Appeal from the Order of the Pennsylvania Board of Probation and Parole in case of Israel LaBoy v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, dated October 23, 1981.
Timothy P. Wile, Assistant Public Defender, for petitioner.
Arthur R. Thomas, Chief Counsel, with him Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.
Israel LaBoy appeals from an order of the Pennsylvania Board of Probation and Parole recommitting him to prison for thirty months*fn1 as a technical parole violator.
In LaBoy v. Pennsylvania Board of Probation and Parole, 74 Pa. Commonwealth Ct. 332, 459 A.2d 916 (1983), we remanded this case for a transcript to determine if, after Mr. LaBoy waived his right to a
hearing by a quorum of the board, the hearing examiner readvised Mr. LaBoy of his right to be heard by a board quorum, as required by 37 Pa. Code § 71.2(14)(ii).*fn2 The transcript, as received, reveals that the hearing examiner did not reiterate the required advice to him at the time of the single-examiner hearing.
Where the board has not complied with its own regulations, the remedy, in a case such as this, is to remand for a proper hearing, just as we have done where there has been a constitutional deprivation of due process, Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973) (upholding the constitutional right of a convicted parolee to a revocation hearing and counsel, and, after failure of the board to afford the parolee those rights, remanding for a new revocation hearing).
Accordingly, we vacate the decision of the board recommitting Mr. LaBoy to thirty months in prison and order the board to convene a hearing before a quorum of the board for the purpose of determining if it should recommit Mr. LaBoy as a technical parole violator and, if so, the amount of time he should serve.*fn3
Now, September 7, 1983, we vacate the order of the Pennsylvania Board of Probation and Parole recommitting Mr. LaBoy to thirty months in prison and remand this case to the board with the order that it convene a hearing before a quorum of the board for the purpose of determining if Mr. LaBoy should be ...