Gardner v. RepaskyGardner v. Repasky
- Reporters:
- , ,
- Before:
- Bell
Lead Opinion
Opinion by
Mr. Justice Cohen,Aрpellant, a police officer in Sayre Borough, appeals from a two week suspension ordered by Borough Council and affirmed by the Civil Service Commission of the Borough and the Court of Common Pleas of Bradford County. Because of the invalidity of the proсedural aspects of this suspension, we reverse that action without reaching the merits as to appellant’s behavior.
In October, 1963, the Fire Board and Ambulance Board of the Borough sent letters to the mayor complaining about the cooperatiоn they were receiving from appellant. The Sayre Borough Police Committee decided to further investigate and requested аppellant to attend a meeting on December 6, 1963. At that time appellant refused to testify without his attorney who was not permitted to attend the meeting. Another meeting on December 27, 1963 resulted in a recommendation to Borough Council that appellant bе suspended. At a meeting on December 30, Council suspended appellant for two weeks and notified him by mail on January 2, 1964. On January 7, aрpellant took an appeal to the Civil Service Commission. Throughout this period appellant was not furnished with a written speсification of charges despite his several requests. More than a year later Council furnished the charges to the Commission and gаve a copy to appellant. The Civil Service Commission held hearings on April 26, 1965 and finally on November 15, 1965, but
The suspension, removal; or demotion .of a policeman or fireman at the time was governed by Section 1184 of The Borough Code, Act of May 4, 1927, P. L. 519, added 1947, July 10, P. L. 1621, §39,
The proper procedure is to file the charges at the time Council suspends the employee and notify the employee of same within five days. There are at least three reasons for requiring this procedure: (a) that the employee may be informed of what misbehavior he is accused and rectify it if he so chooses, (b) that the employee cаn determine whether the charges are statutorily sufficient, and (c) that he can decide whether to take an appeal tо the Civil Service Commission and, if he does, to file a timely answer.- Appellant in this case was forced to take his appeal withоut a specification of charges, several of which had to be dropped as statutorily deficient. Had Council suspended him withоut first questioning him, as it may do, he would not have known the charges here until some thirteen
Furthermore the Commission has adopted, with the approval of Council and in accоrdance with §1170 of The Borough Code, rules and regulations for carrying this subdivision of The Borough Code into effect, §901 of which reads: “Whenever any police officer in the Borough is suspended, removed or reduced in rank, the specific charges warranting each such action shall be stated in writing by the appointing authority. The charges shall be stated clearly and in sufficient detail to enable the pеrson accused to understand the charges made against him and to answer them. As soon as practicable, the statement of charges shall be filed in duplicate with the Commission, and within five (5) calendar days of such filing, the original copy of the statement of charges shall be delivered to the person accused either by personal service or by certified registered mail.” This substantiates our position with respect to informing the employee quickly and clearly so that he may take whatever legal action he wishes оr rectify his behavior. Council and the Commission have made these rules to which they should adhere.
Another independent ground for reversal is the position of conflict occupied by John Repasky. Repasky was a member of the Fire Board which originally complained about appellant and a member of the Civil Service Commission which heard appellant’s appeal. (He cast the deciding vote for suspension in a 2-1 Commission decision). Appellees claim that no bias in fact has been shown and that Repasky tоok no part in making the original complaint. This is not to the point. “. . . [A]nv tribunal permitted by law to try cases and controversies must not only be unbiased but must avoid even the appearance of bias.” Commonwealth Coatings Corp. v. Continental Casualty, 393
We held in Schlesinger Appeal, 404 Pa. 584, 172 A. 2d 835 (1961), that where a prosecutor and judge were combined in one body, the accused was denied a fair hearing to which due process of law entitled him.
Vandergrift Borough v. Polito, 407 Pa. 286, 180 A. 2d 215 (1962), is distinguishable and has no application to the present situation. There it was contended and rejected that a commissioner who sat at the original hearing and rendered an opinion could not sit on rehearing.
Becаuse of the long delays and the looseness of the procedure that denied appellant the protection afforded by the Act of Assembly and due process, the order of the lower court is reversed and the suspension set aside.
Mr. Chief Justice Bell and Mr. Justiсe Eagen concur in the result.Notes
The Borough Code now applicable is Act No. 581, 1965, P. L. (1965) 1656 (February 1, 1966) as amended by Act No. 181, October 9, 1967, P. B. ,
Dissenting Opinion
Dissenting Opinion by
Mr. Justice Roberts:It is my view that this Cоurt does not have jurisdiction of this appeal. Neither the parties to this action nor the majority has cited one similar case which this Court has heard. Nor has my research revealed any. Therefore, the appropriate recourse would be for us to eithеr quash the appeal or remit it to the Superior Court; that Court has initial appellate jurisdiction in civil service appeals unless they come under this Court’s equity jurisdiction.
“All actions arising from proceedings and orders of any commission or administrative agency, except as otherwise provided by statute . . . .”