Appeal from the Decision of the Pennsylvania Board of Probation and Parole in the matter of the requested parole of Charles LaCamera.
Thomas J. Dempsey, with him Luke and Dempsey, for appellant.
J. Andrew Smyser, Deputy Attorney General, with him Israel Packel, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Judge Crumlish dissents.
The decisive issue of this case is whether there is a right of appeal to a court of record from a denial of parole by the Pennsylvania Board of Probation and Parole.
Charles LaCamera was convicted of three separate counts of poolselling and bookmaking and sentenced to pay a fine of $500.00 and undergo imprisonment for a period of not less than six months nor more than three years on each of the three counts, the jail terms to run consecutively. On June 7, 1972, the approximate date of the expiration of LaCamera's minimum sentence of
[ 13 Pa. Commw. Page 8718]
months, the Board of Probation and Parole refused LaCamera a parole "because of consistent record of arrests, and other reasons based upon consideration of factors prescribed in section 19 of the Parole Act." On review on May 24, 1973, the Board of Probation and Parole again refused parole, ascribing the same reasons as it had previously and adding the information that "the Board feels you should serve your sentence in its entirety."
LaCamera has lodged an appeal from the Board's action. The Board of Probation and Parole has moved to quash.
Able counsel for LaCamera who has graciously accepted and vigorously pursued our appointment to represent the appellant, contends that Article V, Section 9 of the Pennsylvania Constitution,*fn1 adopted April 23, 1968, guarantees the right of appeal from an administrative agency*fn2 and that, if the constitutional provision does not confer the right of appeal without legislative implementation, Section 403(1) of the Appellate Court Jurisdiction Act of 1970, granting exclusive jurisdiction to the Commonwealth Court of appeals from final orders of administrative agencies under the Administrative Agency Law "or otherwise," is such implementation. Act of July 31, 1970, P.L. 673, 17 P.S. § 211.403(1). He thus argues that we should overrule our holding in Manheim Township Page 88} School District v. State Board of Education, 1 Pa. Commonwealth Ct. 627, 276 A.2d 561 (1971), and adopt the views expressed in that case by Judges Manderino and Crumlish, dissenting.
In Manheim we declared (1) on the authority of Smethport Area School District v. Bowers, 440 Pa. 310, 269 A.2d 712 (1970), that Article V, Section 9 is not self executing and requires legislative implementation, (2) that as concerns appeals from state administrative agencies the legislative implementation was the Act of December 2, 1968, P.L. 1135 (No. 354), 71 P.S. § 1710.47 which provides that where an Act declares that there shall be no appeal from an adjudication of an administrative agency or that such an adjudication shall be final, conclusive or not subject to review or where an Act is silent on the matter of review, a person aggrieved may appeal as provided by the Administrative Agency Law, and (3) that an action of the State Board of Education relating to the change of ...