Taylor v. Pennsylvania Board of Probation & Parole

KELLEY, Judge.

Jerome Taylor (Taylor) appeals from a November 6, 1998 order of the Pennsylvania Board of Probation and Parole (Board) denying Taylor administrative relief from the Board’s January 27, 1997 revocation order. Also before this Court for disposition is the Board’s motion to dismiss as moot/application for stay.

On September 13, 1983, Taylor was sentenced by the Philadelphia Court of Common Pleas to serve a period of two to ten years for the offenses of rape and involuntary deviate sexual intercourse. Taylor was released on parole on June 9, 1986, recommitted as a technical parole violator on July 13, 1987, reparoled on June 15, 1989, recommitted again on June 3, 1992, and released for the last time on December 31,1992.

On December 21, 1993, the Board again declared Taylor delinquent and directed its staff to administratively close Taylor’s case if Taylor was not arrested or located by January 29, 1996. The Board, however, did not notify Taylor of this decision. On September 12, 1996, Board agents arrested Taylor for parole violations committed before December 21, 1993. Following a violation hearing, the Board, by order dated January 27, 1997, recommitted Taylor as a technical parole violator to serve ten additional months of his original ten-year sentence.

On February 28, 1997, Taylor filed, pro se, an administrative appeal contending that the Board could not recommit Taylor since the Board had directed its staff to close his case by January 29, 1996. The Board dismissed Taylor’s appeal as untimely because Taylor failed to file his appeal within thirty days of the mailing date of the Board’s order as prescribed by *67337 Pa.Code § 73.1(a)(1).1 The Board also noted that even if the appeal had been timely filed, Taylor’s request would still have been denied because the Board’s decision to close Taylor’s case had not been served on Taylor, and, thus, was never entered as an order pursuant to Section 5572 of the Judicial Code, 42 Pa.C.S. § 5572.2 An appeal to this Court followed.

By opinion and order entered July 13, 1998, this Court affirmed the Board’s denial of Taylor’s request for administrative relief because Taylor’s request for administrative relief from the Board’s January 27, 1997 revocation order was untimely. We pointed out that Taylor filed his administrative appeal on February 28, 1997, which was 32 days after the entry of the Board’s January 27, 1997 revocation decision. Taylor made no allegations that fraud or a breakdown in the Board’s operation caused him to file his request for administrative relief two days late and there was no dispute that Taylor received notice of the January 27, 1997 decision and the time within which to file his appeal.

Taylor filed an application for reargument with this Court and by order entered September 4, 1998, this Court denied the application but withdrew its July 13, 1998 opinion and order and remanded this matter to the Board for a hearing to determine whether the administrative appeal was timely filed. On remand, the parties stipulated to the following facts in lieu of a hearing:

1.The envelope, a correct copy of which is attached hereto as Exhibit “A”, in which Mr. Taylor mailed his administrative appeal of the revocation decision mailed January 27, 1997, was postmarked February 26,1997.
2. Jerome Taylor gave the administrative appeal to the Department of Corrections staff for mailing to the Board’s Central Office on February 24, 1997.
3. The Board received the administrative appeal at its Central Office on February 28,1997.
4. Jerome Taylor is incarcerated at the State Correctional Institution at Rock-view and was so incarcerated at all times relevant to the inquiry herein and has no access to the respondent’s Central Office, the United States Postal Service, a fax machine, or any overnight mail delivery services.
5. The Board denied petitioner’s administrative relief on its merits by correspondence dated June 6,1997.
6. The Board has sustained no harm from the delay in their receipt of Jerome Taylor’s pro se Petition for Administrative Relief.

Based on these stipulated facts, the Board by decision dated November 6, 1998, dismissed Taylor’s administrative appeal from the Board’s January 27, 1997 decision as untimely. The Board did not rule on the merits. The Board determined that it received Taylor’s administrative appeal on February 28, 1997, 32 days after the mailing date of the revocation decision. The Board stated that whether the administrative appeal was given to prison staff for mailing or actually placed in the mail within the 30 day appeal period is, as a matter of law, completely irrelevant to a legal determination of whether the administrative appeal was timely. The Board pointed out that this Court has rejected the argument that the mailbox rule applies to an administrative appeal of a Board decision and has held that under 1 Pa.Code § 31.11,3 an administrative appeal is *674untimely unless the Board actually receives that administrative appeal at its Central Office within 30 days of the mailing date of the Board decision from which the administrative appeal is taken. See Maldonado v. Pennsylvania Board of Probation and Parole, 89 Pa.Cmwlth. 576, 492 A.2d 1202 (1985).4

On November 10, 1998, Taylor filed an appeal with the Court from the Board’s November 6, 1998 administrative decision. On December 18, 1998, the Board filed a motion to limit Taylor’s appeal to the issue of timeliness. On January 5, 1999, this Court denied the Board’s motion without prejudice to the Board to argue the issue of timeliness in its brief. In his appeal on the merits, Taylor raises the following issues:

1. Whether the “prisoner mailbox rule” applies to pro se administrative appeals to the Pennsylvania Board of Probation and Parole; and
2. Whether the Board lacks jurisdiction to revoke parole and extend a parole violation maximum date after the Board closes a parolee’s case.

On January 28, 1999, the Board filed a motion to dismiss/application for stay Taylor’s appeal.5 Therein, the Board alleged that Taylor’s maximum term expired on December 27, 1998 and he was released from confinement. The Board alleged further that because Taylor’s maximum term has expired and he is no longer under the custody or supervision of the Commonwealth, this matter is moot. Taylor filed an answer to the motion. Therein, Taylor avers that this Court held in Lawson v. Pennsylvania Board of Probation and Parole, 105 Pa.Cmwlth. 427, 524 A.2d 1053 (1987), that the expiration of a petitioner’s parole violation maximum date would not moot an appeal if the issues therein were of great public importance and capable of repetition. Taylor avers further that the Board’s refusal to recognize that the “prisoner mailbox rule” applies to pro se administrative appeals is of great public importance and capable of repetition.

We will address first the Board’s motion to dismiss. Clearly, the expiration of a parolee’s maximum term renders an appeal of a Board revocation order moot. See Johnson v. Pennsylvania Board of Probation and Parole, 505 Pa. 569, 482 A.2d 235 (1984); Lawson. It is well settled that an appeal will be dismissed when the occurrence of an event renders it impossible for the court to grant the requested relief. Goldsmith v. Lower Moreland School District, 75 Pa.Cmwlth. 288, 461 A.2d 1341 (1983). Dismissal will be refused only if the issues involved are capable of repetition yet likely to evade review and of important public interest, or where a party will suffer some detriment without the court’s decision. Sierra Club v. Pennsylvania Public Utility Commission, 702 A.2d 1131 (Pa.Cmwlth.1997), affirmed, 557 Pa. 11, 731 A.2d 133 (1999); Goldsmith.

Herein, Taylor’s maximum term expired on December 27, 1998 and he was released from confinement. Accordingly, his appeal of the Board’s November 6, 1998 order is moot. While we believe that *675the issues raised in Taylor’s appeal raise questions of great public importance and are capable of repetition, we agree with the Board that said issues are not likely to evade review. There will be instances where a parolee will be able to challenge the denial of an administrative appeal as untimely on the basis of the “prisoner mailbox rule” before the parolee’s maximum term expires. We recognize the long path this case has taken to come to this point. However, a decision on the merits of Taylor’s appeal or on whether the prisoner mailbox rule applies to pro se administrative appeals to the Board simply would not render Taylor any relief as he has been released from the custody and control of the Commonwealth. Accordingly, we grant the Board’s motion to dismiss Taylor’s appeal as moot and will not address the merits of Taylor’s appeal.

ORDER

AND NOW, this 17th day of February, 2000, the Motion to Dismiss as Moot/Application for Stay filed by the Pennsylvania Board of Probation and Parole is granted. Jerome Taylor’s appeal in the above-captioned matter is dismissed.

. Section 73.1(a)(1) provides, in pertinent part, that appeal shall be received at the Board’s Central Office within 30 days of the mailing date of the Board's order.

. Section 5572 provides, in pertinent part, that the date of service of an order of a government unit, which shall be the date of mailing if service is by mail, shall be deemed to be the date of entry of the order.

.Section 31.11 provides as follows:

Pleadings, submittals or other documents required or permitted to be filed under this part, the regulations of the agency or any other provision of law shall be received for *674filing at the office of the agency within the time limits, if any, for the filing. The date of receipt at the office of the agency and not the date of deposit in the mails is determinative.

. Although this Court has not specifically held that the "prisoner mailbox rule” applies to administrative appeals to the Board, the Pennsylvania Supreme Court has held that the "prisoner mailbox rule” applies to administrative appeals to this Court. Smith v. Pennsylvania Board of Probation and Parole, 546 Pa. 115, 683 A.2d 278 (1996) (holding that a pro se prisoner's appeal shall be considered filed for purposes of Pa.R.A.P. 1514 when such appeal is deposited with prison officials or placed in the prison mailbox). Moreover, since its holding in Smith, the Pennsylvania Supreme Court has "extend[ed] the prisoner mailbox rule to all appeals by pro se prisoners.” Commonwealth v. Jones, 549 Pa. 58, 64, 700 A.2d 423, 426 (1997).

. By order of February 4, 1999, this Court directed the Chief Clerk to list the Board's motion for disposition with the merits.