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ELLIS BARNHOUSE v. COMMONWEALTH PENNSYLVANIA (05/24/85)

decided: May 24, 1985.

ELLIS BARNHOUSE, 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 the case of Ellis Barnhouse, No. M-85441, Parole No. 5868R, dated September 17, 1984.

COUNSEL

A. Charles Peruto, with him, Burton A. Rose, Peruto, Ryan & Vitullo, for petitioner.

Robert A. Greevy, Chief Counsel, with him, Arthur R. Thomas, Assistant Chief Counsel, for respondent.

Judges Craig and Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 89 Pa. Commw. Page 513]

Ellis Barnhouse appeals from the denial of parole by the Pennsylvania Board of Probation and Parole.

We must determine whether the board's refusal to grant petitioner parole is unconstitutional because it amounts to coerced self-incrimination, where the parole board twice has considered and refused parole to the petitioner because of his lack of cooperation in disclosing additional industrial waste locations. We must also determine whether the board abused its discretion in refusing to grant parole because of petitioner's failure to make restitution.

The petitioner pleaded guilty to charges of bribery and related matters, and the Court of Common Pleas

[ 89 Pa. Commw. Page 514]

    of Philadelphia County sentenced him to not less than eighteen months nor more than five years of imprisonment, along with substantial fines and restitution. At the end of his minimum term, the board denied petitioner parole because his criminal activity caused great damage to the public health and environment, and because of his failure to disclose to authorities other industrial waste dumps.

On September 17, 1984, the board again denied petitioner parole because of his lack of cooperation with the Department of Environmental Resources and his lack of cooperation with the City of Philadelphia in making restitution. From this denial, the petitioner filed a petition for review with this court.

In accordance with Banks v. Pennsylvania Board of Probation and Parole, 4 Pa. Commonwealth Ct. 197 (1971), the board has a duty to process the petitioner's application for parole, and it has done so here. The board, however, has discretion to grant or deny parole because parole, being a matter of administrative discretion and determination, is non-judicial and not generally subject to judicial review under the law of Pennsylvania. LaCamera v. Pennsylvania Board of Probation and Parole, 13 Pa. Commonwealth Ct. 85, 317 A.2d 925 (1974).

However, where the petitioner asserts that denial of parole violated his constitutional rights, our scope of review includes a "determination of whether the Board failed to exercise any discretion at all, whether the Board arbitrarily and capriciously abused its discretion so as to amount to a violation of a constitutional right, and whether the procedure utilized by the Board violated any constitutional rights of the ...


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