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GILDEA v. PITTSBURGH. JOYCE (05/11/72)

decided: May 11, 1972.

GILDEA, ET AL.
v.
PITTSBURGH. JOYCE, ET AL. V. PITTSBURGH



Appeals from the Orders of the Court of Common Pleas of Allegheny County in cases of Robert Gildea et al. v. City of Pittsburgh, Peter F. Flaherty, Mayor, John Bingler, Public Safety Director, and Robert Colville, Superintendent of Police, No. 246 October Term, 1971, and Barry M. Joyce and Daniel J. Cuneen v. City of Pittsburgh, Peter F. Flaherty, Mayor, and Robert Colville, Superintendent of Police, No. 111, January Term, 1972.

COUNSEL

Fred E. Baxter, Jr., with him Mansmann, Beggy, McVerry and Baxter, for appellants, Joyce and Cuneen.

Peter J. Mansmann, with him James A. Wymard, for appellees, Gildea, et al.

Frederick A. Boehm, First Assistant City Solicitor, with him Daniel Curtin, Assistant City Solicitor, Eugene B. Strassburger, III, Executive Assistant City Solicitor, and Ralph Lynch, Jr., City Solicitor, for appellants-appellees, City of Pittsburgh, et al.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Concurring and Dissenting Opinion by Judge Mencer.

Author: Bowman

[ 5 Pa. Commw. Page 366]

These two appeals arise out of unrelated factual backgrounds but both involve the statutory power of the Mayor of Pittsburgh or its Director of Public Safety to suspend allegedly insubordinate police officers from the Pittsburgh Bureau of Police either initially or after hearing before a police trial court for definite or indefinite periods of time.

Robert Gildea and thirty-three other police officers were suspended from their duties by the Director of the Department of Public Safety in late 1970. Officials of the Bureau of Police had begun an investigation into the payment of court witness fees to certain police officers and discovered that some thirty-four police officers had received substantial court witness fees to which they were not entitled. The Superintendent of Police on the basis of the investigative report preferred

[ 5 Pa. Commw. Page 367]

    charges against these officers and recommended disciplinary action.

The Public Safety Director ordered police trial courts convened to examine the charges pursuant to the Policemen's Civil Service Act of August 10, 1951, P.L. 1189, as amended, 53 P.S. ยง 23531. Before such police trial courts were actually convened, the police officers were suspended from duty without pay.

The police trial courts subsequently met to dispose of the charges but in all cases continued the hearings pending disposition of possible criminal charges being filed against the suspended police officers. Further, these police trial courts ordered the police officers restored to duty with pay in the interim. In fact, no criminal charges were ever filed against any of them.

The Mayor of Pittsburgh concluded that the police trial courts lacked power to order such restorations and continued the suspensions. The police trial courts then reconvened, took testimony and examined evidence, and concluded in all cases that the police officers had received the questioned court witness fees by mistake. Suspensions ranging from twenty-five to fifty-eight days were imposed.

Upon reviewing the various police trial court transcripts and findings, the Mayor determined that the police trial courts had in all cases totally disregarded the evidence before them and abused their discretion. He disapproved their conclusions. By individual letter to each police trial court and police officer, the Mayor advised that the original suspensions imposed by the Public Safety Director would continue in effect pending further administrative action and disposition of the criminal charges.

Thirty-one of the affected policemen filed a complaint in equity in the Court of Common Pleas of Allegheny County seeking to enjoin the suspensions as reinstated

[ 5 Pa. Commw. Page 368]

    by the Mayor. A Chancellor (Hester, J.) heard argument on a request for a preliminary injunction, having refused a previous petition for ex parte preliminary injunctive relief. After hearing, a preliminary injunction issued ordering the policemen restored to duty pending new hearings by police trial courts to be promptly convened. The Mayor appealed from the granting of such preliminary relief to this Court. At the time of argument of the appeal before this Court, new police trial courts had not been convened.

Barry M. Joyce and Daniel J. Cuneen, two officers employed by the Pittsburgh Bureau of Police, were involved in an incident on September 24, 1971 where they were alleged to have fired their service revolvers so as to seriously wound a fleeing felon. On the basis of this incident, the Mayor ordered that Joyce and Cuneen be suspended from duty without pay; the City of Pittsburgh concurrently filed criminal charges against both officers charging them with assault with intent to kill.

Within six days of the suspension, a police trial court was convened to hear evidence on the Mayor's charges supporting his suspension actions for violations of the Bureau regulations as to the use of firearms. Following hearing, the police trial court ordered the officers restored to duty pending final disposition of the criminal charges.

The Mayor reviewed the determinations and conclusions to restore these two officers to full duty by the police trial court and disapproved the decision by opinion dated October 5, 1971. The opinion concluded that both officers had violated the firearm regulations promulgated by the Bureau of Police. The suspension order issued by the Mayor indicated that Joyce and Cuneen ...


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