Smith v. Pennsylvania Board of Probation & Parole

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, *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 *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. It is also insufficient because the cash slip neither contains the docket number of the governmental unit nor the date that it was mailed to the protho-notary’s office with the appeal. Otherwise, to hold that the cash slip preserves the time for appeal mailing would establish a less restrictive method than if the Appellant used the postal form provided for in the Rule to evidence a mailing date.

More important, as we stated in Turner, we have no authority to permit the taking of an appeal in direct contravention with Pa. R.A.P. 1514, a rale promulgated by our own Pennsylvania Supreme Court. Pa.R.A.P. 1514 requires the use of a Postal Form because the courts can be assured of the regularity of the process in certifying the date of mailing. Even though the cash slip is issued by the correctional facility, and even if we could be assured that these slips were issued by non-prisoners, the cash slip is still not a *906Postal Form as required by the Rule. Not being a postal form we cannot accept it as proof of mailing for purposes of Pa.R.A.P. 1514.

This result is no different than if we received a petition delivered by one of the private entities that have entered the express delivery business. Those entities have forms recording when items were received and form their computerized records as to where it went through its processing centers. Even if one of those companies delivers one day past the time for filing, it is unacceptable under Pa.R.A.P. 1514(a) to preserve the filing date, because the forms are not postal forms and those services are not the Postal Service. While those delivery services may have the regularity that is needed to confirm date of mailing, and there may be other acceptable forms of proving mailing, to accept these types of proofs of mailing the Rule would have to be amended by our Supreme Court.

Even if the “Cash Slip” is not sufficient to establish the time of his appeal, Parolee contends that the appeal should be considered timely filed under our Supreme Court’s decision in Miller v. Unemployment Compensation Board of Review, 505 Pa. 8,476 A.2d 864 (1984). Miller is a very narrow exception from the Rule that a petition for review will be considered filed when received by the prothonotary’s office unless there is a postal form evidencing mailing. It is limited to its exact facts. In Miller, a petition for review was sent by certified mail, return receipt requested. While the petition arrived past the time for filing in our prothonotary’s office, it was considered timely filed because working backwards from the time it was received by our prothonotary, it was received the next business day after the time for filing had elapsed. Because it would have been impossible for the petition for review not to be mailed within the time for taking an appeal, our Supreme Court held that it was timely filed.

Here we do not have that assurance working back from the time Parolee’s petition was stamped as received by the Clerk of Quarter Session Prothonotary of the Philadelphia Court of Common Pleas that it was timely filed. While the cash slip indicates that Parolee was charged with postage April 14, 1994, the last day for Parolee to file his appeal was Friday, April 15, 1994, yet it was not stamped as received until Wednesday, April 20, 1994. Unlike in Miller, it is not impossible that Parolee’s petition for review was mailed on Monday, April 18, 1995 or Tuesday April 19, 1994, outside the time for appeal, and still be received in Philadelphia on April 20. More important, the petition for review was not received the next business day by the prothonotary as required by the Miller exception.

Because Parolee’s Petition for Review was filed out of time, it must be quashed.

ORDER

AND NOW, this 15th day of June, 1995, Petitioner’s Petition for Review is quashed.

. The Board charged Parolee with: (1) failing to report to his parole agent as instructed; (2) moving from his approved residence; and (3) failing to report his arrest to the Board.

. Our scope of review is limited to determining whether the necessary factual findings are supported by substantial evidence in the record, whether the parolee’s constitutional rights were violated, or whether an error of law was committed. Lametta v. Board of Probation and Parole, 130 Pa.Commonwealth Ct. 312, 568 A.2d 283 (1989). On review, Parolee asserts that his constitutional rights were violated.

.Pa.R.A.P. 1512(a)(1) provides:

(a) Appeals Authorized by Law. Except as otherwise prescribed by Subsection (b) of this rule:
(1) A petition for review of a quasijudicial order, or an order appealable under 42 Pa.C.S. § 763(b) (awards of arbitrators) or under any other provision of law, shall be filed with the *904prothonotary of the appellate court within 30 days after the entry of the order.

. We note further that the Department of Corrections maintains rules governing an inmate’s mail privileges. Those rules include the handling of certified and registered mail:

1. Each institution will establish procedures in cooperation with the local U.S. Postmaster for the processing of certified or registered mail.
2. Determination of mail to be sent by these methods will be the responsibility of the inmate.
3. The inmate must have funds available in his personal account and an approved cash slip for such postage payment in order to send mail certified or registered.

Commonwealth of Pennsylvania, Department of Corrections, Inmate Mail Privileges, DC-ADM 803 Administrative Directive, § V(C)(1) — (3). According to these rules, an inmate can only utilize U.S. Postal Forms 3817 or 3800 if he has funds available in his personal account.

. The envelope containing the petition apparently was discarded and, therefore, was never made part of the record.

. Although Parolee erroneously sent the Petition to the Philadelphia Court of Common Pleas, the date of filing remains April 20, 1994.Pa.R.A.P. 751; Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988) (Nix, C.J., concurring).

. Pa.R.A.P. 1514(a) (emphasis added) provides in pertinent part:

(a) Filing With the Prothonotary. The petition for review, with proof of service required by Subdivision (c) of this rule, shall be filed with the prothonotary of the appellate court. If the petition for review is transmitted to the prothonotary by means of first class mail, the petition shall be deemed received by the pro-thonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as shown on a U.S. Postal Service Form 3817 certificate of mailing. The certificate of mailing shall show the docket number of the matter in the government unit and shall be either enclosed with the petition or separately mailed to the prothonotary....

. Since the Court's decision in Houston, the Federal Rules of Appellate Procedure have changed and now specifically provide for appeals by an inmate confined in a correctional institution:

If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a notarized statement or by a declaration (in compliance with 28 U.S.C. § 1746) setting forth the date of deposit and stating that first-class postage has been prepaid....

Fed.R.A.P. 4(c). This federal rule is substantially different from Pennsylvania’s parallel rule. See Pa.R.A.P. 1514(a).