         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Gantz,                           :
                   Petitioner         :
                                      :
              v.                      : No. 2614 C.D. 2015
                                      : Submitted: June 3, 2016
Pennsylvania Board of Probation       :
and Parole,                           :
                 Respondent           :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                            FILED: July 7, 2016


              John Gantz (Parolee) petitions for review of the decision of the
Pennsylvania Board of Probation and Parole (Board) recommitting him as a
convicted parole violator to serve 12 months backtime.


              On May 8, 2012, Parolee was sentenced to 9 months to 5 years for
violation of his probation and theft of movable property, with a minimum release
date of December 13, 2012, and a maximum release date of March 13, 2017.
Parolee was released on parole on April 4, 2013.
              While on parole, on July 3, 2014, Parolee was arrested on new
criminal charges and that same day, the Board lodged its detainer against him.
Failing to make bail, he remained in jail until March 5, 2015, when he pleaded
guilty to the new criminal charges and was sentenced to 11.5 months to 23 months
in the county prison, with 300 days credit for time served, followed by 12 months
of probation. Parolee was paroled from his county prison sentence on June 18,
2015, and transferred to a State Correctional Institution (SCI) on June 24, 2015.


              On August 7, 2015, the Board conducted a Panel Parole Revocation
Hearing on the new criminal convictions. Parolee objected as untimely to the
revocation hearing because it was not held within 120 days of his conviction on
March 5, 2015. The prosecuting agent argued that the hearing was timely because
Parolee was unavailable for a revocation hearing until he was released from county
prison as he never waived his right to a panel hearing.1 The Board revoked
Parolee’s parole, denied him credit for time spent at liberty on parole, recommitted
him as a convicted parole violator to serve 12 months backtime when available,
and recalculated his maximum release date to February 19, 2019.




       1
         Our review of the Certified Record shows that Parolee did not sign the Waiver of Panel
Hearing, but instead signed the Request for a Panel Hearing dated June 24, 2015. Parolee’s
brief, however, incorrectly asserts that “[h]e waived his right to a panel hearing on June 24,
2015.” (Petitioner’s Brief at 3.) If he had waived his right to a hearing, he would then be
considered within the jurisdiction of the Department of Corrections and the time for holding a
hearing would be calculated from that date. See 37 Pa. Code §71.4(1)(ii).




                                              2
            Parolee filed a pro se Petition for Administrative Review challenging
the credit awarded, the validity of his recommitment, the timeliness of the hearing
and alleging that the Board’s decision was based on insufficient evidence.


            The Board denied Parolee’s Petition for Administrative Review
insofar as his timeliness and recommitment challenges, reasoning that:

            First, the Board recommitted you as a convicted parole
            violator for the new [county convictions]. The record
            does reflect that authorities detained you for the new
            criminal charges on July 3, 2014 and kept you in the
            county prison at that time. On March 5, 20[1]5 you pled
            guilty to the new convictions and the court accepted your
            guilty plea on that day. The Board obtained official
            verification of the convictions on May 6, 2015. You
            were returned to [an SCI] on June 24, 2015 and you
            never waived your right to a panel hearing.

            The above facts reflect that you were confined outside
            the jurisdiction of the Pennsylvania Department of
            Corrections at the time of his [sic] conviction because
            you were in a county prison and you did not waive your
            right to a panel hearing. Whether the Board actively
            sought to see if you wanted to waive your right to a panel
            hearing while in the county jail is immaterial because
            you could have sent any written notice to the parole
            office if this was your intention. As such, the Board was
            required to hold the revocation hearing within 120 days
            of the date they received official verification of your
            return to an SCI. 37 Pa. Code § 71.4(1)(i). In this case,
            you were returned to an SCI on June 24, 2015 and the
            Board conducted the panel revocation hearing 44 days
            later on August 7, 2015, which is well within the 120
            days granted by the regulation. Thus, the Board
            conducted a timely revocation hearing in this case.

            Second, the Board recommitted you as a convicted
            parole violator based on evidence presented at the


                                         3
              revocation hearing. The evidence presented was court
              documents showing that you were convicted of the
              offenses indicated in violation of your parole. Thus, the
              Board acted within its discretion by recommitting you as
              a convicted parole violator based on the evidence
              presented.


(Certified Record at 148.) With regard to whether Parolee was due credit for the
time spent in a community center and whether the February 19, 2019 maximum
date was correct, the Board declined to render a final decision on that issue until
after an evidentiary hearing was held on the matter.


              On appeal,2 Parolee argues that his revocation hearing was untimely
held, and that March 5, 2015, the date of his guilty plea entry and conviction, and
not May 6, 2015, should have been used to mark the start of the applicable 120-
day time period under 37 Pa. Code §71.4(1).                 However, we do not have
jurisdiction over this appeal because the Board has yet to render a final decision on
whether Parolee is entitled to credit for time spent in a community center, thereby
making this appeal interlocutory.


              In Arguelles v. Pennsylvania Board of Probation and Parole, 892
A.2d 912, 913 (Pa. Cmwlth. 2006), we found that we did not have jurisdiction in a
similar case, explaining that:

       2
          Our scope of review is limited to determining whether the Board’s decision is
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§704; Moroz v. Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth.
1995).




                                             4
            Under Section 763(a)(1) of the Judicial Code, this court
            has jurisdiction over appeals from final orders of
            government agencies. 42 Pa. C.S. §763(a)(1); City of
            Phila. v. Workers’ Comp. Appeal Bd. (Mellon), 885 A.2d
            640 (Pa. Cmwlth. 2005) (Mellon). A final order disposes
            of all claims or parties or is defined as such by statute.
            Otherwise, the order is interlocutory and, with limited
            exceptions, the court does not have jurisdiction over an
            interlocutory appeal. As this court stated in Mellon:

                  Although appeals are generally only permitted
              from final orders, in limited circumstances, a party
              can take an interlocutory appeal. Kramer v. Zoning
              Hearing Bd. of Upper Saucon Twp., 163 Pa.
              Cmwlth. 559, 641 A.2d 685 (Pa. Cmwlth. 1994).
              An interlocutory appeal may be taken when a
              government unit, such as the [Workers’
              Compensation Appeal] Board, remands to the
              administrative agency “for execution of the
              adjudication of the reviewing tribunal in a manner
              that does not require the exercise of administrative
              discretion.” Pa. R.A.P. 311(f)(1).

              If a local agency must engage in fact-finding to
              determine an award calculation, administrative
              discretion is involved, the order is not final and,
              thus, the appellate court must quash the appeal.
              P.R. Hoffman Materials v. Workmen’s Comp.
              Appeal Bd. (Zeigler), 694 A.2d 358 (Pa. Cmwlth.
              1997). Mellon, 885 A.2d at 642.


            Just as in Arguelles, here, the Board ordered a further evidentiary
hearing on whether Parolee was entitled to credit for the time he spent in the
community center, for which additional evidence and/or testimony will be taken
and new findings will be made. Because the hearing on remand will involve the




                                        5
exercise of administrative discretion, this appeal does not meet the requirements of
Pa. R.A.P. 311(f)(1)3 and we do not have jurisdiction to hear it.


              Accordingly, Parolee’s appeal is quashed.



                                            ___________________________________
                                            DAN PELLEGRINI, Senior Judge




       3
          Pursuant to Pa. R.A.P. 311(f)(1) an appeal of right is allowed from “an order of a
common pleas court or government unit remanding a matter to an administrative agency or
hearing officer for execution of the adjudication of the reviewing tribunal in a manner that does
not require the exercise of administrative discretion.”



                                               6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Gantz,                         :
                   Petitioner       :
                                    :
              v.                    : No. 2614 C.D. 2015
                                    :
Pennsylvania Board of Probation     :
and Parole,                         :
                 Respondent         :




                                  ORDER


              AND NOW, this 7th day of July, 2016, the appeal of John Gantz
from the order of the Pennsylvania Board of Probation and Parole bearing a
mailing date of November 30, 2015, is quashed.



                                    __________________________________
                                    DAN PELLEGRINI, Senior Judge
