. Majority Position
The majority concludes that Evans does not have a liberty interest in the expectation of release on parole prior to the expiration of his maximum sentence. However, in Voss and in Boyd v. Ward, 802 A.2d 705 (Pa.Cmwlth.), appeal denied, — Pa. -, 818 A.2d 844 (2002), this court held that the PBPP’s decision denying parole must meet the requirements of due process. In other words, Evans does have a liberty interest in the expectation of being considered for parole in a' manner that complies with the requirements of due process.
I suggest that the starting point for determining whether a liberty interest exists in a parole denial case is the relief requested in the mandamus petition. If the prisoner requests release on parole, it would be proper to dismiss the petition because there is no liberty interest in release on parole prior to the expiration of the maximum sentence. However, if the prisoner requests a parole decision that complies with due process requirements, this court must acknowledge that there is a liberty interest in such relief. Here, Evans does not request release on parole; therefore, it is not proper to consider whether there is a liberty interest in release on parole prior to the expiration of Evans’ maximum term. Rather, Evans requests a parole decision that complies with due process requirements, in which case Evans has a liberty interest.
III. Ex Post Facto
Finally, the PBPP objects that the Petition does not state a violation of the ex post fado clause because the PBPP did not condition Evans’ eligibility for parole, i.e., his opportunity for parole review, on successful completion of a sex offender program. I disagree.
The U.S. Supreme Court has stated that changes in the laws governing the parole of prisoners, when applied retroactively, may violate the ex post facto clause of the U.S. Constitution. Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000).6 The Court indicated that it is a particularly difficult question when one takes into account the discretion vested in a parole board.7 Id. However, the presence of discretion does not displace the protections of the ex post facto clause. Id. “The danger that legislatures might disfavor certain persons after the fact is present even in the parole context, and the *919Court has stated that the Ex Post Facto Clause guards against such abuse.” Id. at 253, 120 S.Ct. 1362.
The controlling inquiry is whether the retroactive application of the change created a “ ‘sufficient risk of increasing the measure of punishment attached to the covered crimes.’ ” Id. at 250, 120 S.Ct. 1362 (quoting California Department of Corrections v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)). “When the [law] does not by its own terms show a significant risk, the [prisoner] must demonstrate, by evidence drawn from the [law’s] practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier [law].” Id. at 255, 120 S.Ct. 1362 (emphasis added). In determining whether a parole board’s new policies and practices result in a longer period of incarceration, a court will consider the parole board’s internal policy. Id. “It is often the case that an agency’s policies and practices will indicate the manner in which it is exercising its discretion.” Id. at 256, 120 S.Ct. 1362.
A. Section 9718.1 of the Sentencing Code
Section 9718.1(a) of the Sentencing Code provides that a sex offender shall attend and participate in a Department of Corrections sex offender treatment program. 42 Pa.C.S. § 9718.1(a). Moreover, the sex offender shall not be “eligible for parole” until the person (1) has served the minimum term of imprisonment, (2) has participated in a Department of Corrections sex offender treatment program, and (3) has agreed to comply with any special condition of parole requiring therapy or counseling for sex offenders. Section 9718.1(b) of the Sentencing Code, 42 Pa. C.S. § 9718.1(b). Section 3(1) of Act 2000-98, which added section 9718.1 to the Sentencing Code, states that section 9718.1 applies only to offenses committed on or after December 20, 2000.
Section 3(2) of Act 2000-98 states that the addition of section 9718.1 to the Sentencing Code shall not prevent the PBPP from considering participation in a sex offender program in the granting or denying of parole for offenses committed before December 20, 2000, except to the extent that such consideration violates the U.S. Constitution or Pennsylvania Constitution. In other words, the legislature recognized that the PBPP would violate the ex post facto clause if the PBPP’s consideration of participation in sex offender treatment in the parole review process is, in reality, the retroactive application of section 9718.1 to sex offenders who committed their offenses before December 20, 2000.
.Evans committed his sex offense before December 20, 2000; thus, section 9718.1 of the Sentencing Code does not apply to him. Indeed, the PBPP released Evans on parole in 1991 despite the fact that Evans had not attended or participated in a Department of Corrections sex offender treatment program. In 1991, the PBPP required only that Evans undergo an evaluation after his release on parole to determine the need for sex offender treatment. However, since Evans’ recommitment, the PBPP has required Evans’ participation in a Department of Corrections sex offender treatment program as a precondition for parole. Even after Evans completed three different programs, and there is no evidence that there are any other programs offered, the PBPP still is considering whether Evans participated in a sex offender treatment program.
Certainly, it appears that the PBPP is retroactively applying a change in the law to Evans.8 To determine whether the *920PBPP’s application of section 9718.1 to Evans actually lengthens Evans’ period of incarceration, we would need to know the PBPP’s real reasons for denying Evans parole and the PBPP’s internal policies relating to sex offenders. However, at this stage of the proceedings, there is no evidence relating to these matters. Therefore, I would not dismiss Evans’ ex post facto claim based on section 9718.1. Instead, I would overrule the PBPP’s preliminary objection to Evans’ section 9718.1 ex post facto claim.
B. Parole Criteria
In his brief, Evans argues that the PBPP also has violated the ex post facto clause by retroactively applying to him criteria established pursuant to the amendments to the Parole Act9 that have occurred since his conviction. (Evans’ brief at 14, 18.)
Section 21(a) of the Parole Act states that parole is appropriate whenever “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.” 61 P.S. § 331.21(a). In other words, under this provision, the PBPP’s parole review process begins with the best interests of the convict. However, on December 18, 1996, the General Assembly amended section 1 of the Parole Act, the statute’s public policy statement, to state that the PBPP “shall first and foremost seek to protect the safety of the public.”10 61 P.S. § 331.1.
According to Evans, with this statutory shift in emphasis, the PBPP has established new and tougher criteria making it less likely for him to obtain parole. (Evans’ brief at 18.) For example, with respect to sex offender treatment, when Evans was paroled in 1991, the PBPP stated, “Upon your release on parole, you will be evaluated to determine your need for mental health and sex offender treatment.” (Evans’ brief, Exh. B.) However, when the PBPP denied Evans parole on January 15, 1997, the PBPP stated that Evans must participate in a sex offender program. (Petition; Attachments.) In other words, the PBPP no longer requires an evaluation of the need for sex offender treatment after release on parole; the PBPP now requires treatment before release on parole.
The PBPP also refused to release Evans on parole in 1997 because of the nature of the offenses for which he was convicted. (Petition; Attachments.) However, the PBPP knew all of this when the PBPP granted Evans parole in 1991. The PBPP also knew that, despite the nature of his offense, Evans had been on parole, without incident, from 1991 until his technical violation for drug use in 1995. In other words, with the 1996 amendment to the Parole Act, emphasizing the safety of the public, the PBPP changed its criteria for release on parole and applied the new criteria retroactively to Evans. The result *921is a longer period of incarceration for Evans, an ex post facto violation. See Garner; see also Mickens-Thomas v. Vaughn, 217 F.Supp.2d 570 (E.D.Pa.2002) (holding that the PBPP’s retroactive application of changed parole guidelines constitutes an ex post facto violation), aff'd, 321 F.3d 374 (3d Cir.2003).
Accordingly, Evans has stated an additional ex post facto claim in his brief based on the PBPP’s retroactive application of criteria established pursuant to the amendments to the Parole Act. Thus, I would grant Evans leave to amend his Petition to state such a claim. See Pa. R.C.P. No. 1033.
C. Majority Position
The majority concludes that the Petition fails to state an ex post facto violation with respect to section 9718.1 of the Sentencing Code because Evans fails to allege that his victims were under the age of eighteen, as contemplated by section 9718.1. (Majority op. at 911.) However, we can reasonably infer this from Evans’ allegation that the PBPP applied section 9718.1 in his case. Because we are at the preliminary objection stage of the proceedings, reasonable inferences are permissible. Myers.
The majority also points out that the PBPP’s decision does not refer to section 9718.1or use its language. (Majority op. at 911.) This is irrelevant. There is no law requiring the PBPP to cite statutory authority or use precise statutory language in its decisions denying parole. Nevertheless, the Board’s decision may not be so vague that it fails to state clearly the reasons for the denial of parole. Moreover, to suggest that the PBPP did not apply section 9718.1 in denying Evans parole is to suggest a fact that is contrary to the well-pleaded facts in this case. Although the PBPP did not refer to section 9718.1or use its language, in considering the demurrer here, the majority must accept the well-pleaded fact that the PBPP applied the provision to Evans.
In addition, the majority states that the PBPP did not consider Evans “ineligible” for parole under section 9718.1 for failure to participate in sex offender treatment programs; in making this statement, the majority relies on the fact that the PBPP conducted a parole interview with Evans once after the passage of section 9718.1. (Majority op. at 911.) However, in this regard, the majority misses the point of Evans’ Petition. Essentially, Evans’ complaint is that the parole review process in his case was a pretense, i.e., that the PBPP went through the process but never intended to release Evans on parole because, as a sex offender, he was not “eligible” for parole under section 9718.1.
Next, the majority states that, assuming that the PBPP retroactively applied section 9718.1 in Evans’ case, Evans’ Petition fails to show how that increased Evans’ incarceration; the majority states that Evans’ claim rests on nothing more than mere speculation. (Majority op. at 911-12.) However, the fact alleged in the Petition is that Evans was released on parole in 1991 without having undergone sex offender treatment, but that he now remains incarcerated because of the retroactive application of section 9718.1. Thus, the Petition does show how the PBPP’s retroactive application of section 9718.1 has increased his incarceration.
Finally, the majority states that section 9718.1of the Sentencing Code is not a penal statute. (Majority op. at 911-12.) However, it is part of the Sentencing Code, and, as such, it governs the term of imprisonment for certain sex offenders. *922Certainly, it is penal in nature.11 Indeed, the U.S. Supreme Court has stated that, where the retroactive application of a state’s parole laws results in a longer period of incarceration for a prisoner, there is an increase in punishment and a violation of the ex post facto clause. See Garner. Although the purposes of section 9718.1 may include protection of the public and the rehabilitation and treatment of prisoners, there is an obvious penal component to any statute that increases a person’s confinement in prison.
. In his Petition, Evans seeks an order mandating that the PBPP schedule a new parole interview and consider only those factors that do not violate his due process and ex post facto rights.
. I note that our supreme court has held that a prisoner can raise an ex post facto challenge to the denial of parole by filing a petition in mandamus in this court's original jurisdiction. See Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287 (2001). In Coady, the court stated:
Thus, mandamus will not lie where the substance of the [PBPP’s] discretionary action is the subject of the challenge. Where, however, discretionary actions and criteria are not being contested but rather the actions of the [PBPP] taken pursuant to changed statutory requirements are being challenged, an action for mandamus remains viable as a means for examining whether statutory requirements have been altered in a manner that violates the ex post facto clause. Such an action could be brought in the original jurisdiction of the Commonwealth Court. Absent a change in the statutes governing parole, however, denial of parole would generally constitute a discretionary matter that is not subject to review.
Id. at 608-09, 770 A.2d at 290 (footnote omitted). Here, Evans alleges that the PBPP acted pursuant to changed statutory requirements by retroactively applying section 9718.1 of the Sentencing Code. Thus, Evans properly filed a mandamus action in this court’s original jurisdiction to determine whether the statutory requirements for the parole of sex offenders have been altered in a manner that violates the ex post facto clause.
. See Block v. Potter, 631 F.2d 233, 236 (3d Cir.1980) (stating, “[o]nce a state institutes a parole system all prisoners have a liberty interest flowing directly from the due process clause in not being denied parole for arbitrary or constitutionally impermissible reasons.”)
. In 2001, the PBPP stated that Evans must "maintain” a favorable recommendation for parole from the Department of Corrections and a clear conduct record. The word "maintain” means to “continue.” See Webster's Third New International Dictionary 1362 (1993). Thus, I reasonably infer that, in 2001, Evans had a favorable recommendation and a clear conduct record. This reading of the Petition is consistent with Evans' statement in his brief that he has a favorable recommendation for parole. (Evans’ brief at 3.)
. Indeed, it appears that the PBPP's list of considerations is a sham, and the real reason the PBPP denied Evans parole is that he is a sex offender.
. I note that U.S. Supreme Court decisions on federal constitutional issues are binding precedent on Pennsylvania courts. See Haller v. Department of Revenue, 556 Pa. 289, 728 A.2d 351 (1999).
. In Garner, 529 U.S. at 253, 120 S.Ct. 1362, the U.S. Supreme Court made the following statement about a parole board's discretion:
[WJhere parole is concemed[,] discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender's release, along with a complex of other factors, will inform parole decisions.
. As stated, section 9718.1 of the Sentencing Code states that sex offenders shall attend and *920participate in sex offender treatment programs, and, in 1991, the PBPP never considered that when it paroled Evans.
. Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §§ 331.1-331.34.
. In Winklespecht v. Pennsylvania Board of Probation and Parole, 571 Pa. 685, 813 A.2d 688 (2002), our supreme court held that the rewording of section 1 did not violate the ex post facto clause. However, the court did not address whether changes in PBPP guidelines violated the ex post facto clause because Winklespecht did not address the issue in his brief. Id.; see also Mickens-Thomas v. Vaughn., 321 F.3d 374 (3d Cir.2003) (stating that the Board construed the rewording of section 1 contrary to our supreme court's decision in Winklespecht).
. If the Sentencing Code is not penal, then there are no statutory provisions for punishing criminals in this state.