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RONALD BRADLEY v. COMMONWEALTH PENNSYLVANIA (07/27/87)

decided: July 27, 1987.

RONALD BRADLEY, 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 Ronald Bradley, No. 3537, dated July 28, 1986.

COUNSEL

Patrick J. Flannery, Assistant Public Defender, for petitioner.

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

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 108 Pa. Commw. Page 22]

Ronald Bradley (petitioner) petitions for permission to file his petition for review nunc pro tunc of the July 28, 1986 order of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief from a Board recommitment.

On May 30, 1986, a copy of the Board's order recommitting the petitioner to serve thirty-four months backtime as a technical and convicted parole violator was mailed to him at the State Correctional Institution at Graterford (Graterford), and he requested administrative relief from that order on June 30, 1986. On July 28, 1986, the denial of the petitioner's request for relief (denial) was mailed to him at Graterford, and the Board contends that the notice was never returned as undeliverable. The petitioner, however, claims that he was transferred to the State Correctional Institution at Dallas (Dallas) on July 31, 1986, and that he did not receive a copy of the denial until sometime after October 22, 1986.*fn1 This appeal followed.

The petitioner contends that it was not his fault that he missed the thirty-day appeal period,*fn2 and that, therefore, he should now be permitted to appeal nunc pro tunc. The Board, however, contends that, because

[ 108 Pa. Commw. Page 23]

    the petitioner failed to notify the Board of his transfer to Dallas, the delay in his receipt of the notice concerned was his fault.

A mere allegation of failure to receive notice, of course, is insufficient cause for allowing an appeal nunc pro tunc, but a failure by the Board to properly send notice, amounting to a breakdown in Board operations, is the equivalent of negligence on the part of administrative officials so that an appeal nunc pro tunc would be proper. Moore v. Pennsylvania Board of Probation and Parole, 94 Pa. Commonwealth Ct. 527, 503 A.2d 1099 (1986). If, however, the Board did properly send the notice, but there was some intervening negligence by a third party, then an appeal nunc pro tunc would likewise be appropriate. See Walker v. Unemployment Compensation Board of Review, 75 Pa. Commonwealth Ct. 116, 461 A.2d 346 (1983).

We must determine, therefore, whether or not the Board's failure to send a copy of its July 28, 1986 denial of administrative relief to Dallas, rather than to Graterford, amounted to a breakdown in its operations, or whether or not there was some intervening negligence by a third party, so as to require that we grant the petitioner's request to appeal nunc pro tunc.

The Board mailed the denial of relief on July 28, 1986 to Graterford, where the petitioner was then incarcerated. And, although the petitioner contends that he did not receive notice of the Board's denial because of his July 31, 1986 transfer to Dallas, he alleges no fraud or negligence on the part of the Board. Furthermore, there is no indication, either in the record or in the petitioner's brief, that the petitioner ever made any attempt to notify ...


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