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LEROI DINKINS v. COMMONWEALTH PENNSYLVANIA (04/14/87)

decided: April 14, 1987.

LEROI DINKINS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF JUSTICE, PENNSYLVANIA BOARD OF PROBATION AND PAROLE AND BUREAU OF CORRECTIONS, AND LAWRENCE REID, SUPERINTENDENT AT SCIP GREENSBURG, AND HIS HEARING EXAMINER/COORDINATOR, M. J. MATHEWS, RESPONDENTS



Appeal from the Order of the Pennsylvania Board of Probation and Parole, in case of Leroi Dinkins, dated March 7, 1986.

COUNSEL

Dante G. Bertani, Public Defender, for petitioner.

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

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 105 Pa. Commw. Page 283]

Leroi Dinkins (Petitioner) appeals from a decision of the Pennsylvania Board of Probation and Parole (Board) which affirmed its prior order to rescind Petitioner's parole. We affirm.

On December 13, 1985, Petitioner was released from prison on a furlough. He returned on December 15, 1985. A urine sample was taken at that time for the purpose of drug testing. The test returned positive for morphine, and on December 20, 1985, the Department of Corrections held a hearing on Petitioner's misconduct. Petitioner was found guilty of unauthorized use of dangerous or controlled substances and violation of a condition of his pre-release program which prohibits such use. As a result, the Department ordered disciplinary action, and Petitioner did not appeal that decision.

On December 23, 1985, without knowledge of the action of the Department of Corrections, the Board issued

[ 105 Pa. Commw. Page 284]

    a decision to parole Petitioner to an approved plan on January 8, 1986 subject to the condition that there be no misconducts in the interim.

Upon learning that the Department of Corrections had found Petitioner guilty of misconduct while on furlough, the Board rescinded its prior paroling action. This determination is listed on the Board's decision form as having been recorded on March 7, 1986. However, it was not mailed to Petitioner's counsel until April 18, 1986. Petitioner filed this action on May 16, 1986.

The Board filed a motion to quash Petitioner's appeal as untimely pursuant to Pa. R.A.P. 1512(a)(1) which states that petitions for review of quasijudicial orders shall be filed with the prothonotary of the appellate court within 30 days after the entry of the order. In support of its motion, the Board argues that its order rescinding Petitioner's parole was recorded on March 7, 1986 and that, therefore, Petitioner's time for petitioning for review had expired at the time this action was filed. We disagree.

The 30-day limit for taking appeals under Pa. R.A.P. 1512 starts to run upon entry of the order. Pa. R.A.P. 108 defines the Date of Entry of Orders as "the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties. . . ." This Court has recognized that the date of execution of a determination is not necessarily the ...


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