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JOHN A. BELL v. BOROUGH COUNCIL BOROUGH CONSHOHOCKEN (01/27/78)

decided: January 27, 1978.

JOHN A. BELL, APPELLANT
v.
BOROUGH COUNCIL OF THE BOROUGH OF CONSHOHOCKEN, CIVIL SERVICE COMMISSION OF CONSHOHOCKEN AND JOHN D. DIJOISIA, MAYOR, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of John A. Bell v. Borough Council of the Borough of Conshohocken, Civil Service Commission of the Borough of Conshohocken and John F. DiJoisia, Mayor, No. 75-12027.

COUNSEL

J. Peirce Anderson, with him Kane, Pugh, Anderson, Subers & McBrien, for appellant.

Walter Phipps, Jr., for appellees.

Judges Rogers and Blatt, sitting as a panel of two. Opinion by Judge Blatt.

Author: Blatt

[ 33 Pa. Commw. Page 425]

John A. Bell (Bell) has appealed from an order of the Court of Common Pleas of Montgomery County which affirmed the decision of the Conshohocken Civil Service Commission (Commission) suspending him from his duties as a police officer for one year.

[ 33 Pa. Commw. Page 426]

Bell's suspension arose out of an incident in July, 1974 when he and another policeman, Officer Forsythe, pursued an assault suspect into a building and placed him under arrest. Bell was carrying a loaded shotgun which accidently discharged, killing the suspect. A jury later acquitted him of all criminal charges relating to the incident, but the Conshohocken Borough Council (Council) suspended him for one year from August 19, 1974 for conduct unbecoming a police officer and for neglect in failing to use due care in the handling of a firearm. He appealed this suspension to the Commission, which upheld it after a hearing on the charges. On appeal to the lower court, which took additional evidence, the court concluded that Bell had been properly suspended for cause pursuant to Section 1190(4) of The Borough Code*fn1 (Code), 53 P.S. ยง 46190(4).

Our scope of review, when a lower court takes additional testimony in an appeal from a suspension order of a civil service commission, is to determine whether or not the court abused its discretion or committed an error of law. Re: Appeal of Fuller, 25 Pa. Commonwealth Ct. 116, 358 A.2d 756 (1976). Bell has alleged that the lower court abused its discretion here in affirming a suspension which was not justified based on the record. He also argues that the suspension violates the express provisions of the Code, and that, because of long delays and the alleged bias of

[ 33 Pa. Commw. Page 427]

    the Commission chairman, he did not receive a fair and proper hearing before the Commission.

The lower court examined the specific findings made by the Commission concerning Bell's conduct during the July, 1974 incident and determined that these findings were supported by evidence in the record and that they did substantiate a conclusion that he was guilty of conduct unbecoming an officer. Specifically, the Commission found that Bell exhibited neglect and conduct unbecoming an officer:

(1) In failing to secure the building and flush out or order the suspect out, instead of entering the building in view of the fact there were at least four police officers on the scene and ...


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