IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Bright,                           :
                         Petitioner      :
                                         :
            v.                           :   No. 387 C.D. 2018
                                         :   Submitted: September 7, 2018
Pennsylvania Board of Probation          :
and Parole and Pennsylvania              :
Department of Corrections,               :
                        Respondents      :

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: October 15, 2018

            Robert Bright (Bright), an inmate in a state correctional institution,
petitions for review of a 2018 order of the Pennsylvania Board of Probation and
Parole (Board) dismissing as untimely his administrative appeal of the Board’s 2013
recommitment and recalculation decisions. Representing himself, Bright contends
he timely filed his administrative appeal and that the Board failed to provide him
with a timely revocation hearing within 120 days of the Board’s receipt of notice of
his criminal conviction. However, the Board filed a motion to limit Bright’s appeal
of the recommitment and recalculation decisions to the issue of the timeliness of
Bright’s administrative appeal. Ultimately, this Court granted the Board’s motion.
Accordingly, our review of Bright’s appeal is limited to whether the Board properly
dismissed his administrative appeal as untimely filed. Upon review, we affirm.


                                   Background
               In a May 2013 decision, the Board recommitted Bright as a convicted
parole violator to serve 24 months’ backtime, when available pending sentencing on
county charges, based on his convictions for endangering the welfare of children,
indecent assault of a person less than 13 years of age and corruption of minors. In a
December 2013 decision, the Board recalculated Bright’s maximum sentence date
as April 26, 2020.


               On April 26, 2017, the Board received Bright’s administrative appeal,
which he signed and dated April 17, 2017. Certified Record (C.R.) at 4-5. Bright’s
appeal was postmarked April 19, 2017. C.R. at 6. Thereafter, Bright filed an
application for speedy disposition, which he signed and dated October 22, 2017.
C.R. at 7-8.


               In a decision with a mailing date of February 20, 2018, the Board
dismissed Bright’s administrative appeal as untimely filed given the December 13,
2013, mailing date of its recalculation decision. To that end, the Board explained
(with emphasis added):

               The Board regulation governing administrative appeals
               states that administrative appeals must be received at the
               Board’s Central Office within 30 days of the mailing date
               of the Board’s order. 37 Pa. Code §73.1(a). This means
               you had until January 13, 2014 to object to the decision.
               Because the Board did not receive your current appeal by
               that date and there is no indication that you submitted the
               appeal to prison officials by that date, your appeal is
               untimely and the Board cannot accept it.

C.R. at 10. As discussed below, the mailing date of December 13, 2013 for the
Board’s recalculation decision is significant.


                                           2
              Thereafter, Bright filed a timely petition for review with this Court.1 In
June 2018, the Board filed a motion to limit the issue in Bright’s appeal to the
timeliness of Bright’s administrative appeal. The Court granted the motion and later
confirmed it after considering an objection filed by Bright asserting that the Court
granted the motion before he could respond to it.


                                         Discussion
              A prison inmate seeking to appeal a Board determination must file an
administrative appeal within 30 days of the mailing date of the Board’s decision. 37
Pa. Code §73.1(a)(1); McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092 (Pa.
Cmwlth. 1993). Where an inmate fails to meet this deadline, the Board lacks
jurisdiction to entertain the appeal and should dismiss it as untimely filed. Id.


              As noted above, the certified record reflects the Board received Bright’s
administrative appeal on April 26, 2017, more than 1,400 days after the Board’s May
2013 recommitment decision and more than 1,200 days after the Board’s December
2013 recalculation decision. See C.R. at 4-5. Plainly, the record indicates that Bright
failed to file a timely appeal within 30 days of either the Board’s 2013 recommitment
or recalculation decisions. Consequently, the Board properly dismissed Bright’s
administrative appeal as untimely filed. McCaskill.




       1
         Our review is limited to determining whether substantial evidence supports the Board’s
decision, and whether the Board erred as a matter of law or violated the parolee’s constitutional
rights. 2 Pa. C.S. §704; Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006).



                                               3
               Nevertheless, Bright contends he timely filed his administrative appeal
on December 3, 2013. To that end, Bright asserts he timely filed his appeal under
the prisoner mailbox rule.2 In support of his position, Bright attaches to his brief a
photocopy of a cash slip (Form DC-138A) from the Department of Corrections
(DOC) with handwriting indicating a deduction from his inmate account for postage
in the total amount of $5.65 for correspondence sent to the Board. See Pet’r’s Br.,
Ex. V-RB. The cash slip is dated December 4, 2013. Id.


               In addition, Bright’s attachment includes a copy of a U.S. Post Office
certified mail receipt (PS Form 3800) sent to the Board’s address at 1101 South Front
Street, Harrisburg, PA, 17104. Pet’r’s Br., Ex. V-RB. The certified mail receipt is
also dated December 4, 2013. In addition, Bright attached a copy of a signed return
(PS Form 3811) from the Board’s 1101 South Front Street address. Id. The signed
return indicates a date of December 9 (the edge of the copy cut off the year).


               Bright also attached an administrative appeal form challenging the
Board’s decisions.        See Pet’r’s Br., Ex. VI-RB.            The appeal challenged the
revocation decision on grounds including insufficient evidence, constitutional
violations and a recommitment challenge. Id. The appeal also included challenges
to the recalculation decision as to sentence credit and order of sentences served. Id.
The appeal was dated December 3, 2013. Id.




       2
          “The ‘prisoner mailbox rule’ deems that a prisoner’s [uncounseled] appeal is filed at the
time it is given to prison officials or put in the prison mailbox.” Sweesy v. Pa. Bd. of Prob. &
Parole, 955 A.2d 501, 502 (Pa. Cmwlth. 2008) (emphasis in original).


                                                4
             In response to Bright’s argument, the Board asserts this Court should
not consider the exhibits Bright attached to his brief because they are outside the
certified record. We agree. “An appellate court is limited to considering only those
facts that have been duly certified in the record on appeal.” B.K. v. Dep’t of Pub.
Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012). “For purposes of appellate review,
that which is not part of the certified record does not exist.” Id. “Documents
attached to a brief as an appendix or reproduced record may not be considered by an
appellate court when they are not part of the certified record.” Id. (emphasis added).
The appellant bears the responsibility for ensuring that the certified record contains
sufficient information for proper appellate review. Id. Failure to do so constitutes a
waiver of the issues sought to be examined. Id.


             In accord with our decision in B.K., we cannot consider the documents
Bright attached to his brief. Rather, our review is limited to the items included in
the certified record. B.K.; McKenna v. Pa. State Horse Racing Comm’n, 476 A.2d
505 (Pa. Cmwlth. 1984).


             More to the point, however, the Board’s February 20, 2018, decision
states there is no indication that Bright submitted an administrative appeal to prison
officials within 30 days of the December 13, 2013 mailing date. C.R. at 10. Thus,
the certified record contradicts Bright’s contention that he “timely filed” his
administrative appeal on “December 3, 2013,” ten days before the Board mailed its
recalculation decision. See Pet’r’s Br. at 2 (“Argument”). Similarly, the certified
record contradicts Bright’s assertion that his administrative appeal was “received
and filed by the Parole Board on December 09, 2013.” Id. In short, the certified



                                          5
record supports the Board’s history of the case, not that provided by Bright.
Therefore, we discern no error or abuse of discretion in the Board’s order dismissing
Bright’s administrative appeal as untimely filed. McCaskill.


               We also agree with the Board that Bright did not offer any reasons for
the grant of an appeal nunc pro tunc (late appeal by permission). The 30-day period
to file an administrative appeal from a Board revocation decision is jurisdictional
and cannot be extended absent a showing of fraud or a breakdown in the
administrative process. Smith v. Pa. Bd. of Prob. & Parole, 81 A.3d 1091 (Pa.
Cmwlth. 2013). Nonetheless, a delay in filing an appeal that is not attributable to
the parolee, such as the intervening negligence of a third party or a breakdown in the
administrative process, may warrant nunc pro tunc relief. Id.


               Significantly, Bright did not seek permission to file an appeal nunc pro
tunc in either his April 2017 administrative appeal to the Board or his current appeal
to this Court.3 What is more, there is nothing in this case showing fraud or a
breakdown in the administrative process. The record shows the Board sent notice
of its recommitment and recalculation decisions addressed to Bright as an inmate at
the State Correctional Institution (SCI) at Laurel Highlands. See May 23, 2013,
recommitment decision (Supplemental C.R. at 1A-2A); December 13, 2013,
recalculation decision (C.R. at 1). Where there is nothing indicating that the Board
did not properly send notice of the decision to an inmate, the mere allegation of

       3
         A person seeking to file a nunc pro tunc appeal must proceed with reasonable diligence
once he learns of the necessity to take action. Smith v. Pa. Bd. of Prob. & Parole, 81 A.3d 1091
(Pa. Cmwlth. 2013). In particular, he must establish: (1) he filed the appeal shortly after learning
of and becoming able to address its untimeliness; (2) the elapsed time is of very short duration;
and (3) the respondent will not suffer prejudice because of the delay. Id.


                                                 6
failure to receive notice is not sufficient cause for allowing an appeal nunc pro tunc.
Cardogan v. Pa. Bd. of Prob. & Parole, 541 A.2d 832 (Pa. Cmwlth. 1988).
Therefore, the certified record in this case does not support a grant of nunc pro tunc
relief.


             For the above reasons, we affirm the Board’s order.




                                        ROBERT SIMPSON, Judge




                                          7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Bright,                          :
                         Petitioner     :
                                        :
            v.                          :   No. 387 C.D. 2018
                                        :
Pennsylvania Board of Probation         :
and Parole and Pennsylvania             :
Department of Corrections,              :
                        Respondents     :



                                      ORDER

            AND NOW, this 15th day of October, 2018, for the reasons stated in
the foregoing opinion, the order of the Pennsylvania Board of Probation and Parole
is AFFIRMED.




                                       ROBERT SIMPSON, Judge
