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MICHAEL D. GILLESPIE v. COMMONWEALTH PENNSYLVANIA (06/09/87)

decided: June 9, 1987.

MICHAEL D. GILLESPIE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS AND PENNSYLVANIA BOARD OF PROBATION AND PAROLE AND THOMAS A. FULCOMER, SUPERINTENDENT OF S.C.I.H., ET AL., RESPONDENTS



Original Jurisdiction in case of Michael D. Gillespie v. Commonwealth of Pennsylvania, Department of Corrections and Pennsylvania Board of Probation and Parole and Thomas A. Fulcomer, Superintendent of S.C.I.H., et al.

COUNSEL

Michael D. Gillespie, petitioner, for himself.

Francis R. Filipi, Senior Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section and LeRoy S. Zimmerman, Attorney General.

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

Author: Barbieri

[ 106 Pa. Commw. Page 502]

Michael D. Gillespie, Petitioner, has commenced an action in this Court's original jurisdiction seeking a judicial determination that he has completed serving a three to six month sentence imposed as a result of his conviction for Possession of a Controlled Substance.*fn1 Respondents, the Pennsylvania Department of Corrections (Department), the Pennsylvania Board of Probation and Parole (Board), and Thomas A. Fulcomer, Superintendent of the State Correctional Institution at Huntingdon (SCI-Huntingdon),*fn2 have filed preliminary

[ 106 Pa. Commw. Page 503]

    objections in the nature of a demurrer to Gillespie's petition for review. On February 3, 1987, this Court ordered the parties to file briefs on the Respondents' demurrer and on the issue whether this Court has jurisdiction to entertain Gillespie's claims in the nature of habeas corpus relief. Those two issues are presently before this Court for disposition.

The factual background of this case is fairly simple. Gillespie was originally sentenced by Judge Charles C. Brown of the Court of Common Pleas of Centre County to a term of five to ten years as a result of his conviction for Voluntary Manslaughter.*fn3 While serving that sentence, Gillespie was charged with Possession of a Controlled Substance. He pleaded guilty to that offense and was sentenced by Judge Bernard J. Podcasy of the Court of Common Pleas of Luzerne County to a term of three to six months that was to run consecutively to the previously imposed five to ten year voluntary manslaughter sentence. Pursuant to Section 9757 of the Sentencing Code, 42 Pa. C.S. § 9757, that three to six month sentence was aggregated with the five to ten year sentence for a total sentence of five years, three months to ten years, six months. Gillespie then filed a petition for a writ of habeas corpus with this Court seeking a determination that his two sentences were improperly aggregated and that the Luzerne County Common Pleas Court, and not the Board, retained paroling authority over that sentence.

We shall first address the issue of this Court's jurisdiction to entertain Gillespie's petition for review. Both Gillespie and Respondents characterize the petition as claiming habeas corpus relief. Respondents contend that habeas corpus actions are outside of this Court's limited jurisdiction and that the action should either be dismissed or transferred to common pleas court.

[ 106 Pa. Commw. Page 504]

In St. Clair v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 561, 493 A.2d 146 (1985), we recognized that this Court's jurisdiction is unique in that it is wholly statutory as found within Sections 761-764 of the Judicial Code, 42 Pa. C.S. §§ 761-764. Our original jurisdiction is narrowly circumscribed to encompass civil actions or proceedings by or against the Commonwealth or any officer thereof acting in his official capacity or where otherwise specifically conferred by statute. Habeas corpus actions, except as ancillary to proceedings within our appellate jurisdiction, are expressly excluded from our original jurisdiction by virtue of Section 761(a)(1)(i) of the Judicial Code, 42 Pa. C.S. § 761(a)(1)(i). See also Wilson v. Bureau of Corrections, 85 Pa. Commonwealth Ct. 32, 480 A.2d 392 (1984); Szymanski v. Allegheny County Court Criminal Division, 77 Pa. Commonwealth Ct. 316, 465 A.2d 1081 (1983). There is no matter currently pending in our appellate jurisdiction for Gillespie's alleged habeas corpus petition to be ancillary to. Therefore, if his petition for review is, as he and Respondents contend, a true habeas corpus petition, we are without jurisdiction to entertain its merits and it must be transferred to the appropriate common pleas court.

Our review of Gillespie's petition, however, convinces us that even though the parties style it as sounding in habeas corpus, it is not a true habeas corpus petition and we may exercise jurisdiction and reach a decision on the merits. In his petition, Gillespie challenges the jurisdiction of the Board over his three to six month sentence and argues that the common pleas court retained paroling authority over that sentence. He bases his challenge on Section 26 of the Act of August 6, 1941 (Parole Act), P.L. 861, ...


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