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CHARMAINE GRUBBS v. COMMONWEALTH PENNSYLVANIA (10/12/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 12, 1984.

CHARMAINE GRUBBS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT

Appeal from the Order of the Pennsylvania Board of Probation and Parole in case of Charmaine Grubbs v. Pennsylvania Board of Probation and Parole.

COUNSEL

Jayne Shinko, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 85 Pa. Commw. Page 465]

Petitioner has moved this Court to strike certain documents*fn1 from the record filed with the Court in conjunction with her appeal from an order by the Board of Probation and Parole (Board) denying her administrative relief. The specific documents which are the object of Petitioner's motion were not offered into evidence in the course of the administrative hearing. The record indicates that the Board's only witness at the administrative hearing was a parole

[ 85 Pa. Commw. Page 466]

    supervisor who was testifying from the Petitioner's parole agent's report. Timely objection was made to this testimony.

The Board resists the motion now before us on the grounds that such documentation is unnecessary to give this Court a complete record, that the documents are a part of the proceedings admissible under Pa. R.A.P. 1951(a) and that the documents are not prejudicial to the Petitioner.

It is true that this Court does insist upon a complete record in every case but the Court expects that the record will be developed at the administrative hearing, not at the appellate level. For the same reason, we do not believe the documents constitute a part of the "proceedings" within the meaning of that term as used in Pa. R.A.P. 1951(a). There was not even an evidentiary reference to Form PBPP-39 in the record of this case. While there were evidentiary references to the other documents, no effort was made to admit them as part of the record. It should be well established by now that neither the Board in its decision making process, nor this Court in a review of that process, may consider any matters not made a part of the record when counsel and the litigants are present. Whether or not such matters would be prejudicial to the Petitioner is irrelevant. They simply cannot be considered.

Proper provision is made in Pa. R.A.P. 1951(b) for steps to be followed where the Board or the Petitioner wish to supplement the record. This process was not followed by the Board in the instant case.

The Petitioner is entitled to have her case decided upon the record made in her presence. The motion to strike is sustained and the Chief Clerk is directed to extract the protested items from the file under review and return them to the Board.

[ 85 Pa. Commw. Page 467]

Order

The motion of Charmaine Grubbs to strike certain documents from the record is sustained. It is ordered that the Chief Clerk shall extract those matters appearing at pages 11-13, 38-48 and 58-61 from the file under review and return them to the Board.

Disposition

Motion sustained. Items ordered removed.


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