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APPEAL ALVIN H. ZIMMETT (01/06/77)

decided: January 6, 1977.

IN RE: APPEAL OF ALVIN H. ZIMMETT, MEMBER OF THE POLICE FORCE OF THE BOROUGH OF ST. MARYS. ALVIN H. ZIMMETT, APPELLANT


Appeal from the Order of the Court of Common Pleas of Elk County in case of In Re: Appeal of Alvin H. Zimmett, Member of the Police Force of the Borough of St. Marys, No. 75-866.

COUNSEL

Norbert J. Pontzer, with him Pontzer & Pontzer, for appellant.

Alvin B. Coppolo, Solicitor, for appellee.

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

Author: Mencer

[ 28 Pa. Commw. Page 104]

The issue before us in this borough civil service appeal is whether the Civil Service Commission of

[ 28 Pa. Commw. Page 105]

    the Borough of St. Marys (Commission) erred in modifying the penalty imposed on Officer Alvin H. Zimmett by the Council of the Borough of St. Marys (Council).

Officer Zimmett, a member of the police force of the Borough of St. Marys who had recently been demoted from chief to patrolman, reported for duty on July 15, 1975 with the odor of intoxicants on his breath. After verifying the report of an officer that Zimmett was intoxicated, the acting police chief sent Zimmett home. The next day the mayor of St. Marys suspended Zimmett pending a meeting of the Council, citing intoxication among the reasons for the action. At a meeting which the mayor attended, the Council dismissed Zimmett on the same charges. Zimmett demanded a hearing before the Commission under Section 1191 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. ยง 46191.

The Commission held a hearing at which four members of the police department testified concerning Zimmett's behavior. In particular, there was testimony that his speech was slurred, that his breath smelled of intoxicants, and that he had difficulty avoiding walls and balancing himself on chairs. Other testimony adduced at the hearing tended to show that the other charges against Zimmett either stemmed from the intoxication-on-duty charge or were violations of ambiguous police department policies. The Commission therefore dismissed all but the intoxication charge. Moreover, the Commission reduced the penalty imposed by the Council from dismissal to suspension for 120 days, opining that, had the Council only considered the intoxication charge, it would not have dismissed Zimmett. Section 1191 was cited as authority for the Commission's power to modify Council actions.

[ 28 Pa. Commw. Page 106]

The Court of Common Pleas of Elk County found that the Commission abused its discretion by basing the modification of the penalty on speculation as to the probable actions of the Council, and the Council's order of dismissal was reinstated. Zimmett now appeals to this Court, contending both that the Commission did not abuse its discretion and that it has the power to modify a Council action.

Our scope of review in a borough civil service appeal where the court below has not taken additional evidence is limited to determining whether the commission abused its discretion or committed an error of law. Banks v. Board of Commissioners of Upper Moreland Township, 7 Pa. Commonwealth Ct. 393, 298 A.2d 923 (1973); Gabauer v. Civil Service Commission, 6 Pa. Commonwealth Ct. 646, 297 A.2d 507 (1972). In exercising this review, we are mindful of the role of courts in reviewing borough civil service appeals. Our Supreme Court has said in Baker Case, 409 Pa. 143, 147, 185 A.2d 521, 523 (1962), that "[t]he function of the courts is merely to make sure that just cause for dismissal exists, both factually and legally, and that the municipal officials have not abused ...


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