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APPEAL REUBEN FULLER (06/09/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 9, 1976.

RE: APPEAL OF REUBEN FULLER, REGINALD FOSTER AND JAMES DIBENEDETTO FROM SIXTY DAYS SUSPENSION WITHOUT PAY FROM THE POLICE FORCE OF THE BOROUGH OF ALIQUIPPA, BEAVER COUNTY, PENNSYLVANIA. THE BOROUGH OF ALIQUIPPA, APPELLANT

Appeal from the Order of the Court of Common Pleas of Beaver County in case of In Re: Appeal of Reuben Fuller, Reginald Foster, and James DiBenedetto from Sixty Days Suspension Without Pay from the Police Force of the Borough of Aliquippa, Beaver County, Pennsylvania, No. 992 of 1974.

COUNSEL

Joseph M. Stanichak, for appellant.

John A. Havey, with him Havey and Neff, for appellees.

President Judge Bowman and Judges Mencer and Rogers, sitting as a panel of three. Opinion by President Judge Bowman. Judge Kramer did not participate in the decision in this case.

Author: Bowman

[ 25 Pa. Commw. Page 117]

This is an appeal by the Borough of Aliquippa from an order of the Court of Common Pleas of Beaver County, dated September 17, 1975, which modified an order of the Civil Service Commission of the Borough of Aliquippa. The Commission had ordered the suspension of three police officers (appellees herein) for a period of 60 days. On appeal the Court of Common Pleas took additional testimony, and, after finding the Commission's action to be proper with respect to the merits of the appeal, the Court found that the Commission had abused its discretion in imposing the 60-day suspensions. The Court reduced the suspensions to 15 days.

The only issue is whether the Court of Common Pleas had the power to reduce the suspensions. Such

[ 25 Pa. Commw. Page 118]

    authority as the Court had must be found in Section 1191 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46191, which reads in pertinent part as follows: "All parties concerned shall have immediate right of appeal to the court of common pleas of the county, and the case shall there be determined as the court deems proper. . . . Upon such appeal being taken and docketed, the court of common pleas shall fix a day for a hearing and shall proceed to hear the appeal on the original record and such additional proof or testimony as the parties concerned may desire to offer in evidence. The decision of the court affirming or revising the decision of the commission shall be final, and the employe shall be suspended, discharged, demoted or reinstated in accordance with the order of court." (Emphasis added.)

Preliminarily, we note that our scope of review is to determine whether the court was guilty of an abuse of discretion or an error of law. Eppolito v. Bristol Borough, 19 Pa. Commonwealth Ct. 99, 339 A.2d 653 (1975).

The parties devote most of their argument to a disagreement over the meaning of Baker Case, 409 Pa. 143, 185 A.2d 521 (1962), where the Supreme Court discussed the power of a court of common pleas under Section 8 of the Act of August 10, 1951, P.L. 1189, as amended, 53 P.S. § 23538, relating to cities of the second class.*fn1 In Baker, the Court held that the function

[ 25 Pa. Commw. Page 119]

    of the courts was "merely to make sure that just cause for dismissal exists . . . and that the municipal officials have not abused their discretion in imposing the punishment in question." 409 Pa. at 147, 185 A.2d at 523. The statutory language at issue in Baker did not contain allowance for the Court of Common Pleas to determine the case "as the court deems proper." In this respect the statutory law with respect to cities of the second class differs from the Borough Code quoted above, and Baker is distinguishable.

In Lower Merion Township v. Turkelson, 396 Pa. 374, 152 A.2d 724 (1959), decided shortly before Baker, supra, the Supreme Court held that under the statutory language applicable to townships of the first class, which gave the court authority to determine the case "as the court deems proper," a modification of the penalty originally imposed by the Civil Service Commission was not error. We are bound by Lower Merion and deem it to be controlling. We commented on Lower Merion in Banks v. Board of Commissioners of Upper Moreland Township, 7 Pa. Commonwealth Ct. 393, 298 A.2d 923 (1973) where we acknowledged the significance of the words "as the court deems proper" and noted that such language gives the court "full discretion to modify" penalties. See also Township of Upper Moreland v. Mallon, 9 Pa. Commonwealth Ct. 618, 309 A.2d 273 (1973).

Although the parties have not cited Eppolito, supra, we recognize that in Eppolito we found guidance in Baker, supra, even though Eppolito, like the instant

[ 25 Pa. Commw. Page 120]

    case, arose under the Borough Code. We read the result in Eppolito to be consistent with the view that under the Borough Code a court of common pleas may modify a penalty because even under the "as the court deems proper" language the court cannot have total, unfettered discretion. In Eppolito the officer was found to have used a stolen license plate on his personal vehicle, the vehicle itself having been brought into Pennsylvania without payment of taxes and title charges and without a valid inspection or registration. Eppolito's conduct was obviously very grave and, accordingly, he was dismissed from the force. The court modified this penalty and imposed a one-year suspension. We held that "[u]nder the circumstances of [that] case" the modification was error. 19 Pa. Commonwealth Ct. at 104, 339 A.2d at 656. In essence, in Eppolito we held that the court had abused its discretion in modifying what was admittedly a discretionary decision by the Civil Service Commission.

In light of the above discussion, we conclude that the broad language of Section 1191 of the Borough Code, 53 P.S. § 46191, empowers a court of common pleas to modify a penalty imposed by a borough civil service commission, as long as the court itself does not thereby commit an abuse of discretion. The Borough's argument consists solely of the assertion that the trial court lacked the power to make a judgment with respect to the suspensions, and the Borough does not suggest that the exercise of such power, if permitted, was an abuse of the court's discretion under the facts of this case.

Order affirmed.

Judge Kramer did not participate in the decision in this case.

Disposition

Affirmed.


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