IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daryl S. Provance, :

Petitioner :

 :

v. : No. 547 C.D. 2017

 : Submitted: January 12, 2018

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: March 15, 2018

Before us is yet another challenge to a Pennsylvania Board of Probation and 

Parole (Board) decision denying a convicted parole violator (CPV) credit for time 

spent at a community corrections center1(CCC) on the ground the restrictions there 

are not the equivalent of incarceration despite pre-release inmates at the same facility 

receiving credit against their sentences. In this latest case, Daryl Provance 

(Provance) petitions for review of an April 19, 2017 decision of the Board (April 

Decision), which affirmed the Board’s decision mailed July 22, 2016 (July Decision) 

that denied Provance credit against his maximum sentence for more than a year he 

 

1 The Prisons and Parole Code (Parole Code) defines “community corrections center” as 

“[a] residential program that is supervised and operated by the [D]epartment [of Corrections].” 

Section 5001 of the Parole Code, 61 Pa. C.S. § 5001. 
2

spent at Gateway Braddock Community Corrections Center (Gateway). On appeal, 

Provance argues that since pre-release inmates get credit towards their sentences for 

time spent at Gateway, parolees, such as himself, should also get credit for time spent 

there since pre-release inmates and parolees are subject to the same constraints. 

Although Provance offers a compelling argument, based upon this Court’s binding 

precedent, we are constrained to affirm. 

I. Factual Background

The relevant facts of this case are not in dispute. While serving an 8 year, 10 

month- to 25-year aggregated sentence for aggravated assault and terroristic threats, 

the Board granted Provance parole on June 1, 2010. At the time, his parole violation 

maximum date was June 29, 2025. In January 2012, after testing positive for 

controlled substances and following an administrative conference with his parole 

agent, he was instructed to complete the Halfway Out Program at Progress 

Community Corrections Center.2 Upon his successful completion of the program, 

he was transferred to Gateway. He resided at Gateway from May 7, 2012 until June 

26, 2013. 

In December 2014, Pennsylvania State Police at Uniontown arrested Provance 

on a variety of new charges, including driving under the influence, aggravated 

assault, and recklessly endangering another person. Following his conviction on 

these new charges, the Board recommitted Provance as a CPV and recalculated his 

parole violation maximum date to November 26, 2029. 

 

2 Provance received credit for the time he spent at this facility.
3

Provance filed a pro se administrative appeal challenging, inter alia, the 

recalculation of his maximum date. The Board scheduled an evidentiary hearing to 

determine whether he was entitled to credit for the time he resided at Gateway. 

At the hearing, Provance, now represented by counsel, testified on his own 

behalf. He testified that Gateway houses both parolees and pre-release inmates and 

that both are governed by the same rules and regulations. He also testified that he 

was attempting to obtain Supplemental Security Income (SSI) but was denied 

because he was a resident of Gateway. In addition, Provance presented three 

photographs depicting the physical layout of Gateway, including what he described 

as a fenced-in area. On cross-examination by his parole agent, Provance admitted 

that, if he was physically able to work, he would have been permitted to leave 

Gateway to look for work. He also acknowledged he was allowed to leave for 

medical and other appointments without being escorted or accompanied by anyone 

at Gateway. According to Provance, he was permitted to go out and come back as 

he pleased; all he had to do was fill out a paper with a phone number stating where 

he was going and a time. He further admitted that nothing prevented him from 

leaving Gateway if he wanted to leave, he could just push any door open and go 

outside, and that the area he claimed was fenced in did have an open area for vehicles 

to drive in and out, which residents could likewise access from the recreational area.

Jeffrey Filia, assistant director of operations at Gateway, testified for the 

parole agent. He disagreed that there was no difference between parolees and prerelease inmates. He explained that pre-release inmates are residents who came to 

Gateway from a state correctional institution and are still serving their sentences. 

According to Mr. Filia, their supervision is “very intense.” (Hr’g Tr. at 29, Certified 

Record (C.R.) at 206.) If a pre-release inmate fails to return to Gateway or leaves 
4

without authorization, it is considered an escape. By contrast, Mr. Filia explained 

that parolees would be absconding and the Board would be notified. Mr. Filia 

confirmed that although there is a fence, there is an opening to the parking lot. He 

said the same area is used for recreation and residents are free to walk in and out. 

Mr. Filia explained that if a resident attempts to leave, Gateway has “a strict handsoff policy,” meaning that while staff will attempt to try to talk the resident out of 

leaving, staff will not physically stop the resident. (Hr’g Tr. at 31-32, C.R. at 208-

09.) Mr. Filia testified that residents are permitted between six to eight hours per 

day to search for employment, and although they are “asked to provide some sort of 

accountability as to where they [are] going,” Gateway does not check up on the 

person unless there is some reason to doubt the person’s truthfulness. (Hr’g Tr. at 

32-34, C.R. at 209-11.) According to Mr. Filia, Gateway is “not a prison facility. 

[It is] a correctional facility. . . . [T]here are no barriers on the doors. There are no 

barriers on the windows. Each resident is free to come and go as they [sic] please, 

without us hindering their [sic] direction.” (Hr’g Tr. at 34, C.R. at 211.) 

Following the hearing, the Board issued its July Decision, denying Provance 

credit for his time at Gateway. The Board found, as follows:

There was sufficient testimony that [Gateway] was not a secure facility. 

The doors were not locked to prevent residents from leaving and the 

windows were not barred closed. Residents could choose to exit the 

building . . . without permission and staff were prohibited from stopping 

them. Additionally, there were several exits that residents could exit 

the building by merely pushing on the push bar. Residents were 

permitted signout liberties for employment, community service, social 

passes, job searches, medical, and a variety of other appointments. 

Staff did not escort nor follow residents while they were in the 

community. Staff were also prohibited from physically preventing 

residents from leaving. Although a partial fence was around the 

parking area, this area was also the recreation area and residents could 

enter into and exit this area at will.
5

(July Decision at 2, C.R. at 219.)

Based upon these findings, the Board concluded that “Provance did not meet 

the burden of proving that [Gateway] was the equivalent of incarceration and should 

not be awarded credit for his backtime.” (Id. at 3, C.R. at 220.) 

Provance filed another administrative remedies form seeking review of the 

July Decision. The appeal panel agreed with the Board’s findings in its July 

Decision and affirmed. (April Decision, C.R. at 225.) This appeal followed.3

II. Parties’ arguments

On appeal, Provance argues that he should have received credit for the time 

he spent at Gateway because his time spent there was the equivalent of incarceration. 

Specifically, he argues that while at Gateway, he was subjected to the same 

constraints on his liberty as pre-release inmates, and if these inmates were 

incarcerated for the purposes of serving their sentences, he similarly should be 

considered incarcerated. Counsel for Provance acknowledges that the case law is 

not favorable to his client but requests the Court reconsider its past holdings. 

The Board responds that it did not act arbitrarily and appropriately exercised 

its discretion when it decided Provance was not entitled to credit for his time at 

Gateway. It argues there was sufficient testimony to establish that parolees at 

Gateway were not confined in any way, and certainly not in a manner sufficient to 

constitute the equivalent of incarceration. 

 

3 On appeal, our “review is limited to determining whether constitutional rights were 

violated, whether the adjudication was in accordance with law, and whether necessary findings 

were supported by substantial evidence.” Miskovitch v. Pa. Bd. of Prob. and Parole, 77 A.3d 66, 

70 n.4 (Pa. Cmwlth. 2013). 
6

III. Analysis

Section 6138(a)(2) of the Prisons and Parole Code (Parole Code) provides that 

parolees who are recommitted as a CPV “shall be reentered to serve the remainder 

of the term which the parolee would have been compelled to serve had the parole 

not been granted and . . . shall be given no credit for the time at liberty on parole.” 

61 Pa. C.S. § 6138(a)(2). The Parole Code does not define “at liberty on parole,” 

but our Supreme Court provided guidance in the seminal case, Cox v. Pennsylvania 

Board of Probation and Parole, 493 A.2d 680 (Pa. 1985). In Cox, the Pennsylvania 

Supreme Court explained that the parolee bears the burden of showing that the 

specific facility had sufficient restrictions on his liberty to warrant time credit. Id.

at 683. In that case, the Supreme Court found the record was insufficient to 

determine “whether the restrictions on [the parolee’s] liberty [at the facility] were 

the equivalent of incarceration” and remanded for development of the factual 

record.4Id. The Supreme Court further cautioned that a court reviewing the Board’s 

determination should not interfere with that decision unless the Board acts arbitrarily 

or plainly abuses its discretion. Id.

Each claim for time credit is to be evaluated on a case-by-case basis. Torres 

v. Pa. Bd. of Prob. and Parole, 861 A.2d 394, 397 (Pa. Cmwlth. 2004). Yet, since 

Cox, our Court has further defined the parameters of the “equivalent of 

incarceration” standard. For instance, we have stated “[t]he most important factors 

are ‘whether the patient, or resident, is locked in and whether the patient may leave 

without being physically restrained.’” Figueroa v. Pa. Bd. of Prob. and Parole, 900 

 

4 Although Cox involved an in-patient hospital drug treatment program, we have applied 

the “equivalent of incarceration” standard to other types of facilities, including CCCs. See, e.g., 

Figueroa v. Pa. Bd. of Prob. and Parole, 900 A.2d 949 (Pa. Cmwlth. 2006); Wagner v. Pa. Bd. of 

Prob. and Parole, 846 A.2d 187 (Pa. Cmwlth. 2004). 
7

A.2d 949, 952 (Pa. Cmwlth. 2006) (quoting Detar v. Pa. Bd. of Prob. and Parole, 

890 A.2d 27, 31 (Pa. Cmwlth. 2006)). Those factors were recently reaffirmed in 

Medina v. Pennsylvania Board of Probation and Parole, 120 A.3d 1116, 1120-21 

(Pa. Cmwlth. 2015). Furthermore, in Harden v. Pennsylvania Board of Probation 

and Parole, we stated:

Facilities are not prison-like if they lack fences or have fences with 

gates that open from the inside; have doors and windows locked from 

the outside, not the inside, to prevent entry not exit; lack guards

stationed to prevent residents from leaving; and do not attempt to use 

physical force by staff members to stop an inpatient from leaving. 

980 A.2d 691, 699 (Pa. Cmwlth. 2009). 

Far more often than not, we have found the characteristics of a particular 

program or facility are not restrictive enough to constitute the “equivalent of 

incarceration.” See Medina, 120 A.3d at 1119-20 (reciting both reported and 

unreported decisions regarding same). Provance recognizes that the deck is stacked 

against him yet persuasively argues that when pre-release inmates serving their 

sentences at the same facilities under the same terms and conditions of 

confinement are receiving credit towards their sentences, parolees, such as himself, 

should similarly receive time credit. 

Unfortunately for Provance, this Court has repeatedly rejected this exact same 

argument on a number of occasions. See id. at 1122 (listing such cases). In doing 

so, this Court has frequently cited one distinction between pre-release inmates and 

parolees: pre-release inmates who leave a facility without permission and do not 

return are charged with the crime of escape by the police, whereas parolees who 

leave a facility without permission and do not return are charged with violating the 

terms of their parole by their parole agent. See, e.g., Wagner v. Pa. Bd. of Prob. and 
8

Parole, 846 A.2d 187 (Pa. Cmwlth. 2004); Meehan v. Pa. Bd. of Prob. and Parole, 

808 A.2d 313 (Pa. Cmwlth. 2002). 

Provance’s arguments have not gone unnoticed, though. On a number of 

occasions, various members of this Court have questioned the logic of denying a 

parolee credit for time spent at a facility under the same conditions as a pre-release 

inmate at the same facility. Former Judge Friedman foresaw this issue in Torres. In 

her concurring opinion, she noted that “inmates serving sentences of incarceration 

always receive credit for time spent in CCC residency programs.” 861 A.2d at 402 

(Friedman, J., concurring) (emphasis in original). Because a pre-release inmate who 

is not on parole is considered incarcerated when residing at a CCC, she reasoned that 

parolees can satisfy their burden of proof under Cox by “present[ing] evidence to 

establish that the restrictions on liberty are identical for parolees and inmates at a 

CCC.”5 Id. As for the distinction that pre-release inmates are charged with escape 

for leaving a CCC when parolees are not, Judge Friedman thought the distinction 

was irrelevant to whether the individual should receive time credit. She explained 

that the relevant standard “under Cox is whether the specific characteristics of the 

program restrict liberty to such an extent that residency in the program is the 

equivalent of incarceration.” Id. at 403 (emphasis in original). “[T]he result of such 

thinking is that parolees can never receive credit for time spent in a CCC because 

parolees can never be charged with escape.” Id. (emphasis in original). Judge 

Friedman reiterated her view that “if pre-release inmates receive credit for their time 

[at a facility], then parolees should receive credit” in Rodriguez v. Pennsylvania 

 

5 Provance advocates for adoption of Judge Friedman’s position. 
9

Board of Probation and Parole (Pa. Cmwlth., No. 200 C.D. 2008, filed Aug. 12, 

2008) (Friedman, J., dissenting), slip op. at 4.

6

On more than one occasion, now-Senior Judge Pellegrini has been a vocal 

opponent of treating pre-release inmates differently than parolees in terms of 

receiving credit for time spent at a CCC under identical restraints. See, e.g., Medina, 

120 A.3d at 1128 (Pellegrini, P.J., dissenting) (“It simply is illogical to say that one 

person who is in a community corrections facility receives credit because that person 

has the status as an inmate, and another person who is required to live at the facility 

under the same conditions as an inmate does not.”); Harden, 980 A.2d at 708 

(Pellegrini, J., dissenting) (“Because prisoners and parolees are subject to the same 

level of confinement and the same rules, and prisoners are given credit for time spent 

in these facilities, it would be irrational to hold that a stay at the facility is not the 

‘equivalent of incarceration’ when the Department of Corrections has determined 

that it is incarceration.”) Senior Judge Pellegrini has likewise found it irrelevant that 

parolees are not charged with escape. Harden, 980 A.2d at 703-04. In his dissent 

to Medina, he wrote it was inappropriate for this Court to act as “arbiter of what is a 

prison,” which is what it is doing when it considers the various factors. 120 A.3d at 

1127-28 (Pellegrini, P.J., dissenting). Judge McCullough and the undersigned

joined in then-President Judge Pellegrini’s dissent in Medina. 

For the same reasons set forth by then-President Judge Pellegrini in his dissent 

to Medina, similar discontent with this issue was expressed most recently in Johnson 

v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 2009 C.D. 2015, 

filed July 18, 2016), petition for allowance of appeal denied, 169 A.3d 1023 (Pa. 

 

6 Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, unreported 

panel decisions issued by this Court after January 15, 2008 may be cited for their persuasive value 

but not as binding precedent. 210 Pa. Code § 69.414(a). 
10

2016). However, given “this Court’s binding decision in [Medina,]” the majority 

was constrained to affirm. Id., slip op. at 9 n.6.

Until this Court revisits its prior holdings or the Supreme Court reverses this 

Court, we are, likewise, constrained here. The Board found that the doors and 

windows at Gateway were not secured; anyone could leave the program at any time; 

although there was a fence, it was only partial; residents could leave the facility 

unsupervised for appointments and to conduct job searches; and staff could not 

physically restrain anyone attempting to leave.

7

 There is substantial evidence to 

support these findings. In fact, Provance admitted these facts. These findings 

support the Board’s determination that Provance is not entitled to credit under Cox

and its progeny for the time period he resided at Gateway because the conditions 

there were not sufficiently restrictive so as to be the “equivalent of incarceration.” 

IV. Conclusion

Because the Board did not act arbitrarily or plainly abuse its discretion when 

it denied Provance credit for the time he spent at Gateway, its Decision is affirmed.

_____________________________________

RENÉE COHN JUBELIRER, Judge

 

7 Although these conditions apply with equal force to both pre-release inmates, who receive 

credit towards their sentences, and parolees, like Provance, who do not, as discussed above, our 

precedent views them differently.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daryl S. Provance, :

Petitioner :

 :

v. : No. 547 C.D. 2017

 :

Pennsylvania Board of Probation :

and Parole, :

Respondent :

O R D E R

NOW, March 15, 2018, the Decision of the Pennsylvania Board of Probation 

and Parole, entered in the above-captioned matter, is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge