(Emphasis added.) Lyness next contends that his acquittal of criminal charges collaterally estopped the Board from imposing discipline with respect to Count I. Lyness cites two cases in support of this proposition, Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983), and Boswell v. Pennsylvania Board of Probation and Parole, 98 Pa. Commw. 386, 512 A.2d 66 (1986). These cases held that collateral estoppel barred the Pennsylvania Board of Probation and Parole from revoking probation or recommitting a parolee, respectively, as a result of conduct which had been basis of a criminal charge, where the individual was acquitted of the criminal charge.
(C.R. at 119, R.R. at 124a.) Cherry argues that the Board's decision cannot be sustained on this ground because under Boswell v. Pennsylvania Board of Probation and Parole, 512 A.2d 66 (Pa. Cmwlth. 1986), his acquittal of the firearms charge barred the Board from finding that he was in possession of a firearm. The mere fact that a parolee was acquitted of a criminal charge does not bar the Board from basing parole revocation decisions on the same conduct that was at issue in the criminal trial.
(Petition for Review ¶¶ 2, 10-11.) However, many of these issues have been addressed and rejected as being without merit or waived for not being raised before the Board in the first instance. See, e.g., Young v. Pa. Bd. of Prob. and Parole, 409 A.2d 843, 847 n.8 (Pa. 1979); Rivenbark v. Pa. Bd. of Prob. and Parole, 501 A.2d 1110, 1112-13 (Pa. 1985); Gaito, 412 A.2d at 570-71; Malarik v. Pa. Bd. of Prob. and Parole, 25 A.3d 468, 469 (Pa. Cmwlth. 2011); Richards v. Pa. Bd. of Prob. and Parole, 20 A.3d 596, 598-600 (Pa. Cmwlth. 2011); White v. Pa. Bd. of Prob. and Parole, 833 A.2d 819, 821 (Pa. Cmwlth. 2003); Torres v. Pa. Bd. of Prob. and Parole, 765 A.2d 418, 423 (Pa. Cmwlth. 2000); Boswell v. Pa. Bd. of Prob. and Parole, 512 A.2d 66, 68-70 (Pa. Cmwlth. 1986); U.S. v. Cavell, 425 F.2d 1350, 1352 (3d Cir. 1970). Thus, it is understandable why Counsel did not include them in the Amended Petition for Review filed on Edwards' behalf.
However, this issue actually involves the doctrines of res judicata and collateral estoppel, and not subject matter jurisdiction. Boswell v. Pennsylvania Board of Probation and Parole, 512 A.2d 66 (Pa. Cmwlth. 1986) (holding that the Board was collaterally estopped from revoking parole, where a criminal jury found the parolee not guilty of the underlying charges). Unlike subject matter jurisdiction, the issues of res judicata and collateral estoppel may be waived.
Nickens. Collateral estoppel was applied to a violation hearing in Boswell v. Pennsylvania Board of Probation and Parole, 98 Pa. Commw. 386, 512 A.2d 66 (1986); however, that case is limited to its narrow factual situation. IV.
There, a parolee cannot be recommitted as a technical parole violator for conduct which was the subject of the criminal charges because the fact finder would have had to find that he was not present at the crime scene. Boswell v. Pennsylvania Board of Probation and Parole, 98 Pa. Commw. 386, 512 A.2d 66 (1986). Here, a demurrer was entered as to the sufficiency of evidence.