                             [J-123-2016] [MO: Baer, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


KEVIN PITTMAN,                                 :   No. 56 MAP 2016
                                               :
                     Appellant                 :   Appeal from the Order of the
                                               :   Commonwealth Court dated January 8,
                                               :   2016 at No. 978 CD 2014 Affirming the
              v.                               :   Pennsylvania Board of Probation and
                                               :   Parole Order dated May 29, 2014 at No.
                                               :   1435-S.
PENNSYLVANIA BOARD OF                          :
PROBATION AND PAROLE,                          :   SUBMITTED: November 22, 2016
                                               :
                     Appellee                  :


                      CONCURRING AND DISSENTING OPINION


JUSTICE MUNDY                                                   DECIDED: April 26, 2017
       I join the Majority’s conclusion that in this case the Pennsylvania Board of

Probation and Parole abused its discretion by failing to consider whether to grant

Appellant, a convicted parole violator (CPV), credit for time spent at liberty on parole

pursuant to 61 Pa.C.S. § 6138(a)(2.1). However, because I do not agree that the Board

must now, in all cases, provide a contemporaneous written statement explaining its

rationale for denying a CPV credit for time spent at liberty on parole, I dissent.

       In the instant case, the Board erroneously failed to exercise its discretion when it

denied Appellant credit for time served on parole based on its belief he was

automatically precluded as a result of his status as a CPV under Subsection 6138(a).

The Board’s error was brought to light in its written response to Appellant’s petition for

administrative review filed pursuant to 37 Pa. Code § 73.1(b). Section 73.1 requires the
Board, following a timely administrative appeal by a prisoner, to provide a response for

the Board’s denial of credit for time served. Section 73.1 provides:

             (b) Petitions for administrative review.

             (1) A parolee, by counsel unless unrepresented, may petition
             for administrative review under this subsection of
             determinations relating to revocation decisions which are not
             otherwise appealable under subsection (a). Petitions for
             administrative review shall be received at the Board’s
             Central Office within 30 days of the mailing date of the
             Board’s determination. When a timely petition has been
             filed, the determination will not be deemed final for purposes
             of appeal to a court until the Board has mailed its response
             to the petition for administrative review. This subsection
             supersedes 1 Pa.Code § 35.226.
37 Pa. Code. § 73.1(b)(1). As the Majority also states, a prisoner may then exercise a

statutory right to appeal the Board’s administrative review to the Commonwealth Court.

See 42 Pa.C.S. § 763; Maj. Op. at 6, n. 7.

      Herein, the Commonwealth Court, in an en banc opinion, affirmed the Board’s

decision, determining that the Board had exercised its discretion by checking “No” on

Appellant’s parole hearing review form. Pittman v. Pennsylvania Board of Probation

and Parole, 131 A.3d 604, 616 (Pa. Cmwlth. 2016). The Commonwealth Court majority

essentially disregarded the Board’s response to Appellant’s petition for administrative

review, where the Board admitted to exercising no discretion by following a misguided

belief that Appellant was automatically precluded from receiving any credit for the time

he spent on parole. Therefore, I agree with the Majority that the Commonwealth Court

erred in concluding the Board did not abuse its discretion by determining Appellant

automatically forfeited credit for time served on parole. Accordingly, for the reasons set

forth in the Majority Opinion, I agree that the Commonwealth Court’s order must be

vacated, the Board’s decision vacated, and the matter should be remanded for the




                             [J-123-2016] [MO: Baer, J.] - 2
Board to exercise its discretion and determine whether Appellant should be granted

credit for the time he spent on parole.

       However, I disagree with the Majority’s conclusion that Subsection 6138(a)(2.1),

of the Parole Code, 61 Pa.C.S. § 6138(a)(2.1), requires the Board to provide a

contemporaneous statement explaining its rationale for denying a CPV credit for time

spent at liberty on parole. Hence, I dissent.        On appeal, the Board maintains its

position that under the plain language of Subsection 6138(a)(2.1) it is not required to

provide a written statement of its reasons for denying credit.                Further, the

Commonwealth Court in its opinion reached this same conclusion by looking to the

statutory language of Subsection 6138(a)(2.1).       Finally, the Majority concedes “the

Board’s description of the statute is accurate in so far as there is no explicit requirement

that the Board must provide a contemporaneous statement explaining its decision in

Subsection 6138(a)(2.1).” Maj. Op. at 13. Therefore, there is a consensus that the

statutory language of Subsection 6138(a)(2.1) does not support requiring the Board to

issue a written statement.

       Nevertheless, the Majority now requires, based on the necessity of creating a

reviewable record for the Commonwealth Court following a denial of a prisoner’s

administrative appeal that a written statement be issued contemporaneously with the

Board’s initial decision. Because a mechanism for explaining and reviewing the Board’s

exercise of discretion already exists via the Board’s response to an appellant’s petition

for administrative review, I cannot agree with the addition of a requirement unsupported

by the statutory language of Subsection 6138(a)(2.1).

       Upon receiving notice that the Board has denied credit for time spent at liberty on

parole, a prisoner may file an administrative appeal to the Board. Subsection 73.1(b),

as discussed above, requires the Board to issue a response to a prisoner’s timely filed




                              [J-123-2016] [MO: Baer, J.] - 3
petition for administrative review. A prisoner may then exercise the right to file an

appeal with the Commonwealth Court.1              Following this established procedure for

appellate review, the Board’s error presented itself in the Board’s response to

Appellant’s   petition   for   administrative    review,   and    was   properly before   the

Commonwealth Court for correction.2             In my opinion, this review process is the

appropriate vehicle for reviewing the Board’s determinations. Therefore, I do not agree

that the error in this case requires this Court to insert new language into Section

6138(a)(2.1) to require the Board to state in writing its specific reasons for denying

credit at the time of the initial decision.

       As a final matter, the Board may wish to revise its parole hearing report form to

include two separate areas to check, one to determine if a parolee is automatically

precluded from receiving credit for time spent at liberty on parole, and a second to state

“yes” or “no” if the Board has discretion on whether it has granted credit for time served.

Further, the Board certainly has the opportunity to indicate at the time it determines

whether to award credit, the basis for exercising its discretion to deny credit.

1
 In the instant matter Appellant was advised of this procedure in the Board’s “Notice of
Decision” letter which stated the following.
               If you wish to appeal this decision, you must file a request for
               administrative relief with the Board within thirty [days] of this
               order. This request shall set forth specifically the factual and
               legal basis for the allegations. See 37 PA Code 73. You
               have the right to an attorney in this appeal and in any
               subsequent appeal to the Commonwealth Court.

Notice of Decision Letter, 11/22/13.
2
  The circumstances of this case illustrate the question of what constitutes an exercise
of discretion was ambiguous. However, this Court’s opinion clarifies that a complete
failure to exercise statutory discretion is itself an abuse of discretion, and the Board, and
the Commonwealth Court, are now informed that the Board must exercise its discretion
pursuant to Subsection 6138(a)(2.1) in every case.



                                [J-123-2016] [MO: Baer, J.] - 4
Nevertheless, imposing a requirement that the Board must now articulate a written

reason in all cases is an extreme remedy, and outside the plain language of the statute.

      Accordingly, I concur in part and dissent in part.

      Justice Wecht joins this concurring and dissenting opinion.




                             [J-123-2016] [MO: Baer, J.] - 5
