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LEONARD TILLMAN v. COMMONWEALTH PENNSYLVANIA (01/08/80)

decided: January 8, 1980.

LEONARD TILLMAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of Leonard Tillman v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Leonard Tillman, for himself, petitioner.

Robert A. Greevy, Assistant Attorney General, Edward G. Biester, Jr., Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge MacPhail. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Macphail

[ 48 Pa. Commw. Page 326]

On May 8, 1979, we filed an opinion and entered an order with respect to the petition for review filed by Leonard Tillman.*fn1 In our order we sustained the preliminary

[ 48 Pa. Commw. Page 327]

    objections in the nature of a demurrer filed by the Board of Probation and Parole (Board) and granted Tillman twenty days to file an amended petition for review which would plead facts entitling him to the relief which he seeks. Tillman has filed an amended petition for review with exhibits attached thereto. In his amended petition Tillman requests that his recommitment be set aside and that his parole be reinstated "up until the day he was arrested." The Board has filed an answer with new matter. Tillman responded with a pleading entitled a "traverse" with exhibits attached thereto. The case is now before us on cross motions for summary judgment for disposition on briefs without oral argument.

In his first petition to us, Tillman alleged that the Board acted illegally when it revoked his parole on his initial sentence of two to six years imposed on April 15, 1974 and recommitted him as a convicted parole violator to serve the balance of that sentence. We sustained the Board's demurrer to that petition because we were unable to determine from Tillman's pleading whether or not his circumstances were such as to place him within the provisions of Section 21.1(a) of the Act of August 6, 1941 (Act), P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, as amended, 61 P.S. ยง 331.21a.*fn2

[ 48 Pa. Commw. Page 328]

From the amended petition, and particularly Tillman's brief, we now understand that his position is that his initial sentence was modified by the trial court in subsequent proceedings before that court and that those subsequent proceedings had the net effect of placing him under the jurisdiction of the Westmoreland County Office of Probation and Parole, thus releasing him from the Board's jurisdiction.

There seems to be no question that the trial court did attempt to resentence Tillman on May 16, 1975 when the following order was entered:

And now, May 16, 1975, defendant being present in open court, and being called for sentence, Judge David H. Weiss proceeded as follows: Actor to be released forthwith from Rockview and placed on Parole for the balance of maximum ...


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