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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Eugene A. Kontz, Sr., : Petitioner : : v. : No. 1097 C.D. 2004 : Submitted: January 7, 2005 Pennsylvania Board of : Probation and Parole, : Respondent : BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: February 16, 2005 Eugene A. Kontz (Petitioner), pro se, petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board), which denied his request for administrative relief as untimely. On March 9, 1995, Petitioner was sentenced to 7 to 14 years incarceration after pleading guilty to Involuntary Deviate Sexual Intercourse and Aggravated Indecent Assault. Petitioner's minimum sentence expired on August 25, 2001, and he was released on parole on May 14, 2003. Under the conditions governing his parole, Petitioner was not allowed to contact or associate with minors for any reason. On November 14, 2003, the Board issued a warrant to commit and detain Petitioner for violating the condition prohibiting contact or association with minors. A preliminary hearing was held on November 25, 2003, after which the hearing examiner determined probable cause was established. Thereafter a violation hearing was conducted on January 26, 2004. By decision mailed on March 12, 2004, the Board revoked Petitioner's parole and recommitted him to serve 12 months back time as a technical parole violator. By letter dated April 10, 2004, Petitioner, pro se, requested administrative relief from the Board's decision. The Board received Petitioner's correspondence on April 22, 2004; however, Petitioner's letter showed a United States Postal Service postmark date of April 15, 2004. By decision of May 4, 2004, the Board dismissed Petitioner's administrative appeal as untimely. Petitioner's timely appeal to this court then followed. 1 On July 19, 2004, the Board filed a motion to limit the issue in the case to the timeliness of Petitioner's administrative appeal to the Board. Petitioner responded and averred that he had placed his request for administrative relief in the housing unit mail box on April 10, 2004, within the thirty-day "prisoner mailbox rule" set forth in Coldren v. Pennsylvania Board of Probation and Parole, 795 A.2d 457 (Pa. Cmwlth. 2002). On August 3, 2004, this Court denied the Board's motion without prejudice to address the issue of timeliness in its Brief. In his appeal, Petitioner raises nine issues for our consideration. The nine issues can be summarized as a claim that the Board's finding that Petitioner consorted with minors is not supported by substantial evidence because it is based upon hearsay evidence, which also deprived Petitioner of his due process right to cross-examine witnesses against him. The Board responds that we need not 1 Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Shaw v. Pennsylvania Board of Probation and Parole, 812 A.2d 769, 771 n.4 (Pa.Cmwlth. 2002). 2 consider these issues because Petitioner's appeal to the Board was untimely. The Board also asserts that Petitioner waived the issue of timeliness because he did not raise it in his appeal to the Board or in a request for reconsideration. Petitioner thereafter filed a response, averring that his request for administrative relief was timely because it was placed into the unit mailbox on April 10, 2004. Attached to Petitioner's response was a cash slip dated April 10, 2004, that identified Petitioner and contained the following notation: Please deduct for extra postage ONLY if needed. Thank you! Commonwealth of Pennsylvania Board of Probation and Parole 1101 S. Front Street Harrisburg, Pa 17104-2519 Exhibit A, Petitioner's Response in Opposition to Respondent's Brief. The cash slip also contained a stamp wherein Correctional Officer Kirin verified Petitioner's inmate ID, and signed and dated the cash slip April 10, 2004. We address, first, the Board's contention that Petitioner has waived the issue of the timeliness of his appeal to the Board. This Court has held that issues not raised by a petitioner before the Board in an administrative appeal are waived for purposes of appellate review by this court. See, e.g., McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993). This principle has no application where, as here, there was no opportunity to raise the issue until the Board denied his appeal as untimely.2 Further, the Board offers 2 Pa R.A. P. 1551(a) (3) provides in relevant part: (a) Appellate jurisdiction petitions for review. Review of quasijudicial orders shall be conducted by the court on the record made before the government unit. No question shall be heard or considered by the court which was not raised before the government unit except: (Footnote continued on the next page . . . ) 3 no authority to support its contention that Petitioner had to request reconsideration as a prerequisite to our review of the Board's decision.3 Thus, the issue of whether Petitioner filed a timely request for administrative relief with the Board is properly before us. The Pennsylvania Supreme Court has held that where a prisoner, acting pro se, is incarcerated at the time he or she files an appeal from an agency decision, that appeal shall be considered "filed" on the date that the prisoner deposits the appeal with prison authorities or places the appeal in the prison mailbox. Smith v. Pennsylvania Board of Probation and Parole, 546 Pa. 115, 122, 683 A.2d 278, 281 (1996). A "cash slip" is evidence sufficient to establish that an appeal was delivered to prison officials or deposited in the prison mailbox. Id. at 124, 683 A.2d at 282. See also Commonwealth v. Jones, 549 Pa. 58, 64, 700 A.2d 423, 426 (1997) (extending prisoner mailbox rule to all appeals by pro se prisoners whether from agency decisions or court orders); Pettibone v. Pennsylvania Board (continued . . . ) * * * (3) Questions which the court is satisfied that the petitioner could not by the exercise of due diligence have raised before the government unit. If, upon hearing before the court, the court is satisfied that any such additional question within the scope of this paragraph should be so raised, it shall remand the record to the government unit for further consideration of the additional question. 3 The General Rules of Administrative Practice and Procedure provide: An application for rehearing or reconsideration may be filed by a party to a proceeding within 15 days ... after the issuance of an adjudication or other final order by the agency. 1 Pa. Code §35.241(a) (emphasis added). It may be that the record of when Petitioner filed his appeal should have been made before the Board. However, the Board does not make this argument. 4 of Probation and Parole, 782 A.2d 605, 608 (Pa. Cmwlth. 2001) (extending the prisoner mailbox rule to pro se administrative appeals filed with the Board). A petitioner bears the burden of proving that his request for administrative relief was timely filed. In the instant matter, Petitioner's request for administrative relief bears the date of April 10, 2004. Certified Record at Exhibit 11. A "cash slip," signed and dated April 10, 2004, by Correctional Officer Kirin, supports Petitioner's claim that he placed the request in the housing unit mailbox to be processed. At the bottom of the cash slip, however, in a space titled "Business Office's Space," is a date stamp of April 12, 2004. This may be when the bookkeeper charged Petitioner's account or it may be the date the appeal was placed in the mailbox.4 The problem here is that the certified record does not contain the cash slip. The Board's order must be vacated and this matter remanded for a determination of when Petitioner posted his request for administrative relief from the revocation of his parole. _____________________________ MARY HANNAH LEAVITT, Judge 4 The Court takes judicial notice that April 10, 2004, was the Saturday before Easter, and April 12, 2004, the following Monday. Accordingly, an appeal filed on either April 10 or April 12, 2004, would be timely. 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Eugene A. Kontz, Sr., : Petitioner : : v. : No. 1097 C.D. 2004 : Pennsylvania Board of : Probation and Parole, : Respondent : ORDER And now this 16th day of February, 2005, the order of the Pennsylvania Board of Probation and Parole, dated May 4, 2004 in the above- captioned matter is hereby vacated. We remand the matter for a factual determination on the timeliness of Petitioner's request for administrative relief and proceedings consistent with the attached opinion. Jurisdiction relinquished. _____________________________ MARY HANNAH LEAVITT, Judge
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