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RALPH EDWARD WAGNER v. COMMONWEALTH PENNSYLVANIA (10/02/85)

decided: October 2, 1985.

RALPH EDWARD WAGNER, 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 Ralph Edward Wagner, Parole No. 9226-P, dated December 1, 1983.

COUNSEL

Scott C. Lash, Fry & Golden, 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 Doyle. Judge Williams, Jr. did not participate in the decision in this case.

Author: Doyle

[ 92 Pa. Commw. Page 133]

Ralph E. Wagner (Petitioner) was paroled on June 19, 1982, after serving six months of a six to forty-eight

[ 92 Pa. Commw. Page 134]

    month sentence. On August 10, 1983, Petitioner was fired from his job at Prestolite, and on August 17, 1983, he was arrested and charged with three counts of possession, possession with intent to deliver, and delivery of a controlled substance. On December 1, 1983, the Pennsylvania Board of Probation and Parole (Board) ordered Petitioner recommitted as a technical parole violator. Backtime was imposed in the amount of twelve months for possession and sale of narcotic drugs (violation of parole condition number 5(a)), and eighteen months for failure to maintain employment (violation of special parole condition number 6). Petitioner filed a request for administrative relief with the Board on December 22, 1983, and on January 24, 1984 his request was denied. Petitioner now appeals to this Court, contending that the Board erred in its determination that he violated special condition number 6 of his parole.

Petitioner admit that he was fired from his employment. He argues, however, that the Board incorrectly relied on the hearsay testimony of his parole agent regarding the reason that he was fired. The agent testified at the parole violation hearing that the personnel director at Petitioner's place of employment had informed the agent that Petitioner had been fired for frequent absenteeism with poor excuses. The agent also presented, without foundation, a document from the employer which purportedly indicated that Petitioner had missed work without calling in on August 9, 1983 and had called in sick on August 10, 1983. Petitioner contends that he was fired unjustly after he called in sick for a sprained ankle.

The Board, addressing the same arguments now raised, concluded that Petitioner's admission at the preliminary hearing that he had been fired from his employment was sufficient evidence on which to base

[ 92 Pa. Commw. Page 135]

    the finding that he had violated special condition number 6, and additionally, that the referee had found good cause for not requiring the presence of the personnel director of Prestolite at the hearing.

The governing legal principle is that this Court must affirm the Board's recommitment order as long as it is supported by substantial evidence in the record. Lantzy v. Pennsylvania Board of Probation and ...


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