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HARRINGTON v. TATE ET AL. (06/27/69)

decided: June 27, 1969.

HARRINGTON
v.
TATE ET AL., APPELLANTS



Appeal from decree of Court of Common Pleas No. 9 of Philadelphia County, June T., 1965, No. 6330, in case of John J. Harrington et al. v. James H. J. Tate, Mayor, et al.

COUNSEL

Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Frank J. Pfizenmayer, Assistant City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for appellants.

Frank F. Truscott, with him Samuel Gorson, Otis W. Erisman, and Truscott & Erisman, for appellees.

Colbert C. McClain, for amici curiae.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Jones and Mr. Justice Pomeroy join in this opinion. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice Pomeroy join in this opinion. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice O'Brien joins in this dissenting opinion.

Author: Cohen

[ 435 Pa. Page 178]

This is an appeal from a decree in equity which abolished the Philadelphia Police Advisory Board. The sole issue to be considered is whether the Philadelphia Home Rule Charter permits the mayor to establish such a board. In considering that the Board was improperly established, the chancellor strayed far from the legal issue both by accepting testimony and in substantiating his decision. We shall not do the same.

Appellants claim statutory authorization for the creation of a board under Art. III, Ch. 1, § 3-100(h), and Art. III, Ch. 9, § 3-917, which read respectively: "§ 3-100 -- The executive and administrative work of the City shall be performed by: . . . (h) Such additional advisory boards as the Mayor may appoint. § 3-917 -- The Mayor may upon request of the head of any department or of his own volition appoint a board of seven citizens to act in an advisory capacity to such department regarding the department's work or any specified phase of it."

On October 1, 1958, the mayor, by authority of the provisions of the Charter, appointed a group of men to a Police Review Board, which name was subsequently changed to Police Advisory Board, to "receive, hear, and make determinations of fact on complaints of citizens regarding actions of Police Department personnel."

[ 435 Pa. Page 179]

It seems eminently clear that the foregoing sections of the Charter permit the mayor to appoint a board to advise the police department on community relations and police discipline.

The Board operates as follows: When a complaint is filed the Board requests an investigation and report from the police department. A hearing is then set in which the complainant and his counsel, the police officer and his counsel or other police personnel representing him are present. Rules of evidence are followed. The Board renders its decisions and delivers its recommendations which are transmitted through the mayor to the Police Commissioner who may then take action.

Appellees contend that the Board is a "review" board and therefore unauthorized by the Charter and a waste of tax funds. A definition of terms is necessary to consider these contentions. A review board is a quasi-judicial body whose powers are statutory in nature, which body is entrusted with the task of exercising administrative or governmental functions. It hears evidence, considers issues, and makes decisions which are judicial in nature. An advisory board, while it may go about its tasks in much the same manner, is not statutorily charged with governmental functions and its decisions are not judicial. Those decisions are merely recommendations which the receiver thereof is free to ignore. Despite its original designation, the Police Advisory Board has always recognized this essential difference in that it made recommendations ...


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