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LIEUTENANT COLONEL JOSEPH DUSSIA v. COLONEL JAMES D. BARGER (05/24/74)

decided: May 24, 1974.

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.

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

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

Author: Rogers

[ 13 Pa. Commw. Page 573]

Joseph Dussia, a Lieutenant Colonel of the Pennsylvania State Police under suspension, has brought this action in equity against James D. Barger, Commissioner of the State Police and the members of a Court-martial Board appointed by Barger, seeking a decree enjoining the defendants from convening and conducting a court-martial, the subject of which would be certain charges against the plaintiff and issue of which would be whether the plaintiff should be discharged, demoted or restored to duty at his present rank.

The plaintiff sought a preliminary injunction which, after hearing, was denied. The plaintiff filed a motion for judgment on the pleadings pursuant to Pa. R.C.P. No. 1034. This was also denied.

We conducted a hearing on the merits of the plaintiff's application for permanent relief, staying the court-martial pending our disposition of the case. The parties have filed requests for findings of fact and conclusions of law and we have heard argument en banc.

The plaintiff's complaint advances a number of reasons why he should not be subjected to court-martial. Those still before us are: (1) that Section 711 of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. ยง 251, providing that members of the State Police should be given the opportunity to be heard by court-martial before being dismissed from the Force and the rules and regulations of the Commissioner

[ 13 Pa. Commw. Page 574]

    on the subject are such that a fair trial is impossible, and that therefore said law and regulations do not provide due process and are unconstitutional, (2) that the defendant Barger, who, as Commissioner, will review the recommendation of the Court-martial Board and take final action in the plaintiff's case has decided that he, Dussia, is guilty of the charges against him, (3) that the members of the board are his juniors in rank and will have an interest in his discharge from the service, and (4) that he was suspended without pay and without a hearing.

At the hearing on the merits the plaintiff amended, without objection, his complaint to include a charge of the defendant members of the Court-martial Board were prejudiced against him because of past relationships.

The contention advanced by the plaintiff that the Act and the rules and regulations of the Commissioner are unconstitutional was fully considered when we considered and refused the plaintiff's motion for judgment on the pleadings, and our reasons for rejecting the motion were fully explained in our opinion then made, which is reported in Dussia v. Barger, 10 Pa. Commonwealth Ct. 167, 309 A.2d 607 ...


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