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decided: October 17, 1979.


Original jurisdiction in case of Thomas Pierce v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.


Barry H. Denker, with him Mary McNeill Greenwell, for petitioner.

Stephen J. Mascherino, Assistant Attorney General, with him 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 Judge MacPhail.

Author: Macphail

[ 46 Pa. Commw. Page 508]

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)

[ 46 Pa. Commw. Page 509]

    which revoked his parole on December 7, 1978. The Board filed an answer with new matter. Petitioner's reply to the new matter admits that he was convicted of the following crimes: (1) aggravated robbery on November 4, 1968; (2) burglary, larceny, conspiracy and receiving stolen property on December 18, 1968; (3) a firearms violation on September 6, 1972; (4) bank robbery on January 15, 1973; and (5) a firearms violation on April 4, 1973. In its pleadings the Board admits that Petitioner's revocation hearing was held before only three of the five Board members and does not deny Petitioner's averment that there was no testimony presented before the Board of Petitioner's prior criminal activities, but denies Petitioner's averment that he requested a hearing before the "entire Board" as distinguished from the "full Board." In response to Petitioner's averment that the Board did not consider evidence of his rehabilitation presented at the hearing, the Chairman of the Board, Fred W. Jacobs, has filed an affidavit stating that he and the other two members of the Board did consider this evidence. The Board has filed a motion for judgment on the pleadings which has been submitted to us on briefs.

Petitioner's Petition for Review states the following objections to the Board's order:*fn1 (1) Petitioner's parole revocation hearing before only three of the five Board members did not comply with his request for a full Board hearing and thus deprived him of due process; (2) the Board did not consider evidence of Petitioner's rehabilitation during the six and one-half

[ 46 Pa. Commw. Page 510]

    years that he served in federal prison following his criminal activities; (3) no evidence was presented at the revocation hearing of the pattern of serious crimes on which the Board based its decision; and (4) the Board abused its discretion and subjected Petitioner to cruel and unusual punishment by scheduling his parole for review in October of 1980. In this motion for judgment on the pleadings we must bear in mind that the Board admits the truth of Petitioner's averments and the untruth of any of its own averments which Petitioner has denied. Tate v. Pennsylvania Board of Probation and Parole, 40 Pa. Commonwealth Ct. 4, 396 A.2d 482 (1979).

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. ยง 331.4, authorizes a majority of the Board to revoke the parole of any person.*fn2 We fail to see how any of Petitioner's constitutional rights are violated by the mandate of the statute. Our Supreme Court in the Rambeau case held that a hearing before a third party designated by the Board or before just one member of the Board violated the Parolee's constitutional right to due process of law. In the instant case, three members of the Board heard the case as provided by law. We hold that a hearing before a quorum of the Board satisfies due process requirements. In any event, we may not declare Section 4 unconstitutional unless it clearly, palpably and plainly violates the constitution.

[ 46 Pa. Commw. Page 511]

    no evidence of a pattern of serious crimes presented at his revocation hearing raise genuine issues of material fact. We have already dealt with the substance of those issues and we now hold that, viewing the pleadings as a whole, there is no issue of disputed fact to be resolved. Petitioner also contends that his denial of two allegations in the Board's "New Matter" constitutes a genuine issue of material fact barring judgment on the pleadings. Here we need only observe that it is only dispute as to material issues of fact which bar summary judgments. The facts disputed by the Petitioner simply are not material to any of the critical issues raised by Petitioner in his petition for relief. To put it another way, if these disputed issues were resolved in Petitioner's favor, he would be denined relief, nevertheless. Finally, Petitioner disputes the Board's calculations of "backtime" but since the Petition for Review did not raise the issue of "backtime" (see footnote 1) we must hold again that the dispute does not concern a material fact.


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.


Motion granted.

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