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Moore v. Commonwealth, Pennsylvania Board of Probation & Parole

Paul Moore v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole

Moore v. Commonwealth, Pa. Bd. of Prob. & Parole, 503 A.2d 1099 (Pa. Commw. Ct. 1986)
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Court
Commonwealth Court of Pennsylvania · State Appellate Courts
Decided
January 31, 1986
Docket
Nos. , No. 627 C.D. 1985
Judges
Barry, Doyle, MacPhail
Citations
503 A.2d 109994 Pa. Commw. 5271986 Pa. Commw. LEXIS 1879

Opinion of the Court — Doyle

Text extracted by OCR from a scanned original; check the original for exact wording.

Opinion by Judge Doyle,

By a decision of the Board of Probation and Parole (Board) dated January 23, 1984, Paul Moore (Petitioner) was recommitted to serve 24 months of back-time as a technical and convicted parole violator. On June 6, 1984, he filed a request for administrative relief with the Board, which, request was dismissed as untimely. He then petitioned the Board for reconsideration of this dismissal, claiming that he did not receive 'actual notice of the recommitment decision until May 18,1984. This petition was denied by the Board, and Petitioner now appeals to this Court. By motion of the Board, the issue before us has been limited to the timeliness of Petitioner’s administrative appeal.

Board regulations provide that an application for administrative relief must be filed within 30 days of the date of the recommitment order. 37 Pa. Code §71.5 (h). Maldonado v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 576 , 492 A.2d 1202 (1985). Petitioner argues that he should have been permitted to file his application nunc pro tunc because he did not receive proper notice of the Board’s decision. He states that the decision was mailed to the State Correctional Institution at G-rater-ford, but that he was incarcerated in the Philadelphia County Prison. The Board does not dispute that Petitioner did not receive personal notice at the county prison until May 7, 1984, but it points out that the decision was copied to the Philadelphia public defender’s office, which represented Petitioner during the recommitment proceedings. It appears from the record *529 however, that the notice was not sent to the attorney who represented Petitioner during the proceedings, but rather was sent either to a different attorney in the public defender’s office or to a clerical employee of that office. Petitioner contends that this did not constitute proper notice to Ms counsel, and that even if his actual attorney did receive the decision, the Graterford address would have led him to assume that Petitioner had been transferred out of the Philadelphia public defender’s jurisdiction and was now being represented by Montgomery County counsel.

We do not necessarily agree with the latter part of Petitioner’s argument. Notice of an action by a court, board or commission given to the counsel of a party is considered notice to the party. Yeager v. United Natural Gas Co., 197 Pa. Superior Ct. 25, 29 , 176 A.2d 455, 456 (1961). For this reason, the responsibility for keeping track of an incarcerated client’s whereabouts must remain upon that party’s counsel. It would not have been proper, therefore, for Petitioner’s counsel simply to assume from the address given Petitioner on the Board’s decision that the case was no longer the responsibility of that office.

It is true, however, that, although judicial extensions of time for taking an appeal will not be granted in the absence of fraud or its equivalent, negligence on the part of administrative officials may be deemed to be the equivalent of fraud. Branch v. Workmen’s Compensation Appeal Board, 38 Pa. Commonwealth Ct. 374 , 393 A.2d 55 (1978). Insofar as Petitioner is arguing that the misdirection of the recommitment decision amounted to such negligence, and that as a result of the misdirection, he failed to receive proper notice of the Board’s decision, we agree. The Board cites Delmont Borough Annexation Case, 2 Pa. Commonwealth Ct. 496 , 276 A.2d 549 (1971), for the proposition that a mere allegation of failure to receive no *530 tice is insufficient cause for allowing a nunc pro tunc appeal. This is a correct statement of the law, but the law also holds that a failure to properly send a notice may amount to a breakdown in operations which is the equivalent of negligence on the part of administrative officials. See Nixon v. Nixon, 329 Pa. 256 , 198 A. 154 (1938). Here, as in Nixon , the' averment that an error occurred in the administrative systems of a court, board or commission, has not been denied.

We will reverse the Board.

Order

Now, January 31,1986, the decision of the Pennsylvania Board of Probation and Parole, dated July 5, 1984, Parole No. 2838-J is hereby reversed. The record is remanded to the Board for a hearing on the merits of Petitioner’s appeal.

Jurisdiction relinquished.

How later courts describe this case

Explanatory parentheticals written by citing courts — 6 in all; the most informative distinct ones are shown.

Cited by 27 cases

View all citing references →
1986: 21987: 11988: 21989: 11990: 11991: 21993: 12000: 22004: 12013: 12016: 12017: 32018: 12019: 12021: 32022: 12023: 12024: 219862026peak 2017 · 3

Relies on it most ⓘ

  1. Cadogan v. Commonwealth541 A.2d 832 (Pa. Commw. Ct. 1988)
  2. H.D. v. Pennsylvania Department of Public Welfare751 A.2d 1216 (Pa. Commw. Ct. 2000)
  3. Hillanbrand v. Commonwealth, Pennsylvania Board of Probation & Parole508 A.2d 375 (Pa. Commw. Ct. 1986)
  4. Lewis v. Pa. Bd. of Prob. & Parole508 A.2d 644 (Pa. Commw. Ct. 1986)
  5. Calcagni v. Pennsylvania Board of Probation & Parole582 A.2d 1141 (Pa. Commw. Ct. 1990)
  6. Union Electric Corp. v. Board of Property Assessment, Appeals & Review746 A.2d 581 (Pa. 2000)

Most recent

  1. I. Dawson v. PPBNo. 838 C.D. 2023 (Pa. Commw. Ct. Aug. 21, 2024)
  2. D.J. McKelvey v. PPBNo. 1341 C.D. 2022 (Pa. Commw. Ct. Jan. 26, 2024)
  3. B. Moody v. M. Wenerowicz, former Deputy of the DOCNo. 376 C.D. 2021 (Pa. Commw. Ct. May 31, 2023)
  4. K.L. Burley, Jr. v. J. HiltonNo. 934 C.D. 2021 (Pa. Commw. Ct. June 30, 2022)
  5. H. Tuggles v. PBPPNo. 1744 C.D. 2019 (Pa. Commw. Ct. June 2, 2021)
  6. S.C. Morrison v. PPBNo. 655 C.D. 2020 (Pa. Commw. Ct. Mar. 1, 2021)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 5

DepthCaseCited by
Nixon v. Nixon, 198 A. 154 (Pa. 1938) 196
Yeager v. United Natural Gas Co., 176 A.2d 455 (Pa. Super. Ct. 1961) 25
In re Annexation of a Portion of Twp. of Franklin, 276 A.2d 549 (Pa. Commw. Ct. 1971) 17
Branch v. Commonwealth, 393 A.2d 55 (Pa. Commw. Ct. 1978) 12
Maldonado v. Commonwealth, Pa. Bd. of Prob. & Parole, 492 A.2d 1202 (Pa. Commw. Ct. 1985) 8

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