Appeal, No. 269, March T., 1962, from order of County Court of Allegheny County, No. A 488 of 1962, in re appeal of Arthur Baker from order of Civil Service Commission of City of Pittsburgh. Order reversed; reargument refused November 29, 1962.
David W. Craig, City Solicitor, within him Charles N. Caputo, Assistant City Solicitor, for City of Pittsburgh, appellant.
Louis C. Glasso, for appellee.
Before Bell, C.j., Jones, Cohen, Eagen and Keim, JJ.
OPINION BY MR. JUSTICE COHEN
Lieutenant Baker of the Pittsburgh police force, appellee, while off duty was present at an illegal gambling club in nearby New Kensington, Westmoreland County, when the premises were raided by federal authorities on August 24, 1961. The presence of a high police official at such an establishment, of course, received adverse public comment. The director of the department of public safety ordered a hearing by the Police Trial Board (Board), consisting of three of appellee's superiors. Appellee admitted that he had visited and spent some time at the gambling club on three separate occasions, but stated that he had gone there to look for an errant son and not to gamble. He also admitted that he had exercised poor judgment in going to the club but asked that the Board take into consideration his emotional upset caused by the difficulties with his son. His attorney recommended that he be reprimanded or suspended rather than dismissed, stressing appellee's fine police record and distinguished character witnessed.
The Board unanimously recommended that appellee be dismissed. This recommendation, as required by statute, was approved by the mayor of Pittsburgh and affirmed by the Civil Service Commission. An appeal was taken by appellee to the County Court of Allegheny County and a trial de novo was held as required by the Act of August 10, 1951, P.L. 1189 § 8, 53 P.S.
§ 23538. Appellee did not produce any additional evidence at this trial and thus the evidence before the lower court consisted primarily of the Board's transcript. The lower court reversed the order of dismissal giving two reasons for its decision. First, it stated that appellee's acquittal by a federal jury of a charge of perjury in connection with his testimony before a federal grand jury that he had visited the club only once corroborated his story that his purpose in going to the club was merely to find his errant son.*fn1 Secondly, the lower court felt that appellee had been punished enough by the adverse public comment on his behavior. This appeal by the City of Pittsburgh followed.
We believe that the lower court was guilty of error in reversing the order of the Board and the Civil Service Commission. There were three questions before the Board in this case: (1) the factual question raised in the charges against appellee as to whether he was present at the gambling club on August 24, 1961, and at other times; (2) the legal question whether such facts constituted just cause for his dismissal; and (3) the judgment question whether the power of dismissal, if authorized, should be exercised in this case.
On the factual question, appellee admitted that he visited and spent time at the gambling club on three occasions. As the charges against appellee before the Board were drawn,*fn2 his purpose in going to the club ...