IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Pergolini, :

Petitioner :

:

v. : No. 504 C.D. 2019

: SUBMITTED: September 6, 2019

Pennsylvania Board of :

Probation and Parole, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: January 13, 2020

Petitioner Michael Pergolini (Pergolini) petitions for review of Respondent 

Pennsylvania Board of Probation and Parole’s (Board) March 26, 2019 ruling 

affirming its April 19, 2018 decision to recommit Pergolini as a convicted parole 

violator (CPV) to serve 12 months of backtime, as well as to award him no credit for 

time served at liberty on parole. After thorough consideration, we affirm the Board.

Facts and Procedural History

On January 6, 2014, Pergolini pled guilty in the Court of Common Pleas of 

Delaware County (Trial Court) to one count of driving under the influence and

received a sentence of 9 to 60 months in state prison. Certified Record (C.R.) at 1. 

Pergolini was paroled on December 30, 2014, at which point the maximum date on 

his sentence was January 27, 2019. Id. at 6. On June 9, 2015, the Board issued an 

administrative action asserting that there was probable cause to believe that Pergolini 
2

had committed drug-related technical parole violations. Id. at 10. The Board stated 

that Pergolini should consequently be detained in a parole violator center, and that a 

parole violation hearing would be “held in abeyance, pending completion of 

recommended programming [at the center].” Id. On July 13, 2015, the Board ordered 

Pergolini to be recommitted for six months as a technical parole violator (TPV), due 

to his usage of drugs and failure to successfully complete the required treatment

programs. Id. at 11. Pergolini was again paroled on November 11, 2015, and was 

released to live with his parents in Boothwyn, Pennsylvania. Id. at 16-17.

On October 14, 2017, at approximately 2:20 a.m., Pergolini was stopped by 

police officers in Upper Chichester, Pennsylvania, who had observed him driving 

erratically. Id. at 28. The officers administered a field sobriety test and concluded 

that Pergolini was under the influence of either drugs or alcohol. Id. Pergolini 

subsequently tried to flee the scene on foot, but was subdued and arrested by the 

officers after a brief chase. Id. As a result, Pergolini was charged with driving under 

the influence, escape, recklessly endangering another person, resisting arrest, and 

multiple summary offenses. Id. The Board lodged a detainer against Pergolini that 

same day and, on November 29, 2017, issued an administrative decision ordering 

Pergolini to be detained pending resolution of the Upper Chichester charges. Id. at 

27, 44. On February 6, 2018, Pergolini pled guilty in the Trial Court to driving under 

the influence and escape, and was given an aggregate sentence of 15 to 60 months 

in state prison. Id. at 51, 56.

On March 5, 2018, Pergolini waived his right to a parole revocation hearing, 

as well as to representation by counsel, and admitted to the veracity of his February 

6, 2018 guilty plea. Id. at 57-60. Thereafter, on April 19, 2018, the Board ordered 

Pergolini to be recommitted as a CPV to serve 12 months of backtime. Id. at 75-76.
3

The Board also elected not to award Pergolini any credit for time served at liberty 

on parole, due to Pergolini’s “unresolved drug and alcohol issues[,]” and 

recalculated his maximum date as October 29, 2021. Id. at 75.

Pergolini then mailed a timely Administrative Remedies Form to the Board.

Therein, Pergolini explained that he believed the Board had given him two separate, 

year-long backtime recommitments, for a total of two years of backtime. Id. at 79.

Pergolini asked the Board to alter the terms of this decision, so that the two 

recommitment terms would run concurrently with each other or with his February 

2018 sentence. Id. It is unclear why Pergolini thought he had to serve two years of 

backtime, as this conclusion is not supported by the Board’s April 19, 2018 decision 

itself. See id. at 75. On March 7, 2019, a private attorney representing Pergolini sent 

a letter to the Board, asserting that it had miscalculated Pergolini’s parole eligibility 

date and requesting the correction of this alleged error. Id. at 81. The Board then 

issued a revised decision on March 26, 2019, changing Pergolini’s maximum date 

from October 29, 2021, to June 19, 2021, but leaving the remainder of its April 19, 

2018 decision unchanged. Id. at 84. The Board revised Pergolini’s maximum date in 

order to comply with our Court’s holding in Penjuke v. Pennsylvania Board of 

Probation and Parole, 203 A.3d 401 (Pa. Cmwlth. 2019), in which we ruled that 

street time credit awarded to a TPV by the Board could not then be revoked in the 

event the Board declared him a CPV at some point thereafter. Board’s Br. at 4-5; see 

Penjuke, 203 A.3d at 420.

That same day, the Board responded to both Pergolini’s Administrative 

Remedies Form and his attorney’s letter, affirming its April 19, 2018 decision on the 

basis that it was authorized by law not to award him any credit for time served at 
4

liberty on parole, as well as that it had correctly calculated both the time left on his

January 2014 sentence and his maximum date. Id. at 88-89.

On April 24, 2019, Pergolini filed his pro se Petition for Review, after which 

we appointed the Public Defender of Montgomery County to represent him.

Assistant Public Defender Dana E. Greenspan, Esquire, then entered her appearance 

in this matter on May 14, 2019. Both Pergolini and the Board have since filed their 

respective appellate briefs and this matter is now ready for our consideration.

Discussion

On appeal, Pergolini alleges that the Board abused its discretion by denying 

him credit for time served at liberty on parole. In essence, Pergolini claims that the 

Board did not properly consider the great efforts he had made to overcome his 

substance abuse issues between being paroled on November 11, 2015, and being 

arrested on October 14, 2017. Pergolini’s Br. at 12-17. Pergolini argues that it is 

inherently unfair that one slip-up would result in the complete loss of his street time. 

Id. Pergolini further maintains that the Board’s explanation for why it did not give 

him any such credit (i.e., “unresolved drug and alcohol issues”) did not satisfy the 

requirements set forth by our Supreme Court in Pittman v. Pennsylvania Board of 

Probation and Parole, 159 A.3d 466, 475 (Pa. 2017). Pergolini’s Br. at 12-13.1 On 

these bases, Pergolini requests that we remand this matter to the Board, so that it 

may conduct a more in-depth inquiry into whether the factual circumstances of his 

situation justify granting him full or partial street time credit. Id. at 17.

 

1

In Pittman, our Supreme Court held that the Board has discretionary power in certain 

circumstances to award credit for time served at liberty on parole, by virtue of Section 6138(a)(2.1) 

of the Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(2.1), but must provide a contemporaneous 

and reasonable explanation if it declines to make such an award. 159 A.3d at 473-75.
5

Before addressing the substantive merits of Pergolini’s arguments, however, 

we must first address the issue of waiver. A fundamental precept of appellate review 

is that a party cannot argue an issue on appeal if they failed to first raise it at the 

administrative level.2 2 Pa. C.S. § 703(a); Pa. R.A.P. 1551; McCaskill v. Pa. Bd. of 

Prob. & Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993). Though the Board 

does not challenge Pergolini’s Petition for Review on this basis, we may sua sponte

consider whether he waived any such issues, as the question of issue preservation is 

jurisdictional in nature. Lehman v. Pa. State Police, 839 A.2d 265, 274-75 (Pa. 

2003); Brog v. Dep’t of Pub. Welfare, 401 A.2d 613, 615 (Pa. Cmwlth. 1979). Here, 

Pergolini made clear in his Administrative Remedies Form that he contested the 

Board’s April 19, 2018 decision because he believed, albeit incorrectly, that the 

Board had given him 2 separate, 12-month-long backtime recommitments, for a total 

of 2 years of backtime. C.R. at 79. At no point did Pergolini expressly or impliedly 

attack either the Board’s denial of street time credit itself or the sufficiency of its 

explanation for this denial. See id. Therefore, as Pergolini did not raise what can be 

construed as a Pittman challenge before the Board, or otherwise contest at the 

administrative level the Board’s discretionary denial of street time credit, we hold 

that he has waived these issues for purposes of appellate review.3 See Headley v. Pa. 

 

2 There are several exceptions to this rule, none of which are applicable to this matter.

3 Moreover, even if Pergolini had preserved these claims, we would not have found in his 

favor. Our standard of review in this type of matter is limited to determining whether the Board 

violated a parole violator’s constitutional rights, committed an error of law, or issued an 

adjudication that was not supported by substantial evidence (i.e., abused its discretion). Section 

704 of the Administrative Agency Law, 2 Pa. C.S. § 704. “Substantial evidence” is defined “as 

such relevant evidence which a reasonable mind might accept as adequate to support a conclusion.” 

Singer v. Bureau of Prof’l & Occupational Affairs, State Bd. of Psychology, 633 A.2d 246, 248 

(Pa. Cmwlth. 1993). Pergolini waived his right to a revocation hearing, leaving the Board with a 

cold record, so to speak, which showed a multi-year saga of repeated substance abuse-related 
6

Bd. of Prob. & Parole (Pa. Cmwlth., No. 2553 C.D. 2015, filed May 2, 2017), slip 

op. at 5-6, 2017 WL 1629441, at *2-*3 (administrative challenge to a Board decision 

only preserves for appellate review those issues expressly or impliedly flowing from 

the wording used by the parole violator on his Administrative Remedies Form).4

Conclusion

As Pergolini has waived the sole issue he raised in his appellate brief, we are 

compelled to affirm the Board’s March 26, 2019 ruling that affirmed its April 19, 

2018 decision, as modified.

__________________________________

ELLEN CEISLER, Judge

 

arrests, convictions, and parole violations. The Board based its denial of street time credit on this 

history. Though the Board’s justification for its credit denial is extremely brief, our Supreme Court 

has made clear that “the reason the Board gives does not have to be extensive and a single sentence 

explanation is likely sufficient in most instances.” Pittman, 159 A.3d at 475 n.12. Given 

Pergolini’s past performance, the Board’s statement that he would not get any credit for time 

served at liberty on parole because of his “unresolved drug and alcohol issues” was acceptable. 

See Smoak v. Talaber, 193 A.3d 1160, 1165 (Pa. Cmwlth. 2018) (Board’s statement that it was 

denying a CPV street time credit due to “unresolved drug and alcohol issues” was “barely 

adequate” to satisfy the dictates of Pittman and 61 Pa. C.S. § 6138(a)(2.1)). We would have thus 

found that the Board neither abused its discretion, nor committed an error of law, and would have 

affirmed the Board’s March 26, 2019 ruling on that basis.

4

See Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code § 

69.414(a) (unreported Commonwealth Court opinions issued after January 15, 2008, may be cited 

for their persuasive value).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Pergolini, :

Petitioner :

:

v. : No. 504 C.D. 2019

:

Pennsylvania Board of :

Probation and Parole, :

Respondent :

O R D E R

AND NOW, this 13th day of January, 2020, Respondent Pennsylvania Board 

of Probation and Parole’s (Board) March 26, 2019 ruling, through which the Board 

affirmed its April 19, 2018 decision, as modified on March 26, 2019, that 

recommitted Petitioner Michael Pergolini to serve 12 months of backtime as a 

convicted parole violator and recalculated his maximum date as June 19, 2021, is 

AFFIRMED.

__________________________________

ELLEN CEISLER, Judge