Appeal from the Order of the Court of Common Pleas of Allegheny County in case of City of Pittsburgh v. Victor Joseph, No. 80 of 1973, Statutory Appeal.
Robert B. Smith, Assistant City Solicitor, with him Ralph Lynch, Jr., City Solicitor, for appellant.
Peter J. Mansmann, with him Mansmann, Beggy, Steele & Campbell, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.
[ 13 Pa. Commw. Page 299]
This is an appeal from the order of the Court of Common Pleas of Allegheny County which sustained appellee's appeal from the decision of the Civil Service Commission of the City of Pittsburgh. The Civil Service Commission of the City of Pittsburgh had sustained the action taken by a Police Trial Board, approved by the Mayor, that appellee be dismissed from the Bureau of Police. The lower court ordered appellee be reinstated with back pay retroactive to the effective date of his discharge. The Common Pleas Court reversed the Civil Service Commission of the City of Pittsburgh on the grounds that the Superintendent of the Bureau of Police prejudiced appellee's opportunity for a fair trial before the Police Trial Board by improperly adding to the Specification of Charges: "Officer Victor Joseph is hereby dismissed from the Bureau of Police effective August 3, 1972." Everyone agrees that the Superintendent did not have authority to dismiss appellee and that the statement had no place on the Specification of Charges, nor is there any question but that counsel for appellee forcefully objected to the Police Trial Board proceeding with the hearing on the Specification of Charges containing the unauthorized and prejudicial statement by the Superintendent.
[ 13 Pa. Commw. Page 300]
We agree with the lower court that the inclusion of this improper statement in the Specification of Charges so prejudiced appellee that he could not have a fair trial before the Police Trial Board. However, the court below was in error in ordering appellee's reinstatement. The case should have been remanded to have the offending statement removed from the Specification of Charges, a new Police Trial Board constituted, and a retrial held.
The facts of this case will be stated briefly in a manner most favorable to appellee. On July 15, 1972, appellee, having been a police officer for three years, was serving the last 10 days of a 90-day suspension. This was apparently his second suspension, the previous one being 30 days. During the course of the evening of July 15, appellee had had five glasses of beer. At 8:10 p.m., he placed a telephone call to the No. 9 Police Station to which he had previously been assigned. The lieutenant in charge answered the telephone. Appellee, having identified himself, asked the lieutenant to have Officer Grosskinsky call him, leaving the telephone number of the bar from which appellee was calling. Approximately 45 minutes later, appellee replaced the call to No. 9 Station and spoke to Officer Grosskinsky who said he had not received the message. At the appellee's request, the lieutenant came to the telephone and said he had relayed the message. A dispute followed and the lieutenant hung up the phone. Appellee then proceeded to No. 9 Station. From his own testimony, it is abundantly clear that appellee went "to confront" the lieutenant on why he did not relay the message. When appellee arrived at the Station, he went immediately to the lieutenant and a "fight" or "shoving match" ensued, with the exchange of foul language. Various stages of this "incident" were witnessed by six police officers and a civilian who were called to testify.
[ 13 Pa. Commw. Page 301]
The lieutenant initiated a disciplinary action report. The Superintendent of the Bureau of Police prepared a Specification of Charges, specifying a violation of three of the Rules and Regulations:
"Rule 8: A member or employee shall conduct himself at all times in a manner not prejudicial to the reputation or good name of the Bureau of Police.
"Rule 27: A member or employee shall not maliciously threaten, strike or assault any other member or employee of the Bureau of Police. Members or employees who aid, abet or incite any altercation between members or employees of the Bureau of ...