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LIEUTENANT COLONEL JOSEPH DUSSIA v. COLONEL JAMES D. BARGER (10/03/75)

decided: October 3, 1975.

LIEUTENANT COLONEL JOSEPH DUSSIA, APPELLANT,
v.
COLONEL JAMES D. BARGER, COMMISSIONER OF THE PENNSYLVANIA STATE POLICE, ET AL., APPELLEES



COUNSEL

Bruce E. Cooper, Cooper, Friedman & Butler, Harrisburg, for appellant.

J. Andrew Smyser, Deputy Atty. Gen., Benjamin Lerner, Deputy Atty. Gen., Israel Packel, Atty. Gen., Pennsylvania Dept. of Justice, Harrisburg, for appellees.

Arlen Specter, Philadelphia, for National Fraternal Order of Police (Grand Lodge), amicus curiae.

Richard M. Goldberg, Hourigan, Kluger & Spohrer Associates, Wilkes-Barre, for amicus curiae.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Pomeroy, J., concur in the result.

Author: Nix

[ 466 Pa. Page 154]

OPINION

Appellant, Joseph Dussia, a Lieutenant Colonel of the Pennsylvania State Police presently under suspension, instituted an action in equity in the Commonwealth Court seeking permanent injunctive relief from his pending court-martial. The action was instituted against James D. Barger, the Commissioner of the Pennsylvania State Police Department, and the individual members of the Court-Martial Board. The court-martial proceeding had been instituted by the Commissioner for the purpose of

[ 466 Pa. Page 155]

    considering certain improprieties allegedly committed by Dussia in the performance of his duties. In the event the charges are established the Board would have the option to recommend to the Commissioner that Dussia be discharged or demoted in rank. In the event of his exoneration the Board would be empowered to recommend reinstatement with back pay.

The Commonwealth Court sitting en banc denied appellant's request for injunctive relief and this appeal followed.

A number of assignments of error have been raised and will be treated ad seriatim. Appellant first asserts that his constitutional right to a fair hearing will be denied if the court-martial proceedings are permitted to continue because of the Commissioner's bias against him. The testimony pertaining to this point focused upon the content of a telephone conversation between the Commissioner and appellant. Although appellant's version of the conversation would tend to indicate that the Commissioner was biased against him, the Commonwealth Court found the Commissioner's representations to the contrary more credible. The court below concluded that Barger's statements were "only an effort to apprise the appellant that there was evidence against him and to suggest that resignation should be considered." They found that the record failed to establish that Barger had, in fact, formed an opinion as to appellant's guilt or innocence and, therefore, could objectively perform his function. While the record presents a close question as to whose version is correct we believe the findings of fact made by the Commonwealth Court are supported by adequate evidence and, thus, will not be disturbed on appeal.*fn1 Snow v. Corsica Construction Company, 459 Pa. 528,

[ 466 Pa. Page 156329]

A.2d 887 (1974); Berkowitz v. Mayflower, 455 Pa. 531, 317 A.2d 584 (1974); Anthony v. Perose, 455 Pa. 233, 312 A.2d 360 (1973); Yuhas v. Schmidt, 434 Pa. 447, 258 A.2d 616 (1969); Hankin v. Goodman, 432 Pa. 98, 246 A.2d 658 (1968).

Appellant next asserts that Section 711*fn2 of the Administrative Code is an unconstitutional delegation of

[ 466 Pa. Page 158]

    power by the legislature because it fails to provide any legislative standards to guide the Commissioner in the performance of the duties provided for therein. We do not agree.

In Ruch v. Wilhelm, 352 Pa. 586, 43 A.2d 894 (1945) this Court was called upon to consider an earlier version of Section 711 of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended, Act of June 29, 1937, P.L. 2436. That section provided that the Commissioner establish rules and regulations for the filing and hearing of charges against members of the state police.*fn3 There

[ 466 Pa. Page 159]

    we noted the existence of the power of the Commissioner under common law to remove any employee within the department at his pleasure either for cause or without cause.

"Under the common law, therefore, they are subject, like all other Commonwealth employes, to removal at the pleasure of the appointing power, either for cause or without cause, unless there is legislative provision to the contrary." Id. at 588-89, 43 A.2d at 895. (Footnote omitted) We held that the language of 711 would not be considered as a legislative attempt to confer tenure upon state police employees and that the Commissioner had an option to either exercise his common law right or to employ the procedures set forth in the regulations promulgated pursuant to 711. This decision is significant in our present inquiry in that it establishes that at the time of the most recent amendment of 711 the Commissioner still possessed his unfettered power to discharge at his pleasure.*fn ...


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