§ 71.5. General.
(a) If the parolee is in custody in another state, or in Federal custody, the Board may lodge its detainer but other matters may be deferred until the parolee has been returned to a State correctional facility in this Commonwealth.
(b) In hearings conducted under this chapter, documentary evidence and reports, including, but not limited to, depositions, written interrogatories, affidavits, laboratory reports, business records, public records, official records and letters rogatory, may be utilized solely, if the panel or examiner is satisfied as to their authenticity, relevancy, accuracy and reliability.
(c) In determining the period for conducting hearings under this chapter, there shall be excluded from the period, a delay in any stage of the proceedings which is directly or indirectly attributable to one of the following:
(1) The unavailability of a parolee or counsel.
(2) Continuances granted at the request of a parolee or counsel, in which case the Board is not required to reschedule the hearing until it receives a written request to reschedule the hearing from the parolee or counsel.
(3) Reasonable or necessary continuances granted to, or occurrences related to, the Board or its employes.
(4) A change of decision by a parolee either to waive the right to be heard by a panel after asserting it or to assert that right after waiving it. In this case, the hearing shall be held within 120 days of the last change of decision.
(5) An event which could not be reasonably anticipated or controlled by the Board, including, but not limited to, illness, injury, acts of nature and prison or civil disorder.
(d) The number of days set forth in this chapter shall be calculated as prescribed by 1 Pa.C.S. § 1908 (relating to computation of time).
(e) Notwithstanding § 71.4 (relating to conviction for a new criminal offense), the Board may defer the revocation hearing until either partial or full service of a new sentence which a parolee receives.
Authority The provisions of this § 71.5 issued under: section 506 of The Administrative Code of 1929 (71 P. S. § 186); and section 23 of the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § 331.23); amended under: section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).
Source The provisions of this § 71.5 adopted August 4, 1972, effective August 14, 1972, 2 Pa.B. 1465; amended February 18, 1977, effective March 1, 1977, 7 Pa.B. 487; amended May 23, 1980, effective May 24, 1980, 10 Pa.B. 2049; amended September 17, 1982, effective September 18, 1982, 12 Pa.B. 3290; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (122548) to (122554).
Notes of Decisions Administrative Relief
The 30-day period for filing for administrative relief applied to parolees unrepresented and represented by counsel. Cadogan v. Board of Probation and Parole, 541 A.2d 832 (Pa. Cmwlth. 1988); appeal denied 553 A.2d 970 (Pa. 1988).
Appeal
Convicted parole violator had an adequate remedy at law in the form of the Board of Probation and Parole’s appeal process embodied under this section, and failure to avail oneself of that remedy or unsuccessful appeal did not give a right to bring an action in mandamus based on the same claim. Rauser v. Board of Probation and Parole, 528 A.2d 290 (Pa. Cmwlth. 1987).
Where Board of Probation and Parole had provided a publicized procedure for an appeal, it was not also required to extend additional notice of those rights; moreover, since the Board addressed parole violator’s application for administrative relief on the merits, any error regarding notice must be deemed harmless. Johnson v. Board of Probation and Parole, 524 A.2d 528 (Pa. Cmwlth. 1987); appeal denied 532 A.2d 21 (Pa. 1987).
A timely appeal filed by counsel for a parolee who had properly sought administrative relief from the Board of Probation and Parole would not be prejudiced by the quashing of a prior pro se appeal that failed to exhaust the available administrative remedies. Robinson v. Board of Probation and Parole, 520 A.2d 1230 (Pa. Cmwlth. 1987).
In view of conflicting allegations as to the evidence received at the Board’s hearing of petitioner’s request for administrative review pursuant to subsection (h), the Court directed the Board to furnish a transcript of the hearing to enable it to perform its appellate review. Lowe v. Board of Probation and Parole, 457 A.2d 206 (Pa. Cmwlth. 1983).
Evidence
Laboratory report indicating that a urine specimen tested positive for cocaine was properly admitted through the testimony of a parole agent, as the report was on laboratory letterhead and contained the signature of the certifying scientist. The report contained sufficient indicia of reliability to allow its admission. Bolden v. Board of Probation and Parole, 794 A.2d 440 (Pa. Cmwlth. 2002), appeal denied 806 A.2d 863 (Pa. 2002).
Where a laboratory report contained the laboratory letterhead and was signed by a doctor, the requisite indicia of reliability was present to permit the Board of Probation and Parole to find good cause to admit the report without the necessity to provide the parolee with a right to conformation. Ward v. Board of Probation and Parole, 538 A.2d 971 (Pa. Cmwlth. 1988).
It was proper to admit laboratory reports during a technical violation parole hearing where the persons with knowledge were beyond the subpoena power of the Board of Probation and Parole. Damron v. Board of Probation and Parole, 531 A.2d 592 (Pa. Cmwlth. 1987).
Photocopies of certified court records, rather than the certified copies of the records themselves, may be used as documentary evidence by the Board of Probation and Parole if the Board was satisfied that the evidence is authentic, relevant and accurate. Blackwell v. Board of Probation and Parole, 516 A.2d 856 (Pa. Cmwlth. 1986).
If in a defendant’s hearing before the Board of Probation and Parole counsel objects to the admission of a laboratory report, the hearing examiner would have been required under the Board’s regulations and due process to make a good cause finding. Vereen v. Board of Probation and Parole, 515 A.2d 637 (Pa. Cmwlth. 1986).
Admission of drug screen report in form of unsigned computer printout without authentication testimony and reliance solely thereon for finding of technical parole violation was improper under subsection (d) since there were insufficient indicia of regularity and reliability, and the document itself may not provide the factual basis for a finding of good cause for denying parolee’s right to confront and cross-examine persons who performed drug screen test and prepared the report. Powell v. Board of Probation and Parole, 513 A.2d 1139 (Pa. Cmwlth. 1986); appeal denied 523 A.2d 346 (Pa. 1986).
The Board of Probation and Parole properly admitted into evidence photocopies of court docket sheets which had not been certified under seal since section 6103 of the Judicial Code, 42 Pa.C.S. § 6103, is inapplicable to Board of Probation and Parole proceedings and the United States Supreme Court has held that probation revocation proceedings need not be conducted with the same formality as criminal trials and subsection (d) permitted the Board to utilize documentary evidence if it was satisfied that the evidence was authentic, relevant and accurate. Anderson v. Board of Probation and Parole, 497 A.2d 947 (Pa. Cmwlth. 1985).
Photocopies of court records not certified in accordance with section 6103 of the Judicial Code, 42 Pa.C.S. § 6103, could form the basis for revocation of a violator’s parole as a convicted violator in a technical violation hearing if the examiner was satisfied as to their authenticity, relevancy and accuracy. Davis v. Board of Probation and Parole, 481 A.2d 714 (Pa. Cmwlth. 1984).
Evidence/Hearsay
Where the record indicates that the Commonwealth made every effort to secure the appearance of the victim-witness, but was unable to do so, it was not error to permit hearsay evidence as the basis for the Board’s finding. Majors v. Board of Probation and Parole, 808 A.2d 296 (Pa. Cmwlth. 2002); appeal denied 816 A.2d 1103 (Pa. 2003).
The Board of Probation and Parole properly admitted into evidence certified documents prepared by out-of-State authorities which contained sufficient indicia of authenticity concerning the arrest and conviction of a parolee as the documents constituted a ‘‘good cause’’ exception to hearsay. Carter v. Board of Probation and Parole, 544 A.2d 107 (Pa. Cmwlth. 1988).
A parolee’s failure to object to hearsay evidence at the parole revocation hearing allowed the Board of Probation and Parole to consider the evidence without having to find ‘‘good cause.’’ Maxfield v. Board of Probation and Parole, 538 A.2d 628 (Pa. Cmwlth. 1988).
Even though a parole revocation order cannot be based solely on hearsay, hearsay evidence was admissible upon a finding on the record of good cause to deny the parolee the rights of confrontation and cross-examination. Jones v. Board of Probation and Parole, 520 A.2d 1258 (Pa. Cmwlth. 1987).
In a parole revocation hearing, while the revocation order cannot be based solely on hearsay, hearsay evidence was admissible upon a finding on the record of good cause to deny the parolee the rights of confrontation and cross-examination. Rodriquez v. Board of Probation and Parole, 516 A.2d 116 (Pa. Cmwlth. 1986).
Parole revocation testimony submitted by New York authorities, not subject to cross examination was properly admitted, through hearsay, when the Board’s decision was based on petitioner’s admissions and stipulations to violations. Myers v. Board of Probation and Parole, 510 A.2d 387 (Pa. Cmwlth. 1986).
The introduction of hearsay evidence at a revocation hearing, over counsel’s objection, where the Hearing Examiner failed to make a finding of good cause for admitting such testimony, constituted reversible error. Grello v. Board of Probation and Parole, 477 A.2d 45 (Pa. Cmwlth. 1984).
Evidence/Witness
Where the hearing examiner admitted an affidavit over counsel’s objection without making the requisite finding of good cause and this was the only evidence introduced to show that the parolee committed the parole violation, revocation of parolee’s probation constituted reversible error. Scott v. Board of Probation and Parole, 668 A.2d 584 (Pa. Cmwlth. 1995).
Prior testimony in the form of a court transcript of an unavailable witness was admissible and an exception to the hearing rule in a Board of Probation and Parole hearing where the parole violator had an adequate opportunity to cross-examine the witness during a prior proceeding. Wallace v. Board of Probation and Parole, 548 A.2d 1291 (Pa. Cmwlth. 1988).
General Comment
This section provided only general rules governing this chapter. Mack v. Board of Probation and Parole, 654 A.2d 129 (Pa. Cmwlth. 1995).
Hearings
The Board of Probation and Parole did not lose jurisdiction over the parolee for failure to extend or readjust the parolee’s sentence before the original maximum sentence expired in that the sentence was extended by the amount of time the parolee was at liberty or on parole before the recommitment—no credit was given for time at liberty on parole. Parolee’s due process rights were not violated by the delay in holding the violation hearing in that the parolee requested the continuance. Harris v. Vaughn, 767 F.Supp. 667 (1991); affirmed 950 F.2d 722 (3rd. Cir. (Pa.) 1991).
Jurisdiction
If a parolee was in custody in another state the Board of Probation and Parole may lodge its detainer but all other matters shall be deferred until the parolee has been returned to a State correctional facility in this Commonwealth. Keeler v. Board of Probation and Parole, 464 A.2d 623 (Pa. Cmwlth. 1983).
The transfer of a parolee between counties to answer criminal charges in each county did not render the parolee unavailable under this section. Corbin v. Board of Probation and Parole, 399 A.2d 1202 (Pa. Cmwlth. 1979).
Notice
Delay in holding revocation hearing attributable to Board of Probation and Parole failure to provide adequate notice did not toll 120-day period within which hearing was required to be held. Saunders v. Board of Probation and Parole, 568 A.2d 1370 (Pa. Cmwlth. 1989).
Although the general rule was that notice of a board decision given to counsel was notice to the client, where there was no evidence of direct notice to the client and the public defender admitted making no effort to inform the client these are exceptional circumstances justifying an exception to the general rule. Lewis v. Board of Probation and Parole, 508 A.2d 644 (Pa. Cmwlth. 1986).
Petitions
A petition for administrative relief must set forth the specific facts or legal basis for the relief sought and not simply contain boiler-plate allegations of error or it will be dismissed. McCaffrey v. Board of Probation and Parole, 537 A.2d 78 (Pa. Cmwlth. 1988).
Procedure
Since the administrative relief provisions of subsection (h) are the only available administrative remedies with the Board of Probation and Parole and since it applies only to parole revocation orders, the exhaustion of administrative remedies doctrine had no application in an appeal from a release order. Jamieson v. Board of Probation and Parole, 495 A.2d 623 (Pa. Cmwlth. 1985).
The administrative remedy exhaustion doctrine precluded court consideration of a petition for review where no administrative relief was sought under subsection (h). Although in this case, the petition for review was filed 6 months after the Board’s Order, if it had been filed within 30 days, the court could have dismissed without prejudice to petitioner’s right to file for administrative relief, and the application for relief could have been filed within 30 days from the court’s dismissal. St. Clair v. Board of Probation and Parole, 493 A.2d 146 (Pa. Cmwlth. 1985).
Request for administrative review under subsection (h) was properly denied where the request was mailed within, but not received until after, expiration of the 30-day time period. Maldonado v. Board of Probation and Parole, 492 A.2d 1202 (Pa. Cmwlth. 1985).
Under subsection (h), a letter from a parolee seeking correction of the ‘‘injustice’’ done to the parolee when the Board of Probation and Parole refused to continue the Revocation Hearing and proceeded to hold that hearing in absentia, would be treated as a request for administrative relief. O’Hara v. Board of Probation and Parole, 487 A.2d 90 (Pa. Cmwlth. 1985).
The administrative appeal from a Board of Probation and Parole order, which must be filed within 30 days from the date of the Board’s order, was a necessary prerequisite to court review of a Board order. Krantz v. Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984).
Records
Where it was alleged that the Board of Probation and Parole was aware of the conviction and the availability of the conviction records, but did not retrieve them, a remand was required to determine whether a 143 day period between a parolee’s conviction and the receipt of the conviction records by the Board rendered a parole revocation hearing untimely. Fitzhugh v. Board of Probation and Parole, 623 A.2d 376 (Pa. Cmwlth. 1993).
Rehabilitation
The Board of Probation and Parole’s failure to grant a further continuance to allow petitioner to participate in a counselling program was not a violation of subsection (e), where the conviction itself was sufficient grounds to order the petitioner recommitted, and any evidence concerning the petitioner’s potential for rehabilitation would be offered only for purposes of mitigation. Fahlfeder v. Board of Probation and Parole, 470 A.2d 1130 (Pa. Cmwlth. 1984).
Request for Reconsideration
The Board or Probation and Parole acted properly in addressing the applicability of a ruling entitled to retrospective effect, since the letter requesting administrative relief could be addressed by the Board as a request for reconsideration, not subject to 30-day appeal period. Snipes v. Board of Probation and Parole, 527 A.2d 1080 (Pa. Cmwlth. 1987).
Parolee’s request for reconsideration of parole revocation order could properly have been considered after the 30 day appeal period, in light of the change in law effected by Rivenbark, 501 A.2d 1110 (1985) decision. Rauser v. Board of Probation and Parole, 528 A.2d 290 (Pa. Cmwlth. 1987).
The Board of Probation and Parole has administrative discretion to grant or deny a request for reconsideration of a recommitment order after the 30-day period provided for in this section and could only be reversed if abuse of discretion was shown. Threats v. Board of Probation and Parole, 518 A.2d 327 (Pa. Cmwlth. 1986).
Sentencing of Violators/Computing Time
Although the Code did not explicitly state that the Board of Probation and Parole may consider each criminal conviction as a separate parole violation and may aggregate backtime accordingly, that interpretation was implicit in a comparison of the regulations governing the application of presumptive ranges for convicted parole violators, with those governing technical parole violators, 37 Pa. Code § 75.4. Corley v. Board of Probation and Parole, 478 A.2d 146 (Pa. Cmwlth. 1984).
There was not an abuse of discretion by the Board of Probation and Parole to deny a parole violator an interview for parole under subsection (h) from a sentence imposed for new charges for which he served the minimum time during pretrial custody, as long as the parolee was serving backtime, and the new sentence was listed as a detainer, but when the backtime was served, the parolee would immediately be eligible for parole on the second sentence. Bradshaw v. Board of Probation and Parole, 461 A.2d 342 (Pa. Cmwlth. 1983).
Timeliness
In accord with jurisdiction. Keeler v. Board of Probation and Parole, 464 A.2d 623 (Pa. Cmwlth. 1983). Krantz v. Board of Probation and Parole, 698 A.2d 701 (Pa. Cmwlth. 1997); appeal denied 705 A.2d 1312 (Pa. 1998).
Although 37 Pa. Code § 71.2 requires that a preliminary hearing ‘‘be held within 14 days of the detention of the parolee on the Board warrant,’’ this regulation provides that ‘‘if the parolee is in custody in another state, . . . the Board may lodge its detainer but other matters may be deferred until the parolee has been returned to a State correctional facility in this Commonwealth.’’ Thus, a prisoner who was returned to Pennsylvania on February 28, 1994, had a timely preliminary hearing when that hearing was scheduled for March 11, 1994. Fulton v. Commonwealth, 663 A.2d 865 (Pa. Cmwlth. 1996); appeal denied, 673 A.2d 337 (Pa. 1996).
Period of time during which prison was in a state of lock-down due to prisoner uprising was properly excluded from computation of 120-day period within which the Board of Probation and Parole was required to hold petitioner’s violation hearing. Cadogan v. Board of Probation and Parole, 571 A.2d 3 (Pa. Cmwlth. 1990).
Proof of receipt of the Board’s recommitment decision was not required and the petitioner’s failure to file an application for administrative relief within 30 days was properly deemed untimely. Cadogan v. Board of Probation and Parole, 541 A.2d 832 (Pa. Cmwlth. 1988).
Petitioner who filed pro se request for administrative relief after 30-day limit provided for under this section, and who had notice of the right to legal counsel in pursuing that request, failed to establish adequate grounds for an appeal nunc pro tunc, and thus the Board of Probation and Parole’s denial of administrative relief as untimely was affirmed. Snipes v. Board of Probation and Parole, 527 A.2d 1080 (Pa. Cmwlth. 1987); appeal granted 557 A.2d 728 (Pa. 1989); order affirmed 574 A.2d 558 (Pa. 1990).
Parolee’s pro se request for administrative relief was denied as being untimely filed where request was made more than 30 days after revocation hearing. Helvy v. Board of Probation and Parole, 526 A.2d 1261 (Pa. Cmwlth. 1987).
Court did not have to reach question of whether language of subsection (h) was mandatory or elective since even if petitioner had appealed directly to the court on the day petitioner filed his petition for review with the Board, the petitioner’s appeal would not have been filed within the 30-day period under Pa. R.A.P. 903. Blevins v. Board of Probation and Parole, 491 A.2d 966 (Pa. Cmwlth. 1985).
Where a 30 day time limit regulation did not become effective until after the recommitment order in question, the parolee’s application for administrative relief was held to be filed timely under subsection (h) because the regulation in effect at the time of the order included no specific time limitation. Coach v. Board of Probation and Parole, 472 A.2d 280 (Pa. Cmwlth. 1984).
The 15-day limit for preliminary hearings prescribed in paragraph (3) is subject to the calculation provisions of 1 Pa.C.S. § 1908, under subsection (j). Anderson v. Board of Probation and Parole, 471 A.2d, 593 (Pa. Cmwlth. 1984).
Where a revocation hearing was scheduled within the 120 day time period but continued due to a prison riot lockdown, the 35 days that elapsed between the date the lockout was lifted and the rescheduled hearing date was ‘‘directly’’ the result of the lockdown following the riot and the aftermath of the lockdown. Jordan v. Board of Probation and Parole, 704 A.2d 190 (Pa. Cmwlth. 1997); appeal denied 724 A.2d 937 (Pa. 1998); appeal denied 725 A.2d 1223 (Pa. 1998).
In holding that when a parolee was confined in a county correctional institution, the Board of Probation and Parole acquired jurisdiction when a waiver of parolee’s right to a full Board revocation hearing was executed, and a hearing held within 120 days of the date of the waiver was timely, the court noted that the application to the Board for administrative review was timely filed under subsection (h). D’Nicuola v. Board of Probation and Parole, 467 A.2d 1383 (Pa. Cmwlth. 1983).
A parolee may apply for administrative review and relief within 30 days of any Board of Probation and Parole order which the parolee considers erroneous. Lewis v. Board of Probation and Parole, 456 A.2d 729 (Pa. Cmwlth. 1983).
Delays in holding the hearing because of the parole officer’s vacation and because the parole officer was assaulted the day before the rescheduled hearing are not excusable grounds for not holding the hearing within the required 120 day period. Capers v. Board of Probation and Parole, 400 A.2d 922 (Pa. Cmwlth. 1979).
Timeliness/Computation
In computing the time taken prior to conducting a revocation hearing, it was proper to apply the rule set forth in 1 Pa.C.S. § 1908 (relating to computation of time) which excluded the first and last day of the period for purposes of computation. Africa v. Board of Probation and Parole, 556 A.2d 506 (Pa. Cmwlth. 1989); appeal denied 564 A.2d 917 (Pa. 1989).
In determining to credit time spent in confinement subsequent both to entry of Board of Probation and Parole’s detainer for parole violation and to entry of detainer by police department for another crime, the Board must justify its determination by presenting records under subsection (d) which show bail was not posted in the new criminal proceeding; petitioner can then rebut the evidence by demonstrating that the records inaccurately reflect that bail was not posted. Pierce v. Board of Probation and Parole, 500 A.2d 181 (Pa. Cmwlth. 1985).
Although parolee was held in county prison in this Commonwealth, the parolee was held there by Fderal authorities and, under 37 Pa. Code § 71.4(2)(i), the time held there was not counted in computing the 120-day period within which parolee must be afforded a parole revocation hearing. Scott v. Board of Probation and Parole, 498 A.2d 31 (Pa. Cmwlth. 1985).
Where parolee was charged and convicted of Federal crime and held under Federal jurisdiction in county prison and in Federal facility, 120-day period for Probation and Parole Board hearing did not begin until parole violator was released back into State custody. Scott v. Board of Probation and Parole, 498 A.2d 31 (Pa. Cmwlth. 1985).
The Board of Probation and Parole is permitted to continue its hearings due to the unavailability of the parolee or defense counsel, or at the request of either the parolee or defense counsel, and such time was excluded from the computation of whether a hearing is timely. Chancey v. Board of Probation and Parole, 477 A.2d 22 (Pa. Cmwlth. 1984).
A request for administrative review under subsection (h) delayed the date on which an order would be deemed final until the date on which the Board of Probation and Parole mailed its response to the request for administrative review, and not the date on which an earlier recommitment action was reaffirmed, so that an appeal filed within 30 days of the reaffirmation order but not within 30 days of the response to the request for administrative review was not timely filed as required by Pa. R.A.P. 1512(a)(1). Manuel v. Board of Probation and Parole, 463 A.2d 1236 (Pa. Cmwlth. 1983).
The time requirements of 37 Pa. Code § § 71.2(3) and (11) and 71.3(8) are tolled while a parolee was in custody in another state or in Federal custody, according to subsection (c). Elliot v. Board of Probation and Parole, 458 A.2d 1068 (Pa. Cmwlth. 1983).
Timeliness/Continuances
Continuances granted to the Commonwealth because of the unavailability of the victim-witness were reasonable and necessary, and the fact that the hearing was held after the 120-day period was not grounds for dismissal. Majors v. Board of Probation and Parole, 808 A.2d 296 (Pa. Cmwlth. 2002); appeal denied 816 A.2d 1103 (Pa. 2003).
When a parolee requests a continuance but did not request in writing that the parole hearing be rescheduled, the 120 day rule did not start to run again. Stevens v. Board of Probation and Parole, 538 A.2d 108 (Pa. Cmwlth. 1988).
Revocation hearing was timely, since delay beyond statutory period was attributable to parolee’s request for a continuance. Pierce v. Board of Probation and Parole, 525 A.2d 1281 (Pa. Cmwlth. 1987).
Where inmate failed to request a continuance under subsection (e) to permit new public defender additional preparation time and where hearing was held 45 days after transfer from prison in one county to facility in another, the shift from one county public defender to another did not per se constitute ineffective assistance of counsel. LaCourt v. Board of Probation and Parole, 488 A.2d 70 (Pa. Cmwlth. 1985).
Requests for continuance of parole violation and revocation hearing may be made by counsel without the parolee’s knowledge or consent and need not meet the strict standards applied to waivers of fundamental constitutional rights. LaCourt v. Board of Probation and Parole, 488 A.2d 70 (Pa. Cmwlth. 1985).
Any delay in a revocation hearing attributed to the parolee being granted a continuance to obtain counsel or due to counsel’s unavailability did not run against the Board of Probation and Parole for timeliness purposes. O’Hara v. Board of Probation and Parole, 487 A.2d 90 (Pa. Cmwlth. 1985).
Any periods of delay in conducting a violation hearing which are the result of requests for a continuance are to be excluded from the calculation of the 120-day period. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).
Timeliness
Where the parolee initially waived his right to a panel hearing, then later aserted it, he cannot complain that the hearing was not timely, even though the initial waiver was made upon the advice of an agent of the Board of Probation and Parole. Fetter v. Board of Probation and Parole, 808 A.2d 611 (Pa. Cmwlth. 2002), appeal denied 829 A.2d 1159 (Pa. 2003).
Parolee’s revocation hearing, originally scheduled for September 11, 2001, was delayed due to the terrorist attacks which occurred that day. Since the attacks were an event that could not be reasonably anticipated or controlled, the time between September 11, 2001 and October 2, 2001—the next available date—is excluded from calculating the 120-day period. Wiley v. Pennsylvania Board Probation and Parole, 801 A.2d 644 (Pa. Cmwlth. 2002).
Timeliness/Credit of Service
Petitioner was not entitled to credit parole violation backtime retroactively to date before the county court imposed petitioner’s sentence for parole violation. Patrick v. Board of Probation and Parole, 532 A.2d 487 (Pa. Cmwlth. 1987).
Waiver
Failure to mention the lack of a full board hearing in a violator’s petition for administrative review before the board was not a waiver of the violator’s rights under subsection (h). Laboy v. Board of Probation and Parole; 459 A.2d 916 (Pa. Cmwlth. 1983); 465 A.2d 78 (Pa. Cmwlth. 1983).
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