Appeal from the Order of the Commissioner of the Pennsylvania State Police in case of Pennsylvania State Police and James D. Barger, Commissioner of the Pennsylvania State Police v. Lieutenant Colonel Charles S. Graci, dated July 16, 1973.
Richard C. Snelbaker, with him Martson and Snelbaker, for appellant.
Marc Kapustin, Deputy Attorney General, with him Benjamin Lerner, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Judge Mencer dissents.
[ 14 Pa. Commw. Page 632]
This is an appeal by Lieutenant Colonel Charles S. Graci from the action of the Commissioner of the Pennsylvania State Police in dismissing appellant from the Pennsylvania State Police as recommended by a Court-martial Board convened to hear charges lodged against him.
It was and still is the practice of the State Police to administer promotional examinations to state troopers. Promotion from Private to Corporal, Corporal to Sergeant, and Sergeant to Lieutenant is based, in part, upon the results of these examinations. Examinations are prepared by an independent consulting agency, and then reviewed by a Promotional Review Board, composed of State Police officers, for accuracy and clarity.
On September 6, 1972, appellant, at the invitation of the then Commissioner, Rocco P. Urella, attended the final review session of the Promotional Review Board of the State Police, at which meeting the questions and answers of the promotional examinations, and, in particular, the Sergeant to Lieutenant examination, were discussed by all persons present, including the appellant.
Prior to the administering of the Sergeant to Lieutenant examination on October 27, 1972, the first sixteen and last nine questions of this examination were scrambled, with the desired result that the answer sequence was also scrambled. Sergeant Graci, the appellant's brother, took this examination, and of the 347 persons who took the examination, 69 placed higher than Sergeant Graci and 9 received an identical score.
The Commissioner appointed a three member Disciplinary Board of Review on February 28, 1973, to investigate alleged irregularities in the conduct of the
[ 14 Pa. Commw. Page 633]
promotional examinations. On March 2, 1973, this Board recommended that court-martial proceedings against appellant be instituted, and on March 5, 1973, Deputy Commissioner Lieutenant Colonel Wellendorf filed charges and specifications against appellant. The Commissioner convened a Court-martial Board on March 15, 1973, and a hearing lasting 12 days was commenced on June 17, 1973. The Court-martial Board found appellant guilty of all charges and recommended his dismissal, which resulted in the Commissioner's action from which this appeal was taken.
Before considering the merits of this appeal we must first delineate our scope of review. Although the proceedings before the Court-martial Board were conducted as though a criminal proceeding, it is essentially an administrative action. Accordingly, this Court recently held in Luchansky v. Barger, 14 Pa. Commonwealth Ct. 26, 321 A.2d 376 (1974), that our scope of review was one of substantial evidence enlarged to reflect the Commissioner's regulation, effective in this case, that the burden of proof was that of one beyond a reasonable doubt. That is, there must be substantial evidence that the appellant was guilty beyond a reasonable doubt.
Appellant first contends that court-martial procedure deprives him of his constitutional rights. We decided this exact issue in Dussia v. Barger, 10 Pa. Commonwealth Ct. 167, 309 A.2d 607 (1973), and have recently reaffirmed our opinion as to the constitutional validity of this procedure in Luchansky, supra. These decisions are dispositive of appellant's contention and further consideration thereof is unnecessary.
The appellant had the following charges and specifications preferred against him by Lieutenant Colonel Wellendorf resulting ...