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JOSEPH EPPOLITO v. BRISTOL BOROUGH . BRISTOL BOROUGH (05/16/75)

decided: May 16, 1975.

JOSEPH EPPOLITO, APPELLANT,
v.
BRISTOL BOROUGH APPELLEE. BRISTOL BOROUGH, APPELLANT, V. JOSEPH EPPOLITO, APPELLEE



Appeals from the Order of the Court of Common Pleas of Bucks County in case of Joseph Eppolito v. Borough of Bristol, No. 74-2547.

COUNSEL

Peter J. Verderame, for Joseph Eppolito.

Richard M. Snyder, with him Begley, Carlin, Mandio, Kelton & Popkin, for Borough of Bristol.

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

Author: Wilkinson

[ 19 Pa. Commw. Page 100]

This cross-appeal comes to this Court as a result of the dismissal of Joseph Eppolito from his position as a police officer in the Borough of Bristol. On January 18, 1974, Eppolito's car was removed from a no-parking zone in the City of Philadelphia. Upon investigation of the license plate affixed to that car, the Philadelphia police determined that the license plate had been reported as stolen or missing by a resident of Bristol Borough on or about May 31, 1973.

[ 19 Pa. Commw. Page 101]

As a result of this incident, Eppolito was charged with "conduct unbecoming an officer, neglect of an official duty, inefficiency, disobedience of orders, and violations of a law which violation constitutes a misdemeanor or felony."*fn1 The evidence showed that Eppolito had found the plate while on duty in the Borough, but took no measures to determine who owned the plate or how it became lost. The car to which Eppolito had affixed the license plate had been bought by Eppolito in New Jersey and brought into Pennsylvania without payment of sales tax and title charges, and did not have a valid Pennsylvania inspection and certificate of title or registration. Apparently Eppolito had been using the license plate to his other car, as well as the license plate he had found, on the car purchased in New Jersey.

After holding hearings, the Bristol Borough Civil Service Commission upheld the dismissal voted by the Borough Council. On appeal to the Court of Common Pleas of Bucks County, that court, after taking additional evidence, reduced the dismissal penalty to a one-year suspension. Both parties have appealed to this Court.

In exercising our scope of review in this case, we must examine the testimony to determine whether the findings are supported by the evidence or whether the court was guilty of an abuse of discretion or an error of law. Albano v. Civil Service Commission of the Borough of McAdoo, 13 Pa. Commonwealth Ct. 333, 320 A.2d 385 (1974). The lower court determined, and we agree, that two specific reasons for disciplinary action under Section 1190 of the Borough Code, 53 P.S. ยง 46190, were applicable in the instant case: neglect or violation of an official duty; and conduct unbecoming an officer.

[ 19 Pa. Commw. Page 102]

The court found the charge of neglect or violation of an official duty was amply supported by the fact that Eppolito failed to report and investigate the circumstances surrounding the finding of the license plate. This fact is uncontested. Even though there was no formal departmental procedure promulgated for checking license plates, Eppolito testified he was aware of and had previously used a procedure to obtain information of ownership of license plates. Clearly, lack of a formal procedure cannot be justification for failure to take action when such action is accepted police procedure and dictated by common sense.

The charge of conduct unbecoming an officer can likewise be supported by clear evidence on this record. Our Supreme Court has ...


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