89 Pa. Commw. 561 | Pa. Commw. Ct. | 1985
Opinion by
Frank St. Clair (Petitioner) filed a civil action in the nature of a request for mandamus against the Pennsylvania Board of Probation and Parole (Board) addressed to our original jurisdiction under Section 761 of the Judicial Code, 42 Pa. C. S. §761. The essence of Petitioner’s contention before us is that the Board erred in denying him time credit on the maximum term of his six to thirty-year Philadelphia County sentence when it returned him to prison as a convicted parole violator on September 19, 1983. Petitioner has filed a motion for summary judgment in his favor and the Board has cross-moved for summary judgment.
Petitioner was originally sentenced in Philadelphia County Common Pleas Court in 1971 to a combined term of six to thirty years as a result of his conviction for Aggravated Robbery
Proper Basis for Jurisdiction
Prior to addressing the merits of the summary judgment motions now before us, we must first examine the proper basis for invoking this Court’s jurisdiction. While neither party has raised jurisdictional issues in their motions, this Court may always raise sua sponte the issue of its own subject matter juris
This Court’s jurisdiction is unique in that it is wholly statutory as found within Sections 761-764 of the Judicial Code, 42 Pa. C. S. §§761-764. Our original jurisdiction is narrowly circumscribed to encompass civil actions or proceedings by or against the Commonwealth or any officer thereof “acting in his official capacity” or where otherwise specifically conferred by statute. Unlike jurisdictional criteria applicable to other courts of this Commonwealth, our jurisdiction is predicated upon the identities of the parties and the capacities in which they are sued. The nature of the cause of action asserted assumes importance and only becomes critical in determining jurisdiction with respect to causes asserted against an officer of the Commonwealth acting in his official capacity. General State Authority v. Pacific Indemnity Co., 24 Pa. Commonwealth Ct. 82, 87-88, 354 A.2d 56, 59 (1976); Konhaus v. Lutton, 21 Pa. Commonwealth Ct. 181, 183, 344 A.2d 763, 764 (1975).
Here, petitioner has asserted a claim in mandamus against the Board. The Board is clearly a Commonwealth agency and this Court enjoys jurisdiction in actions brought against it. Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050 (1981). There is also little question that actions in mandamus directed against Commonwealth agencies or officers acting in their official capacities are properly within the original jurisdiction of this Court. Jones v. McCullough, 8 Pa. Commonwealth Ct. 637, 305 A.2d 54
Mandamus is available only to compel the performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and the want of any other adequate and appropriate remedy. Donnell v. Pennsylvania Board of Probation and Parole, 61 Pa. Commonwealth Ct. 517, 434 A.2d 846 (1981). Here, petitioner seeks to compel the Board to credit his six to thirty-year Philadelphia County sentence with time he spent in various programs in 1978 and 1979, and for time he spent incarcerated on the Montgomery County sentence in 1981 and 1982. He does not, however, contest the validity of the Board’s action in revoking his parole and returning him to prison as a convicted parole violator. We had previously held that where a parolee contests only the computation of time credited to his original sentence by the Board, and not the validity of his recommitment, the parolee has stated a proper cause in mandamus and comes within our original jurisdiction. Green v. Pennsylvania Board of Probation and Parole, 56 Pa. Commonwealth Ct. 408, 409 n. 1, 424 A.2d 639, 640 n. 1 (1981).
However, our Supreme Court has subsequently cast doubt upon the validity of our holding in Green when it held that a parolee’s claim for time credit against his original sentence was not a proper action in mandamus but rather was an appeal from an order of a Commonwealth agency directed to our appellate jurisdiction under 42 Pa. C. S. §763. McMahon v.
Exhaustion of Administrative Remedies
As we have determined that petitioner’s action is properly an appeal from an order of a Commonwealth agency, we must now determine whether petitioner has exhausted his available administrative remedies with the Board. Under the doctrine of exhaustion of administrative remedies, which we have previously held to be applicable to the Board’s recommitment or
The primary purpose of the exhaustion doctrine is to ensure that claims will be heard, as a preliminary matter, by the body having expertise in the area. This is particularly important where the ultimate decision rests upon factual determinations lying within the expertise of the agency or where agency interpretations of relevant statutes or regulations are desirable. In addition, the exhaustion doctrine provides the agency with the opportunity to correct its own mistakes and to moot judicial controversies. Parisi v. Davidson, 405 U.S. 34 (1972); A&B Wiper Supply, Inc. v. Consumer Product Safety Commission, 514 F. Supp. 1145 (E.D. Pa. 1981): see also, Paterson Redevelopment Agency v. Schulman, 78 N.J. 378, 396 A.2d 573 (1979), cert. denied, 444 U.S. 900 (1979). The exhaustion doctrine is also implicitly recognized by Section 703(a) of the Administrative Agency Law, 2 Pa. C. S. §703(a), wherein the General Assembly has provided that, other than a challenge to the validity of a statute, if an issue is not raised before the Commonwealth agency it cannot be raised on judicial review. Of course, it is axiomatic that the exhaustion doctrine is appli
The Board does provide an administrative appeal process from its recommitment orders. That process is outlined in a Board regulation found at 37 Pa. Code §71.5(h) which reads as follows:
(h) When any errors under this chapter are alleged subsequent to the Board’s order, the parolee, by his attorney unless he is unrepresented, may apply to the Board within 30 days of the date of entry of the order for appropriate review and relief. Such application shall set forth specifically the factual and legal basis for the allegations. When a timely request for administrative relief of an order has been filed, the order wil not be deemed final for purposes of appeal until the Board has mailed its response to the request for administrative review. This subsection supersedes 1 Pa. Code §35.226 (relating to final orders).
The Board has also established a separate Hearing Review Division which processes, reviews, and responds to administrative review requests under 37 Pa. Code §71.5(h). Our review of the Board’s administrative review and relief procedure satisfies us that it does offer parolees an adequate and meaningful administrative remedy which must be exhausted prior to seeking judicial review of a Board recommitment order. See e.g. O’Hara v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 356, 361, 487 A.2d 90, 93 (1985) (new parole Revocation Hearing granted in response to parolee’s administrative relief request); Lewis v. Pennsylvania Board of Pro
It is clear from the record before us that the petitioner did not avail himself of the administrative review procedure afforded him by the Board. Therefore, under the exhaustion doctrine, his action would be barred unless the issues raised fall within one of the established exceptions to the exhaustion doctrine.
The major exception to the exhaustion doctrine is where the issue is a legal question of constitutional dimensions and the facts are uncontested. This is commonly known as the “constitutional attack” exception and to come within this extraordinarily narrow exception,, a party must show that the challenged statute or regulation clearly and unambiguously violates a constitutionally-secured right. Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3d Cir. 1980), cert. denied, General Public Utilities Corp. v. Susquehanna Valley Alliance, 449 U.S. 1096 (1981); Republic Industries, Inc. v. Central Pennsylvania Teamsters Pension Fund, 534 F. Supp. 1340 (E.D. Pa. 1982), rev’d on other grounds, 693 F.2d 290 (3d Cir. 1982). The existence of a constitutional issue must be clear and the mere allegation of the presence of a constitutional question is not sufficient to excuse the failure to exhaust administrative remedies. Patlex Corp., Inc. v. Mossinghoff, 585 F. Supp. 713, 722 (E.D. Pa. 1983). To fit within the “constitutional attack” exception to the exhaustion doctrine, the attack must be made to the constitutionality of the statute or regulation as a whole and not merely to how the statute or regulation has been applied in a particular case. Goldstein v. Time-Out Family Amuse
We also note that had petitioner been successful in stating a proper cause in mandamus he would still be required to first avail himself of the available administrative remedies with the Board. It is well-established that his failure to exhaust administrative remedies would bar an action in mandamus against the Board. See Packler v. State Employees’ Retirement Board, 487 Pa. 51, 54, 408 A.2d 1091, 1092 (1979); Dingel v. State Employees’ Retirement System, 62 Pa. Commonwealth Ct. 79, 82, 435 A.2d 664, 666 (1981).
Timeliness of the Petition for Review
While neither party has raised the issue of timeliness, we are compelled to examine this issue sua sponte in that we are cognizant that the timeliness of an appeal is jurisdictional in nature. Criniti v. Department of Transportation, 34 Pa. Commonwealth Ct. 512, 383 A.2d 993 (1978). Also, it has been this Court’s past practice where a parolee has filed a pro se petition for review within thirty days of the date of the Board’s recommitment order but failed to file for administrative relief under 37 Pa. Code §71.5(h), to dismiss the petition without prejudice to the parolee’s right to seek the appropriate administrative relief with the
Both parties agree that the Board recommitment order sought to be reviewed here was recorded on September 19, 1983. Petitioner also admits that he did not file his petition for review with this Court until March 9, 1984, well beyond the thirty-day appeal period of both 37 Pa. Code §71.5(h) and Pa. R.A.P. 1512(a)(1). Therefore, the petition for review was untimely for purposes of administrative relief with the Board and under the Rules of Appellate Procedure. Accordingly, we must dismiss the petition with prejudice as untimely and we are without jurisdiction to hear the merits, if any, of petitioner’s claims. Manuel v. Pennsylvania Board of Probation and Parole, 76 Pa. Commonwealth Ct. 270, 463 A.2d 1236 (1983); but see, Coach v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 623, 472
Due to petitioner’s failure to exhaust all administrative remedies and his failure to file a timely appeal of his Board recommitment order, the petition for review must be dismissed with prejudice. Therefore, we need not address the merits of the motion and cross-motion for summary judgment filed by petitioner and the Board in this matter.
Order
And Now, this 30th day of May, 1985, that portion of this Court’s prior order dated September 5, 1984 which allows petitioner to proceed under our original jurisdiction under 42 Pa. C. S. §761 is vacated and the petition for review, treated as addressed to our appellate jurisdiction under 42 Pa. C. S. §763, is hereby dismissed with prejudice due to petitioner’s failure to exhaust his available administrative remedies with the Pennsylvania Board of Probation and Parole and his failure to comply with the time requirements of Pa. R.A.P. No. 1512(a)(1).
Section 705 of the Act of June 24, 1939, P.L. 872, formerly 18 P.S. §4705, repealed by the Act of December 6, 1972, P.L. 1482. A similar provision is now found in Section 3701 of the Crimes Code, 18 Pa. C. S. §3701.
Section 901 of the Act of June 24, 1939, P.L. 872, formerly 18 P.S. §4901, repealed by the Act of December 6, 1972, P.L. 1482. A similar provision is now found in Section 3502 of the Crimes Code, 18 Pa. C. S. §3502.
18 Pa. C. S. §5104. Petitioner was convicted of this charge on January 8, 1981 and was sentenced to one-year probation.
18 Pa. C. S. §3503(b).
18 Pa. C. S. §907.
18 Pa. C. S. §3921.
18 Pa. C. S. §3503(a).
Section 21.1(a) of the Act of August 6, 1941 (Parole Act), P.L. 861, as amended, 61 P.S. §331.21a(a), mandates that where the Board recommits a parolee to prison for a new criminal conviction, the Board must deny that parolee credit against his sentence for any time spent “at liberty” on parole. We have held that this statutory language requires the Board to credit a convicted parole violator’s sentence with only that time which he was actually incarcerated on that particular sentence. See Cox v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 183, 467 A.2d 90 (1983), rev’d Pa. , 493 A.2d 680 (1985) (credit denied for time parolee spent in an in-patient drug program); Anderson v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 574, 472 A.2d 1168 (1984); Morris v. Pennsylvania Board of Probation and Parole, 77 Pa. Commonwealth Ct. 85, 465 A.2d 97 (1983) (credit denied on maximum sentence for “street time” parolee earned prior to an earlier recommitment as a technical parole violator) ; Debnam v. Pennsylvania Board of Probation and Parole, 71 Pa. Commonwealth Ct. 572, 455 A.2d 297 (1983) (credit denied for time parolee spent on “constructive parole” while incarcerated serving the minimum term of another sentence).
The Board had originally extended petitioner’s maximum term expiration date to January 16, 2005. Subsequent to petitioner instituting this action, the Board received additional information from the Court of Common Pleas of Montgomery County by which petitioner became entitled to have the time he was incarcerated from November 14, 1980 through June 12, 1981 applied to his six to thirty-year Philadelphia County sentence. This had the effect of reducing his maximum term expiration date to June 18, 2004.
By our order of March 26, 3984, we also appointed the Public Defender of Allegheny County to represent petitioner in this matter pursuant to the mandate of Bronson, 491 Pa. 549, 421 A.2d 1021 (1980), and Passaro v. Pennsylvania Board of Probation and Parole, 56 Pa. Commonwealth Ct. 32, 424 A.2d 561 (1981). However, petitioner subsequently filed a motion with this Court to dismiss his appointed counsel as he desired to represent himself pro se, specifically waiving his right to counsel, and expressing his desire to proceed under our original jurisdiction under 42 Pa. C. S. §761. We granted petitioner’s motion and relieved the Allegheny County Public Defender from any further responsibilities in representing petitioner and allowed petitioner to proceed under 42 Pa. C. S. §761. We only vacate that portion of our order of September 5, 1984 which allows petitioner to proceed under 42 Pa. C. S. §761, the remainder of the order which relieves the Allegheny County Public Defender from the responsibility of representing petitioner remains in force.
The amendment to this regulation which imposed a thirty-day time limit on administrative appeals became effective on September 19, 1982. As the Board order about which petitioner complains was entered on September 19, 1983, this limitation is applicable to his appeal.