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COMMONWEALTH PENNSYLVANIA v. LOUIS S. AYTCH (09/20/73)

decided: September 20, 1973.

COMMONWEALTH OF PENNSYLVANIA, EX REL. ROBERT POWELL, PETITIONER,
v.
LOUIS S. AYTCH, SUPERINTENDENT OF THE PHILADELPHIA PRISONS, PHILADELPHIA, PENNSYLVANIA, AND PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENTS



Original jurisdiction in case of Commonwealth of Pennsylvania ex rel. Robert Powell v. Louis S. Aytch, Superintendent of Philadelphia Prisons, Philadelphia, Pennsylvania, and Pennsylvania Board of Probation and Parole.

COUNSEL

Clarence A. Dickerson, with him Zack, Myers and Atkinson, for petitioner.

Marc Kapustin, Deputy Attorney General, with him Leonard Packel, Deputy Attorney General, for respondents.

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

Author: Blatt

[ 10 Pa. Commw. Page 219]

On May 12, 1971, Robert Powell was released on parole after serving time in prison for burglary, larceny and receiving stolen goods. On April 25, 1972, he was arrested and subsequently indicted by federal authorities, charged with the interstate transportation of stolen property. Powell posted bond, was released on bail, and notified his parole agent of what had happened. Thereafter, on May 1, 1972, Powell was arrested by his parole agent and a detainer was lodged against him by the Board of Probation and Parole (Board). He was apparently charged with violating his parole conditions as a result of his arrest by federal authorities.

At an Executive Board meeting held on May 26, 1972, the Board ordered the return of Powell to prison, pending disposition of the criminal charges against him. On May 31, 1972, Powell was interviewed at Holmesburg Prison in the presence of his attorney by a representative of the Board. On June 12, 1972, at another Executive Board meeting, the Board "voted to detain Mr. Powell, pending disposition of criminal charges."*fn1 Powell was subsequently found guilty of the federal charges brought against him, and, on December 26, 1972, he was again interviewed by a representative of the Board. The sketchy record before this Court does not indicate what, if any, further action the Board took.

Powell has filed with this Court a Petition for Writ of Habeas Corpus,*fn2 to which the respondents have filed

[ 10 Pa. Commw. Page 220]

    a preliminary objection in the nature of a demurrer. We must dismiss that objection.

The meager record currently before us does not make clear whether Powell was simply being detained by the Board until his case was disposed of by federal authorities or if he was being recommitted as a technical parole violator pursuant to Section 21.1 of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. ยง 331.21a(b).

The Petition filed by Powell certainly would indicate that he had been recommitted by the Board as a technical parole violator, for Paragraph 10 states that the Board "had made a determination to recommit Petitioner without the formal hearing wherein Petitioner would have the right to be present along with his attorney." On the other hand, the wording of the preliminary objection, the Certificate prepared by the Chairman of the Board and the brief filed on behalf of the Respondents would indicate that Powell has not been formally recommitted but was merely being detained.*fn3

For the purposes of this opinion, however, we must treat as true Powell's allegation that he has actually been recommitted by the Board, because the rule is clear that preliminary objections admit as true all facts which are well and clearly pleaded, even though not admitting the pleader's conclusions or averments of law. McIlvaine v. State Police, 3 Pa. Commonwealth Ct. 478 (1971). If, in subsequent proceedings, of course, it is determined that Powell was not in fact recommitted, the respondents can press ...


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