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BARRY F. CRAWFORD v. BOROUGH LEWISBURG (04/25/79)

decided: April 25, 1979.

BARRY F. CRAWFORD, APPELLANT
v.
BOROUGH OF LEWISBURG, APPELLEE



Appeal from the Order of the Court of Common Pleas of the 17th Judicial District, Union County Branch, in case of Barry F. Crawford v. Borough of Lewisburg, No. 351 -- 1975.

COUNSEL

H. William Koch, for appellant.

Jason S. Shapiro, with him Norman I. White, and McNees, Wallace & Nurick, for appellee.

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

Author: Macphail

[ 42 Pa. Commw. Page 261]

This is an appeal from a decision of the Court of Common Pleas of Union County which upheld the Borough of Lewisburg's (Borough) dismissal of police officer Barry F. Crawford (Appellant).

On June 3, 1975, Appellant was notified of the Borough's decision to dismiss him for physical disability and inefficiency pursuant to Section 1190 of The Borough Code (Code), Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. ยง 46190. Appellant requested a hearing before the Borough Civil Service Commission (Commission). On June 24, 1975, the Commission heard the testimony and, without an opinion, affirmed Appellant's discharge as of June 3, 1975. Appellant filed a timely appeal with the

[ 42 Pa. Commw. Page 262]

Court of Common Pleas of Union County. Pursuant to the provisions of the Code,*fn1 a hearing de novo was held by the lower court on May 3, 1977. At that hearing the Court received additional testimony by the Appellant and a deposition from Appellant's physician. On August 31, 1977, the trial court affirmed the decision of the Commission. It is from that decision that the instant appeal was taken.

Appellant argues to us that (1) the burden of proof applied by the trial court throughout the proceedings there was incorrect, (2) the trial court applied an incorrect scope of review to its proceedings, and (3) there was not substantial evidence in the record to support a finding that Appellant was permanently disabled, thereby rendering him incapable of efficiently serving the Borough as a police officer.

In order to justify its determination that Appellant had the burden of proving that he was not disabled the lower court relied upon City of Philadelphia v. Murphy, 13 Pa. Commonwealth Ct. 630, 320 A.2d 411 (1974). That case, however, dealt with a totally different factual situation from the one presented to us in the instant case. In City of Philadelphia, supra, Murphy was claiming disability benefits for a work related incident. Here we are concerned with the removal of a police officer for a physical disability. We think the correct determination of burden of proof in cases such as the one now before us is set forth in Soergel v. Board of Supervisors of Middlesex Township, 12 Pa. Commonwealth Ct. 311, 314, 316 A.2d 89, 91 (1974), wherein we stated that:

The burden was on the Board to present clear and convincing evidence to support the charges brought ...


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