Com. ex rel. Jones v. Rundle

• Decision Date: 17 March 1964
• Citation: 199 A.2d 135,413 Pa. 456
• Parties: COMMONWEALTH of Pennsylvania ex rel. Lawrence JONES, Appellant, v. Alfred T. RUNDLE, Warden, Eastern State Correctional Institution, Philadelphia, Pennsylvania and Pennsylvania Board of Parole, Harrisburg, Pennsylvania.
• Court: Pennsylvania Supreme Court

Page 135

199 A.2d 135

413 Pa. 456

COMMONWEALTH of Pennsylvania ex rel. Lawrence JONES, Appellant, v. Alfred T. RUNDLE, Warden, Eastern State Correctional Institution, Philadelphia, Pennsylvania and Pennsylvania Board of Parole Harrisburg, Pennsylvania.

Supreme Court of Pennsylvania.

March 17, 1964.

Lawrence Jones, pro se.

Frank P. Lawley, Jr., Deputy Atty. Gen., Walter E. Alessandroni, Atty. Gen., Harrisburg, for appellees.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

PER CURIAM.

Order affirmed on the opinion of Judge Miller of the Court of Common Pleas of Dauphin County.

The opinion of Judge Miller follows:

A petition for writ of mandamus has been filed by one Lawrence Jones, a prisoner in the Eastern State Correctional Institution at Philadelphia, wherein the Warden of that institution and the Pennsylvania Board of Parole have been named as defendants. Petitioner seeks leave to proceed in forma pauperis. Although, as noted by this Court previously in numerous similar cases, the pleading, as filed, does not comply with the Pennsylvania Rules of Civil Procedure, we shall treat it as a complaint in mandamus under Pa.R.C.P. 1091 et seq., 12 P.S.Appendix. Defendants, by the Attorney General, have filed a demurrer challenging plaintiff's cause of action, and have also filed a certificate under the official seal of the defendant Board summarizing the history of plaintiff's case. We may take judicial notice of the facts set forth in this certificate, Commonwealth ex rel. Dean v. Pennsylvania Board of Parole, 80 Dauphin 31 (1962), and we note no substantial discrepancy between these facts and those averred in plaintiff's complaint.

Plaintiff now stands committed as a convicted parol violator, and his complaint prays this Court to correct the alleged errors in the recomputation of the expiration date of his maximum sentence by the defendant Board. After a careful consideration of the matters before us, and the statutory and case law applicable thereto, it is our conclusion that this complaint must be dismissed for the reasons hereinafter discussed.

To summarize the details of plaintiff's lengthy parole history, it appears that he was originally sentenced on a charge of burglary to the Allegheny County Workhouse in November, 1941, for a term of two and one-half to five years. While so confined, and following a fatal assault upon a fellow prisoner, he was convicted of second degree murder and sentenced to a ten to twenty year tern at the State Correctional Institution at Pittsburgh on January 28, 1943, with the balance of the original burglary sentence to be served upon his release from the murder sentence. At that time, a New York detainer was also lodged charging a parole violation from that State. Upon expiration of the minimum murder sentence, on February 13, 1953 he was paroled to serve the remainder of his burglary sentence at the Workhouse, and was released from the latter sentence on July 12, 1956, at which time he commenced serving his parole on the murder sentence. While on parole, he was convicted of a crime in New York, and on February 21, 1957 he was available for return to Pennsylvania as a convicted parole violator. He was recommitted to the penitentiary, and after recomputation by the Board, the expiration date of the maximum murder sentence was changed from January 28, 1963 to February 6, 1967. Thereafter, he was again paroled on July 19, 1961, and while on parole, was convicted of petty larceny in New York on February 15, 1963. He now stands recommitted in Pennsylvania as a convicted parole violator, and in accordance with the applicable law, the defendant Board has again recomputed the maximum expiration date of his murder sentence to be September 2, 1968, and has advised plaintiff that he will not be considered for further parole until February, 1965.

Plaintiff contends that the Board has erred in not giving credit on his murder sentence for the time which he served in the Allegheny County Workhouse on the burglary sentence subsequent to his initial parole on the murder sentence, and also for failing to credit him with penitentiary time served in New York following his convictions in that State while on parole.

The applicable statute governing the Board's action in this case is the Parole Law of 1941, as amended, the Act of August 6, 1941, P.L. 861, 61 P.S. § 331.1 et seq., and particularly § 21.1(a) of that law, added by the Act of August 24, 1951, P.L. 1401, as amended, 61 P.S. § 331.21a(a), the applicable portion of which is as follows:

'(a) Convicted violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parole or while delinquent on parole, commits any crime punishable by imprisonment, for which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere at any time thereafter in a court of record, may, at the discretion of the board, be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole.' (Emphasis supplied)

What plaintiff in effect contends is that because he was not at liberty on parole from his murder sentence while he was serving the balance of the burglary sentence in the Allegheny County Workhouse, he should be given credit for this time toward the service of his sentence, this being the converse of the statutory language, supra, which requires that no credit shall be given for time at liberty on parole. Plaintiff evidently is unaware that this issue is not new, and that it has been resolved adversely to him in several prior cases, first by this Court in Commonwealth ex rel. Kascak v. Johnston, 68 Dauphin 11 (1955), and a short time later in Money v. Pennsylvania Board of Parole, et al., 68 Dauphin 238 (1955), both times speaking through the late Judge (later President Judge) Neely, and finally by the Superior Court in Commonwealth ex rel. Haun v. Cavell, 190 Pa.Super. 346, 154 A.2d 257 (1959), wherein the Superior Court approved the conclusions reached by Judge Neely in both the Kascak and Money cases...