Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Donald G. Oswald v. City of Allentown and Carson S. Gable, No. 602 September Term, 1976.
W. Hamlin Neely, for appellant.
Jack I. Kaufman, Assistant City Solicitor, with him Daniel K. McCarthy, Assistant City Solicitor, and Alan M. Black, City Solicitor, for appellee.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 36 Pa. Commw. Page 239]
Donald G. Oswald (Appellant) appeals an order of the common pleas court upholding his dismissal from the Allentown Police Force. The City of Allentown (City) seeks to sustain that determination.
[ 36 Pa. Commw. Page 240]
The facts are as follows. In May or June of 1975, Appellant, while in uniform and driving a marked police vehicle, visited the manager of the Twin Village Apartments. According to the testimony adduced before the court below, Appellant stated, "I heard you have been having a lot of problems in the project." When the manager replied in the affirmative, Appellant responded, "Well, if I had an apartment I could keep an eye on the place for you." The manager testified that he had previously made apartments available for surveillance purposes to law enforcement authorities and, so, he made one available to Appellant. From approximately 100 vacant apartments, Appellant selected an unfurnished unit located in a remote area of the complex. Appellant asked the manager to obtain some furnishings and, accordingly, Appellant was provided a bed, kitchen table and chairs. Appellant paid no rent for the apartment nor did the manager see Appellant again until sometime in 1976.
In late April or May of 1976, while patrolling the vicinity of the Twin Village Apartment complex, Appellant told a fellow officer that "I have an apartment, and we are using it." Appellant also indicated to this officer that a woman civilian was regularly taking men to the apartment. One married officer testified that Appellant had given him a key to the apartment, which he subsequently used for sexual encounters. The Chief of the Allentown Police Department testified that a married female admitted using the apartment twice a week for the purpose of engaging in sexual relations. Subsequently, when this woman testified, she admitted receiving a key from Appellant. Appellant, however, did not testify.
Prior to disposition by that court, the Allentown City Council, after a closed hearing, the transcript of which was not made available to the court below, concluded:
[ 36 Pa. Commw. Page 2411]
. Patrolman Donald Oswald did not engage in conduct unbecoming a police officer in that he did not knowingly and willfully procure an apartment unit for personal use, without payment, under the false pretext that the apartment unit was to be used for observation of possible illegal activities within the apartment complex.
2. Patrolman Donald Oswald did engage in conduct unbecoming a police officer in that he did provide access to, and use of, an apartment unit to others for activities which could only bring ...