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CLYDE MCGRIFF v. COMMONWEALTH PENNSYLVANIA (07/14/89)

decided: July 14, 1989.

CLYDE MCGRIFF, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



PETITION FOR REVIEW

COUNSEL

Clyde McGriff, Bellefonte, pro se.

Robert Greevy, Chief Counsel, Arthur R. Thomas, Asst. Chief Counsel, Harrisburg, for respondent.

Doyle and McGinley, JJ., and Barbieri, Senior Judge.

Author: Doyle

[ 127 Pa. Commw. Page 168]

Before us are preliminary objections in response to a petition for review filed in our original jurisdiction. The petition, filed by Clyde McGriff, (Petitioner) alleges that he was sentenced by the Court of Common Pleas of Allegheny County to serve three and one-half to seven years for convictions for burglary and receiving stolen property. The effective date of that sentence was December 28, 1982. On June 23, 1986 Petitioner was released on parole. While on parole Petitioner was convicted on new criminal charges for conduct occurring in California and Pennsylvania. The California conviction occurred on July 22, 1987; the Pennsylvania conviction occurred on April 14, 1988. Subsequently, in decisions dated December 22, 1987 and July 27, 1988

[ 127 Pa. Commw. Page 169]

    the Pennsylvania Board of Probation and Parole (Board) recommitted Petitioner as a convicted parole violator to serve fifteen months backtime and three months backtime respectively for a total of eighteen months backtime.

On September 21, 1988, pursuant to a Post Conviction Hearing Act procedure, the Court of Common Pleas of Allegheny County vacated Petitioner's original December 28, 1982 sentence determining that it had been illegally imposed because the sentencing court had failed to state for which offense the sentence was being imposed. Accordingly, Petitioner's three and one-half to seven year sentence was vacated.

The Board, however, has not vacated the eighteen month backtime recommitment imposed because of Petitioner's subsequent convictions, but imposed under the original sentence -- which has now been declared illegal and vacated. The petition, which sounds in mandamus, contends that the Board is now duty bound to vacate its decision recommitting Petitioner because the original sentence was vacated. In other words, if there is now no original sentence to serve, there can not be backtime incarceration to serve in lieu of parole under that sentence. And petitioner requests this Court to issue an order directing the Board to vacate its recommitment order.

In response to this petition, the Board has filed a preliminary objection contending that it enjoys sovereign immunity, see 1 Pa.C.S. § 2310 (providing generally that the Commonwealth is to be immune from suit with certain enumerated exceptions), and hence, cannot be sued by Petitioner in this manner. Specifically, the Board calls attention to the fact that the caption in this case names only the "Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole" as Respondent and does not name or in any way delineate the individual members of the Board. It is the Board's position that sovereign immunity is a bar

[ 127 Pa. Commw. Page 170]

    to any action against the Board "qua Commonwealth agency, as opposed to the Board qua five ...


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