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HENRY RAUSER v. COMMONWEALTH PENNSYLVANIA (07/02/87)

decided: July 2, 1987.

HENRY RAUSER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original Jurisdiction in case of Henry Rauser v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Henry Rauser, petitioner, for himself.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert P. 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

[ 107 Pa. Commw. Page 217]

Henry Rauser, Petitioner, has filed a petition for review in the nature of a mandamus action invoking our original jurisdiction under Section 761 of the Judicial Code, 42 Pa. C.S. ยง 761, against the Pennsylvania Board of Probation and Parole (Board). In his action, he seeks a writ of mandamus to compel the Board to vacate its recommitment of him as a technical parole violator

[ 107 Pa. Commw. Page 218]

    and recompute his parole backtime and service of subsequent sentences to run concurrently, rather than consecutively as the Board has done. The Board has filed preliminary objections in the nature of a demurrer to Rauser's petition that are presently before this Court.

The Board argues that Rauser's petition fails to state a claim upon which relief can be granted. A demurrer will be sustained only where it appears clear from the face of the pleading that the law will not permit the recovery being sought. Zemprelli v. Thornburgh, 73 Pa. Commonwealth Ct. 101, 457 A.2d 1326 (1983). Any doubts must be resolved in favor of overruling the demurrer. International Association of Firefighters, Local 2493 v. Loftus, 80 Pa. Commonwealth Ct. 329, 471 A.2d 605 (1984). Also, a demurrer admits every well-pleaded material fact set forth in the pleadings as well as all inferences that may be reasonably deducible therefrom. Wolcott v. Athens Area School District, 62 Pa. Commonwealth Ct. 491, 437 A.2d 98 (1981).

Thus viewed, we glean the following facts from Rauser's petition. Rauser was paroled by the Board effective November, 1980, from two sentences, the longest of which was a two to five year sentence imposed by the Court of Common Pleas of Lebanon County. He was arrested on September 27, 1981, in Tampa, Florida, on charges that he committed three burglaries in Lancaster County, Pennsylvania. After holding a parole Violation Hearing, the Board ordered Rauser recommitted as a technical parole violator, when available, to serve twelve months on backtime based upon his arrest on the new burglary charges. Following his conviction on the new criminal charges, the Board provided him with a parole Revocation Hearing and thereafter ordered him recommitted as a convicted parole violator to serve twenty-four months on backtime, for a total of thirty-six months on backtime. Since Rauser had only two years, eleven months, and twelve days, remaining

[ 107 Pa. Commw. Page 219]

    on his Lebanon County sentence, the Board recommitted him for the balance of his unexpired term.

In his petition for review, Rauser contends (1) that the Board improperly recommitted him as a technical parole violator and a convicted parole violator as a result of his arrest and conviction of the Lancaster County burglary charges; and (2) that the Board erred by mandating that his parole backtime run consecutive with his new sentences where the sentencing judge implied that the new sentences would run concurrently. We shall address these ...


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