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DEVITO v. CIVIL SERVICE COMMISSION (06/26/61)

June 26, 1961

DEVITO
v.
CIVIL SERVICE COMMISSION, APPELLANT.



Appeals, Nos. 115 and 116, Jan. T., 1961, from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1959, Nos. 3266 and 3250, in case of Saverio J. DeVito et al. v. Civil Service Commission of the City of Philadelphia. Order affirmed.

COUNSEL

Levy Anderson, First Deputy City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for Civil Service Commission, appellant.

Samuel C. Tabbey and Ray E. Machen, with them Bernard J. Lemisch, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bell

[ 404 Pa. Page 356]

OPINION BY MR. JUSTICE BELL.

The present appellees - DeVito and Stape - were police officers in the City of Philadelphia. On the night of August 21, 1958, DeVito was assigned to investigate the premises of the Foland Furniture Company where a door had been found ajar by the night watchman. He proceeded to the building in a police car and shortly after his arrival there was joined by Stape. DeVito, Stape and the night watchman then entered the building together. Finding nothing of a suspicious nature other than the open door DeVito thereupon entered the office of the furniture company and telephoned his report to his superior. During the time he was in the building DeVito was in full view of Stape and the watchman. DeVito, Stape, the watchman and other policemen who had arrived prior to DeVito and Stape then left the premises and secured the door.

The next morning DeVito returned the police car to his district police station. The car was then assigned to another officer who inspected its interior and found it clean. This policeman then took the car out on patrol. When he brought the car back three hours later he left it for a few minutes. Upon returning to the car he found a rolled up piece of paper in full view on the floor of the car. The paper was a check in the amount of $47 payable to the Foland Furniture Company. Upon investigation it was discovered that a quantity of cash and checks had been taken from a cabinet in the office of the furniture company. An investigation followed in which all of the policemen who had visited the premises, and the Company's employees were questioned. All of them denied any knowledge of the missing cash or checks.

The interrogation of DeVito and Stape was lengthy and the proceedings were recorded. Both policemen readily answered all questions and in addition gave detailed

[ 404 Pa. Page 357]

    written statements of their activities in connection with the incident. They were then asked to submit to a polygraph or "lie detector" test which they at first agreed to do. Later upon advice of counsel they withdrew their consent and so informed the Commissioner of Police. Thereupon the Commissioner suspended them for 30 working days. During the period of their suspension the Commissioner ordered them to submit to the lie detector test or be dismissed from the force. They again refused and were dismissed. The reasons given for the dismissals were (1) conduct unbecoming an officer, (2) violation of § 10-110 of the Philadelphia Home Rule Charter, (3) insubordination, and (4) neglect of duty.

DeVito and Stape each took an appeal to the Philadelphia Civil Service Commission. After a hearing, the Civil Service Commission filed an opinion in which it dismissed all of the charges against them except the ones pertaining to insubordination and neglect of duty based on the policemen's refusal to submit to the polygraph tests. Thereupon the policemen appealed to the Court of Common Pleas pursuant to the provisions of § 7-201 of the Philadelphia Home Rule Charter which pertinently provides: "... Findings and decisions of the [Civil Service] Commission and any action taken in conformance therewith as a result thereof shall be final and there shall be no further appeal on the merits, but there may be an appeal to the courts on jurisdictional or procedural grounds."

The Court below held the dismissals to be procedural error and a denial of due process. The lower Court then reversed the Order of the Civil Service Commission and ordered the reinstatement of the men with ...


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