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APPEAL OFFICER JAMES PATRICK MCMULLIN (04/02/79)

decided: April 2, 1979.

IN RE: APPEAL OF OFFICER JAMES PATRICK MCMULLIN, JR. FROM THE ADJUDICATION OF LANCASTER CITY COUNCIL. JAMES PATRICK MCMULLIN, JR., APPELLANT


Appeal from the Order of the Court of Common Pleas of Lancaster County in case of In Re: Appeal of James Patrick McMullin, Trust Book 44, Page 124.

COUNSEL

Samuel M. Mecum, with him Glazier, Minney, Mecum & Kohr, for appellant.

M. E. Newcomer, with him Louis J. Farina, and Donald E. Lefever, for appellee.

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

Author: Blatt

[ 41 Pa. Commw. Page 475]

This is an appeal by James Patrick McMullin, Jr. (appellant) from an order of the Court of Common Pleas of Lancaster County, affirming the decision of the Lancaster City Council (Council), which upheld his dismissal from his position as patrolman with the Lancaster Bureau of Police (Bureau). He argues (1) that his rights were prejudiced because of repeated references during the hearing before the Council to the results of polygraph tests and (2) that the findings of the Council are not supported by substantial evidence.

The appellant was dismissed on April 13, 1977, pursuant to a written memorandum from Wilmer A. Hoover, Chief of Police, which indicated that he was being discharged under Rule VIII of the Rules and Regulations of the Civil Service Board for the Bureau of Police of the City of Lancaster. This Rule provides:

Section 1. For the first two years of employment, the patrolman shall be on probation. He may be dismissed from such duty or employment with just cause by the Chief of Police. The employee may appeal by petition such discharge within 30 days to City Council.

The specific charges listed were that the appellant lied to superiors concerning illicit drug activity by his roommate, that he failed to take enforcement action

[ 41 Pa. Commw. Page 476]

    upon observing marijuana use in his apartment, that he had a "drinking problem," and that he associated with persons involved in the unlawful use of controlled substances.

At the hearing before the Council, numerous references were made both by witnesses for the Bureau and by the appellant to the administration of two polygraph tests to which he had voluntarily submitted. None of the allegations made against the appellant and considered by the Council, however, was based on the results of these tests. The Council concluded that there was substantial evidence to support all of the charges except that one dealing with appellant's alleged "drinking problem." On appeal the court of common pleas rejected as unsupported by substantial evidence the finding that the appellant had associated with persons involved in the unlawful use of controlled substances. The court concluded, however, that

     there is substantial evidence in the record of the proceedings before the City Council to support the charge that Appellant lied to his superior officers on at least one occasion and knowingly ...


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