Appeal from the Order of the Commonwealth Court, No. 46 T.D. 1982, Affirming the Administrative Order of the Pennsylvania Board of Probation and Parole at Parole No. 1692-K, 78 Pa. Commonwealth Ct. 183,
Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., files a dissenting opinion in which Larsen, J., joins. Flaherty, J., did not participate in the consideration or decision of this case.
James Cox appeals by allowance Commonwealth Court's order affirming the Pennsylvania Board of Probation and Parole's (Board's) order denying him credit for time spent in an in-patient drug treatment program at Eagleville Hospital. At issue is whether appellant was, in the language of the statute, "at liberty on parole" while in that program. We are handicapped in dealing with this issue of first
impression by a deficient factual record. Faced with those deficiencies we remand this case to the Board for development of a factual record sufficient for review of whether the Eagleville program is a prison equivalent precluding the conclusion that appellant was "at liberty on parole." However, since appellant agreed to attend Eagleville as part of his parole program, his attendance there is presumed to be "at liberty on parole," and on the remand it will be up to him to show that Eagleville's in-patient drug treatment program presented an environment so restrictive that he should get credit for time spent in it. Moreover, the Board's resolution of that issue seems to us largely in its discretion and should not be disturbed unless the record shows the Board's action to have been arbitrary.
The relevant facts can be briefly stated. Appellant was convicted of burglary in 1974 and sentenced to prison for 1 to 5 years. The Board, by order dated June 16, 1976, granted appellant parole on this sentence. That parole commenced on August 26, 1976.*fn1 Pursuant to 37 Pa.Code § 63.5,*fn2 the Board imposed as a special condition of appellant's parole attendance at Eagleville Hospital's in-patient
drug and alcohol treatment program, defining failure to successfully complete that program as a parole violation.
Appellant did successfully complete the treatment program and left Eagleville to continue his parole on the street.*fn3 He was arrested in June of 1977 on burglary and related charges. He escaped from custody and was re-arrested in November, 1979. He then pled guilty to reduced charges stemming from the 1977 arrest and received sentences of county probation. He also pled guilty to the escape charge and was sentenced to 1 to 3 years imprisonment.
The Board held the required parole violation and revocation hearing. Cox was represented by counsel at this hearing. He was recommitted to serve the unexpired term of his original 1 to 5 year sentence as both a convicted and a technical parole violator. In the recommitment the Board recomputed appellant's maximum term under that sentence, under Section 21.1 of the Parole Act,*fn4 without giving him credit for time spent at Eagleville. It held that he was "at liberty on parole" while there. The Board subsequently denied appellant's petition for administrative relief. Commonwealth Court, 78 Pa. Commonwealth Ct. 183, 467 A.2d 90, affirmed.
Section 21.1 of the Parole Act provides, in relevant part:
(a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board ...