F. Emmet Fitzpatrick, for plaintiff.
Salvatore Cucinotta, Deputy Attorney General, with him Leonard Packel, Deputy Attorney General, and J. Shane Creamer, Attorney General, for defendants.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by President Judge Bowman.
[3 Pa. Commw. 633 Page 634]
This mandamus action raises questions as to the statutory and constitutional authority of the Pennsylvania Board of Probation and Parole to recommit plaintiff, Edward E. Williams, as a convicted parole violator to serve that portion of his original court imposed maximum sentence remaining when he was first paroled. His classification as a convicted parole violator was not effected until after the expiration of his original maximum sentence as imposed by the court or otherwise extended by the Board. Williams seeks to have this Court declare such recommitment illegal and unconstitutional.
This is the second time this case has been before us. It was first before us on preliminary objections in the form of a demurrer. Also, the Court on its own motion raised the question of its jurisdiction over the subject matter of these proceedings and directed that the preliminary objections and the jurisdictional question be heard together.
In its prior opinion and order, the Court determined that it did have jurisdiction over the subject matter under Section 401 of the Appellate Court Jurisdiction Act of July 31, 1970, P.L. (Act No. 223), 17 P.S. § 211.101 et seq., and that, despite the omission of essential averments of fact upon which a determination as to the basic legal issues could be made, the preliminary objections should be overruled and the parties granted leave to file amended pleadings.
"Where a better statement of the facts could establish a cause of action and where the complaint is not inherently unsound but only incomplete, this Court is reluctant to sustain the preliminary objections or to grant judgment." Williams v. Board of Probation and Parole, 2 Pa. Commonwealth Ct. 312, 318 (1971).
The plaintiff timely filed an amended complaint to which the Board filed an answer and a motion for
[3 Pa. Commw. 633 Page 635]
judgment on the pleadings. The latter motion essentially embodied the substance of the preliminary objections filed earlier going to the failure of the plaintiff to state a claim upon which relief could be granted. The matter is again ripe for disposition although the amended complaint does not frame the issues with significantly more clarity than the original complaint.
The facts do not require lengthy recitation. Williams was sentenced to a four to ten year term for involuntary manslaughter on February 18, 1958. He was released on parole on February 18, 1962 after serving his minimum sentence. On June 26, 1967, he was classified as a technical parole violator under Section 331.21a(b) of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.21a(b), for delinquency. He was arrested on new charges on November 3, 1968 and detained under the Board's outstanding warrant against him. By order of the Board, Williams was recommitted to serve the seven months and twenty-two days remaining on his original sentence when he was declared delinquent. His extended maximum sentence expired on June 25, 1969. The Board, however, temporarily suspended his recommitment as a technical parole violator on June 24, 1969 pending disposition of the open criminal charges against him. He was released from the custody of the Board but remained in the custody of other authorities because of his inability to post bail as to the November 1968 charges. He was ...