82 Pa. Commw. 580 | Pa. Commw. Ct. | 1984
Opinion by
Clarence Schmidt, Appellant, appeals from a decision of the Court of Common Pleas of Allegheny County which affirmed the decision of the Civil Service Commission of the Borough of Baldwin (Commission).
Schmidt, a twenty-eight year veteran of Baldwin Borough’s police force, was suspended by the Mayor of Baldwin pursuant to Section 1124 of the Borough Code (Code).
(2) Neglect or violation of any official duty.
(3) Violation of any law which provided that such violation constitutes a misdemeanor or felony.
(4) Inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming an officer.
(5) Intoxication while on duty.
The Borough Council discharged Appellant at its next meeting following the suspension. Appellant ap
Factual History
Appellant was on duty on February 15,1982, when he was told, via radio, to investigate a possible burglary at a service center in Baldwin Borough. Appellant, having found no sign of a break-in, radioed in his findings. Shortly after the Appellant’s report, other officers arrived at the service center and discovered a 20" x 30" hole in the rear of the building. Later that night one of Appellant’s supervisors discovered a sledgehammer in Appellant’s patrol car and asked where it came from. Appellant denied any knowledge of the hammer even though evidence was later adduced which showed that Appellant found the hammer in the vicinity of the service center which was burglarized and placed it in his car, but did not recognize any connection between the burglary and the sledgehammer found. (The Allegheny County Crime Laboratory subsequently concluded that the sledgehammer was in fact used in the burglary of the service center.)
Discussion
The decision rendered hy a civil service commission must be upheld unless there has been a violation of constitutional rights, an error of law, noncompliance with the Local Agency Law, or if any factual finding made by the commission necessary to support its decision is not supported by substantial evidence. Civil Service Commission of Philadelphia v. Saladino, 47 Pa. Commonwealth Ct. 249, 252, 408 A.2d 178, 180 (1979).
Appellant argues that he was denied adequate notice of the charges against him; the facts indicate otherwise. The Mayor suspended Appellant until the next meeting of the Borough Council, at which time the Council decided to dismiss Appellant. A notice of the decision and the charges filed against him were sent to Appellant two days later, which is well within the five day limit contained in the Code.
I. Substantial Evidence
Next, Appellant contends that the Commission’s findings, as adopted by the court below, are not supported by substantial evidence.
The Commission found Appellant guilty of neglect by reason of his failure to maintain complete radio contact with the station.
Finally, the Commission decided that Appellant disobeyed orders by withholding information concerning the sledgehammer.
The Commission specifically refused to find that Appellant committed a misdemeanor or felony or that he was intoxicated while on duty. After an exhaustive review of the transcript of the hearing and the entire record, we find substantial evidence to support the Commission’s findings of fact.
II. Due Process
Lastly, Appellant argues that he was denied due process of law. Asserting an allegation of bias, Appellant offers the following statement made by a Commission member as proof: “You may feel free — we already know what the end result of this is going to be anyway. We will continue on with the hearing.”
Appellant attempts to bolster his allegation of prejudice by claiming that the Borough Solicitor also acted as prosecutor for the Commission. The court
Appellant objects to the admission of hearsay testimony during the hearing before the Commission. Inasmuch as substantial evidence was provided to support the Commission’s findings exclusive of any hearsay admitted below, we need not address Appellant’s objection.
Next, Appellant decries the failure of the Commission to grant his request for a closed hearing under 53 P.S. §46191 which provides:
A stenographic record of all testimony taken at such hearing shall be filed with, and preserved by the Commission, which record shall be sealed and not available for public inspection in the event the charges are dismissed.
A simple reading of the statute refutes Appellant’s claim. The charges were not dismissed, obviating any reliance which Appellant attempts to place on the section. The decision of the Commission to conduct an open hearing must stand absent a showing of an abuse of discretion.
Order
And Now, May 30, 1984, the decision of the Court of Common Pleas of Allegheny County in the above-captioned case is hereby affirmed.
-Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §46124.
53 P.S. §46190.
Although the appeals were not formally consolidated, oral arguments were heard together and the same set of operative facts govern both appeals. The same issues having been dealt with in the instant ease, the decision of the Court in the cross-appeal (No. 892 C.D. 1983) filed this same day, rests upon the reasoning contained herein.
53 P.S. §46190.
53 P.S. §46190(2).
Reproduced record, p. 316a :
Q. Is there any reason why you didn’t radio the dispatcher telling her that you would be out of the car?
When I pulled up in front of the house, I was going to call in by phone. Because it was the time of the morning, you never stop at home. X don’t think — I told them my ear was bothering me. I forgot to call in ... I made a mistake by not calling in.
53 P.S. §46190(2).
Id.
Appellant’s brief, p. 31.
N.T. pp. 5a, 6a:
Mr. Dee: I hope everybody involved here realizes we had cancelled almost four meetings for the hearing, et cetera.
*585 Mr. Manifesto: Not pursuant, to court order.
Mr. Dee: We had done this.
Mr. Manifesto: If I may respond, you are correct that
there were, I believe, three or four postponements. The one at my request, the last, one, was refused by the board. I went to court and secured an injunction. As the board may or may not be aware, there are constitutional matters; and I wanted an injunction as to those matters which have been disposed of, two separate matters, in front of a magistrate in one district and one in another district. Both were discharged as not being sufficient. There were compelling reasons.
I only ask at this point — because I have a motion — I ask that the board rule upon the motion. Then we can proceed.
Mr. Bradley: The commission refuses your request.
Mr. Manifesto: Fine.
Mr. Bradley: You may feel free — we already hnow what the end result of this is going to be anyway. We will continue on with the hearing. (Emphasis added.)
Mr. Manifesto: Fine.
Mr. Bradley: The commission, if I may add, the commission has suffered one of these clear down to the deadline when you canceled one hearing and Mr. Luke canceled one because of the unavailability of witnesses. And this commission has already tried one case with only two men, and we are not about to set with two again.
In all fairness to Officer Schmidt, we canceled one because one man was not available. All three of us are here now.
We feel free that three people will give him a fair hearing,
The record fails to disclose exactly how many postponements occurred. See N.T., p. 5a.
With further reference to hearsay evidence at, administrative proceedings, see Gordon v. Civil Service Commission, 67 Pa. Commonwealth Ct. 467, 470, n.3, 447 A.2d 713, 715, n.3 (1982).