IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin Pittman, :

Petitioner :

: No. 978 C.D. 2014

v. :

: Argued: October 7, 2015

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge1

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE MARY HANNAH LEAVITT, Judge2

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION BY

JUDGE McCULLOUGH FILED: January 8, 2016

Kevin Pittman (Pittman) petitions for review of the May 29, 2014 order 

of the Pennsylvania Board of Probation and Parole (Board), affirming its November 

21, 2013 decision to recommit Pittman as a convicted parole violator (CPV) for the 

remaining term of his unexpired sentence without awarding him credit for the time he 

 

1

This case was assigned to the opinion writer before December 31, 2015, when President 

Judge Pellegrini assumed the status of senior judge.

2

This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt 

became President Judge.
2

spent at liberty on parole.3 After considering the parties’ briefs, the record, and the 

applicable law, we affirm.

On March 10, 2010, Pittman was sentenced to two to four years’ 

imprisonment following his guilty plea to possession of a controlled substance with 

the intent to deliver (PWID).4 Pittman’s minimum sentence date was December 9, 

2011, and his maximum sentence date was December 9, 2013. (Certified Record 

(C.R.) at 1-3.)

On October 19, 2011, the Board granted Pittman parole and he was 

released on December 12, 2011. Prior to his release, Pittman signed conditions 

governing his parole advising that, “[i]f you are convicted of a crime committed 

while on parole/reparole, the Board has the authority, after an appropriate hearing, to 

recommit you to serve the balance of the sentence or sentences which you were 

serving when paroled/reparoled, with no credit for time at liberty on parole.” (C.R. at 

11.) 

On April 13, 2013, the police arrested Pittman and charged him with 

criminal offenses. The Board lodged a warrant on that same day. On August 1, 

2013, Pittman entered a guilty plea to PWID, and, on October 23, 2013, the trial court 

sentenced him to a term of one to three years’ imprisonment. (C.R. at 8-10, 14, 25-

28.) Thereafter, Pittman signed a waiver form prepared by the Board, waiving his 

right to a parole revocation hearing and his right to counsel and admitting that he 

 

3 By per curiam order dated June 23, 2014, this Court appointed counsel to represent 

Pittman in this appeal. 

4

See Section 13(a)(30) of The Controlled Substance, Drug, Device, and Cosmetic Act, Act 

of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(a)(30).
3

violated his parole by committing PWID. (“Waiver of Revocation Hearing and 

Counsel/Admission Form,” C.R. at 42.)

 In a hearing report dated September 18, 2013, the Board accepted 

Pittman’s waivers and admission to being a CPV. On page 3 of the hearing report 

appeared the line: “BOARD ONLY – Credit time spent at liberty on parole: [ ] No 

[ ] Yes (excluded offenses on pg. 8).” In turn, page 8 of the hearing report lists 

offenses that are automatically excluded from street time credit pursuant to section 

9714(g) of the Judicial Code, 42 Pa.C.S. §9714(g), and PWID is not enumerated as 

one of those offenses. The Board checked “No” and denied Pittman credit. (C.R. at 

36, 42.) 

By decision recorded on November 21, 2013, the Board recommitted 

Pittman as a CPV and recalculated his maximum sentence date from December 9, 

2013, to October 21, 2015, which constituted the entire balance remaining on his 

original sentence. (C.R. at 46.) 

On December 4, 2013, Pittman submitted a request for administrative 

relief, arguing, among other things, that he was entitled to credit for time that he had 

spent on parole in good standing. On May 29, 2014, the Board denied Pittman’s 

request for administrative relief. In doing so, the Board cited section 6138(a)(2) of 

the Prison and Parole Code (Parole Code), 61 Pa.C.S. §6138(a)(2), and determined 

that as a CPV, Pittman was not entitled to credit for time he spent at liberty on parole. 

(C.R. at 47-50, 96.)

Pittman now appeals to this Court.5

 

5 Our scope of review is limited to determining whether constitutional rights were violated, 

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

supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Board of Probation and Parole, 885 

A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005). 
4

Discussion

In this case, we decide, as a prefatory matter, whether this Court has 

statutory jurisdiction to review Pittman’s appeal. We also decide whether the Board, 

in denying Pittman credit, exercised discretion as that concept is contemplated by the 

Parole Code. Finally, we decide whether the Board was legally obligated to provide 

written reasons for denying Pittman credit.

Statutory Jurisdiction

Initially, we address whether Pittman can appeal the Board’s November 

21, 2013 order denying him credit for time spent at liberty on parole. We raise this 

issue, sua sponte, as it affects our statutory jurisdiction and authority to conduct 

appellate review. Pennhurst Medical Group, P.C. v. Department of Public Welfare, 

796 A.2d 423, 425 n.2 (Pa. Cmwlth. 2002). 

The courts of this Commonwealth have generally held that an order 

which “involves parole” does not constitute an appealable adjudication for purposes 

of the Administrative Agency Law, 2 Pa.C.S. §§101-754. For example, in Rogers v. 

Board of Probation and Parole, 724 A.2d 319, 322 (Pa. 1999), our Supreme Court 

concluded that this Court lacked statutory jurisdiction to review the Board’s order to 

deny a prisoner parole because the definition of “adjudication” excludes a decision 

“which involves . . . paroles....” (citation omitted). Similarly, in Wheeler v. Board of 

Probation and Parole, 862 A.2d 127, 130 (Pa. Cmwlth. 2004), this Court held that 

the Board’s order imposing, and declining to revoke, a condition of parole – i.e., that 

the parolee was not to have any contact with his wife while on parole – was not an 

adjudication from which an appeal could be taken.
5

Although the Board’s decision in this case may be tangentially related to 

parole, unlike the Board’s decisions in Rogers and Wheeler, it does not directly 

involve the grant, denial, or conditions of parole; in other words, the substantive 

facets governing and surrounding the decision to parole. Instead, the Board’s 

decision in this case, first and foremost, recalculates Pittman’s maximum sentence 

date pursuant to statute. Specifically, the Board extended Pittman’s maximum 

sentence date by declining to provide Pittman with credit for time spent on parole 

under sections 6138(a)(2) and (2.1) of the Parole Code. 

In varying circumstances, the courts of this Commonwealth have held 

that when a prisoner challenges the Board’s computation or calculation of his 

maximum sentence date, that prisoner’s appeal rights include an administrative

appeal to the Board and also a statutory appeal to this Court in our appellate 

jurisdiction under section 763 of the Judicial Code, 42 Pa.C.S. §763 (Direct appeals 

from government agencies).

6

 See McMahon v. Board of Probation and Parole, 470 

 

6

This section provides in pertinent part:

(a) General rule. –

Except as provided in subsection (c), the Commonwealth Court shall 

have exclusive jurisdiction of appeals from final orders of government 

agencies in the following cases:

(1) All appeals from Commonwealth agencies under Subchapter A of 

Chapter 7 of Title 2 (relating to judicial review of Commonwealth 

agency action) or otherwise and including appeals from the Board of 

Claims, the Environmental Hearing Board, the Pennsylvania Public 

Utility Commission, the Unemployment Compensation Board of 

Review and from any other Commonwealth agency having Statewide 

jurisdiction.

(Footnote continued on next page...)
6

A.2d 1337, 1337-38 (Pa. 1983) (holding that when a prisoner challenges the Board’s 

calculation of his maximum sentence date, based upon subsequent criminal 

convictions, the challenge is “a matter properly addressed to [this Court’s] appellate 

jurisdiction, 42 Pa.C.S. §763”); Calloway v. Board of Probation and Parole, 857 

A.2d 218, 220-22 (Pa. Cmwlth. 2004) (concluding that when a prisoner seeks credit 

on the Board’s recalculation order, the prisoner “was required to file a direct appeal 

of that order addressed to this Court’s appellate jurisdiction.”); Evans v. Board of 

Probation and Parole, 713 A.2d 741 (Pa Cmwlth. 1998) (explaining that when the 

prisoner alleges that the Board erred in calculating his maximum sentence date, the 

prisoner’s appeals process consists of filing an appeal to the Board and then an appeal 

to this Court); St. Clair v. Board of Probation and Parole, 493 A.2d 146 (Pa. 

Cmwlth. 1985). In St. Clair, the Board entered an order extending the prisoner’s 

maximum sentence date in accordance with former section 21.1(a) of the Parole Act,7

which stated that a CPV shall not receive credit for time spent at liberty on parole. In 

dismissing the prisoner’s mandamus claim filed in our original jurisdiction, this Court 

held that “claims by parolees for time credit are properly addressed to our appellate 

jurisdiction under 42 Pa.C.S. §763.”

Here, Pittman is challenging the recalculation of his maximum sentence 

date, contending that he was improperly denied credit as a CPV under section 

 

(continued...)

(2) All appeals jurisdiction of which is vested in the Commonwealth 

Court by any statute hereafter enacted.

42 Pa.C.S. §763.

7 Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 

1951, P.L. 1401, formerly 61 P.S. §331.21a(a), repealed by the Act of August 11, 2009, P.L. 147.
7

6138(a)(2) of the Parole Code. Based upon St Clair and the above case law, we 

conclude that we possess statutory jurisdiction via section 763 of the Judicial Code. 

42 Pa.C.S. §763. Accordingly, we proceed to address the arguments that Pittman

raises in this appeal. 

Abuse of Discretion

On appeal, Pittman does not dispute that under section 6138(a)(2) of the 

Parole Code, the Board can deny him credit for time spent at liberty on parole. 

Instead, Pittman argues that the Board overlooked section 6138(a)(2.1) of the Parole 

Code, 61 Pa.C.S. §6138(a)(2.1), added by the Act of July 5, 2012, P.L. 1050 (Act 

122), which grants the Board discretion to award a CPV credit for time spent on 

parole. Citing Gillespie v. Pennsylvania Department of Transportation, Bureau of 

Driver Licensing, 886 A.2d 317 (Pa. Cmwlth. 2005), Pittman contends that the Board 

completely failed to exercise its discretion under section 6138(a)(2.1) of the Parole 

Code by checking a box denying credit and that this alleged failure to exercise 

discretion, in and of itself, constitutes an abuse of discretion. On this basis, Pittman 

seeks a remand. 

We proceed first with a review of section 6138(a) of the Parole Code, 

which requires that if a parolee’s recommitment is ordered, then the parolee shall be 

reentered to serve the remainder of the term had parole not been granted. 

Specifically, section 6138(a) of the Parole Code in pertinent part states:

§6138. Violation of terms of parole. 

(a) Convicted violators. 

(1) A parolee under the jurisdiction of the board released 

from a correctional facility who, during the period of parole 

or while delinquent on parole, commits a crime punishable 
8

by imprisonment, for which the parolee is convicted or 

found guilty by a judge or jury or to which the parolee 

pleads guilty or nolo contendere at any time thereafter in a 

court of record, may at the discretion of the board be 

recommitted as a parole violator.

(2) If the parolee’s recommitment is so ordered, the parolee 

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, except as provided under 

paragraph (2.1), shall be given no credit for the time at 

liberty on parole.

(2.1) The board may, in its discretion, award credit to a 

parolee recommitted under paragraph (2) for the time 

spent at liberty on parole, unless any of the following 

apply:

(i) The crime committed during the period of parole or 

while delinquent on parole is a crime of violence as defined 

in 42 Pa.C.S. §9714(g) (relating to sentences for second and 

subsequent offenses) or a crime requiring registration under 

42 Pa.C.S. Ch. 97 Subch. H (relating to registration of 

sexual offenders).

61 Pa.C.S. §6138(a)(1)-(2.1)(i) (emphasis added). 

Hence, the Board’s exercise of discretion under section 6138(a) of the 

Parole Code is two-fold. First, the Board must determine whether to recommit a 

parole violator. Second, when recommitment is so ordered, the parolee shall be 

reentered to serve the remainder of the term, but the Board may, in its discretion,

award the parolee credit. Significantly, Pittman pleaded guilty to PWID and admitted 

that he was a CPV on the Board’s waiver form. He never asked for credit and there is 

no record of a hearing or request for credit before the Board. Nonetheless, Pittman 

now claims that the Board failed to exercise discretion and should have issued a 

statement of reasons as to why it did not give him credit. 
9

The hearing report provided the Board with the option to award Pittman 

with credit for time spent on parole in a “yes” or “no” format and listed, by way of 

reference, the particular provision of the Judicial Code, section 9714(g), 42 Pa.C.S. 

§9714(g), for which violation while on parole would preclude the Board from 

exercising its discretion to award credit. On its face, the hearing report provided the 

Board with the choice to award credit under section 6138(a)(2.1) of the Parole Code

or not. There are no further instructions regarding credit on the hearing report. 

Consequently, the completed hearing report, alone, establishes that the Board 

exercised discretion pursuant to section 6138(a)(2.1) by checking “no” and denying 

Pittman credit for time spent at liberty on parole. In an unreported decision, Torres v. 

Pennsylvania Board of Probation and Parole, (Pa. Cmwlth., No. 1090 C.D. 2014, 

filed April 10, 2015), slip op. at 9, this Court reached a similar result, concluding that 

the Board did not “summarily deny” the inmate credit where the Board noted that the 

inmate was a CPV and checked the box for “no credit” on the hearing report.8, 9

Our conclusion is reinforced by other provisions of the Parole Code

governing decisions made by the Board. Notably, unlike the Board’s decisions to 

parole and reparole under section 6137 of the Parole Code, our legislature has not 

enumerated any criteria to be considered or general standard to be applied by the 

Board when determining whether to award credit. 

 

8

Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code 

§69.414(a), unreported decisions may be cited for their persuasive value.

9

The Dissent states that “[i]t appears here that Pittman was not given credit solely because 

the Board did not realize that the Parole Code had been amended by Act 122 thereby allowing for 

certain convicted parole violators to be granted such credit.” (Dissent op. at 4.) In doing so, the 

Dissent engages in supposition and ignores the hearing report. 
10

Specifically, sections 6137(a)(1)(i)-(ii) and (h)(1)-(2) of the Parole Code 

enunciate these guidelines as follows:

(a) General criteria for parole.

(1) The board may parole subject to consideration of 

guidelines established under 42 Pa.C.S. §2154.5 (relating 

to adoption of guidelines for parole) and may release on 

parole any inmate to whom the power to parole is granted to 

the board by this chapter, except an inmate condemned to 

death or serving life imprisonment, whenever in its 

opinion:

(i) The best interests of the inmate justify or require that 

the inmate be paroled.

(ii) It does not appear that the interests of the 

Commonwealth will be injured by the inmate’s parole. 

* * *

(h) Power to recommit.

(1) The board may, during the period for which an inmate 

shall have been sentenced, recommit the inmate, if 

paroled, for violation of the terms and conditions of his 

parole and from time to time to reparole and recommit in 

the same manner and with the same procedure as in the case 

of an original parole or recommitment if, in the judgment 

of the board:

(i) There is a reasonable probability that the inmate will 

be benefited by paroling the inmate again.

(ii) It does not appear that the interests of the 

Commonwealth will be injured by paroling the inmate 

again.

(2) In exercising these powers, the board shall consider 

any applicable recommitment ranges established by the 

commission under 42 Pa.C.S. §2154.6 (relating to 
11

adoption of recommitment ranges following revocation 

of parole by board).

61 Pa.C.S. §6137(a)(1)(i)-(ii), (h)(1)-(2) (emphasis added).

By way of these guidelines, the legislature established specific 

parameters and means by which the Board may exercise its discretion. See 61 

Pa.C.S. §6137(a)(1)(i)-(ii) (stating that the Board, after considering guidelines, may 

parole when, in its opinion, “[t]he best interests of the inmate justify or require that 

the inmate be paroled” and “[i]t does not appear that the interests of the 

Commonwealth will be injured by the inmate’s parole.”); 61 Pa.C.S. §6137(h)(1)(i)-

(ii) (stating that the Board, after considering recommitment ranges, may recommit or 

reparole when, in its judgment, “[t]here is a reasonable probability that the inmate 

will be benefited by paroling the inmate again” and “[i]t does not appear that the 

interests of the Commonwealth will be injured by paroling the inmate again.”). 

In contrast to these provisions, section 6138(a)(2.1) only states that the 

Board “may, in its discretion, award credit. . . .” 61 Pa.C.S. §6138(a)(2.1). Based 

upon its plain language, there are no statutory standards in section 6138(a)(2.1) of the 

Parole Code that define or curtail how, when, or in what manner discretion should or 

must be exercised. It is well-settled that this Court cannot supply such guideposts as 

a matter of judicial construction. Commonwealth v. Rieck Investment Corp., 213 

A.2d 277, 282 (Pa. 1965) (“[I]t is not for the courts to add, by interpretation, to a 

statute, a requirement which the legislature did not see fit to include.”). Ultimately, 

the absence of statutory standards further supports the conclusion that the Board’s 

checking of “no” on the hearing report demonstrates that the Board fully exercised 

the discretion that the legislature afforded to it under section 6138 of the Parole 
12

Code.

10

 Therefore, Pittman’s argument that the Board failed to exercise discretion is 

refuted by the record and the statutory language and scheme contained in section 

6138 of the Parole Code. 

Pittman’s reliance on Gillespie is misplaced. In that case, the 

Department of Transportation (Department) requested a continuance of a license 

suspension appeal because a witness was unavailable to testify. The licensee opposed 

the request, and the trial court denied the continuance on the ground that it was the 

trial court’s standard policy to continue cases only where both parties agreed to the 

request. Consequently, the Department could not proceed with its case, and the trial 

court sustained the licensee’s appeal. 

On appeal to this Court, we concluded that the trial court failed to 

exercise discretion when ruling on the Department’s request for a continuance. We 

initially reiterated that judicial discretion “broadly defined, is the option which a 

judge may exercise either to do or not to do that which is proposed to him.” 886 A.2d 

at 319 (citation omitted). After noting the trial court’s “[b]lind adherence to an 

 

10 See also Heckler v. Chaney, 470 U.S. 821, 830 (1985) (“[I]f the statute is drawn so that a 

court would have no meaningful standard against which to judge the agency’s exercise of discretion 

. . . the statute (‘law’) can be taken to have committed the decision making to the agency’s judgment 

absolutely. . . . [I]f no judicially manageable standards are available for judging how and when an 

agency should exercise its discretion, then it is impossible to evaluate agency action for ‘abuse of 

discretion.’”); Charles H. Koch, Unreviewability in State Administrative Law, 19 J. NAALJ 59, 65-

68 (1999) (“A statute might give total authority to the administrative decision maker so as to leave 

no role for the courts. That is, the statute may not expressly preclude review . . . but may delegate so 

much authority to the agency that there is none left for the courts. . . . The existence of unreviewable 

discretion often derives from the absence of standards by which a court may evaluate the agency 

decision.”). See generally Reider v. Board of Probation and Parole, 514 A.2d 967, 971 (Pa. 

Cmwlth. 1986) (“Because there are so many variables which are impossible for a court to properly 

evaluate . . . we believe that the action of the Board is uniquely one of administrative discretion not 

subject to our review.”). Compare MJM v. MLG, 63 A.3d 331, 335-36 (Pa. Super. 2013) 

(explaining how the statutory language at issue requires a trial court to expressly consider each 

factor enumerated in the statute).
13

established policy,” this Court determined that the trial court “did not exercise its 

discretion at all.” Id. at 319-20. In reaching this conclusion, we emphasized that the 

trial court: 

considered neither the merits of the Department’s request 

nor whether [the licensee] would be prejudiced by a 

continuance. Instead, [the trial court] essentially delegated 

its decision-making function to the attorneys, or, more 

accurately, to [the licensee’s] attorney. We can think of no 

clearer example of an abuse of discretion than abdication of 

the judge’s role to an interested party. 

Id. at 320.

Unlike the trial court in Gillespie, the Board here did not “punt” away its 

duty to exercise discretion in rendering its decision. Instead, the Board was presented 

with a choice and affirmatively chose to deny Pittman credit. In completing the 

hearing report, the Board exercised discretion in deciding “either to do or not do that 

which is proposed to [it],” id. at 319, under section 6138(a)(2.1) of the Parole Code. 

Notably, Pennsylvania law presumes that the Board acted lawfully and utilized its 

discretion in good faith, see Office of Governorv. Donahue, 98 A.3d 1223, 1239 (Pa. 

2014), and Pittman does not contend otherwise. Therefore, because the record 

establishes that the Board exercised discretion, Gillespie is clearly distinguishable on 

its facts. 

Statement of Reasons

Pittman also asserts that the Board erred in failing to state its reasons for 

denying him credit. Pittman points out that he was not convicted of an excludable 

offense under section 6138(a)(2.1)(i) of the Parole Code, 61 Pa.C.S. §6138(a)(2.1)(i), 

and maintains that he deserves an explanation as to why the Board denied him credit.
14

In relevant part, section 6138(a)(2.1) of the Parole Code provides that 

the Board “may, in its discretion, award credit to a parolee recommitted” as a CPV. 

61 Pa.C.S. §6138(a)(2.1). The Board is deprived of this discretion when: “(i) [t]he 

crime committed during the period of parole or while delinquent on parole is a crime 

of violence as defined in 42 Pa.C.S. §9714(g) (relating to sentences for second and 

subsequent offenses) or a crime requiring registration under 42 Pa.C.S. Ch. 97 Subch. 

H (relating to registration of sexual offenders)” or “(ii) [t]he parolee was recommitted 

under section 6143 (relating to early parole of inmates subject to Federal removal 

order).” 61 Pa.C.S. §6138(a)(2.1)(i)-(ii). Pittman is correct that neither of these 

provisions applies to him. 

Nonetheless, pursuant to the plain language of section 6138(a)(2.1) of 

the Parole Code, there is no express requirement that the Board issue a statement of 

reasons for denying credit to a CPV for time spent at liberty on parole. When section 

6138(a)(2.1) is viewed alongside other provisions of the Parole Code, this fact – i.e.,

the absence of a written statement requirement – is extremely significant for purposes 

of statutory interpretation. 

“The cardinal rule of all statutory construction is to ascertain and 

effectuate the intent of the Legislature.” O’Rourke v. Department of Corrections, 778 

A.2d 1194, 1201 (Pa. 2001). To accomplish that goal, “statutory language must be 

read in context, that is, in ascertaining legislative intent, every portion of statutory 

language is to be read together and in conjunction with the remaining statutory 

language, and construed with reference to the entire statute as a whole.” Gaming 

Control Board v. Office of Open Records, 103 A.3d 1276, 1285 (Pa. 2014).

In contrast to section 6138(a)(2.1), sections 6137(b) and 6137(i) of the 

Parole Code explicitly mandate that the Board provide “a written statement of the 
15

reason” for denying a prisoner parole or recommitting a parolee for violating the 

conditions of parole in certain situations. 61 Pa.C.S. §6137(b), (i). The pertinent 

provisions of section 6137 state:

(a) General criteria for parole. 

(1) The board may parole subject to consideration of 

guidelines established under 42 Pa.C.S. §2154.5 (relating to 

adoption of guidelines for parole) . . . . 

* * *

(b) Cases involving deviations from guidelines. -- In each 

case in which the board deviates from the guidelines 

established under 42 Pa.C.S. §2154.5, the board shall 

provide a contemporaneous written statement of the 

reason for the deviation from the guidelines to the 

commission as established under 42 Pa.C.S. §2153(a)(14) 

(relating to powers and duties). The board may develop and 

use internal decisional instruments. This subsection shall 

not be construed to prevent the board from also developing 

forms or other documents, policies and procedures 

consistent with this chapter, including internal decisional 

instruments.

* * *

(h) Power to recommit. 

(1) The board may, during the period for which an inmate 

shall have been sentenced, recommit the inmate. . . . 

* * *

(2) In exercising these powers, the board shall consider any 

applicable recommitment ranges established by the 

commission under 42 Pa.C.S. §2154.6 (relating to adoption 

of recommitment ranges following revocation of parole by 

board).

* * *
16

(i) Cases involving deviations from guidelines. -- In each 

case in which the board deviates from the recommitment 

ranges established under 42 Pa.C.S. §2154.6, the board 

shall provide a contemporaneous written statement of 

the reason for the deviation from the recommitment 

ranges to the commission, as established under 42 Pa.C.S. 

§2153(a)(14).

61 Pa.C.S. §6137(a)(1), (b), (h)(1)-(2), (i) (emphasis supplied). 

The legislature’s intent is clear that where the Board “deviates” from 

guidelines established to determine when an individual may be paroled, “the board 

shall provide a contemporaneous written statement of the reason for the deviation,” 

61 Pa.C.S. §6137(b), and where the Board recommits a parolee for violating the 

conditions of parole and “deviates” from the recommitment ranges established by 

statute, “the board shall provide a contemporaneous written statement of the reason 

for the deviation. . . .” 61 Pa.C.S. §6137(i). This statutory language requiring a 

written statement of reasons is clearly based on the occurrence of a deviation by the 

Board’s action. Such language does not appear anywhere in section 6138 of the 

Parole Code.

Under our rules of statutory construction, “where the legislature includes 

specific language in one section of the statute and excludes it from another, the 

language should not be implied where excluded.” Fonner v. Shandon, Inc., 724 A.2d 

903, 907 (Pa. 1999) (concluding that where one section of a statute had an “unless” 

clause, but the legislature did not include the clause in another section, the “unless” 

clause could not be implied into that section). Indeed, “where a section of a statute 

contains a given provision, the omission of such a provision from a similar section is 

significant to show a different legislative intent.” Fletcher v. Pennsylvania Property 

& Casualty Insurance Guaranty Association, 985 A.2d 678, 684 (Pa. 2009). While 
17

sections 6137(b) and (i) of the Parole Code contain a written statement of reasons 

requirement, section 6138(a)(2.1) of the Parole Code does not. Therefore, we must 

conclude that there is no statutory basis upon which to find or infer that the Board 

must issue a statement of reasons for denying a CPV credit for time spent at liberty 

on parole under section 6138(a)(2.1) of the Parole Code. Accord Torres, slip op. at 9 

n.3 (“We also agree with the Board that there is no requirement in the [Parole Code] 

that the Board explain its reasons for denying a CPV credit for street time under 61 

Pa.C.S. §6138(a)(2.1).”). 

“A court has no power to insert words into statutory provisions where 

the legislature has failed to supply them.” Amendola v. Civil Service Commission of 

Crafton Borough, 589 A.2d 775, 777 (Pa. Cmwlth. 1991). Because this Court lacks 

the authority to insert a legal obligation into a statute (no matter how noble we may 

perceive one to be) where our legislature has not, we decline to impose upon the 

Board a requirement that the Board issue a statement of reasons for denying credit. 

This is especially true considering that in the section immediately preceding section 

6138(a)(2.1), the legislature expressly provided two separate instances where the 

Board must issue a statement of reasons. In this context, we cannot, under the guise 

of judicial construction, take it upon ourselves to include a requirement that the 

legislature was entirely familiar with and could have easily inserted into section 

6138(a)(2.1), but did not do so. See Commonwealth ex rel. Cartwright v. Cartwright, 

40 A.2d 30, 33 (Pa. 1944) (“[T]he court cannot, under its powers of construction, 

supply omissions in a statute, especially where it appears that the matter may have 

been intentionally omitted. It makes no difference that the omission resulted from 

inadvertence, or because the case in question was not foreseen or contemplated”). To 
18

the contrary, this Court must presume that the omission was intentional. See 

Fletcher, 985 A.2d at 684; Fonner, 724 A.2d at 907.11 

 

11 The Dissent reiterates the legislative addition of section 6138(a)(2.1) concerning the 

Board’s discretion to award credit to a parolee for the time spent at liberty on parole, subject to 

noted exceptions. We have already addressed and disposed of this change under necessary statutory 

construction principles to which the judiciary must adhere in interpreting statutory law. However, 

the Dissent does not address these principles. Rather, due to differences in statutory language, the 

Dissent’s reliance on Commonwealth v. Artis, 439 A.2d 1199 (Pa. Super. 1982), and section 9721 of 

the Sentencing Code, 42 Pa.C.S. §9721, is severely misplaced. For instance, section 9721(a) of the 

Sentencing Code mandates that in determining the sentence to be imposed, a trial court “shall, 

except as provided in subsection (a.1), consider and select one or more” of seven enumerated 

sentencing alternatives, 42 Pa.C.S. §9721(a) (emphasis added), which are listed in sections 9722 

through 9725 of the Sentencing Code. 42 Pa.C.S. §§9722—25. Similarly, section 9721(b) of the 

Sentencing Code provides that “the court shall make as a part of the record, and disclose in open 

court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.” 

42 Pa.C.S. §9721(b) (emphasis added). As explained above, there is no such language in section 

6138(a)(2.1) of the Parole Code and we cannot insert it as a matter of judicial fiat. 

Instead, the Dissent would insert a requirement where none was expressed by the legislature 

and, moreover, where it is necessarily excluded by application of standard statutory construction 

principles. The Dissent cites two unpublished memorandum, Sampson v. Pennsylvania Board of 

Probation and Parole (Pa. Cmwth., No. 1107 C.D. 2014, filed March 25, 2015) (unreported), slip 

op. at 6, and Torres, slip op. at 9 n.3, for the idea that “[a] one sentence explanation for the Board’s 

denial of credit can be sufficient, and the Board knows how to do this.” (Dissent op. at 4.) 

However, there is no statutory or legal basis for the Dissent’s ipse dixit statement, and neither 

Sampson nor Torres supports the proposition that the Board must state reasons for denying credit. 

Further, the Board’s notations in those cases, “DV – assaulted wife” and “Conviction in court of 

record established,” do not set forth any workable standard upon which to assess the Board’s 

exercise of discretion for an abuse thereof. In essence, the Board’s notations do nothing more than 

confirm that the parolee is a CPV, which is a fact that is already assumed for purposes of section 

6138(a)(2) and (2.1). In the end, the Board’s notations effectively amount to no explanation at all, 

and the Dissent’s attempt to fashion what it believes to be a “sufficient explanation” only highlights 

the need for express legislative standards, which are lacking here. 

 Significantly, in addition to the above, the Dissent overlooks the waiver of a hearing by 

Pittman, his guilty plea, and the lack of any request for credit in this case.

Finally, the Dissent references a law review article, Stewart Greenleaf, Essay, Prison 

Reform in the Pennsylvania Legislature, 160 U. PA. L. REV 179 (2011), for the proposition that

(Footnote continued on next page...)
19

Moreover, even if we imported the statutory obligations from sections

6137(b) and (i) of the Parole Code into section 6138(a)(2.1), and found that the Board 

must issue a statement of reasons, such a requirement would only apply when the 

Board “deviates” from the statutory norm. See 61 Pa.C.S. §6137(b) and (i). 

Here, the statutory norm is set forth in section 6138(a)(2) of the Parole 

Code, which states as the norm that credit “shall” not be provided to a CPV. See 61 

Pa.C.S. §6138(a)(2) (“[T]he parolee 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.”). 

Importantly, this provision was retained, not revised, when the legislature later added 

section 6138(a)(2.1) of the Parole Code in 2012. 

Section 6138(a)(2.1) of the Parole Code now affords the Board 

discretion to award credit in certain cases. See 61 Pa.C.S. §6138(a)(2.1). Following 

the structure of sections 6137(b) and (i) of the Parole Code, if a statutory requirement 

were superimposed on the Board to issue a statement of reasons, we would conclude 

that this requirement is only applicable when the Board departs from the presumptive 

norm and awards a CPV credit under section 6138(a)(2.1) of the Parole Code. See 61 

 

(continued...)

section 6138(a)(2.1) of the Parole Code “was enacted to make the state’s corrections system more 

efficient by keeping low-risk cases out of prison in favor of less expensive and more effective 

sentencing.” (Dissent op. at 2.) The article is a thorough and insightful exposition on prison 

reform, effective sentencing and rehabilitation alternatives such as county probation programs, 

expanding risk assessment, safe community reentry programs, and alternative sentencing programs. 

While there is a footnote referencing section 6138(c)(5) of the Parole Code, 61 Pa.C.S. 

§6138(c)(5)(iv), which states that technical “parole violators shall be supervised in accordance 

with evidence–based practices that may include . . . [u]se of a graduated violation sanctioning 

process,” 61 Pa.C.S. §6138(c)(5)(iv), there is no mention of section 6138 (a)(2.1) or implication that 

credit must be awarded for convicted parole violators for time spent at liberty on parole.
20

Pa.C.S. §6138(b), (i). Because the Board did not award Pittman credit in this case, 

the Board was not legally obligated to issue a statement of reasons.

Finally, we note that even if the Board were required to issue a statement 

as to why it denied credit, that obligation would not be triggered unless a prisoner 

requested the Board for credit and provided the Board with reasons for awarding 

credit. Indeed, the Board would have no basis to issue an award of credit, or, in other 

words, to deviate from the norm, unless or until the prisoner provides reasons 

supporting an award of credit

Here, Pittman waived his revocation hearing, and he did not request 

another hearing or utilize an informal process through which he could inform the 

Board why he is entitled to an award of credit. Notably, Pittman does not contend 

that the Board erroneously denied him credit based on the documentation that the 

Board has in its possession. Indeed, Pittman does not make any argument that his 

particular facts and circumstances support an award of credit for time spent on parole. 

Given these circumstances, we would conclude that the Board was not legally 

required to provide Pittman with a statement of reasons for denying him credit for 

time spent at liberty on parole.

12

 

12 We note that Pittman does not assert that procedural due process requires the Board to 

issue a statement of reasons. 

In any event, the Fourteenth Amendment to the United States Constitution provides, in 

relevant part, that no “State [shall] deprive any person of life, liberty, or property, without due 

process of law.” U.S. Const. amend. XIV, §1. To maintain a due process challenge, a party must 

initially establish the deprivation of a protected liberty or property interest. Miller v. Workers’ 

Compensation Appeal Board (Pavex, Inc.), 918 A.2d 809, 812 (Pa. Cmwlth. 2007). Only after the 

party establishes the deprivation of a protected interest will we consider what method of due process 

is required. Id. 

(Footnote continued on next page...)
21

Conclusion

Because the record demonstrates that the Board exercised discretion in 

denying Pittman, a CPV, credit for time he spent at liberty on parole, and having 

concluded that the Board was not required to issue a statement of reasons for its 

decision, in this matter, we discern no basis upon which to upset the Board’s order. 

This Court does not find, however, that it would be unreasonable for the legislature to 

impose an additional requirement upon the Board and require the Board to issue a 

statement of reasons as to why it denied credit. Nor do we find that compliance with 

such a requirement would be onerous to the Board. However, applying well-settled 

principles of statutory construction, we must conclude that it is incumbent upon the 

legislature to explicitly impose such a requirement if it be their intent. Accordingly, 

we affirm.

________________________________

PATRICIA A. McCULLOUGH, Judge

 

(continued...)

Here, Pittman has no constitutionally protected liberty interest in receiving credit for time 

spent on parole. See Young v. Board of Probation and Parole, 409 A.2d 843, 847-48 (Pa. 1979);

Tubbs v. Board of Probation and Parole, 620 A.2d 584, 585-86 (Pa. Cmwlth. 1993); Thompson v. 

Cockrell, 263 F.3d 423, 426 (5th Cir. 2001); Dews v. Waldern, 590 F.Supp.2d 42, 44 (D.D.C. 

2008). Neither does Pittman have a protected property interest under state law. “When an 

individual alleges a protected property interest in the receipt of a state created benefit, the individual 

must establish more than a mere expectation to it; the individual must demonstrate an actual 

entitlement to it.” Miller, 918 A.2d at 812. Under section 6138(a)(2.1) of the Parole Code, credit 

for time served on parole is at the Board’s sole discretion (“may, in its discretion”). See Kentucky 

Department of Corrections v. Thompson, 490 U.S. 454, 464-65 (1989); Frey v. Fulcomer, 132 F.3d 

916, 925 n.7 (3d Cir. 1997).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin Pittman, :

Petitioner :

: No. 978 C.D. 2014

v. :

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

ORDER

AND NOW, this 8

th day of January, 2016, the May 29, 2014 order of 

the Pennsylvania Board of Probation and Parole is affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin Pittman, :

Petitioner :

:

v. : No. 978 C.D. 2014

: Argued: October 7, 2015

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

DISSENTING OPINION BY

PRESIDENT JUDGE PELLEGRINI FILED: January 8, 2016

Until 2012, Section 6138(a) of the Prisons and Parole Code (Parole 

Code), 61 Pa. C.S. §6138(a), required that when a parolee was recommitted as a 

convicted parole violator, no matter what the nature of the crime, the parolee did not 

receive credit for the time that he or she spent at liberty on parole. However, in 2012, 

the Parole Code was changed by adding Section 6138(a)(2.1), 61 Pa. C.S. 

§6138(a)(2.1), to give the Board of Probation and Parole (Board) the power to grant 

credit for the time spent at “liberty on parole” against a parolee’s maximum sentence. 

Section 6138(a)(2.1)(i) provides, in pertinent part:

The board may, in its discretion, award credit to a 

parolee recommitted ... for the time spent at liberty on 

parole, unless any of the following apply:
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(i) The crime committed during the period of parole 

or while delinquent on parole is a crime of violence as 

defined in 42 Pa. C.S. §9714(g) (relating to sentences for 

second and subsequent offenses) or a crime requiring 

registration under 42 Pa. C.S. Ch. 97 Subch. H (relating to 

registration of sexual offenders). (Emphasis added).

This was one of the changes made by the Act of July 5, 2012, P.L. 1050 

(Act 122) that was enacted to make the state’s corrections system more efficient by

keeping low-risk cases out of prison in favor of less expensive and more effective

sentencing. See Stewart Greenleaf, Essay, Prison Reform in the Pennsylvania

Legislature, 160 U. PA. L. REV 179 (2011).

The central issue in this case is whether, at a minimum, the Board has to 

show that it exercised discretion when it denied or, for that matter, granted a parolee 

credit for time spent at liberty on parole against his or her sentence by giving some 

reason why it granted or denied such credit. In this case, the Board’s recommitment 

decision gave no reason whatsoever, and its later decision denying Pittman’s request 

for administrative relief merely stated that “as a convicted parole violator you 

automatically forfeited credit for all the time that you spent on parole.” (Board 

6/20/14 Decision).

In the criminal context, because it will result in a loss of liberty, it has 

been held that a sentencing court’s failure to exercise its discretion by considering the 

factors set forth in Section 9721(b) of the Sentencing Code, 42 Pa. C.S. §9721(b), or 

the factors mandated by Sections 9722 through 9725, 42 Pa. C.S. §§9722-9725, 

constitutes reversible error requiring the vacation of sentence and remand for resentencing. See Commonwealth v. Artis, 439 A.2d 1199, 1203 (Pa. Super. 1982). We 
DRP - 3

have also held that a trial court’s failure to exercise any discretion in and of itself 

constitutes an abuse of discretion. Gillespie v. Department of Transportation, Bureau 

of Driver Licensing, 886 A.2d 317, 319-20 (Pa. Cmwlth. 2005). I believe that the 

Board violated Section 6138(a)(2.1) of the Parole Code by not giving any reasons for 

denying Pittman credit for the time that he was at liberty on parole in its 

recommitment decision and for denying his request for administrative relief because 

it found that he was ineligible for credit based solely on his status as a convicted 

parole violator.

I would hold that 61 Pa. C.S. §6138(a)(2.1) requires the Board to give a 

reason as to how it exercised its discretion to grant or deny a parolee credit against his 

original sentence for time spent at liberty on parole. First, the parolee would be 

informed that the issue was considered by the Board as required by the Parole Code 

and, just as important, that the Board has complied with the legislative mandate to 

exercise its discretion. Second, by requiring the Board to explain why it denied or 

granted credit for time spent at liberty on parole allows the public and the legislature 

to see how the Board exercises its discretion and carries out its discretion to grant 

such credit.

The reason that the Board gives does not have to be expansive. A one 

sentence explanation for the Board’s denial of credit can be sufficient, and the Board 

knows how to do this. See, e.g., Sampson v. Pennsylvania Board of Probation and 

Parole (Pa. Cmwth., No. 1107 C.D. 2014, filed March 25, 2015), at 6 (Hearing 

Report contained handwritten notation of “DV – assaulted wife” beneath the 

checkbox); Torres v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 
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1009 C.D. 2014, filed April 10, 2015), at 9 n.3 (Board indicated as a reason for 

denying credit “Conviction in court of record established.”).

Moreover, the need for the Board to give a reason for its decision is 

exemplified here because, in denying administrative relief, the Board stated that 

Pittman was not eligible for credit for the time that he had spent at liberty on parole 

only because he was a convicted parole violator. That may have been law before the 

2012 amendments to the Parole Code, but it was not the law when the Board denied 

credit in this case following the enactment of Act 122. It appears here that Pittman 

was not given credit solely because the Board did not realize that the Parole Code had 

been amended by Act 122 thereby allowing for certain convicted parole violators to 

be granted such credit. This constitutes both an error of law and an abuse of 

discretion because the Board failed to exercise its discretion as now required by the 

Parole Code and requires this Court to vacate the Board’s decision and remand for 

reconsideration.1

 

1 As the Supreme Court has explained:

“Abuse of discretion” is synonymous with a failure to exercise a 

sound, reasonable, and legal discretion. It is a strict legal term 

indicating that [an] appellate court is of [the] opinion that there was 

commission of an error of law by the trial court. It does not imply 

intentional wrong or bad faith, or misconduct, nor any reflection on 

the judge but means the clearly erroneous conclusion and judgment—

one that is clearly against logic and effect of such facts as are 

presented in support of the application or against the reasonable and 

probable deductions to be drawn from the facts disclosed upon the 

hearing; an improvident exercise of discretion; an error of law.

Commonwealth v. Powell, 590 A.2d 1240, 1244 n.8 (Pa. 1991) (citation omitted).
DRP - 5

Accordingly, I respectfully dissent.

_________________________________

DAN PELLEGRINI, President Judge

Judge Leavitt joins in this dissenting opinion.