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NICHOLAS DICIACCO v. CIVIL SERVICE COMMISSION CITY PHILADELPHIA. JOSEPH GOTTWALD (07/31/78)

decided: July 31, 1978.

NICHOLAS DICIACCO, APPELLANT
v.
CIVIL SERVICE COMMISSION OF CITY OF PHILADELPHIA. JOSEPH GOTTWALD, APPELLANT V. CIVIL SERVICE COMMISSION OF CITY OF PHILADELPHIA. JOHN GERACE, APPELLANT V. CIVIL SERVICE COMMISSION OF CITY OF PHILADELPHIA. FRANCIS KIEFFER, APPELLANT V. CIVIL SERVICE COMMISSION OF CITY OF PHILADELPHIA



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in cases of Nicholas DiCiacco v. Civil Service Commission of the City of Philadelphia, No. 533 December Term, 1972; Joseph Gottwald v. Civil Service Commission of the City of Philadelphia, No. 3321 December Term, 1972; John Gerace v. Civil Service Commission of the City of Philadelphia, No. 2175 February Term, 1973; and Francis Kieffer v. Civil Service Commission of the City of Philadelphia, No. 2174 February Term, 1973.

COUNSEL

A. Charles Peruto, with him Burton Rose, for appellants.

Ralph J. Teti, Assistant City Solicitor, with him James M. Penny, Jr., Deputy City Solicitor, James M. Moran, Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.

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

Author: Mencer

[ 37 Pa. Commw. Page 79]

These appeals have been taken by four policemen from orders of the Court of Common Pleas of Philadelphia County affirming their dismissals by the Civil Service Commission.*fn1 All four had been charged with conduct unbecoming an officer in their handling of cases involving narcotics, and each had been dismissed on the basis of his own statements in response to interrogation by other police officers. Since a statement made by Officer Kieffer was improperly admitted into evidence, we reverse as to him, but affirm

[ 37 Pa. Commw. Page 80]

    the dismissal of Officers DiCiacco, Gottwald and Gerace.

The dismissed policemen raise three arguments here: (1) The officers' statements should not have been admitted without a showing of "corpus delicti," i.e., without independent proof that the substances with which they came into contact were in fact heroin and that some wrongdoing had occurred, (2) the statements which were made under compulsion of being fired under Section 10-110 of the Philadelphia Home Rule Charter (Charter) were inadmissible, and (3) there was no substantial competent evidence in the record to justify their dismissal.

Our scope of review here is limited by Section 8(b) of the Local Agency Law, Act of December 2, 1968, P.L. 1133, 53 P.S. § 11308(b). We must affirm the adjudication below unless constitutional rights have been violated, the provisions of the Local Agency Law have not been complied with in the proceeding before the Commission, an error of law has been committed, or the findings of the Commission are not supported by substantial evidence. Richter v. Philadelphia Civil Service Commission, 35 Pa. Commonwealth Ct. 310, 387 A.2d 131 (1978); Harrington v. Philadelphia Civil Service Commission, 4 Pa. Commonwealth Ct. 580, 287 A.2d 912 (1972).

I. Corpus Delicti

We find the corpus delicti argument to be without merit. By definition, "corpus delicti" means "the body of a crime." Black's Law Dictionary 413 (rev. 4th ed. 1968) (emphasis added). Appellants have not offered any non-criminal cases in support of their position, and we therefore decline to impose such a requirement on civil service proceedings.

[ 37 Pa. Commw. Page 81]

II. Statements Made Under Section 10-110

The question of the admissibility of statements made under the compulsion of the Charter provision poses a more difficult problem. At the time, Section 10-110 provided:

If any officer or employee of the City shall willfully refuse or fail to appear before any court, or before the Council, or any committee thereof, or before any officer, department, board, commission or body authorized to conduct any hearing or inquiry, or having appeared, shall refuse to testify or to answer any question relating to the affairs or government of the City or the conduct of any City officer or employee on the ground that his testimony or answers would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any matter about which he may be asked to testify before such court or at any such hearing or inquiry, he shall forfeit his office or position, and shall not be eligible thereafter for employment to any position in the City service.

The Commission has argued that this issue has not been properly preserved for review by this Court. As to Officers DiCiacco and Gottwald, we agree. The decisions of the Commission as to these two officers were handed down in November 1972 and "exceptions" were filed with the lower court in December 1972. Two issues were raised in these "exceptions": the corpus delicti question and a substantial-evidence argument. In contrast, the "exceptions" filed with the lower court in February 1973 to the decisions of the Commission dated January 19, 1973 as to Officers Gerace and Kieffer raised three issues: corpus delicti, substantial evidence, and whether the Commission improperly admitted

[ 37 Pa. Commw. Page 82]

    into evidence their statements in that they were not the product of a voluntary and free will. In the opinions by the Commission and the lower court, the effect of Section 10-110 on ...


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