decided: July 21, 1976.
RE: THE MATTER OF THE APPEAL OF EDWARD L. MERRILLS, POLICE OFFICER FOR THE BOROUGH OF HUNTINGDON, ON SUSPENSION. EDWARD L. MERRILLS, APPELLANT
Appeal from the Order of the Court of Common Pleas of Huntingdon County in case of In the Matter of the Appeal of Edward L. Merrills, Police Officer for the Borough of Huntingdon, No. 17 September Term, 1975.
R. Merle Heffner, for appellant.
Warren R. Yocum, with him Simpson & Yocum, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson.
[ 25 Pa. Commw. Page 578]
This is an appeal by a borough police officer from his suspension by order of the Mayor because of his active candidacy for the office of District Justice. The suspension was approved by the borough council. On appeal to the civil service commission for the borough and, after hearing, the commission affirmed the suspension. On further appeal to the Court of Common Pleas the action of the civil service commission in affirming the suspension was affirmed with an able opinion by President Judge Morris M. Terrizzi.
The only error assigned in this appeal is that the borough council, when it notified appellant that his suspension for engaging in political activity was approved, referred to the action as being "in conformance with the requirements of the Federal Hatch Act as outlined in the Federal Revenue Sharing program
[ 25 Pa. Commw. Page 579]
(State and Local Assistance Act of 1972)." This was admittedly in error for, as the Mayor had previously notified appellant, the action was in conformity with section 1190 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46190. However, the cause of the suspension, rather than that statute with which it conformed, was accurately stated in each notice.
We quote from Judge Terrizzi's opinion which clearly, accurately, and succinctly states the law:
"The Court finds no merit whatsoever in the position of the Officer in this case. By letter dated March 12, 1975, the Mayor advised Patrolman Merrills of his suspension. The letter states that the suspension is made in accordance with Section 1190 of the Borough Code, 53 P.S. § 46190, and indicates that the specific charge lodged against him was the engaging in a political or election campaign. A copy of a portion of the Borough Minutes indicates that when the matter was reviewed by Council, the Officer was suspended without pay and benefits from March 13, 1975, to May 26, 1975, for engaging or participating in conducting an election campaign for the office of District Justice. On March 20, 1975, two days after Borough Council had taken action on the matter, the Borough Secretary advised Officer Merrills of his suspension and indicated that the suspension resulted from his engaging or participating in conducting an election campaign for the office of District Justice. Unfortunately, in this letter of notification the Borough Secretary speaks of the Federal Hatch Act and the Federal Revenue Sharing Program, and it is on the basis of this statement that objection is raised to the suspension.
"There is no question that the Officer engaged in conduct which warranted his suspension, removal or reduction in rank. Furthermore, there is no question
[ 25 Pa. Commw. Page 580]
but what his suspension by the Mayor, pending action by Borough Council, was because he had engaged in conduct which warranted his suspension; there is no question but what Borough Council's action was predicated on his activities which under the Borough Code permitted his suspension. The action of every person and group who under the Act had any authority to deal with the subject was predicated on the political activity of the Officer, which under Section 1190 authorized his suspension. The inclusion of the reference to the Federal Hatch Act and the Federal Revenue Sharing Program in the Borough Secretary's letter of notification is mere surplusage and does not constitute an action by any person in authority and, therefore, can form no basis for reversing the action of Borough Council which was affirmed by the Civil Service Commission." (Emphasis in original.)
Now, July 21, 1976, the order of the Court of Common Pleas of Huntingdon County, affirming the action of the Civil Service Commission approving the suspension of Edward L. Merrills, Police Officer for the Borough of Huntingdon, is hereby affirmed.
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