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RICHARD F. DONNELL v. COMMONWEALTH PENNSYLVANIA (12/08/82)

decided: December 8, 1982.

RICHARD F. DONNELL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in the case of Richard F. Donnell v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

William H. Mitman, Jr., for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Rogers, Craig and MacPhail, sitting as a panel of three.

Author: Per Curiam

[ 70 Pa. Commw. Page 266]

Richard Donnell has filed a complaint in mandamus, which we will treat as a petition for review, alleging that the Pennsylvania Board of Probation and Parole violated its own regulations and the petitioner's due process rights when it recommitted him to Rockview State Correctional Facility as a technical and convicted parole violator.

After the board filed a certificate from the board's chairman, to which Mr. Donnell replied, and an amended answer with new matter, both parties filed motions for summary judgment. On motions for summary judgment, we review the pleadings in the light most favorable to the non-moving party, Wolgemuth v. Kleinfelter, 63 Pa. Commonwealth Ct. 395, 398, 437 A.2d 1329, 1331 (1981), and resolve any doubts as to the existence of a genuine issue of material fact against the party seeking that special remedy. Benefiel v. Pennsylvania Board of Probation and Parole, 57 Pa. Commonwealth Ct. 401, 404, 426 A.2d 242, 244 (1981). For the reasons below, we deny Mr. Donnell's motion and grant summary judgment to the board.

Mr. Donnell has raised essentially four issues and contends that resolution of any one issue in his favor warrants immediate discharge from prison. First, Mr. Donnell argues that his parole officer failed to

[ 70 Pa. Commw. Page 267]

    visit him within twenty-four hours of when the board issued a detainer warrant for technical parole violations,*fn1 as mandated by 37 Pa. Code § 71.2.*fn2

The pleadings reveal that the board issued a detainer warrant on Friday, September 15, 1978 and that Mr. Donnell's parole officer visited him on Monday, September 18, 1978.

Section 1502(a)(1) of the Statutory Construction Act provides generally that the terms of that Act apply to the Pennsylvania Code.*fn3 In turn, 37 Pa. Code § 71.5(j) specifically provides that "[t]he number of days set forth in this chapter [37 Pa. Code Chapter 71] shall be calculated as ...


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