Appeal from the Order of the Pennsylvania Board of Probation and Parole, in case of Melvin Lewis, Parole No. 5388P.
Richard C. Shiptoski, Assistant Public Defender, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
Judges Craig, and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
[ 97 Pa. Commw. Page 271]
Petitioner Lewis has appealed from an action of the Pennsylvania Board of Probation and Parole denying his request for administrative relief as untimely filed.
[ 97 Pa. Commw. Page 272]
On February 9, 1984, while Mr. Lewis was on parole, he was arrested for forgery; also, the board placed a detainer on him for technical violations of parole. After being sentenced for forgery, he was incarcerated at Graterford December 21, 1984, where the board held a full board revocation hearing as to him on March 6, 1985.
The record shows that the board made its recommitment decision, pursuant to that hearing, under date of April 23, 1985. The board sent the decision to his then counsel of record. The decision designated his place of incarceration as Graterford, but, on April 25, 1985, he was transferred to the State Correctional Institution at Dallas.
According to Mr. Lewis' allegation, no notice of the April 23 decision came to him until his corrections counselor and parole supervisor finally obtained and delivered a copy to him on June 14, 1985. He filed his request for administrative relief on July 3, 1985, within thirty days of the date on which he claims to have first received notice of the decision. The thirty-day time limit is established by 37 Pa. Code § 71.5(h).
The board's brief does not contest Mr. Lewis' claim that he did not personally receive notice of the decision until June 14; it supports the dismissal for untimeliness only on the basis that the board sent a copy of the April 23 decision to counsel then of record for Mr. Lewis. However, pursuant to an order of this court, a statement from that counsel has supplemented the incomplete record, making it clear that, although the Montgomery County public defender's office duly received a copy of the decision on April 26,*fn1 it did not
[ 97 Pa. Commw. Page 273]
undertake to inform Mr. Lewis because it "assumes" that the board would give notice to the prisoner. The public defender's assumption is based upon the provision in 37 Pa. Code § 71.2(19) that a revocation order ...