[ J
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– Dougherty , J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

DEREK SMITH ,

App ellee

v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE ,

Appell ant : : : : : : : : : : : : No. 82 MAP 2016 Appeal from the Order of the Commonwealth Court dated 2/23/16 at No. 1007 CD 2015 vacating the order of the Pennsylvania Board of Probation and Parole dated 5/21/15 at no. 7679

- 0 and remanding

ARGUED: May 10, 2017

DISSENTING OP INION

CHIEF JUSTICE SAYLOR DECIDED: October 18, 2017

The subject of credit for time served is a difficult one, in that the matter would
seem to be most suitable to close regulation by the political branch ; however , in the
absence of specific legislative development, the treatment has fallen largely to the
courts. See Commonwealth v. Martin , 576 Pa. 588, 594, 840 A.2d 299, 302 (2003) (observing that “the General Assembly . . . has not addressed the permutations that arise when applying credit for time served in the parole revocation context.”). Unfortunately, incompletely theorized and developed opinions such as Gaito v. PBPP , 488 Pa. 397, 412 A.2d 568 (1980), reflect the announce ment and perpetuation of bright

line rules against a complex landscape in which the doctrine may be inconsistent with the interests of fairness and justice. See generally Martin , 576 Pa. at 599

- 600 , 840[J

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– Dougherty , J.]

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A.2d at 305 (elaborating upon some of the shortcomings of Gaito ). 1 Although there are
instances in the past in which the Court has adhered to per se rules even in circumstances that were not anticipated, it has also explained that:

It is axiomatic, of course, that once a judicially created rule is promulgated, the common law system requires that appellate courts consider this rule in its various factual guises and expand or contract the rule as justice requires. Commonwealth v. Henderson , 616 Pa. 277, 287, 47 A.3d 797, 803 (2012) (quoting Commonwealth v. Mason , 535 Pa. 560 , 568, 637 A.2d 251 , 255 ( 1993 ) )

. I would follow the latter approach here and adhere to the Commonwealth Court’s
essential treatment. Gaito certainly did not anticipate the resource

- related and fiscal
issues that attend the channeling of credit for time served away from the state system i n which an inmate is physically housed and effectively diverting it to a federal sentence. Although the doctrine of primary jurisdiction and Section 6138(a)(5.1) of the Prisons & Parole Code may not directly answer the question presented here , their polic y implications are consistent with the intermediate court’s holding, and I simply would not

1 In fact , given Martin ’s exposition of the various difficulties attendant in Gaito ’s rationale, I would be receptive to reconsidering that de cision in an appropriate case, particularly as most other states have adopted a rule opposite that of Gaito

. See State v. Aubuchon , 90 A.3d 914, 923 ( Vt. 2014) ; People v. Idziak , 773 N.W.2d 616, 624 ( Mich. 2009) ; Jenkins v. State , 49 P.3d 1028 (Wyo. 2002); Ali v. Dist. of Columbia , 612 A.2d 228 (D.C. 1992) ; In re Joyner , 769 P.2d 967 ( Cal. 1989) ; Watts v. Comm'r of Correction , 679 N.E.2d 1019, 1020 ( Mass. Ct. App. 1997) ; State v. Harvey , 642 A.2d 1052, 1053 ( N.J. Super. 1994)

. This contrary approach might better ensure that time spent in pre

- trial custody is allocated to some sentence, as opposed to the current regime , under which Martin is being “limited to the allocation of excess pre - sentence confinement credit.” Armbruster v. PBPP , 919 A.2d 348, 355 (Pa. Cmwlth. 2007). In the absence of tar geted advocacy directly challenging the continued precedential effect of Gaito , however, I do n ot view this case as an appropriate vehicle for reconsidering the decision

. Rather, I appreciate that we are presently relegated to addressing the decision’s appropriate reach.[J

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construe Gaito as foreclosing the Commonwealth from allocating time spent in state
institutions to state (as opposed to federal) sentences

. By taking the opposite approach

-- and extending Gaito to the present factual circumstances which were never contemplated there

-- the majority relegates the Commonwealth penal system to accommodat ing prisoners for longer periods of time than reflected in their state terms of

se ntence . The result is to require the state system to absorb the attendant costs and
other burdens while be ing used, effectively, as a proxy for federal custody. Finally, relative to the majority’s discussion of the per curiam order in Melhorn v.
PBPP , 589 Pa. 250, 908 A.2d 266 (2006), I observe that I noted my dissent to that
order

. S ee id. I n any event, per curiam orders do not serve as precedent , see, e.g., Heim v. MCARE Fund, 611 Pa. 1, 9, 23 A.3d 506, 510 (2011), which should be grounded on developed reasoning. For the above reasons, I respectfully dissent.