558 A.2d 174 | Pa. Commw. Ct. | 1989
Opinion by
Petitioner, Ronald Leonard, was a trooper with the Pennsylvania State Police. In April of 1988 a Court-martial Board (Board) recommended that petitioner be dismissed for violating police regulations. The dismissal was made final by an order of the Deputy Commissioner of the state police.
The evidence against petitioner consists primarily of the testimony of Penelope Hebert. According to Hebert, the cocaine was in plain view of Leonard during the party. Petitioner makes three arguments as to why Hebert’s testimony was improper. First, petitioner argues that his right to cross-examine the witness was denied because the Board did not compel Hebert to respond to questions concerning her place of employment. While the state police attorney was obtaining basic information about the witness during direct examination, Hebert refused to answer a question as to where she worked. Petitioner’s attorney then asked Hebert again, during cross-examination, where she worked and she again refused to answer. The witness expressed concern about being harassed at her work place by her former fiance, Daniel Lemak, the host at the party, who, she testified, was a friend of petitioner. The Board declined to compel the witness to answer the question because of this testimony and be
Petitioner’s second argument is that, again, his right to cross-examine a witness was denied because the Board refused to compel Hebert to testify about the name of a doctor she had consulted. During cross-examination, Hebert was asked questions concerning what occurred during this consultation, which she answered. But when she was asked to give the name of the doctor, she refused. Her reason for not giving the name was her belief that someone had forged a letter with the name of another doctor she had been seeing and sent the letter to the Department of Transportation which caused her driver’s license to be suspended. Hebert testified that she feared a similar occurrence with the second doctor’s name and refused to answer the question, even when the Board requested that she answer.
In disposing of these two arguments, we look to Section 711(b)(2) of The Administrative Code of 1929
The Court-martial Board shall have power to issue subpoenas requiring the attendance of witnesses at any hearing and shall do so at the request of the party against whom a complaint is made. If any person shall refuse to appear and testify in answer to any subpoena issued by the board, any party interested may petition the court of common pleas of the county wherein the hearing is to be held setting forth the facts. The court shall thereupon issue its subpoena commanding such person*645 to appear before the Court-martial Board, there to testify as to the matters being inquired into. Any person refusing to testify before the Court-martial Board may be held for contempt by the court of common pleas.
The statute does not give power to a Court-martial Board to compel someone to testify. The Board has no authority to hold someone in contempt. Instead the statute states that “any party interested” may petition the court of common pleas in the county where the hearing is held to compel a witness to testify and the court may use its contempt powers to do so. It was petitioner’s responsibility to petition the common pleas court to compel Hebert to answer questions which she refused to answer.
We note that the language quoted from the statute, when read in its entirety, could be interpreted as controlling only the issuance of subpoenas to appear before the Board. We hold that this language also requires an interested party to petition the Common Pleas court when a party who has appeared refuses to testify. Otherwise the interested party would have no recourse to compel the witness to testify since the Board is not only not required to seek a contempt order under the statute, but is not authorized to seek a contempt order. (Compare Miller v. Unemployment Compensation Board of Review, 99 Pa. Commonwealth Ct. 137, 512 A.2d 797 (1986), in which this Court held that it was error for the Unemployment Compensation Board of Review not to take steps to enforce its subpoena for relevant employer records where the statute governing the board authorizes the board or its agent, and not an interested party, to petition the common pleas court to direct the production of subpoenaed records.)
One further consideration is to determine exactly when a party may petition the Common Pleas court. If
We will, now examine the situation surrounding Hebert’s refusal to answer the question concerning her place of employment. Hebert refused to divulge where she worked when asked both on direct and cross-examination. On both occasions petitioner’s attorney objected to her refusal but the Board did not direct Hebert to answer the question because the Board did not consider the inquiry to be relevant to the proceeding. Petitioner’s attorney indicated in his objection that Hebert’s place of employment, might be relevant if her employer had a personal interest in seeing petitioner’s career suffer and he argued that he should be given an opportunity to explore this possibility.
We are persuaded by this argument and hold that the Board abused its discretion by ruling that this question was not relevant and by not directing Hebert to answer it. Because the Board did not direct Hebert to answer this question, petitioner could not pursue a contempt order in Common Pleas court. We will therefore reverse the Board’s ruling that the question was not relevant and remand so that the Board may direct the witness to answer the question. If the witness continues her refusal to answer, petitioner may pursue contempt proceedings in Common Pleas coiirt.
Petitioner’s third argument concerning Hebert’s testimony is that her statement during cross-examination that she took a polygraph test irreparably tainted the proceedings. The following exchange took place between Hebert and petitioner’s counsel while counsel was asking questions concerning Hebert’s interview with a state police officer:
Q. And what did you tell him?
A. I told him about the incident.
Q. And you still didn’t describe the incident as you did today; did you?
A. Yes, I did.
Q. You described it exactly the same way?
A. Yes, and I had to go take a lie detector.
(R. 97a) At this point petitioner’s counsel claimed that a fatal error had been made and a discussion of the issue ensued. This was the only reference to a polygraph test made by Hebert.
Petitioner cites three cases in support of his argument. Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976); Ross v. Civil Service Commission, 98 Pa. Commonwealth Ct. 565, 511 A.2d 941 (1986); and Township of Silver Spring v. Thompson, 90 Pa. Commonwealth Ct.
Petitioner next argues that it was error for the Board to accept the testimony of Hebert that petitioner saw cocaine at the party, but reject her testimony that he was using cocaine. The Board, as fact finder, is free to accept or reject the testimony of any witness, in whole or in part. Spehar v. Commonwealth, Department, of Public Welfare, 67 Pa. Commonwealth Ct. 310, 447 A.2d 333 (1982); In the Matter of Real Estate License No.R.B. -001518-A, 47 Pa. Commonwealth Ct. 236, 407 A.2d 922 (1979).
Petitioner’s last argument concerns the state police denial of access to information obtained in their investigation of this matter. Petitioner appears to be arguing that it was a denial of due process for the state police to refuse
In summary, we reverse with respect to the Boards ruling on the relevance of the question concerning Heberts place of employment, vacate the order of the Pennsylvania State Police Deputy Commissioner and remand solely so that the Board may direct Hebert to answer this question and permit petitioner to pursue contempt proceedings if Hebert refuses.
Order
Now, May 9, 1989, the order of the Pennsylvania State Police Deputy Commissioner, dated April 14,1988, is vacated and the matter remanded for proceedings consistent with the accompanying opinion.
Jurisdiction relinquished.
The Commissioner of the state police delegated his authority to render a final decision to the Deputy Commissioner because of the Commissioners prior involvement in the investigation of the charges brought against petitioner. (Delegation of Authority, dated April 7, 1988, by Commissioner Ronald M. Sharpe.)
Act of April 9, 1929, EL. 177, as amended, 71 ES. §251(b)(2).
Petitioner also argues that the finding that cocaine was in plain view of petitioner is not supported by substantial evidence. This argument is based on petitioner’s argument that this Court should strike Hebert’s testimony because of a violation of the right to cross-examination. Since we see no basis for striking her testimony, we need not address this argument.