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RALPH EDWARD WAGNER v. COMMONWEALTH PENNSYLVANIA (03/09/87)

decided: March 9, 1987.

RALPH EDWARD WAGNER, 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 Ralph Wagner, Parole No. 9266-P.

COUNSEL

Scott E. Lash, 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 Palladino.

Author: Palladino

[ 104 Pa. Commw. Page 404]

This is an appeal by petitioner, Ralph Edward Wagner, from a denial of administrative relief by the Pennsylvania Board of Probation and Parole (Board). For the reasons which follow, we reverse petitioner's recommitment as a technical parole violator.

Petitioner was paroled June 19, 1982, after serving six months of a six to forty-eight month sentence for receiving stolen property*fn1 and theft of services.*fn2 On August

[ 104 Pa. Commw. Page 40517]

, 1983, while at liberty on parole, petitioner was arrested and charged with three counts each of possession,*fn3 possession with intent to deliver,*fn4 and delivery of a schedule II controlled substance*fn5 (methamphetamine).

As a result thereof, the Board, on December 1, 1983, recommitted petitioner as a technical parole violator (tpv) to serve, when available, 12 months backtime for violation of general condition 5a*fn6 and 18 months backtime for violation of special condition 6.*fn7

Petitioner timely petitioned for administrative relief, which was denied. Petitioner then appealed to this Court which, by order dated October 2, 1985, vacated that portion of petitioner's recommitment as a tpv concerning his violation of special condition 6 and remanded for proceedings consistent with that opinion. Wagner v. Pennsylvania Board of Probation and Parole, 92 Pa. Commonwealth Ct. 132, 498 A.2d 1007 (1985).*fn8 After a

[ 104 Pa. Commw. Page 406]

January 9, 1986 rehearing, the Board, by order dated April 2, 1986, ...


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