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JOSEPH D. MCMAHON v. COMMONWEALTH PENNSYLVANIA (12/29/83)

decided: December 29, 1983.

JOSEPH D. MCMAHON, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, ET AL., APPELLEE



No. 7 W.D. Appeal Docket, 1983, Appeal from Memorandum and Order Dated November 3, 1982 of the Commonwealth Court at No. 378 Miscellaneous Docket No. 3, Denying Appellant's Application for Writ of Mandamus

COUNSEL

Joseph D. McMahon, I.P.P., for appellant.

Robert A. Greevy, Chief Counsel, Bd. of Probation & Parole, Harrisburg, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., filed a dissenting opinion, in which McDermott, J., joined.

Author: Per Curiam

[ 504 Pa. Page 241]

Opinion of the Court

Appellant, Joseph D. McMahon, filed a writ of mandamus in the Commonwealth Court asserting that the Pennsylvania Probation and Parole Board had erred in computing his term of imprisonment upon his recommitment for a parole violation based upon subsequent criminal convictions. By memorandum opinion and order dated November 3, 1982, the Commonwealth Court dismissed the writ of mandamus and appellant filed a notice of direct appeal to this Court.

As explained in Pennsylvania Department of Aging v. Lindberg, 503 Pa. 423, 469 A.2d 1012 (1983) and its companion cases,*fn1 the writ of mandamus in the instant case was not properly a matter addressed to the Commonwealth Court's original jurisdiction, 42 Pa.C.S.A. § 761, but was, rather, a matter properly addressed to that court's appellate jurisdiction, 42 Pa.C.S.A. § 763.

[ 504 Pa. Page 242]

Accordingly, appeal to this Court is at our discretion, 42 Pa.C.S.A. § 724, not by right of appeal, 42 Pa.C.S.A. § 723(a). Pennsylvania Department of Aging v. Lindberg, Page 242} supra. We therefore deem the instant "direct appeal" as a petition for allowance of appeal, Pa.R.A.P. 1102, and deny the petition.

[ 504 Pa. Page 243]

APPENDIX "A"

MEMORANDUM AND ...


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