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ROBERT BARLIP v. COMMONWEALTH PENNSYLVANIA (09/06/79)

decided: September 6, 1979.

ROBERT BARLIP, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of Robert Barlip v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Thomas A. Wallitsch, Public Defender, and James T. Huber, Assistant Public Defender, for petitioner.

Robert A. Greevy, Assistant Attorney General, and Edward G. Biester, Jr., Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by President Judge Bowman.

Author: Bowman

[ 45 Pa. Commw. Page 459]

By a petition for review in the nature of a complaint in mandamus against the Pennsylvania Board of Probation and Parole (Board) petitioner would have this Court strike down a special condition of his parole which prohibits him from contacting a social agency concerning his children without prior permission of his parole agent. He asserts that imposition by the Board of this special condition of parole is beyond

[ 45 Pa. Commw. Page 460]

    its statutory authority and unconstitutionally impairs his right of free speech and association.

After the pleadings were closed the Board moved for summary judgment, Pa. R.C.P. No. 1035, with supporting affidavits, one by a Board member who interviewed petitioner with respect to his parole application, considered his case file and recommended that this special condition, among others, be imposed.

There are no material facts in dispute. On May 23, 1977, petitioner was sentenced to a term of six months to two and one-half years for the offense of terroristic threats and recklessly endangering another person; effective date September 28, 1977; minimum expiration date March 28, 1978; maximum expiration date March 28, 1980. Several months later on July 25, 1977, petitioner was sentenced to a term of four to twelve months for driving under the influence of alcoholic beverages to be served concurrently with the former sentence.

Petitioner was paroled May 28, 1978, subject to the contested special condition and others including a prohibition against the use of intoxicants. Thereafter, he petitioned the Board to delete this special condition, which it refused to do. Hence this suit.

The record consists of the pleadings, the Board's motion for summary judgment and supporting affidavits. Wanting is any averment that petitioner ever sought permission of his parole agent to contact the social service agency in question or that if permission was sought it would be perfunctorily refused. The record does disclose that incident to considering petitioner's parole application his case file revealed a prior history of disruptive and disturbing behavior on petitioner's part when in contact with a number of public offices and ...


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