Mandamus directed against the Pennsylvania Board of Probation and Parole asking the court to direct the defendant to rescind an order recommitting the plaintiff as a convicted parole violator.
F. Emmett Fitzpatrick, Jr., with him Fitzpatrick & Smith, for plaintiff.
Frank P. Lawley, Jr., Deputy Attorney General, with him Fred Speaker, Attorney General, for defendant.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Rogers. Opinion by President Judge Bowman.
[2 Pa. Commw. 312 Page 314]
Before us in this case are preliminary objections in the nature of a demurrer by defendant, the Pennsylvania Board of Probation and Parole, to plaintiff's complaint in mandamus. The substantive issue raised is whether the Board erred as a matter of law in denying plaintiff certain "street time" served on parole. However, we must first dispose of a jurisdictional issue.
The jurisdiction of this Court over the subject matter was raised by the Court on its own motion. We did so because of the substantial number of cases filed in this Court since it was organized by which prisoners in state correctional institutions seek to have this Court review their trial and conviction for criminal offenses, their sentence or incarceration, or matters pertaining to their parole, revocation of parole and reparole.
Because of the very limited original and appellate jurisdiction of this Court as declared in the Appellate Court Jurisdiction Act of July 31, 1970, P.L. (Act No. 223) effective September 11, 1970, an early judicial determination of our jurisdiction in these areas is indicated for the guidance of all concerned.
Jurisdiction of This Court
Section 401 of the Appellate Court Jurisdiction Act, supra, declares that the Commonwealth Court shall have original jurisdiction of all civil actions or proceedings against the Commonwealth or any officer thereof acting in his official capacity except "actions or proceedings in the nature of applications for a writ of habeas corpus or post-conviction relief not ancillary to proceedings within the appellate jurisdiction of the Court."*fn1
[2 Pa. Commw. 312 Page 315]
In the instant case both parties rely upon this provision as conferring jurisdiction upon this Court to entertain this mandamus action inasmuch as it is a civil action directed against a State agency which draws into question an issue traditionally within the scope of mandamus. They also contend that it is not an action or proceeding -- however labelled or captioned -- which in substance constitutes a direct or collateral attack upon a criminal trial and conviction or the legality of sentence imposed after conviction. Hence they contend it is not an action or proceeding in the nature of an application for a writ of habeas corpus or for post-conviction relief.
We agree but would further point out that prior to the creation of the Commonwealth Court and the passage of the Appellate Court Jurisdiction Act this same limited jurisdiction was enjoyed by the Court of Common Pleas of Dauphin County, Commonwealth ex rel. Johnson v. Bookbinder, 213 Pa. Super. 335 ...