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GABAUER v. CIVIL SERVICE COMMISSION (12/05/72)

decided: December 5, 1972.

GABAUER
v.
CIVIL SERVICE COMMISSION



Appeal from the Order of the Court of Common Pleas of Beaver County in case of In Re: Appeal of John W. Gabauer from dismissal from the Police Force of the Borough of Rochester, Beaver County, Pennsylvania, No. 686 of 1971.

COUNSEL

Robert E. Kunselman, with him Reed, Sohn, Reed & Kunselman, for appellant.

J. Frank Kelker, with him Kelker and Kelker, for appellee.

Judges Kramer, Rogers and Blatt, sitting as a panel of three.

Author: Per Curiam

[ 6 Pa. Commw. Page 648]

This is an appeal from an order of the Court of Common Pleas of Beaver County, dated May 16, 1972, (1) denying the appeal of John W. Gabauer, formerly Chief of Police of Rochester Borough, (2) sustaining the decision of the Civil Service Commission of the Borough, and (3) sustaining and affirming the discharge of Gabauer as Chief, on written charges filed.

Although Gabauer had a right to present whatever relevant and material testimony and evidence he so desired to the court below (Act of February 1, 1966, P.L. 1656 (1965), No. 581, 53 P.S. ยง 46191), Gabauer, through his counsel, entered into a stipulation with counsel for the Borough (1) to waive their rights to a de novo hearing before the court below, and (2) to submit the matter to that court on the record made before the Civil Service Commission, including its "opinion and order." This stipulation was approved by the lower court. Under such circumstances our scope of review is to determine whether the Commission abused its discretion or committed an error of law. See Shannon v. Civil Service Commission, 4 Pa. Commonwealth Ct. 492, 287 A.2d 858 (1972).

We have carefully reviewed the entire record in this case and conclude that we must affirm the court below based upon the thorough opinion of President Judge John N. Sawyer, which is made a part hereof by reference thereto and set forth below in its entirety:

"Sawyer, P.J.

Appellant, the Police Chief of the Borough of Rochester, has appealed to this Court from his removal

[ 6 Pa. Commw. Page 649]

    and discharge ordered by the Borough Council and affirmed by the Civil Service Commission of the Borough. By stipulation of counsel for the parties, any hearing of further testimony before the court was waived, and it was agreed that the matter should be considered by the court on the record made before the Civil Service Commission and the Opinion and Order of the Commission. Arguments were held and briefs submitted. The matter is now before us for disposition.

"Appellant filed his appeal pursuant to Sec. 1191 of The Borough Code of February 1, 1966, P.L. (1965) 1656, No. 581, Sec. 1191, 53 P.S. Sec. 46191, which provides, in part, as follows: 'All parties concerned shall have immediate right of appeal to the court of common pleas of the county, and the case shall there be determined as the court deems proper.'

"The Supreme Court of Pennsylvania in Baker Case, 409 Pa. 143 (1962) discussed the function of the trial court on appeal from a decision of the Civil Service Commission of the City of Pittsburgh at page 147 as follows: 'Under the scheme established by the civil service acts, primary responsibility and decision as to the methods necessary to uphold police morale and efficiency and to maintain public confidence in the police department resides in the municipal officials. See Caldwell vs. Fairley, 363 Pa. 213, 69 A.2d 135 (1949) and Thomas vs. Connell, 264 Pa. 242, 107 A. 691 (1919). The function of the courts is merely to make sure that just cause for dismissal exists, both factually and legally, and that the municipal officials have not abused their discretion in imposing the punishment in question. It is not our function to decide what we would have done under the circumstances if we had been Baker's superiors.' Also see Ditko Appeal, 5 D. & C. 2d 569 (1955), affirmed per curiam 385 Pa. 435 (1956).

"The test announced in Baker, supra, also is applicable to an appeal under the Borough Code. Norris

[ 6 Pa. Commw. Page 650]

    v. Pottstown Borough Council, 85 Mont. Co. L. Reporter 346 (1965); Dougherty v. Civil Service Commission of Borough of Phoenixville, 35 D. & C. 2d 115 (1964).

"Thus, this court must determine whether the evidence establishes both factually and legally that just cause exists for appellant's discharge and that the Commission did not abuse its discretion in sustaining the action of the Borough Council.

"The stated reasons of the Borough Council for discharging Chief Gabauer were as follows:

1. He failed to exercise proper leadership in the Police Department.

2. He has been inefficient in the prosecution of the duties of his office with the result that the police force reflects his attitude of general indifference.

3. At numerous times he has become intemperate and disorderly in various taverns in the Borough of Rochester and other communities necessitating his being removed from the premises by the police on occasions.

4. On January 13, 1970 in Didio's Restaurant in Rochester he became drunk and boisterous insulting a female patron and fighting with her husband when he defended her. The police were called and he was subdued by force.

5. On July 21, 1970 at about 4:00 a.m. he allegedly made indecent advances on the person of Ernest Miller and against his will and consent; that said Ernest Miller resisted these advances with force.

6. He has damaged the image of the Police Force of the Borough of Rochester and by his conduct has lost the respect of the citizens of the Borough of Rochester.

7. For general conduct unbecoming an officer.

"After full hearings on the matter held on the evenings of February 2 and 3, 1971, the following findings of fact were made by the Commission:

[ 6 Pa. Commw. Page 6511]

. John W. Gabauer was the duly appointed Chief of Police of the Borough of Rochester on July 2, 1970 (Rec. 134).

2. On January 13, 1970, at Didios Restaurant, John W. Gabauer used extremely foul language and insulted a woman patron. Following an exchange with her ...


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