[J-42-2017][M.O. – Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

DEREK SMITH,

Appellee

v.

PENNSYLVANIA BOARD OF 

PROBATION AND PAROLE,

Appellant

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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 OPINION

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 announcement and perpetuation of brightline 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-42-2017][M.O. – Dougherty, J.] - 2

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 in 

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 policy 

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 decision 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 targeted advocacy directly challenging the continued precedential effect 

of Gaito, however, I do not 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-42-2017][M.O. – Dougherty, J.] - 3

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 

accommodating prisoners for longer periods of time than reflected in their state terms of 

sentence. The result is to require the state system to absorb the attendant costs and 

other burdens while being 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. See id. In 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.