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THOMAS O. BROWN v. COMMONWEALTH PENNSYLVANIA (01/21/81)

decided: January 21, 1981.

THOMAS O. BROWN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in the case of Thomas O. Brown v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Stuart Wilder, Assistant Public Defender, for petitioner.

Robert A. Greevy, Assistant Attorney General, with him Arthur R. Thomas, Assistant Attorney General, and Harvey Bartle, III, Acting Attorney General, for respondent.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig, MacPhail, Williams, Jr. and Palladino. Opinion by Judge MacPhail. Judge Williams, Jr. dissents.

Author: Macphail

[ 56 Pa. Commw. Page 198]

On March 27, 1980, Thomas O. Brown (Petitioner) filed a Petition for Review with this Court of the March 13, 1980 order of the Pennsylvania Board of Probation and Parole (Board) that ordered Petitioner recommitted as a technical parole violator. The petition sets forth that it was filed pursuant to Section 763 of the Judicial Code (Code), Act of April 28, 1978, P.L. 202, 42 Pa. C.S. ยง 763 which gives this Court jurisdiction over direct appeals from government agencies. The petition is endorsed with notice to plead. The Board filed an answer with new matter to which Petitioner filed a reply. Petitioner then filed a motion for judgment on the pleadings.

While Petitioner's pleadings followed the practice in this Court in the past, they are in the instant case improper. In Bronson v. Pennsylvania Board of Probation and Parole, Pa. , 421 A.2d 1021 (1980), our Supreme Court reviewed our past practice with respect to such petitions and held that it was incumbent upon us to analyze each petition for review involving actions of the Board to determine whether,

[ 56 Pa. Commw. Page 199]

    in fact, the petition was a direct appeal from a final order of the Board or whether it should be treated as having been filed in our original jurisdiction.

Our analysis of the instant Petition for Review leaves us with no doubt that this is a direct appeal notwithstanding the nature of the pleadings now before us. There is no request in the petition for a mandamus. The gravamen of the petition is that the Petitioner's constitutional rights have been violated by the Board's order. There is, of course, a final appealable order by the Board. Lastly, as we have noted, the petition states that it has been filed pursuant to Section 763 of the Code (our appellate jurisdiction) rather than pursuant to Section 761 of the Code (our original jurisdiction).

Accordingly, being satisfied that the petition now before us should properly be treated as a direct appeal, we will disregard the motion for judgment on the pleadings and proceed to a disposition of the merits of the appeal. The briefs filed by the parties are more than adequate for us to determine whether that order should be affirmed or reversed.

The relevant facts are not in dispute. Petitioner was sentenced on October 2, 1959 in the Court of Common Pleas of Allegheny County to consecutive terms of three to ten years and two to ten years. The total sentence, effective May 15, 1959, was five to twenty years with a minimum expiring August 15, 1964 and a maximum expiring August 15, 1979. Petitioner was subsequently paroled but recommitted on five different occasions and, as a result, the maximum of his sentence became November 2, 1987.

On August 16, 1979, the Board took action concerning the Petitioner as follows: "reparole August 20, 1979 to an approved plan. Close supervision. Out-patient ...


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