Smith v. Pennsylvania Board of Probation & Parole

661 A.2d 902, 1995 Pa. Commw. LEXIS 297
CourtCommonwealth Court of Pennsylvania
DecidedJune 15, 1995
StatusPublished
Cited by1 cases

This text of 661 A.2d 902 (Smith v. Pennsylvania Board of Probation & Parole) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Pennsylvania Board of Probation & Parole, 661 A.2d 902, 1995 Pa. Commw. LEXIS 297 (Pa. Ct. App. 1995).

Opinions

PELLEGRINI, Judge.

Ronald Smith (Parolee) appeals from an order of the Pennsylvania Board of Probation and Parole (Board) denying Parolee’s administrative appeal of a parole revocation decision.

While on parole, Parolee was charged with three technical parole violations and a new arrest.1 Although the new criminal charges were dismissed, a violation hearing was held, at which Parolee admitted to committing the three parole violations. Consequently, the Board found Parolee delinquent, revoked his parole and recommitted Parolee to serve nine months backtime.

Parolee, acting pro se, petitioned the Board for administrative review of the Board’s order, alleging due process violations. On March 16, 1994, the Board denied that petition, and Parolee now appeals to this court,2 again asserting a violation of his constitutional rights.

Because it is jurisdictional, we must initially determine whether Parolee’s Petition for Review should be dismissed as untimely filed. Pursuant to Pa.R.A.P. 1512(a)(1), a petition for review from a Board order must be filed with this court within thirty days after the order’s entry.3 On April 14, 1994, [904]*904Parolee acquired a Department of Corrections Form DC-138A “Cash Slip.”4 The cash slip indicates that on that date the Department of Corrections charged Parolee postage for mail sent to the Prothonotary of the Philadelphia Court of Common Pleas by first class mail.5 On April 14, 1994, within this thirty day period, Parolee purportedly placed the petition for review in the mailbox located in the State Correctional Institution at Graterford. On April 20, 1994, the Clerk of Quarter Sessions of the Philadelphia Court of Common Pleas stamped the petition as received and transferred it to the Philadelphia Office of our Superior Court.6 On April 27, 1994, the Superior Court transferred the petition to this court, which our prothonotary stamped as received on May 2, 1994.

By an order dated May 5, 1994, we held that the petition was untimely filed and dismissed Parolee’s appeal. However, Parolee subsequently filed a letter in this court requesting reinstatement of the petition. Parolee maintained that the cash slip he received from the Department of Corrections constituted sufficient proof that he mailed his petition prior to the expiration of the thirty day appeal period, thus securing an appeal date of April 14, 1994. See Pa.R.A.P. 1514(a);7 Sheets v. Department of Public Welfare, 84 Pa.Commonwealth Ct. 388, 479 A.2d 80 (1984).

By an order dated June 3, 1994, this court reinstated the Petition for Review and directed both parties to file briefs addressing not only the merits of the appeal, but also the applicability of Turner v. Board of Probation and Parole, 137 Pa.Commonwealth Ct. 609, 587 A.2d 48 (1991), to this ease.

In Turner, we refused to adopt the United States Supreme Court’s ruling in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). In Houston, the Supreme Court, interpreting the filing of appeals under the Federal Rules of Appellate Procedure, held that a pro se prisoner’s notice of appeal is “filed” at the moment the prisoner delivers the notice to prison authorities for forwarding to the district court.8 In [905]*905declining to follow Houston, we noted that because an incarcerated petitioner is entitled to counsel, Bronson v. Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050, 101 S.Ct. 1771, 68 L.Ed.2d 247 (1981), he has access to someone who is capable of filing his appeal in accordance with our appellate rules of procedure, and that, if he chose not to do so, there were certain adverse effects including having his appointed counsel file his appeal for him. The court in Turner specifically held:

The fact that [the parolee] here chose not to avail himself of such assistance is his own doing. And, we are not inclined to encourage incarcerated litigants to proceed pro se by holding that more lenient rules for filing deadlines should be applied to them. Finally, even if this Court wished to follow Houston, it has no authority to adopt a rule which is in direct contravention with Pa.R.A.P. 1514, a rale promulgated by our own Pennsylvania Supreme Court. Any such revision of that rale would have to come from the court which promulgated it.

Turner, 137 Pa.Commonwealth Ct. at 611, 587 A.2d at 49. Parolee asks us to overrule Turner and not apply the provisions of Pa. R.A.P. 1514 to incarcerated prisoners.

Pa.R.A.P. 1514(a) of the Pennsylvania Rules of Appellate Procedure specifically provides that an individual transmitting a petition for review by mail can secure as a filing date the date that the petition is deposited in the mail, “as shown on a U.S. Postal Service Form 3817 certificate of mailing.” Even though the Rule is that the date of mailing must be confirmed by a Postal Form 3817, we have accepted a properly postmarked U.S. Postal Form 3800 (receipt of certified mail) because other than form name it is its functional equivalent. Sheets.

To have the mailing date serve as the date of filing, Pa.R.A.P. 1514(a) requires an Appellant to meet the following conditions:

1.The petition for review delivered to the prothonotary’s office must be accompanied by U.S. Postal Service Form 3817 or 3800, or the form may be separately mailed to the prothonotary.
2. The postal form must contain the docket number of the matter in the governmental unit.
3. The postal form must be date stamped by the post office.

If these conditions are not met, the petition for review is considered filed on the date it is actually received by the Prothonotary. See Darlington, McKeon, Schuckers, Brown, Pennsylvania Appellate Practice, 2d ed., § 1514.2.

Parolee in effect contends that the Department of Corrections Form DC-138A “Cash Slip,” signed by a Department of Corrections’ official, is the functional equivalent of Postal Proof of service forms and that because the “Cash Slip” shows that the Parolee mailed his petition for review within the thirty day period to the Philadelphia Court of Quarter Session Prothonotary. As its functional equivalent he contends that this is sufficient proof to indicate his date of filing in accordance with Pa.R.A.P. 1514(a).

Initially we should point out that even if the information contained on the cash slip was on a Postal Form 3817 instead, it would be still be insufficient to preserve the filing date. The cash slip does not establish that anything was mailed, only that money was charged to mail something.

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Related

Pana v. Pennsylvania Board of Probation & Parole
703 A.2d 737 (Commonwealth Court of Pennsylvania, 1997)

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661 A.2d 902, 1995 Pa. Commw. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-pennsylvania-board-of-probation-parole-pacommwct-1995.