Borsello v. Colleran

833 A.2d 1213, 2003 Pa. Commw. LEXIS 747

• Court: Commonwealth Court of Pennsylvania
• Decided: October 17, 2003
• Status: Published

Opinions

OPINION BY

President Judge COLINS.

Nicholas A. Borsello, Jr. appeals the order of the Court of Common Pleas of the 22nd Judicial District, County of Wayne, dismissing his “Petition for Writ of Habeas Corpus Ad Testificandum” for lack of jurisdiction. We affirm.

Borsello filed his petition, naming “Superintendent Raymond Colleran et al.” as defendants. The petition begins with a request that Colleran be directed to bring him before the court for a trial. The petition’s statement of case relates a sequence of events that resulted in Borsello’s recommitment by the Pennsylvania Board of Probation and Parole (Board) and the subsequent denial of reparole, which events he relates directly to the conspiratorial collusion among the Board, the Department of Corrections, and one Jeanine Jennell, who apparently has custody of Borsello’s son and who allegedly offered perjured testimony in connection with the recommitment and allegedly filed false and malicious charges against Borsello in an effort to prevent him from being reparoled and to maintain custody of his son. The petition challenges the recommitment on due process and other grounds and the Board’s reasons for denying him reparole and its recommendation that Borsello complete various programs that would be considered at his next parole interview.

At the direction of the trial judge, Col-leran and the Board of Probation and Parole filed a memorandum response to Bor-sello’s petition in which they challenged the trial court’s jurisdiction. In an opinion and order dated July 8, 2003, the trial court dismissed Borsello’s petition for lack of jurisdiction after concluding that exclusive jurisdiction over his claims lies within Commonwealth Court. Borsello filed the present appeal.

On appeal, Borsello raises the following issues: whether the trial court erred in not issuing the requested writ to have superintendent Colleran bring him before the trial court for a trial; whether the court erred in failing to give weight to uncontroverted evidence that the Board breached its contract with him that parole would not be revoked unless he violated it; and whether the court erred by not granting him relief as to his continued illegal incarceration. These issues all relate to the merits of his petition, which the trial court did not address after it concluded that it lacked jurisdiction. The only issued decided by the trial court was jurisdiction, and therefore it is the only issue before this Court on appeal.

Although titled petition for habeas corpus and containing a request that superintendent Colleran bring Borsello before the court for trial, we must agree with the trial judge’s conclusion that Borsello’s petition raises claims related to the revocation of his parole and the Board’s denial of reparole. Appeals of the Board’s parole revocation and recommitment orders are within the exclusive appellate jurisdiction of the Commonwealth Court. 42 Pa.C.S. § 763(a). Borsello acknowledges in his petition that he exercised his appeal rights in connection with the revocation of his parole and that this Court affirmed the Board’s denial of administrative relief in a memorandum opinion filed on November 3, 2000 (No. 3274 C.D.1999).

As for the Board’s denial of reparóle, the law is well settled that denial of parole is discretionary and not appealable. Rogers v. Pennsylvania Board of Probation and Parole, 555 Pa. 285, 724 A.2d 319 (1999); Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986). The General Assembly has conferred upon the Board sole discretion to determine whether a prisoner is sufficiently rehabilitated to serve out the remainder of his sentence outside of prison. Rogers. The courts of this Commonwealth have determined that denial of parole for an inmate’s failure to participate in recommended treatment programs presents no constitutional violation. Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766 (Pa. Cmwlth.1997).

We note that the trial court did not err in failing to transfer this matter pursuant to 42 Pa.C.S. § 5103, which mandates the transfer of erroneously filed matters. In the instant case, although the trial court acknowledged this Court’s exclusive jurisdiction over parole revocation appeals, the Board is not a party named in the caption of Borsello’s petition. Moreover, as stated above, the petition acknowledged that Bor-sello exhausted his appeals in connection with the parole revocation.

Because we conclude that the trial court properly concluded that it lacked jurisdiction over Borsello’s claims, we affirm the trial court’s order dismissing Borsello’s petition.

ORDER

AND NOW, this 17th day of October 2003, the order of the Court of Common Pleas of the 22nd Judicial District, County of Wayne, in the above-captioned matter is affirmed.

Petitioner’s motion for transcripts and application for oral argument are dismissed as moot.