# Fitzhugh v. Pennsylvania Board of Probation & Parole

> Commonwealth Court of Pennsylvania · March 10, 1993 · 154 Pa. Commw. 123

URL: https://www.frixlaw.com/law-library/cases/9703458

## Case

- **Full name:** Herbert FITZHUGH, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** March 10, 1993
- **Citations:** 154 Pa. Commw. 123; 623 A.2d 376; 1993 Pa. Commw. LEXIS 134
- **Precedential status:** Published
- **Opinion:** Dissent by Silvestri
- **Judges:** McGinley, Friedman, Silvestri
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Limited by Lawson v. Pennsylvania Board of Probation & Parole, 2009 Pa. Commw. LEXIS 471 (2009).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9703458

## How later opinions describe it (automated extraction)

- holding that where the Board had employees whose job was to retrieve conviction records, a parolee convicted of a new offense should not be forced to wait for an unreasonable period for a revocation hearing because the Board chose not to retrieve the record
- rejecting “the notion that a parolee convicted of a new offense may be forced to wait for an unreasonable period for a revocation hearing until the Board chooses to retrieve his records, even though the Board has actual notice of the new conviction”

## Opinion text

SILVESTRI, Senior Judge,
dissenting.
In the first paragraph of the opinion, the majority accurately states that our scope of review of a Board decision is limited; if no errors of law or violations of constitutional rights have occurred, we simply perform our appellate review by ascertaining whether necessary findings of fact are supported by substantial evidence in the record. The jurisdiction of this court is fixed by the legislature and statutorily set forth at 2 Pa.C.S. § 704. We have exceeded our appellate authority when we reach beyond the jurisdiction granted to us. However, the majority overlooks the scope of review of this court when it proceeds to look to “evidence” outside the record and unsubstantiated assertions and allegations in Petitioner’s brief which it then relies upon to justify a remand in this case. Such reliance is inappropriate. “Evidence” outside the record does not constitute evidence.
There is no dispute procedurally that official verification was received by the Board on November 26, 1991, a parole revocation hearing was held on February 27, 1992, the scheduled revocation hearing was within 120 days of the Board’s receipt of Petitioner’s guilty plea. Thus, applying our limited standard of review to the record before us, the order of the Board must be affirmed.
Two problems exist with the majority’s reliance upon the unsubstantiated allegations advanced by Petitioner in his brief. First, nothing in the official record before the Board *132 substantiates the averments. Second, Petitioner’s appeal for reform of probation and parole regulations should be addressed to the legislature, not to this court. By allowing a remand the majority creates by implication a new method of record retrieval in parole proceedings.
I would affirm. Accordingly, I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9703458. Public record. Not legal advice.