Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of James Emmi v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, dated November 19, 1981.
Timothy P. Wile, Assistant Public Defender, for petitioner.
Robert A. Greevy, Chief Counsel, with him Arthur R. Thomas, Assistant Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Blatt.
[ 74 Pa. Commw. Page 555]
The petitioner, James Emmi, was arrested in Montgomery County on charges of larceny and receiving stolen goods, and was subsequently convicted of these charges. On April 18, 1973 he was sentenced to a term of one to three years and ten months, at a state institution, with a minimum date of May 20, 1973 and a maximum date of March 20, 1976. He was paroled from this sentence (Montgomery County sentence) on July 13, 1973.*fn1
Subsequently, he was convicted of theft in Delaware County and, on January 24, 1979, he was sentenced to a term of two to four years in the Delaware County Prison (Delaware County sentence). On April 23, 1979, the Board paroled the petitioner from the Delaware County sentence to serve additional time on the Montgomery County sentence, upon which he had been recommitted, and he was again reparoled on the Montgomery County sentence on August 29, 1980.
Again, while under parole supervision, the petitioner was arrested on charges of theft by unlawful taking, aggravated assault and burglary, and, on July 6, 1981, he was sentenced to a term of three to ten years to be served in a state correctional institution.
The petitioner had been confined in the Delaware County Prison until July 8, 1981 at which time he was
[ 74 Pa. Commw. Page 556]
transferred to the State Correctional Institution at Graterford (Graterford). The Board of Probation and Parole (Board) held a full board violation and revocation hearing at Graterford on October 28, 1981. At this hearing, the petitioner's counsel objected to the timeliness of the hearing as being beyond the 120-day period allowed by 37 Pa. Code § 71.4(2); the Board, however, overruled this objection. On November 19, 1981, the Board ordered the petitioner recommitted when available to serve his unexpired terms on both the Montgomery County sentence and the Delaware County sentence.
The petitioner argues first that the Board's regulations at 37 Pa. Code § 71.4(2)(i), which excludes the time a parolee is confined in a county institution in determining when the 120-day limitation shall commence, violates the equal protection of the law. We have squarely addressed this issue in Brown v. Pa. Board of Probation and Parole, 70 Pa. Commonwealth Ct. 597, 453 A.2d 1068 (1982), ...