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DONNON v. DOWNINGTOWN CIVIL SERVICE COMMISSION (10/28/71)

decided: October 28, 1971.

DONNON
v.
DOWNINGTOWN CIVIL SERVICE COMMISSION



Appeal from the Order of the Court of Common Pleas of Chester County, Miscellaneous Nos. 13018 and 13069 of 1969 in case of Edgar W. Donnon v. Civil Service Commission of the Borough of Downingtown.

COUNSEL

John B. Talierco, with him Agulnick & Talierco, for appellant.

Fred T. Cadmus, III, with him Cadmus, Good & Patten, for appellee.

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

Author: Crumlish

[ 3 Pa. Commw. Page 367]

This appeal involves the reversal by the Court of Common Pleas of Chester County of a decision of the Civil Service Commission of the Borough of Downingtown which dismissed appellee, Edgar W. Donnon, a Borough police officer, for disobedience and conduct unbecoming an officer. The court below held that the actions of the Borough Solicitor, who assisted in preferring charges against appellee, by sitting as advisor to the Commission and presiding over the hearing, violated appellee's right of due process. While we agree with the court below that the solicitor's actions should command the Commission's reversal, we remand the case to the Commission for a rehearing.

In our governmental system, frequently one of its units or agencies functions as investigator, complainant, prosecutor and judge. Inevitably such a situation must give rise to the question of just how far that unit or agency can go in permitting any member of the agency, or member or group of its staff to become involved in conflicting phases of this procedure. This is the question now before us; and, as recognized by the court below, it is a very "delicate" question. "We say the question

[ 3 Pa. Commw. Page 368]

    is a delicate one because we realize that the inconvenience and expense incident to the employment of additional counsel each time a proceeding of this kind becomes necessary could well result in a reluctance on the part of boroughs to prosecute borough officers in cases where such prosecutions would be warranted, to the end that the public welfare would not be served. From the municipality's point of view the implications of an adverse ruling are far reaching. Such a conclusion might well be construed to require the employment of independent counsel for Zoning Hearing Boards and other like agencies in every case in which the municipality is a party, or in which it has an interest in the outcome. Practically speaking, the imposition of such a burden upon the public might tend to impede instead of further the public interest." However, we must also be mindful that the right to due process of law is a constitutionally guaranteed protection of personal freedom, designed to prevent unilateral usurpation by public interest.

Legion are the cases which hold that judicial tribunals "not only must be unbiased but also must avoid even the appearance of bias." Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150, 89 S. Ct. 337 (1968). See also, In Re Murchison, 349 U.S. 133, 75 S. Ct. 623 (1955) and cases cited therein. Until recently this strict admonition against potential unfairness had not been extended to quasi-judicial administrative tribunals. See Pennsylvania Publications, Inc. v. Pennsylvania P.U.C., 152 Pa. Superior Ct. 279, 32 A.2d 40 (1943), reversed on other grounds, 349 Pa. 184, 36 A.2d 777 (1944). However, in Gardner v. Re pasky, 434 Pa. 126, 252 A.2d 704 (1969), the Supreme Court of Pennsylvania adopted Commonwealth Coatings in setting aside a decision of the Sayre Borough Civil Service Commission. In amplifying the applicability of the strict judicial standards of bias to administrative

[ 3 Pa. Commw. Page 369]

    tribunals, Justice Cohen said in Gardner : "We held in Schlesinger Appeal, 404 Pa. 584, 172 A.2d 835 (1961), that where a prosecutor and judge were combined in one body, the accused was denied a fair hearing to which due process of law entitled him." 434 Pa. at 130. In deciding so, the Supreme Court has narrowed the latitude of permissibility heretofore accorded the Commonwealth's administrative tribunals.*fn1

Administrative procedure requires courts to recognize the distinguishing characteristics which call for interpretation and control of administrative bias and judicial bias. Neither Schlesinger nor Gardner exclusively prohibit any member of an agency or municipality or any member or group of its staff from participating in conflicting phases of procedure. These cases simply hold that it is no longer necessary to find actual ...


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