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STEPHEN LUCHANSKY v. JAMES D. BARGER (06/18/74)

decided: June 18, 1974.

STEPHEN LUCHANSKY, APPELLANT,
v.
JAMES D. BARGER, COMMISSIONER, PENNSYLVANIA STATE POLICE, APPELLEE. METRO KARDASH, APPELLANT, V. JAMES D. BARGER, COMMISSIONER, PENNSYLVANIA STATE POLICE, APPELLEE. CPL. CURTIS W. GUYETTE, APPELLANT, V. JAMES D. BARGER, COMMISSIONER, PENNSYLVANIA STATE POLICE, APPELLEE



Appeals from the Orders of the Commissioner of the Pennsylvania State Police in case of Court-Martial of Lieutenant Stephen J. Luchansky, Corporal Metro Kardash and Corporal Curtis W. Guyette.

COUNSEL

Wallace C. Worth, Jr., with him Worth and O'Hara, for appellant, Luchansky.

Paul C. Vangrossi, with him Vangrossi and Recchuiti, for appellant, Kardash.

Andrew M. Pipa, Jr., for appellant, Guyette.

Marc Kapustin, Deputy Attorney General, with him Benjamin Lerner, Deputy Attorney General, Andrew Smyser, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 14 Pa. Commw. Page 28]

Lieutenant Stephen J. Luchansky, Corporal Curtis W. Guyette and Corporal Metro Kardash, members of the Pennsylvania State Police, here appeal from the action of the Commissioner of the Pennsylvania State Police, dismissing them from the service. The Commissioner's action was taken after a trial of the appellants by a court-martial and a recommendation of the Court-Martial Board that the appellants be dismissed.

The appellants were jointly charged with violations of regulations promulgated by the Commissioner of the State Police and were tried together by the Court-Martial Board. We consolidated their appeals for argument and disposition hereby.

[ 14 Pa. Commw. Page 29]

The charges upon which the defendants were tried, of which the court-martial found them to be guilty and on which their dismissals by the Commissioner were based, were:

"Charge 1 Major Violation of Code of Conduct.

"Lieutenant Stephen J. Luchansky, Corporal Curtis W. Guyette, and Corporal Metro Kardash are charged with violation of Field Regulation FR 1-2, paragraph 2.08 A and C.

"This charge results from the actions of Lieutenant Stephen J. Luchansky, Corporal Curtis W. Guyette, and Corporal Metro Kardash which are set forth in the following specifications.

"Specification 1 In that Lieutenant Stephen J. Luchansky, Corporal Curtis W. Guyette, and Corporal Metro Kardash did on or about November 27, 1972, install devices for the purpose of overhearing or recording communications passing through telephones or telephone lines in Rooms 208, 213, and 214 of the George Washington Motor Lodge, King of Prussia, Upper Merion Township, Montgomery County, Pennsylvania. Said Rooms 208, 213, and 214 occupied at the time by State Police Officers assigned to the Pennsylvania Crime Commission.

"This action in violation of State Police directive, Special Order 67-29, dated February 23, 1967, entitled 'Interception of Telecommunications.' A true copy of which is attached hereto.

"This to the prejudice of the good order of the Pennsylvania State Police in King of Prussia, Upper Merion Township, Montgomery County, Pennsylvania, on or about November 27, 1972, in violation of provisions of Field Regulation FR 1-2, paragraph 2.08 A and C.

"Charge 2 Major Violation of Code of Conduct.

"Lieutenant Stephen J. Luchansky, Corporal Curtis W. Guyette, and Corporal Metro Kardash are

[ 14 Pa. Commw. Page 30]

    charged with violation of Field Regulation FR 1-2, paragraph 2.22 A.

"This charge results from the actions of Lieutenant Stephen J. Luchansky, Corporal Curtis W. Guyette, and Corporal Metro Kardash which are set forth in the following specifications.

"Specification 1 In that Lieutenant Stephen J. Luchansky, Corporal Curtis W. Guyette, and Corporal Metro Kardash did on or about November 27, 1972, secrete themselves in Rooms 175 and 182 of the George Washington Motor Lodge, using fictitious names, and did install devices on the telephone wires connected with telephones situated in Rooms 208, 213, and 214, occupied by a State Police Unit assigned to investigate corruption in the City of Philadelphia, for the intended purpose of interference with the activities and operation of said State Police Unit.

"This to the prejudice of the good order of the Pennsylvania State Police on or about November 27, 1972, at King of Prussia, Upper Merion Township, Montgomery County, Pennsylvania, and in violation of provisions of Field Regulations FR 1-2, paragraph 2.22 A."

Special Order 67-29, dated February 23, 1967, referred to in Specification 1, Charge 1, is as follows:

"From: Commissioner

"To: Troop Commanders, Substation Commanders, and Bureau Directors.

"Subject: Interception of Telecommunications.

"1. We call to the attention of all personnel the prohibitions relating to the use of electronic devices for the interception of telecommunications. No member of the Pennsylvania State Police shall use, or permit the use of any device(s) for the interception and/or recording of telecommunications between any other parties when such use, or permission to use, is

[ 14 Pa. Commw. Page 31]

    contrary to either Statutory Law or Opinions of the United States and Commonwealth Courts.

"2. Evidence disclosing willful departure from this order will lead to prosecution in the Courts of the Commonwealth and disciplinary measures by the Force."

Paragraphs 2.08 A & C of Regulations FR 1-2 which the appellants are accused of violating in Charge 1, are as follows:

"A. Lawful Order: A Member shall promptly obey and execute any and all lawful orders emanating from a superior officer. A 'Lawful Order' is any order in keeping with the performance of any duty, issued either verbally or written over the signature of the Commissioner, Bureau Director, Troop Commander, or superior officer; prescribed by the various manuals, regulations, or directives of the Force; necessary for the preservation of good order, efficiency, or proper discipline of the Force and its Members.

"C. Responsibility: A Member shall be held responsible for the proper performance of all duties assigned to him and for strict adherence to the rules, regulations, manuals, and directives promulgated by the Department. Ignorance of the rules, regulations, and directives shall not be considered as an excuse or justification for any violation of such by a Member. A Member shall be responsible for his own acts and he shall not ...


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