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DUSHAWN SMITH v. COMMONWEALTH PENNSYLVANIA (11/20/89)

decided: November 20, 1989.

DUSHAWN SMITH, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



PETITION FOR REVIEW.

COUNSEL

Dushawn Smith, Greensburg, pro se.

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

Crumlish, Jr., President Judge, Colins, J., and Narick, Senior Judge.

Author: Colins

[ 129 Pa. Commw. Page 607]

The Pennsylvania Board of Probation and Parole (Board) has filed preliminary objections to the petition for review of DuShawn Smith (petitioner). By memorandum and order dated May 17, 1989, this Court ordered that the

[ 129 Pa. Commw. Page 608]

    petition for review be treated as a petition addressed to this Court's original jurisdiction because the petition sounds in mandamus.

Petitioner is a prisoner at the State Correctional Institution at Greensburg, where he is serving a sentence of nine to twenty-five months for his convictions of robbery, simple assault and conspiracy. Petitioner filed this action against the Board alleging that it denied his application for parole on the basis that a firearm was used in the commission of the crime for which he is currently incarcerated.*fn1 The petition also alleges that petitioner wrote to the Board and stated that a weapon was not used in the commission of the crime and that petitioner was not charged with the use of a firearm nor was convicted of an offense involving a firearm.*fn2 It is further alleged that petitioner received a response from the Board stating that its records indicated that a gun was used in the commission of the crime and that it would not alter its records. Petitioner requests that this Court direct the Board to correct petitioner's records and reconsider him for parole.

The Board has raised three preliminary objections to petitioner's petition for review: (1) this Court lacks jurisdiction over the Board due to petitioner's improper service of the petition for review; (2) the Board enjoys sovereign immunity and is immune from suit; (3) the Board demurs on the basis that it has no duty to modify its records at petitioner's request.

Service of a process under this Court's original jurisdiction is governed by the Rules of Appellate Procedure. Pa.R.A.P. 1514(c) requires that service be made in person or by certified mail. Petitioner has conceded that the petition for review was served on the Board by first class mail. Service of the petition by first class mail is insufficient to

[ 129 Pa. Commw. Page 609]

    vest this Court with jurisdiction over the Board. Bronson v. Filipi, 107 Pa. Commonwealth Ct. 590, 528 A.2d 1060 (1987). Therefore, we conclude that this Court lacks jurisdiction over the Board and that the Board's preliminary objection on that basis ...


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