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LEROY MCCAIN v. GAETANO CURIONE (06/12/87)

decided: June 12, 1987.

LEROY MCCAIN, PETITIONER
v.
GAETANO CURIONE, WARDEN, HOLMESBURG PRISON, AND COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENTS



Original jurisdiction in case of Leroy McCain v. Gaetano Curione, Warden, Holmesburg Prison, and Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Leroy McCain, petitioner, for himself.

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 Senior Judge Barbieri.

Author: Barbieri

[ 106 Pa. Commw. Page 553]

Leroy McCain, Petitioner, has filed a petition for review under this Court's original jurisdiction seeking the removal of a parole violation detainer filed by the Pennsylvania Board of Probation and Parole (Board), and an order of this Court directed to Gaetano Curione, warden of Holmesburg Prison in Philadelphia,*fn1 allowing

[ 106 Pa. Commw. Page 554]

Curione to release McCain from confinement upon posting of bail. The Board has filed preliminary objections to McCain's petition for review and McCain has filed a motion for summary relief. It is the Board's preliminary objections and McCain's motion that are currently before the Court.

A brief summary of the facts is helpful in resolving the issues presently before us. McCain was originally sentenced to a term of two and one-half years to ten years as a result of his conviction for Rape.*fn2 He was granted parole by the Board on that sentence in December, 1984, at which time he was released from the State Correctional Institution at Rockview (SCI-Rockview). On August 13, 1986, McCain was arrested by Philadelphia Police on drug charges and confined in Holmesburg Prison. The Board lodged its warrant and detainer against him on September 25, 1986, as a result of the pending criminal charges. He was afforded a parole Detention Hearing on October 21, 1986, after which the Board ordered him detained pending disposition of the new criminal charges. On November 7, 1986, McCain was given a criminal preliminary hearing at which time a prima facie case was established on the new charges.

In this petition, McCain claims that the Board's order mandating that he be detained pending disposition of criminal charges is invalid due to the fact that his Detention Hearing was held twenty-six days after the parole detainer was lodged, that he claims is a violation of 37 Pa. Code ยง 71.3(9). The Board's preliminary objections seek dismissal of the petition for failure to comply

[ 106 Pa. Commw. Page 555]

    with the rules of procedure and applicable law and also that the petition for review fails to state a cause of action upon which relief can be granted. McCain's motion for summary relief argues that he is entitled to the relief he seeks as a matter of law. We shall first dispose of the Board's preliminary objections.

The Board's initial objection is that McCain's petition for review does not conform to the rules of court. Our review of the pleadings filed by him in this action convinces us that he has complied with the rules of court. Pursuant to Pa. R.A.P. 1502, the exclusive procedure for commencing an action against the Commonwealth in this Court is by a petition for review. The required contents of a petition for review are found in Pa. R.A.P. 1513. A petition for review addressed to this Court's original jurisdiction is required to contain facts necessary to state a cause of action and must be verified. Pa. R.A.P. 1513(e). Referring to the petition for review filed by McCain in this action, we duly note that he has properly identified the respondents, the determination that he seeks to have review of, verified facts that he alleges make out his claim for relief, with a verified statement signed by him. The actual petition for review is obviously signed by McCain's attorney-in-fact, Stanley V. Johnson, with Johnson's initials behind McCain's name. While Johnson, a fellow inmate at Holmesburg Prison, is neither an attorney-at-law nor licensed to practice law in this Commonwealth, we are satisfied that his signing McCain's name to the petition for review is not a fatal error. While the Rules of Appellate Procedure do not specifically require ...


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