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January 14, 1955


Appeal, No. 219, April T., 1954, from order of Court of Common Pleas of Westmoreland County, Feb. T., 1954, No. 587, in case of Commonwealth of Pennsylvania ex rel. John Davidson v. James F. Maroney, Acting Warden, Western State Penitentiary, and the Pennsylvania Board of Prole. Order affirmed.


Harold Gondelman, with him M. Barney Cohen, Pittsburgh, for appellant.

Frank P. Lawley, Jr., Deputy Attorney General, with him Frank F. Truscott, Attorney General, for appellees.

Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Wright

[ 177 Pa. Super. Page 83]


On March 18, 1949, John Davidson pleaded guilty to indictments in the Court of Quarter Sessions of Westmoreland County at Nos. 127 and 128 May Sessions, 1949, charging burglary of motor vehicle, larceny and receiving stolen goods, and was sentenced to the Western State Penitentiary for not less than two years nor more than four years. On March 18, 1951, at the expiration of his minimum term, Davidson was released on parole. Two days later, he absconded from supervision and left the Commonwealth. On April 20, 1951, the Board of Parole took formal action declaring Davidson delinquent. On July 25, 1953, notice was received that Davidson had been arrested in the State of New York on a charge of burglary. He subsequently pleaded guilty to petit larceny. On December 1, 1953, the Board ordered Davidson's return to the Western State Penitentiary for technical parole violation. Formal action for recommitment was taken by the Board on February 4, 1954, at which time credit was given for the period between April 20, 1951, and August 24, 1951,*fn1 and also for the period between September 26, 1953, the date when Davidson was available for return, and December 7, 1953, the date of his actual return. According to the Board's calculation, Davidson thus owed one year, six months, and twenty-four days back parole time, and his maximum sentence will expire

[ 177 Pa. Super. Page 84]

April 20, 1955. Davidson has appealed from an order of the Court below dismissing his petition for a writ of habeas corpus.

Appellant's statement of the questions involved in this appeal is as follows: "1. Does the Act of August 24, 1951, P.L. 1401, 61 PS Section 331.21(a) apply to a technical violator of his parole when the parolee was placed on parole prior to the enactment of said statute? 2. Does not the application of the Act of August 24, 1951 to the appellant constitute retroactive legislation? 3. If the Act of August 24, 1951, as applied to appellant is retroactive, does the act itself clearly and manifestly indicate the legislative intent that it should be applied retroactively?" These questions were combined for the purpose of argument, and the one issue before us is whether the Act of August 24, 1951, P.L. 1401, section 5, 61 PS 331.21a,*fn2 was properly applied to this appellant.

In the absence of the statute under consideration, the Board would have lacked authority to order appellant's recommitment: Commonwealth ex rel. Tate

[ 177 Pa. Super. Page 851951]

, appellant lost the advantage which, as a technical violator, he enjoyed under the rule of the Tate case. There is no constitutional guarantee against change in the law relating to parole, and appellant was therefore not deprived of any vested right: United States v. Garfinkel, 166 F. 2d 887. He cannot complain that the Act of 1951 should not apply to him from and after its effective date.

Section 32 of the Act originally setting up the Board of Parole specifically provides:*fn4 "The provisions of this act are hereby extended to all persons who, at the effective date hereof, may be on parole or liable to be placed on parole under existing laws with the same force and effect as if this act had been in operation at the time such persons were placed on parole, or became liable to be placed thereon, as the case may be". Appellant contends that the failure to use similar language in the Act of 1951 indicates a different legislative intention. To the contrary, the Act of 1951 added a new section which must be read in connection with section 32 of the original Act.*fn5 Such a construction does not give retroactive effect to the statute. In the words of President Judge KELLER, "it only does what the Act expressly provides, it puts the Act into immediate effect upon final enactment": Spankard's Liquor License Case, 138 Pa. Superior Ct. 251, 10 A.2d 899. On August 24, 1951, appellant was still on parole, and his absence from the Commonwealth, which was the basis for the declaration of his delinquency, still continued. Our conclusion is that the Legislature intended the Act of 1951 to apply as of its effective date to persons in appellant's situation.


The order of the court below is affirmed.

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