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WILLIAM D. REIDER v. COMMONWEALTH PENNSYLVANIA (09/05/86)

decided: September 5, 1986.

WILLIAM D. REIDER, 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 William D. Reider, dated September 18, 1985.

COUNSEL

William D. Reider, petitioner, for himself.

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

President Judge Crumlish, Jr., Judges Craig, MacPhail, Barry and Colins. Opinion by Judge MacPhail. Dissenting Opinion by Judge Barry.

Author: Macphail

[ 100 Pa. Commw. Page 334]

William D. Reider (Reider) has filed a petition for review of an order of the Pennsylvania Board of Probation

[ 100 Pa. Commw. Page 335]

    and Parole (Board) which denied his application for parole. Before us for disposition is the Board's motion to quash.

The sole issue presented is whether the Board's denial of a parole application is reviewable by this Court.*fn1 The Board argues that parole is non-judicial and is not subject to judicial review and cites LaCamera v. Board of Probation and Parole, 13 Pa. Commonwealth Ct. 85, 317 A.2d 925 (1974) (en banc). Reider, however, cites Counts v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 277, 487 A.2d 450 (1985) for the proposition that the Board's denial of a parole application is reviewable by this Court, although such review is limited to a determination of whether the Board failed to exercise any discretion at all, whether it acted arbitrarily or capriciously and whether the Board's procedures impacted on the prisoner's constitutional rights.

Inasmuch as there is authority supporting both positions, we find it necessary to summarize the decisions regarding this Court's scope of review of Board orders denying parole.

In Banks v. Board of Probation and Parole, 4 Pa. Commonwealth Ct. 197 (1971) (en banc), this Court observed that:

The Pennsylvania Supreme Court, in Commonwealth ex rel. Sparks v. Russell, 403 Pa. 320, 323,

[ 100 Pa. Commw. Page 336169]

A.2d 884, 885 (1961), cited Commonwealth ex rel. Nornhold v. Day, 67 Dauphin 1, (1954): 'The parole of a prisoner at the expiration of his minimum term is not a matter of right, it is a matter of grace and mercy and the granting, reinstatement and revocation of parole is within the exclusive jurisdiction of the Parole Board. . . .' It seems clear, then, that this Court may not interfere with the discretion of the Board in granting parole unless the Board (1) fails to exercise any discretion or (2) arbitrarily and capriciously abuses its discretion or (3) violates a prisoner's constitutional rights. Granted, as defendants argue, that parole is a matter of grace, and not right, once the Legislature establishes a principle that a prisoner has a right to apply for a parole, then the prisoner is entitled to have his application properly and fairly processed after which, if refused, he is entitled to a written explanation from the Board for its refusal to grant his application.

So long as the Board receives the application for parole, reviews it in the light of all of the pertinent records and history relating to the prisoner, and gives a reasonable explanation for its refusal, the Board has met its responsibilities.

If the prisoner believes that the Board has violated his constitutional rights and is being held improperly in prison, he has a right to file for a writ of habeas corpus before a proper court. This Court does not have such jurisdiction. We may only determine whether state officials have performed properly their statutory and constitutional responsibilities.

[ 100 Pa. Commw. Page 337]

In this case, the Board received the application, reviewed the prisoner's records, and explained in writing the reasons for its refusal. Whether or not this Court agrees with the wisdom of the reasons given by the Board in its letter of parole refusal is of no import.

4 Pa. Commonwealth Ct. at 200-201 (emphasis added).

In LaCamera, where no reference was made to Banks, we held that the action of the Board in refusing a parole at the expiration of a minimum sentence is not an adjudication subject to judicial review under the provisions of the Administrative Agency Law*fn2 because the definition of adjudication expressly excluded "any final order, decree, decision, determination or ruling . . . which involves paroles or pardons." LaCamera, 13 Pa. Commonwealth Ct. at 88, 317 A.2d at 926. In further support of our conclusion, we cited Commonwealth v. Brittingham, 442 Pa. 241, 275 A.2d 83 (1971) and held that "[p]arole, being a matter of administrative discretion and determination, is non-judicial and not subject to judicial review under the law of Pennsylvania. . . ." LaCamera, 13 Pa. Commonwealth Ct. at 90, 317 A.2d at 927.

In Bradshaw v. Pennsylvania Board of Probation and Parole, 75 Pa. Commonwealth Ct. 90, 461 A.2d 342 (1983), we cited Banks for our scope of review and upheld the Board's denial of the prisoner's request to be interviewed for parole consideration. No mention was made of LaCamera.

In Kastner v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 157, 467 A.2d 89 (1983), we reaffirmed ...


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