68 Pa. Commw. 273 | Pa. Commw. Ct. | 1982
Opinion by
John Clark (Appellant) has brought this appeal from an order of the Court of Common Pleas of Allegheny County which affirmed a decision of the Pittsburgh Civil Service Commission (Commission) sustaining a fine imposed by the Fire Trial Board (Trial Board) of the City of Pittsburgh.
Appellant is employed as a fire fighter for the City of Pittsburgh. The charges arose out of an incident occurring on July 8, 1980, involving a Lieutenant Kimak and Appellant who engaged in a scuffle in the barracks room which, the city contends, was broken up by a Captain Coyne who directed both participants to leave the room. The City contends that after both men departed, Appellant approached Lieutenant Kimak from the rear and struck him one or more severe blows. Appellant contends he did not hear Captain Coyne say anything and that his striking of Lieutenant Kimak was provoked. On July 14, 1980, Appellant was found guilty of fighting and of insubordination to his commanding officer. The Trial Board imposed a fine of four days pay per seven day period of 26 pay periods.
Appellant took an appeal from that decision to the Commission which body reversed the insubordination charge for failure to properly apprise Appellant that it was Captain Coyne and not Lieutenant Kimak to whom he was allegedly insubordinate. The Commission affirmed the fighting charge and found that “the fine imposed under all circumstances was
An appeal to the court of common pleas followed. That court, which received no further evidence, determined that the Commission had no power to modify the penalty, that there was substantial evidence in the record to support the Commission’s findings and that the penalty should be affirmed.
Stripping the legal language from the issue presented to us, we are called upon to determine whether a fireman accused and found guilty of two acts of misconduct for which a penalty is imposed, has been treated fairly under the law when one of those charges has been removed but the penalty remains the same.
The pertinent statute is the Act of June 27, 1939, P.L. 1207 (Act), as amended, 53 P.S. §§23491-23498. Section 6 of the Act, 53 P.S. §23496 provides for the selection of the Trial Board members and for the implementation of its decision, if approved by the
Where the Trial Court has taken no additional testimony, our scope of review is to determine whether the Commission abused its discretion or committed an error of law. Shannon v. Civil Service Commission, 4 Pa. Commonwealth Ct. 492, 287 A.2d 858 (1972). Since the Commission refused to exercise any discretion, our review here is limited to a consideration of whether that determination was correct as a matter of law.
In reviewing the appellate cases involving the authority of a civil service commission to modify a penalty, careful attention must be paid to the fact that not only are police and firemen treated differently by the legislature, but different statutory language is employed depending upon the nature of the municipality involved, i.e. city, borough, township, etc.
Moreover, we are impressed by the fact that the Commission sent the matter back to the Trial Board and even though that body, composed of Appellant’s peers, refused to allocate the penalty as requested by the Commission, they, as the body primarily responsible for the decision as to the methods necessary to uphold the morale and efficiency of the fire department and to maintain the public’s confidence in them,
We concur with the trial court that there is substantial evidence to support the charge of fighting and that the Trial Board did not abuse its discretion under the special circumstances of this case when it imposed the same penalty for the charge of fighting as it did for fighting and insubordination. The insubordination charge, as we have noted, was dismissed by the Commission because of notice problems, not substantive issues. Furthermore, it is apparent to us that the insubordination charge was almost peripheral to the alleged attack by the Appellant on a superior officer.
Having found no abuse of discretion or error of law by the Commission, we affirm.
It is ordered that the order of the Court of Common Pleas of Allegheny County entered June 12,1981, be and the same is hereby affirmed.
in Corle v. City of Oil City, 45 Pa. Commonwealth Ct. 559, 405 A.2d 1104 (1979) the issue of a city’s commission’s authority to modify a sanction of dismissal against a fireman was raised in the
See In Re Baker’s Appeal, 409 Pa. 143, 185 A.2d 521 (1962).