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ROBERT COACH v. COMMONWEALTH PENNSYLVANIA (03/07/84)

decided: March 7, 1984.

ROBERT COACH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Robert Coach, Parole No. 7516-J, dated July 27, 1983.

COUNSEL

Timothy P. Wile, 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 MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 80 Pa. Commw. Page 624]

Robert Coach (Petitioner) has appealed from the dismissal of his application for administrative relief by the Pennsylvania Board of Probation and Parole (Board) on July 27, 1983. The application was dismissed as having been untimely filed under the pertinent Board regulation found at 37 Pa. Code § 71.5(h). By order dated November 9, 1983, we have granted the Board's motion to limit the issue in this appeal to whether the Board erred in finding the application for administrative relief to be untimely.

The chronology pertinent to the issue before us begins with the date of August 31, 1982, when the Board ordered Petitioner recommitted as a convicted parole violator, when available, to serve 24 months. On June 21, 1983, Petitioner attempted to file a direct

[ 80 Pa. Commw. Page 625]

    appeal with this Court challenging the Board's recommitment action. Petitioner's appeal, however, was dismissed on June 27, 1983 due to his failure to pursue initial administrative review of the August 31, 1982 decision with the Board. The appeal was dismissed without prejudice to Petitioner's right to again appeal to this Court following the exhaustion of his administrative remedies.

As a result of our order, Petitioner sought administrative relief with the Board by application dated July 5, 1983. The application, as we have noted, was dismissed by the Board as being untimely under the following Board regulation:

When any errors under this chapter are alleged subsequent to the Board's order, the parolee, by his attorney unless he is unrepresented, may apply to the Board within 30 days of the entry of the order for appropriate review and relief. . . . When a timely request for administrative review of an order has been filed, the order will not be deemed final for purposes of appeal until the Board has mailed its response to the request for administrative review.

37 Pa. Code § 71.5(h) (emphasis added). The Board reasoned that since Petitioner had failed to request administrative relief within 30 days of its August 31, 1982 decision, any attempt to do so thereafter must be ruled to be untimely.

Petitioner correctly points out, however, that the 30 day time limit in the Board's regulation did not become effective until September 19, 1982, more than two weeks after the Board's August 31 decision. Thus, Petitioner argues that he is entitled to act in accordance with the prior form of the Board's regulation which included no ...


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