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CURTIS SCOTT v. COMMONWEALTH PENNSYLVANIA (09/11/85)

decided: September 11, 1985.

CURTIS SCOTT, 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 Curtis Scott, Parole No. 8954-G, dated November 6, 1981.

COUNSEL

Scott F. Breidenbach, for petitioner.

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

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

Author: Craig

[ 91 Pa. Commw. Page 564]

Curtis Scott appeals from a denial of administrative relief by the Pennsylvania Board of Probation and Parole. The board ordered that Scott be recommitted, as a convicted parole violator, for a total of forty months backtime, reviewable in 1984. Scott

[ 91 Pa. Commw. Page 565]

    contends, citing 37 Pa. Code ยง 71.4(2), that the parole board failed to afford him a revocation hearing within 120 days after the conviction date. Scott also contends that the regulatory exceptions to the 120-day period do not account for all of the time between his date of conviction and the date of the parole hearing, and the amount of untolled time exceeds the 120-day limit. We affirm.

Although Scott's appeal alleges that a violation of the 120-day rule occurred, we must first dispose of his motion to strike portions of the record. Scott's motion requests deletion of pages 13, 16 and 19 of the certified record because, he alleges, they contain hearsay evidence, and because his counsel was not aware that the pages were entered into the record pursuant to the hearing.

As to pages 13 and 16, we grant Scott's motion. These pages deal with substantive evidence, and in the transcript of the full board revocation hearing, there is no mention of either page. In Grubbs v. Pennsylvania Board of Probation and Parole, 85 Pa. Commonwealth Ct. 464, 481 A.2d 1390, 1391 (1984), we stated:

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).

As to page 19, however, we must deny Scott's motion. That page is the hearing examiner's report, properly part of an earlier proceeding in this same case and accordingly has been part ...


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