85 Pa. Commw. 85 | Pa. Commw. Ct. | 1984
Opinion by
Before this Court is an appeal by the Borough of Jim Thorpe (Borough) and its Civil Service Commission (Commission) from a decision and order of the Court of Common Pleas of Carbon County reversing a decision to discharge police officer Kenneth P. Kuhn (Appellee) from employment with the Borough. We affirm.
Following a sequence of events not relevant to the current inquiry, Appellee was charged by his superiors
that the charges against Officer Kenneth Kuhn, be turned over for review, and any recommendation of action, to the Civil Service Commission Board, and that until such recommendation has has [sic] been reached by them, Officer Kenneth Kuhn be suspended from Police Duty, without pay, effective as of midnight tonight.
In a subsequent letter to the Commission, the Borough Council recommended that Appellee be discharged.
The Commission conducted a full hearing on the matter on October 28, 1982. The Borough presented several witnesses and Appellee, who was represented by counsel, testified on his own behalf. Following the hearing, a decision was issued by the Commission concluding that Appellee was guilty of disobedience, neglect of duty and conduct unbecoming a public officer. The accompanying order reads:
NOW, the 17th day of November, 1982, the Appeal of KENNETH P. KUHN is DENIED. The action of the Council of the Borough of Jim Thorpe, Pennsylvania is SUSTAINED.
Appellee appealed to the court of common pleas alleging a number of due process violations during the
In their appeal to this Court, the Borough and the Commission assert that the procedure below, even if not technically correct, did not accrue to Appellee’s detriment and sufficiently afforded him his right to a nonprejudicial personnel action. The Borough and the Commission also argue that all parties treated the matter at all times as though Appellee had been discharged and that Appellee at no point objected to the procedure invoked and therefore Commission jurisdiction was proper.
Order
Now, September 5, 1984, the decision and order of the Court of Common Pleas of Carbon County in the above captioned matter, dated June 17, 1983, No. 82 S 530, is hereby affirmed.
The resolution is contained in the official minutes of the Borough Council meeting.
Sections 1171-1195 of the Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §§46171-46195.
Tegees v. Township of Bristol, Pa. , 472 A.2d 1386 (1984), raised by the Borough at oral argument, is distinguishable from the case at bar. There, the Pennsylvania Supreme Court held that a police officer appointed pursuant to civil service procedures is entitled to civil service protection in the event of an adverse personnel decision and may appeal such a decision even though, theoretically, it was based on the expiration of a contract rather than charges of misconduct. In Tegees, but not the instant case, the party invoking the jurisdiction of the civil service commission was the aggrieved officer and his action was based on a final action by the municipal authorities.