46 Pa. Commw. 507 | Pa. Commw. Ct. | 1979
Opinion by
On January 18, 1979, Thomas Pierce (Petitioner) filed with us a Petition for Review of the order of the Pennsylvania Board of Probation and Parole (Board)
Petitioner’s Petition for Review states the following objections to the Board’s order:
Admittedly, there is some language in Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), and Commonwealth ex rel. Powell v. Aytch, 10 Pa. Commonwealth Ct. 218, 309 A.2d 734 (1973), which could lead one to believe that all five members of the Board must be present for a revocation hearing. However, we hold that such language was dicta only and not binding on us in the present case. Section 4 of the Act of August 6,1941 (Act), P.L. 861, as amended, 61 P.S. §331.4, authorizes a majority of the Board to revoke the parole of any person.
We are not disposed to inquire whether the Board considered the evidence of Petitioner’s rehabilitation which was before it in reaching its decision in the absence of something more than a bare allegation that the Board did not consider the evidence. Although the order of the Board does not indicate whether the Board considered this evidence, we are satisfied by the Chairman’s affidavit stating that it did. See K. Davis, Administrative Law op the Seventies, §§11.00, 11.04 (1976).
Since no record was made of Petitioner’s revocation hearing, we cannot determine whether the Board had any evidence of criminal activity before it on which to base its decision. However, we need not decide whether it was proper for the Board to officially notice public records of Petitioner’s convictions. See 42 Pa. C.S. §6103 et seq. Since Petitioner admits these convictions in his answer to the Board’s new matter, we hold that if the Board erred in this regard, it was harmless error.
Section 11 of the Act, 61 P.S. §331.22, is a complete answer to Petitioner’s claim that he was harmed by the Board’s decision not to review his case sua sponte until October of 1980. Section 11 places no restrictions on Petitioner’s right to apply for parole in the interim and imposes a duty on the Board to consider such applications.
There remains the question of whether the Board’s motion can be granted in view of alleged disputes over material issues of fact raised by the pleadings. Specifically, Petitioner argues that the Board’s denial of his averment that the Board failed to take into consideration his institutional adjustment and the Board’s failure to deny his averment that there was
Order
And Now, this 17th day of October, 1979, the motion of the Pennsylvania Board of Probation and Parole for judgment on the pleadings is granted.
In his brief Petitioner raises additional objections, including a claim that he is entitled to receive credit for time spent in prison because of the Board’s detainer and for time spent on parole in good standing. The Board’s brief does not address these objections and neither shall we, since they were neither included in the stated objections in the Petition for Review nor fairly comprised therein. Pa. R.A.P. 1513(a).
37 Pa. Code §71.4(9) requires no more.