noting that this Court "may not review questions that were never raised”
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- noting that this Court "may not review questions that were never raised”
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The opinion
DISSENTING OPINION BY
Judge PELLEGRINI.
Because it is undisputed that Zori V. Barna, Jr. (Petitioner) was recommitted as a convicted parole violator solely for the accidental and fortuitous reason that he was tried before a common pleas judge rather than a magisterial district judge, the Pennsylvania Board of Probation and Parole’s (Board) decision to recommit him as a convicted parole violator was a violation of Petitioner’s equal protection rights. For that reason, I respectfully dissent.
Petitioner was recommitted as a convicted parole violator on the basis that Judge William R. Carpenter of the Court of Common Pleas of Montgomery County had found Petitioner guilty of harassment, a summary offense, following a bench trial before him. This case was tried before a common pleas judge only because Petitioner had also been charged with simple assault, a misdemeanor, but this charge had been dropped prior to trial. If Petitioner had only been charged originally with harassment, he would have been tried before a magisterial district judge. Had Petitioner been tried before a magisterial district judge or had Judge Carpenter acted in the capacity of a magisterial district judge, he could not have been recommitted as a convicted parole violator.
Section 21.1a(a) of the Parole Act 1 provides that the Board may recommit a parolee as a convicted parole violator only if the crime at issue is punishable by imprisonment and the conviction occurs in a court of record. A common pleas court is a court of record, while a proceeding before a magisterial district judge is not. A judge on a common pleas court may sit as a magisterial district judge, in which ease the common pleas court is not a court of record. See Goodwine v. Pennsylvania Board of Probation and Parole, 960 A.2d 184 (Pa.Cmwlth.2008); Jackson v. Pennsylvania Board of Probation and Parole, 951 A.2d 1238 (Pa.Cmwlth.2008).
Our holding and rationale in Goodwine is particularly instructive in this case. In Goodwine , the issue was whether a common pleas judge may choose to sit as a magisterial district judge without the ex *374 press permission of the president judge of his court. In holding that a common pleas judge may decide on his own to sit as a magisterial district judge, we explained:
Because judges have the inherent power to sit as district justices for a criminal matter, once misdemeanor and felony charges have been resolved, common pleas judges can then sit as district justices in disposing of the remaining summary charges, [citations omitted] To hold otherwise would raise serious constitutional questions of due process and equal protection involving a liberty interest because it would mean that a parolee found guilty of a summary offense by a common pleas judge would lose years of street time while a parolee found guilty by a district justice would not.
Id. at 188 . This rationale applies equally to situations, such as the present one, where a common pleas judge either is not asked or does not choose to sit as a magisterial district judge because the identical irrational result follows. Otherwise, one parolee convicted of a summary offense, solely by virtue of having his case heard before a common pleas judge, would be recommitted as a convicted parole violator and lose street time, while another parolee, convicted of the same summary offense but who has his case heard before a magisterial district judge, would not.
As such, equal protection requires that in all cases in which a parolee is convicted of only a summary offense, whether before a magisterial district judge or a common pleas judge, that conviction alone cannot serve as a sufficient basis to recommit a parolee as a convicted parole violator. For that reason, I would reverse the decision of the Board.
. Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.21a(a). This section, which governs Petitioner’s case, was subsequently repealed by Section 11(b) of the Act of August 11, 2009, P.L. 147. Similar language is now codified at 61 Pa.C.S. § 6138(a)(1).