detainer being lodged, he was not released from custody even though he could have furnished the bail required on the criminal charge for which he has now been convicted. Plaintiff claims that there is a denial of constitutional rights for the state court to deny his release on bond as a parole violator, or in substance, he questions the constitutionality of the Pennsylvania Parole Act of August 6, 1941, P.L. 861, § 21.1 et seq., 61 P.S. § 331.21a.
This Court is well aware of the law of Pennsylvania which provides that a due process hearing with a right to counsel and the privilege to face accusers and present testimony is required before parole can be revoked, whether the individual is charged as a technical or a convicted parole violator. Said rule of law has recently been enunciated by the Supreme Court of Pennsylvania, which requires that a hearing of such scope and nature is required before parole can be revoked. Rambeau v. Rundle, 13 Cr. L. Rev. 2104 (May 2, 1973), officially not reported. Cf. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).
Counsel for the Commonwealth of Pennsylvania has advised the Court that legal counsel will be provided for the plaintiff in this proceeding prior to the parole revocation hearing and that any witnesses whom plaintiff may desire to call for said hearing will be permitted.
A proceeding of a most similar nature was adjudicated by an Associate Member of this Court, in which an Order was entered providing in substance that where a denial of constitutional rights under the Parole Act of the Commonwealth of Pennsylvania was presented in matters of this nature, a basis did not exist for an impanelling of a statutory court. Milligan v. Braszo, et al., 361 F. Supp. 353 (W.D. Pa. 1973). No application was made for an impanelling of a statutory court in this proceeding.
It seems clear that defendants, in detaining plaintiff pending the outcome of the criminal charges against him, did nothing to violate any of his constitutional rights. There has been no parole revocation hearing, but assuming all facts alleged by plaintiff to be true, none is required at this juncture since there has been no parole revocation. It is well to note that when plaintiff was granted parole effective February 28, 1972, for the 1967 conviction, he signed a document dated February 25, 1972, entitled "Conditions of Parole," which in part provides, "If you are arrested while on parole, the Board [The Pennsylvania Board of Probation and Parole] has the authority to place a detainer against you which will in effect prevent you from making bail pending disposition of your new charges." In addition, there is an acknowledgement by plaintiff that he had read or had had read to him all the various conditions imposed, that he understood them and agreed to follow them, and that he fully understood the possible penalties involved should he violate any of the conditions.
The plaintiff was arrested independently of any conditions of parole on criminal charges for which he now stands convicted. A parole detainer was lodged as a consequence thereof and not for alleged violations of his parole conditions. Had charges against Stroman been dismissed, the detainer would have been lifted without having any bearing on his parole status. This in fact did occur on a previous occasion when plaintiff was arrested while on parole on charges other than those under scrutiny here; when arrested on November 21, 1972, a detainer was lodged against him and then lifted when armed robbery charges were dropped. This arrest had no effect on Stroman's parole.
Stroman's most recent arrest was followed promptly by a hearing by a Parole Board representative to determine whether detention, as distinguished from parole revocation, was proper. Under all the circumstances here presented, the Court is constrained to conclude that there has been no violation of plaintiff's constitutional rights. In this connection it is well to note that defendant Warden Robinson did nothing more than act in a ministerial capacity in receiving plaintiff as a prisoner pending disposition of the criminal charges which had been lodged.
No basis exists in law or in fact to sustain the cause of action, and it must be dismissed.
Findings of fact and conclusions of law have not been separately stated but are included in the body of the foregoing Opinion as specifically authorized by Rule 52(a) of the Federal Rules of Civil Procedure.
An appropriate Order is entered.
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