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MATTER HUGH MCCANN. HUGH MCCANN (05/04/78)

decided: May 4, 1978.

IN THE MATTER OF HUGH MCCANN. HUGH MCCANN, APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In the Matter of Hugh McCann, No. 68-14777.

COUNSEL

Alfred J. Tagliaferri, with him Peck, Young & Van Sant, for appellant.

John P. Gregg, with him Samuel H. High, Jr., and High, Swartz, Roberts & Seidel, for appellee.

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

Author: Rogers

[ 35 Pa. Commw. Page 217]

Hugh McCann has appealed an order of the Montgomery County Court of Common Pleas which affirmed the decision of the Civil Service Commission of Cheltenham Township upholding McCann's removal from the Cheltenham Township Police Force.

In April of 1963 McCann sustained a back injury in the line of his duty as a policeman of Cheltenham Township. He returned to work for a short time but the symptoms of his injuries forced him to stop working entirely on August 28, 1963. McCann has not worked as a full-time policeman since August 1963, but after that date he frequently asked for limited or part-time duty, stating that he was unable to perform

[ 35 Pa. Commw. Page 218]

    regular duties as a full-time policeman. There has apparently been no limited duty work available and McCann has done none. Cheltenham Township paid McCann his full police salary from August 31, 1963 until May 31, 1968 and in return received an assignment of McCann's compensation benefits until November 19, 1966, when McCann agreed to a suspension of these benefits.

On April 5, 1968 at a special meeting attended by McCann, members of the township Board of Commissioners and the Chief of Police, McCann was requested to submit to a myelogram, the purpose of which was to ascertain the extent of his injuries and to decide questions concerning treatment, diagnosis and prognosis. Although his own physician recommended that he submit to the test, McCann refused. The township Public Safety Committee thereupon recommended to the Board of Commissioners that McCann be separated from the police force, effective May 31, 1968, for failure to report to work and perform the full-time duties of a police officer. The Board of Commissioners met April 30, 1968. McCann was advised of the Board's action on his case on that date by letter dated May 3, 1968, reading as follows:

Dear Officer McCann:

At a meeting of the Township Commissioners held at Curtis Hall on April 30, 1968, the following is a true and correct copy of a minute of action taken by the Board:

'Upon motion of Mr. Price, seconded by Mr. Lam, recommendation of the Public Safety Committee that Officer Hugh McCann be separated from the Police Force as of May 31, 1968 because of his failure to report to work and perform the full time duties of a policeman, was approved.'

[ 35 Pa. Commw. Page 219]

McCann immediately requested a hearing before the Civil Service Commission. The township stopped his ...


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