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CHARLES LEWIS v. COMMONWEALTH PENNSYLVANIA (08/01/89)

decided: August 1, 1989.

CHARLES LEWIS, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



PETITION FOR REVIEW para. 763.

COUNSEL

Lester G. Nauhaus, Public Defender, John H. Corbett, Jr., Chief, Appellate Division, and Mitchell A. Kaufman, Appellate Counsel, Pittsburgh, for petitioner.

Timothy P. Wile, Asst. Chief Counsel, Robert Greevy, Chief Counsel and Arthur R. Thomas, Asst. Chief Counsel, Harrisburg, for respondent.

Craig and Barry, JJ., and Blatt, Senior Judge.

Author: Craig

[ 128 Pa. Commw. Page 15]

Charles W. Lewis appeals from an order of the Pennsylvania Board of Probation and Parole that dismissed his administrative appeal of an order of the board recommitting him to serve eighteen months' backtime as a convicted parole violator. The only issue before us is whether Lewis' administrative appeal was timely, where the board received that appeal more than thirty days after the mailing date of the recommitment order, but less than thirty days after Lewis received the recommitment order.

The board recommitted Lewis by order recorded September 15, 1988. The notice to Lewis of the board's decision bears a mailing date of October 13, 1988. The board received a pro se administrative appeal of the recommitment order on November 15, 1988, the day after the end of the period of thirty days from the mailing date. On December 15, 1988, the board dismissed the administrative appeal as untimely, stating that it lacked jurisdiction to entertain the merits of an untimely appeal under 37 Pa.Code §§ 73.1(a)(1) and 73.1(b)(1), citing also this court's decision in Threats v. Pennsylvania Board of Probation and Parole,

[ 128 Pa. Commw. Page 16102]

Pa. Commonwealth Ct. 315, 518 A.2d 327 (1986), rev'd on other grounds, 520 Pa. 182, 553 A.2d 906 (1989).

Lewis timely filed a pro se petition for review with this court from the board's December 15 order. The board filed a motion to limit the issue to the timeliness of the administrative appeal, which this court granted on February 23, 1989. The Public Defender of Allegheny County has filed a brief on behalf of Lewis.

Administrative appeals of board revocation decisions are governed by 37 Pa.Code § 73.1(a), which provides in part:

(a) Appeals.

(1) An interested party, by counsel unless unrepresented, may appeal a revocation decision. Appeals shall be received at the Board's Central Office within 30 days of the mailing date of the Board's order. When a timely appeal has been filed, the revocation decision will not be deemed final for purpose of appeal to a court until the Board has mailed its ...


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