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FRANK GALLAGHER v. CIVIL SERVICE COMMISSION CITY PHILADELPHIA (12/23/74)

decided: December 23, 1974.

FRANK GALLAGHER, APPELLANT,
v.
CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Frank Gallagher v. Civil Service Commission of the City of Philadelphia, No. 4560 May Term, 1973.

COUNSEL

Joffrey B. Conn, for appellant.

Nicholas Panarella, Jr., Assistant City Solicitor, with him James M. Penny, Jr., Assistant City Solicitor, John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee.

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

Author: Crumlish

[ 16 Pa. Commw. Page 280]

The Court of Common Pleas of Philadelphia County affirmed a decision of the Civil Service Commission (Commission) of the City of Philadelphia (City) which restored Frank Gallagher (Appellant) to the Police Department (Department). Appellant was appointed to the Department in October of 1965. On December 8, 1970, he was arrested on one count of conspiracy and several counts of falsification stemming from charges of an alleged conspiracy to procure by illegal means driver's licenses. He was tried and acquitted. Thereafter, the Police Inquiry Board conducted a hearing on the same subject, suspended without pay and ultimately dismissed Appellant from the Department. The Commission on appeal by Gallagher convened a de novo hearing. In its adjudication, the Commission held, inter alia, that the evidence adduced raised an "inference" of conduct unbecoming an officer but that it warranted only a long suspension rather than outright dismissal. He was ordered restored to duty without back pay.

[ 16 Pa. Commw. Page 281]

Our scope of review, as well as that of the court below, is defined by Section 8(b) of The Local Agency Law, Act of December 2, 1968, P.L. 1133, as amended, 53 P.S. ยง 11308(b) which states in part: "After hearing, the court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of this act have been violated in the proceeding before the agency, or that any finding of fact made by the local agency and necessary to support its adjudication is not supported by substantial evidence." See Harrington v. Philadelphia Civil Service Commission, 4 Pa. Commonwealth Ct. 580, 287 A.2d 912 (1972). In the instant appeal, the decisive issue for our determination is not whether Appellant is subject to criminal or civil liability, but rather, whether there was substantial evidence to justify his reinstatement "without back pay."

A careful reading of the record discloses the following evidence to be that relied upon in support of the Commission's adjudication and affirmance by the court below.

"Q. The second time you met Mr. Gallagher at your home did you discuss a driver's license for yourself?

"A. I did. I just asked him if I could get my license.

"Q. What'd he say?

"A. Don't worry ...


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