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LIEUTENANT COLONEL JOSEPH DUSSIA v. COLONEL JAMES D. BARGER (09/26/73)

decided: September 26, 1973.

LIEUTENANT COLONEL JOSEPH DUSSIA, PLAINTIFF,
v.
COLONEL JAMES D. BARGER, COMMISSIONER OF THE PENNSYLVANIA STATE POLICE, AND MAJOR SIDNEY C. DEYO, CAPTAIN EARL O. BERGSTROM AND CAPTAIN STANLEY B. KRAMER, MEMBERS OF THE COURT-MARTIAL BOARD, DEFENDANTS



Original jurisdiction in case of Lieutenant Colonel Joseph Dussia v. Colonel James D. Barger, Commissioner of the Pennsylvania State Police, and Major Sidney C. Deyo, Captain Earl O. Bergstrom and Captain Stanley B. Kramer, members of the Court-Martial Board.

COUNSEL

Bruce E. Cooper, with him Cooper, Friedman & Friedman, for plaintiff.

Benjamin Lerner, Deputy Attorney General, with him J. Andrew Smyser, Deputy Attorney General, and Israel Packel, Attorney General, for defendants.

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

Author: Rogers

[ 10 Pa. Commw. Page 168]

The plaintiff in this equity suit is Joseph Dussia, a Lieutenant Colonel of the Pennsylvania State Police, and the defendants are Colonel James D. Barger, Commissioner of the State Police and the members of a Court-Martial Board appointed by the Commissioner to hear charges against the plaintiff. The complaint seeks, inter alia, an order enjoining the conduct of the court-martial on the principal grounds that (1) the Commissioner has prejudged the matter against the plaintiff precluding a fair and impartial consideration of his case, and (2) the laws of the Commonwealth and the

[ 10 Pa. Commw. Page 169]

    regulations of the Commissioner on the subject of court-martials are such that a fair trial is impossible and therefore do not provide due process. The defendants have filed a responsive answer to the complaint. The plaintiff then filed a motion for judgment on the pleadings pursuant to R.C.P. 1034 which is now before us for disposition.

Where judgment is sought on the pleadings the allegations of the complaint which have been denied must be treated as untrue and the averments of the answer must be taken as admitted. Cary v. Lower Merion School District, 362 Pa. 310, 66 A.2d 762 (1949). A motion for judgment on the pleadings should be granted only in a case free from doubt and when it is evident that no meritorious defense has been raised in the pleadings. Layman v. Continental Assurance Co., 416 Pa. 155, 205 A.2d 93 (1964); Eckborg v. Hyde-Murphy Co., 442 Pa. 283, 276 A.2d 513 (1971). Judgment on the pleadings should not be entered where there are unresolved issues of fact. Boulton v. Starck, 369 Pa. 45, 85 A.2d 17 (1951). These principles applied to the pleadings in this case require that the plaintiff's motion be refused.

The averments of the Complaint which are admitted and the denials of the answer which we must accept as true establish the following facts pertinent to the present motion: That on July 11, 1973 the defendant Barger, during a telephone conversation, told the plaintiff Dussia that he, Barger, believed that certain evidence, presumably of wrongdoing,*fn1 against Dussia was strong and advised Dussia to resign from the State Police to avoid embarrassment to himself and to the Force which a court-martial would cause; that on July 11, 1973, pursuant to regulations, the defendant Barger

[ 10 Pa. Commw. Page 170]

    appointed a Disciplinary Board to consider the evidence; that on July 13, 1973, the Disciplinary Board reported that sufficient cause to support the institution of court-martial proceedings against the plaintiff existed; that on July 17, 1973, the plaintiff was suspended without pay from his position with the State Police; that on July 18, 1973, Barger advised Dussia that a court-martial would be convened on August 6, 1973;*fn2 that the members of the Court-Martial Board were selected by Commissioner Barger and are junior in rank to the plaintiff; and that Commissioner Barger has in fact not determined that the plaintiff is guilty of any offense.*fn3

The plaintiff urges first that the facts just detailed establish a sufficient basis for a determination that Commissioner Barger has prejudged the instant cause against the plaintiff and has appointed members of the Board similarly inclined, whose recommendations he could not impartially review. He develops the Commissioner's alleged prejudice from the latter's evaluation of the evidence against the plaintiff as strong and the Commissioner's advice that the plaintiff resign. It appears to us not at all unnatural that the Commissioner of the State Police should have some knowledge of the evidence supporting charges against an officer holding the rank of Lieutenant Colonel, nor does the possession of such knowledge, we ...


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