                                                                  NOT PRECEDENTIAL


                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-3011
                                      _____________

                                  FRANK E. ANDREW,
                                            Appellant

                                              v.

            TODD BUSKIRK; FRANK LONGENBACH; ROBIN STANLEY
                             ______________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. Civil No. 5-16-cv-03851)
                      District Judge: Honorable Lawrence F. Stengel
                                     ______________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     July 10, 2018
                                   ______________

           Before: GREENAWAY, JR., RESTREPO and BIBAS, Circuit Judges.

                           (Opinion Filed: November 19, 2018)
                                    ______________

                                        OPINION*
                                     ______________

RESTREPO, Circuit Judge.




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
         Appellant Frank Andrew claims that several Pennsylvania prison officials violated

his constitutional rights by detaining him past the expiration of his maximum term of

imprisonment. The District Court found that no such over-detention occurred and that the

officials were entitled to summary judgment on the claims. We will affirm.

                                               I

         Because we write principally for the parties, we set out the facts only as needed for

the discussion below. From 2010 to 2014, Andrew served several jail sentences in three

Pennsylvania counties for separate state offenses and parole violations. See Andrew v.

Buskirk, No. 16-3851, 2017 WL 3485872, at *1–2 (E.D. Pa. Aug. 14, 2017.

         In September 2010, Andrew was sentenced to a term of 11 ½ to 23 months in Bucks

County jail. In February 2011, Andrew was sentenced on separate charges to a term of 11

½ to 23 months in Northampton County jail with an order that this sentence run

concurrently with the Bucks County sentence. After completing the minimum of his

sentence in Northampton County, Andrew was paroled and sent to Bucks County to

complete the minimum of his sentence there. He was paroled one month later, in September

2011.1

         On June 5, 2012, Andrew was arrested and detained in Bucks County jail on new

charges. He pled guilty and was sentenced to time served and a two-year term of probation.


         1
          Andrew was also sentenced to an undisclosed term of imprisonment in
Montgomery County jail around the same time that he was sentenced in Bucks and
Northampton Counties. His Montgomery County sentence also ran concurrent to the other
two sentences, and would later become the grounds for his recommitment on a parole
violation. However, Andrew’s time served in Montgomery County has no bearing on the
claims before us, so we will not belabor the details.
                                               2
Although Andrew was not sentenced to any additional period of incarceration, he still had

pending parole violation hearings in Bucks and Northampton Counties, and therefore

remained detained in Bucks County jail even after being sentenced to probation.2 Andrew

was ultimately released in March 2013 after serving separate parole violation sentences in

each county.3

       Nine months later, Andrew again violated parole in Bucks and Northampton

Counties. At his Bucks County parole violation hearing, the judge ordered that sentencing

be deferred for ninety days.4 One week later, at his Northampton County parole violation

hearing, the judge revoked his parole and sentenced him to the remainder of the maximum

term of his Northampton sentence. On the sentencing sheet, the judge wrote “Violator.

Serve balance. Eligible for immediate work release. Remanded to NCP. Concurrent to all

other sentences –incl– Bucks Cty.” App. 32. During this period of incarceration, Andrew

unsuccessfully filed multiple grievances arguing that he was entitled to credit on his



       2
         Because Andrew was sentenced to a maximum term of less than two years in each
of Bucks and Northampton Counties, his parole violation sentencings fell under the
jurisdiction of the respective county courts rather than the Pennsylvania Board of Probation
and Parole. See 61 Pa. Cons. Stat. § 6132(a)(2)(ii); 42 Pa. Cons. Stat. § 9762(b)(3).
       3
         In Bucks County, Andrew was sentenced to the remainder of 23 months, the
maximum term of his sentence. He received credit for time served from June 5, 2012 to
January 23, 2013. In Montgomery County, Andrew was sentenced to serve the remainder
of his sentence, with credit for time served from June 5, 2012 to January 18, 2013. In
Northampton County, Andrew was given work release and re-parole after thirty days. He
received credit for time served from February 12, 2013 to March 14, 2013.
       4
        The record before us is silent as to any subsequent sentences in Bucks County, but
a subsequent sentence would not affect our analysis here as Andrew remained incarcerated
in Northampton County jail until his re-entry to society.
                                             3
Northampton sentence for the time he spent detained in Bucks County in 2012. After

exhausting the grievance process, he retained an attorney who was able to negotiate a new

order from the Northampton County sentencing judge awarding Andrew credit for time

served in Bucks County. Andrew was immediately released from Northampton County jail

upon its receipt of the new order.

       After his release, Andrew filed suit against three Northampton County Department

of Corrections officials, asserting that his Northampton sentence was carried out beyond

his 23-month maximum period of incarceration due to the officials’ failure to credit his

sentence with the time he spent in Bucks County in 2012. He alleged two claims: a violation

of his Eighth Amendment right to be free of cruel and unusual punishment and a violation

of his right not to be falsely imprisoned. The parties exchanged discovery and subsequently

filed cross-motions for summary judgment. The District Court granted summary judgment

in favor of the Northampton County officials. Andrew appealed.

                                            II

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction over the District Court’s grant of summary judgment to Defendants under 28

U.S.C. § 1291.5

                                            III




       5
         To the extent that Andrew may appeal the District Court’s denial of his Motion for
Partial Summary Judgment, we do not have jurisdiction. The denial is neither a final
decision nor an exception under the collateral order doctrine. See In re Montgomery
County, 215 F.3d 367, 373-74 (3d. Cir. 2000), cert. denied, 531 U.S. 1126 (2001).
                                            4
       We review de novo a court’s decision to grant summary judgment. Burns v. Pa.

Dep’t of Corr., 642 F.3d 163, 170 (3d Cir. 2011). We view the facts and draw all reasonable

inferences “in the light most favorable to the nonmoving party,” id. (quoting Armbruster

v. Unisys Corp, 32 F.3d 769, 777 (3d Cir. 1994)), and affirm when there is no genuine issue

of material fact, Fed. R. Civ. P. 56(a). Here, the material facts are uncontested, and there

remains only an issue of law: whether the Northampton County sentencing judge was

required to credit Andrew’s June 2012 detention in Bucks County toward his Northampton

County sentence, or whether it was a matter left to the judge’s discretion. Andrew argues

that because his original Northampton sentence was ordered to run concurrently with his

original Bucks sentence, his subsequent detention in Bucks County for a new crime and a

parole violation must be credited towards his original Northampton sentence as well. We

disagree.

       Andrew’s sentences are governed by Pennsylvania law, which requires the award

of credit for time served under four enumerated scenarios. See 42 Pa. Cons. Stat. § 9760.

Andrew’s theory of perpetually concurrent sentences does not fall into any of these

scenarios. Pennsylvania common law is also silent as to his theory. We have not identified,

and Andrew has not shared, any case law that requires separate sentencing courts to

coordinate their awarding of credit for sentences that were previously being served

concurrently. Rather, we have found the opposite.

       A sentence on violation of parole “is limited only by the maximum sentence” that

could have been imposed under the original sentence. Commonwealth v. Presley, 193 A.3d

436, 445 (Pa. Super. Ct. 2018) (citing Commonwealth v. Pasture, 630 Pa. 440, 452 (Pa.

                                             5
2014)); see also Pa. R. Crim. P. 708. Thus, Andrew’s original sentencing order controlled

subsequent sentencings only to the extent that it limited his maximum term to 23 months.

The Northampton County sentencing court in Andrew’s 2014 parole violation hearing was

free to decline to award credit for his 2012 detention in Bucks County. It was similarly free

to award that credit at a later date, which it did.

       In the alternative, Andrew argues that the 2014 instruction for his parole revocation

to run “[c]oncurrent to all other sentences –incl– Bucks Cty,” App. 32, should be read as

granting credit for his earlier detention in Bucks County. This reading is not supported by

any case law or the plain language of the instruction. A sentencing instruction of

“concurrent” is not an instruction for credit. Sentencing judges intending to award credit

ordinarily will state so, as we saw in multiple sentencing orders in this case. See supra note

3.

       Because Andrew’s constitutional rights were not violated, we have no need to

consider his deliberate indifference claim or the Defendants’ qualified immunity defense.

                                               IV

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                               6
