*1 paid $15,000.00 balance minus the to Walk and paid May) to Smallhoover.
To from the depart longstanding rule that “payment lesser sum than is is claimed ordinarily insufficient consider- ation to an accord and support satisfaction” under the facts produces this case a result unjust as as produced the conduct of Hazelwood’s agent.
In general, current conditions call for some may refine- of, ment or exceptions However, ancient rule. present case is controversy not the appropriate instance where modification either warranted As proper. valid as the majority’s simile of the Uniform Written Obligations Act, Act 13, 1927, 1, of May 6, P.L. 33 P.S. may § § to be appear on first reading, close reveals it scrutiny inopposite the instant case since that Act applies signers, rather than binds principals agents who have signed “intend to be they 6; bound.” 33 legally P.S. § Charles, Hoober v. 42 Lane. 673 (1931).
McDERMOTT, J., joins this dissenting opinion. Appellant,
Ronald E. SOJA POLICE, Appellee. PENNSYLVANIA STATE Supreme Pennsylvania. Court of
Argued Oct. 1982.
Decided Dec. *4 M. Lawrence Gary Lightman, J. for Neary, Harrisburg, appellant. Lied, Gen., O’Brien, A.
Sally Deputy Atty. Jr., Francis X. Gen., Asst. Atty. appellee. O’BRIEN, C.J., ROBERTS, NIX, LARSEN,
Before FLAHERTY, HUTCHINSON, McDERMOTT and JJ.
OPINION THE COURT OF NIX, Justice.
This is an from appeal an order the Commonwealth Court the action of the affirming State Police Commissioner the recommendation of accepting dismissal appellant entered Court Martial Board Police, State Police. Soja Pennsylvania State 43 Pa. Commonwealth Ct. A (1979). number objections have been raised his by appellant challenging dismissal. We review to granted question address the as to whether the procedures employed decision-making process violated his constitutional rights due procedural process and fair hearing. Specifically, appellant alleges that all requirement preliminary investigations, and recommendations be reports forwarded to the Commis
193 conflicts with institution the process, the prior sioner role adjudicatory process the primary Commissioner’s (Board) Board’s the Court Martial rejecting accepting See, Police Operations dismissal. recommendation of State 7-2, 23.4, (E)2a.1 p. paragraph Manual is that in view complaint of the due process The essence it is arbiter, the final ultimate role as the Commissioner’s information which may for him to have available improper the upon been on the record which not have contained It is suggest- dismissal was predicated. recommendation of potential depriving such a procedure possesses ed that of confrontation right accused of a trooper meaningful find follow, For the that we review. reasons adequate find the procedure this has substance and argument defective. that due is process fully principle applicable involving rights substantial
adjudicative hearings property before administrative tribunals is well established. Conesto Patterson, 289, Bank v. 442 275 Nat’l of Lancaster Pa. ga Woods, 341, (1971); 6 v. 393 Pa. A.2d Wiley Pa. Mallen, Commonwealth ex rel. v. 360 (1958); Chidsey A.2d 49 606, (1949); Pennsylvania 63 State Athletic Comm. Bratton, 598, 112 177 A.2d 422 There (1955). v. Pa.Super.Ct. is also little that member of the question in his Police an enforceable possesses property right State See, v. e.g., continued with force. Bolden employment Police, (E.D.Pa.1974); 1096 Lamoli F.Supp. Pa. State 371 788 v. 30 Pa. Commonwealth Ct. 373 A.2d Barger, nara Roth, cf. 92 Board of U.S. S.Ct. (1977); Regents L.Ed.2d 548 (1972). 23.4, 7-2, (E)2A p. paragraph Operations Police Manual 1. State pertinent part: provides in Department personnel, origi- investigation involves When copy, in-depth by Trooper nal with endorsements Commander Commander, through Area shall be forwarded channels in-depth reproduced copy report, A Commissioner. with an Commander, immediately Troop shall be for- endorsement separate directly warded under cover to the Commissioner ONLY investigation complaint when the results of the substantiate Disciplinary and/or Action recommended. *6 of due been prerequisites have process frequently articulated: essential elements due are process] ‘notice and
[The]
[of
opportunity
be heard
defend
an orderly
proceeding adapted
nature of the case before a
tribunal having jurisdiction of the cause’: 12 Am.Jur.
573,
267, 268;
pp.
Com. ex rel.
v.
Mut.
Chidsey Keystone
§
Co.,
105,
Cas.
Pa,
109,
664;
373
95
Kubler,
A.2d
Carter v.
243,
26,
1;
320
88
U.S.
L.Ed.
64
Bell Telephone
S.Ct. Ohio
v. Public Utilities
Ohio,
292,
Commission of
301
81
U.S.
1093,
724;
L.Ed.
57 S.Ct.
Interstate Commerce Commis
v.
Co.,
sion Louisville Nashville Ry.
88,
&
227
57 L.Ed.
U.S.
431,
185;
33
Jordan
S.Ct.
v. American
Insur
Eagle Fire
ance Company
U.S.App.D.C. 192],
169 F.2d
[83
Nat’l Bank of
Conestoga
Patterson,
Lancaster v.
442
supra
Pa. at 295,
Moreover, almost where every setting important deci- “[i]n sions turn questions fact, on due an process requires to confront and opportunity cross-examine adverse witness- es.” v. Goldberg 254, 269, 397 Kelly, U.S. 90 S.Ct. 1021, 25 L.Ed.2d (1970). 287 The United States Supreme Court has stated:
Certain principles have remained relatively immutable in our One jurisprudence. of these is that where govern- mental action seriously an injures individual, and the reasonableness the action on fact depends findings, evidence used to prove Government’s case must be disclosed to individual so that he has an opportunity to show it is untrue. While this important case evidence, of documentary it is even more where important the evidence consists testimony individuals whose might who, be or memory faulty fact, might be perjur- or ers persons malice, motivated by vindictiveness, intoler- ance, or prejudice We had jealousy. formalized these in protections requirements confrontation and cross examination. have ancient roots. They 474, 496, Greene v. 360 McElroy, 1400, 1413, U.S. 79 S.Ct. 3 L.Ed.2d (1959). 1377
195 but impaired, of confrontation right Not is the only court where the reviewing is impossible review meaningful considered in to it all of the facts have available does not ex rel. v. Fidelity U.S. U.S. Kinney reaching judgment. Co., 101, 56 L.Ed. 200 32 S.Ct. Guaranty & U.S. 222 Wilson, Under Section Guthrie Pa. (1861). (1911); the recom Code, it is clear that the Administrative advisory Martial Board is merely of the Court mendation discretion, in his follow “may, and the Commissioner clear that view. It is therefore ...” the Board’s disregard of the ultimate arbiter role is that the Commissioner’s not constrained process, the administrative within Martial Board. of the Court findings *7 which the Commis provides procedure The present inflam be and prejudicial that may with information sioner in two unfair the is trooper essentially concerning matory during was not First, presented if this information respects. action disciplinary the of the subject the formal proceedings, Second, its accuracy. to contest the opportunity is denied left is action the Commissioner by the reviewing the tribunal have influenced that may such information unaware of any the judgment.2 system employ of a multi-tiered State Police The proceedings disciplinary exist of disciplinary Three levels action. severity according to the proceedings is determined of and the level Disciplinary regulations. alleged the rules and breaches of of the action a supervisor up superior or draws a member’s is instituted when charges against (DAR) specifying report disciplinary certain a action copy given completed, to the is DAR is After the the member. hearing charges, is an informal For “first level” member. accused officer,” troop usually director or by “approval a division held commander. officer, an approval hearing before the level informal At this first any may present charges the member are discussed and the finding first level infrac- punishment a of a The facts. relevant tion is either a from 5 to 20 anywhere disciplinary training reprimand or written days. right appeal next level is also duty A provided. disciplinary board at charges a are heard before level Second right (1) department introduce have the the member and which respective posi- support reasonably their any evidence in relevant witness; any (3) reasonably tions; (2) cross-examine confront and evidence; (4) tape charges and/or comment on the make a final record the may or hearing proceedings. have counsel A member
196 power of Commissioner “to follow or disre recommendations as to be gard” discipline imposed it makes critical which that factors determine the exer cise that discretion the Commissioner be made a by part of the record.
The mere that fact the record the recom may support of the mendation Board of no moment where the Commis sioner’s reasons for exercising his discretion in accepting not refusing recommendation need have been predicated the facts upon the record before the appearing upon Board. The result of the scheme present discipline provides possibility information critical judgment Commissioner in the exercise of this discretion is insulated from refutation trooper escapes consideration by court. reviewing
When an administrative decision is
upon
based
infor
disclosed,
mation
collected and not
due
secretly
process
See,
are clearly
concerns
raised.
e.g., United States v.
Co.,
274,
565,
Abilene &
265
44
S.
U.S.
S.Ct.
68 L.Ed.
Ry.
(1923);
Farrell,
81,
1016
v.
20
Shortz
327 Pa.
193 A.
(1937);
Comm.,
Erie
v. Public Service
123
City
512,
Pa.
A. 471
(1924);
Case,
Shenandoah Suburban Bus Lines
158 Pa.Su
26,
per.Ct.
A.2d
aff’d 355 Pa.
301 (1946);
A.2d
Beach,
English
City
Long
35 Cal.2d
197 469, 9 A.2d Cronin, 336 Pa. cf. v. 929 Commonwealth (1976); 18 A.L.R.2d see (1939); generally, nature, whether in a judicial that is proceeding In any the of deci- process agency, court or in an administrative of the exclu- principle be basic governed by sion must is ob- this principle the record. ... Unless siveness of becomes meaningless. to a itself served, hearing the right to to evidence right present what real worth is the Of who if the one hearing, at a formal significance its argue from the record at will may stray decides the case his decision? reaching 545, 554 498, 514, 105 A.2d Cavicchia, 15 N.J.
Mazza v. (1954). failed to identify any Mr. has Soja
As noted by appellee, been com- him which have may item specific prejudicial this through procedure municated to the Commissioner However, not we do his position. resulted in prejudicing defect can be blatant potential the view that this accept to demonstrate of the of a inability party because overlooked defect, nature very prejudice. By actual in a position the harm would not be party subject To require with prejudice specificity. identifying would render in such a situation prejudice demonstration of due safeguards process illusory. that due does argument process We accept appellee’s must Nevertheless, rasa. a distinction not a tabula require itself where, here, generates as the system be made A valid cannot be analogy prop information. impermissible through finder of fact made to situations where a erly un information from sources totally acquires happenstance Moreover, in instances where even related to process. finder of fact inadvertently acquired, the information is the nature of thereby, depending upon be disqualified may Pa. v. Daugherty, Commonwealth that information. Cf. Frazier, 471 Pa. (1981); Commonwealth (1977). A.2d 1224 *9 198
Having concluded that the is procedure inherently defective, we address question determining proper With remedy. matters, reference future we hold now that the disciplinary procedure must be ex redesigned to clude this of information from the type Commissioner. more
A difficult is question presented attempting to fashion the relief appropriate for Mr. this Soja. Since particular defect only touches of the upon validity action, Commissioner’s the taint at that does not stage tarnish the that process prior to It therefore follows point. that this defect does predicate not establish a for invalidat the action of the If ing Board. the Board’s are findings supported by record and disci justify recommended pline, then Mr. are Soja’s rights protected this instance by our review independent recommendat Commissioner’s ion.3
Appellant contends that
Board’s decision
not
was
sufficient
supported by
evidence.4 The
review from
scope of
a
decision a court
martial dismissal whether the Board’s
are
findings
substantial evidence.
v.
supported by
McCann
17
Police,
Pa.
State
Commonwealth Ct.
Police,
330
573
v.
(1975);
A.2d
Grad
Pennsylvania State
Pa.
Commonwealth Ct.
887 (1974);
A.2d
Luchansky
Barger,
Pa. Commonwealth Ct.
Trooper guilty charges miscon- recognize disciplinary 3. We that one of the features of the scheme provide may given possibility was to that the Commissioner have greater weight mitigating rejected to certain factors and on that basis This, however, the recommendation of dismissal. is counterbalanced by permitted the fact that the scheme would have also the Commis- sioner have view taken harsher than the one recommended By eliminating the Board. consideration of the Commissioner’s deci- sion, possibility may we have avoided the he have been influ- Soja enced adverse to Mr. because of unrecorded In information. matter, great our of the record in we review this have looked with any mitigating impo- justified care for which factors would have discipline sition less severe. Although weight argument, labeled a of the evidence the substance arguments appellant’s speaks sufficiency of the evidence. *10 I, Conduct, 1-1.01,5 duct. Under FR Charge Unbecoming was found III and V. appellant specifications guilty III stated: Specification March, 1976,
On unknown date in used Trooper Soja toward En- derogatory language Township Stroud Code Officer, Miller, forcement Mr. a time when Harry during Mr. Miller was his duties. performing assigned On Soja direct admitted that he called testimony Trooper while Miller, Mr. Miller a “son of bitch” a building inspec- tor, was in an engaged Soja home was inspection Mr. building. Miller and another individual at the present time so testified at the court martial hearing.
Specification V under I stated as Charge follows: On unknown in March, 1977, dates February Trooper Soja followed a course of conduct which involved Trooper with a Soja known criminal in an to in attempt intervene an arrest of this known criminal made in New Orange, an Jersey, subsequently attempt by Trooper to Soja intercede in a officially between this known crimi- dispute nal and a legitimate business Jewel- enterprise: VanScoy ers, Edwardsville, All of Pennsylvania. incidents, these total, either or in constitute the singularly conduct type which could be reasonably expected destroy public respect for State Police Officers and/or confidence in the State Police. This is in Pennsylvania violation Pennsyl- vania State Police FR 1-1.01.
A review of the record convinces us that the Court Martial Board was correct in its finding that motive “Trooper Soja’s at the appearing New Police Orange, Jersey Station and one Jewelers in VanScoy Edwardsville, was to Pennsylvania perform a favor for a friend and personal it was his intent himself as a by identifying Pennsylvania State Policeman to 1-1, Charge I—Violation of F.R. 1.01 Unbecoming A Conduct: Member shall not conduct himself/her- unbecoming police self in a manner which is ato officer. Unbe- coming type reasonably conduct is that of conduct which could be expected destroy public respect for State Police officers and/or confidence State Police. obtain treatment on a preferential non related mat- police (R. ter.” 575a) there
Although
was conflicting testimony concerning
V,
Specification
Board,
as an administrative hearing
board, was
with
presented
substantial evidence on the issue
and was in the best
to assess the
position
credibility
witnesses and should not be second
on review.
guessed
Cf.
Taylor Unemp.
Review,
Bd. of
474 Pa.
Comp.
A.2d 829 (1977); Schwarzenbach v.
Bd. of
Unemp. Comp.
Review,
36 Pa. Commonwealth Ct.
(1978);
Recker v.
Review,
Bd. of
30 Pa.
Unemp.
Commonwealth Ct.
*11
327,
Under Charge Violation of F.R. 2.01 Perform- § ance was Duty,6 appellant found to have violated several I specifications. Specification provided: a substantial During of time period subsequent to the issuance of Special 74-126, 8, 1974, Order dated July to outside pertaining employment, fail Trooper Soja did adhere to and with the comply provisions of this Directive. 74-126, Order at Special Board, introduced requires that a member of the State Police obtain approval from the department before in engaging any outside employment. The Board found appellant of this guilty specification based on his own that of other testimony witnesses. Under one questioning by Sergeant Berringer, testi- Trooper Soja fied:
By Sergeant Berringer: [prosecuting officer] Q. You are aware of the moonlighting regulation. It
went into effect in in again et cetera. Were aware that you would have moonlighting been permit- ted in certain instances simply by asking Commis- sioner and expaining your hardship?
A. Yes. I am. 1-1, Charge II —Violation of F.R. § Duty: Performance responsible A member ... shall be held ... rules, regulations, manuals, for strict adherence to the and di- promulgated by Department. Ignorance rules, rectives regulations, and directives shall not be considered as an excuse of justification any violation of such a Member.
Q. Did do that? you
A. INo. didn’t.
Q. Why? A. Because I had a little with the officers experience and I didn’t think it was—
prior, Rather Q. than attempt obey regulation, just you decided to disregard regulation.
A. No. I it but I didn’t do gave thought, it.
Q. So you disregarded regulation?
A. Yes.
See Soja’s direct at R.408a. testimony II, Specification II, under stated as follows: Charge 12, 1977, On did July Trooper Soja fail to properly comply with a he Department Regulation failed to appear at a Third Level Disciplinary Proceeding violation of FR 3-3.05(b)2.
Both of incidents, these 1 and [Specifications either 2] total, or in singularly constitute a willful disobedience to of strict requirements rules, adherence to the regula- tions, manuals and directives promulgated Depart- ment. This is in violation of Police Pennsylvania State FR 1-2.01.
The Board found II Trooper Soja guilty Specification *12 based on his own that he failed to at a testimony appear scheduled Third Level Disciplinary Hearing.
The Board also found of Trooper Soja two guilty specifica IV, tions under Charge Competency.7 first specifica IV, Charge 1-2, 7. violation of of Code Conduct —F.R. § 2.04—Com- petency: competency properly A Member shall per- maintain sufficient to duty responsibilities posi- form his/her and assume the of his/her tion. He/She shall direct and coordinate in his/her efforts such a highest manner as will tend to establish and maintain the stan- efficiency carrying dards of out the functions of the Force. The competent fact that a employ- Member was deemed at the time of preclude judgment incompetency ment shall not of as the result performance duty wanting of his/her of which would indicate a adequate strength, qualifications, capacity require- or to fill the assigned incompetency may ments of his/her tasks. Such be by knowledge application required demonstrated lack of or of laws tions dealt with attitude and overall primarily Soja’s poor work his failure performance; to of his improve quality written reports incident after his low repeated warnings; his his with as well productivity; poor relationship superiors as other of the force (including members quarreling times; to at his failure fighting); report duty assigned his failure to debts from his pay outstanding resulting business; construction his intervention in the arrest off-duty of a with a friend in New known crimi Jersey; associating duties; nal not in the of his official his course displaying State Police while in an unofficial all acting Badge capacity, of which in prior resulted disciplinary proceedings against Trooper Soja.8 enforced; apparent unwillingness inability perform to be or tasks; assigned or failure to conform to work standards estab- rank, grade, Apart position. lished for the Member’s or from or in proof incompetency, addition to methods of other written repeated disciplinary record of actions for minor infractions of the rules, manuals, regulations, prima or will be considered directives R.39a; 1-2, incompetency.
facie evidence of P.S.P. F.R. 2.04. § history following disciplinary proceedings The record reflects against Soja by Trooper that were considered Board under the Competency charges. 6, Quarreling Fighting —October cepted or with Members. Ac- 1972— Level) day suspension. (Second (FR 1-1.31) (not five con- purposes Specification II). sidered for —April 16, Reports. Reprimand. (First 1976—Submission Oral Level) 1-2.28) (FR 21, —April Level) (FR 1-2.28) Reporting duty Reprimand. (First 1976— —Oral 2, day Accepted —October 1976—Conformance to laws. two suspension. (Second Level) (FR 1-102) 10, Unbecoming quarreling —November fighting imposed by Conduct or 1976— Penalty twenty-eight day suspension with Members Regional (Second Level) Disciplinary Eastern Board. (FR 1-1.31) 1-1.01 and FR Payment Adjudged guilty —March of debts. Eastern 1977— Regional imposed Disciplinary penalty pending Board. No Court (Second Level) (FR 1-1.26) Martial. Regional Disciplinary —June 1977—Associations. Eastern (Second Level) (FR 1-1.08) Board recommended Court Martial. prosecution. —June 1977—Intervention in arrest Eastern Regional Disciplinary (Second Board Court recommended Martial. Level) (FR 1-1.18) *13 Badge Regional Discipli- K. June Eastern Office. 1977— nary (Second Level) (FR Board recommended Court Martial. 1-1.- 06) The invoked the Department provisions Field Regula- tion FR 3-3.06D, Repeated Violations9 as the second specifi- cation under the Competency charges. Pursuant to FR 3-3.06, the level of punishment be raised may when several lesser level violations have disciplinary occurred within a two-year period, result that being accumulated minor infractions disciplinary warrant third level may action and eventual dismissal from the force.
The Board found Trooper Soja of both guilty specifica- tions of incompetency unanimously recommended his dismissal. We have reviewed the thoroughly entire record of the court martial and find all the proceedings Board’s to findings guilt be supported by “substantial evidence” and its recommendation to be appropriate.
Finally, appellant asserts three additional proce dural issues which he claims a reversal of requires his dismissal: (1) Whether is appellant entitled to active repre sentation of counsel in all stages of the Pennsylvania State Police disciplinary procedure; (2) whether the Common wealth Documents Law requires Pennsylvania Police Field Regulations concerning disciplinary procedures to be published Bulletin; and (3) whether appellant was denied due of law in process the legal Repeated punished 9. D. A repeated Violations: Member who is subject being punished violations higher at a level than specified accruing punishments after any a certain number of at (2) year period. punishment level within a imposed two If a was (2) years ago more than two determining it cannot be considered in required present whether the number of violations are to raise the punishment level of action. The first “raised” to the Second Level suspension shall not (10) days. result for more than ten punishment second “raised” to the Second Level shall not result suspension twenty (20) However, days. for more than subse- quent punishments may raised which result in Third Level action justified repeated are in that infractions are “Prima Facia” [sic] incompetency. evidence of (2) Level, 1. After two subsequent actions at the First or Second automatically First Level actions are pun- raised to Second Level (10) ishments at a twenty (20) days maximum of either ten suspension. (Refer 3.06, D.) punishments Level, 2. After two at the Second third and subse- quent punishments automatically are raised to Third Level action. *14 204
procedures unfair, used the Police are by Pennsylvania State discriminatory and create a double standard. We agree with the Commonwealth Court that has waived appellant the first issue and find issues two and three to be wholly without merit and not requiring explication. the Board’s
Accordingly, recommendation of dismissal is affirmed.
McDERMOTT, J., concurs in the result.
ROBERTS, J., files a concurring opinion joined by O’BRIEN, C.J., HUTCHINSON, J.
ROBERTS, Justice, concurring.
I that the record the dismissal agree of supports appellant, but I the do not of Mr. Justice Nix or his join opinion opinion’s mandate. The assertion that the opinion’s discipli- used procedure by State Police is nary Pennsylvania defective” as a matter of constitutional due “inherently and its process suggestion should be procedure not the nature of the “redesigned” only misperceive discipli- but, on nary challenged followed, this if procedure appeal would also unnecessarily unwisely impair proper administrative function of the Commissioner of Pennsylva- Moreover, nia Police. the alternative State procedures sug- to this “defect” gested by opinion remedy speculative could well harm the due interests which very process they are to supposed protect. the routine challenged appellant is procedure prac-
tice within the
Police of
forwarding
State
the Commissioner information that relates to preliminary
conduct,
into
as these
investigations
police
investigations
view,
In
take
the Commissioner cannot
place.
appellant’s
review the recommendation of the Court-martial
impartially
in a
case if the
has
particular trooper’s
Board
Commissioner
received
into
previously
copies
investigations
preliminary
conduct.
trooper’s
Contrary
view
Commissioner’s
appellant,
mere
at some
receipt
copies
preliminary investigations
constitute
does not
hearing
time
to the court-martial
prior
man as a
. . .
average
judge
“a
possible temptation
nice, clear,
balance
and true between
not to hold the
the latter due
[,
process
state and the accused
denies
which]
510, 532,
437, 444,
Ohio,
S.Ct.
Tumey
law.”
U.S.
Dussia v.
466 Pa.
(1927). Compare
Barger,
If, to the made the of Mr. suggestion opinion pursuant were Nix, Justice the Police to “exclude Pennsylvania State prior from the Commissioner [preliminary investigations] the his as to the Board’s recommenda- exercise of discretion would tion,” investigations all of all reports preliminary view, there is, have to be from the Commissioner’s for kept course, no of of an way knowing preliminary stages court-martial, whether a other form of investigation any Thus, will follow. for the sake discipline, correcting in few cases which will result in harm those speculative court-martial of Mr. Justice Nix proceedings, opinion of all would the Commissioner to require ignore reports arise, substantially impair- concerns as thus disciplinary they head essential as “the and authority Commissioner’s ing of the Police.” P.S. executive officer State Pennsylvania an awareness of the 251(a). incomplete disciplinary With § command, his the Commissioner the force under problems out Police would be unable to carry State duties to “make rules and regula- his effectively statutory Governor, tions, of the subject approval prescribing to, of, or retention qualifications prerequisite membership force; enlistment, for the and con- training, discipline, force; duct of the members of the for the selection and merit; of such members on the basis of for the promotion members, such filing hearing charges against other such rules and as are deemed regulations necessary the control and of the Police Force.” 71 regulation State 251(a). P.S. §
The alternative of Mr. Justice suggestion opinion Nix creates the due that it very process problem purports solve. By suggesting Police Pennsylvania State should “make information received by this any [preliminary of the record so that investigation] process part well as a charged trooper reviewing as tribunal will be it,” aware of would allow the opinion implicitly Commis sioner to information that which he is beyond rely upon authorized to consider. statutorily Although charged “aware” would be information once the trooper record, it Commissioner had on the he would have no placed *16 and opportunity respond through examination cross- witnesses, he examination as is able to to all respond issues raised at the court-martial hearing. Without record, information, of an this which oth support adequate considered, little, erwise should never have been would be of if use to a on where the any, complaining trooper appeal, court would be to sustain the reviewing obliged Commission er’s decision if there is substantial evidence of the appel lant’s reasonable doubt. See Graci v. Penn guilt beyond Police, 14 630, State Pa.Cmwlth. sylvania v. 14 Pa.Cmwlth. 321 A.2d (1974);. Luchansky Barger, 376 (1974).
As no constitutional infirmity procedures employed established, Police has been there State by to fashion the gratuitous is no reason “remedy” suggested of Mr. Justice There is Nix. reason not opinion every a “remedial” directive whose procedures will serve impose to create new and The order only unnecessary problems. the Commonwealth Court must be affirmed.
O’BRIEN, C.J., HUTCHINSON, J., in this join opin- ion. A.2d Pennsylvania, Appellee,
COMMONWEALTH of WHITE, Appellant. Edward Supreme Pennsylvania. Court of
Submitted Oct. 1982.
Decided Jan. Lantieri, Paul F. Philadelphia (court-appointed), appel- lant. Lawler, Chief, Div.,
Robert B. Asst. Dist. Appeals Atty., for appellee. ROBERTS, C.J., NIX, LARSEN, FLAHERTY,
Before McDERMOTT, ZAPPALA, HUTCHINSON and JJ.
ORDER OF COURT PER CURIAM: OF AFFIRMED.
JUDGMENT SENTENCE