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CERCEO v. DARBY. SALERNO V. DARBY (09/07/71)

decided: September 7, 1971.

CERCEO
v.
DARBY. SALERNO V. DARBY



Appeals from the orders of the Court of Common Pleas of Delaware County, Civil Division -- Law, No. 2217, in case of Borough of Darby v. Fred M. Cerceo and Thomas J. Salerno.

COUNSEL

Simon S. Berman, with him Richard, Brian, DiSanti & Hamilton, for appellants.

Peter J. Nolan, for appellee.

Judges Kramer, Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 3 Pa. Commw. Page 175]

This case involves an appeal from the Court of Common Pleas of Delaware County, which court sitting without a jury affirmed (in an Order dated February 1, 1971) the "decision" of the Council of the Borough of Darby (appellee) dismissing the appellants (Officers Cerceo and Salerno) from their positions on the Borough Police Force for conduct unbecoming police officers.

Some time between 6:20 P.M. on Saturday, January 3, 1970, and 12:15 A.M. on January 4, 1970, a Firestone Tire & Rubber Company store located in the Borough of Darby was the subject of a burglary by persons unknown. Officer Cerceo discovered the burglary in the line of his official police duties. He immediately called Darby Police Headquarters to report the incident. He was joined at the scene within a matter of minutes by Officer Salerno (Cerceo's superior on the watch), who aided him in a search of the premises. Police officers from two other municipalities were called to the scene, by radio, by Officer Salerno, for possible assistance. Officer Salerno returned to the Police Station, leaving Cerceo at the scene. The store manager was notified of the burglary, and upon his arrival, and an inspection of the store premises, informed Officer Cerceo that a number of items had been stolen, including several radios. Officer Cerceo, on instructions received from Salerno, returned to the store at

[ 3 Pa. Commw. Page 176]

    about dawn of that same day to search the vicinity for any of the stolen goods. Cerceo located a stolen Philadelphia automobile in an adjoining lot (possibly used in the burglary) and two of the stolen radios in a paper bag along an adjoining creek. At this point, a clear chronology of the facts breaks down. The record before Judge Diggins indicates conflicting testimony by a number of witnesses. It goes without question that Judge Diggins, sitting as the finder of fact, was within his prerogative to sift through and weigh the conflicting testimony and arrive at the findings of fact.

From the record, it is fair to conclude that Cerceo took the two radios still contained in the bag into the Police Station. Salerno and another Officer (Waples), who had the desk duty, were advised of the discovery of the two radios. The Chief of Police of the Borough of Darby was informed of the burglary and to some extent of the recovery of some stolen goods. Salerno, in the presence of Waples, instructed Cerceo to take the two radios home for safe-keeping. The record is clear that there are no suitable storage facilities at the Police Station for the safe-keeping of evidence, which in other cases had disappeared. The record is very confusing on what caused the Mayor of the Borough of Darby to institute an investigation into the missing radios, but in any event, on the next day, January 5, 1970, Police Sergeant Epright and Officer Patterson of the Darby Police Department, arrived at Officer Cerceo's home, apparently in an attempt to gather information on the stolen radios. While approaching the Cerceo residence, they met Officers Salerno, Cerceo and Waples in or about Salerno's automobile. When these two investigating officers questioned Cerceo concerning the stolen radios, Cerceo turned over to them the two radios which were still contained in the paper bag, but by this time were situated on the ground near Salerno's automobile.

[ 3 Pa. Commw. Page 177]

Cerceo's explanation is that at Salerno's request, Cerceo had retrieved the radios from his residence with the intent to return them to the Police Station.

Cerceo later went to the home of the Mayor of the Borough of Darby (who took office on January 5, 1970). The record is very confusing on whether Cerceo admitted taking the radios for his own use or admitted an embarrassment over sloppy police procedure. The Mayor made conflicting statements at different times in ...


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