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COMMONWEALTH EX REL. HALL v. BOARD PROBATION AND PAROLE. COMMONWEALTH EX REL. BLAIR V. BOARD PROBATION AND PAROLE (11/12/71)

decided: November 12, 1971.

COMMONWEALTH EX REL. HALL
v.
BOARD OF PROBATION AND PAROLE. COMMONWEALTH EX REL. BLAIR V. BOARD OF PROBATION AND PAROLE



Original Jurisdiction in cases of Commonwealth of Pennsylvania ex rel. Frank Hall v. Pennsylvania Board of Probation and Parole and Commonwealth of Pennsylvania ex rel. Milton A. Blair v. Pennsylvania Board of Probation and Parole, being actions in mandamus to compel the Pennsylvania Board of Probation and Parole to give petitioners credit for time served in custody and on parole and to compel release from custody for lack of jurisdiction or power to recommit petitioners to serve balance of maximum sentences.

COUNSEL

Leslie B. Handler, with him Handler and Handler, for petitioner, Frank Hall.

John M. Wajert, for petitioner, Milton A. Blair.

Salvatore J. Cucinotta, Deputy Attorney General, with him Leonard Packel, Deputy Attorney General, and J. Shane Creamer, Attorney General, for Commonwealth.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by President Judge Bowman.

Author: Bowman

[3 Pa. Commw. 435 Page 436]

These two actions in mandamus question the statutory power and authority of the Pennsylvania Board of Probation and Parole to extend the expiration date of a court imposed maximum sentence of an individual who, while on parole, committed a crime for which he was not convicted until after the expiration date of the court imposed maximum sentence.

Our limited original jurisdiction in this area has recently been delineated in Williams v. Pennsylvania Board of Probation and Parole, 2 Pa. Commonwealth Ct. 312 (1971) and exists only because the habeas corpus relief sought is ancillary to a civil action or proceedings against a state agency which draws into question its statutory power and authority.

[3 Pa. Commw. 435 Page 437]

Blair and Hall are prisoners in the state correctional system who initially came within the jurisdiction of the Board to act with respect to them when they became eligible for parole. However, until the Board acted favorably upon their parole applications, custodial authority remained with the state correctional system under the court imposed maximum sentences.

Upon release on parole, Blair and Hall came under the custodial authority of the Board subject, in terms of time, to the court imposed maximum sentences except as the statute in question directs a different result or empowers the Board to order a different result.

Petitioners seek a definitive determination of their right to be free of custodial authority after expiration of the court imposed maximum sentence in relation to the power and authority of the Board to extend the expiration date of such sentence under the somewhat complicated factual histories of these cases.

Milton A. Blair was sentenced to a term of two and one-half to five years in 1963 to begin on October 29, 1964 at the conclusion of a previously imposed federal sentence. He became eligible for parole on April 29, 1967 and was paroled on that date with two and one-half years remaining to be served on his original maximum sentence, which would expire October 29, 1969.

On October 29, 1967, Blair was arrested on a narcotics charge in Philadelphia and released on bail. He was again arrested on May 29, 1968 in Philadelphia on assault charges and continued on bail.

On January 21, 1969, effective December 28, 1968, Blair was declared delinquent by the Board for failure to report to his parole officer. He was apprehended on January 22, 1969 and recommitted as a technical parole violator pursuant to the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. ยง 331.21a. Twenty-four days

[3 Pa. Commw. 435 Page 438]

    were added to his original maximum sentence to conform with the Parole Act requirement that no credit be given for delinquent time on parole.*fn1 Therefore, his recomputed maximum sentence would expire on November 23, 1969. He does not question this extension of the expiration date of his court imposed maximum sentence.

Reparole was refused to Blair after an interview before the Board in June 1969 and recommitment was continued pending disposition of the ...


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