79 Pa. Commw. 322 | Pa. Commw. Ct. | 1984
Opinion by
Lower Providence Township (Township) and the Lower Providence Township Board of Supervisors (Board) appeal here, from an order of .the Court of Common Pleas of Montgomery County directing the Township to .reinstate Joseph Nagle to his former position as a sergeant on the Township’s police force. We affirm.
On October 9, 1980, the Board informed Sergeant Nagle, a fifteen year veteran on the Township’s police force, by letter, that he was being indefinitely suspended from his job. This letter, .although not made a part of the record certified to this Court, was quoted in its entirety ¡by the Court below, and reads in .pertinent part as follows:
Please be advised that the Board of .Supervisors has met in an emergency personnel session on Thursday, October 9, 1980, at 3:30 P.M. At this time, in the presence of all Board members, medical reports from Jonathan H. Claney, M.D. and Ron Fischman, Ed.D. were opened and read. Copies of these reports are enclosed herein and for purposes of the Police Tenure Act, they shall .serve as the written statement of charges filed against you....
As a result of reading the medical reports, the Board voted to suspend you as an active Police Officer immediately .and indefinitely. . . .
At the time ¡Sergeant Nagle received this notice, he was on an authorized leave of absence, and had agreed, at the request of the Township's Police Chief, to be examined by Dr. Claney and Mr. Fischman, because he desired psychological counseling. He was not aware, however, that these examinations were being conducted for .investigative purposes, and had not authorized the release of any information to the Township.
Sergeant Nagle was dismissed from his position pursuant to the ¡authority granted in ¡Section 2 in what is popularly referred to ias the Police Tenure Act (Act), Act of June 15, 1951, P.L. 586, as amended, 53 P.S. §812. Section 5 of the Act, 53 P.S. §815, provides that the ‘ ‘.dismissed employee .shall have the right to appeal to the Court of Common Pleas of the county in which he was employed[,] ” but provides no explanation of the court’s .scope .of review in such appeals. With respect to this question, however, our Supreme Court ¡stated the following in Vega Appeal, 383 Pa. 44, 117 A.2d 736 (1955):
[I]n view of the procedure outlined in the Act of 1941 which expresses the intent of ¡the legislature in substantially similar proceedings, we ■are of [the] opinion that the Court of Common Pleas on such .an appeal may take additional testimony and find for itself the facts necessary to a just determination of the controversy. And, for the same reason, it would seem that the ¡Court of Common Pleas ¡should have the same power under the 1951 statute as [that given it by the Act of 1941 to determine the case ‘as .the court deems proper,’ and to make its own order concerning..the . . . discharge of the officer.
Id. at 48, 117 A.2d at 738. Expanding on this analysis, we noted .in In Re: Appeal of Redo, 42 Pa. Commonwealth Ct. 468, 401 A.2d 394 (1979), .that ¡appeals brought pursuant to ¡Section 5 of the Act were exempted from the provisions of Section 10 of the Local
Section 754(b) provides in pertinent part that [i]n ¡the event a full and complete record of 'the proceedings before the local agency was made, the court .shall affirm the adjudication unless it shall find that the adjudication is in violation of .the constitutional rights of .the appellant, or is not in accordance with law, ... or that any finding of fact made by ¡the agency and necessary to ¡support its adjudication is not supported by .substantial evidence.
Section 754(a) of the Law, 2 Pa. C. S. §754(a), in turn, provides that where a full and complete record .of the proceedings before a local agency has not been made, the court “may hear the appeal de novo, or may remand the .proceedings to the agency for the purpose of
In the present ease, ‘the court concluded (1) that since the Board did not address the question of bias, the record of the proceeding’s before tbe Board was incomplete, and (2) that the court was .therefore authorized by the provisions of Section 754(a) of the Law to hear the appeal de novo. It is apparent, however, that the Board did not address the issue of bias because that issue was not raised before it, and since a full and complete transcript of the proceedings before the Board on the issues that were properly raised there, was forwarded .to the court, we must conclude that the court improperly heard the appeal de novo. In Re: Appeal of Gettler, 42 Pa. Commonwealth Ct. 415, 400 A.2d 1339 (1979).
At this juncture, we could review the voluminous record in this ease to determine if substantial evidence exists in support of the Board’s finding that Sergeant Nagle is mentally disabled from performing his job. We believe tbat such an endeavor is unnecessary here, however, in light of the court of common pleas ’ alternate conclusion that the Board’s decision was invalid because of impermissible bias, a conclusion which we believe, contrary :to .the Township’s assertions, to be correct. Before addressing this issue, however, we feel compelled to comment on the procedural posture of this case.
.Section 75.3(a) of the Law, 2 Pa. C. S. §753(a), clearly provides with certain exceptions not applicable here that a party who has proceeded before ,a local agency may not raise on appeal any question not raised before the local agency “unless allowed by the Court upon due cause ¡shown.” Even if due cause is shown, of course, it is clear from reading Section 753 (a) in conjunction with Section 754 that only legal, and not factual issues, may be raised for the first time
[i]f an appeal is 'improvidently taken to a Court under any provision of law from the determination of a governmental unit where the proper mode of relief is .an action in the nature of equity ... or otherwise, this alone .shall not be a ground for dismissal, but the papers . . . shall be regarded and lacted on as a complaint ... against tbe governmental unit....
Section 708 of the Judicial -Code, 42 Pía. C. S. §708.
Here, siuce there is (1) no indication in the record before ns that Sergeant Nagle knew or should have known of the evidence indicating bias which the court of common pleas relied upon prior to the issuance of the Board’s order,
A general rule has emerged (that a decision made by a tribunal after a formal adversarial hearing, where that tribunal has previously generally supervised an .investigation into the same matter or made a pre-hearing determination of probable cause, is not per .sie an adjudication rendered by a biased tribunal, as long as the prosecutorial .and investigatory aspects of the matter are adequately separated from the adjudicatory function.
Redo, 42 Pa. Commonwealth Ct. at 471-72, 401 A.2d at 396 (1979). In ¡applying this .principle to cases arising under the Act, we have concluded that ¡there is an adequate .separation of the prosecutorial and investigative aspects of a matter .and the adjudicatory functions where a member of the B.oiard of Supervisors, in the course of performing his job as township manager or mayor, investigates or prepared .charges, but does not file them, and ¡then participates in deciding the merits of the filed charges. See Appeal of Schultz, 58 Pa. Commonwealth Ct. 24, 427 A.2d 290 (1981); Kelly v. Warminster Township Board of Supervisors, 44 Pa. Commonwealth Ct. 457, 404 A.2d 731 (1979); Barr v. Pine Township Board of Supervisors, 20 Pa. Commonwealth Ct. 255, 341 A.2d 581 (1975); see also Redo (No impermissible commingling of functions where board members signed suspension and termination
Order
Now, January 3, 1984, the order of the Court of Common Pleas of Montgomery County at No. 81-09474, dated February 12,1982, is affirmed.
The court ateo indicated in its order that an appeal by the Board should not operate as an automatic supersedeas pursuant to Pa. R.A.P. 17S6(.b), and Sergeant Nagle te currently working on the Township’s police force.
Act of December 2, 1968, P.L. 1133, formerly 53 P.S. §11310, repealed by Section 2(a) of the Judiciary Act Repealer Aqt, Act of April 28, 1978, P.L. 202.
Although a newspaper editorial dated prior to the issuance of the Board’s decision was offered into evidence which indicated that the editorial writer believed that certain supervisors were .biased, this evidence doesn’t relate to the issue of the impermissible commingling of prosecutorial and adjudicatory functions upon which the court based its decision, and hence is not evidence of notice.