Appeal, No. 199, March T., 1959, from order of Court of Common Pleas of Westmoreland County, July T., 1958, No. 307, in case of Borough of Vandergrift et al. v. Joseph Polito. Order reversed. Proceedings on appeal from decision of civil service commission dismissing policeman. Before WEISS, J. Adjudication filed dismissing appeal and order entered. Policeman appealed.
Frank J. Zappala, Jr., with him Zappala & Zappala, for appellant.
Carroll Caruthers, with him Joseph Ceraso, for appellees.
Before Jones, C.j., Bell, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
The appellant, a policeman, was suspended by the Burgess of a borough and thereafter removed from his position by the civil service commission of that borough, which action was sustained by the common pleas court. He now appeals to this Court contending (a) he was entitled to a jury trial on the ground that criminal conduct was alleged against him; (b) that the "hearing" required by the statute was not held.
This Court reviews the action of the court below in a nature of broad certiorari. "We therefore look beyond jurisdiction of the court below and regularity of
the proceedings to determine, by examining the testimony, whether the findings are supported by evidence or whether the court was guilty of an abuse of discretion in such connection or an error of law. ..." Bell Appeal, 396 Pa. 592, 610, 611, 152 A.2d 731.
Under Article XI, § 1184, of the Act of May 4, 1927, P.L. 519, as codified, 53 P.S. § 46184, it is provided that a borough policeman may be removed, inter alia, for "(3) violation of any law of this Commonwealth, which provides that such violation constitutes a misdemeanor or felony." This policeman was charged with adultery which is a misdemeanor under the Act of June 24, 1939, P.L. 872, § 505, 18 P.S. § 4505. There was ample evidence to sustain the charge but the policeman contends that since the conduct on which he was dismissed constituted a criminal offense, he was entitled to be tried by a jury. There is no merit to this contention. The civil service commission has valid statutory power to remove persons from police positions for conduct that is personal to the policeman and which would, if proved, constitute a disability to perform his duties. That such conduct may also constitute a criminal offense does not oust that power. The civil service commission is determining only his statutory right to continued employment, not his liability to be fined or imprisoned. The statute does not make "conviction" a condition precedent to discharge but only violation. The civil service commission is just as much entitled, for administrative purposes, to determine, at a statutory hearing, that the policeman violated the law as would a court and jury be entitled to determine the same question at a criminal trial.
The second contention of the policeman is that upon his request he was entitled to a hearing and that at such hearing he was entitled to "be present in person and by counsel", and that "A stenographic record of ...