No. 36 January Term, 1978, Appeal from Order of the Commonwealth Court at No. 305 Miscellaneous Docket 1977
John J. Koresko, IV, Hollywood, California, for appellant.
Robert A. Greevy, Asst. Atty. Gen., Harrisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., files a dissenting opinion.
Appellant, John J. Koresko IV, was sentenced by the Court of Common Pleas of Montgomery County to four and one-half to ten years in prison for rape, sodomy and assault. The sentence began on November 11, 1967. Appellant was paroled and absconded from the jurisdiction. His absence constituted a technical violation of parole. He was delinquent for two years, two months and twenty-three days, after which time he was arrested and returned to prison. He was later reparoled. Appellant's maximum sentence was originally set to expire on November 11, 1977. The Pennsylvania Board of Probation and Parole, appellee here, extended the expiration date to February 4, 1980, requiring appellant to make up for the time he was delinquent. Appellant sought to be released from parole after the original expiration date, arguing that the extension violated his right to due process of law. He filed a petition for habeas corpus in
the Commonwealth Court, which found that habeas corpus did not lie and that the proper form of action was a petition for review in the nature of mandamus. It treated appellant's petition as such and proceeded to consider and reject his constitutional argument. Appellant now argues on appeal that the Commonwealth Court erred in refusing to consider his action as a petition for habeas corpus. He also continues to press his constitutional claim. At the time of his petition to the Commonwealth Court appellant was not incarcerated, and is not now incarcerated, but remains out of prison on parole in California.
The Commonwealth Court was correct in finding a habeas corpus action improper. The court has original jurisdiction over:
"All civil actions or proceedings against the Commonwealth or any officer thereof, acting in his official capacity, except (i) 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, and (ii) proceedings under the Eminent Domain Code;"
Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. IV, § 401, 17 P.S. § 211.401. It may issue "every lawful writ and process necessary or suitable for the exercise of . . . [its] jurisdiction," Act of January 6, 1970, P.L. (1969) 434, § 1, 17 P.S. § 211.8. In Bethlehem Mines Corp. v. Commonwealth, 462 Pa. 207, 340 A.2d 435 (1975), we held that the court's original jurisdiction allows it to issue writs of mandamus to administrative tribunals. Such writs are not proscribed in the manner that writs of habeas corpus are. We find that the Commonwealth Court had original jurisdiction to hear this case as an action in mandamus. Since it had original jurisdiction, ...