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JESSE PUGH v. COMMONWEALTH PENNSYLVANIA (08/27/86)

decided: August 27, 1986.

JESSE PUGH, A/K/A FRANK JAMES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original Jurisdiction in case of Jesse Pugh, a/k/a Frank James v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Jesse Pugh, petitioner, for himself.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Rogers, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 100 Pa. Commw. Page 131]

Respondent, Pennsylvania Board of Probation and Parole (Board), files preliminary objections to petitioner, Jesse Pugh's, petition for a writ of mandamus to compel the Board to grant him a full Board hearing on the issue of his parole detainer. Respondent alleges that

[ 100 Pa. Commw. Page 132]

    this court lacks jurisdiction over this matter and that petitioner has failed to state a cause of action upon which relief can be granted. We overrule these objections.

In 1983, petitioner was paroled by the Connecticut Department of Correction, Division of Parole (Connecticut). His parole supervision was then transferred to the Board pursuant to section 1 of the Uniform Act for Out-of-State Supervision (Act), Act of June 25, 1937, P.L. 2086, as amended, 61 P.S. § 321. On November 11, 1984, petitioner was arrested and charged with possession and possession with the intent to deliver a controlled substance. Petitioner was then released after posting a $10,000 bond. On December 27, 1984, petitioner was again arrested and charged with possession of a controlled substance. Petitioner was then released after posting a $2,000 bond. Then on January 2, 1985, petitioner was arrested by a Pennsylvania parole officer, pursuant to a detainer lodged by Connecticut against petitioner for violation of his parole. The Board, acting as an agent for Connecticut, conducted a preliminary hearing on January 16, 1985, which resulted in the determination that it would be up to Connecticut to remove the detainer and therefore the Board had no authority to release petitioner from custody. Petitioner was never granted a final revocation hearing.

On August 6, 1985, petitioner filed a petition to vacate the parole detainer, alleging that he was being unlawfully held since he was not granted a full Board hearing within 120 days of the preliminary hearing. See 37 Pa. Code § 71.2(11). This court, in a per curiam order dated August 28, 1985, held that petitioner's request for review be treated as a petition for a writ of mandamus addressed to this court's original jurisdiction. The order also directed respondent to file a response within thirty days. The respondent then filed preliminary objections.

[ 100 Pa. Commw. Page 133]

At the outset, we reject the Board's contention that we do not have jurisdiction over this case. In Davis v. Pennsylvania Board of Probation and Parole, 484 Pa. 157, 398 A.2d 992 (1979), a case where a prisoner sought a mandamus against the Board, our Supreme Court stated that "[j]urisdiction over complaints against State agencies or officers administrating the parole system which are not direct or collateral attacks on the conviction or sentence was vested exclusively in the Commonwealth Court by the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, § 401, 17 P.S. § 211.401 (Supp. 1978)." Id. at 160, 398 A.2d 993-94.

We must now determine if the Board has an affirmative duty to provide the petitioner with a full Board hearing under the Act, and if such a duty does exist, can we order the ...


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