Appeal from the Orders of the Court of Common Pleas of Northampton County in cases of Ronald Gawlik v. City of Bethlehem, No. 181 April Term, 1975; and Vincent Tiscio v. City of Bethlehem, No. 182 April Term, 1975.
Robert W. Rudas, City Solicitor, with him Robert J. Washko, Assistant City Solicitor, for appellant.
George A. Hahalis, for appellee, Gawlik.
Jeffrey R. Dimmich, with him Wallace C. Worth, Jr., for appellee, Tiscio.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
[ 30 Pa. Commw. Page 392]
The City of Bethlehem has appealed from an order of the Court of Common Pleas of Northampton County ordering reinstatement with back pay of Ronald Gawlik and Vincent Tiscio, patrolmen of the city's police department. The effect of the order of the court below was to overturn a decision of City Council, after hearing, discharging both patrolmen.
The proceedings both before City Council and in the court below were pursuant to Section 4408 of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 39408, which reads pertinently as follows:
All employes subject to civil service shall be subject to suspension by the director of the department for misconduct, or violation of any law of this Commonwealth, any ordinance of the city, or regulation of the department, pending action by the city council upon the charges made against any of such employes. On hearing before the city council, where they may be represented by counsel, they may be fined or suspended for a period not exceeding thirty days with or without pay, or they may be discharged by city council, if found guilty of the charges made against them. . . .
Any civil service employe aggrieved by the action of the council in fining, suspending or discharging him shall have the right to appeal by petition to the court of common pleas within thirty days after the suspension or after receipt of written notice of such action by council which it shall be the duty of the council to give and the court shall hear the charges made against
[ 30 Pa. Commw. Page 393]
him de novo. The issue before the court shall be whether the action of the council shall be affirmed or be modified in any respect or whether the charges should be dismissed or whether the suspension made by the director shall be affirmed or rescinded. Where any such employe has been suspended and the charges are dismissed or the suspension rescinded on appeal, he shall receive full compensation for the entire period of suspension.
Since it is crucial to our decision in this case, we emphasize at this early place in this opinion that, although the court of common pleas conducts a hearing de novo the court may not substitute its discretion for that of city council if the evidence produced at the hearing in the court below supports the discretion exercised by council; that the court may not interfere with council's decision unless council has flagrantly abused its discretion or violated the law; and that unless the evidence be such that if the case were being tried by a jury the court would be required to enter a non-suit or a judgment n.o.v. the court is required to affirm the findings of city council even though the court as an independent fact-finding body might conclude otherwise. Ditko Appeal, 385 Pa. 435, 123 A.2d 718 (1956), affirming an order of the Berks County Court of Common Pleas on President Judge Warren K. Hess's opinion reported at 5 D. & C. 2d 569 (1955). A non-suit can be entered only when it is "inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant ...