Reider v. Com., Pennsylvania Bd. of Probation and Parole

• Decision Date: 05 September 1986
• Citation: 514 A.2d 967,100 Pa.Cmwlth. 333
• Parties: William D. REIDER, Petitioner, v. COMMONWEALTH of Pennsylvania PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 967

514 A.2d 967

100 Pa.Cmwlth. 333

William D. REIDER, Petitioner, v. COMMONWEALTH of Pennsylvania PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 11, 1986.

Decided Sept. 5, 1986.

William D. Reider, Camp Hill, pro se.

Robert Greevy, Chief Counsel, Arthur R. Thomas, Harrisburg, for respondent.

Before CRUMLISH, Jr., President Judge, and CRAIG, MacPHAIL, BARRY and COLINS, JJ.

MacPHAIL, Judge.

William D. Reider (Reider) has filed a petition for review of an order of the Pennsylvania Board of Probation 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. ¹ 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, 169 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.

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 ² 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 nonjudicial 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 our holding in Banks and reiterated that "a person seeking parole is entitled to have his application properly and fairly processed and that if the Board fails to exercise any discretion at all or arbitrarily and capriciously abuses its discretion or violates a prisoner's constitutional right, we may give relief." 78 Pa.Commonwealth Ct. at 158, 467 A.2d at 90.

In Counts, we cited Kastner and Banks and stated:

In recognition of the broad grant of discretion which the Board enjoys in parole matters and that the parole release decision is a highly subjective one, our scope of review of a Board order denying a parole application is limited to 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 or not the procedure utilized by the Board violated any constitutional rights of the prisoner.

87 Pa.Commonwealth Ct. at 282-83, 487 A.2d at 453. In Kastner and Counts, no mention was made of LaCamera.

Most recently, in Barnhouse v. Pennsylvania Board of Probation and Parole, 89 Pa.Commonwealth Ct. 512, 492 A.2d 1182 (1985), we attempted to reconcile LaCamera and Counts:

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 nonjudicial 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 prisoner." Counts v. Pennsylvania Board of Probation and Parole, Pa.Commonwealth Ct. , 487 A.2d 450 (1985).

89 Pa.Commonwealth Ct. at 514, 492 A.2d at 1183.

In sum, LaCamera stands for the proposition that denials of parole are not reviewable by this Court, whereas Banks, Kastner and Counts would afford the denial of parole a limited review. It is apparent, therefore, that despite Barnhouse, these separate lines of cases cannot be reconciled.

For the reasons which follow, we now hold that denials of parole are not reviewable by this Court, and, to the extent that Banks, Kastner and Counts provide otherwise, they are overruled.

Section 21 of the Act of August 6, 1941, (Parole Act), P.L. 861, as amended, 61 P.S. § 331.21, provides that:

The board [of Probation and Parole] is hereby authorized to release on parole any convict confined in any penal institution of this Commonwealth as to whom power to parole is herein granted to said board, ... whenever in its opinion the best interests of the convict justify or require his being paroled and it does not appear that the interests of the Commonwealth will be injured thereby. The power to parole herein granted to the Board of Parole may not be exercised in the board's discretion at any time before, but only after, the expiration of the minimum term of imprisonment fixed by the court in its sentence.... (Emphasis added.)

The Parole Act requires the Board to investigate the circumstances of offenses and the character and history of a prisoner when evaluating whether, in its opinion, the best interests of the prisoner and the Commonwealth justify his being paroled. See Section 19 of the Parole Act, 61 P.S. § 331.19. If the Board refuses to parole the prisoner at the expiration of any minimum term, the Board must in writing inform the Pardon Board of its reasons for refusal to parole the prisoner. Section 21 of the Parole Act.

Whether or not the Board's decision is reviewable by this Court is dependent upon whether it falls within the purview of the Administrative Agency Law (Law), 2 Pa.C.S. §§ 501-508, 701-704. Since the Board is a Commonwealth agency, we look to the provisions providing for judicial review of Commonwealth agency action at 2 Pa.C.S. §§ 701-704. Section 701 of the Law provides that the Law applies "to all Commonwealth agencies regardless of the fact that a statute expressly provides that there shall be no appeal from an adjudication of an agency, or that the adjudication of an agency shall be final or conclusive, or shall not be subject to review." Section 702 of the Law provides that "[a]ny person aggrieved by an adjudication of a Commonwealth agency who has a direct interest in such adjudication shall have the right to appeal therefrom...." (Emphasis added.) An adjudication is...