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GARDNER v. REPASKY (04/23/69)

decided: April 23, 1969.

GARDNER, APPELLANT,
v.
REPASKY



Appeal from order of Court of Common Pleas of Bradford County, Jan. T., 1967, No. 428, in case of Whitney J. Gardner v. John J. Repasky et al.

COUNSEL

M. J. DeSisti, for appellant.

Robert J. Landy, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell and Mr. Justice Eagen concur in the result. Dissenting Opinion by Mr. Justice Roberts.

Author: Cohen

[ 434 Pa. Page 127]

Appellant, a police officer in Sayre Borough, appeals from a two week suspension ordered by Borough Council and affirmed by the Civil Service Commission of the Borough and the Court of Common Pleas of Bradford County. Because of the invalidity of the procedural aspects of this suspension, we reverse that action without reaching the merits as to appellant's behavior.

In October, 1963, the Fire Board and Ambulance Board of the Borough sent letters to the mayor complaining about the cooperation they were receiving from appellant. The Sayre Borough Police Committee decided to further investigate and requested appellant to attend a meeting on December 6, 1963. At that time appellant refused to testify without his attorney who was not permitted to attend the meeting. Another meeting on December 27, 1963 resulted in a recommendation to Borough Council that appellant be suspended. At a meeting on December 30, Council suspended appellant for two weeks and notified him by mail on January 2, 1964. On January 7, appellant took an appeal to the Civil Service Commission. Throughout this period appellant was not furnished with a written specification of charges despite his several requests. More than a year later Council furnished the charges to the Commission and gave a copy to appellant. The Civil Service Commission held hearings on April 26, 1965 and finally on November 15, 1965, but

[ 434 Pa. Page 128]

    did not file an opinion or render a decision until February 7, 1967. The lower court affirmed the order and an appeal was taken to this Court.

The suspension, removal, or demotion of a policeman or fireman at the time was governed by Section 1184 of The Borough Code, Act of May 4, 1927, P. L. 519, added 1947, July 10, P. L. 1621, § 39, 53 P.S. § 46184.*fn1 That section lists the six exclusive reasons for any of the above actions and requires that "[a] written statement of any charges made against any person so employed shall be furnished to such person within five days after the same are filed." The next following section provides for a speedy hearing before the Civil Service Commission at which time written answers to the charges can be filed. In light of these and other provisions of The Borough Code which seek to expedite the review of any suspension, we find the procedure used in the instant case invalid.

The proper procedure is to file the charges at the time Council suspends the employee and notify the employee of same within five days. There are at least three reasons for requiring this procedure: (a) that the employee may be informed of what misbehavior he is accused and rectify it if he so chooses, (b) that the employee can determine whether the charges are statutorily sufficient, and (c) that he can decide whether to take an appeal to the Civil Service Commission and, if he does, to file a timely answer. Appellant in this case was forced to take his appeal without a specification of charges, several of which had to be dropped as statutorily deficient. Had Council suspended him without first questioning him, as it may do, he would not have known the charges here until some thirteen

[ 434 Pa. Page 129]

    months later. This violates the legislative intention to bring these ...


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